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Cornell University Library 
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 Pennsylvania trial evidence / 
 
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PENNSYLVANIA 
 TRIAL EVIDENCE 
 
 By 
 GEORGE M. HENRY 
 
 Of the Philadelphia Bar 
 
 Newark, New Jersey 
 
 SONEY & SAGE 
 
 1914 
 
13 7?3 70 
 
 Copyright, 1914 
 
 BY 
 
 SoNEY & Sage 
 
TO 
 MY MOTHER 
 
PREFACE 
 
 The principles of law which govern a case can usually be de- 
 termined in advance, and such authorities as may be deemed 
 necessary to sustain them collected before actual trial. On the 
 other hand, it is impossible to foresee all questions of evidence 
 which may arise and call for immediate decision in the course of 
 the trial, and when such questions do arise it is important to have 
 at hand some means of determining whether or not there are 
 any decisions in point. While the fundamental rules and prin- 
 ciples of evidence are substantially of universal application and 
 vary but little in different jurisdictions, and have been fully 
 treated in the various text-books on the subject, yet there are 
 many instances where the decisions of different states vary in 
 the application of those principles or where statutory enactments 
 have made material changes, as in Pennsylvania. This offers a 
 field for a local work of this kind, which is not covered in the 
 general text-books on evidence, and which, though treated gen- 
 erally in the various digests of statutes and decisions in our state, 
 is necessarily covered in such manner as to render the use of such 
 volumes inconvenient for quick reference. It is with the hope 
 of fulfilling this need that the author has endeavored in this 
 volume to present the law of evidence in Pennsylvania in a con- 
 cise and practical form for ready reference either in the court 
 room or in the preparation for trial. 
 
 With the above purpose in view, the system of arranging chap- 
 ters and headings thereunder alphabetically has been adopted. In 
 following out this plan, it has frequently been necessary to sacri- 
 fice logic in arrangement of subject, but it is hoped and believed 
 that this defect is compensated for by additional convenience and 
 practical usefulness. In this connection the author wishes to 
 acknowledge his indebtedness to Edwin Gates Norman, Esq., 
 and Arthur Stillman Houghton, Esq., of the Worcester bar, 
 whose book on Massachusetts Trial Evidence first suggested the 
 plan of this book. 
 
 Geo. M. Henry. 
 
 Philadelphia, June i6, 1914. 
 
TABLE OF CONTENTS 
 
 Chapter. Page. 
 
 I. Admissibility in General — Relevancy, 9 
 
 II. Admissions, 62 
 
 III. Book Entries, 97 
 
 IV. Character, 115 
 
 V. Confessions 124 
 
 VI. Custom and Usage, 133 
 
 VII. , Depositions, 139 
 
 VIII. Documentary Evidence, 168 
 
 IX. Exhibits, 236 
 
 X. Hearsay, 240 
 
 XI. Judicial Notice, 279 
 
 XII. Opinions, 281 
 
 XIII. Parol Evidence, 313 
 
 XIV. Presumptions, 348 
 
 XV. Privileged Communications, ' 367 
 
 XVI. Trial— Matters Pertaining to, 374 
 
 XVII. Witnesses, 390 
 
PENNSYLVANIA TRIAL 
 EVIDENCE 
 
 10. 
 
 II 
 
 12. 
 
 13 
 
 14 
 15 
 
 16. 
 17 
 18. 
 19. 
 20. 
 
 CHAPTER I. 
 
 ADMISSIBILITY IN GENERAL — RELEVANCY. 
 
 General Principles — Determination of question of relevancy. 
 
 Must be material and tend to sustain issue — Theory of case — 
 Evidence of facts admitted. 
 
 Must be confined to issue and pleadings. 
 
 Need not prove entire case. 
 
 Not to be excluded because of contradictory evidence. 
 
 Relevancy must be shown. 
 Circumstantial evidence. 
 Collateral matters. 
 Contradiction. 
 Corroboration. 
 
 Acts and circumstances. 
 
 Consonant declarations. 
 Criminal cases. 
 
 Financial condition of parties. 
 .Fraud. 
 
 Competency of evidence — Rebutting evidence. 
 
 Determination of question — Court and jury. 
 
 Proof. 
 
 Necessity of. 
 Offer of. 
 
 Reliance on misrepresentations. 
 Sufficiency of. , • 
 
 Identity. 
 Intent. 
 
 21. Declarations, acts and circumstances. 
 
 22. Declarations prior to act — Threats. 
 
 23. Declarations subsequent to act. 
 
 24. Mental condition. 
 
 25. Motive. 
 
 26. Opportunity. 
 
 27. Preparation. 
 
 28. Rebutting inferences. 
 
 29. Remoteness. 
 
 30. Similar facts, conditions or conduct. 
 
lO PENNSYLVANIA TRIAL EVIDENCH;. 
 
 31 
 32. 
 33 
 .34. 
 35 
 36, 
 37 
 38, 
 39 
 40. 
 
 41 
 42. 
 
 43. 
 44, 
 
 4S 
 46. 
 47- 
 48 
 
 49. 
 SO. 
 51 
 
 52. 
 53 
 
 Condition at different places. 
 
 Condition at different times. 
 
 Condition producing similar results. 
 
 Course of business — Custom. 
 
 Course of conduct. 
 
 Fraud. 
 
 Intent. 
 
 Knowledge. 
 
 Malice. 
 
 Motive. 
 
 Negligence cases. 
 
 Sparks from locomotives. 
 
 Res gestae of principal transaction. 
 
 System. 
 
 Value. 
 
 Personalty — Value at different times. 
 Realty — Value of other property in neighborhood. 
 Services — Cost of similar services. 
 Subsequent conduct. 
 
 Flight — Escape from custody — Resisting arrest. 
 
 Precautions or repairs after accident. 
 Suppression or manufacture of evidence. 
 Title. 
 Whole of transaction. 
 
 § 1. General Principles — Determination of Question of Rele- 
 vancy. The rules of evidence have their foundation in common 
 sense^ and necessity,- and 'are in some respects subservient to the 
 general interests and convenience of society. Consequently they 
 admit of such reasonable application as will best adapt them 
 to actual business conditions,^ and arguments from inconvenience 
 may have great weight, and have frequently produced exceptions 
 to the general rules.* 
 
 The question of relevancy of evidence must be determined by 
 the court at the time it is offered. Considerable discretion may 
 be exercised by the trial judge,^ especially where the evidence is 
 
 iRodgers v. Stophel, 32 Pa. iii; rule was the practice adopted in 
 
 Wagener v. Ry., 235 Pa. 559. early times of permitting book en- 
 
 ^Garwood v. Dennis, 4 Bin. 314; tries to be proved by a party with- 
 
 Mish V. Wood, 34 Pa. 451 ; Com, v. out the necessity of calling a clerk, 
 
 Barr, 25 Super. 609. as was required under the English 
 
 "Penrose v. Griffith, 4 Bin. 231 ; common law excluding parties from 
 
 Rodgers v. Stophel, 32 Pa. in; testifying, because most of our 
 
 Tompkins v. Saltmarsh, 14 S. & R. merchants at that time transacted 
 
 275. their business personally. See § 95. 
 
 ^Chambers v. Dickson, 2 S. & R. =Wirebach v. First National 
 
 475 ; Forney v. Hallacher, 8 S. & Bank, 97 Pa, 543. 
 R. 159. A good illustration of this 
 
ADMISSIBIIvlTY IN GlJNERAI, — REl^lJVANCY. II 
 
 not of vital importance." Evidence which is irrelevant when 
 oflfered, will not be admitted merely because other evidence might 
 subsequently be given, in connection with which that offered 
 would become relevant.' It should be subsequently offered in 
 conjunction with those facts.^ The admission of irrelevant evi- 
 dence is not always ground for reversal. It becomes so only 
 when its tendency is to draw the minds of the jury from the issue 
 and to confuse and mislead them.' In doubtful cases, it is better 
 to admit the testimony offered, if relevant from any point of 
 view, and determine later whether the testimony, as a whole, 
 meets the requirements of the offer,^" especially where offers 
 have been amended several times to meet objections raised by 
 court or counsel.^^ If the testimony, though incompetent at the 
 time of its admission, subsequently becomes competent, its admis- 
 sion is not cause for reversal.^^ 
 
 Rules of evidence do not apply so strictly where questions of 
 fact are decided by the court instead of by a jury. The question 
 of admissibility in such case need not necessarily be determined 
 at the time the evidence is offered, but it may be admitted and its 
 final reception or rejection made to depend on its relevancy or 
 irrelevancy as it appears in connection with the whole case. It 
 may be irrelevant when offered, but subsequently become rele- 
 vant. ^^ 
 
 § 2. Must be Material and Tend to Sustain Issue — Theory of 
 Case — ^Evidence of Facts Admitted. Evidence offered must tend 
 to establish some fact material to the case of the party offering 
 it, or to weaken some part of his opponent's case,^* or tend to 
 make the fact at issue more or less probable^' or intelligible, or 
 to show the origin and history of the transaction between the 
 
 oHarwood v. Ramsey, is S. & R. "Keats v. Gas Co., 29 Super. 
 
 31. 480. 
 
 'There are exceptions to this rule, i^Laird v. Campbell, 100 Pa. 159 ; 
 
 as for instance, in cases of prose- Colonial Trust Co. v. Getz, 28 
 
 cution for conspiracy. See § 273. Super. 619. 
 
 sWeidler v. Farmers Bank, 11 S. is^aporte Borough Overseers v. 
 
 & R. 134. Hillsgrove Twp. Overseers, 95 Pa. 
 
 ^Colonial Trust Co. v. Getz, 28 269. 
 Super. 619. i*Hill v. Meyers, 43 Pa. 170. 
 
 1° Allen V. McMasters, 3 Watts ^'Johnson v. Com., 115 Pa. 369. 
 
 181. 
 
12 pi;nns\%vania trial evidence. 
 
 parties and explain its character.^' Even evidence to prove an. 
 improbable thing must be received unless such thing could exist 
 only by suspension of natural laws," and evidence will not be re- 
 jected merely because its relevancy depends upon facts which 
 can only be inferred by the jury from other testimony.^* But 
 facts which, of themselves, have no legitimate effect on the ques- 
 tion at issue or the rights of the parties, cannot be admitted," 
 even though the jury might possibly infer therefrom other facts 
 necessary to make out a case.^° 
 
 In all actions, each party has the right to introduce testimony 
 to sustain his theory of the case, if such theory, when established, 
 would maintain the issue on his part or destroy that of his op- 
 ponent. To exclude evidence tending to support the theory of 
 one party because contradictory to the theory offered by the other, 
 would be to assume the theory of the latter to be true, and thus 
 usurp the functions of the jury.-' The plaintiff may also give 
 evidence to show the existence of a fact, though the burden is on 
 the defendant to disprove its existence.^^ While the court is not 
 bound to hear evidence of admitted facts,^^ yet if such proof 
 would give the party any additional advantage with the jury, he 
 is entitled to the benefit of it.^* But he should state his reasons 
 
 '^Thus on a murder trial, the ^'Cauley v. Ry., 98 Pa. 498. 
 
 fact that the murderers had ridden i^Blair v. Sealer, 26 Pa. 274. 
 
 from the place of crime on horses I'Kocher v. Bowman, 10 Watts 
 
 stolen from a certain barn and that 128; Maberry v. Dudley, 2 Penny, 
 
 straps with which deceased had 367. 
 
 been bound were also taken from ^""Weidler v. Farmers Bank, II 
 the barn, is admissible as explana- S. & R. 134. If a party alleges that 
 tory of the other facts and as a a receipt signed by him was obtain- 
 part of the history of the case: ed by certain fraudulent statements, 
 Com. V. Roddy, 184 Pa. 274; and his financial condition at that time 
 in a suit on a bond given in con- is irrelevant, and it may not be 
 sideration of a conveyance of shown that his reason for signing 
 realty, the deed is admissible to the receipt was that he was in need 
 explain the origin and history of of money: McGrann v. Railroad, 
 the transaction: Evans v. Mengel, iii Pa. 171. 
 
 3 Pa. 239. In a suit on a writing ^igtafford v. Henry, 51 Pa. 514. 
 
 acknowledging receipt of certain See § 5. 
 
 money from the consignee of goods, ^^g^anj y Pegely, 67 Pa. 370. 
 
 a bill of lading for such goods is ad- ^sRidgyyay v. Longaker, 18 Pa. 
 
 missible to explain the nature of 215. 
 
 the transaction : Geisse v. Dobson, =<Cunningham v. Smith, 70 Pa. 
 
 3 Whart. 34. 450. 
 
ADMISSIBIUTY IN GfiNEEAI, — RElvEVANCY. 
 
 13 
 
 for offering the evidence, ^° and if the offer contains irrelevant 
 matter calculated to mislead the jury, it will be rejected.^^ 
 
 § 3. Must be Confined to Issue and Pleadings. As a general 
 rule, evidence may not be given by either party of matters not 
 raised by the pleadings and therefore not in issue. ^' This rule 
 is especially applicable where a rule of court provides that every 
 averment in the statement which is not denied by affidavit shall 
 be taken as admitted, in which case the affidavit is admissible to 
 show the scope of the issue. ^^ Where there are two counts or 
 issues, evidence is admissible if it supports one, though it is ir- 
 relevant as to the other.''* And where the court admits without 
 objection evidence irrelevant under the pleadings, but relevant to 
 
 25Ridgway v. Longaker, 18 Pa. 
 
 215- 
 
 -^Cunningham v. Smith, 70 Pa. 
 450. 
 
 2'Where the only question under 
 an opened judgment was as to the 
 quality and value of work done, 
 evidence as to the regularity or 
 validity of the judgment opened is 
 not admissible : McMurray v. Erie, 
 59 Pa. 223; and where the defense 
 to a note is denial of execution by 
 the defendant, evidence that he 
 owes money to the plaintiflf is inad- 
 missible: Darragh v. Stevenson, 
 183 Pa. 397. Where the defense to 
 an action on a fire insurance policy 
 is that the policy had expired, de- 
 fendant cannot show that no proofs 
 of loss were filed by plaintiflf : Lati- 
 more v. Ins. Co., 153 Pa. 324; and 
 if plaintiff relies on waiver of 
 proofs of loss, evidence of a prom- 
 ise by the company to pay after 
 suit brought is inadmissible : Hess 
 v. Ins. Co., 38 Super. 151. Evidence 
 of the value of property purchased 
 at sheriff's sale is inadmissible if the 
 sole question is whether the holder 
 of a senior judgment agreed that 
 after purchasing the property, he 
 would pay off a junior judgment : 
 Branson v. Kitchenman, 148 Pa. 
 
 S41 ; and where misrepresentation 
 as to the capacity of an oil well is 
 alleged, evidence of the amount of 
 oil carried in the pipes during a 
 certain period is irrelevant if the 
 amount run through the pipes did 
 not represent the production at the 
 well : Straight v. Wilson, 176 Pa. 
 520. Proof that taxes on property 
 sold at a tax sale were paid in a 
 certain year prior to that for which 
 sale was made, is inadmissible : 
 Ankeny v. Albright, 20 Pa. 157. 
 
 In a suit for damages for in- 
 juries to a private road during the 
 construction of a bridge, where 
 plaintiff offers evidence of tempor- 
 ary obstruction and also that the 
 pier of the bridge encroached on 
 his right of way, evidence as to the 
 construction of the pier is relevant 
 though not mentioned in the state- 
 ment of claim, since it aids the jury 
 in determining the extent of the 
 encroachments and obstructions : 
 Foehr v. Railroad, 40 Super. 7. 
 
 ^sjacoby v. Ins. Co., 10 Super. 
 171; Jacoby v. Ins. Co., 10 Super. 
 185. 
 
 s'Sheaffer v. Eakman, 56 Pa. 144 ; 
 Connecticut Life Ins. Co. v. Mc- 
 Curdy, 89 Pa. 363. 
 
t4 PENNSYLVANIA TRIAL EVIDENCE. 
 
 the general complaint, and which might have been made ad- 
 missible by amendment, the appellate court will not* reverse.^" 
 
 § 4. Need Not Prove Entire Case. It is no answer to an offer 
 of evidence that it does not prove or tend to prove the party's 
 whole case. If it is a link in a chain of evidence afterwards to 
 be given which, as a whole, tends to prove the fact in issue,'^ 
 or even if it merely illustrates the facts which point to the main 
 issue,^^ or, though in itself unimportant, if it might in con- 
 nection with other evidence, prove a fact material to the case,^^ 
 it should be received. This rule is especially applicable in cases 
 of fraud, where a wide latitude in the admission of evidence is 
 allowed.'* 
 
 § 5. Not to Be Excluded Because of Contradictory Evidence. 
 Evidence may not be rejected merely because of contradictory 
 evidence, which, if true, would render unnecessary and useless 
 the admission of the evidence offered. To reject evidence on such 
 ground would be to usurp the functions of the jury.'^ 
 
 § 6. Relevancy Must be Shown. If the relevancy of evidence 
 offered does not appear on its face, the party offering it should 
 show its relevancy,'" and if relevancy depends upon certain facts 
 or scientific principles, such facts or principles must be proved.'' 
 
 ""Brown v. Gilmore, 92 Pa. 40. Irwin, 2 S. & R. 368; and though 
 
 "iHaughey v. Strickler, 2 W. & the statute of limitations is plead- 
 
 S. 411; Johnston v. Warden, 3 ed, plaintiff may offer evidence of 
 
 Watts loi ; Tams v. Bullitt, 35 Pa. a debt which on its face is barred, 
 
 308; Johnson v. Com., 115 Pa. since he may have other evidence to 
 
 369; Fifth Mutual Building So- remove the bar of the statute : Fin- 
 
 ciety V. Holt, 184 Pa. 572; Wray ney v. Cochran, i W. & S. 112. 
 
 V. Spence, 145 Pa. 399. But where the defense is payment, 
 
 s^Brown v. Clark, 14 Pa. 469. and checks to plaintiff are offered 
 
 33Thompson v. McKelvy, 13 S. & by defendant, and plaintiff had al- 
 
 R. 126. ready shown defendant had re- 
 
 "*Schock V. Oil Co., 222 Pa. 271. ceived credit for them, they are 
 
 See § 14. properly excluded: Phillips v. 
 
 s^Moore v. Houston, 3 S. & R. Railroad, 107 Pa. 472. See also 
 
 175 ; Childerston v. Hammon, 9 S. § 2. 
 
 & R. 68; Crotzer v. Russell, 9 S. sephillips v. Railroad, 107 Pa. 
 
 & R. 81 ; Fisher v. Kean, i Watts 472. 
 
 278; Cummings v. Cummings, S W. sTThe fact that a horse died soon 
 
 & S. SS3; Rainey v. Black, 3 P. & after threats made to poison it, is 
 
 W. 40. Where the defense to an inadmissible in absence of proof 
 
 action on a note is that it is il- that it died of poison : Hahn v. 
 
 legal and void, this is no ground Bealor, 132 Pa. 242; and in an ac- 
 
 for excluding the note: Meyers v. tion aginst a constable for selling 
 
ADMISSIBILITY. IN GENERAL — EULEVANCY. 15 
 
 In absence of such offer and proof, if the evidence appears on 
 its face to be irrelevant, it is not error to reject it."* 
 
 § 7. Circumstantial Evidence. When direct evidence of a fact 
 cannot be obtained, circumstances alone may raise such a material 
 presumption of fact as to warrant submission of the case to the 
 jury without positive proof."" Considerable latitude is allowed in 
 the reception of such evidence, since the more the jury can see of 
 the surrounding facts and circumstances, the more correct their 
 judgment is likely to be. Nor is such proof rendered inadmissible 
 by the fact that there is direct testimony by eye witnesses.*" "It is, 
 in the abstract, nearly, though perhaps not altogether, as strong 
 as positive evidence. In the concrete, it may be infinitely stronger. 
 A fact positively sworn to by an eye witness of blemished char- 
 acter, is not so satisfactorily proved as is a fact which is a 
 necessary consequence of a chain of other facts, sworn to by' 
 many witnesses of undoubted credibility. "*l- The evidence is 
 equally admissible in both civil and criminal cases.*^ 
 
 Circumstantial evidence includes all evidence of an indirect 
 nature, whether the inference afforded by it be drawn from ex- 
 perience, or by reasoning from the circumstances of the particu- 
 lar case, or by reason aided by experience. Its competency does 
 not depend upon the conclusiveness of the inferences it affords, 
 
 goods claimed by a son of the debt- S. & R. 134. If the weight of a 
 or, the defendant cannot show that loaded car is in issue, a scale ticket 
 for several years the son and his containing memoranda of such 
 parents had alternately carried on weight is not admissible if it does 
 business and whenever judgment not contain the car number nor 
 was obtained against one the busi- anything to connect it with the car 
 ness would be transferred to an- in question, and there is no offer to 
 other, unless it be shown that plain- show such connection : Samuel v. 
 tiff's title was by virtue of such Railroad, 45 Super. 395. A letter 
 transfer : Bennethum v. Long, 13 dated five years after the note in 
 Atl. 778. Where it is contended suit, but not referring to it, is also 
 that a fractured limb of an in- inadmissible : Darragh : v. Steven- 
 temperate man is harder to cure son, 183 Pa. 397. 
 than that of a temperate one, in- snSnevely v. Jones, 9 Watts 433. 
 temperance of the patient many ^"Commonwealth v. Karamarko- 
 years prior to an accident will not vie, 218 Pa. 405. 
 be admitted in absence of proof *iPer Gibson, C. J,, in Com. v. 
 that the length of time the intern- Harman, 4 Pa. 269; Com. v. Kovo- 
 perance existed is material : Mc- vie, 209 Pa. 465. 
 Candless v. McWha, 25 Pa. 95. 42Hill v. Ins. Co., 209 Pa. 632. 
 38-\Yeidler v. Farmers' Bank, 11 
 
i6 
 
 PENNSVLVANIA TRIAL tVJDtNCS. 
 
 but if it tends in some degree to assist to a conclusion as to the 
 fact in question, it is relevant.'"' 
 
 The several circumstances relied upon to support the con- 
 clusion cannot themselves be presumed but must be fully estab- 
 lished by proof of the same weight and force as if each were 
 itself the main fact in issue.*'' Great care must be taken to 
 guard against feigned and pretended circumstances which may 
 be purposely arranged so as to create or divert suspicion or pre- 
 vent the discovery of the truth. ''^ In a criminal case, to convict 
 on circumstantial evidence, the prisoner's guilt must flow natu- 
 rally from facts and circumstances proved, and be not only con- 
 sistent with them all, but wholly inconsistent with the presump- 
 tion of innocence." 
 
 ^^Stevenson v. Stewart, ii Pa. 
 307. Evidence is admissible that a 
 knife was found at the place where 
 a murder was committed by stab- 
 bing: Com. V. Warner, 13 Super. 
 461 ; Com. V. Karamarkovic, 218 
 Pa. 405 ; or that a manufacture's 
 sales fell off as soon as a rival firm 
 started to imitate a trade mark : 
 Shaw V. Pilling, 175 Pa. 78; or 
 that before and after the date of 
 a note alleged to be a forgery, the 
 maker was trying to borrow 
 money: Stevenson v. Stewart, 11 
 Pa. 307. And where the theory of 
 the commonwealth on a murder 
 trial is that deceased was murder- 
 ed at her home and carried some 
 distance to a railroad and placed on 
 the track to give appearance of ac- 
 cidental death, evidence as to the 
 amount of blood found at both 
 places and the amount that would 
 probably be lost from injuries de- 
 scribed, is admissible : O'Mara v. 
 Com., 75 Pa. 424. But the finding 
 of blood-stained clothing a mile 
 from the place of crime on the 
 morning after it was committed is 
 inadmissible in absence of evidence 
 to connect the clothing with the 
 prisoners : Com. v. Johnson, 213 
 Pa. 607; and a note purporting to 
 
 have been made at a certain place 
 is not admissible to show the 
 maker was at that place on the date 
 of its execution : Given v. Albert, 
 5 W. & S. 333- The fact that a 
 horse died soon after a threat to 
 poison it, is inadmissible in absence 
 of proof that it died of poison : 
 Hahn V. Bealor, 132 Pa. 242; nor 
 is intoxication at a particular time 
 proved by the fact that defendant 
 was intemperate, had brought home 
 a gallon of whiskey a couple days 
 before the crime, and that little was 
 left after the crime: Com. v. 
 Cloonen, 151 Pa.. 605. 
 
 **Douglass V. Mitchell, 35 Pa. 
 440. The fact of drunkenness at 
 the time of committing a crime, 
 and therefore want of ability to 
 form a deliberate intent to kill, 
 cannot be inferred from evidence 
 that defendant generally got drunk 
 when out of work, there being no 
 proof that he was out of work, or 
 that when intoxicated he was gen- 
 erally quarrelsome and violent, 
 there being no proof of intoxication 
 at the time of committing the 
 crime : Warren v. Com., 37 Pa. 45. 
 
 *'Com. V. Andrews, 234 Pa. 597. 
 
 <sCom. V. Byers, 45 Super. 37. 
 
ADMISSIBILITY IN GENERAL — RELEVANCY. \^ 
 
 The proof derived from the circumstances is a question of 
 natural presumption and is for the jury, unless it be so weak and 
 inconclusive that as a matter of law no probability of fact can be 
 drawn from the combined circumstances.*' 
 
 § 8. Collateral Matters. The rule that evidence must be con 
 fined to the points in issue excludes all evidence of collateral facts 
 which are incapable of affording a reasonable presumption or 
 inference as to the disputed matters. Such evidence would tend 
 to divert the minds of the jury from the real issues and to preju- 
 dice and mislead them.** Furthermore, the adverse party has 
 had no notice of such collateral matters, and is not prepared to 
 meet them.*' But collateral facts which are directly capable of 
 raising a reasonable presumption or inference as to the matter 
 in dispute, and with which the subject matter of the suit is in- 
 separably connected, are competent subjects of proof,'" and evi- 
 dence of similar acts'^ or subsequent conduct,"^ though foreign 
 to the pleadings and having no direct connection with the matter 
 in issue, may be admissible as bearing on the question of knowl- 
 edge or intent of the party. Likewise character, though not di- 
 rectly in issue, becomes admissible where it is involved in the 
 nature of the action.^'' 
 
 § 9. Contradiction. Evidence is always admissible to contra- 
 dict a fact testified to by another and which is relevant and ma- 
 terial to the issue, either by direct contradictory testimony of 
 other witnesses or by proving prior declarations of the witness 
 contrary to his present testimony, the latter being the most com- 
 mon method of impeaching his credibility."'* But irrelevant or 
 
 *'BrowH V. Schock, "jy Pa. 471. The following cases illustrate the 
 
 *'First National Bank v. Graham, rule admitting contradictory evi- 
 
 79 Pa. 106; Hester v. Com. 85 Pa. dence: Declarations of applicant 
 
 139. for insurance, prior to date of ap- 
 
 **Simpson v. Irwin, 5 Super. 471 ; plication, to the effect that he was 
 
 Cummings v. Williamsport, 84 Pa. suffering from a certain disease, 
 
 472. which in the application he denied 
 
 '"Rogers v. Stophel, 32 Pa. iii. having had: Nophsker v. Superior 
 
 siSee §§ 30 to 47. Council, 215 Pa. 631 ; the fact that 
 
 '^See §§ 48 to so. a husband, in prior desertion pro- 
 
 ssSee Character, §§109-120, and ceedings by the wife, had omitted 
 
 appropriate headings in this chap- to mention threats by her to poison 
 
 ter for further illustrations of the him, to which he testified in the 
 
 relevancy of collateral matters. subsequent proceedings : Hahn v. 
 
 5*Fehley v. Barr, 66 Pa. 196; Bealor, 132 Pa. 242; the fact that 
 
 Thompson v. Butler, 16 Super. 268. defendant had given different rea- 
 
 2 
 
i8 
 
 PENNSYLVANIA TRIAL EVIDENCE. 
 
 collateral matters cannot be contradicted unless its tendency is to 
 prejudice the jury.^^ 
 
 . sons for failure to pay a claim 
 than that set up in defense of the 
 suit : Morgan v. Browne, 71 Pa. 
 130; the fact that defendant and 
 alleged accomplice were on inti- 
 mate terms and were together 
 shortly before the crime was com- 
 mitted, where defendant had testi- 
 fied he was never in company of 
 such accomplice until after the 
 crime: Com. v. McManiman, 27 
 Super. 304; declarations of de- 
 ceased that he was not on friendly 
 terms with a witness, when the lat- 
 ter had claimed to be on terms of 
 friendship with him : Lightner v. 
 Wike, 4 S. & R. 202; the existence 
 of an unexecuted agreement, where 
 the party who made it says he 
 does not know of its existence : 
 Akin V. Oil Co., 189 Pa. 39; decla- 
 rations of plaintiff in ejectment ad- 
 mitting existence of a power to sell 
 land, where he denies such power 
 at the trial : Van Horn v. Frick, 3 
 S. & R. 278. Where defendant in 
 an action for assault and battery 
 claims to have been at a certain 
 place when the assault was com- 
 mitted, it may be shown he was at 
 another place, even though in do- 
 ing so it is incidentally shown that 
 he committed another assault : 
 Com. v. House, 36 Super. 363; 
 Metzler v. Railroad, 28 Super. 180. 
 Where defendant testified he had 
 no notice of a claim, the fact that a 
 third person had notified him of 
 such a claim may be shown : Feh- 
 ley v. Barr, 66 Pa. 196; and the 
 fact that a witness for defendant 
 who had made an examination, 
 cculd not find any circulars in a 
 certain locality, may be shown 
 where plaintiff testifies he dis- 
 tributed samples in that locality as 
 
 per contract: Perry v. Jensen, 142 
 Pa. 125. Evidence is also admissible 
 to show a meeting between two 
 persons was by appointment and 
 not accident, where one had testi- 
 fied it was by accident: Com. v. 
 Mitchell, 6 Super. 369; or to show 
 prior written statements as to how 
 an accident happened, where a wit- 
 ness made contradictory statement 
 at the time of the trial : Hughes 
 V. Canal Co., 176 Pa. 254; or decla- 
 rations by a witness that he had 
 made certain statements, where he 
 testified he did not remember hav- 
 ing made them : Gregg Twp. v. 
 Jamison, 55 Pa. 468; or a sample of 
 oleomargarine, white in color, where 
 defendant testified that all oleo- 
 margarine is yellow : Com. v. Caul- 
 field, 27 Super. 279; or the fact of 
 suit and judgment against defend- 
 ant on a bond by default, where he 
 had testified he had no knowledge 
 of suit on the bond until the surety 
 had been sued : Philadelphia v. 
 Howell, 19 Super. 76; and in gen- 
 eral, all statements and conduct of 
 witnesses inconsistent with present 
 testimony, may be shown : Master- 
 son v. Masterson, 121 Pa. 605 ; 
 Frack v. Gerber, 167 Pa. 316. See 
 §§ 469 to 478, as to testimony to 
 impeach credibility of witnesses. 
 
 ""Hauberger v. Root, 6 W. & S. 
 431. See also § 482 as to cross ex- 
 amination on such matters. Where 
 a witness has denied the existence of 
 a quarrel between him and defend- 
 ant, the existence of such quarrel 
 may be shown, but not the origin 
 of subject matter thereof: Com. v. 
 Hartman, 31 Super. 364; and 
 where the father of an illegitimate 
 child, to discredit the testimony 
 of its mother that he had murdered 
 
ADMISSIBIUTY IN GENERAL — RELEVANCY. 
 
 19 
 
 § 10. Corroboration — Acts and Circumstances. Acts or cir- 
 cumstances which tend to make a disputed fact more or less 
 probable may be given in evidence to corroborate other testi- 
 mony.^^ But evidence which is irrelevant does not become rele- 
 
 it, shows that she had formerly 
 charged him with rape without al- 
 leging murder, the mother cannot 
 offer in contradiction, testimony 
 that the charge of rape was true, as 
 it would prove a distinct felony : 
 Snyder v. Com., 8s Pa. 519. 
 
 ^''Hamilton v. Hastings, 172 Pa. 
 308. Thus a memorandum made at 
 the time a transaction took place is 
 competent to corroborate the recol- 
 lection of the witness : Selover v. 
 Recksford, 52 Pa. 308; but not one 
 made three months later without 
 knowledge of the other party: 
 Smith V. Dreyer, 228 Pa. 438. Evi- 
 dence that a person did a certain 
 thing which he denies, may be cor- 
 roborated by evidence that he had 
 previously declared his intention of 
 doing it: Dodge v. Bache, 57 Pa. 
 421. See also §§ 21 and 22. Testi- 
 mony of a lessor that a lease was 
 renewed, may be corroborated by a 
 letter written by the lessee before 
 expiration of the lease, showing 
 negotiations for renewal : Wallace 
 v. Dorris, 218 Pa. 534; and where 
 the dispute is whether a lease was 
 for one or three years, it may be 
 shown that for a one-year term the 
 premises would not be worth the 
 rent stipulated in the lease, but for 
 a three-year term it was a fair 
 price : Sennett v. Bucher, 3 P. & 
 W. 392. A plaintiff who contends 
 his interest in a partnership is as 
 great as that of the defendant, 
 whose interest is admitted to be 
 equal to that of the third partner, 
 may show the interest of such part- 
 ner is an equal one-third : Hollo- 
 way v. Frick, 149 Pa. 178. Where 
 a witness states he did not tell the 
 
 whole truth in a conversation be- 
 cause he was a tenant of plaintiff 
 and would have been evicted if he 
 had done so, it may be shown plain- 
 tiff was dangerous and quarrel- 
 some to those against whom he is 
 prejudiced : McKim v. Somers, i 
 P. & W. 297. Testimony that a 
 certain coal vein did not exist, may 
 be corroborated by expert testi- 
 mony to the same effect: Wells v. 
 Leek, 151 Pa. 431. One who con- 
 tends his subscription to stock was 
 conditional by reason of certain 
 representation of the agent who so- 
 licted the subscription, which is de- 
 nied by agent, may show similar 
 representations at other times by 
 the agent : Rinesmith v. Railway, 
 90 Pa. 262. The fact that no claim 
 was made for payment of a note 
 until four years after maturity, is 
 evidence to corroborate the defense 
 that the amount was credited on 
 another accotint; Birkey v. Mc- 
 Makin, 64 Pa. 343; and where ex- 
 istence of a parol agreement is de- 
 nied by defendant, a letter from 
 him to plaintiff, inconsistent with 
 such alleged agreement, is admis- 
 sible : Harvey v. Gunzberg, 148 Pa. 
 294. Where on trial of an indict- 
 ment for embezzlement of money 
 entrusted to an attorney for mak- 
 ing loans, defendant claims he re- 
 paid all money with interest and 
 profits, evidence is admissible of 
 dates of all money received and re- 
 turned, rates of interest and also 
 any indebtedness of prosecutor to 
 defendant for professional serv- 
 ices : Com. v. Shaffer, 45 Super. 
 S9S. If it is contended plaintiff 
 did not own certain goods, it may 
 
20 PENNSYLVANIA TRIAL EVIDENCE. 
 
 vant merely because it corroborates other evidence admitted to be 
 competent." The question is one vtfhich must necessarily be left 
 to the discretion of the trial judge.'* 
 
 Where a will is alleged to be a forgery, declarations of the 
 decedent, whether made before or after its date, are admissible 
 to corroborate direct proof of its execution. But such evidence 
 should be carefully limited in its effect as corroborative only, and 
 should also be confined to a period near the date of execution 
 of the will.^" 
 
 Under § 41 of the Act of March 31, i860, P. L. 392, there can 
 be no conviction for seduction unless the testimony of the woman 
 as to the promise of marriage is corroborated by other evidence.*" 
 While there is no law forbidding the conviction for crime on the 
 uncorroborated testimony of an accomplice, the testimony of 
 such witness should be received with caution. ""^ Two or more 
 accomplices produced as witnesses in the same cause are not 
 deemed to corroborate each other.*^ 
 
 § 11. Corroboration — Consonant Declarations. As a general 
 rule, declarations made by a witness at another time, though ad- 
 missible to contradict him"^ are not competent to confirm or cor- 
 roborate his present testimony. Such declarations are mere hear- 
 
 be shown he had mortgaged other such as accompanying prosecutrix 
 
 property to pay for them : Curtin from church and calling on her at 
 
 V. Gas Co., 233 Pa. 397. A locket her home occasionally, is not suffi- 
 
 presented to plaintiff by her father cient corroboration of her testi- 
 
 and containing a picture of her mony that there was a promise of 
 
 mother, is competent as corroborat- marriage; nor is evidence that de- 
 
 ing declarations of the father that fendant subsequently expressed re- 
 
 the claimant was his daughter : Tor- gret for what he had done arid 
 
 rence's Estate, 47 Super. 509; and promised to marry prosecutrix 
 
 in an action against a water com- suificient : Rice v. Com., ipo Pa. 
 
 pany for obstructing and diverting 28. Where the prosecutrix on a 
 
 a stream, plaintiff may prove con- trial for fornication and bastardy, 
 
 versations with an officer of de- testified she was not married, and 
 
 fendant company for the purpose defendant showed she was married 
 
 of showing he did not acquiesce in in another state, it may be shown 
 
 defendant's acts: Mott v. Water in support of her testimony that 
 
 Co., 188 Pa. 521. she was under age when married 
 
 "Com. v. Lebo, 13 S. & R. I7S. and by the laws of such state the 
 
 "^Hamilton v. Hastings, 172 Pa. m.arriage was void:. Easley v. 
 
 308. Com., II Atl. 220. 
 
 ■'"Swope v. Donnelly, 190 Pa. 417. s^See § 466. 
 
 See §§ 221, 381. 02Com. v. Simon, 44 Super. 538. 
 
 o'Proof of mere social attentions, ^^See § 9. 
 
ADMISSIBILITY JN GENERAL — RELEVANCY. 21 
 
 say, and furthermore, to admit them would permit a party to 
 manufacture evidence for himself by making declarations to third 
 persons concerning a cause of action on which he intends to begin 
 suit, and then on the trial of the case to call such third persons as 
 witnesses to support his own testimony."* 
 
 However, there are some recognized exceptions to this rule, 
 and under certain circumstances prior declarations of a witness, 
 consistent with his present testimony, are admissible in corrobora- 
 tion of it. While it has been said in an early case"° that such 
 evidence is admissible whenever his credit is impeached by attack- 
 ing his character or by proof of inconsistent declarations made by 
 him, or whenever his testimony is contradicted by other proof, 
 this rule has been limited by later cases in which it is declared 
 to be the better rule that such evidence is admissible only when 
 it is alleged that the testimony of the witness is a recent fabrica- 
 tion"" or he is charged with having testified from corrupt 
 motives,"' or his mental capacity has been attacked."* In such 
 cases prior consonant declarations, made at or near the time of 
 the occurrence of the transaction or at a time when the witness 
 could not have been subjected to any disturbing influence, or 
 could not have foreseen their efifect, or when his interests would 
 have induced a different statement, are admissible."" But the 
 
 "^Clever v. Hilberry, Il6 Pa. may be shown that prior to the 
 431. time such motives could have ex- 
 
 ^^Henderson v. Jones, 10 S.. & R. isted, the witness had repeated his 
 322. story to third persons : Com. v. 
 
 ""Craig V. Craig, 5 Rawle 91; Brown, 23 Super. 470; Com. v. 
 Clever v. Hilberry, 116 Pa. 431; Miller, 31 Super. 317. And where a 
 Crooks v. Bun, 136 Pa. 368; witness in different depositions has 
 Thomas v. Miller, 165 Pa. 217 ; contradicted himself, evidence of 
 Com. v. Kay, 14 Super. 376; Lyke declarations made by him prior to 
 v. Railroad, 236 Pa. 38. either deposition is admissible to 
 
 "'Good v. Good, 7 Watts 195 ; corroborate the first : McKee v. 
 Com. v. Brown, 23 Super. 470. Jones, 6 Pa. 425. But statements 
 
 "^Bricker v. Lightner, 40 Pa. 199. made a few days prior to suit are 
 
 "'In a prosecution against mem- not admissible to show that similar 
 bers of a school board for extor- statements made on the witness 
 tion from applicants for positions stand are not a fabrication of re- 
 as teachers by demanding money as cent date: Clever v. Hilberry, 116 
 a condition to appointment, where Pa. 431 ; nor may declarations of a 
 defendants not only contradicted grantor subsequent to conveyance 
 such testimony but had laid ground be admitted to corroborate what he 
 from which it could be argued that said prior thereto: Packer v. Gon- 
 the prosecutor had brought the pro- salus, i S. & R. 526. 
 ceedings from personal motives, it 
 
22 pi;nnsylvania triai, evidence. 
 
 mere fact that the conflict of evidence is such that it can be ex- 
 plained only on the theory that one or the other of the oppos- 
 ing witnesses is wilfully fabricating his testimony, is insufficient 
 to permit one to corroborate his testimony by calling other per- 
 sons to say he had told them the same thing.'" 
 
 When corroborating evidence of this character has been re- 
 ceived, its effect should be limited to showing that the present 
 testimony is not a fabrication of recent date, and not as tending 
 to establish the truth of it.'^ Nor is such evidence admissible in 
 chief, but only after evidence has been given to contradict the 
 witness.'^ However, this rule was relaxed somewhat in a case 
 where an ex-convict testified to certain facts, and he was per- 
 mitted to corroborate his testimony though it had not been con- 
 tradicted, the circumstances under which he testified tending 
 strongly to discredit himi.'^ 
 
 § 12. Criminal Cases. The rules of evidence are the same in 
 criminal as in civil cases when the questions are the same in their 
 nature,'* and will be as strictly applied when the trial may result 
 in defendant's imprisonment as when it could only result in fix- 
 ing his liability for a debt." But in a murder case, the courts 
 are not inclined to rigidly exclude evidence because its material- 
 ity is not clearly obvious, not only because of a desire to give the 
 accused the benefit of the doubt, but also because of the lack of 
 wisdom in a policy which would place the commonwealth's case 
 in peril of reversal on account of technical rulings on evidence 
 which could have done no harm if admitted.'" 
 
 § 13. Financial Condition of Parties. As a general rule, the 
 wealth or poverty of parties to a cause can have no legitimate 
 bearing on their rights," and the only effect of the admission of 
 such evidence would be to arouse the sympathy or prejudice of 
 the jury and lead them to render a verdict based thereon rather 
 than on the facts in the case. For this reason, counsel should 
 be carefully restrained from alluding to the relative wealth and 
 poverty of the parties, or the comparative strength and help- 
 lessness of corporations and individuals, unless such allusions 
 
 '"Com. V. Brown, 73 Super. 470. Leitz v. Hohman, 16 Super. 276. 
 
 "Craig V. Craig, 5 Rawle 91 ; "Howser v. Com., 51 Pa. 332. 
 
 Hester v. Com., 85 Pa. 139. '■'Brown v. Schock, ^^ Pa. 471. 
 
 '2Craig V. Craig, s Rawle 91; '"Watson v. Com., 95 Pa. 418. 
 
 White V. Black, 14 Super. 459 ; 'oCom. v. .Biddle, 200 Pa. 641. 
 
 Quigley v. Swank, 11 Super. 602; "Harris v. Tyson, 24 Pa. 347. 
 
ADMISSIBILITY IN GENERAL — RELEVANCY. 23 
 
 are made in a spirit of fairness and for the legitimate purpose 
 of securing a conscientious discharge of duty by the jury.''^ 
 
 There are times, however, when the question of financial stand- 
 ing bears directly on the question involved, and therefore be- 
 comes a material fact in the case. Thus where there is a ques- 
 tion whether or not a certain payment or loan was made'^ or 
 agreed to be made,^° or as to the amount of it,*"^ evidence of the 
 financial condition of the person at the particular time^^ is ad- 
 missible on the question of his ability to make such payment or 
 loan.*-'' And in actions for slander, malicious prosecution, crimi- 
 nal conversation and other actions of the same class, where the 
 measures of damages depends upon the particular circumstances 
 of each case and the condition in life of the parties, and is based 
 on the theory of punishment to the offender, the financial stand- 
 ing of the defendant is relevant, since an amount which would 
 be a punishment for a poor man would be insignificant and 
 totally fail of its object if the offender were wealthy.** But if 
 the plaintiff makes no effort to increase damages by showing the 
 wealth of the defendant, the latter cannot show his financial con- 
 dition in mitigation of damages.*" 
 
 The fact that one sued for damages is protected by insurance, 
 
 ^*Henry v. Huff, 143 Pa. S48. the maker was trying to borrow 
 
 ^^Strimpfler v. Roberts, 18 Pa. money: Stevenson v. Stewart, 11 
 
 283; Hirsh V. Wenger, 182 Pa. Pa. 307. And where there is a dis- 
 
 246; Glessner v. Patterson, 164 pute as to the date of a receipt for 
 
 Pa. 224 ; Simpson v. Irwin, 5 money, it may be shown that on the 
 
 Super. 471 ; compare Woods v. date claimed the defendant had re- 
 
 Gummert, 67 Pa. 136. ceived money : Armstrong v. Bur- 
 
 8<>AIlen V. Line, 11 Super. 517. row, 6 Watts 366. But where land 
 
 siStauffer v. Young, 39 Pa. 455. was alleged to have been conveyed 
 
 s^Strimpfler v. Roberts, 18 Pa. in fraud of creditors, what grantor 
 
 283. did with the money received, or 
 
 *3In a suit for loss of a trunk, where the grantee obtained the 
 
 where plaintiff's testimony as to its money is immaterial, unless there 
 
 contents is disputed, her financial is an offer to show it came from 
 
 standing and the fact that the con- the grantor : Littieri v. Freda, 241 
 
 tents claimed are such as are usual- Pa. 21. See §2, note 20. 
 
 ly possessed by people in similar 84McAlmont v. McClelland, 14 S. 
 
 circumstances, may be shown : & R. 361 ; Matheis v. Mazet, 164 
 
 Adams Exp. Co. v. Schlessinger, 75 Pa. 580. 
 
 Pa. 246. If the execution of a note s^Harter v. Whitebread, 38 
 
 is denied, it may be shown that Super. 10. 
 about the time the note bears date, 
 
24 
 
 PENNSYLVANIA TRIAL EVIDENCE. 
 
 is irrelevant,^" but proof of a material fact will not be excluded 
 because it incidentally shows the fact of insurance.*' 
 
 § 14. Fraud — Competency of Evidence — Rebutting Evidence. 
 Fraud is rarely susceptible of direct proof because there is gen- 
 erally an attempt at concealment. This makes it necessary to 
 resort to circumstances as a means of proof, some of which, 
 though perhaps remote, may in connection with other facts form 
 a chain of evidence which, as a whole, is entitled to great weight.** 
 Great liberality will be exercised in the admission of such evi- 
 dence, and every fact and circumstance which tends to reveal the 
 true relation of the parties is admissible, if in the opinion of the 
 court it bears such relation to the transaction as is calculated to 
 persuade the jury that the allegation of fraud is or is not well 
 founded.*" 
 
 ssBrown v. Scranton, 231 Pa 
 
 593- 
 
 «'Randell v. Gould, 225 Pa. 42. 
 
 ssKinzer v. Mitchell, 8 Pa. 64 
 Reeme v. Parthemere, 8 Pa. 460 
 Schock V. Gas Lt. Co., 232 Pa. 271 
 
 *^Garrigues v. Harris, 17 Pa. 
 344; Baltimore & Ohio Railroad v 
 Hoge, 34 Pa. 214; Stauffer v 
 Young, 39 Pa. 455 ; Montgomery 
 Web Co. V. Dienelt, 133 Pa. 585 
 Max Meadows Land Co. v. Men- 
 dinhall, 4 Super. 398; King v. Gran- 
 nis, 29 Super. 367 ; Proxell v. 
 Mann, 9 Super. 483 ; Snyder v. 
 Stehman, 10 Super. 639; Winters 
 V. Mowrer, 163 Pa. 239; Glessner 
 V. Patterson, 164 Pa. 224; Com. v. 
 Hyde, 39 Super. 261 ; Van Sciver 
 V McPherson, 199 Pa. 331 ; Slike 
 V. Sandrock, 55 Super. 99. This 
 rule applies whether the acts or 
 declarations are done or made be- 
 fore or after the transaction or in 
 immediate connection with it : 
 Cummings v. Cummings. S W. & S. 
 553 ; Walter v. Gernant, 13 Pa. 
 515; Helfrich v. Stein, 17 Pa. 143; 
 Painter v. Drum, 40 Pa. 467; 
 Deakers v. Temple, 41 Pa. 234; 
 Craig's Appeal, 77 Pa. 448; Mar- 
 tin V. Kline, 157 Pa. 473; and if 
 
 there is evidence that two or more 
 persons acted jointly, the declara- 
 tions of each, though made in the 
 absence of the other, are admissible 
 against both : Jackson v. Somer- 
 ville,. 13 Pa. 3S9; Covanhovan v. 
 Hart, 21 Pa. 495. (See also § 273 
 for illustrations of sufficiency of 
 evidence of fraud to admit decla- 
 rations of one party thereto against 
 others.) If fraud and imposition 
 on a weak and intemperate man is 
 charged, his general bad habits, his 
 incapacity to transact business, and 
 even his transactions with strangers, 
 are all competent evidence: Kauff- 
 man v. Swar, 5 Pa. 230. Where 
 there is a question of fraud on 
 creditors, evidence is admissible 
 that the debtor transferred his 
 property to members of his family 
 without consideration : Zerbe v. 
 Miller, 16 Pa. 488; Deakers v. 
 Temple, 41 Pa. 234; or for an in- 
 adequate consideration : Kaine v. 
 Wejgley, 22 Pa. 179; or that a 
 fraudulent sale was made by the 
 assignee under a deed of assign- 
 ment: Leeds v. Com., 83 Pa. 453; 
 or that the purchaser of personal 
 property knew that the vendor was 
 insolvet^t and intended to defraud 
 
ADMISSIBILITY IN GENERAI, — RUlv^VANCY. 
 
 25 
 
 It is not necessary that evidence offered should itself establish 
 any point in the cause; but if in connection with other facts or 
 circumstances it tends to prove some point, it should go to the 
 jury."" The true test is whether the evidence can throw any light 
 on the transaction or whether it is totally irrelevant."^ Even 
 though it be but remotely relevant, it may be admitted."'' How- 
 ever, the court should see that the evidence has at least a natural 
 and reasonable tendency to sustain the allegation of fraud, and 
 amounts to something more than a mere basis for conjecture or 
 speculation."^ 
 
 the vendor : Taylor v. Saurman, 
 no Pa. 3, is not evidence of fraud. 
 General relationship or dealings 
 between the parties may be shown 
 if it has any bearing on the particu- 
 lar fraud charged, as for instance, 
 the fact that a son, accused of hav- 
 ing fraudulently obtained a note 
 from his father, which he present- 
 ed against the latter's estate, was 
 not on good terms with his father 
 when the note is alleged to have 
 been given : Burkholder v. Plank, 
 69 Pa. 224. And where plaintiff 
 claims money alleged to have been 
 loaned to a deceased person, evi- 
 dence of an illicit intimacy between 
 plaintiff and the deceased during 
 the period covered by the alleged 
 loans, and that the plaintiff was 
 wholly without means except what 
 she received from deceased, is ad- 
 missible : Glessner v. Patterson, 
 164 Pa. 224. Evidence of dealings 
 between parties many years prior, 
 is admissible to show that improper 
 influences were long continued : 
 Reeme v. Parthemere, 8 Pa. 460. 
 
 ""Howard Exp. Co. v. Wile, 64 
 I'a. 201 ; Schock v. Gas Lt. Co., 222 
 Pa. 271. 
 
 "'Heath v. Page, 63 Pa. 108; 
 Zerbe v. Miller, 16 Pa. 488. 
 
 "2Reinhard v. Keenhartz, 6 Watts 
 
 creditors, as tending to show he 
 was a party to the fraud : Kichline 
 V. Lobach, 125 Pa. 295 ; Bugh- 
 man v. Cent. Bank, 159 Pa. 94; 
 Helfrich v. Stem, 17 Pa. 143; Rod- 
 man V. Thalheimer, 75 Pa. 232. 
 Evidence of purchases of goods on 
 credit beyond the requirements of 
 the defendant's business, and of 
 misrepresentations as to his finan- 
 cial condition, is admissible to show 
 a general intent to defraud by buy- 
 ing large quantities of goods on 
 credit and profiting by bankruptcy 
 proceedings : White v. Rosenthal, 
 173 Pa. 17s ; Meyerhoff v. Daniels, 
 173 Pa. S5S. But a debtor has the 
 right to prefer one creditor over 
 another, and in order to impeach 
 the payment or securing of a debt, 
 there must be evidence of some 
 other advantage or benefit of the 
 debtor than the discharge of his 
 indebtedness, or some other l)enefit 
 to the creditor than the mere pay- 
 ment of his debt, or some injury to 
 other creditors beyond mere post- 
 ponement to the debt preferred : 
 Werner v. Zeirfuss, 162 Pa. 360; 
 Snayberger v. Fahl, 19s Pa. 336. 
 The mere fact that prior to the 
 execution of a deed the grantee 
 promised to pay a debt owing by 
 the grantor : Muntz v. Whitcomb, 
 40 Super. SS3 ; or that a business 
 requiring skill and ability was not 
 as successful in the hands of the 
 purchaser as was represented by 
 
 93- 
 
 "^Battles V. Loudenslager, 84 Pa. 
 446; Reehling v. Byers, 94 Pa. 316. 
 
26 PENNSYLVANIA TRIAL EVIDENCE. 
 
 While great latitude is allowed in the admission of evidence to 
 prove fraud, a similar latitude is permitted in the introduction of 
 evidence to rebut the charge,"^ and any evidence is therefore ad- 
 missible vifhich tends to show the person accused of fraud had no 
 such intent but acted in good faith and in a proper manner.**^ 
 But the evidence offered must be shown to have some bearing on 
 the matter in controversy before it is admissible. Thus, where 
 the defendant is alleged to have falsely represented another to be 
 entitled to credit, the fact that he did not, about the same time, 
 make similar statements to others, and that subsequently he ad- 
 vised others not to extend credit to the person in question, is in- 
 admissible.'" 
 
 § 15. Fraud — Determination of Question — Court and Jury. 
 Whether or not the person on whom the burden of proof lies has 
 given enough evidence to warrant the inference of fraud, is al- 
 ways a preliminary question for the court. If there is such evi- 
 dence, the question must be submitted to the jury; otherwise it 
 should be withdrawn from the case.'' The jury is also the judge 
 of the sufficiency of the evidence to rebut fraud. "^ 
 
 The court cannot give binding instructions for the party al- 
 leging fraud in fact; the question is for the jury, no matter 
 how conclusive the evidence may be."" 
 
 § 16. Fraud — Proof — Necessity of. It has frequently been 
 said that fraud must be proved and that it is never presumed.^"" 
 This rrjerely means that a transaction which is honest and lawful 
 
 s*Stewart v. Fenner, 8i Pa. 177; deed, devising the same property to 
 
 Heath v. Slocum, 115 Pa. 549. the grantee, is competent evidence: 
 
 ^^Weidler v. Bank, 11 S. & R. Gasper v. Donaldson, i Whart. 227. 
 
 134; Hauberger v. Root, 6 W. & S. ^"Qraham & Co. v. HoUinger, 46 
 
 431; Klein v. Ins. Co., 13 Pa. 247; Pa. 55. 
 
 Juniata v. Brown, 5 S. & R. 226; "^Leeds v. Com., 83 Pa. 453; 
 
 Cole V. High, 173 Pa. S9o; La Cover v. Manaway, 115 Pa. 346; 
 
 Porte Boro. v. Twp., gs Pa. 269; Merchants' Bank v. Tinker, 158 Pa. 
 
 Harris v. Tyson, 24 Pa. 347; Sack- 17; Snayberger v. Fahl, 195 Pa. 
 
 ett V. Spencer, 65 Pa. 89 ; Stewart 336. 
 
 v. Fenner, 81 Pa. 177; Wilkinson "sgaltimore & Ohio Railroad v. 
 
 V. Patton, 162 Pa. 12. Where the Hoge, 34 Pa. 214. 
 
 contention is that a deed was '"Loucheim v. Henszey, ^^ Pa. 
 
 fraudulently procured when the 305. 
 
 grantor was mentally incompetent ""Kinzer v. Mitchell, 8 Pa. 64; 
 
 and that the consideration was in- Jackson v. Somerville, 13 Pa. 359; 
 
 adequate, a will executed by the Kaine v. Weigley, 22 Pa. 179; 
 
 grantor three years before the Snayberger v. Fahl, 195 Pa. 336. 
 
ADMISSIBILITY IN GENERAL — RELEVANCY. 2/ 
 
 on its face, is presumed to be such until it is shown to be other- 
 wise. If facts are once shown from which a jury may infer 
 fraudulent intent, a presumption of fraud arises which must be 
 rebutted by clear evidence to avoid a conviction.^ If circumstan- 
 tial evidence is relied on to show fraud, the circumistances must 
 be clearly proved and not themselves presumed. - 
 
 § 17. Fraud — Proof — Offer of. A general offer to prove 
 fraud and misrepresentation will not be received. The offer must 
 specify the facts proposed to be established in order that the 
 court may determine whether the evidence is relevant.' 
 
 § 18. Fraud — Proof — Reliance on misrepresentations. One 
 who defends on the ground of fraudulent representations must 
 show that he acted in reliance on such representations and in the 
 belief that they were true, and evidence tending to prove this is 
 always admissible." Such proof may be furnished by the party's 
 own testimony without violating the rule that one may not testify 
 to his undisclosed purpose or intention.^ But the party charged 
 with fraud may show in rebuttal that the other knew the state- 
 ments were not true and did not act in reliance upon thero, as 
 for instance, that before a contract which expressly affirmed the 
 existence of a patent, was signed, the party charged with mis- 
 representation notified the other that the patent was in fact not 
 yet issued." 
 
 § 19. Fraud — Proof — Sufficiency of. It is necessary to prove 
 fraud only by a preponderance of evidence, and a charge that 
 fraud could not be found except upon "clear and undoubted 
 proof" is erroneous.^ But merely to arouse a suspicion of fraud 
 is not enough.* If the evidence is so evenly balanced that the 
 jury cannot come to a conclusion, they must find the transaction 
 honest, not on the principle that every person is entitled to the 
 benefit of the doubt, but because the burden of proof is on the 
 party alleging fraud and if he has only created an equilibrium 
 
 iRaine v. Weigley, 22 Pa. 179; •'Cummings v. Cummin^s, S W. 
 
 Orr V. Peters, 197 Pa. 606; Red- & S. 553; Harris v. Tyson, 24 Pa. 
 
 field Co. V. Dysart, 62 Pa. 62. 347. 
 
 ^Douglass V. Mitchell, 35 Pa. ^Com. v. Julius, 173 Pa. 322; 
 
 440. See also § 7. For sufficiency Weaver v. Cone, 174 Pa. 104. See 
 
 of evidence of fraud to admit decla- § 21. 
 
 rations of parties against each other ^Swazey v. Herr, 11 Pa. 278. 
 
 see § 273, note 16. '^A-bbey v. Dewey, 25 Pa. 413. 
 
 sMuntz V. Whitcomb, 40 Super. s^utton v. Pyle, 7 Super. 126. 
 SS3. 
 
28 
 
 PENNSYLVANIA TRIAI, EVIDENCE. 
 
 he has not made out his case." Though great latitude is allowed 
 in the introduction of collateral facts tending to prove fraud, yet 
 these facts must be as clearly proved as other facts in the case.'" 
 § 20. Identity. All evidence, whether direct or circumstan- 
 tial, tending to prove the identity of a thing" or person'^ whose 
 
 ^Kaine v. Weigley, 22 Pa. 179. 
 Fraud in the confession of judg- 
 ment by the cashier of a bank is 
 not proved by evidence of a subse- 
 quent assignment of the judgment 
 to the vice-president of the bank, 
 and that on a subsequent failure of 
 the bank its assets went into the 
 hands of the vice-president, that no 
 losses were sustained by the bank, 
 and no assets went into the hands 
 of other directors : Davenport v. 
 Wright, SI Pa. 292. A party's own 
 notice of intention to rescind a 
 contract on the ground of fraud is 
 inadmissible in absence of other 
 evidence to show that plaintiff was 
 entitled to rescind : Taylor v. 
 Saurman, no Pa. 3. Evidence that 
 another made no loans on proper- 
 ties in a certain locality because he 
 considered them unsafe invest- 
 ments, is insufficient to prove fraud 
 in inducing loans on such mort- 
 gages : Dutton v. Pyle, 7 Super. 
 126. And the mere fact that the 
 lessee of mining property had, prior 
 to date of lease, stated he intended 
 to monopolize mining business, is 
 not competent to prove he knew the 
 mineral deposits on the land were 
 exceptionally valuable and fraudu- 
 lently concealed the fact : Harris 
 v. Tyson, 24 Pa. 347. See § 273, 
 note 16. 
 
 loDouglass V. Mitchell, 35 Pa. 
 440. 
 
 I'A witness who was present 
 when a check was delivered to the 
 holder and who presented it at the 
 bank for payment, is competent to 
 identify the check, even though he 
 had never seen the maker or en- 
 
 dorser write : Caldwell v. Reming- 
 ton, 2 Whart. 132. But a letter 
 written by the maker of a note five' 
 years before its execution, is not 
 admissible if it does not refer to 
 the note in any way so as to iden- 
 tify it: Darragh v. Stevenson, 183 
 Pa. 397. The testimony of one who 
 examined a rope after an accident, 
 is admissible though he did not 
 completely identify it as the one he 
 had seen in a defective condition 
 before the accident, if it appears 
 there was only one defective rope : 
 Wells V. Railroad, 232 Pa. 330. 
 
 ^'A certificate of citizenship 
 found in possession of a deceased 
 sailor, is strong evidence of iden- 
 tity : Bryant's Estate, 176 Pa. 309. 
 Where the identity of the writer of 
 an unsigned typewritten letter is in 
 question, the fact that the subject 
 matter was one peculiarly within 
 the knowledge of a certain person 
 and that he had a motive for writ- 
 ing it, is relevant : Com. v. Drum, 
 42 Super. 156. The record of a 
 conviction, is evidence that the per- 
 son convicted was the guilty person, 
 where the action is to recover a 
 reward for his apprehension : York 
 Boro. V. Forsht, 23 Pa. 391. A 
 party may be identified by a wit- 
 ness who testified in a former 
 prosecution against him, without 
 producing the record of the former 
 trial : Brown v. Com., 76 Pa. 319. 
 Dying declarations of a murdered 
 man, identifying parties brought 
 before him as the persons who com- 
 mitted the crime, are admissible, 
 though at the time masks were put 
 on their faces in the same manner 
 
ADMISSIBILITY IN GENERAI, — RELEVANCY. 29 
 
 identity is in issue, is relevant. In the proof of circumstances 
 from which the conclusion of identity is to be drawn, the evidence 
 must often proceed step by step, and to exclude a fact or circum- 
 stance because it is not in itself proof would be to reject all cir- 
 cumstantial proof of identity." Therefore, no matter how slight 
 may be the inference of identity to be drawn from any single 
 fact, it is admissible as. a step tending to make up the proof as a 
 whole. ^* 
 
 Personal identity depends almost wholly upon tradition. A 
 mother knows her own child largely by what the nurse tells her, 
 and even a nurse, except where there are unusual physical pecu- 
 liarities, would be unable, a year from the birth of a child, to 
 identify it. In the very nature of the case, therefore, a witness 
 must be permitted to testify to identity, though his knowledge is 
 necessarily based on hearsay.^^ Photographs are always admis- 
 sible to assist in the identification of persons, places, or things.^" 
 And on a murder trial, witnesses who were familiar with certain 
 peculiarities of the teeth and jaw of the deceased may state 
 whether a skull and jaw bones produced at the trial were those of 
 the deceased.^'' 
 
 Identity of names is prima facia evidence of identity of per- 
 sons^* unless the name is a very common one or the transaction 
 remote. The reason for the rule is that if identity is denied it is 
 an easy matter to call such person into court ; while the exception 
 in case of remote transactions rests upon the difKculty and fre- 
 quent impossibility of producing the witness, and the injustice 
 that would result if property rights, after a long f>eriod of time, 
 were made to depend on mere identity of name.^" 
 
 that masks were worn by the crimi- is^tchison v. McCulIoch, S Watts 
 
 hals on the night of the murder: 13; Clark v. Freeman, 25 Pa. 133; 
 
 Com. V. Roddy, 184 Pa. 274. A Hamsher v. Kline, 57 Pa. 397; Mc- 
 
 witness who is unable to identify Coneghy v. Kirk, 68 Pa. 200; Lam- 
 
 a person cannot testify to declara- peter Twp. Road, 35 Super. 379. A 
 
 tions alleged to have been made by marriage certificate produced from 
 
 him : Mason Fruit Jar Co. v. Paine, custody of a husband is evidence of 
 
 166 Pa. 352. identity of parties even though the 
 
 ^^Brown v. Shock, 77 Pa. 471. names were not identical : Dailey 
 
 i*Johnson v. Com., 115 Pa. 369. v. Frey, 206 Pa. 227. 
 
 i^Arnold v. Ins. Co., 20 Super. ^^Sailor v. Hertzbgg, 2 Pa. 182; 
 
 61. See also as to pedigree, §§ 279, Sitler v. Gehr, ids Pa. 577. In an 
 
 293. action on a life insurance policy it 
 
 ^"See § 225. has been held that an offer to show 
 
 ^'Gray v. Com., loi Pa. 3S0. that a person of the same name as 
 
30 PENNSYLVANIA TRIAL UVIDENCfi. 
 
 Identification by means of the voice is very frequently resorted 
 to^" especially since the telephone has come into general use. 
 Where an inquiry is made over the telephone at a person's place 
 of business, it will be presumed that the person answering, if 
 familiar with the matter of inquiry, is connected with the office 
 of the person for whom inquiry is made, and the conversation is 
 admissible, although the plaintiff cannot identify the person who 
 answered by his voice. By placing himself or his office in connec- 
 tion with the telephone system a person thereby invites communi- 
 cation in relation to his business through that channel, and con- 
 versations so held are as competent as personal interviews with 
 an unknown clerk in charge of the office would be." The weight 
 of the evidence is for the jury.^^ But such evidence is not com- 
 petent if the communication was not made from an office in re- 
 sponse to inquiries, and the witness was not acquainted with the 
 other person's voice and could not identify it, and identity is not 
 established in any other manner.^^ 
 
 The fact that a blood hound, trained to track human beings, 
 upon being taken to the place where a fire had been started and 
 from where all persons had been excluded, had taken up the 
 scent and followed it a considerable distance until it led to de- 
 fendant, where the hound, by its usual manifestations indicated 
 it had reached the object of its search, is competent evidence as 
 tending to identify defendant as the person who started the fire.'* 
 
 § 21. Intent — General Rule — Declarations, Acts and Circum- 
 stances. Whenever the legal character of an act depends upon 
 the intent with which it was done, the question of intent becomes 
 
 the plaintiff was rejected by an- 366. One who was standing near 
 
 other company is inadmissible in a telephone when a conversation 
 
 absence of an offer to prove the look place between third persons is 
 
 parties were the same : Fidelity not competent to identify the per- 
 
 Trust Co. V. Ins. Co., 213 Pa. 415. son at the other end of the wire, 
 
 20Identification of one prisoner by when he admits he did not know 
 another from having had conversa- her and had never heard her voice, 
 tions through a soil pipe connect- even though she admits to having 
 ing their cells, is admissible: had a conversation over the tele- 
 Brown V. Com., 76 Pa. 319. prone with the person in question, 
 
 2iSouthwark Bank v. Smith, 7 but could not state when it occur- 
 
 Dist. 182; Hodges v. Weedon, 19 red: Dunham v. McMichael, 214 
 
 Dist. 731- Pa. 485. 
 
 "Southwark Bank v. Smith, 7 ^^Com. v. Hoffman, 52 Super 
 
 Dist. 182. 
 
 2'Swing V. Walker, 27 Super. 
 
 273- 
 
ADMISvSIBIUTY IN GENERAL RELEVANCY. 
 
 31 
 
 material to the issue and evidence of declarations, acts or circum- 
 stances connected with the doing of the act is competent to show 
 such intent.-^ And while the person who did the act may testify 
 
 25Jones V. Brownfield, 2 Pa. 55 ; 
 Juniata Bldg. Ass'n v. Hetzel, 103 
 Pa. S07; Kennedy v. Erdman, 150 
 Pa. 427; Hartley v. Phillips, 179 
 Pa. 175; Cora. V. Krause, 193 Pa. 
 306; Ickes V. Ickes, 237 Pa. 582. 
 Thus an intent to kill may be in- 
 ferred from the nature of the 
 weapons used and the acts and con- 
 duct of the accused : Lanahan v. 
 Com., 84 Pa. 80; Com. v. Morrison, 
 193 Pa. 613; Com. V. Rusic, 229 
 Pa. 587; and the intent of a hus- 
 band in sending his wife poison by 
 mail, may be shown by circum- 
 stances of the family relation : Mc- 
 Meen v. Com., 114 Pa. 300. Like- 
 wise his intent in deserting his wife 
 may be shown by his declarations 
 made at the time : Ickes v. Ickes, 
 237 Pa. 582. The fact that the ac- 
 cused, a few hours before the crime 
 was committed, asked a witness at 
 what part of the body he would 
 shoot a man if he desired to kill 
 him, is relevant to show an in- 
 tent to kill : Com. v. Polichimus, 
 229 Pa. 311; and the fact that de- 
 fendant accused of murder had 
 conspired with others to rob the 
 house of the deceased and had en- 
 tered through a door which his 
 companions had opened to admit 
 him, is proof of guilty knowledge 
 of the intent of the others to com- 
 mit crime and of active participa- 
 tion therein : Com. v. Ballon, 229 
 Pa. 323- 
 
 A passenger ejected from a train 
 for attempting to ride on a can- 
 celled ticket, may prove, as evi- 
 dence of lack of intent to defraud, 
 that the ticket agent had told him 
 the ticket was good : Van Kirk v. 
 Railroad, 76 Pa. 66. In a proceed^ 
 
 ing to restrain alleged imitation of 
 a trade mark, the fact of resem- 
 blance of packages is evidence of 
 intent: Brown v. Seidel, 153 Pa. 
 60. Declarations of a parent at the 
 time of transferring property to his 
 child are admissible after his death 
 to show whether the transfer was 
 intended as a gift or an advance- 
 ment: King's Estate, 6 Whart. 
 370; Kingburg's Appeal, 44 Pa. 
 460; Aller V. Bonebreak, 65 Pa. 
 338. Book entries made by a par- 
 ent contemporaneously with the 
 transaction, are also competent for 
 the same purpose : Hengst's Estate, 
 6 Watts 86; Aller v. Bonebreak, 65 
 Pa. 338; even though the child 
 had no knowledge of the entry : 
 Hengst's Estate, 6 Watts 86. See 
 § 23, note 46. Declarations of a 
 former owner of a saw mill and 
 land on which it was located, are 
 admissible in a dispute as to 
 whether the mill was portable or 
 attached to the freehold: Benedict 
 v. Marsh, 127 Pa. 309; and con- 
 versations between parties at time 
 of raaking a contract for installing 
 an engine, are admissible to show 
 the use for which engine was in- 
 tended : Dubois v. Bigler, 95 Pa. 
 203. Where the question is whether 
 a fair price was paid for a county 
 bridge, rejected bids of a bridge 
 company are admissible on the 
 question of honesty and good faith 
 of the county commissioners in let- 
 ting the contract : Com. v. Sunder- 
 lin, 31 Super. 349. In an action for 
 libel of an army officer, evidence 
 may be given by the defendant to 
 show the military authorities had 
 preferred charges against plaintiff 
 and that he was under arrest 
 
32 
 
 PENNSYLVANIA TRIAL eVIDENCB. 
 
 to his intentions at the time,^" this does not warrant the rejection 
 of the testimony of other witnesses as to facts and circumstances 
 tending to show such intent." But a person may not testify to 
 his undisclosed purpose or intention to nulHfy words or acts re- 
 lied on by others, and which form the basis of an agreement.^^ 
 In such case, evidence of an undisclosed intent, motive or belief 
 existing in the mind of a party at the time of the execution of the 
 contract, is irrelevant.^" This rule is not violated, however, by 
 testimony of a party that he was induced to sign an agreement 
 by false representations or by reason of a contemporaneous parol 
 
 after the date of the publication, as 
 bearing on the question of defend- 
 ant's good faith : Jackson v. Pitts- 
 burgh Times, 152 Pa. 406. In such 
 actions, a liberal latitude should be 
 allowed in the admission of evi- 
 dence : Com. V. Swallow, 8 Super. 
 539- 
 
 The fact that a person acted on 
 the advice of counsel is admissible 
 on the question whether he exer- 
 cised due care and diligence in the 
 disposition of property : Harts- 
 home V. Campbell, i Yeates 143. 
 And advice of counsel is always 
 a defense in actions for malicious 
 prosecution, for the purpose of re- 
 butting the inference of malice 
 arising from want of probable 
 cause : Smith v. Walter, 125 Pa. 
 453; Mylott V. Skinner, 12 Super. 
 137; Radcliffe v. Hollyfield, 216 
 Pa. 367. But advice of counsel that 
 defendant had a legal right to pos- 
 session of land over which a dis- 
 pute arose is no defense in a crimi- 
 nal prosecution for homicide com- 
 mitted during such dispute : Wes- 
 ton V. Com., Ill Pa. 251. 
 
 Residence is determined by the 
 combined acts and intent of a per- 
 son, and all declarations, acts and 
 circumstances bearing on the ques- 
 tion whether he has fixed his habi- 
 tation without any present inten- 
 tion of removing therefrom, are 
 
 competent evidence : Hindman's 
 Appeal, 85 Pa. 466; Follweiler v. 
 Lutz, 112 Pa. 107. For the rule as 
 to proof of other distinct acts for 
 the purpose of showing intent, see 
 § 37. 
 
 ^*Juniata BIdg. Ass'n v. Hetzell, 
 103 Pa. 507; Com. V. Hazlett, 14 
 Super. 352; Com. v. Pioso, 17 
 Super. 45. A lessee of oil prop- 
 erty may show that when he ceased 
 work he did not intend to abandon 
 the leased premises : Bartley v. 
 Phillips, 179 Pa. 17s ; and the 
 owner of stock may testify he was 
 induced to sell at a low figure be- 
 cause of misrepresentations by de- 
 fendant as to its value: Weaver v. 
 Cone, 174 Pa. 104. 
 
 2'Com. V. Hazlett, 14 Super. 352. 
 A third person may testify as to 
 the intent with which an act was 
 done by another, as manifested by 
 his words and actions, the question 
 whether he had an opportunity to 
 acquire knowledge of such intent 
 being one which affects his credi- 
 bility: Delancy v. Little, 4 S. & R. 
 S03. 
 
 =sjuniata Bldg. Ass'n v. Hetzell, 
 103 Pa. 507. 
 
 ^"Spencer v. Colt, 89 Pa. 314; 
 Thomas v. Loose, 114 Pa. 35; Del., 
 L. & W. Railway v. Water Co., 227 
 Pa. 639. 
 
ADMISSIBILITY IN GENERAL — RELEVANCY. 33 
 
 agreement, upon which he relied at the time the writing was 
 signed.'" 
 
 § 22. Intent — Declarations Prior to Act — Threats. Evidence 
 of prior declarations of intention to do an act or of the reason for 
 doing it is admissible to corroborate other evidence that the per- 
 son making the declarations actually did it or to show the intent 
 with which it was done.''' And where mental capacity or undue 
 influence in making a deed or will is in question, the declarations 
 of the person who executed the writing, made prior to the time 
 the alleged disability arose or the influence existed, as to his 
 intentions in regard to the subject matter of the instrument, are 
 admissible.''- In the application of this rule, there is no differ- 
 ence in principle between a deed and a will,''' and the rule has 
 been applied where the question was whether certain bonds had 
 been lost or were destroyed with the intention of releasing the 
 obligor.'^ 
 
 Evidence of threats made against the deceased by one accused 
 of homicide is admissible as tending to show the intention with 
 which the act was committed and that the defendant committed 
 it,'' though it does not raise such a presumption of guilt as to 
 relieve the commonwealth from proving it.'" Threats made by 
 the accused an hour before the murder, that he would kill some- 
 body before twenty-four hours, are admissible as evidence of 
 malice even though it be not shown that the declaration referred 
 particularly to the deceased." But threats to kill a certain other 
 person, are not evidence of malice toward the deceased with 
 whom he had no quarrel at the time."* If self defense is set up, 
 evidence of threats made by the deceased against defendant and 
 communicated to him," or that defendant knew the deceased had 
 a violent and brutal disposition'"' is admissible to corroborate the 
 defense, while uncommunicated threats are admissible as tending 
 
 3»Com. V. Julius, 173 Pa. 322; ssRi^e v. Rice, 127 Pa. 181. 
 
 see also § 361. sigmith v. Loafman, 145 Pa. 628. 
 
 siDodge V. Bache, 57 Pa. 421; ^^Gray v. Com., loi Pa. 380; 
 
 Rhoades v. Childs, 64 Pa. 18; Ickes Com. v. Crossmire, 156 Pa. 304. 
 V. Ickes, 237 Pa. 582. ssCom. v. Farrell, 187 Pa. 408. 
 
 s^Irish V. Smith, 8 S. & R. 5731 ^THopkins v. Com., 50 Pa. 9. 
 
 Wilkinson v. Pierson, 23 Pa. 117; ssAbernethy v. Com., loi Pa. 322. 
 
 Neel V. Potter, 40 Pa. 483; Titlow 39Com. v. Keller, 191 Pa. 122. 
 
 V. Titlow, 54 Pa. 216; Rice v. Rice, ■'"Com. v. Richmond, 6 W. N. C. 
 
 127 Pa. 181. 431. 
 
34 PENNSYLVANIA TRIAL EVIDENCE. 
 
 to show the deceased was the aggressor/^ But if the defense is 
 such degree of intoxication as to prevent the formation of an in- 
 tent to kill, evidence of uncommunicated threats made by the de- 
 ceased toward the accused is inadmissible.''^ 
 
 It is doubtful if there can be a fixed limit of time prior to 
 which declarations cannot be admitted for the purpose in ques- 
 tion. However, the more remote they are, the less weight they 
 will be entitled to receive. ^^ The question is what was the state 
 of mind indicated by the words at the time of their utterance and 
 whether they were near enough to the act which followed that the 
 jury might under all the circumstances, associate the two together 
 and assume that the preexisting intent formed the motive which 
 controlled the act which followed.** 
 
 § 23. Intent — Declarations Subsequent to Act. Subsequent 
 declarations in recognition of an original intent are admissible to 
 corroborate other evidence of intent existing at the time of the 
 transaction in question.*^ But care should be taken to confine 
 such evidence to its proper purpose and not to admit it to show 
 an intent formed subsequent to the transaction.*^ 
 
 § 24. Mental Condition. Whenever the mental condition of 
 a person at the time of doing a particular act is in question, evi- 
 dence of his condition, and of his acts and declarations both be- 
 fore and after as well as at the time the act was done, is admis- 
 sible if it tends to aid in determining the condition of his mind at 
 the time.*' In such cases considerable latitude in the reception 
 
 ^iCom. V. Keller, igi Pa. 122. house, 4 Whart. 129; Kreider v. 
 
 *2Nevling v. Com., 98 Pa. 322. Boyer, 10 Watts 54 ; Haverstock v. 
 
 *3Rice V. Rice, 127 Pa. 181. See Sarbach, i W. & S. 390; Porter v. 
 
 § 29 as to remoteness of evidence Allen, 3 Pa. 390; Yundt's Appeal, 
 
 in general. Threats made eighteen 13 Pa. 575 ; Miller's Appeal, 40 Pa. 
 
 months before a crime are not too 57; Miller's Appeal, 107 Pa. 221. 
 
 remote where there is evidence See §21, note 25. 
 
 connecting defendant with the "Chess v. Chess, i P. & W. 32; 
 
 crime: Com. v. Salyards, 158 Pa. Nonnemacher v. Nonnemacher, 159 
 
 SOI- Pa. 634; Hepler v. Hosack, 197 Pa. 
 
 "Ickes v. Ickes, 237 Pa. 582. 631. See also § 21. Declarations 
 
 <5Merkel's Appeal, 89 Pa. 340. of the maker of a note shortly 
 
 See also §§ 48 to 50 as to evidence after signing, to the effect that he 
 
 of subsequent conduct. had not signed it, are competent to 
 
 "Declarations of a parent made show lack of memory and under- 
 
 in absence of a child, are not com- standing of what he had done: 
 
 petent to change what is prima Rouch v. Zehring, 59 Pa. 74. See 
 
 facia a gift or a debt into an ad- § 385. 
 vancement: Levering v. Ritten- 
 
ADMISSIBILITY IN GENERAL — RELEVANCY. 35 
 
 of evidence is allowed, so that the jury may have all facts which 
 tend to enable them to form an intelligent opinion.*^ Witnesses 
 who, though not experts, have testified to the mental condition 
 of one who executed a paper in their presence, may be permitted 
 to give their opinion as to his capacity to transact business.'" 
 
 § 25. Motive, Evidence that a person had a motive for 
 doing an act is always admissible where there is a question 
 whether or not he did it, and for this purpose it is permissible to 
 prove the existence of any fact which may reasonably be con- 
 sidered a cause for the act complained of. Thus in a murder case 
 it may be shown that the accused had a prejudice against the 
 particular class of people to which the deceased belonged,^" or 
 that there existed a quarrel,^"^ or jealousy^^ between him and the 
 deceased, or improper relations between defendant and the wife 
 of the deceased,^^ or that defendants were members of a secret 
 organization whose purpose was to assist each other in commit- 
 ting crimes and escaping detection, and that the murder in ques- 
 tion was committed through the instrumentality of such organiza- 
 tion,^* or that the object of the crime was robbery ,°° or an expec- 
 tation of financial profit through the death of the deceased."" 
 
 **Rouch \. Zeliring, 59 Pa. 74; ^Ht may be shown that the mur- 
 
 Herster v. Herster, 122 Pa. 239. dered man's house had been ran- 
 
 But a defendant in a criminal case sacked, and that he had formerly 
 
 who sets up insanity as a defense, kept a large sum of money on the 
 
 cannot show that his only child is premises : Brown v. Com., 76 Pa. 
 
 subject to epileptic fits similar to 319; and that this was known to 
 
 those with which he himself is af- defendant : Ettinger v. Cora., 98 
 
 flicted : Hall v. Com., 22 W. N. C. Pa. 338. 
 
 25. ^"It may be shown that a hus- 
 
 ■•^Hepler v. Hosack, 197 Pa. 631. band tried for murder of his wife. 
 
 See §§ 322 and 342 for rule govern- was in destitute circumstances 
 
 ing the admission of opinions as to v/hile his wife had some money : 
 
 mental condition; see also § 218 for Sayres v. Com., 88 Pa. 291 ; or that 
 
 proof of competency of a testator the crime was committed to obtain 
 
 to execute a will. the proceeds of a life insurance 
 
 ^"Com. V. Latampa, 226 Pa. 23. policy: Com. v. Clemraer, 190 Pa. 
 
 51 Sayres v. Com., 88 Pa. 291. 202; or that a short time before 
 
 5-McCue V. Com., 78 Pa. 185 ; the crime the defendant had, with- 
 
 Com. V. McManus, 143 Pa. 64. out knowledge of the victim, tried 
 
 ssCom. V. Fry, 198 Pa. 379. to obtain insurance on her life : 
 
 is^Carroll v. Com., 84 Pa. 107; Com. v. Crossmire, 156 Pa. 304. 
 
 Campbell v. Com., 84 Pa. 187 ; But for the purpose of rebutting ari 
 
 Hester v. Com., 85 Pa. 139; Mc- inference that plaintiff had set fire 
 
 Marius v. Com., 91 Pa. 57. to a building to obtain the insur- 
 
36 PENNSYLVANIA TRIAL EVIDENCE. 
 
 The fact that a witness stated he could make money by testifying 
 in a certain manner, is admissible,^' and evidence that defendant 
 was greatly indebted and declarations by him that he would avoid 
 paying them if possible, are relevant as tending to show a con- 
 veyance was made to defraud creditors. °' 
 
 While proof of motive is an important fact in establishing the 
 commission of a crime, if deliberate and intentional killing is 
 proved, a conviction will be sustained notwithstanding the ina- 
 bility of the Commonwealth to prove a motive.^" If the legality 
 of an ordinance is in issue, evidence is not admissible to show the 
 motive which induced the members of counsel to pass the ordi- 
 nance."" 
 
 § 26. Opportunity. Proof that a person had an opportunity 
 to commit a crime, may be given to corroborate other testimony 
 of its commission.""^ Thus on a trial for forgery, evidence that 
 defendant had in his desk a genuine signature of the person 
 whose name was forged, torn from a book, and that there were 
 found various signatures showing defendant had practiced imi- 
 tating the genuine one, is admissible to how that he had the 
 means and opportunity for doing the act."^ And where undue in- 
 fluence in procuring the execution of a will is alleged, declara- 
 tions of testator, though not made at the time of signing, may be 
 received to show that there are grounds for apprehending, and 
 opportunities for exercising, undue influence, and to corrobo- 
 rate other proof of facts and circumstances indicating fraud. "^ 
 On an indictment for larceny of money taken from the bed of 
 the prosecutor's wife, it may be shown that his wife and the de- 
 fendant were living in adultery."* 
 
 ance, it may be shown that he had Lanahan v. Com., 84 Pa. 80; Com. 
 
 personal property of his own in the v. Buccieri, 153 Pa. 535; Com. v. 
 
 building : Cumberland Valley Pro- Rusic, 229 Pa. 587. 
 
 tective Ass'n v. Schell, 29 Pa. 31. ""Pottsville Boro. v. Gas Co.. 39 
 
 It the alleged purpose of commit- Super, i. 
 
 ting a murder was to secure the "Com. v. Quinn, 2 Berks 184. 
 
 money of the deceased, the account e2pe,ina. Co. v. Railroad, 153 Pa. 
 
 of the administrator is admissible 160; Wheeler v. Ahlers, 189 Pa. 
 
 to show the condition of the estate : 138. 
 
 Howser v. Com., 51 Pa. 332. "^Herster v. Herster, 122 Pa. 
 
 ^'Com. V. Simon, 44 Super. 538. 239. 
 
 ssHelfrich v. Stem, 17 Pa. 143; «*Com. v. Levinson, 34 Super. 
 
 Stewart v, Fenner, 81 Pa. 177. 286. 
 
 sBMcCue V. Com., 78 Pa. 185; 
 
ADMISSIBHITY IN GENElRAL — ElJI^EVANCY. 37 
 
 § 27. Preparation. All facts tending to show preparation 
 for the commission of an act are relevant to the question whether 
 or not it was done by the accused. Thus, the fact of member- 
 ship in a secret organization for the commission of crimes and 
 mutual protection from arrest, and of a. meeting to plan the 
 crime charged,"^ or evidence of prior practice in simulating a 
 signature by one accused, of forgery,"" is competent to show prior 
 preparation for doing the acts charged. And where death was 
 caused by a certain kind of grip, it may be proved that defendant 
 had shown witnesses the same kind of grip and stated that he 
 could in that way choke a person so that he could make no out- 
 cry."^ 
 
 § 28. Rebutting Inferences. Evidence is admissible to rebut 
 an inference arising from other evidence in the case. Thus if 
 evidence is given from which it may be inferred that an act was 
 done or omitted for a certain reason, the other party may rebut 
 , the inference by. showing that it was not in fact done for that 
 reason."* And where plaintiff shows that a certain building had 
 been torn down, leaving the impression that this had been done 
 by the city, the latter may show the building was old and dilapi- 
 dated and had in fact been torn down by third persons for fire- 
 wood."" The inference arising from evidence that the owner of 
 a horse alleged to be vicious had not used it, may be rebutted by 
 showing the reason for not using it was that he owned so many 
 horses he had no use for all of them.''" And if evidence is given 
 that other horses had been frightened by the same object which 
 had frightened plaintiff's horse, it may be shown that such other 
 horses were shy and riot well broken.''^ 
 
 On a trial for murder by stabbing, if the commonwealth gives 
 evidence that the defendant was the only person who possessed 
 a knife, the latter may show that another person was stabbed at 
 
 ^^Hester v. Com., 85 Pa. 139; g, Where a party claims he repre- 
 
 Com. V. Mitchell, 6 Super. 369. sented others, his prior declarations 
 
 ^^Penna. Co. v. Railroad, 153 Pa. that he claimed in his own right 
 160; Com. V. Cowan, 4 Super. 579; are competent: Gallaher v. Col- 
 Wheeler V. Ahlers, 189 Pa. 138. lins, 7 Watts 552. 
 The papers on which the various 69j^eyen(-]iaier v. Phila., 160 Pa. 
 signatures are written should be 195. 
 
 produced: Lauer v. Posey, ig ^oPotter v. Gas Co., 183 Pa. 575. 
 
 Super. 543- ^'Piollett v. Simmers, 106 Pa. 
 
 "^Com. V. Crossmire, 156 Pa. 304. 95. 
 
 osSeltzer v. Brundage, 17 Atl. 
 
38 PENNSYLVANIA TRIAL EVIDENCE. 
 
 the same time, and while defendant \yas absent/- And where 
 the defendant in eminent domain proceedings .shows that part of 
 the land was leased to another, plaintiff may prove that the part 
 leased was not taken/^ 
 
 § 29. Remoteness, In determining whether evidence is too 
 remote to be admitted, all the circumstances of the particular 
 case should be considered, since a period of time which may, 
 under given conditions, be considered too remote, might under 
 different circumstances be near enough to the transaction to ren- 
 der the occurrences admissible.'* Thus while evidence of market 
 value must be confined generally to a period at pr near the time 
 of the transaction in question, yet evidence of the purchase price 
 of land many years before such transaction has been held ad- 
 missible in fixing its present value, when offered in connection 
 with proof that there has been no change in value, and the case 
 is one where more conclusive evidence cannot be obtained.'^ Evi- 
 dence that a couple of years before a crime was committed the 
 deceased had gold and silver coin in his house and that defend- 
 ant had similar coin in his possession after the crime, was also 
 admitted where it appeared the deceased lived in the country re- 
 mote from a bank, and it was a period of suppression of specie 
 payment.''' Threats made eighteen months before a murder are 
 also admissible where there is other evidence connecting defend- 
 ant with the crime." On the other hand, evidence of attempts 
 by a debtor, made two months after a levy, to conceal other 
 property from his creditors,'* or evidence to show the condition 
 of a highway two years after an accident,"* or to show a habit 
 
 '2Com. V. Werntz, 161 Pa. 591. been held too remote. But the 
 
 ^sReading & Pottsville Railroad price at which land sold five years 
 
 V. Balthaser, 126 Pa. I. after date of inquiry has been held 
 
 '■•See § 32 for rule governing ad- strong evidence of value at the 
 
 missions of evidence of conditions time : Postens v. Postens, 4 Whart. 
 
 existing at different times; also 26. 
 
 § 42, note 78, relating to admission ^"Brown v. Com., 76 Pa. 319. 
 
 of evidence of the emissiion of "Com. v. Salyards, 158 Pa. 501. 
 
 sparks from locomotives at differ- "gmjth v. Emerson, 43 Pa. 456. 
 
 ent times. Declarations by grantor thirty years 
 
 ^^Mineral Railroad Co. v. County before a conveyance alleged to be 
 
 Commissioners, 229 Pa. 457. Evi- fraudulent are not competent to 
 
 dence of value of land thirteen prove indebtedness at the time: 
 
 (Com. V. Smith, 4 Super, i) and Baldwin v. Steier, 191 Pa. 432. 
 
 seventeen (Davis v. Railroad, 215 'ocobb v. Township, 232 Pa. 198. 
 Pa. 581) years prior to suit has 
 
ADMISSIBILITY IN GENERAI, — RELEVANCY. 39 
 
 of fast and perilous driving without an offer to confine it to 
 within a reasonable period immediately preceding an accident,*" 
 or acts of parties three months before a contract in question was 
 made and before it was even contemplated,*"^ is not admissible. 
 The owner of a business accused of fraudulently underestimating 
 its value, cannot prove his representations were honest by show- 
 ing causes for depreciation which arose six months after the 
 representations were made.*" And where one accused of murder 
 by administering arsenic contends that the arsenic was takfen vol- 
 untarily by the deceased, testimony that the latter was seen to 
 take arsenic medicinally ten years before, is inadmissible in ab- 
 sence of proof of continuance of such habit to within a reason- 
 able period before death. *^ Where there is a question of title 
 to cigars levied on and the internal revenue certificate is shown 
 to be in the name of the execution defendant, the claimant of the 
 goods cannot, for the purpose of showing that it is immaterial" 
 in whose name the certicate was issued, offer in evidence a cer- 
 tificate issued ten years before in the name of another person.** 
 § 30. Similar Facts, Conditions or Conduct — Criminal Cases. 
 The mere fact that another transaction or condition resembles the 
 one under consideration, does not render it a relevant fact to the 
 question at issue, if there is no actual connection between them ; 
 nor is the fact that a person has done a certain act at one time 
 proof that he will again do it. It is therefore a general rule 
 that the commission of a particular act by a certain person, or 
 the existence of certain conditions, cannot be proved by showing 
 the commission of a similar act or the existence of a similar con- 
 dition at another time.*^ This rule is especially applicable in 
 
 8»Mansfield v. McEnery, 91 Pa., installed at other places registered 
 185. defectively : Scranton Water Co. 
 s^Cassidy v. Richards, 3 Brewst. v. Sturgess, 47 Super. 203; that 
 86. customers of a certain stock broker 
 s^Cummings v. Cummings, S W. merely gambled in stocks without 
 & S. 553. intention of purchasing, where 
 s^Goersen v. Com., 106 Pa. 477. question is whether a particular 
 8*Martin v. Rutt, 127 Pa. 380. transaction was a bona fide pur- 
 s^The following cases illustrate chase : MacDonald v. Gessler, 208 
 the rule excluding evidence of sim- Pa. 177; that a receipt was given 
 ilar but disconnected facts or trans- for other bonds belonging to plain- 
 actions : The fact that one sued tiff, where question is whether par- 
 for slander had been guilty of a ticular bonds were accounted for 
 similar offense : Long v. Brougher, by defendant: Phillips v. Railroad, 
 5 Watts 439; that water meters 107 Pa. 472; circumstances of 
 
40 
 
 PENNSYIvVANIA TRIAL EVIDENCE. 
 
 criminal cases, ^^ it being a fundamental principle that a prisoner 
 shall not be required to answer for the commission of any offense 
 that is not specially charged against him in the indictment.*^ 
 But if criminal conduct proposed to be proved forms in any 
 way a link in a chain of circumstances which connects the de- 
 
 other distraints by landlord, where 
 excessive distress is alleged: Fern- 
 wood Ass'n V. Jones, 102 Pa. 307; 
 transactions as to other leases, 
 where a party is charged with lar- 
 ceny of money received on a par- 
 ticular lease: Schondorf v. Grif- 
 fith, 13 Super. 580; fact of indict- 
 ment of joint maker of a note for 
 'forgery, where question is whether 
 defendant's signature to the note 
 was forged : Lauer v. Posey, 15 
 Suger. 543 ; charges for construct- 
 ing sidewalks at different times in 
 other cities : Am^berson Ave., 179 
 Pa. 534; unskillful performance of 
 other work than that alleged to be 
 improperly done : Waugh v. Shunk, 
 20 Pa. 130; amount of sales made 
 by other agents in similar business, 
 where one is accused of negligent 
 performance of duty : Kirk v. 
 Wartman, 63 Pa. 97; comparison 
 with other jobs of a. similar nature, 
 on question of substantial perform- 
 ance of contract : Shires v. O'Con- 
 nor, 4 Super. 46s ; manner of hold- 
 ing title to other tracts of land 
 whether as partners or tenants in . 
 common, where question is how a 
 particular tract was held: Hayes 
 v. Treat, 178 Pa. 310; method of 
 construction of other dams, where 
 question is whether particular dam 
 was properly built; Newbold v. 
 ' Mead, 57 Pa. 487; height of flood 
 subsequent to suit in an action for 
 damages caused by overflow of 
 stream : Freeland v. Penna. Rail- 
 road, 66 Pa. 91 ; evidence that 
 mountain streams in vicinity but 
 not tributary to stream in question, 
 were flooded to an unusual degree, 
 
 where character of flood is in ques- 
 tion; Minnequa Streams Co. v. 
 Coon, 10 W. N. C. 502; though 
 evidence that the particular stream 
 had at other times been much 
 higher, is relevant. Id. See also 
 note 87 below. For exceptions to 
 the general rule, see tollowing sec- 
 tions. 
 
 s^Wheeler v. Ahlers, 189 Pa. 138; 
 Com. v. Shanor, 29 Super. 358. 
 
 s'Com. v. Saulsbury, 152 Pa. 
 5S4; Com. v. Shanor, 29 Super. 
 358. Thus it may not be shown 
 that defendant extorted money 
 from other persons than the prose- 
 cutor: Com. V, Saulsbury, 152 Pa. 
 554; or that another burglary was 
 committed in the vicinity on the 
 same day: Swan v. Com., 104 Pa. 
 218; unless connection between 
 them be shown: Com. v. Major, 
 198 Pa. 290; or that defendant on 
 the same evening and in the same 
 neighborhood attempted to assault 
 another woman : Com. v. House, 
 223 Pa. 487. On a trial for adultery, 
 evidence that the defendant stayed 
 at a hotel in another county under 
 an assumed name with a woman 
 whom he represented to be his wife, 
 ir, not admissible in absence of evi- 
 dence to identify the woman as the 
 one with whom the offense charged 
 was committed : Com. v. Shanor, 
 29 Super. 358; and on a trial for 
 murder of an illigitimate child of 
 defendant's daughter, evidence that 
 defendant had on prior occasions 
 committed incestuous rape on the 
 daughter is inadmissible: Snyder 
 v. Com., 85 Pa. 519. 
 
ADMISSIBILITY IN GENERAL — RELEVANCY. 4I 
 
 fendant with the crime charged, it is admissible. In such case, in 
 order that one act may be evidence of another, there must be some 
 connection between them which may be traced in a general de- 
 sign, purpose or plan of the person doing the act, or which may 
 be shown by such circumstances as necessarily tend to establish 
 that the person who committed one act must have been guilty of 
 the other.*^ If the facts offered to be proved bear on the offense 
 charged and tend to prove a fact in issue, they are admissible 
 even though they incidentally tend to prove the commission of 
 another offense.*" Whenever such evidence is offered, the ques- 
 tion is whether it tends to prove some material fact in the case. 
 If it does, it should be admitted, notwithstanding it also proves 
 another separate offense.'" 
 
 While evidence of a confession by a defendant that he com- 
 mitted another crime is not admissible to prove guilt of the crime 
 charged, yet if he testifies in his own behalf and denies having 
 committed such other crimes, his confession may then be offered 
 to impeach his credibility.^^ 
 
 § 31. Condition at Different Places. If the condition or qual- 
 ity of part of a structure or premises may be reasonably inferred 
 from the condition or quality of other parts thereof, evidence 
 of the condition of such other parts is admissible. Thus, where 
 part of a glass roof fell because of alleged defects, the general 
 bad condition of other portions of the roof similarly situated 
 may be shown. "^ And evidence of the bad condition of railroad 
 ties at other places than at the exact point of an accident, will be 
 received where the alleged cause of the accident was rotten ties 
 resulting in a general bad condition of the road bed.'^ A sample 
 of stone taken from a certain quarry and identified as the same 
 
 ^^Goersen v. Com., gg Pa. 388; for murder had criminal inter- 
 Swan V. Com., 104 Pa. 218; Com. course with deceased is admissible 
 V. Griffin, 42 Super. $97- See next where it tends to prove a chain of 
 note. See also §§ 35, 36. circumstances connecting defend- 
 
 89Com. V. Shanor, 29 Super. 358. ant with the crime : Turner v. 
 
 The mere fact that other crimes Com., 86 Pa. 54. 
 
 were mentioned in a general way soCom. v. Shanor, 29 Super. 358. 
 
 by one of joint defendants while "iCom. v. Racco, 225 Pa. 113; 
 
 giving evidence of prior acts of Com. v. Shanor, 29 Super. 358. See 
 
 all tending to show conspiracy, also § 484. 
 
 does not render the evidence im- "^Lamb v. Railroad, 217 Pa, 564. 
 
 proper: Com. v. Biddle, 200 Pa. B^O'Donnell v. Railroad, 59 Pa. 
 
 647; and the fact that one on trial 239. 
 
42 PTvNNSYIvVANIA TRIAL EVIDENCE. 
 
 kind used in paving, is admissible to show the quahty of the pave- 
 ment without taking a block from the pavement itself. ^^ But if 
 materials used in the foundation for an engine are alleged to be 
 defective, samples taken thirty feet distant from the engine are 
 inadmissible."^ And when ice cream taken from a particular 
 can is shown to violate pure food laws, an offer to show that a 
 sample taken from some other part of the same can might indi- 
 cate a different quality of cream will not be received.^" 
 
 In an action for injuries sustained at an uncovered gutter 
 crossing in a street, the fact that other crossings were in a simi- 
 lar condition is relevant to the question whether it was negli- 
 gence in the city to keep it in such condition, and also as bearing 
 on the question of plaintiff's contributory negligence."^ And where 
 the negligence charged is failure to properly guard a new toll 
 gate, evidence that a light had been in constant use at the old one 
 is evidence of the necessity of such light."* 
 
 § 32. Condition at Different Times. Whenever the condition 
 of a particular place or thing at a certain time is in question, 
 evidence of its condition at a prior or subsequent time is admis- 
 sible if accompanied by proof that it has not changed in the 
 meanwhile. This rule has been applied to admit evidence of the 
 condition of a defective sidewalk shortly before or after an ac- 
 cident,"" or even five weeks thereafter,^"" or of the condition of a 
 defective building five months after an accident.^ And if there is 
 no other way of determining the weight of an article sold, evi- 
 dence of its weight at a prior time is admissible though the 
 weight would, under the circumstances, vary somewhat.^ The 
 condition of obstructions in a pond several months after action 
 brought," or condition of drainage of ground after suit brought,* 
 may also be shown, and evidence that the insured, after receiving 
 
 »*Phila. V. Rule, 93 Pa. 15. time a prior change was made is 
 
 "^Dubois V. Bigler, 95 Pa. 203. competent if it relates also to the 
 
 "eCom. V. Crowe, 52 Super. 539. condition at the time of the change 
 
 "'Heiss V. Lancaster, 203 Pa. 260; lor which suit was brought: Forn- 
 
 Pugh V. Boro., 238 Pa. 361. of v. Borough, 238 Pa. 614. 
 
 a^Stewart v. Chester & Darby i»oMcClosky v. Borough, 4 
 
 Co., 3 Super. 86. Super. 181. 
 
 ""Butcher v. Phila,, 202 Pa. i; ijoyce v. Black, 226 Pa. 408. 
 
 Lohr V. Phillipsburg Borough, 165 =Iv0ng v. Regen, 119 Pa. 403. 
 
 Pa. 109. In an action for dam- sHorton v. Hall, i Penny. 159. 
 
 ages for change of grade of a ■'Davidson v. Sanders, i Super. 
 
 street, evidence of conditions at the 432. 
 
ADMISSIBILITY IN GENEEAL^-RBLUVANCY. 43 
 
 a policy, was suffering from some lingering and progressive dis- 
 ease, is admissible as tending to show he was suffering from it at 
 the date of the application.'' 
 
 But where it appears from the circumstances that the condi- 
 tion of a thing or place at another time would afford no just 
 criterion of its condition at the time to which the inquiry relates, 
 evidence of condition at such other times will not be received." 
 Thus if it be shown that ice on a sidewalk was formed from 
 water from a certain source, evidence of the condition before and 
 after is immaterial.' And a sample of ore taken from a pile of 
 ore one year after delivery of the ore in question, is inadmis- 
 sible as a standard.^ Nor is evidence admissible of the condition 
 of a manufacturing plant a year after the question of failure to 
 make repairs arose." A letter which shows that if agency ever 
 existed it had terminated before the question in dispute arose, is 
 insufficient to prove agency.^" 
 
 § 33. Condition Producing Similar Results. The fact that a 
 given result recurs continually or frequently while but one cause 
 remains constant, is strong proof that such cause produces the 
 result in question ;^^ and to rebut such proof, it is competent to 
 show instances where, though the other conditions were the same, 
 the alleged cause was present and the result failed to follow, or, 
 conversely, where the result appeared when the alleged cause was 
 
 'Nophsker v. Supreme Council, shown that other vessels, as good 
 215 Pa. 631 ; Murphy v. Insurance as any in the service, were driven 
 Co., 20s Pa. 444. into port by the same storm : Reed 
 ^See § 29. V. Dick, 8 Watts 479. Where in- 
 'Brown v. White, 202 Pa. 297. juries were caused by pieces of 
 *West Rep. Mining Co. v. Jones, steel flying from a structure used 
 108 Pa. 55. for breaking steel ingots, the fact 
 'Sharpless v. Zelley, 37 Super, that on prior occasions pieces of 
 102. steel were thrown from the same 
 lopilbert v. Behney, 45 Super. 24. structure is evidence tending to 
 I'Where the question is whether prove negligence in its construc- 
 an object in a highway had a ten- tion : Baker v. Hagey, 177 Pa. 128; 
 dency to frighten horses, the fact and where plaintiff's property was 
 that other horses were frightened stolen from his berth in a Pullman 
 at the same object is relevant: car, the fact that another passenger 
 Piollet V. Simmers, 106 Pa. 95 ; was robbed on the same night is ad- 
 Potter v. Gas Co., 183 Pa. 575 ; missible as bearing on the question 
 and on a question whether the whether defendant was negligeht in 
 wrecking of a vessel was due to guarding the car : Pullman Car Co. 
 its unseaworthiness, it may be v. Gardner, 3 Penny. 78. 
 
44 PENNSYLVANIA TRIAL EVIDENCE. 
 
 absent.^^ Before evidence to show similar results in other cases 
 may be given, however, the burden is on the party offering it to 
 prove that the conditions were the same. He cannot shift upon 
 the other party the burden of proving they were not the same.^' 
 
 Intoxication of a defendant at the time he committed murder 
 cannot be proved by showing the condition of his companion who 
 had taken the same number and kind of drinks, since the effect 
 of alcoholic liquors varies in different persons.^* For the same 
 reason, a life insurance company which resists payment of a 
 policy on the ground that plaintiff was an habitual drunkard, 
 cannot show that the quantity of liquor drank by plaintiff was 
 enough to seriously impair a man's health. The question is 
 whether if was sufficient to impair plaintiff's health.'" 
 
 § 34, Course of Business — Custom. If a witness testifies posi- 
 tively that certain things were done, evidence of a business cus- 
 tom according to which it would naturally have been done is ad- 
 missible to corroborate his testimony;'" and although he is un- 
 able to recall a certain matter, he may be permitted to testify as to 
 his general custom under such circumstances if he subsequently 
 supplies proof of the transaction.'^ But if he does not remember 
 whether or not a certain thing was done, and there is no direct 
 
 '^In an action for injury to vege- of plaintiffs was intemperate and 
 
 tation alleged to have been caused yet did a good business : Shirley \ . 
 
 by fumes from an oil refinery, it Keagy, 126 Pa. 282 ; nor may evi- 
 
 may be proved that the vegetation dence of the condition of a similar 
 
 showed the same kind of injury bridge erected at another place be 
 
 during a season when the plant was given by defendant indicted for 
 
 not in operation : Vautier v. Ref . nuisance in maintaining a bridge : 
 
 Co., 231 Pa. 8. Where the dam- Com. v. Railroad, 7 Super. 234. 
 
 ming of a stream and overflow of '^Stremme v. Dyer, 223 Pa. 7. 
 
 land is alleged to have been caused '■'Com. v. Cleary, 135 Pa. 64. 
 
 by accumulation of rubbish against '^Odd Fellows' Ins. Co. v. Roh- 
 
 a gas pipe placed under a bridge kopp, 94 Pa. 59. 
 
 by the defendant, the latter may '"Meighen v. Bank, 25 Pa. 288; 
 
 show that the land overflowed dur- Sherer v. Easton Bank, 33 Pa. 134. 
 
 ing high water periods prior to the "A subscribing witness who is 
 
 placing of the gas pipe across the unable to recall whether he saw a 
 
 stream: Keats v. Gas Co., 29 writing signed, may testify it was 
 
 Super. 480. But where loss in busi- his habit never to witness an in- 
 
 ness is attributed to habits of in- strument unless it was signed in 
 
 loxication and inattention to busi- his presence: Eureka Ins. Co. v. 
 
 ness, defendant cannot show one Robinson, 56 Pa. 256. 
 
ADMISSIBIUTY IN GENERAL — RELEVANCY. 
 
 45 
 
 evidence of its having been done, evidence of a business custom 
 by which it would have been done is inadmissible.^' 
 
 The fact that certain parties had prior joint business trans- 
 actions is evidence of joint liability under a particular contract 
 if there is other evidence of the contract and a continuous course 
 of dealings which, taken together, is sufficient to warrant the con- 
 clusion of joint action.^" And the fact that a person acted as 
 representative or agent for another in prior transactions is evi- 
 dence tending to prove agency and authority to act in a similar 
 transaction.^" 
 
 Evidence of a course of dealing between the parties to a con- 
 tract is always admissible to show their intention at the time 
 they made it, and the construction which they themselves put 
 upon it,^' and in absence of express agreement, even the terms 
 
 ^"Schoneman v. Fegley, 14 Pa. 
 376; Eureka Ins. Co. v. Robinson, 
 56 Pa. 256; Custer v. Aid Asso., 
 211 Pa. 257. The contents of a 
 lost lease cannot be proved by a 
 form alleged to be used by the 
 party on many occasions, if it ap- 
 pears the witness did not know the 
 contents of the lost lease and could 
 not state positively that the form 
 was the same as the one offered : 
 Morris v. Gufley, 188 Pa. 534. Evi- 
 dence of rules 'of a railway com- 
 pany requiring reports of acci- 
 dents to be made by employees, to 
 be followed by evidence that no re- 
 port was made in a particular in- 
 stance, is not competent to show 
 no accident took place : Becker v. 
 Trac. Co., 52 Super. 93. Where in 
 an action by an executor to collect 
 a debt alleged to be owing to the 
 estate, defendant produces a re- 
 ceipt from decedent, plaintiff can- 
 not prove it invalid by showing de- 
 fendant usually paid bills by check 
 and no check corresponded to re- 
 ceipt was produced, or by showing 
 decedent was careful and method- 
 ical and her books showed no entry 
 
 of payment by defendant: Paige v. 
 Paige, S3 Super. 311. 
 
 "Trego V. Lewis, 58 Pa. 463; 
 Bowers v. Still, 49 Pa. 65. 
 
 2"The fact that the cashier of a 
 bank performed various duties as 
 such, is evidence of his appoint- 
 ment to that office : Barrington v. 
 Washington Bank, 14 S. & R. 405 ; 
 and a check signed by one as officer 
 of a corporation is evidence that he 
 acted in that office : Union Canal 
 Co. v. Lloyd, 4 W. & S. 393. But 
 evidence that an agent transacted 
 general business for his principal, 
 is not proof of authority to execute 
 a contract of guaranty to bind his 
 principal, unless it be shown that 
 such contracts had been made and 
 ratified by the latter : Stevenson v. 
 Hoy, 43 Pa. 191 ; and prior cor- 
 respondence between agent and 
 principal relating to similar mat- 
 ters, but not sufficient to establish 
 a settled course of dealings, is not 
 admissible to relieve the agent 
 from liability for failure to obey 
 instructions : Kraber v. Union Ins. 
 Co., 129 Pa. 8. 
 
 2*Moore v. Rohrbacker, 30 Super. 
 S68. 
 
46 
 
 PENNSYLVANIA TRIAL EVIDENCE. 
 
 of the contract may be shown by the terms of similar con- 
 tracts between them." But in a dispute concerning the 
 construction of an insurance policy, statements by officers of 
 the company as to the construction of similar clauses in other 
 policies are inadmissible. =' And when goods are shipped without 
 a bill of lading being issued, the carrier cannot, in an action for 
 their loss by fire, show that the form of bill of lading which they 
 ordinarily used excepted it from liability for loss by fire." Nor 
 is the fact that certain provisions of a contract were frequently 
 waived by a party, admissible as an excuse for failure to comply 
 with such condition when compliance therewith is not waived.^^ 
 § 35. Course of Conduct. Where a series of acts indicates a 
 general design, purpose or course of conduct on the part of the 
 person who committed them, they become competent evidence on 
 the question whether or not a similar particular act was done by 
 the same person.^"* Even though an act is so remote in point of 
 
 -^Lelar v. Brown, 15 Pa. 215. 
 Where there is a dispute as to 
 amount of coal sold, plaintiff may 
 show amount of coal sold to and 
 used daily by defendant : Hill v. 
 Scott, 12 Pa. 168. 
 
 23Smith V. Ins. Co., 103 Pa. 177. 
 
 2*Clyde V. Graver, 54 Pa. 251. 
 
 25An assignee of a fire insurance 
 policy will not be permitted to 
 show that it was the custom of the 
 company to permit assignments of 
 policies to be made, notwithstand- 
 ing a provision in the policy that a 
 sale of the insured property would 
 avoid it : Burger v. Farmers' Ins. 
 Co., 71 Pa. 422. See also § 13s, as 
 to evidence of custom in construc- 
 tion of contracts. 
 
 ^isOne of two joint defendants 
 charged with burglary may testify 
 to other similar burglaries commit- 
 ted by them within a short time, 
 and to a division of the spoils, as 
 indicating a, common purpose be- 
 tween them : Com. v. Griffin, 42 
 Super. 597; and where plaintiff 
 proves improper conduct between 
 his wife and defendant prior to 
 
 separation, proof of their relations 
 after such separation is admissible 
 as tending to render more certain 
 the inference to be drawn from 
 evidence of their prior conduct : 
 Sherwood v. Pitman, 55 Pa. 77; 
 Keath v. Shiffer, 37 Super. 573; 
 Gardner v. Madeira, 2 Yeates 466. 
 Likewise, on a trial for incestuous 
 intercourse with defendant's daugh- 
 ter, evidence of prior acts with her 
 is admissible : Com. v. Bell, 166 Pa. 
 405. On a trial for larceny from 
 the person, it is competent to show 
 that on the same day the defend- 
 ants had so acted in crowds as to 
 cause them to be suspected as pick- 
 pockets : Com. v. Benedick. 39 
 Super. 477 ; and on indictment for 
 arson, a subsequent attempt by de- 
 fendant to fire the same building is 
 admissible as proof of a continuous 
 attempt to do the act : Kramer v. 
 Com., 87 Pa. 209. So also on a 
 charge of soliciting to commit ar- 
 son, evidence of similar solicita- 
 tions to others about the same time, 
 is admissible : Com. v Hutchen- 
 son, 6 Super. 405. Where the 
 
ADMISSIBIUTY IN GENERAL— REI,e;VANCY. 47 
 
 time from that charged that the statute of Hmitations would bar 
 a prosecution for it, it would still be admissible if one of a series 
 of acts tending to show guilt of the party charged.^' But intoxi- 
 cation on a particular occasion may not be proved by showing 
 intemperate habits.^' And where the defense to a note is forg- 
 ery, evidence that defendant had paid other forged notes, recog- 
 nizing them as valid, is incompetent.^" 
 
 Whenever evidence of conduct on other occasions is admitted, 
 the court should limit it to the purpose offered and instruct the 
 jury not to consider it as proof of an independent offense.^" 
 
 § 36. Fraud. The rule which excludes evidence of other 
 acts to prove a' particular act is greatly relaxed in cases of 
 fraud. ^^ Thus allegations of misrepresentations as to financial 
 condition and of conveyance of property to defraud creditors 
 may be supported by showing similar misrepresentations to others 
 and transfers of other property as a series of acts constituting a 
 general scheme to defraud. ^^ And where a conspiracy to cheat 
 and defraud in a particular instance is charged, evidence of a 
 scheme to cheat and defraud the public generally may be given. '^ 
 If notes are alleged to have been fraudulently raised in amount, 
 evidence of raising of other notes by the same person is admis- 
 sible where it tends to show a general scheme to obtain money 
 on raised notes. ^* 
 
 charge is conspiracy to register soCom. v. Benedick, 39 Super, 
 
 fraudulent voters from other dis- 477. 
 
 tricts, evidence that defendants also ^iwheeler v. Ahlers, 189 Pa. 
 
 registered unnaturalized persons is 138. 
 
 admissible to rebut the inference 32i^jiite y Rosenthal, 173 Pa. 
 
 of mistake and show a general 175 ; Homewood Bank v. Marshall, 
 
 scheme to register fraudulent vot- 223 Pa. 289. 
 
 ers: Com. v. Valverdi, 218 Pa. 7. ^^Com. v. Spencer, 6 Super, 256; 
 
 But the fact that a number of suits Com. v. Pugliese, 44 Super. 361. 
 
 were started against defendant at But when a depositor claims to have 
 
 same time plaintiff's writ was is- been defrauded by misrepresenta- 
 
 sued, is not evidence of oppression tions 6f a bank officer, he cannot 
 
 in absence of proof of conspiracy show that in another similar trans- 
 
 among the different plaintiffs : action another person had been de- 
 
 Lubin Mfg. Co. v. Swaab, 240 Pa. frauded in the same manner: Bos 
 
 182. See also §§ 30, 36. v, Bank, 41 Super. 388. 
 
 "Com. v. Bell, 166 Pa. 405. 3*Penna. Co. v. Phila. etc. Rail- 
 
 28Com. V. Werling, 164 Pa. 559; road, 153 Pa. 160; Wheeler v. Ah- 
 
 Warren v. Com. z^ Pa. 45. lers, 189 Pa. 138. 
 s^Cohen v. Teller, 93 Pa. 123. 
 
48 PENNSYLVANIA TRIAL EVIDSNCB. 
 
 But one person cannot be prejudiced by the fraud of another 
 of which he has had no notice or opportunity of receiving notice,^' 
 and therefore a subsequent confession of judgment without con- 
 sideration and admittedly to defraud creditors is not admissible 
 as against a prior judgment creditor who had no knowledge of 
 the fraud ;^^ nor may a sheriflf's sale be proved fraudulent as to 
 creditors by evidence that a sale of the same person's property 
 in another county was fraudulent.^' 
 
 § 37. Intent. Proof of other acts may be given when it 
 tends to show the act in question was intentional and wilful and 
 not accidental.'^ For this purpose it may be shown that a public 
 officer, indicted for failing to account for certain fees, did not 
 account for other fees,^" or that one accused of arson made other 
 attempts to burn the same building,*" or that one accused of mak- 
 ing certain illegal sales frequently violated the law at other times 
 in the same way.*"^ And where there is a dispute as to whether 
 the term of an oral lease was a month or a year, evidence of a 
 written yearly lease with the tenant's predecessor from whom 
 he purchased the business, is admissible to show the probable in- ' 
 tention of the parties.*^ 
 
 § 38. Knowledge. Evidence of other independent acts of a 
 person may be given when it tends to show knowledge of the 
 particular act or matter in question.*'' Thus evidence of returning 
 false weights of other goods,** or of receiving from the same per- 
 son other stolen goods,*' or of having repeated false statements 
 at a time when they must have been known to be false,*^ or of 
 possession and passing of other counterfeit money of the same 
 kind,*' or collection of the same amount of fees in other vears 
 
 ^'Declarations of a vendor to the *2HilI v. Torpey, 46 Super. 286. 
 
 effect that sale was made toi defraud *''Com. v. House, 6 Super. 92. 
 
 creditors are not admissible against **Catasauqua Mfg. Co. v. Hop- 
 
 the vendee when not made in his kins, 141 Pa. 30. 
 
 presence or with his knowledge. *'Com. v. Johnspn. 133 Pa. 293; 
 
 Scott V. Heilager, 14 Pa. 238. Kilrow v. Com., 89 Pa. 480. 
 
 s^Miller v. McAlister, 178 Pa. "Cummings v, Cummings, S W. 
 
 140. & S. SS3- 
 
 "Oram v. Rothermal, 98 Pa. ^rCom. v. Daniels, 2 Pars. Eq. 
 
 300- 332- But it cannot be shown that 
 
 38Com. V. House, 6 Super. 92. one accused of obtaining goods 
 
 soCom. V. Shields, So Super, i. from a certain person under false 
 
 loKramer v. Com., 87 Pa. 299. pretenses, also procured goods from 
 
 ■iiCom. V. McDermott, 37 Super, i. others in the same manner. Id. 
 
ADMISSIBILITY IN GfiNfiRAL — RELEVANCY. 49 
 
 by a public officer accused of collecting excessive fees,** is ad- 
 missible in each particular case to show knowledge of the act 
 charged and contradict defendant's denial of it. And where a 
 defective method of construction is alleged to have been the cause 
 of the collapse of a building, it may be shown that other similar 
 buildings constructed by defendant had fallen shortly after they 
 were completed.*" 
 
 Evidence of intemperate habits and accustomed disobedience 
 of orders by an employee is admissible to show knowledge of 
 such conduct on the part of the master.'" And where a habit of 
 intoxication in a conductor is shown, it raises a presumption of 
 negligence in case of accident, and casts on his employer the 
 burden of proving he was not intoxicated at the time.'^ 
 
 Knowledge of identity of a person accused of fraud, and of 
 his fraudulent conduct, may be shown by evidence that on other 
 occasions defendant was with such person and addressed him by 
 his name.^^ 
 
 § 39. Malice. Proof of independent acts is admissible when 
 they tend to show malice in doing a particular act, as, for instance, 
 the fact that defendant in an action for slander spoke other 
 slanderous words'^ or published other libellous articles'* in re- 
 gard to the same persoi| or subject matter, or wrote other letters 
 which, though not libellous in themselves, showed ill will toward 
 the plaintiff.'' 
 
 § 40. Motive. Evidence of independent acts is relevant 
 where they tend to show a motive for the conduct of a person 
 in reference to the particular act charged.'^ Thus on the trial 
 of a physician for murder of his wife by poisoning, evidence that 
 the wife's mother also died a few days before from the effects 
 of poison administered by the defendant while prescribing for 
 
 «Com. V. Tilly, 33 Super. 35. edge of the acts : Frazier v. Penna. 
 
 ^"Carson v. Godley, 26 Pa. in. Railroad, 38 Pa. 104. 
 But such evidence is not competent sipgnna. Railroad v. Books, 57 
 
 for the purpose of establishing the Pa. 339; Huntingdon & B. T. M. 
 
 general reputation of the defend- Railroad v. Decker, 82 Pa. 119; 
 
 ant and his workmen as builders. Rosenstiel v. Railway, 230 Pa. 273. 
 Id. 52Brown v. Schoch, 77 Pa. 471. 
 
 '"Huntingdon & Broad Top '^Wallis v. Mease, 3 Bin. 546. 
 
 Mountain Railroad v. Decker, 82 s^Com. v. Place, 153 Pa. 314. 
 
 Pa. 119. But the master in such "Seip v. Deshler, 170 Pa. 334. 
 
 case may show he had no knowl- 5«Com. v. House, 6 Super. 92; 
 
 Com. V. Levinson, 34 Super. 286. 
 
50 PENNSYLVANIA TRIAL EVIDI^NCH;. 
 
 her, is admissible in support of the allegation that defendant's 
 motive was to obtain the money of his wife and mother-in-law.°' 
 And the fact of frequent domestic troubles between a husband 
 and his wife whom he is accused of murdering,^' or the existence 
 of adulterous relations between defendant and the wife of the 
 deceased, continuing to the time of the murder,'® or the fact of 
 membership in a secret organization of criminals for the purpose 
 of committing crimes^" is competent evidence of motive. And 
 where a murder was committed in an attempt to prevent the dis- 
 covery of goods stolen from the murdered man, the fact that 
 defendant was implicated in the robbery is also competent.^^ 
 
 § 41. Negligence Cases — Generally. As a general rule, evi- 
 dence of similar but disconnected acts of negligence is not admis- 
 sible to prove negligence on a particular occasion, as for instance, 
 the fact that a person had at other times alighted from an ele- 
 vator without stopping it,*^ or had tampered with machinery,"' 
 or permitted a child to run on the street unattended,^* or had 
 negligently overloaded floors of a building.*' Nor is the fact 
 that a railrood company had allowed its road to fall into a state 
 of disrepair generally, competent evidence of negligence, where 
 an accident was due to a broken rail."" Absence of safety gates 
 at other crossings is not competent evidence of negligence in fail- 
 ing to maintain gates at a particular crossing,"^ nor is the effect 
 of a collision on other passengers competent to show the extent 
 
 5'Goersen v. Com., io6 Pa. 477. for a long period of time, evidence 
 
 '^Sayres v. Com., 88 Pa. 291. of the general condition of similar 
 
 o'Com. V. Kerrigan, 44 Pa. 386; ties which had been in use for 
 
 Turner v. Com., 86 Pa. 54. the same length of time at other 
 
 soCarroll v. Com., 84 Pa. 107. places along the road, would be ad- 
 
 "McConkey v. Com., loi Pa. 416. missible : O'Donnell v. Alleg. Rail- 
 
 «2Baker v. Irish, 172 Pa. 528. road, 59 Pa. 239. 
 
 «3Veit V. Brewing Co., 216 Pa. s^Bracken v. Penna. Railroad, 32 
 
 29- vSuper. 22. But where it has been 
 
 «*Woeckner v. Erie Motor Co., .shown by defendant that there were 
 
 187 Pa. 206; Woeckner v. Erie safety gates at another crossing, as 
 
 Motor Co., 182 Pa. 182. bearing on the question of the 
 
 e^Gunzenhauzer v. Ins. Co., 241 character of the crossing where the 
 
 Pa. 346. accident occurred, plaintiff may 
 
 »8Briggs V. East Broad Top Rail- show the gates were not at such 
 
 road, 206 Pa. 564. But if the broken other crossing at the time of the 
 
 rail was due to the rotten condition accident : Metzler v. Railroad, 28 
 
 of the ties which had been in use Super. 180. 
 
ADMISSIBILITY IN GENERAL — RELEVANCY. 5 1 
 
 and character of plaintiff's injuries.^* The fact that several 
 years before another person had received an electric shock from 
 a trolley car in the same manner in which plaintiff was injured, 
 is also inadmissible.*" 
 
 If the rate of speed of a train at a certain time and place is in 
 question, evidence of its speed at other times or places may not 
 be shown.'"' Nor is evidence of the speed at which trains usually 
 ran over a crossing, admissible to show the speed of a particular 
 train, even though it be shown that the latter train was going at 
 the usual speed." 
 
 Evidence of general reputation of a person for carelessness is 
 inadmissible to prove negligence on a particular occasion, since 
 a person may have a very bad reputation and yet have discharged 
 his duties properly on that- occasion.''' 
 
 Where the manner of doing an act is obviously negligent, the 
 fact that others performed it in the same way is irrelevant; but 
 if the manner of performance does not on its face show negli- 
 gence, the fact that others performed it in the same manner, and 
 that this was the usual method, is competent as tending to show 
 proper care was exercised on the particular occasion.'^ 
 
 § 42. Negligence — Sparks from Locomotives. When a fire 
 is alleged to have originated from sparks thrown out by a loco- 
 motive, the plaintiff must prove not only the emission of sparks 
 which caused the fire, but also negligence in the construction or 
 management of the engine. Owing to the difficulty in securing 
 direct proof of such matters, any evidence from which negligence 
 may be inferred will be admitted and is sufficient to throw the 
 burden of proof on the other side.'* 
 
 If the fire is alleged to have been caused by sparks from' a par- 
 ticular locomotive or from one of two particular ones,'° proof 
 must be confined to such engine or engines and evidence of de- 
 fective spark arresters on other engines generally is admissible." 
 This rule applies even though identification can be established 
 
 "'Abel V. Northampton Traction '^Baiti^^ore & Ohio Railroad v. 
 
 Co., 212 Pa. 329. Colvin, 118 Pa. 230. 
 
 ^"Williams v. Railway, 50 Super. 'sCj-amer v. Aluminum Co., 239 
 
 473. Pa. 120. 
 
 '"Barre v. Reading Railway, 155 '^Henderson v. Phila. & Reading 
 
 Pa. 170; Lederman v. Penna. Rail- Railroad, 144 Pa. 461. 
 
 road, i6s Pa. 118. ''^Albert v. Railway, 98 Pa. 316: 
 
 '^Aiken v. Penna, Railroad, 130 '^Erie Railroad v. Decker, 78 Pa. 
 
 Pa. 380. 293; Henderson v. Phila. & Read- 
 
52 PENNSYLVANIA TRIAL EVIDENCE. 
 
 only as the engine which pulled a particular train, and evidence 
 that an engine which pulled that train had for two weeks previ- 
 ously emitted sparks and caused small fires, is inadmissible in ab- 
 sence of proof that it was the identical engine which caused the 
 fire in question.'^ 
 
 When it is impossible to identify the particular engine which 
 caused the fire, evidence that the defendant's engines generally, 
 or many of them, emitted sparks at or near the time when the 
 fire started, is evidence from which the jury may infer that the 
 fire started from this cause.'^ 
 
 § 43. Res Gestae of Principal Transaction. If the evidence 
 of another crime tends to show that it was committed at the same 
 time and place as the act in question and under circumstances 
 which indicate that it was done by the same person and was a 
 part of the same transaction, it becomes admissible on the prin- 
 ciple that it is part of the res gestae, notwithstanding it proves 
 a distinct and separate crime.'" 
 
 § 44. System. When several acts of the same person are 
 connected and form part of a series of similar occurrences which, 
 as a whole, tend to support the conclusion that the person who 
 committed one must have committed the others, one is evidence 
 to show the character of the other.*" Thus, where oil was taken 
 from a pipe line by means of a temporary pipe which could be 
 attached and removed at pleasure, evidence that oil had been so 
 
 ing Railroad, 144 Pa. 461 ; Shelly Pa. 341 ; Lehigh Val. Railroad v. 
 
 V. Phila. & Reading Railroad, 2H McKeen, 90 Pa. 122; is admis- 
 
 Pa. 160. sible. But not evidence of the 
 
 '^Shelly V. Phila. & Reading Rail- emission of sparks at a period 
 
 road, 211 Pa. 160. of from two to six months prior 
 
 '^Henderson v. Phila. & Reading thereto: Henderson v. Phila. & 
 
 Railroad, 144 Pa. 461. Such proof Reading Railroad, 144 Pa. 461. The 
 
 necessarily requires a reasonable fact that sparks from a locomotive 
 
 latitude, because if confined to the set fire to the grass a half mile dis- 
 
 exact time and place of the occur- tant from a barn along the side 
 
 rence, its very purpose would be of the track, is evidence that a fire 
 
 defeated: Henderson v. Railroad, in the barn at the same time was 
 
 144 Pa. 461. Thus evidence of due to the same cause: Phila. & 
 
 other fires caused three days later Reading Railroad v. Hendrickson, 
 
 and nineteen miles from the place 80 Pa. 182. 
 
 where the particular fire in question '"Brown v. Com., 76 Pa. 319. 
 
 started: Penna. Railroad v. Stran- See §§294-301 for further applica- 
 
 ahan, 79 Pa. 405 ; or within a few tions of the res gestae rule, 
 
 weeks prior to the fire: Phila. & 8"Swan v. Com., 104 Pa. 218. 
 Reading Railroad v. Schulz, 03 
 
ADMISSIBILITY IN GENEEAI, — RELEVAlSfCY. 53 
 
 taken at other times is competent to show the character of the 
 act.*^ And it may be shown that a minor who secured goods 
 under false representations that he was of age, had secured goods 
 from other persons in the same manner, as part of a general 
 system of f raud.^^ Likewise in a prosecution for obtaining money 
 by force, it may be shown that defendant belonged to a certain 
 secret society, the object of which was to obtain money from 
 people by threats of injury.*^ 
 
 § 45. Value — Personalty — Value at Different Place or Time. 
 If the value of personal property at a certain time and place is 
 in issue evidence of its value at another place is inadmissible un- 
 less the only criterion for fixing value is that of a distant market, 
 in which case evidence of the value of the goods at such place 
 will be received, from which must be deducted the cost of de- 
 livery and expense of putting the goods on the market in order to 
 ascertain the value at the place where they are located.^* This 
 rule does not apply where the article has an established value at 
 the place where located,*' or where the cost of delivery to the 
 distant market does not form a fair basis for computing the dif- 
 ference in the value between the two places. Thus the value of 
 logs delivered at a boom is not a test of their value where cut, 
 though the cost of delivery is deducted, if it appears the risk and 
 danger of driving the logs to the boom is great.'^ 
 
 The value of goods destroyed by fire may be shown by a prop- 
 erly proved inventory made within a reasonable time prior 
 thereto.*' 
 
 § 46. Value — Eealty — Value of Other Property in Neighbor- 
 hood. In proving the value of land, the proper criterion is its 
 market value based on the general selling price of land in the 
 neighborhood."* But evidence of the price paid for particular 
 
 *^Com. V. Dingman, 26 Super. Lumbermen's Exch. v. Ins. Co., 183 
 
 615. Pa. 366. 
 
 s^NeflF V. Landis, no Pa. 204. ssgast Penna. Railroad v. Heis- 
 
 s^Com. V. CampoUa, 28 Super, ter, 40 Pa. 53; Penna. Railroad v. 
 
 379. Bunnell, 81 Pa. 414; Pittsburgh, 
 
 8*Hazleton Coal Co. v. Coal Co., etc., Railway v. Patterson, 107 Pa. 
 
 S7 Pa. 301. 461 ; Pittsburgh, etc., Railroad v. 
 
 s^Coxe V. England, 65 Pa. 212. Vance, 115 Pa. 325; Com. v. Haz- 
 
 s^Fessler v. Love, 48 Pa. 407. lett, 14 Super. 352; Gorgas v. Rail- 
 
 87 Allegheny Ins. Co. v. O'Han- road, 215 Pa. 501. See §§ 327-330 
 
 Ion, I Walk, 359; Crawford v. for competency of opinions of 
 
 Shriver, 139 Pa. 239; West Branch value of realty. 
 
54 PENNSYLVANIA TRIAL EVIDENCE. 
 
 pieces of land in the vicinity is not competent evidence of value, 
 even on cross examination,*" since such price may not represent 
 the intrinsic worth of the land or the general public estimate 
 which is the criterion of value, but may have been paid as the 
 result of fancy or caprice of the purchaser, and to admit the evi- 
 dence would necessitate the admission of evidence in rebuttal con- 
 cerning such particular tracts in order to determine whether or 
 not the price received fairly represented the value of the prop- 
 erty, thus introducing as many collateral issues as there are tracts 
 in evidence."" But a witness may be asked on cross examination 
 as to whether he knows of particular sales and the prices at 
 which other properties are held by the owners, for the purpose 
 of testing his knowledge and credibility,"^ and if his opinion is 
 based on knowledge derived in this manner, it may be shown that 
 the sales were made under special circumstances, and that the 
 prices were greatly in excess of the market value. "^ 
 
 In determining valuation for the purpose of assessment, the 
 court will consider the uniform standard of valuation of general 
 application throughout the county, and not the valuation of a few 
 particular tracts which may happen to be assessed below the uni- 
 form standard."^ 
 
 § 47. Services — Cost of Similar Services. In absence of ex- 
 press contract as to the amount of compensation to be paid for 
 particular services, there is usually an implied contract that the 
 party performing the services will be paid what they are reason- 
 ably worth, which is measured by the charge made for Hke serv- 
 ices by others in the same line of business, trade or occupation, 
 and evidence of the amount paid others for such services is ad- 
 missible."* This rule does not apply, however, where the inquiry 
 is concerning the value of professional services, since such value 
 would depend upon the professional ability and standing of the 
 person, and what would be a reasonable fee for one might be 
 
 s^Roberts v. Phila., 239 Pa. 339; 252; Henkel v. Railroad, 213 Pa. 
 
 Rea V. Railroad, 229 Pa. 106. 485; Gorgas v. Railroad, 215 Pa. 
 
 ^''East Penna. Railroad v. Heis- 501. 
 
 ter, 40 Pa. 53; Penna. Railroad v. "^Henkel v. Railroad, 213 Pa. 
 
 Bunnell, 81 Pa. 414; Pittsburgl], 485. 
 
 etc., Railroad v. Vance, 115 Pa. ssMineral Railroad v. County 
 
 325 ; Com. V. Hazlett, 14 Super. Commissioners, 229 Pa. 457. 
 
 352 ; Rea v. Railroad, 229 Pa. 106 ; "^Holman v. Fessler, 7 W. &. S. 
 
 Roberts v. Phila., 239 Pa. 339. 313. 
 
 •iBecker v. Railroad, 177 Pa. 
 
ADMISSIBII^ITY IN GENgRAI, — RELEVANCY. 55 
 
 wholly inadequate for another.'"^ But an attorney who testifies 
 as a witness as to the value of the services of another attorney, 
 may be asked on cross examination concerning the usual charge 
 for similar services. ^^ 
 
 § 48. Subsequent Conduct. Whenever the question is 
 whether an act was done by a certain person, or as to his inten- 
 tion or understanding in doing it, his subsequent acts, conduct 
 or statements apparently influenced by the doing of the act, or 
 which tend to show his intention or understanding in doing it, 
 are relevant. Under this rule, the making of valuable improve- 
 ments by the vendee after purchasing realty is evidence that the 
 transaction was bona fide and not intended as a fraud on credi- 
 tors,^' and acts by the vendor of personalty, inconsistent with a 
 change of ownership, are competent evidence of fraud. ^^ 
 
 On the same principle subsequent acts of the owner of a 
 structure in selling and mortgaging it as two separate buildings, 
 are admissible to show his original intention was to construct it 
 as two separate buildings f^ and expenditure of public money on 
 a street is evidence of acceptance of dedication. ^'"' Unexplained 
 possession of stolen goods,^ or possession of property taken from 
 a murdered person,^ is strong evidence that the possessor com- 
 mitted the crime. And declarations made in the presence of the 
 defendant showing he had knowledge of a secret criminal organi- 
 zation alleged to be responsible for the crime, are admissible on 
 the trial of an indictment as accessory before the fact;^ but if 
 they merely show knowledge after the fact they are inadmissible 
 on trial of an indictment as principal.* 
 
 If the terms of a writing are ambiguous, subsequent conduct 
 of the parties tending to show what construction they mutually 
 
 95piayford V. Hutchinson, 135 401; nor is sending a second notice 
 
 Pa. 426; Heblich v. Slater, 217 Pa. different from the first, an admis- 
 
 404. sion that the first was insufficient : 
 
 s^Thompson v. Boyle, 85 Pa. 477. Shuman v. Ins. Co., 206 Pa. 417. 
 
 "'Stewart v. Fenner, 81 Pa. 177. ^^Munger v. Silsdee, 64 Pa. 454. 
 
 98White V. Gunn, 205 Pa. 229; ""Dubois Cem. Co. v. Griffin, 
 
 Reyer v. Rice, 36 Super. 1,78. But 165 Pa. 81. 
 
 the mere fact that shortly before iPenna, v. Myers, Add. 320 ; 
 
 trial defendant confessed judgment Brown v. Com., 76 Pa. 319. 
 
 to relatives whom he owed money ^w^iujajjis v. Com., 29 Pa. 102. 
 
 is not evidence of an admission of ^Duffy v. Com., 6 W. N. C. 311. 
 
 liability: Leckey v. Bloser, 24 Pa. *Com. v. Clark, 130 Pa. 641. 
 
S6 PENNSYLVANIA TRIAL EVIDENCE. 
 
 put upon it, is admissible,'^ and a subsequent deed will be received 
 to explain the construction which the parties placed upon a prior 
 deed of the same property." But subsequent declarations of a 
 grantor are inadmissible to invalidate his own deed.' 
 
 False representations made subsequent to a transaction and at 
 a time when their falsity must have been known to the person 
 making them, are evidence of bad faith from the beginning.* 
 And an inventory made one week after a deposit and within 
 thirty days after the closing of a bank, is evidence that the de- 
 posit was received with knowledge of insolvency." 
 
 § 49. Flight — Escape from Custody — Eesisting Arrest. The 
 fact that a person suspected or charged with crime flees to avoid 
 arrest,^" or resists arrest,^'- or uses violence in attempting to es- 
 cape or attempts to bribe the officer arresting him to permit him 
 to escape,^- may be considered by the jury as evidence of con- 
 sciousness of guilt, the inference being that a person wrongfully 
 accused will rely on his consciousness of innocence while a guilty . 
 person will resort to flight or violence to escape punishment. 
 While such evidence does not raise a presumption of guilt^^ and 
 is not in itself sufficient to convict, yet it may have weight in con- 
 nection with other evidence, and if resistance be violent, may 
 even be evidence of malice;" and while it does not indicate the 
 degree of murder, it may tend to strengthen other circumstances 
 in the case and thus aid in determining the degree.^" 
 
 The fact that such evidence tends to prove the commission of 
 another crime is not sufficient reason for rejecting it.^* 
 
 § 50. Precautions or Repairs After Accident. While proof of 
 precautions taken or repairs made after an accident was fre- 
 quently admitted in the earlier cases as evidence of negligence, 
 these decisions were finally overruled and a contrary rule estab- 
 
 sHogg V. Bailey, S Super. 426; 501; Com. v. Boschino, 176 Pa. 
 
 Pratt V. Campbell, 24 Pa. 184; 103. 
 
 Lummis v. Devine, 9 Super. 349; "Com. v. McManiman, 27 Super. 
 
 Wright V. Gas Co., 2 Super. 219. 304. 
 
 «Ringrose v. Ringrose, 170 Pa. ==Com. v. Wyoda, 44 Super. 552. 
 
 ■^•53. I'Com. V. Wyoda, 44 Super. 552. 
 
 'See §§ 23, 91. i«Com. \, McManiman, 27 Super. 
 
 sCummings v. Cummings, 5 W. 304; Com. v. Wyoda, 44 Super. 
 
 & S. 553- ^ 552. 
 
 "Com. V. Smith, 4 Super, i. 'i>Lanahan v. Com., 84 Pa. 80. 
 
 i»Com. V. McMahon, 14s Pa. "Com. v. Biddle, 200 Pa. 647. 
 
 413; Com. V. Salyardis, 158 Pa. 
 
ADMISSIBIUTY IN GENERAL — RELEVANCY. 57 
 
 lished, the sourt saying : "The time has coniQ when we should dis- 
 tinctly say that we do not approve the rule, and that the cases 
 which may be considered as announcing and sustaining it 
 are to that extent overruled. The admission of such testimony 
 cannot be defended on principle. It is not more likely to show 
 that there was negligence before the accident than that the occur- 
 rence of the accident first suggested the use of methods or appli- 
 ances not before thought of ; it applies to conduct before an acci- 
 dent a standard of duty determined by after achieved knowledge ; 
 it punishes a prudent and well-meaning defendant who guards 
 against the recurrence of an accident he had no reason to antici- 
 pate, or who, out of a considerate regard for the safety of others, 
 exercises a higher degree of care than the law requires."" 
 
 The above rule does not exclude evidence of subsequent acts 
 of repair or construction when offered for the purpose of prov- 
 ing dominion or control,^^ or to affect the credibility of wit- 
 nesses, '^ or to contradict evidence of the opposing party. ^^ 
 
 § 51. Suppression or Manufacture of Evidence. Evidence of 
 misconduct of a party in connection with the trial of his case, 
 such as concealing or withholding evidence which he ought to 
 
 I'Per Fell, C. J., in Baran v. formula of medical compound for 
 Iron Co., 202 Pa. 274. It was ac- animals after death of a horse al- 
 cordingly held in this case that leged to have been due to use of 
 after a boiler explosion, evidence the compound : Young v. Park, 45 
 that a new one was supported in a Super. 29; discharge of an em- 
 different manner and that different ployee after an accident alleged to 
 instructions as to is subsequent use have been due to his negligence: 
 and care were given employees, Buchanan v. Finn, 51 Super. 145. 
 was properly rejected. The rule ^^Baran v. Iron Co., 202 Pa. 274. 
 excluding evidence of subsequent i^The fact that an automobile 
 precautions has also been applied owner discharged his chauffeur 
 under the following circumstances : after an accident, is competent as 
 Use of a different method for affecting the credibility of the em- 
 fastening a plate or covering over ployer who testified the chaffeur 
 a gutter : Elias v. Lancaster, 203 was not to blame : Buchanan v. 
 Pa. 638; repair of a culvert after Finn, 51 Super. 145. 
 an accident : Fisher v. Railroad, ^o^j^gre the defendant gave evi- 
 182 Pa. 457 ; removal of obstruc- dence of the existence of a safety 
 tions which plaintiff alleged caused gate at another crossing as bearing 
 the overflow of a stream : Matte- on the question of permissive cross- 
 son V. Railroad, 218 Pa. 527; erec- ing at the place of accident, plain- 
 tion of safety gates at a crossing tiff may show there were no gates 
 after an accident : Metzler v. Rail- at such other crossing at the time 
 road, 28 Super. 180; change of of the accident: Metzler v. Rail- 
 
58 
 
 PENNSYLVANIA TRIAL HVIDIiNCE. 
 
 produce/^ attempting tc influence jurors/^ or witnesses, ^^ falsi- 
 fication of accounts,^* tlie manufacture of testimony/^ or any 
 other improper acts affecting the prosecution of his claim, is ad- 
 missible as tending to show that he is unwilling to rely on the 
 truth of his cause or is conscious that it is an unjust one, and may 
 be made the basis of a presumption by the jury that the truth 
 would operate against him.^" This principle is not confined to 
 non-production of documentary proof in possession or under 
 control of the party, but also applies to the non-production of 
 witnesses who are presumably best informed on the subject mat- 
 ter, especially if the relations of such witnesses to the party are 
 
 road, 28 Super. 180; and where de- 
 fendant gave evidence that since 
 certain tracks were raised it was 
 not necessary or customary to re- 
 move cars from them at times of 
 flood, plaintiff may show the cars 
 had, in fact been moved whenever 
 there was apparent necessity due to 
 rise of water :' Cummings v. Rail- 
 road, 40 Super. 212. 
 
 -iCom. V. Marion, 232 Pa. 413. 
 Such action may properly be at- 
 tributed to his supposed knowledge 
 that the truth would operate against 
 him, and therefore gives rise to a 
 presumption unfavorable to him : 
 McHugh V. McHugh, 186 Pa. 197. 
 But failure of the commonwealth 
 to produce, on a murder trial, 
 promissory notes found in a drawer 
 where the deceased kept his money 
 which was stolen, is not a suppres- 
 sion of evidence, though they 
 should be produced : McCabe v. 
 Com., 8 Atl. 45. See § 390. 
 
 -^Com. V. Brown, 23 Super. 470; 
 McHugh V. McHugh, 186 Pa. 197. 
 
 ^^Helsop V. Helsop, 82 Pa. 537; 
 McHugh V. McHugh, 18 Pa. 197; 
 Power V. Grogan, 232 Pa. 387. But 
 evidence is incompetent of threats 
 made against a witness by a third 
 person not connected with a party 
 to the cause : Thomas v. Miller, 
 
 151 Pa. 482. And where a convey- 
 ance from a husband to his wife is 
 alleged to be fraudulent, the fact 
 that in a former proceeding con- 
 cerning the same land, the husband 
 h^d bribed a witness, is admissible 
 against him but not against the 
 wife: Tripner v. Abrahams, 47 
 Pa. 220. 
 
 2<Cathcart v. Com., 37 Pa. 108. 
 
 ^''In an indictment for rape, the 
 fact that the defendant offered to 
 have the woman examined by a 
 physician, which was opposed by 
 the prosecutor, is inadmissible in 
 his own favor : Com. v. Allen, 135 
 Pa. 483. 
 
 soMcHugh v. McHugh, 186 Pa. 
 197; Iddings v. Gas Co., 8 Super. 
 244. One who has exclusive con- 
 trol of the subject matter of a con- 
 troversy, is never safe in refusing 
 the opposite side an opportunity for 
 examining it, unless he can give 
 p. satisfactory reason for such re- 
 fusal. Thus, in an action on a 
 liuilding contract, the refusal of 
 plaintiff to allow an inspection of 
 the house for the purpose of en- 
 abling such person to /testify as to 
 the character of work, is admissible 
 as evidence of suppression of testi- 
 mony: Bryant v. Stilwell, 24 Pa. 
 314- See also § 390. 
 
ADMISSIBILITY IN GUNURAI^ — RH;i,e;vANCY. 
 
 59 
 
 friendly and their bias, if any, would be in his favor.^' The 
 failure of a party himself to appear at the trial of a case, where 
 he had a strong motive to appear, is also evidence against him.^* 
 
 While the tesimony on behalf of a party who has been guilty 
 of misconduct in connection with the trial of the case should be 
 carefully scrutinized, the court is not warranted in charging the 
 jury that they may presume his case is not well found.ed, as 
 such instruction would permit them to disregard the testimony 
 in his favor and rest their verdict entirely on a presumption aris- 
 ing from his misconduct.^" A mere failure to establish an alibi 
 in a criminal case does not raise an inference that it was manu- 
 factured, nor is failure to prove a particular point in the de- 
 fense evidence of an attempt to corrupt witnesses.^" But it is 
 not error to charge that if the jury finds the defense of an alibi 
 was false and manufactured, they might consider such fact as 
 having some weight against defendant.''^ 
 
 § 52. Title. All facts which tend to show a person had title 
 to property or was in possession or claimed the right of pos- 
 session, or show the character of his possession,'^ and also facts 
 
 2'Ginder v. Bachman, 8 Super. 
 405. In a prosecution for seduc- 
 tion, the failure ot the common- 
 wealth to call as a witness one 
 shown to have been present, and to 
 have heard alleged offers by de- 
 fendant to marry the person se- 
 duced, is evidence tending to show 
 that his testimony would have been 
 unfavorable to the commonwealth: 
 Rice v. Com., 102 Pa. 408. The 
 same rule applies where plaintiff 
 fails to produce a brother who was 
 present when a conversation took 
 place: Wieder v. Miller, 52 Super. 
 198. 
 28Brown v. Shock, ^^ Pa. AIT- 
 29Heslop V. Heslop, 82 Pa. S37- 
 soTurner v. Com. 86 Pa. 54. 
 3iCom. V. McMahon, 145 Pa. 
 413; Pilger V. Com., 112 Pa. 220. 
 
 32Union Canal Co. v. Loyd, 4 W. 
 & S. 393. A subscriptioh book of 
 money donated to a wife : Mc- 
 Devitt V. Vial, 11 Atl. 645 ; or evi- 
 dence that she had a separate in- 
 
 come : Gillespie v. Miller, 37 Pa. 
 247, is evidence that the property 
 in question was paid for with her 
 money. The receipt of insurance 
 money from loss by fire is evi- 
 dence of title : Grier v. Sampson, 
 27 Pa. 183 ; Albert v. Northern Cen- 
 tial Railroad, 98 Pa. 316; and the 
 record of proceedings in another 
 state by which it appears plaintiff 
 had a good equitable title to prop- 
 erty in question, is admissible 
 though such proceedings did not 
 begin until after the dispute arose : 
 Coursin v. Ins. Co., 46 Pa. 323. 
 Payment of purchase money by the 
 grantee in a missing deed in a 
 chain of title, is competent to show 
 he had thus acquired an equitable 
 title : McDonald v. Adams, 7 W. 
 & S. 371; and a wife who claims 
 property standing in the name of 
 her husband as a gift from her fa- 
 ther to her, may show that the hus- 
 band did not pay any consideration 
 and that plaintiff bought with no- 
 
6o 
 
 PENNSVIvVANIA TRIAL EVIDENCE. 
 
 inconsistent with his title or claim of title'^ are admissible. 
 
 Possession of personal property is prima facia evidence of 
 title,'" and the fact that the purchaser made valuable improve- 
 ments on land may be shown as evidence of his good faith in 
 making the purchase.''^ 
 
 While assessment books and tax receipts are not proof of 
 title,^"- yet they are evidence of claim of title and the extent 
 thereof, and may be the basis of an inference that the property 
 was owned by the person in whose name it was assessed.^' 
 
 § 53. Whole of Transaction. The true meaning and effect of 
 a transaction cannot be obtained from a consideration of only a 
 part of it. Therefore, when a witness testifies to a part of a con- 
 versation, the opposite party may insist on the whole of it being 
 given,^* even though such evidence would otherwise be inad- 
 
 tice of her claim : Myers v. Leas, 
 loi Pa. 172. But the fact that after 
 the framing of an issue in inter- 
 pleader the goods in question were 
 sold as belonging to the plaintiff 
 in the interpleader and bought by 
 defendant, is inadmissible on be- 
 half of plaintiff ; nor is the fact 
 that the witness took possession of 
 the property after execution and 
 paid the sheriff for it, admissible to 
 support the sheriff's claim of title 
 at the time of the levy : Henry v. 
 Com., 107 Pa. 361. 
 
 ^^Acts of ownership by a donor 
 after the alleged gift: Eckert v. 
 Eckert, 3 P. & W. 332; seizure of 
 property in execution : Warner v. 
 Scott, 39 Pa. 274; or leaving it in 
 possession of another for a long 
 time, accompanied by declarations 
 that claimant had sold it to such 
 person, and by proof that he had 
 not returned it for taxation : Van 
 Kirk V. Clarke, 16 S. & R. 286, 
 are competsnt as acts inconsist- 
 ent with claim of ownership. But 
 in an action on a note, evidence 
 is inadmissible that though the 
 plaintiff frequently spoke of claims 
 against different people, he had 
 
 never alluded to this one; that he 
 had a habit of endeavoring to en- 
 force unjust claims; and that he 
 had not returned the note for tax- 
 ation, it appearing he had made no 
 return of any of his property: 
 Young v. Doherty, 183 Pa. 179. 
 
 3*Tremont Coal Co. v. Manly, 60 
 Pa. 384; Phila. Trust Co. v. Rail- 
 road, 160 Pa. 590. 
 
 ssBoggs V. Varner, 6 W. & S. 469. 
 
 3«Quinn v. Brady, 8 W. & S. 139. 
 
 3'Van Kirk v. Clarke, 16 S. & 
 R. 286 ; Hockenbury v. Snyder, 2 
 W. & S. 240; Irwin v. Patchen, 164 
 Pa. SI. Where a husband claims 
 that property seized in execution 
 belonged to his wife, the fact that 
 il was assessed in his name is rele- 
 vant: Miller v. Baker, 160 Pa. 172. 
 An assessment is evidence of the 
 fact and extent of a claim by ad- 
 verse possession : Hockenbury v. 
 Snyder, 2 W. & S. 240. Assess- 
 ment books are also competent to 
 show continuity of claim during 
 intervals not covered by paper 
 title : Sailor v, Hertzogg, 10 Pa. 296. 
 
 ■'"Over V. Blackstone, 8 W. & S. 
 ;i ; West Branch Bank v. Donald- 
 son, 6 Pa. 179; Walsh v. Potter- 
 
ADMISSIBILITY IN GENERAL — RELEVANCY. 
 
 6l 
 
 missible.^^ And although the witnes's did not hear all the con- 
 versation relating to a transaction, the part which he did hear is 
 admissible if complete in itself.*" 
 
 A writing offered in evidence must be offered as a whole,*^ and 
 if it requires explanation, the burden is on the party offering 
 it to supply such explanation.*^ When a letter is offered, a series 
 of letters dealing with the same subject matter in controversy 
 becomes competent,*" though written before or after the com- 
 mencement of the suit.** But if only one of the letters in a series 
 relates to the matter in dispute, it is not error to admit it without 
 production of the others.*" 
 
 If only certain parts of a book have been offered in evidence 
 and the opposite side does not offer the rest, it is proper to direct 
 the jury to confine their attention to such parts as have been 
 offered.** 
 
 field, 87 Pa. 376. In an action for 
 slander, all the words spoken are 
 admissible to explain and show the 
 animus of the defendant, though 
 such words are not actionable per 
 se : Klumph v. Dunn, 66 Pa. 141 ; 
 Walter v. Erdman, 4 Super. 348. 
 See § 294 for res gestae rule. For 
 further illustration of the rule re- 
 quiring the whole transaction to be 
 shown see §§ 59, 132, 284; and see 
 note 41, this section, and cross ref- 
 erences. 
 
 s'Where a part of the conversa- 
 tion of a grantor is put in evidence 
 by one who claims through him, 
 the whole is admissible, though the 
 statements were made after the 
 grantor parted with title : Postens 
 V Postens, 3 W. & S. 127. And 
 where a witness for the plaintiff 
 states that he had an interview with 
 defendant and gives part of it, the 
 latter is entitled to a full state- 
 ment of what took place although 
 the plaintiff was not present and 
 the transaction was post litem 
 motam : Hamsher v. Kline, 57 
 Pa. 397. 
 
 *"Com. v. Taylor, 129 Pa. 534. 
 
 *iWallace v. Dorris, 218 Pa. 534. 
 This rule applies to the whole of 
 
 docket entries where a part alone 
 may tend to prejudice the jury: 
 Humphreys v. Kelly, 4 Rawle 305 ; 
 10 all other entries in a book which 
 may throw light on certain entries 
 which are disputed : Young v. 
 Com., 28 Pa. 501 ; to the record of 
 a mortgage offered in evidence, 
 showing a receipt and satisfaction 
 entered on the margin : Gary v. 
 Gary, 189 Pa. 65; and to a policy 
 of insurance and application there- 
 for, where the former refers to the 
 latter as a part of it: Lycoming 
 Mut. Ins. Go. V. Sailor, 67 Pa. 108; 
 American Underw. Ass'n v. George, 
 97 Pa. 238. See also whole of 
 book entries, § 108; whole confes- 
 sion, § 132; whole deposition, §, 
 178; whole record, §§ 238, 252; 
 whole of dying declarations, § 284; 
 whole of prior testimony, § 313; 
 parol evidence to show whole trans- 
 action, § 363. 
 
 "Gary v. Gary, 189 Pa. 65. 
 
 "Brady v. Galhoun, i P. & W. 
 140; Derrickson v. Gady, 7 Pa. 27. 
 
 ^•iHoller V. Weiner, 15 Pa. 242. 
 
 ■"^Baker v. Hagey, 177 Pa. 128. 
 
 ■•^Manchester Boro. v. Reserve 
 Twp., 4 Pa. 35- 
 
62 PENNSYLVANIA TRIAL EVIDENCE. 
 
 CHAPTER II. 
 
 ADMISSIONS. 
 A. GENERAL PRINCIPLES. 
 
 54. Admissibility in general. 
 
 55. Estoppel by admissions. 
 
 56. Proof of admissions, 
 
 57. Time of making admissions. 
 
 58. Weight as evidence. 
 
 59. Whole of admission. 
 
 B. FORM AND MANNER OE MAKING ADMISSIONS. 
 
 60. Generally. 
 
 6i. Acts and declarations. 
 
 62. Book entries and accounts. 
 
 63. Compromise. 
 
 64. Endorsements on notes or bonds. 
 
 65. Judicial proceedings — Generally — Pleadings and Testimony. 
 
 66. Affidavit of defense. 
 
 67. Agreements for purpose of evidence. 
 
 68. Case stated. 
 
 69. Confession of judgment — Effect of. 
 
 70. Omissions. 
 
 71. Opinions. 
 
 72. Payment on account. 
 
 73. Recitals in writings. 
 
 74. Silence. 
 
 C. WHO MAY MAKE ADMISSIONS. 
 
 75. General rule. 
 Agents. 
 
 76. Declarations in course of employment. 
 "JT. Proof of agency. 
 
 78. Attorneys. 
 
 79. Devisees and legatees. 
 
 80. Executors, trustees, and guardians. 
 
 81. Husband and wife. 
 
 82. Joint tenants and tenants in common. 
 Officers of corporations. 
 
 83. Municipal corporations. 
 
 84. Private corporations. 
 
 85. Parties in interest. 
 Partners. 
 
 86. Competency of admissions of one against others. 
 
 87. Proof of existence of partnership. 
 
 88. Pfedecessors in title. 
 
ADMISSIONS. 63 
 
 8g. * Choses in action. 
 
 90. Personalty. 
 
 91. Realty. 
 
 92. Principal and surety. 
 
 A. GENERAL PRINCIPLES. 
 
 § 54. Admissibility in General. Voluntary acts and declara- 
 tions of a party to a cause, whenever done or made, are compe- 
 tent evidence against him, it being reasonable to presume he would 
 not say anything against his own interest unless it be true.'^ To 
 becbme competent evidence, the admissions need not be contra- 
 dictory to any testimony given by him personally on the witness 
 stand. In this respect he occupies a different position from that 
 of one who is merely a witness in the case. The latter speaks 
 through his testimony only, and on such testimony must be based 
 all his other inconsistent statements. On the other hand, a party, 
 whether he testifies in the case or not, speaks through his plead- 
 ings and his witnesses as well as his own testimony, and the 
 whole range of facts asserted in the pleadings and proofs may 
 be used as a basis for the admission of his prior inconsistent acts 
 or declarations.^ 
 
 Admissions are equally competent whether made directly or 
 indirectly in connection with other matters.^ They are in the 
 nature of direct proof,* and not secondary to written evidence 
 relating to the same subject matter,^ nor does their competency 
 depend upon their having been made in the presence of or com- 
 municated to the other party in whose behalf they are offered.* 
 
 § 55. Estoppel by Admissions. While as a rule, proof of ad- 
 missions contrary to the contention of a party on the trial af- 
 fects only his credibility and does not prevent him from proving 
 
 ^Bassler v. Niesly, 2 S. & R. 352; ^The existence of a written part- 
 Wiley V. Christ, 4 Watts 196; Gal- nership agreement does not exclude 
 braith v. Green, 13 S. & R. 84; admission of partnership: Widdi- 
 Truly V. Seybert, 12 Pa. loi ; Wolf lield v. Widdifield, 2 Bin. 245 ; 
 V. Studebaker, 65 Pa. 459 ; Shirley Edwards v. Tracy. 62 Pa. 374 ; nor 
 V. Shirley, 59 Pa. 267; Berkley v. are admissions of title to personal 
 Maurer, 34 Super. 363. property excluded by the existence 
 
 ^Berkley v. Maurer, 34 Super, of a bill of sale : Conrad v. Far- 
 
 363. row, 5 Watts 536- 
 
 ^Harrington v. Gable, 81 Pa. 406. ^Schwartz v. Hersker, 140 Pa. 
 
 *Greenawalt v. McEnelley, 85 550; Johnston v. McCain, 14s Pa. 
 
 Pa. 352 ; Perrine v. Kohr, 20 Super. 531. 
 
64 PENNSYLVANIA TRIAL EVIDENCE. 
 
 facts to contradict such admissions, yet a party may, by acts or 
 declarations which have induced another to act in reliance on a 
 state of facts thus impliedly admitted to exist, estop himself from 
 proving a contrary state of facts. But to constitute an estoppel 
 on this ground, it must appear first, that he has made an admis- 
 sion which is clearly inconsistent with the evidence he proposes 
 to give; second, that the other party acted in reliance thereon; 
 and third, that the latter will be injured by allowing the truth of 
 the admissions to be disproved. In absence of any pne of 
 these elements, no estoppel exists, and evidence contrary to the 
 .admissions will be received.' 
 
 The mere expression of an opinion as to a fact in issue, does 
 not estop a party from subsequently proving the contrary.* 
 
 § 56. Proof of Admissions. Written admissions are, of 
 course, proved by the writing itself. If made orally, they may 
 be proved by any person who heard them, but not by another who 
 heard them from such person." The testimony will not be ex- 
 cluded merely because the witness is unable to fix accurately the 
 date of the conversation in which it was made." 
 
 § 57. Time of Making Admissions. Admissions are compe- 
 tent evidence, regardless of the time when they were made, 
 whether before or after the transaction to which they relate,^^ 
 
 'Weaver v. Lynch, 26 Pa. 449; and conceded the validity of the 
 
 Eldred v. Hazlett, 33 Pa. 307; Al- second will, is estopped from sub- 
 
 len V. Allen, 45 Pa. 468 ; Kline v. scquently contesting it : Given's Es- 
 
 McCandless, 139 Pa. 223. Adniis- tate, 232 Pa. 3. 
 
 sions of a creditor as to the amount ^Second Nat. Bank v. Wentzel, 
 
 of his claim does not estop him 151 Pa. 142. 
 
 from claiming a larger amount: "Hartley v. Weideman, 175 Pa. 
 
 Shuman's Est., 45 Super. 587; nor 309; Dreibilbis v. Esbenshade, 6 
 
 do declarations by a land owner Super. 182. 
 
 as to the extent of his claim, bar loMorris v. Clarke, 29 Super. 
 
 his vendee from making a greater 562. 
 
 claim: Swartz v. Moore, 5 S. & "Morris v._Vanderen, i Dall. 64; 
 
 R. 257 ; nor will declarations by Marshall v. Sheridan. 10 S. & R. 
 
 the maker of a note to the effect that 267 ; Galbraith v. Elder, 8 Watts 
 
 he was not defrauded, prevent him 81 ; Bowen v. DeLattre. 6 Whart. 
 
 from setting up defense of fraud: 430; Thomas v. Brady, 10 Pa. 164; 
 
 Duncan v. McCullough, 4 S. & R. Helfrich v. Stem. 17 Pa. 143; 
 
 482. But where on appeal from Blackstock v. Long, 19 Pa. 340; 
 
 the probate of a will, a second was McNair v, McLennan, 24 Pa. 384; 
 
 offered in evidence to defeat it, one Duncan v. Lawrence, 24 Pa. 154; 
 
 who took part in such proceedings Batdorff v. Bank, 6i Pa. 176. 
 
ADMISSIONS. 65 
 
 unless they are so remote in point of time as to be of no value 
 if received. '- 
 
 § 58. Weight as Evidence. Evidence of oral admissions 
 should be received with great caution and scrutiny, not only 
 because of the fact that the meaning of the party making them 
 may have been misunderstood by the witness, but also because 
 of the danger of error in repetition.*'' But when once properly 
 proved, voluntary admissions against interest are of the highest 
 kind of evidence and are entitled to great weight ;** it being fair 
 to presume that a party would not say anything against his own 
 interest unless it be true. Nor may the weight of such evidence 
 be impaired by offering independent declarations of the party 
 in his own favor, unless made in the presence of the adverse 
 party.'^ Thus admissions of the fagt of ma,rriage, being decla- 
 rations against a party's interest, are entitled to great weight,*^ 
 while on the contrary, denials of marriage, being declarations in 
 his own interest, are entitled to little weight in opposition 
 thereto.*' But if admissions of the existence of the marriage 
 relation were in fact untrue at the time, subsequent admissions, 
 as an item of proof of marriage, would be thereby greatly weak- 
 ened as evidence though not excluded altogether.*^ 
 
 § 59. Whole of Admission. Since the reason for receiving 
 proof of admissions is the probability of their truth because 
 against the interest of the party making them, only such declara- 
 tions as are against interest are within the rule. But in order to 
 discover the true meaning of this part, it is necessary to take the 
 whole of the admission together, even though part of it may con- 
 tain matter favorable to the party making it.*° However, the 
 parts which are against his interests are entitled to greater weight 
 than those in his favor,^" especially where there are circumstances 
 
 i^Nissley v. Brubaker, 192 Pa. marriage and of the legitimacy of 
 
 388. the son : Wharton's Estate, 218 
 
 i=Rehm v. Frank, 16 Super. 175; Pa. 296. 
 
 Shuman's Estate, 45 Super. 587. "Greenawalt v. McEnelley, 85 
 
 i*McfGiIl V. Ash, 7 Pa. 397; 352. 
 
 Hoffa V. Hoffa, 38 Super. 356. i^Drinkhouse's Estate, 151 Pa. 
 
 isGrove's Estate, 38 Super. 424. 294. 
 
 i«Greenawalt v. McEnelley, 85 ^''S<i ev/mdin v. Bradley, i Dall. 
 
 Pa. 352. But a bequest to a woman 240; Yearsley's Appeal, 48 Pa. 531. 
 
 named "for the support of herself See § 302. 
 
 and my son'' is not in itself suffi- -"Greenawalt v. McEnelley, 85 
 
 cient proof of the existence of Pa. 352. 
 
 5 
 
66 PENNSYLVANIA TRIAL EVIDENCE. 
 
 of improbability which render it necessary for the party to fur- 
 nish additional proof of what he asserts in avoidance of a con- 
 ceded fact,^^ and the jury may believe the admission against him- 
 self and yet refuse to credit his statement in his own interest.^^ 
 
 But it is not necessary in all cases, for a party offering an 
 admission to put in evidence all the facts and circumstances con- 
 nected with it. The admission is competent in itself, ^^ and the 
 whole pf the transaction or conversation in which it was made 
 may then be shown by the other party,-* either by direct proof 
 in rebuttal or by cross examination.^'' A conversation or writing 
 containing an admission is competent though it also contain ir- 
 relevant matter, such as an offer to compromise.^" 
 
 The party offering an admission is not bound by self-serving 
 declarations contained therein, but may introduce evidence to 
 disprove them.^' 
 
 ^iNewman v. Bradley, I Dall. 
 240; Roberts's Appeal, 126 Pa. 
 102. 
 
 ^^Newman v. Bradley, I JDall. 
 240 ; Thommon v. Kalbach, 12 S. 
 & R. 238; Roberts's Appeal, 126 
 Pa. 102. 
 
 ^^I^etters containing particular ad- 
 missions are competent evidence in 
 themselves without offering other 
 letters to which the ones intro- 
 duced are replies : Frame v. Coal 
 Co., 97 Pa. 309; and admissions 
 will not be excluded merely be- 
 cause the witness did not hear, and 
 therefore could not testify to, the 
 entire conversation, if the part 
 which he did hear is complete in 
 itself : Com. v. Taylor, 129 Pa. 
 534- 
 
 ^■'Gorden v. Preston, i Watts 
 385. The rule extends to the whole 
 of book entries where a part has 
 been offered as an admission : 
 Piper V. White, 56 Pa. 90. And 
 where one sought to be charged 
 as a partner makes admissions in 
 which he re-fers to the contents of 
 books of the firm, such books are 
 then admissible as part of his ad- 
 
 mission to show the existence of 
 the partnership : Thommon v. 
 Kalbach, 12 S. & R. 238; Frick v. 
 Barbour, 64 Pa. 120. Where it is 
 shown defendant acknowledged 
 having borrowed money, statements 
 made at the same time to the ef- 
 fect that he repaid it, are admis- 
 sible : Newman v. Bradley, i Dall. 
 240; and proof of acknowledg- 
 ment by the captain of a vessel, 
 that he occupied that position when 
 wages were earned by plaintiff, 
 may be followed by further proof 
 that he had at the same time stated 
 he had never engaged plaintiff: 
 Farrell v. McClea, i Dall. 392. 
 
 25Wolf Creek Co. v. Schultz, 71 
 Pa. 180. 
 
 ^^Arthur v. James, 28 Pa. 236; 
 Bascom v. Danville Mfg. Co., 182 
 Pa. 427. 
 
 -^One who offers an account for 
 the purpose of proving the credits 
 therein contained, may offer evi- 
 dence to disprove the debits : 
 Yearsley's Appeal, 48 Pa. 531; and 
 a portion of an affidavit of defense: 
 Warne v. Johnston, 48 Super. 98; 
 or of a notice of special matter: 
 
ADMISSIONS. 
 
 67 
 
 B. FORM AND MANNER OF MAKING ADMISSIONS. 
 
 § 60. Generally. It is immaterial in what form or manner 
 an admission is made, whether by acts or conduct or in writing 
 or by parol. The only question of competency is whether it was 
 made by a party to the suit.-" Nor does the competency of such 
 evidence depend upon its being distinct and direct. Admissions 
 which are incidental merely, and made in connection with, or 
 involved in, the admission of other facts, are as competent as 
 direct admissions. Their weight is for the jury.-"' 
 
 § 61. Acts and Declarations. Acts and declarations frequently 
 furnish the best kind of evidence that a party acknowledges the 
 existence of a matter plainly to be inferred therefrom.^" Thus, 
 declarations of the parties, their co-habitation, the birth and ac- 
 . knowledgment and parental care of children, are competent evi- 
 
 George v. Bell, 7 W. N. C. no, 
 containing an admission, may be 
 offered in evidence by the plaintiff 
 without his being thereby bound in 
 other respects or estopped from 
 contradicting it, by his own evi- 
 dence. Likewise admissions by a 
 gannishee that a certain amount is 
 due the defendant in the execution, 
 may be offered by plaintiff without 
 being bo'und by further statements 
 of a set off against the defendant 
 for such amount : Bonar & Co. v. 
 Oil Co., 47 Super. 315. But if the 
 plaintiff offers an affidavit of de- 
 fense generally without disproving 
 or offering to disprove any of its 
 averments, he is bound by it : Mc- 
 Cord V. Durant, 134 Pa. 184. 
 
 -*Bowen v. DeLattre, 6 Whart. 
 430. 
 
 2«Harrington v. Gable, 81 Pa. 
 406. 
 
 ^''In a prosecution for kidnapping 
 and conspiracy, defendant may be 
 convicted by her own conduct and 
 declarations showing knowledge of 
 the plans of the conspirators, and 
 by her acts in connection with the 
 reception, detention and release of 
 the kidnapped child: Com. v. 
 
 Boyle, 45 Super. 10. The connec- 
 tion of a person with a particular 
 business may be shown by his 
 statements from which it could be 
 reasonably inferred that he was in- 
 terested therein : Com. v. Bunnell, 
 20 Super. 51. Declarations that a 
 claim was not paid, are admissible 
 against one relying on presumption 
 of payment from lapse of time : 
 Smith v. Shoenberger, 176 Pa. 95 ; 
 and declarations that defendant 
 sued for board was not paying 
 board are admissible against plain- 
 tiff where defense is an agreement 
 to work for board : Kinert v. 
 Kapp, 50 Super. 222. Performance 
 of a marriage ceremony subsequent 
 to the birth of child and the pro- 
 curing of a special act of legisla- 
 ture legitimatizing it, are admissions 
 that the parents were not married 
 when the child was born : Com. v. 
 Stump, S3 Pa. 132. Declarations of 
 creditors to the effect that they 
 knew the debtor was insolvent at 
 the time of assigning property to 
 them, are admissible in proceed- 
 ings to have the assignment de- 
 clared fraudulent : Horine v. Luria, 
 49 Super. 171 ; and the fact that an 
 
68 
 
 PENNSYLVANIA TRIAL EVIDENCE. 
 
 dence of marriage, ^^ and acts and declarations of the owner oi 
 property are frequently offered to show the valuation which he 
 placed upon it, where he is claiming a higher value,^^ or to show 
 the boundary or extent of his claim to realty,'^ or the title by 
 which real,^* or personal,'*" property is held, or to prove a parol 
 
 executor included a certain judg- 
 ment in an inventory as part of the 
 estate, is admissible against him 
 when he subsequently claims the 
 judgment was assigned to himself: 
 Stewart's Estate, 137 Pa. 175. An 
 ordinance of a city requiring cer- 
 tain places to be guarded, is an ad- 
 mission of the necessity of such 
 guards : McNernly v. Reading, 
 150 Pa. 611. 
 
 ^^Kenyon v. Ashbridge, 35 Pa. 
 157; Drinkhouse's Estate, 151 Pa. 
 94. Endorsement by a husband on 
 a false marriage certificate: Vin- 
 cent's Appeal, 60 Pa. 228; pre- 
 senting to claimant a locket con- 
 taining a picture of her mother : 
 Torrence's Estate, 47 Super. 509; 
 or exhibition of a marriage certifi- 
 cate: Hill V. Hill, 32 Pa. Sii, is 
 evidence of acknowledgment of 
 marriage. But declarations of a 
 father that he was not married un- 
 til after birth of a child, are in- 
 admissible against the wife unless 
 made in her presence: Com. v. 
 Stump, S3 Pa. 132. In an action 
 for criminal conversation, declara- 
 tions by defendant that he knew 
 the woman was married are com- 
 petent evidence of marriage : For- 
 ney V. Hallacher, 8 S. & R. 159. 
 
 ^^East Brandywine Railroad v. 
 Ranck, 78 Pa. 454; Orr v. Gas Co., 
 2 Super. 401 ; Houston v. Railroad, 
 204 Pa. 321; West Chester Plank 
 Road Co. V. Chester County, 182 
 Pa. 40. 
 
 33Sample v. Robb, 16 Pa. 305 ; 
 Kennedy v. Lubold, 88 Pa. 246. 
 , siSwartz v. Moore, S S. & R. 
 
 257 ; Holt V, McWilliams, 21 Super. 
 137; Casciola v. Donatelli, 218 Pa. 
 624. Declarations by defendant 
 claiming by adverse possession, that 
 he held by agreement with the 
 owner of the legal title, are com- 
 petent evidence against him : Sailor 
 V. Hertzogg, 2 Pa. 182; Read v. 
 Thompson, 5 Pa. 327. Where a 
 married woman, in ejectment pro- 
 ceedings against her, used admis- 
 sions of her vendor showing an 
 equitable title in her husband, she 
 thereby adopts such admissions as 
 her own,, and they may be used 
 against her in a subsequent sale of 
 the land under execution against 
 her husband in which she claims 
 ownership : "Winter v. Walter, 37 
 Pa. 155. A purchase by plaintiff 
 in ejectment of the land in ques- 
 tion at a tax sale, is evidence to 
 sliow he had no confidence in his 
 own title: Galbraith v. Elder, 8 
 Watts 81 ; but where part of a 
 tract was claimed by adverse pos- 
 session, the fact that claimant pur- 
 chased another part of the same 
 tract from the owner is not an 
 admission of the latter's title to 
 the entire tract : Handley v. Bar- 
 rett, 176 Pa. 246; and when plain- 
 tiff claims by a paper title, his dec- 
 larations that the land belongs to 
 another are inadmissible: Irwin v. 
 Pafchen, 164 Pa. 51. 
 
 a^Snyder v, Wolfley, 8 S. & R. 
 328 ; Swab v. Miller, 9 Atl. 667. A 
 promise to pay for supplies fur- 
 nished to a ship: Lincoln v. 
 Wright, 23 Pa. 76; or the enroll- 
 ment of a vessel by a master in 
 
ADMISSIONS. 
 
 69 
 
 gift thereof.^" Declarations of the plaintiff made after a breach 
 of contract, to the effect that he was glad it was not carried out as 
 he made more money otherwise, are admissible in mitigation of 
 damages.''^ 
 
 The competency of such evidence is not affected by the death 
 of the party who made the admissions, but in such case it will be 
 received against his estate or against those claiming through him.^' 
 
 § 62. Book Entries and Accounts. Admissions contained in 
 entries made by a party in his own books are always competent 
 against him,^^ though open to explanation or correction,*" and en- 
 tries in a book to which both parties have access or of which both 
 have copies, are competent against either party as admissions of 
 the facts stated therein.*^ A shop book, though not a book of 
 original entry, is competent to prove an admission if it has been 
 shown to the debtor without objection made by him.*^ 
 
 The mutual settlement of an open account and striking of a 
 balance, is an admission by both parties that the amount agreed 
 upon is due ;*' and if a statement of account is in the handwriting 
 
 the name of himself and certain 
 others, is evidence of ownership : 
 Hall V. Ins. Co., 3 Phila. 331 ; and 
 the fact that defendant had taken 
 an affidavit that he was owner of a 
 vessel, is admissible notwithstand- 
 ing it appears he was not the owner 
 and the purposes of the affidavit 
 was to secure certain advantages 
 under the law : Lincon v. Wright, 
 23 Pa. 76. Admissions by plaintiff, 
 subsequent to taking of cattle by 
 defendant, that he was satisfied 
 with what the latter had done, are 
 competent to corroborate defend- 
 ant's claim : Shaeffer v. Sensenig, 
 182 Pa. 634; and the fact that 
 bonds were found in an envelope 
 bearing uncancelled stamps and ad- 
 dressed to a certain person is an 
 admission that they belonged to the 
 addressee : Phila. Trust Co. v. 
 Railroad, 160 Pa. 590. 
 
 '"Matthews v. Matthews, 11 
 Super. 381, ' 
 
 "Wolf v. Studebaker, 65 Pa. 
 459- 
 
 ^^Hunt's Appeal, 100 Pa. 590; 
 Miller's Appeal, 100 Pa. 568; Rob- 
 erts's Appeal, 126 Pa. 102; Hofifa 
 V,. Hoffa, 38 Super. 356; Grove's 
 Estate, 37 Super. 424. See also 
 §§ 88-91. 
 
 s^Buffington v. Turnpike Co., 3 P. 
 & W. 71; Bell's Estate, 230 Pa. 
 359. In action against the estate of 
 a deceased bookkeeper for money 
 appropriated by him, entries made 
 in his handwriting showing the 
 taking of money, are competent: 
 Roberts's Appeal, 126 Pa. 102. 
 
 ^^Young V. Com., 28 Pa. soi- 
 
 *iRuch V. Fricke, 28 Pa. 241 ; 
 Ryder v. Jacobs, 196 Pa. 386; Stit- 
 zer V. Fonder, 214 Pa. 117. 
 
 *2Darlington v. Taylor, 3 Grant 
 195; Coe V. Hutton, i S. & R. 
 398. 
 
 ^sphillips vi Tapper, 2 Pa. 323 ; 
 Johns V. Lantz, 63 Pa. 324; Mc- 
 Clelland V. West, 70 Pa. 183 ; War- 
 riner v. Mitchell, 128 Pa. 153 : 
 Peter's Estate, 20 Super. 223. 
 
70 PENNSVI^VANIA TRIAL EVIDENCE. 
 
 of a deceased person, it is admissible on behalf of a claimant 
 against his estate without showing that the account was communi- 
 cated to plaintiff."** The inventory of an administrator is also 
 evidence against him of all facts contained therein, or which may 
 be plainly inferred therefrom.''^ 
 
 § 63. Compromise. Although a person may be in the right, 
 it is often better to give up something than to undergo the trouble, 
 expense and hazard of a suit. The law favors settlements of 
 disputes and will not permit the parties' legal rights to be jeop- 
 ardized because of an unsuccessful attempt to amicably adjust 
 their differences. It is a general rule, therefore, that a declara- 
 tion of willingness*" or an offer to compromise cannot be con- 
 sidered an admission that the sum offered or any other sum is 
 due,*' nor is an offer to compromise a civil suit, though begun by 
 capias,*^ or a criminal suit on payment of costs,*" evidence of want 
 of probable cause or of malice. 
 
 Distinct admissions of fact, however, unless made expressly 
 without prejudice, will not be excluded merely because made in 
 connection with an offer to compromise, since if a party admits 
 a fact to be true, the evidence is admissible regardless of the 
 motives which may have prompted the statement.^" Nor will 
 
 **Johnston v. McCain, 145 Pa. hood to compensate them for dam- 
 
 S3I- ages sustained, is inadmissible: 
 
 ■'•■^Sager v. Lindsay, 118 Pa. 25; Vautier v. Refining Co., 231 Pa. 8. 
 
 Pullman v. Rose, 160 Pa. 47. *8gmerson v. Cochran, in Pa. 
 
 "Folk V. Schaeffer, 180 Pa. 613. 619. 
 
 *'Slocum V. Perkins, 3 S. & R. *"Gilliford v. Windel, 108 Pa. 
 
 29s; Fisher v. Ins. Co., 188 Pa. i; 142. 
 
 Green v. Bauer, 15 Super. 372; 5»Sailor v. Hertzog, 2 Pa. 182; 
 
 Burns v. Railroad, 229 Pa. 648; Thomas v. Brady, 10 Pa. 164; Ar- 
 
 Com. V. Cashman, 32 Super. 459. thur v. James, 28 Pa. 236; Robino- 
 
 The minute book of a borough witz v. Silverman, 223 Pa. 139; 
 
 showing that councils had directed Bascom v. Stove Co., 182 Pa. 427. 
 
 a committee to "investigate the An offer of settlement made by an 
 
 claim more thoroughly before set- insurance company is admissible if 
 
 tling," is not evidence of an admis- confined solely to the purpose of 
 
 sion of liability : Pirhalla v. Boro., proving a waiver by the company 
 
 47 Super. 330. And in an action of the insufficiency of proof of 
 
 for a nuisance causing injury to loss: Gould v. Ins. Co., 134 Pa. 
 
 vegetation, evidence that the de- 570, or waiver of a provision re- 
 
 tendant had annual agreements with quiring suit within a certain time: 
 
 other residents of the neighbor- Eberly v. Ins. Co., 51 Super. 474. 
 
ADMISSIONS. 71 
 
 proof of contradictory statements of a witness be excluded on 
 such grounds. ^^ 
 
 An offer to pay, as distinguished from an offer to compromise, 
 is competent as an admission. '^^ 
 
 § 64. Endorsements on Notes or Bonds. Endorsements made 
 by the payee on a note or other obligation, are admissible for the 
 purpose of tolling the statute of limitations if made before the 
 debt is barred, since they are admissions of the receipt of pay- 
 ment to that extent, and therefore declarations against the payee's 
 own interest. But if made after the statute has run, such en- 
 dorsements would be self-serving declarations and should not be 
 admitted. The burden is on the payee to prove they were made 
 before the statutory period had expired.^'* 
 
 Endorsements by a trustee on bonds in his possession are not 
 competent evidence of payments thereon as against the cestui que 
 trust. But they are admissible to show the bonds were in pos- 
 session of the trustee at the time the endorsements were made.'^* 
 
 § 65. Judicial Proceedings — Generally — Pleadings and Testi- 
 mony. A party's testimony, if voluntarily given, or statements 
 made in his pleadings or in other pa'pers filed in a judicial pro- 
 ceeding, may be used against him as an admission, not only in 
 the particular case but in any subsequent proceedings in which 
 they are relevant,'^ though the other parties are different and the 
 
 ^iRobinowitz v. Silverman, 223 defense: Bowen v. DeLattre, 6 
 
 Pa. 139- Whart. 430; Reineman v. Blair, 96 
 
 ^- Wallace v. Hussey, 63 Pa. 24 ; Pa. 655 ; Stockwell v. Loecher, 9 
 
 Swan V. Scott, 11 S. & R. I5S- Super. 241; Mellon Nat. Bank v. 
 
 ^^Addams v. Seitzinger, i W. & Bank, 226 Pa. 261 ; see § 66; bill 
 S. 243 ; Cremer's Estate, S W. & or answer in equity : Owens v. 
 S. 331; Shaffer v. Shaffer, 41 Pa. Dawson, i Watts 149; answers to 
 51; Runner's Appeal, 121 Pa. 649; interrogatories in garnishee pro- 
 Hart v. Bucher, 182 Pa. 604. ceedings : Lansdale Trust Co. v. 
 
 ^■iTritt V. Crotzer, 13 Pa. 451. Smith, ig Super. 235 ; Bonar & Co. 
 
 ssTruby v. Seybert, 12 Pa. loi ; v. Oil Co., 47 Super. 315 ; bill of 
 
 Winter v. Walter, 37 Pa. 155 ; exceptions : Ewing v. Alcorn, 40 
 
 Houseman v. Navigation Co., 214 Pa. 492; plea: McNair v. McLen- 
 
 Pa. 552; Becker v. Phila., 217 Pa. nan, 24 Pa. 384; Gay v. Waltman, 
 
 344. The rule permitting pleadings 89 Pa. 453 ; statement of claim : 
 
 and other papers filed in a case to Schupp v. Schupp, 17 W. N. C. 
 
 be offered to prove admissions con- 236; Tischler v. Coal Co., 218 Pa. 
 
 tained therein, has been applied to 82; Youghiogheney Coal Co. v. 
 
 abstract of title in ejectment: Ege Hopkins, 198 Pa. 343; Sprague v. 
 
 v. Medlar, 82 Pa. 86; Page v. Reilly, 34 Super. 332. 
 
 Simpson, 172 Pa. 288; affidavit of The record of a prior ejectment 
 
72. 
 
 PENNSYLVANIA TRIAL EVIDENCE. 
 
 prior proceedings would therefore not amount to an estoppel. ^^ 
 This rule applies to criminal as well as civil proceedings, in ab- 
 sence of statutory regulations prohibiting the use of a party's 
 testimony against him in a subsecjuent criminal proceeding.^^ 
 
 suit brought by the present defend- 
 ant in ejectment for the land in 
 dispute, is competent to show that 
 defendant then relied on the same 
 claim of title upon which the pres- 
 ent plaintiff now relies. But such 
 record is not admissible as proof 
 of plaintiff's title : Houseman v. 
 Navigation Co., 214 Pa. 552; Truby 
 V. Seybert, 12 Pa, loi. The de- 
 fendant in an action for damages 
 for breach of contract, may show 
 that in a former action against the 
 present plaintiff, the latter set off a 
 claim for damages much smaller, 
 for the same cause of action now 
 sued upon : Limbert v. Jones, 136 
 Pa. 31 ; and where in an action of 
 assumpsit defendant denies the in- 
 debtedness, the fact that in a suit 
 on the claim before a justice of the 
 peace he had pleaded a set off is 
 competent: Livingston v. Steven- 
 son, 163 Pa. 262. Likewise, a plea 
 in abatement for nonjoinder of 
 parties alleged to be partners, is 
 evidence against those who plead- 
 ed that all who were alleged to be 
 partners are so in fact: Witraer 
 v. Schlatter, 2 Rawle 359. The 
 record of a judgment confessed by 
 a statement to his landlord, is evi- 
 dence that the tenant admitted the 
 relation of landlord and tenant ex- 
 isted : Weidner v. Foster, 2 P. & 
 W. 23; and the record of a divorce 
 proceeding is evidence of an admis- 
 sion by libellant of the fact of mar- 
 riage : Torrence's Estate, 47 Super. 
 
 ""Pleadings are conclusive in 
 their nature only so far as their 
 effect is confined to the cause in 
 
 which they are filed. When used in 
 other proceedings, they are merely 
 in the nature of admissions by the 
 parties of the facts contained there- 
 in : Gibson v. Rowland, 35 Super. 
 158; and do not estop them from 
 taking different positions in the sub- 
 sequent suit : Lindsay v. Dutton, 
 227 Pa. 208 ; Com. v. Monag. Bridge 
 Co., 2x6 Pa. 108; Floyd v. Kulp 
 Lumber Co., 222 Pa. 257. 
 
 s^Com. V. Doughty, 139 Pa. 383; 
 Com. V. Ensign, 228 Pa. 400. Sec- 
 tion 860 of the United States Re- 
 vised Statutes, providing that no 
 pleading or evidence obtained from 
 a party by means of a judicial pro- 
 ceeding shall be given in evidence 
 or in any manner used against him 
 "in any court of the United States 
 in any criminal proceedings," ap- 
 plies only to criminal proceedings 
 in the federal courts. Therefore, 
 this section has no application to a 
 trial of an indictment in a state 
 court against a banker for receiving 
 deposits with knowledge of insol- 
 vency, and schedules filed by the 
 defendant in voluntary bankruptcy 
 proceedings and statements con- 
 tained in his books, are admissible 
 against him : Com. v. Ensign, 228 
 Pa. 400. It has also been held that 
 the proviso in clause 9, § 7 of 
 the Bankruptcy Act, to the effect 
 that no testimony of a bankrupt 
 shall be offered in evidence against 
 him in any criminal proceeding, ap- 
 plies only to testimony given by him 
 on his examination and not to the 
 schedules filed by him ; nor are 
 such schedules filed under such 
 compulsion as to prevent their use 
 
ADMISSIONS. 73 
 
 But it does not make the testimony of a witness produced by a 
 party evidence against him as an admission in subsequent proceed- 
 ings, since he does not, by producing a witness, admit that every- 
 thing he says is true, either in that or any other proceeding.'* 
 
 A plea of payment admits the contract as alleged.'" But the 
 addition of the pleas of payment and set-off to the plea of non- 
 assumpsit does not constitute an admission of the contract nor 
 estop the defendant from denying it,"" nor may a plea of nolo 
 contendere, being only an implied confession of guilt, be used 
 as an admission in a later suit."^ A demurrer admits all facts 
 well pleaded but not inferences, arguments, or conclusions there- 
 from,**^ nor does it admit facts not set forth in the statement of 
 claim on an appeal from a justice of the peace, although the 
 transcript shows such facts was averred before the justice. °* 
 
 If a pleading is offered for the specific purpose of showing 
 an admission, the party offering it is not bound by other allega- 
 tions contained therein, nor is the other party relieved from prov- 
 ing them."' But if the offer is general, the party making it is 
 bound by all averments."' 
 
 § 66. Judicial Proceedings — Affidavit of Defense. Failure to 
 deny in the affidavit of defense, allegations made by the plaintiff, 
 in his statement of claim, is ordinarily not an admission thereof."" 
 But it is frequently provided by rules of court that averments in 
 the statement which are not so denied shall be taken as admitted 
 on the trial. In such case all facts not expressly denied are ad- 
 mitted."^ And even objection to an erasure appearing on the 
 
 against him under the provisions of "*Page v. Simpson, 172 Pa. 288; 
 the state and federal constitutions Farmers' Bank v. Bank, 30 Super, 
 by which a person may not be com- 271 ; Mellon Natl. Bank v. Bank, 
 pelled to give evidence against him- 226 Pa. 261 ; Pittsburgh v. Rail- 
 self. Id. See § 130. road, 234 Pa. 223 ; Warne v. John- 
 ■ ^^McDermott v. Hoffman, 70 Pa. ston, 48 Super. 98. 
 31. "=McCord V. Durant, 134 Pa. 184. 
 
 '^McNair v. McLennan, 24 Pa. o^Taylor v. Beatty, 202 Pa. 120. 
 
 384. "^McGovern v. Hoesback, 53 Pa. 
 
 8»Snyder v. Rainey, 198 Pa. 3S6. 176; Bair v. Hubartt, 139 Pa. 96; 
 
 "'Com. V. Ferguson, 44 Super. Curtin v. Gas Co., 233 Pa. 397; 
 
 626. Keystone Co. v. Bromeier, 42 Super. 
 
 "-Com. V. Commissioners, 37 Pa. 384. A part of a statement denied 
 
 277; Com. V. Trimmer, 84 Pa. 65; cannot be read by plaintiff in con- 
 
 Com. V. Hazlett, 14 Super. 352. nection with a part not denied: 
 
 "sPalethorp v. Schmidt, 12 Super. Blair v. China Co., 26 Super. 374. 
 
 214. Where in an action for the price of 
 
74, 
 
 PI'NNSYLVANIA TRIAL liVIDENCE. 
 
 face of an instrument as set forth in the statement, is waived if 
 not made in the affidavit of defense.'"* Where such court rules 
 exist, the statement and affidavit of defense become part of the 
 case to be considered by the court, even though not formally 
 offered in evidence,"" and matters averred and not denied should 
 be formally noticed and the issue confined to contested mat- 
 ters.'" Therefore, if the defense is, in effect, a plea in confession 
 and avoidance, the plaintiff may make out a prima facie case by 
 offering the statement and affidavit of defense and thus throw on 
 the other party the burden of proving the matter set up in avoid- 
 ance. '^ And if a set-off is pleaded and no denial is made by 
 plaintiff in a counter affidavit as required by court rule, no fur- 
 ther proof need be given by defendant.'^ 
 
 oil the defense is a conspiracy to 
 raise the price as a result of which 
 it was advanced to eighteen cents 
 on the day of delivery, but that it 
 was worth considerably less, this 
 is not an admission that eighteen 
 cents was the fair market value of 
 the oil: Kountz v. Refining Co., 
 72 Pa. 392. A failure to deny items 
 of interest stated in an account, 
 does not preclude the defendant 
 from proving an agreement that he 
 was not to be charged with inter- 
 est, where a stipulation filed by 
 the parties provided that all claims 
 and defenses between them were 
 to be considered, notwithstanding a 
 rule of court which provided that 
 matters not denied in the affidavit 
 of defense were to be taken as ad- 
 mitted : O'Conner v. Iron Co., 56 
 Pa. 234; nor may failure to deny 
 a statement on a former trial of the 
 case be used as an admission, where 
 a supplemental affidavit of defense, 
 denying such statement, is allowed 
 to be filed just before the last trial : 
 McCrea v. Ins. Co., 46 Super. 618. 
 An affidavit cannot be offered as an 
 admission of facts stated in an 
 amended statement subsequently 
 
 filed : Moore v. Everett, 20 Super. 
 13; nor is a schedule showing a 
 statement of an account attached 
 to the plaintiff's claim admissible 
 against the defendant who has de- 
 nied the statement in his affidavit 
 of, defense. Such schedule is mere- 
 ly plaintiff's assertion of what is 
 due him : Kann v. Bennet, 223 Pa. 
 36. But if there has been no de- 
 nial the schedule is admissible : 
 Curtin v. Gas Co., 233 Pa. 397. 
 
 "^Sober v. Mooney, 48 Super. 92. 
 
 ^"In absence of rule of court, an 
 affidavit of defense is no part of 
 the pleadings or record, and if 
 plaintiff wishes to take advantage 
 of admissions contained therein, he 
 must offer it as evidence at the trial 
 for the consideration of the jury: 
 Maynard v. Bank. 98 Pa. 250 ; Mul-- 
 len V. Ins. Co., 182 Pa. 150; Phila. 
 v. Armstrong, 16 Super. 55 ; Sun- 
 day V. Dietrich, 16 Super. 640. 
 
 ""Neely v. Bair, 144 Pa. 250; 
 Whitehead v. School Dist., 145 Pa. 
 418. 
 
 '■'Neely v. Bair, 144 Pa. 250. 
 
 '^Bair v. Hubartt, 139 Pa. 96. 
 If plaintiff puts in evidence so much 
 of the statement of claim as is not 
 
ADMISSIONS. 75 
 
 Under a rule making the production of books unnecessary 
 where a copy is attached to the statement of claim and not de- 
 nied, the plaintiff cannot offer the whole statement in evidence, 
 but only the copy of the account attached thereto." 
 
 § 67. Judicial Proceedings — Agreements for Purpose of Evi- 
 dence. Admissions made by the parties during the trial of a case 
 are part of the evidence, on the effect of which the court may in- 
 struct the jury.'* Admissions by an attorney in open court are 
 considered as admissions by his client and are binding on him 
 even in a criminal case,'^ But where an admission entered on 
 the record was apparently broader than was intended by coun- 
 sel, it will not be construed to prejudice his client's case.'"' 
 
 A fact admitted between counsel in the presence of the jury 
 but before they are sworn, and not subsequently introduced in 
 evidence, will be disregarded. ''' 
 
 . § 68. Judicial Proceedings — Case Stated. In a case stated, 
 facts may be conceded for the sole purpose of reviewing a ques- 
 tion of law without intending to admit them as true, and even 
 without believing them to be true, and therefore such facts are not 
 competent evidence in a subsequent proceeding, as in the case of 
 other admissions,'*' and if the parties mutually agree to abandon a 
 case stated by pleading to the issue and going to trial, the facts 
 stated therein cannot be used against either of them.'" 
 
 § 69. Judicial Proceedings — Confession of Judgment — Effect 
 Of. A judgment entered by confession is conclusive until 
 opened, in which case the confession may be offered as an ad- 
 mission of the amount due, but not as an estoppel.*" If entered 
 by agreement merely for the purpose of security, it is not an ad- 
 mission of anything.*^ 
 
 denied, defendant may take ad- '^Hart's Appeal, 8 Pa. 32 ; Gib- 
 vantage of any admission therein son v. Rowland, 35 Super. 158. 
 without offering it in evidence as '^McLughan v. Bovard, 4 Watts 
 part of his own case: Hastings v. 308; Hatton v. Twp., 11 Del. 323. 
 Speer, 15 Super. 115. A case stated would not be com- 
 
 '■''Knowlan v. Clopp, 29 Super. petent as an admission if signed by 
 
 424. an attorney without authority from 
 
 '^NcNair v. McLennahan, 24 Pa. his client; McLughan v. Bovard, 4 
 
 384; Com. v. McMurray, 198 Pa. Watts 308. 
 
 51; Gibson v. Rowland, 35 Super. sog^rnest v. Hoskins, 100 Pa. 
 
 158. SSI- 
 
 '5Com. V. McMurray, 198 Pa. 51. s^Gorgerat v. McCarty, i Yeates 
 
 '^Nesbitt V.' Turner, iss Pa. 429. 253. 
 
 ■"Lowrie v. Verner, 3 Watts 317. 
 
76 PKNNSYIvVANIA TRIAL BVIDENCU. 
 
 Where the defense to an action on notes is that the plaintiff 
 and defendant were partners and there had been no account- 
 ing between them, a decree pro confesso in an equity suit by the 
 present defendant against the plaintiff and another person, for 
 accounting as partners, is competent as an admission of the ex- 
 istence of the partnership.^^ 
 
 § 70. Omissions. Acts of omission are often as useful as 
 acts of commission in the determination of a fact in issue, and 
 failure to act in a manner which would have been naturally 
 induced by the existence of certain facts or conditions, is strong 
 evidence of the non-existence of such facts or conditions. Thus 
 the failure to include a particular debt in an inventory or account 
 is evidence of its payment.^' And when letters covering a period 
 of years have been offered in evidence as an admission by de- 
 fendant that he was interested in a contract, the latter may then 
 offer letters by plaintiff" during a succeeding term of years and 
 containing no reference to the contract, as evidence that it was 
 abandoned.** But the mere failure, in negotiations for compro- 
 mise of a dispute, to mention the fact of the existence of a con- 
 tract of indemnity from loss is not evidence in favor of the in- 
 demnitor in an action to hold him liable thereon.*" 
 
 § 71. Opinions. Declarations of a party which are merely 
 expressions of opinion as to his legal rights and which prejudiced 
 no one, are not evidence against him as admissions*" unless they 
 also contain admissions of material facts in issue, in which case 
 they are competent evidence of such facts.*' Thus acts and 
 declarations which tend to show that a party believed he had no 
 title to certain land are inadmissible where he in fact has a deed 
 under which he claims.** 
 
 *2Barclay v. Barclay, 230 Pa. praisement nor the executors ac- 
 
 467- count mentioned the alleged debt : 
 
 ssThe fact that an assignment for Fullam v. Rose, 160 Pa. 47. 
 benefit of creditors did not include *^Brady v. Calhoun, i P. & W. 
 
 a mortgage as part of the assets, is 140. 
 
 competent evidence of payment on »-'Thomas v. Brady, 10 Pa. 164. 
 
 behalf of mortgagor in foreclosure ««Colt v. Selden, '5 Watts 525. 
 
 proceedings by an assignee for s^Statements by the plaintiflf after 
 
 creditors: Cox v. Ledward, 124 an accident, to the effect that the 
 
 435 ; and in a proceeding by an defendant was not to blame, though 
 
 executor to collect a debt alleged admissible in evidence, do not bar 
 
 to be due the estate, defendant recovery: Dennison v. Miner, 17 
 
 may show, as evidence of payment, W. N. C. 561. 
 that neither the inventory and ap- "sPauU v. Mackey, 3 Watts no. 
 
ADMISSIONS. "J"] 
 
 Nor are statements admissible whicli merely amount to an ac- 
 quiescence by a member of a beneficial society in a ruling by 
 officers of the society that he was not entitled to benefits.'" 
 
 § 72. Payment on Account. A payment on account of the 
 principal or interest of a debt against which the statute of limita- 
 tions has run, is an admission of its existence from which a new 
 promise to pay may be inferred,"" and payment of interest on a 
 bond after the accompanying mortgage has been satisfied, is com- 
 petent to show that the satisfaction of the mortgage was not in- 
 tended to cancel the bond."^ But a claim against a decedent's 
 estate is not sufficiently proved by the fact that decedent, in mak- 
 ing a payment, had stated that it was interest on a sum which an- 
 other person had borrowed from the claimant, in absence of evi- 
 dence that the decedent, at the time of his death, had in his hands 
 a definite sum due claimant on account of a transaction with such 
 other person."^ 
 
 § 73. Recitals in Writings. Recitals contained in a writing 
 to which the person against whom it is offered is a party, are 
 •competent against him as admissions of the facts therein recited,"^ 
 even though the writing is not the basis of the action.'* But they 
 are not evidence against third persons who are strangers to the 
 writing."' 
 
 The most frequent application of this rule is found in the case 
 of recitals in deeds, which may be received in evidence, not only 
 against the grantor, but against all persons claiming through or 
 under him, because such persons succeed to his title and repre- 
 sent him."" But they can have no effect against a stranger"^ or 
 
 '"Bane v. Council, 48 Super. 449. sion of liability in action on the 
 ""Wesner v. Stein, 97 Pa. 322 ; original obligation : Lea v. Hop- 
 Russell's Estate, 46 Super. 136. kins, 7 Pa. 492; and the recital of 
 "'Fleming v. Parry, 24 Pa. 47. a bond in a mortgage is proof of 
 "-Russell's Estate, 46 Super. 136. the existence of the bond : Nace's 
 "3A recital that a check was pay- Estate, 52 Super. 607. 
 ment in full, is an admission of the "*Charles v. Scott, i S. & R. 294; 
 fact by the person accepting it ; Lea v. Hopkins, 7 Pa. 492 ; Jen- 
 Knickerbocker Trust Co. V. Ryan, nings v. McComb, 112 Pa. 518. 
 227 Pa. 24s; and a recital that a sspgnrose v. Griffith, 4 Bin. 231; 
 note was given "in consideration of Dean v. Connelly, 6 Pa. 239; Tre- 
 a patent" is evidence that the pat- mont Coal Co. v. Manly, 60 Pa. 
 ent had been conveyed : Ott v. 384. 
 
 Houghton, 30 Pa. 451. A bond, "^gee §§ 88 to 91, for admissions 
 
 though void because executed on by predecessors in title generally. 
 
 Sunday, may be used as an admis- "'Jack v. Woods, 29 Pa. 375 ; 
 
78 PENNSYI^VANIA TRIAI, liVIDBNCE. 
 
 against one who claims by title derived from the grantor before 
 the deed was made, as he does not stand in the place of the 
 grantor in such deed, but claims paramount to it."* Even as be- 
 tween parties, a recital affects only the title to the land conveyed, 
 and not of other land incidentally mentioned in the deed,"" and 
 if it is not contractual but merely descriptive, it does not operate 
 As an estoppel but is open to explanation or rebuttal by parol. ^''" 
 § 74. Silence. The proverbial expression that "silence gives 
 consent'' is applied legally to one who fails to make reply to 
 statements made under circumstances which afford an oppor- 
 tunity and call for a reply or explanation from him, in which 
 case his silence will be accepted as a tacit acquiescence in the 
 statements and an admission of their truth. ^ It must be made to 
 appear, however, that the party against whom such evidence is 
 offered was interested in the subject matter of the statements,- 
 
 Muhlenberg v. Druckenmiller, 103 
 Pa. 631 ; Tate v. Clement, 176 Pa. 
 SSo; Trexler v. Africa, 42 Super. 
 S42; Olfsheskey v. Graham, 46 
 Super. 523. The same rule applies 
 to recitals in wills : Boyer v. Smith, 
 3 Watts 449; or other writings rep- 
 resenting the transfer of property. 
 A purchaser at a sheriff's sale or 
 tax sale is bound by recitals in the 
 chain of title : Strayer v. Johnson, 
 no Pa. 21; Trexler v, Africa, 42 
 Super. 542. See §§ 88 to 91. 
 
 "^Penrose v. Griffith, 4 Bin. 231; 
 Weidman v. Kohr, 4 S. & R. 174; 
 Dean v. Connelly, 6 Pa. 239. 
 
 ""Boggs V. Warner, 6 W. & S. 
 469. Recitals of title in a patent 
 for land are evidence against one 
 relying solely on possession : Whit- 
 mire V. Napier, 4 8 & F. 290. 
 
 ^''''Muhlenberg v. Druckenmiller, 
 103 Pa. 631. 
 
 iVincent v. Huff, 8 S. & R. 381 ; 
 Irish V. Smith, 8 S. & R. 573; 
 Moore v. Smith, 14 S. & R. 388; 
 McClenkan v. McMillan, 6 Pa. 366. 
 In an action against a constable for 
 
 levying on a horse of the plaintiff 
 in the hands of a debtor, the fact 
 that prior to the levy plaintiff had 
 told the debtor he intended to take 
 the horse out of his possession 
 and the latter made no denial of his 
 right to do so, is admissible to 
 show acquiescence in the plaintiff's 
 claim of ownership by the debtor : 
 Orner v. Hollman, 4 Whart. 45. 
 Failure to object to statements for 
 work done is evidence of an ad- 
 mission of the correctness of the 
 bill : Sergeant v. Ewing, 30 Pa. 
 75; Buckley v. Maryland Paving 
 Co., 132 Pa. 572; and on failure of 
 defendant to produce a copy of an 
 account retained by him without 
 objection, it will be presumed the 
 claim in suit was the same as that 
 sent him : Emerson \ . Miller. 27 
 Pa. 278. But where an account is 
 sent by mail, a reasonable time 
 must elapse before failure to reply 
 will be evidence of an admission of 
 its correctness : Darlington v. Tay- 
 lor, 3 Grant 195. See § 126. 
 
 2Moore v. Smith, 14 S, & R. 388. 
 
ADMISSIONS. 
 
 79 
 
 and that they were made under circumstances imposing a duty 
 to speak.^ 
 
 A letter or other ex parte writing material to the issue and 
 brought to the attention of the opposite party'' will not be ex- 
 cluded merely because it contains self-serving declarations, since 
 such declarations might have been denied by the other party if 
 he deemed it proper.'' Statements contained in a letter which is 
 replied to or shown to have been received by the other side are 
 therefore admissible, on the same principle as oral conversations 
 between the parties," to show that matters therein contained were 
 brought to the attention of the opposite party,' and failure to 
 deny or reply to such statements within a reasonable time is 
 evidence of an admission of their correctness.* 
 
 C. WHO MAY MAKE ADMISSIONS. 
 
 § 75. General Rule. Not only are acts and declarations of the 
 party himself competent evidence against him as admissions, but 
 
 sRoyal Ins. Co. v. Beatty, 119 Pa. 
 6. The fact that a son who de- 
 nied indebtedness to his father's es- 
 tate, was present at the audit and 
 heard the argument of the question, 
 and remained silent when it was 
 decided that there was a balance 
 due, is inadmissible : Huston's Es- 
 tate, 167 Pa. 217 ; nor are state- 
 ments made in a language which 
 the party against whom they are 
 offered could not understand, com- 
 petent against him : Cantanzaro v. 
 Railroad, 230 Pa. 305 ; and the fact 
 that plaintiff in an action of tres- 
 pass for cutting trees, saw timber 
 being hauled past her house with- 
 out objection, is inadmissible where 
 her claim is by paper title : Irwin 
 V, Patchen, 164 Pa. 51. Silence by 
 a wife when her husband receives 
 money belonging to her does not 
 raise a presumption of gift to him. 
 He will be presumed to have re- 
 ceived it as her agent :- Young's 
 Estate, 65 Pa. loi. The mere fact 
 that a woman makes no answer dur- 
 ing a marriage ceremony, will not 
 justify an inference that she re- 
 
 fuses her consent if she did not in 
 any way dissent: Torrance's Es- 
 tate, 47 Super. 509. For effect of 
 failure to reply when accused of 
 crime, see § 126. 
 
 *Where plaintiff claims a certain 
 deposit was made for him by a 
 third person in defendant's bank, a 
 letter sent by such person to plain- 
 tiff informing him of the deposit, 
 is admissible where it appears the 
 letter was written by the president 
 ot the bank for the party making 
 the deposit : Commercial Bank v. 
 Wood, 7 W & S. 89. Likewise, a 
 second letter, referred to in the 
 one drafted by the president is ad- 
 missible, the presumption being that 
 its contents were known. Id. 
 
 ^Crossgrove v. Himmelrich, 54 
 Pa. 203; Selig v. Rehfuss, 19s Pa. 
 200. 
 
 ^Holler v. Weiner, 15 Pa. 242. 
 
 'Cummins v. Ins. Co., 192 Pa 
 
 359- 
 
 ^Darlington v. Taylor, 3 Grant 
 19s ; Selig v. Rehfuss, 195 Pa. 200. 
 See § 303. 
 
8o 
 
 PENNSYLVANIA TRIAL EVIDENCH;. 
 
 acts and declarations of others who are authorized to act for him, 
 or under whom he claims or with whom he is privy, are also ad- 
 missible for the same purpose." But admissions of a stranger to 
 the transaction and to the party against whom they are offered, 
 are incompetent against the latter unless made in his presence or 
 with his knowledge and approval.^" 
 
 § 76. Ag^ents — Declarations in Course of Employment. State- 
 ments made by an agent, though in regard to the business of his 
 principal, are not always admissible against the latter. To become 
 so, they must have been made at a time when the agent was 
 engaged in doing an act which he was employed to do or which 
 was within the scope of his employment. ^^ He then stands in the 
 
 'Gibblehouse v. Stong, 3 Rawle 
 437; Floyd v. Lumber Co., 222 Pa. 
 257. Declarations of one to whom 
 a disputed matter had been submit- 
 ted for settlement are admissible 
 against the parties : Craig v. Craig, 
 3 Rawle 472. 
 
 i»Boltz V. BuUman, i Yeates 584; 
 Gallagher v. Rogers, i Yeates 390; 
 Longenecker v. Hyde, 6 Bin. I ; 
 Wolf V. Carothers, 3 S. & R. 240; 
 Slaymaker v. Gundacker, 10 S, & 
 R. 75; Mertz v. Detweiler, 8 W. 
 & S. 376; Matchin v. Matchin, 6 
 Pa. 332 ; PauU v. Mackey, 3 Watts 
 no; Beates v. Retallick, 23 Pa. 
 288; Eckert V. Cameron, 43 Pa. 
 120 ; Landis v. Royer, 59 Pa. 95 ; 
 Sager v. Lindsay, 118 Pa. 25; Low- 
 all V. Groman, 180 Pa. 532 ; Wheel- 
 er V. Ahlers, 189 Pa. 138; Moulton 
 V. O'Bryan, 17 Super. 593. A ten- 
 ant is not such agent of his land- 
 lord as to admit his declarations to 
 affect the landlord's title : Eakman 
 V, Sheafifer, 48 Pa. 176. 
 
 ii"In order to warrant proof of 
 admissions by an agent, one or more 
 of the following facts must exist : 
 It must appear that the agent was 
 specially authorized to make them ; 
 or his powers must have been such 
 as to constitute him the general 
 representative of the principal, hav- 
 
 ing the management of the entire 
 business ; or the admissions must 
 have formed part of tlie considera- 
 tion of a contract; or, if they are 
 non-contractual, they must have 
 been part of the res gestae.'' Per 
 Hand, J., in Oil City Fuel Co. v. 
 Boundy, 122 Pa. 449. 
 
 Declarations made by an agent 
 or representative of a corporation 
 while certain work was in progress 
 and under his supervision, are ad- 
 missible: Mellick v. Railroad, 17 
 Super. 12. Authority of a clerk to 
 forward goods is prima facia evi- 
 dence of authority to write a letter 
 in reference to such goods : Wol- 
 Itnweber v. Ketterlinus, 17 Pa. 
 389; and where one attorney had 
 been asked by his client to com- 
 municate to another arrangements 
 as to a fee, statements made by 
 the former to the latter are admis- 
 sible against the client: Brock v. 
 Brock, 47 Super. 321. But decla- 
 rations of an agent employed to dig 
 oil wells are not binding on the 
 principal in regard to matters relat- 
 ing to the abandonment of the 
 lease : Karns v. Tanner, 66 Pa. 
 J97 ; nor are statements of a su- 
 perintendent of a mine admissible 
 as to the cost of mining ore per 
 ton : Hanover Water Co. v. Iron 
 
ADMISSIONS. 8l 
 
 place of his master and represents him in the particular matter, 
 and his statements become a part of the res gesta; of the act and 
 explanatory thereof, and are as binding on the principal as if 
 they had been made by the latter himself .^- 
 
 Statements made by an agent before the employment began or 
 after it ceased, or when he was not in the performance of the 
 particular act for which he was employed, are not binding on 
 ^ the principal,^^ though they may be admitted for the purpose of 
 affecting the credibility of the agent if carefully restricted to this 
 purpose.''' The nearness of the declarations to the time of the 
 particular transaction is immaterial, if they are not so close in 
 point of time as to be part of the occurrence within the res gestae 
 rule.'^ However, if it appears they were made by the agenfi 
 within the scope of his express authority, it is not necessary that 
 they should have been made at the time of the particular trans- 
 action," the declarations in such case being within the res gesta* 
 of his employment. 
 
 The rule excluding declarations of an agent which are not 
 part of the res gestae of the transaction, is especially applicable 
 in negligence cases. The liability of the master for the negli- 
 gence of his servant is not based on the theory that the commis- 
 sion of the act of negligence was one which the agent was em- 
 ployed to perform, but on the theory that the master is liable for 
 
 Co., 84 Pa. 279; nor are declara- School Dist., 122 Pa. 494; Marcus 
 
 tions of a broker for selling prop- v. Gimbel Bros., 231 Pa. 200. 
 
 erty, competent to affect the title to ^^Clark v. Baker, 2 Whart. 340; 
 
 the land : Pier v. Duff, 63 Pa. S9- Hough v. Doyle, 4 Rawle 291 ; 
 
 A jusice of the peace is not the Patton v. Minesinger, 25 Pa. 393 ; 
 
 agent of the plaintiff in a suit be- Penna. Railroad v. Plank Road Co., 
 
 fore him, and cannot bind him by 71 Pa. 350; Hannay v. Stewart, 6 
 
 declarations: Boyer ■!. Potts, 14 S. Watts 487; McGill v. Kauffman, 4 
 
 & K. 157. S. & R. 317- 
 
 "^Hannay v. Stewart, 6 Watts ^^Dampman v. Railroad, 166 Pa. 
 
 487; Irvine v. Buckaloe, 12 S. & R. 520; Morris v. Guffey, 188 Pa. 
 
 3S; Shelhamer v. Thomas, 7 S. & 534- 
 
 R. 106; Patton V. Minesinger, 25 i^Bigley v. Williams, 80 Pa. 107. 
 
 Pa. 393 ; Lycoming County Ins. Co. i^O'Toole v. Post Printing Co., 
 
 V. Schreffler, 44 Pa. 269; Green 179 Pa. 271; Wheeler >'. Ham- 
 
 V. North Buf. Twp., 56 Pa. no; bright, 9 S. & R. 390; Stockton v. 
 
 Fawcett v. Bigley, 59 Pa. 411; Demuth, 7 Watts 39; McDowell v. 
 
 Hanover Water Co. v. Iron Co., 84 Meredith, 4 Whart. 311; Oil City 
 
 Pa. 279; Sidney School Fur. Co. v. Fuel Supply Co. v. Boundy, 122 Pa. 
 
 449- 
 
82 
 
 PENNSYLVANIA TRIAL EVIDENCE. 
 
 the manner in which the* agent performs acts committed to him 
 for performance, and therefore declarations by the agent indi- 
 cating negligence on his part are not admissible against the 
 master unless made at the time the act occurred.^^ 
 
 § 77. Agents — Proof of Agency, One person cannot be af- 
 fected by admissions of another with whom he is in no manner 
 associated, and therefore when statements made by another are 
 offered against a party for whom he is alleged to have acted, it is 
 incumbent on the person offering them to prove the existence of 
 agency or of some authority to do the particular thing with refer- 
 ence to which the statements were made,^' either by showing the 
 agent was generally authorized to represent his principal in all 
 matters, or that he had special authority to act in the particular 
 matter under investigation,^' the burden being on the person al- 
 leging agency to prove both the fact and extent thereof.'" This 
 may be done by production of a written contract of agency,^^ by 
 declarations of the principal,^^ or by circumstances showing a 
 
 I'UncIer this rule evidence is in- 
 admissible to show declarations of 
 a pilot or agent in charge of a 
 barge, made shortly after a col- 
 lision with another barge: Fawcett 
 V. Bigley, 59 Pa. 411; Bigley v. 
 Williams, 80 Pa. 107 ; or statements 
 made by a flagman after an acci- 
 dent, as to how far he had gone 
 back to flag a train : Penna. Railroad 
 V. Books, S7 Pa. 339; or declara- 
 tions of the superintendent of de- 
 fendant company after an accident, 
 as to the cause or the extent of 
 damage : Baker v. Allegheny Rail- 
 road, 9_s Pa. 211; Shaffer v. Haish, 
 no Pa. 575; Matteson v. Railroad, 
 218 Pa. 527; or statements of opin- 
 ion of the manager of an oil com- 
 pany as to the cause of explosion 
 of an oil well: Oil City Fuel Co. 
 V. Boundy, 122 Pa. 449; or state- 
 ments by the captain of a ship, after 
 an injury to a passenger, that the 
 part of ship which caused the in- 
 jury was in a dangerous condition: 
 American Steamship Co. v. Land- 
 reth, 102 Pa. 131; and in general, 
 
 declarations of officers of a com- 
 pany, made subsequent to an acci- 
 dent, as to the cause thereof : Lom- 
 bard, etc.. Railway v. Christian, 124 
 Pa, 114; Erie Railroad v. Smith, 
 125 Pa. 259; Shaw v. Boom Co., 
 125 Pa. 324; Giberson v. Patterson 
 Mills, 174 Pa. 369. 
 
 isfrvine v. Buckaloe, 12 S. & R. 
 35 ; Farmers' Bank v. McKee, 2 
 Pa. 318; Jordan v. Stewart, 23 Pa. 
 244; American Underwriters Ass'n 
 V George, 97 Pa. 238 ; Baltimore & 
 Ohio Ass'n v. Post, 122 Pa. 579; 
 Slease v. Naysmith, 14 Super. 134; 
 Fee V. Adams Express Co., 38 
 Super. 83. 
 
 I'Slease v. Naysmith, 14 Super. 
 134; Oil City Fuel Co. v. Boundy, 
 122 Pa. 449. 
 
 ^'Farmers' Bank v. McKee, 2 Pa. 
 318; American Ins. Co. v. Shultz, 
 82 Pa. 46; Baltimore & Ohio Rel. 
 Ass'n V. Post. 122 Pa. 579. 
 
 2iVan Horn v. Frick, 3 S. & R. 
 278. 
 
 ^^Trego V. Huzzard, 19 Pa. 441; 
 Flannery v. Ins. Co. 175 Pa. 387. 
 
ADMISSIONS. 
 
 83 
 
 general course of action or dealing by the agent in a certain ca- 
 pacity and recognition of his acts by the principal,^^ or showing 
 that an agent of limited powers has been in the habit of exercis- 
 ing greater powers with the knoweldge of his principal.-* 
 
 While an agent is a competent witness to prove his own au- 
 thority,^" his acts or declarations done or made without knowl- 
 edge of the principal are not in themselves competent for that 
 purpose.-" Such declarations may be received, however, to cor- 
 roborate other evidence of agency,^' and the court may receive 
 
 Where in an action against two 
 persons for a breach of contract 
 made by one on behalf of both, the 
 other denies authority to act for 
 him, a letter written by him to his 
 co-defendant after the contract was 
 made, directing him not to make 
 any contract until the writer's 
 return, is admissible : Zoebisch v. 
 Rauch, 133 Pa. 532; and the fact 
 that a person was stated on letter 
 head of a firm to be the general 
 manager and was referred to in a 
 reply to an inquiry for the general 
 manager, is evidence of authority 
 to make a contract : Sober v. 
 Mooney, 48 Super. 92. But agency 
 is not established by mere declara- 
 tions of the defendant in an action 
 for goods sold that, if he concluded 
 to take the goods he would have a 
 certain person give the order : 
 Grim v. Bonnell, 78 Pa. 152; nor 
 does the mere act of leaving goods 
 in charge of another constitute 
 such person an agent : Braden v. 
 McCleary, 183 Pa. 192. The au- 
 thority of an agent cannot be lim- 
 ited by declarations made by the 
 principal to the agent in absence of 
 the other party: Jackson v. Em- 
 mens, 119 Pa. 356. 
 
 230dorilla v. Baizley, 128 Pa. 
 283; Flannery v. Ins. Co., 175 Pa. 
 387. The fact that a purchaser at a 
 sheriff's sale of a store, permits the 
 wife of the defendant to remain in 
 possession and run the store, and 
 
 buy and sell goods, is sufBcient evi- 
 dence of agency : Harrington v. 
 Bronson, i6i- Pa. 296. But acts 
 done by an alleged agent without 
 authority or knowledge of the prin- 
 cipal are not competent : Whiting 
 V. Lake, 91 Pa. 349; Baltimore & 
 Ohio Relief Ass'n v. Post, 122 Pa. 
 579; Slease v. Naysmith, 14 Super. 
 
 134- 
 
 2*Fee v. Adams Express Co., 38 
 Pa. 83. 
 
 ^"McGunnagle v. Thornton, 10 S. 
 & R. 251; McDowell v. Simpson, 3 
 Watts 129; Jordon v. Stewart, 23 
 Pa. 244; Grim v. Bonnell, 78 Pa. 
 152; Lawall v. Croraan, 180 Pa. 
 532; Fee v. Express Co., 38 Super. 
 
 83. 
 
 26Clark V. Baker, 2 Whart. 340; 
 Jordan v. Stewart, 23 Pa. 244; 
 Bait. & Ohio Rel. Ass'n v. Post, 
 122 Pa. 579; Pepper v. Cairns, 133 
 Pa. 114; Slease v. Naysmith, 14 
 Super. 134; Fee v. Express Co., 38 
 Super. 83 ; Dodge v. Williams, 47 
 Super. 302. Declarations of one al- 
 leged to have been an agent, but 
 not accompanying any transaction 
 of the alleged agency, are incom- 
 petent to show want of agency : 
 Harrington v. Bronson, 161 Pa. 296. 
 
 2TProof that workmen who flood- 
 ed streets wore the garb, and was 
 in possession of tools, usually worn 
 and used by employees of the de- 
 fendant while engaged in such 
 work, is sufficient evidence of 
 
84 PENNSYLVANIA TRIAL EVIDENCE. 
 
 them in the first instance on condition that they be followed by 
 other independent proof of agency.^* 
 
 When evidence of the existence of agency has been given, and 
 declarations of the alleged agent are then received, the jury 
 should be instructed that if they find that in fact there was no 
 agency, the declarations are to be disregarded."" 
 
 § 78. Attorneys. The acts or declarations of an attorney, 
 like those of any other agent, when made in the course of his 
 duties in transacting his clients' business"" and within the scope 
 of his authority, either express or implied,^^ are admissible against 
 his client. But an attorney will not be permitted to prejudice his 
 client's rights by acts done in ignorance of the facts and without 
 the latter's authority or knowledge.^^ If the admissions are made 
 out of court and not in the presence of the client, authority to 
 make them'^ or knowledge or assent of the client thereto"* must 
 be shown. 
 
 § 79. Devisees and Legatees. The interests of devisees and 
 legatees are not joint but several, and admissions by one, whether 
 party to the proceedings or not, are inadmissible in an issue 
 devisavit vel non to show the incapacity of the testator. Such 
 evidence would be competent only if the person making the ad- 
 missions were the sole party interested in the will."^ But when 
 there is a question of fraud and undue influence in obtaining the 
 execution of a will, acts and declarations of those charged with 
 exercising such improper influence, though they be beneficiaries 
 under the will, are competent evidence.'*^ 
 
 agency lo admit declarations of the "-Harrington v. Stivanson, 210 
 
 agent as to his employment : Hos- Pa. 10. 
 
 kins V. Peoples, 42 Super. 611. ssSnyder v. Armstrong, 6 W. N. 
 
 28Central Penna. Tel. Co. v. C. 412; Smith v. Eyre, 161 Pa. 
 
 Thompson, 112 Pa. 118; Stewart 115. 
 
 V. Road Machine Co., 200 Pa. 611 ; "'Douglass v. Mitchell, 35 Pa. 
 
 Singer Mfg. Co. v. Christian, 211 ,^o. 
 
 Pa. 534; American Car Co. v. ,r,xr v u o o ^ 
 
 i,r . rA o Ti "-Nussear v. Arnold, 13 S. & R. 
 
 Water Co., 218 Pa. 542. ,^, r,- ^ • 1 rv . • , ,.r .. 
 
 ' ^ 323; Dietrich v. Dietrich, 4 Watts 
 
 29Irvine v. Buckaloe, 12 S. & R. 167, note; Boyd v. Eby, 8 Watts 
 
 35 ; Stewartson v. Watts, 8 Watts gg. Hauberger v. Root, 6 W. & S. 
 
 392- 431 ; Clark v. Morrison, 25 Pa. 453; 
 
 ""Overholtzer v. McMichael, 10 Irwin v. West, 81* Pa. 157. 
 
 P^' '39- 3»Nussear v. Arnold, 13 S. & R. 
 
 siMcGarry V. McGarrry, 9 Super. 323; Robinson v. Robinson, 203 
 
 71. Pa. 400. 
 
ADMISSIONS. 85 
 
 § 80. Executors, Trustees and Guardians. An executor or ad- 
 ministrator has no authority to enter into a contract by which 
 a new obligation is created against the estate, and his admissions 
 are therefore incompetent to prove a claim against the estate,'' 
 or to remove the bar of the statute of limitations against debts 
 of the decedent,'^ or to revive a guaranty made by him in his life- 
 time.'" But they are competent evidence of transactions subse- 
 quent to his appointment and incident to the duties of his office,*" 
 and if the administrator is also an heir of the decedent, his ad- 
 missions may be received in an action for damages for injuries 
 to land belonging to the estate.*^ 
 
 Trustees and guardians also act within the limitation of powers 
 conferred upon them by law or by the terms of their appoint- 
 ment, and cannot bind the beneficiary or ward by admissions con- 
 cerning matters beyond the scope of such authority. *- 
 
 § 81. Husband and Wife. The policy of the law which forbids 
 husband and wife from testifying against each other, also for- 
 bids the declarations and admissions of one being used against 
 the other. This rule extends to transfers and conveyances of 
 property by husband and wife which are questioned by creditors 
 of the husband, in which case declarations by the husband tend- 
 ing to show an intent to defraud creditors are not admissible 
 against his wife,*' and also to admissions by a husband made in 
 regard to his wife's separate property,** or by a wife concerning 
 her husband's curtesy rights.*^ But if one acts in the capacity of 
 agent or representative of the other, or the transaction is one in 
 which both participate to such extent as to make the act of one 
 the act of both so far as the rights of third persons are con- 
 cerned, their admissions are competent against each other.*" Thus 
 a wife, by universal custom, is the agent of her husband to con- 
 vey to him the nature of the business of one who calls at their 
 
 '^Orr's Appeal, 7 W. N. C. 126. Thomas v. Madden, 50 Pa. 261 ; 
 
 '^Clark V. Maguire, 35 Pa. 259. Martin v. Rutt, 127 Pa. 380; Law- 
 
 ''Fluck V. Hager, 51 Pa. 459 rence v. Keener, 149 Pa. 402 ; 
 
 *"Lobb V. Lobb, 26 Pa. 327; An- Thomas v. Butler, 24 Super. 305. 
 
 derson v. Washabaugh, 43 Pa. 115. **Smith v. Scudder, 11 S. & R. 
 
 *iReagan v. Grim, 13 Pa. 508. 325. 
 
 *2McKissick V. Pickle, 16 Pa. *■■■' Jones v. McKee, 3 Pa. 496. 
 
 140; Springer v. Gas Co., 145 Pa. *nDietrich v. Dietrich, i -P. & W. 
 
 430. 306; Fleming v. Parry, 24 Pa. 47. 
 
 *3Peck V. Ward, 18 Pa. 506; See also § 451. 
 Gicker v. Martin, 50 Pa. 138; 
 
86 PENNSYLVANIA TRIAL EVIDENCE;. 
 
 residence, and he is affected by any declarations made by her 
 within the scope this customary authority/' And where a hus- 
 band sues for services rendered by him and his wife, statements 
 made by lier during the service, as to the character of the em- 
 ployment, are admissible.*^ But a husband joined with his wife 
 in a suit for damages for personal injuries to her, is not such 
 party to the proceeding as will entitle the defendant to offer 
 his admissions against his wife's interest.*" 
 
 If the question is one of title to property, and the one claims 
 through the other, the admissions of the latter become compe- 
 tent against the former. °'' 
 
 § 82. Joint Tenants and Tenants in Common. Joint tenants 
 claim by the same title and have such unity of interest as to make 
 the admissions of one competent to affect the title of the other.°^ 
 But tenants in common have no such common interest. They 
 hold separately, each for himself, having unity of possession 
 only, and a recovery against one would not necessarily be a re- 
 covery against all. Therefore, admissions by one are not bind- 
 ing on the others.^'' 
 
 § 83. Officers of Corporations — Municipal. The acts of officers 
 of a municipal corporation are binding on the municipality when 
 done in the course of their official duty and within the scope of 
 their authority, and declarations and admissions accompanying 
 such acts are competent evidence. °^ 
 
 § 84. Officers of Corporations — Private. Admissions made by 
 officers of a private corporation rest on the same principles which 
 govern the admission of declarations of other agents." Such 
 officers, being the duly authorized agents of the stockholder's, 
 may bind the company by admissions made in the course of their 
 
 *'SteeI V. Thompson, 3 P. & W. s^Nass v. Van Swearingen, 7 S. 
 
 34- & R. 192; Pier v. Duff, 63 Pa. 59; 
 
 "^Hackman v. Flory, 16 Pa. 196. Hooks v. Forst, 165 Pa. 238. 
 
 4»Burrell Twp. v. Uncapher, 117 ssKnights of Pythias v. Lead- 
 Pa. 3S3. heter, 2 Super. 461 ; Sidney Furni- 
 
 ""Miller v. Baker, 160 Pa. 172; ture Co. v. School Dist., 122 Pa. 
 
 Schoeneman v. Weill, 3 Super. 119. 494; Weir v. Bore, 148 Pa. 566; 
 
 See §§88 to 91. Lycoming Co. v. Straub, 33 Super. 
 
 "iNass V. Van Swearingen, 7 S. 44i- 
 
 & R. 192; Hooks V. Forst, 165 Pa. ^ipenna. Railroad v. Books, 57 
 
 238- Pa. 339; Huntington & B. T. M. 
 
 Railroad v. Decker, 82 Pa. 119! 
 
ADMISSIONS. 
 
 87 
 
 official duties,'^ and within the scope of their authority.'" But 
 before such admissions will be received, it must appear they were 
 such as the officer was authorized to make, either by showing the 
 matter was within the general scope of his duties, or that he was 
 specially authorized to act in the particular case.'' 
 
 ^'Northern Liberties Bank v. 
 Davis, 6 W. & S. 285; Mifflin 
 Bridge Ca v. Juniata County, 144 
 Pa. 36s. 
 
 6«Monocacy Bridge Co. v. Ameri- 
 can Mfg. Co., 83 Pa. 517; Perkio- 
 men Railroad v. Kremer Co., 218 
 Pa. 641. Evidence is competent of 
 admissions by a cashier or treas- 
 urer of a trust company concern- 
 ing the ownership of stock held by 
 the bank: Bank v. Tyler, 3 W. & 
 S. 373; Callendar v. Kelley, 190 
 Pa. 455 ; of declarations of the 
 president of a railroad concerning 
 bonds outstanding: Phila. Trust 
 Co. v. Railroad, 177 Pa. 38 ; or con- 
 cerning the construction and effect 
 of a contract : Ardesco Oil Co. v. 
 Richardson, 63 Pa. 162; of decla- 
 rations of a lineman in the employ 
 of a natural gas company, in refer- 
 ence to the safety of certain pipes : 
 Baker v. Gas Co., 157 Pa. 593; of 
 declarations of a freight agent con- 
 cerning a contract of shipment: 
 Union R. & T. Co. v. Riegel, 73 
 Pa. 72; or of declarations of an 
 agent for a life insurance company 
 with respect to settlement of a 
 claim: United Brethren v. Mc- 
 Dermond, 12 W. N. C. 73. 
 
 5'Stewart v. Huntington Bank, 
 II S. & R. 267; Farmers' Bank v. 
 McKee, 2 Pa. 318; Baker v. Alleg. 
 Valley Railroad, 95 Pa. 211; Fee 
 V. Adams Express Co., 38 Super. 
 85. The rule excluding admissions 
 by officers not made within the 
 scope of their authority and not 
 actually accompanying the transac- 
 tion, has been applied to declara- 
 
 tions of the president of a street 
 railway made subsequent to an ac- 
 cident and in reference thereto : 
 Lombard & S. Railway v. Christian, 
 124 Pa. 114; to statements of the 
 president of an investment com- 
 pany as to its financial condition, 
 made after the transaction in ques- 
 tion occurred : Phila. Investment 
 Co. V. Eldridge, 175 Pa. 287 ; to ad- 
 missions by an engineer employed 
 by the lessor of a railroad as to 
 defective construction : Baltimore 
 &- Ohio Railroad v. School Dist, 9 
 W. N. C. 568 ; to statements by the 
 paymaster of a railroad with refer- 
 ence to deduction from wages of 
 employees of dues to a relief asso- 
 ciation : Baltimore & Ohio Rail- 
 road v. Post, 122 Pa. 579; to state- 
 ments by a route agent of an ex- 
 press company who is assigned to 
 investigate a theft, with reference 
 to a reward for apprehending an 
 accused person in a distant state : 
 Fee V. Adams Express Co., 38 
 Super. 83; to admissions by a 
 cashier of a bank made subsequent 
 to the presentation of a check, 
 to the effect that it was a 
 forgery: Northern Liberties Bank 
 V. Davis, 6 W. & S. 285; to 
 admissions by the captain of a 
 steamship as to negligence in con- 
 struction of the ship : American 
 Steamship Co. v. Landreth, 102 Pa. 
 131 ; to admissions by the agent of 
 a life insurance company concern- 
 ing liability on a policy: North- 
 western Ins. Co. V. Roth, 87 Pa. 
 409; to admissions in the report 
 of an agent of a fire insurance com- 
 
88 
 
 PENNSYLVANIA TRIAI, EVIDENCE. 
 
 § 85. Parties in Interest. The law considers the real parties 
 to a transaction, and therefore admissions are competent evi- 
 dence in favor of the other side, whether made by a party on the 
 record, or by one who is the real party interested in the proceed- 
 ings though not joined in the action."* If several persons have 
 the same interest in the subject matter of a suit or a joint in- 
 terest in the decision, or there is some privity of design between 
 them, the admissions of one are evidence against all others joined 
 in the suit.^'' But this rule is limited to the admission of material 
 facts within the knowledge of the party making them, and does 
 not admit evidence of his declarations of what he had heard the 
 others say in regard to the subject matter."" If no common inter- 
 est or privity of design exists, the declarations of one joint party 
 are not evidence against any but himself,"^ and they should not 
 be admitted even for this purpose, if it cannot be done without 
 
 pany appointed to investigate the 
 particulars and extent of loss : Ly- 
 coming County Ins. Co. v. Schreff- 
 ler, 44 Pa. 269; to a statement fur- 
 nished by the secretary of building 
 and loan society as to the amount 
 due on mortgage held by the asso- 
 ciation : Johnston v. Ass'n, 104 Pa. 
 394; Erthal V. Glueck, 10 Super. 
 402; Helping Hand Ass'n v. Buss, 
 13 Super. 343. 
 
 °*Johnson \. Kerr, i S. & R. 25 ; 
 Quirilan v. Davis, 6 Whart. 168. 
 The admissions of heirs of a de- 
 fendant vifho dies pending suit, be- 
 ing the parties really interested, 
 may be offered in e\idence against 
 them : Reagan v. Grim, 13 Pa. 508. 
 And in an action to recover stock 
 subscriptions under a contract to 
 the effect that the subscription 
 should be binding only in event of 
 a certain amount of stock being 
 subscribed, acknowledgments by 
 other subscribers of their signa- 
 tures in the subscription books, are 
 competent against the defendant to 
 shovi' that the required amount had 
 been subscribed, it lieing implied in 
 
 the contract that the conditional 
 subscriber shall be charged by any 
 evidence which would be sufficient 
 to charge the others in an action 
 against them on their subscriptions : 
 Phila. & W. C. Railroad v. Hick- 
 man, 28 Pa. 318. 
 
 =»Hauberger v. Root, 6 W. & S. 
 431 ; Dietrich v. Dietrich, 4 Watts 
 167, note; Nass v. Van Swear- 
 ingen, 7 S. & R. 192; Pier v. Duff, 
 62 Pa. 59; Hooks v. Forst, 165 Pa. 
 238. But a husband joined with his 
 wife in a suit for personal injuries 
 sustained by her through negli- 
 gence, is not such party to the rec- 
 ord as will entitle the defendants to 
 prove his declarations against his 
 wife's interests: Burrell Twp. v. 
 Uncapher. 117 Pa. 353; and if a 
 note be joint and several the ad- 
 mission of one will be received only 
 against himself: Sunday v. Die- 
 trich, 16 Super. 640. 
 
 •"'Quinlan v. Davis, 6 Whart. 
 169. 
 
 "Hauberger v. Root, 6 W. & S. 
 431 ; Sunday v. Dietrich, 16 Super. 
 640. 
 
ADMISSIONS. 89 
 
 affecting the rights of the others,"- as, for instance, where ad- 
 missions of one partner are ofifered in an action against a part- 
 nership for negligence."^ But if the action is such that it is in 
 the power of the jury to find against the one making the declara- 
 tions and in favor of the other, such declarations may be re- 
 ceived and the jury instructed to confine their effect as evidence 
 to the party making them.""' 
 
 Joint debtors between whom no relation of partnership exists, 
 are not agents for each other, and one has no power to bind the 
 other by any change in the form or substance of the contract or 
 by any act which affects its legal status. Thus an acknowledg- 
 ment of part payment on account of a debt by one will not re- 
 move the bar of the statute of limitations as to the other, since 
 in order to toll the statute the theory of the law is that a new 
 promise must be made or circumstances must appear from which 
 a new promise may be inferred, and one of the debtors has no 
 power to create such new obligation against the other. ""^ 
 
 § 86. Partners — Competency of Admissions of One Agfainst 
 Others. As a general rule, each partner is the agent for the firm 
 for the purpose of its business, and the acts of one are binding 
 on all, and therefore admissions of one made with reference to 
 partnership business are competent evidence, not only against 
 himself, but against his co-partners, regardless of whether the 
 one making the admission was served with process."" But state- 
 ments by a partner which merely amount to expressions of his 
 opinion and are not admissions of facts, are inadmissible against 
 the others,"^ nor may the opinion of one partner concerning the 
 construction of an agreement, be used to contradict the opinion 
 of another concerning the same matter."^ Such evidence is 
 merely the individual views of the members. 
 
 "-Hauberger v. Root, 6 W. & S. surety on a joint note : Coleman 
 
 431. V. Forbes, 22 Pa. 156. 
 
 63Folk V. Schaeffer, 180 Pa. 613. seMcCoy v, Lightner, 2 Watts 
 
 6*Scholl V. Miller, S Whart. 156. 347; Little v. Fairchild, 10 Super. 
 
 This, would be true in case of suit 211. But the acts of a partner as 
 
 on a joint and several note : Sun- a member of one firm, are inad- 
 
 day V. Dietrich, 16 Super. 640. missible to bind another firm, of 
 
 esColeman v. Forbes, 22 Pa. 156; which he is also a member: Krat- 
 
 Bush V. Stowell, 71 Pa. 208; Clark zer \. Lyon, 5 Pa. 274. 
 
 V. Burns, 86 Pa. 502 ; Lazarus v. "''Folk v. Shaeffer, 180 Pa. 613. 
 
 Fuller, 89 Pa. 331- The same rule esQwen v. Rothermel, 21 Super, 
 
 applies to a payment made by a 561. 
 
90 
 
 PENNSYLVANIA TRIAL EVIDENCii. 
 
 Upon dissolution of partnership, the agency of the partners 
 for each other ceases and the acts and declarations of one are no 
 longer admissible except as against himself,"" unless he be a 
 liquidating partner and the acts are necessary and incident to 
 the winding up of the business.'" 
 
 § 87. Partners — Proof of Existence of Partnership. Before 
 evidence of the acts or declarations of one partner is admissible 
 against the others, the existence of the partnership must be es- 
 tablished. If its existence be denied by the persons sued as 
 such, direct proof of the fact is usually difficult to obtain, and it 
 is necessary for plaintiff to rely on proof of circumstances or 
 acts and declarations of the parties tending to induce those with 
 whom they dealt to consider them as partners.'^ But declara- 
 tions of one of the alleged partners are not admissible for this 
 purpose against the others,'^ even as corroborative evidence." 
 However, such declarations may be received against the party 
 making them and the connection of each of the other alleged 
 partners with the firm may then be shown by proving successively 
 
 <">Tassey v. Church, 4 W. & .S. 
 141. 
 
 "•Hauser v. Irvine, 3 W. & S. 
 34S; Hogg V. Orgill, 34 Pa. 344. 
 
 '^Admissions contained in let- 
 ters, and in statements made in 
 the course of dealings with persons 
 alleged to be partners, are sufficient 
 evidence of partnership to go to 
 the jury : Trego v. Lewis, 58 Pa. 
 463. Admissions of partnership in 
 a boat, made after liability arose, 
 are competent to prove partnership 
 at the time, where there is also 
 evidence that the party making the 
 admissions had made advancements 
 for the construction of the boat : 
 Hill V. Voorhees, 22 Pa. 68. But a 
 mere direction to the vendor of 
 goods to charge them to the pur- 
 chaser or to a third person is not 
 in itself sufficient proof of partner- 
 ship between them : Given v. Al- 
 bert, 5 W. & S. 333; and in an 
 action against joint makers of a 
 note, proof of a payment of inter- 
 est by one of them within six years 
 
 does not warrant the reception of 
 admissions by the other to the ef- 
 fect that they were partners : Bott 
 v. Stoner, 2 Penny. 154. 
 
 '-Haughey v, Strickler, 2 W. & 
 S. 411; Wolle V. Brown, 4 Whart. 
 36s ; Edwards v. Tracy, 62 Pa. 
 374- 
 
 '^Wolle V. Brown, 4 Whart. 365. 
 BuJ where the plaintiff has testified 
 to admissions of partnership by the 
 defendant, testimony of a witness 
 on behalf of the plaintiff as to 
 similar admissions to him by the 
 defendant, is admissible to corrob- 
 orate the plaintiff's testimony, even 
 though such representations were 
 not connected with the plaintiff, 
 and were not intended to prove act- 
 ual partnership: Entwisle v. Mulli- 
 gan, 22 W. N. C. 125. If the de- 
 fendant offers declarations of al- 
 leged partners to disprove partner- 
 ship, plaintiff may then in rebuttal 
 offer other declarations to show its 
 existence : Nelson v. Loyd, g Watts 
 22. 
 
ADMISSIONS. 91 
 
 the admissions or conduct of each/* When two are sued as 
 partners on a note signed by one in his own name, an admission of 
 liability by the one not signing, while not proof of partnership, is 
 evidence that the other was his agent to make the note/^ 
 
 The fact that there is in existence a written agreement of 
 partnership, does not exclude oral proof of the existence of the 
 partnership relation.'^ 
 
 § 88. Predecessors in Title. The rule admitting declarations 
 of a party permits them to be offered, not only against himself, 
 but also against all persons who claim or derive title from him, 
 or are in privity with him in estate, in blood, or in law. There- 
 fore, one who claims title to property of any kind, whether realty 
 or personalty, corporeal or incorporeal, or choses in possession 
 or in action, through another by descent, devise, purchase, or by 
 any kind of transfer, whether by act of the parties or by act of 
 law, is affected by whatever the former owner may have said in 
 regard to his own rights before parting with his title. It is im- 
 material whether the former owner be dead or alive and present 
 in court, since in the latter case the declarations would be admis- 
 sible against himself and are therefore admissible against his suc- 
 cessor who has taken cum onere." 
 
 § 89. Predecessors in Title — Choses in Action. The admis- 
 sions of an assignor of a chose in action in relation to the subject 
 matter thereof, are competent evidence against his assignee,'* 
 provided they were made before the assignment.'" This rule 
 of course does not apply to the transfer of negotiable instru- 
 
 '*Welsh V. Speakman, 8 W. & S. 437; Floyd v. Lumber Co., 222 Pa. 
 
 257; Johnston v. Warden, 3 Watts 257. 
 
 loi ; Wolle V. Brown, 4 Whart. '^Brindle v. Mcllvaine, 10 S. & R. 
 365; Porter v. Wilson, 13 Pa. 641; 282; Rossiter's Appeal, 2 Pa. 371; 
 Lenhart v. Allen, 32 Pa. 312; Magee v. Raiguel, 64 Pa. no. Ac- 
 Bowers V. Still, 49 Pa. 65 ; Cross- knowledgement by a debtor of the 
 grove V. Himmelrich, 54 Pa. 203 ; existence of the debt is also ad- 
 Edwards V. Tracy, 62 Pa. 374; missible against a garnishee in at- 
 Reed v. , Kremer, in Pa. 482; tachment proceedings : Guy v. Mc- 
 Scull's Appeal, ns Pa. 141; Walker llree, 26 Pa. 92. 
 V. Tuper, 152 Pa. i ; McNeilan's '^Camp v. Walker, 5 Watts 482 ; 
 Estate, 167 Pa. 473. Eby v. Eby, s Pa. 435; Morton v. 
 
 '^Painter v. Austin, 37 Pa. 458. McGlaughlin, 13 S. & R. 107; 
 
 '"Widdifield v. Widdifield, 2 Bin. Bailey v. Clayton, 20 Pa. 29s ; 
 
 24s; Edwards v. Tracy, 62 Pa. 374. Work's Appeal, 59 Pa. 444; Pringle 
 
 V. Pringle, 59 Pa. 281 ; Shannon v. 
 
 "Gibblehouse v. Stong, 3 Rawle McHenry, 219 Pa. 267. 
 
92 PENNSYLVANIA TRIAI, EVIDENCE. 
 
 nieiits, unless the holder does not stand in the position of a bona 
 fide holder for value,"*" in which case declarations by the payee 
 after the alleged transfer would be admissible in an action by the 
 holder against the maker. *^ The satisfaction of a mortgage by 
 the assignor subsequent to assignment, is also competent against 
 the assignee if it appears payment had been received before the 
 assignment was actually made.^- 
 
 It has been held that when a father sues for damages for 
 loss of services due to personal injuries to his minor son, the 
 legal rights of the father are independent of the injuries to the 
 son and cannot be affected by the latter's admissions as to how 
 the injury was received.*^ But the soundness of this de- 
 cision has been questioned in a subsequent case where the court 
 refused to extend it to an action by a wife for the death of her 
 husband, in which case a written statement by the husband in 
 reference to the accident was held admissible against the plain- 
 tiff on the theory that her only right of action was through him, 
 and in succession or substitution to his rights which he had not 
 asserted himself. The court also distinguished this case from 
 the earlier one on the ground that the father's action in the latter 
 was in his own right for loss of services, and not through the 
 right of the child.^* 
 
 § 90. Predecessors in Title — Personalty. Acts and declara- 
 tions of the owner of personal property or one in possession 
 thereof, done or made during such possession, are competent evi- 
 dence against those claiming through him on questions affecting 
 ownership, or the character of his possession.*^' But declarations 
 of a vendor after parting with title are not admissible against his 
 vendee,*" unless the latter permits the vendor to remain in posses- 
 sion, in which case he, may be bound by declarations made dur- 
 
 80 Anderson v. Young, 2i Pa. 443. s^Hughes \. Canal Co., 176 Pa. 
 
 By § 57 of the Negotiable Instru- 254. 
 
 ments Act of May 16, 1901, P. L. s.-.Caldwell v. Gamble, 4 Watts 
 
 202, bona f^de holders are not af- 292; Shell v. Haywood, 16 Pa. 523; 
 
 fected by acts of prior endorsers. pjer v. Duff 63 Pa. w 
 
 ^iReeper v. Greevy, S Super. 316. o„t, ,, '™ „ „ 
 
 ■^ -^ s^Babb V. Clemson, 12 S. & R 
 
 *^Cox V. Ledward, 124 Pa 435- 328; Sutton v. Shearer, i Grant 
 
 "•'Bradford City v. Downs, 126 207; Pier v. Duff, 63 Pa. 59; 
 
 Pa. 622. See Ogden v. Railway, 23 Shannon \ . McHenry, 219 Pa 267 
 
 W. N. C. 191. 
 
ADMISSIONS. 93 
 
 ing such possesssioii.^' Subsequent declarations may also be 
 given to affect the credibility of the vendor/^ or to show that 
 the transfer was made for the purpose of defrauding creditors.*' 
 But before the purchaser can be affected by such declarations, 
 there must be some proof that he knew of the fraud and was a 
 party to it."" However, slight proof is sufficient. The fact that 
 the vendor remains in possession of the goods without explana- 
 tion,"^ or subsequent acts inconsistent with a change of owner- 
 ship,"^ have been held sufficient. 
 
 The effect of subsequent declarations must be confined to a 
 determination of the question whether or not the sale was fraud- 
 ulent. If it appears from all the evidence to have been in fact 
 bona fide, the declarations cannot considered for any other pur- 
 pose."^ 
 
 A notable exception to the rule admitting declarations of a 
 predecessor in title against persons claiming through him, is that 
 a husband's declarations are not admissible against creditors as 
 evidence of title in the wife to goods leyied on by them. The ad- 
 mission of such evidence would afford too great an opportunity 
 for the commission of fraud on creditors."* But in replevin by 
 a wife against the vendee of her husband to recover property sold 
 by him, where she proves original ownership in herself, admis- 
 sions by the husband to the effect that the property belonged to 
 her are admissible as evidence of continuance of ownership."" 
 
 s^Babb V. Clemson, 12 S. & R. ""Scott v. Heilager, 14 Pa. 238; 
 
 328; Pier V. Duff, 63 Pa. 59. This Beck v. Parker, 65 Pa. 262; Rentz 
 
 rule does not extend to mere con- v. Clark, 100 Pa. 446; Unangst v. 
 
 structive possession: Pier v. Duff, Goodyear Mfg. Co., 141 Pa. 127; 
 
 63 Pa. 59. Where the vendor Tisch v. Utz, 142 Pa. 186; Hart- 
 
 of goods claims the right of pos- man v. Diller, 62 Pa. 37 ; Wall v. 
 
 session as against an attaching Staley, 91 Pa. 27 ; Kintzel v. Kint- 
 
 creditor of the vendee on the zel, 133 Pa. 71 ; Boyer v. Weimer, 
 
 ground that the purchase was 204 Pa. 295. 
 
 fraudulently made by the vendee, ''iBabb v. Clemson, 10 S. & R. 
 
 declarations made by the latter after 419 ; Pier v. Duff, 63 Pa. 59. 
 
 the levy, to the effect that he knew °-Reyer v. Rice, 36 Super. 178. 
 
 he was insolvent when he purchas- ss^Yid^ham v. Store Co., 47 
 
 ed the goods, are admissible against Super. 176. 
 
 creditors: Perlman v. Sartorius, 94Gamber v. Camber, i8 Pa. 363 ; 
 
 162 Pa. 320. p^^yjjj ^ Capewell, 45 Pa. 89; 
 
 ssBailey's Estate, 187 Pa. 381. Conley v. Bentley, 87 Pa. 40. 
 
 s'lrwin V. Keene, 3 Whart. 347; "^Musser v. Gardner, 66 Pa. 242. 
 Evans V. Matson, 56 Pa. 54. 
 
94 PENNSYLVANIA TRIAL EVIDENCE. 
 
 § 91. Predecessors in Title — Kealty. Acts or declarations of 
 the owner of land, made during the continuance of his interest, 
 which tend to show the character or extent of his possession or 
 interest or the location of boundaries, are competent evidence 
 not only against himself but also against those who claim through 
 or under him;°° and when such evidence has been given, other 
 declarations of the same person on other occasions cannot be ad- 
 mitted to contradict it."'^ But this rule does not permit the title 
 of a purchaser at a sheriiif's sale to be impeached by declarations 
 of the debtor that he had sold the property to another prior to 
 the sale, especially if the alleged purchaser be his wife, as the 
 admission of such evidence would afford an easy method of de- 
 frauding creditors."^ 
 
 Declarations of a grantor are riot admissible against one who 
 claims by paramount title,"' nor are his declarations tending to 
 show an intent to defraud third persons admissible against his 
 grantee unless it be shown the latter had knowledge of such in- 
 tent."" Admissions which are not of facts but merely the grant- 
 or's opinion as to his title,^ or loose declarations by him con- 
 cerning his title which is apparently good and regular, are not 
 competent to defeat it.^ 
 
 "^Heister v. Laird, i W. & S. 245 ; zogg, 2 Pa. 182 ; Miller v. Keene, 
 
 Reed v. Dickey, 1 Watts 152; 5 Watts 348; St. Clair v. Shale, 
 
 Maus V. Maus, 5 Watts 315; Gib- 20 Pa. 105; Depen v. Bogar, 7 
 
 blehouse v. Stong, 3 Rawle 436; Super. 434; but declarations of an 
 
 Brown v. Chambersburg Bank, 3 infant son living with his father 
 
 Pa. 187 ; Riddle v. Dixon, 2 Pa. are not sufficient to break the con- 
 
 372; Gratz V. Beates, 45 Pa. 495; tinuity of his father's possession: 
 
 Sheafifer v. Eakman, 56 Pa. 144; Douglas v. Irvine, 126 Pa. 643. 
 
 Nichols V. Nichols, 133 Pa. 438; "'McPeake v. Hutchinson, s S. & 
 
 Bennett v. Biddle, 150 Pa. 420. See R. 295 ; Moore v. Pearson, 6 W. & 
 
 § 300 for declarations and acts ac- S. 51. 
 
 companying possession of realty, "SBaker v. Miller, i Yeatcs 305; 
 
 and § 276 for declarations of de- Wall v. Staley, 91 Pa. 27. 
 
 ceased persons as to boundaries. An "'Hill v. Roderick, 4 W. & S. 221. 
 
 ancient map prepared and used by lo^Reichart v. Castator, 5 Bin. 
 
 a land company, is admissible 109; McElfatrick v. Hicks, 21 Pa. 
 
 against their successors in title: 402; McIIdowney v. Williams, 28 
 
 Huffman v. McCrea, 56 Pa. 95. Pa. 492. 
 
 Declarations of one whose posses- iPayne v. Craft, 7 W. & S. 458. 
 
 sion is relied upon to establish title ^ganford v. Decamp, 8 Watts 
 
 by adverse possession are admis- 542; Kennedy v. Erdman, 150 Pa. 
 
 sible to show his holding was not 427. 
 in fact adverse: Sailer v. Hert- 
 
ADMISSIONS. 
 
 95 
 
 While in order to affect a subsequent purchaser, declarations 
 must generally have been made by the former owner during his 
 ownership or possession and not after he parted with his inter- 
 est,' this rule does not apply where the good faith of a trans- 
 fer has been attacked by creditors who have given other evi- 
 dence to show a common purpose or design to defraud them. 
 In such case, declarations of the vendor, though made after the 
 transfer, become admissible on the same principle which admits 
 declarations of conspirators against each other after a prima facie 
 case of conspiracy has been shown.' Slight evidence of collusion 
 is a sufficient foundation to warrant the admission of subsequent 
 declarations,^ though the declarations in themselves are not com- 
 petent for that purpose." The effect of such evidence must be 
 limited to the determination of the question whether the sale 
 was fraudulent, and if it be determined it was in fact bona fide, 
 the subsequent declarations must be disregarded and cannot be 
 considered for any other purpose.^ Declarations made subse- 
 
 ^Hoffman v. Lee, 3 Watts 352; 
 Gregory v. Griffin, I Pa. 208; Mc- 
 Ildowney v. Williams, 28 Pa. 492; 
 Ferguson v. Staver, 33 Pa. 411; 
 Pier V. Duff, 63 Pa. 59; Sackett v. 
 Spencer, 65 Pa. 89; McLaughlin v. 
 McLaughlin, 91 Pa. 462; Wilson 
 V. Anderson, 186 Pa. S31; Park v. 
 Park, 39 Super. 212. Susbsequent 
 declarations are not admissible even 
 to corroborate what the grantor 
 said before parting with his interest : 
 Packer v. Gonsalus, i S. & R. 526. 
 Declarations of a grantor subse- 
 quent to a delivery in escrow, are 
 inadmissible against the grantee, un- 
 less to show that the grantor had 
 countermanded delivery : Stephens 
 V. Rinehart, ';2 Pa. 434. Where two 
 persons claim as purchasers from 
 the same grantor, statements made 
 by the grantor before the second 
 sale are evidence against the second 
 vendee, but statements made subse- 
 quent to both sales are not com- 
 petent against either : Steward v. 
 Richardson, 2 Yeates 89. Declara- 
 tions made by a grantor in a deed 
 
 of trust, to his grantee but before 
 the delivery of the deed, are admis- 
 sible in explanation of the trust : 
 Drum V. Simpson, 6 Bin. 478. 
 Declarations of a grantor of prop- 
 erty through which a stream ran, 
 to the effect that all the water had 
 passed by his prior grant of the 
 mill, are admissible against his 
 grantee, where it appears the water 
 rightSj^ had been excepted from the 
 sale of the balance of the property. 
 Such declarations are not deroga- 
 tory of any grant, as the water 
 rights had not passed to the gran- 
 tee: Strickler v. Todd, 10 S. & R. 
 63. 
 
 *Pierce v. Hakes, 23 Pa. 231 ; 
 Hartman v. Diller, 62 Pa. 37 ; Con- 
 fer V. McNeal, 74 Pa. 112; Souder 
 v. Schechterly, 91 Pa. 83; Boyer v. 
 Weiraer, 204 Pa. 295. 
 
 'Pier V. Duff, 63 Pa. 59; Souder 
 V. Schechterly, gi Pa. 83. 
 
 "Pier V. Duff, 63 Pa. 59. 
 
 'Wickham v. Store Co., 47 Super. 
 176. 
 
96 PENNSYI^VANIA TRIAL EVIDENCE. 
 
 quent to conveyance may also be admitted for the purpose of 
 showing the grantor's mental condition at the time of making the 
 deed,* or to show the whole of a transaction as to which evi- 
 dence has been given by the other party." 
 
 Declarations by one who has not yet acquired title or posses- 
 sion of land are inadmissible against his successor.^" But decla- 
 rations of one in actual possession and claiming settlement, are 
 admissible, although he had not yet procured a warrant for the 
 land." 
 
 § 92. Principal and Surety. A surety on a bond is bound to 
 answer for the acts or omissions of his principal to the extent 
 covered by the contract of suretyship, and to this extent the latter 
 represents him and may bind him by his admissions. But beyond 
 this the surety is not represented by his principal, and cannot be 
 affected by what he says or does.'^ 
 
 ^Chess V. Chess, i P. & W. 32. 'sGiltinan v. Strong, 64 Pa. 242; 
 
 "Reigart v. Ellmaker, 10 S. & R. Com. v. Kendig, 2 Pa. 448; Welsh 
 
 27; Postens V. Postens, 3 W. & S. v. Cooper, 8 Pa. 217; Morrell v. 
 
 127. Express Co., i Walker 388. The 
 
 if'McIldowny v. Williams, 28 Pa. rule does not extend to admit the 
 
 492; Douglas V. Irvine, 126 Pa. admissions of counsel of a princi- 
 
 643. pal in a bond, made in a former ac- 
 
 '^Alden v. Grove, 18 Pa. 377. lion against him : Respublica v. 
 
 Davis, 3 Yeates 128. 
 
93 
 94 
 95 
 96. 
 97 
 98. 
 
 99. 
 too. 
 
 lOI 
 102. 
 
 103 
 104. 
 los 
 106. 
 107. 
 108. 
 
 BOOIC ENTRIES. 97 
 
 CHAPTER III. 
 
 BOOK ENTRIES. 
 
 Corporation books — Proof. 
 
 Course of business or professional duty — Entries by third persons. 
 
 Shop Books — Proof of goods sold and work done. 
 
 Alterations and erasures — Effect of. 
 
 Best evidence rule as affecting admissibility — Copies. 
 
 Character of books. 
 
 Course of business. 
 
 Form of entries. 
 
 Memorandum — Accounts copied from. 
 
 Parties against whom entries may be offered. 
 
 Proof — Court and jury — Province of. 
 
 Refreshing memory — Corroborative evidence. 
 
 Reputation for accuracy. 
 
 Subject of entries. 
 
 Time of making entries. 
 - Whole of accounts. 
 
 § 93. Corporation Books — Proof. Books of a private cor- 
 poration are generally admissible as to all matters contained 
 therein, in a dispute between the corporation and its members 
 and their privies in title, but not as against strangers. The com- 
 petency of such books rests on the theory that the officers and 
 agents who make the entries represent the corporation and all its 
 members, who are charged with knowledge of the acts of their 
 agent made in the course of his duties.^ The books may also be 
 
 ^Com. V. Woelper, 3 S. & R. 29; Super. 568. Assessment books of a 
 Union Canal Co. v. Lloyd, 4 W. & mutual fire insurance company are 
 S. 393 ; Comfort v. Leland, 3 admissible to show a balance due 
 Whart. 81 ; Bavington v. Railroad, from the members : Moore v. Rohr- 
 34 Pa. 358; North American backer, 30 Super, 568. Books of a 
 Bldg. Ass'n v. Sutton, 35 Pa. 463 ; church corporation are evidence of 
 Graff V. Railroad, 31 Pa. 489. See an assessment against pew hold- 
 § 94 for competency of entries ers : Fleming v. Wallace, 2 Yeates 
 made in the course of duty. 120. A minute book is also ad- 
 One holding a policy in a mutual missible on behalf of the company 
 insurance company is a member of to prove acts necessary to be done 
 the company within this rule : as a condition to its corporate ex- 
 Mitchell v. Ins. Co., SI Pa. 402; istence: Grant v. Coal Co., 80 Pa. 
 Diehl V. Ins. Co., 58 Pa. 443! New 208; or to show a contract with 
 Era Life Ass'n V. Rossiter, 132 Pa. the other party to the action: 
 314; Moore v. Rohrbacker, 30 
 
 7 
 
98 
 
 PENNSYLVANIA TRIAL EVIDENCE. 
 
 admitted in actions between third persons to prove entries made 
 therein in the course of business.^ 
 
 Books of a corporation are not of a public nature and are not 
 therefore the subject of proof by examined copies. The books 
 themselves must be offered by the clerk who made the entries, 
 or accompanied by proof of his handwriting if he is dead or out 
 of the jurisdiction,' though it seems that examined copies might 
 be offered in extreme cases of necessity.* They need not be au- 
 thenticated under the seal of the corporation." 
 
 If the books are ancient and proof by the person who made 
 them is impossible, more latitude is allowed in their admission, 
 and it is only necessary to show that they were found in the 
 proper place, produced by the proper officer, and sworn to be 
 the books of the company." 
 
 Haughey v. Strickler, 2 W. & S. 
 411. 
 
 But book entries are not admis- 
 sible to prove that a certain person 
 acted as one of the corporators, in 
 absence of proof that he had any 
 previous knowledge of the entries 
 or assented thereto : Comfort v. 
 Leland, 3 Whart. 81 ; nor that a 
 certain number of shares had been 
 subscribed to its capital stock in 
 an action on a subscription condi- 
 tioned on a certain amount being 
 subscribed : Phila. & West Chester 
 Railroad v. Hickman, 28 Pa. 318. 
 While entries in books of a bank 
 are competent evidence for it in a 
 dispute with a depositor, when sup- 
 ported by the oath of the person 
 who made them : Farmers & Me- 
 chanics' Bank v. Borsef, i Rawle 
 152; Meighen v. Bank, 25 Pa. 288; 
 they are not conclusive as to the 
 amount of the deposit if the de- 
 positor claims a larger amount as 
 per entry in his deposit book made 
 at the same time. In such case, 
 both books should go to tlie jury, 
 together with other evidence bear- 
 ing on the question : Farmers & 
 
 Mechanics' Bank v. Borsef, i Rawle 
 
 152- 
 
 sPhila. Bapk v. Officer, 12 S. & 
 R. 49. 
 
 ^Ridgway v. Farmers' Bank, 12 
 S. & R. 256; Phila Bank v. Officer, 
 12 S. & R. 49. The books do not 
 prove themselves, but their nature 
 and character must be shown in 
 order to determine their compe- 
 tency: Pittsburgh Coal Co. v. Fos- 
 ter, 59 Pa. 365. A receipt book is 
 evidence against the company with- 
 out producing the officer who coun- 
 tersigned them : North American 
 Bldg. Ass'n V. Sutton, 35 Pa. 463. 
 
 *Ridgway v. Farmers' Bank, 12 
 S. & R. 256; Gochenauer v. Good, 
 3 P. & W. 274. 
 
 ^Fleming v. Wallace, 2 Yeates 
 120. 
 
 "Union Canal Co. v. Lloyd, 4 W. 
 & S. 393. A ledger of an insolvent 
 corporation, found with other pa- 
 pers in the office of a director who 
 had left the state, is admissible 
 without further proof for the pur- 
 pose of showing the amount of an 
 indebtedness to the plaintiff: Mc- 
 Hose V. Wheeler. 45 Pa. 32. 
 
BOOK ENTRIES. 99 
 
 § 94. Course of Business or Professional Duty — Entries by 
 Third Persons. As a general rule, entries made by third persons 
 in the ordinary course of business at the time a transaction oc- 
 curred, and of matters within the knowledge of the person mak- 
 ing the entry, which he had no motive to misrepresent, and which 
 it was his duty to make, are admissible in any proceeding where 
 the subject matter is relevant to the issue.' This rule was origi- 
 nally one of necessity and before resorting to it a party was re- 
 quired to show that the person who made the entry was dead. 
 The more modern American decisions, especially those of Penn- 
 sylvania, have gradually relaxed this rule in the interest of 
 changed business conditions, and have applied the doctrine that 
 such entries, being contemporaneous with the transaction which 
 they record, are part of the res gestae and therefore so far as their 
 competency is concerned, it should make no difference whether 
 the person who made them is living or dead.^ If he be living 
 and competent to testify, it is necessary to produce him, his testi- 
 mony being the best evidence of the transaction, and the entries 
 being used by him to refresh his memory.' But if he testifies he 
 has no recollection of the facts, but that it was his practice to 
 make the entries correctly at the time, and that he believes they 
 are accurate, they are competent evidence of the facts recorded."* 
 If the person who made the entries be dead or beyond the juris- 
 diction of the court, or otherwise incompetent to testify, the en- 
 tries are admissible on proof of his handwriting.^^ 
 
 Absence of entry of a transaction, which a person in the ordi- 
 nary course of his business would have recorded if it had oc- 
 curred, may be competent as evidence that it did not in fact take 
 place.^- But books of a vendee cannot be given in evidence to 
 
 ■'Com. V. Berney, g8 Super. 6i ; "Farmers' Bank v. Whitehill, i6 
 
 Littieri v. Freda, 241 Pa. 21. Memo- S. & R. 88; Phila. Bank v. Officer, 
 
 rancla blotters in the land office are 12 S. & R. 49; Cora. v. Berney, 28 
 
 not public records but are admis- Super. 61. 
 
 sible after the death of the clerk ^''Cora. v. Berney, 28 Super. 61. 
 
 as entries made in the course of See also .§§ 97, 181. 
 
 his duties : Fox v. Lyon, 27 Pa. 9. "Farmers' Bank v. Whitehill, 16 
 
 Entries by third persons are not S. & R. 8g; Com. v. Berney, 28 
 
 competent to charge another for Super. 61. 
 
 goods sold and delivered: Smith i^Nourse v. M'Cay, 2 Rawle 70; 
 
 V. Lane, 12 S. & R. 80. Qq„^ v. Berney, 28 Super. 61. 
 
 *Com. V. Berney, 28 Super. 61 ; 
 Littieri v. Freda, 241 Pa. 21. 
 
lOO PENNSYLVANIA TRIAL EVIDENCE. 
 
 show that he made no entries of the receipt of goods which the 
 plaintiff claims to have sold him.^'' 
 
 § 95. Shop Books — Proof of Goods Sold and Work Bone. 
 Books of original entries, when properly kept by a party or his 
 clerk, are competent evidence of work done or goods sold and 
 delivered in the ordinary course of the business of the person on 
 whose behalf they are offered, including merchants, shop-keep- 
 ers, tradesmen, mechanics or farmers.^* 
 
 Prior to the legislation making parties competent witnesses in 
 their own behalf, books of original entries were admitted on the 
 ground of necessity, because the demands of business required 
 the extension of credit and hence some means of proving the in- 
 debtedness, and it was frequently impossible for the party to 
 furnish any other evidence of the transaction than that afforded 
 by his own books of account. While the English rule was that 
 entries in such books were not admissible unless proved by the 
 oath of the clerk who made them, in early times in this country 
 many of our merchants and tradesmen did not ktep clerks but 
 transacted their business personally, and in order lO permit proof 
 of their accounts, a practice was established to admit their books 
 of original entries when proved by the oath of the party himself.'^ 
 
 Such books are prima facia evidence of the sale and delivery'" 
 and also the prices^^ of goods specified therein. While the Su- 
 preme Court has indicated that there ought to be some limit to the 
 amount which may be proved by book entries, it has never given 
 an opinion as to what that limit should be.^' It is difficult to see 
 on principle why the amount involved should be a criterion in any 
 case.^' 
 
 i^Keim v. Rush, S W. & S. 377. ant's he had delivered the goods : 
 
 See § 305. Dialogue v. Hoover, 7 Pa. 327. 
 
 i*Shoemaker v. Kellog, 11 Pa. "Ducoign v. Schreppel, i Yeates 
 
 310. 347; Corr \, Sellers, 100 Pa. i6g 
 
 'sPoultney v. Ross, I Dall. 238; '^Corr v. Sellers, 100 Pa. 169. 
 
 Curren v. Crawford. + S. & R. 3 ; i!>"If the application of this rule 
 
 Adams v. Steamboat Company, 3 was held to be one of necessity in 
 
 Whart, 75 ; Shoemaker v. Kellog, tarly times when commercial trans- 
 
 II Pa. 310. actions were comparatively few in 
 
 '"Alter \. Berghaus, 8 Watts ^^\ number and small in amount, it is 
 
 Parker v. Donaldson. 2 W. & S. 9. not apparent why it should now be 
 
 A witness who made entries may relaxed and abandoned when such 
 
 be permitted to state, after reading transactions have increased in num- 
 
 each item, to which of the defend- ber and amount a thousand fold. If 
 
BOOK ENTRIES. 
 
 It is not necessary that the entry be made from personal 1^ 
 edge. One person may make entries of sales made by anotP 
 
 Whether books kept by professional persons, such as physiciaTiS 
 and lawyers, are competent to prove services rendered, has not 
 been directly decided by our appellate courts.-' It has been 
 pointed out that the value of such services is incapable of being 
 gauged by the time occupied in doing it or by comparing it with 
 other similar services, and that it is not capable of such certainty 
 in description as is essential to the ordinary charge for work done. 
 Nor is it within the necessity that opened the door for the ad- 
 mission of a party's own books. -^ However, the lower courts 
 generally admit book accounts of calls made by a physician if 
 the entries were made at the proper time and itemized," and 
 their admission has been affirmed on appeal without comment. ^^ 
 If admitted, the entries ai'e not conclusive as to the value of the 
 services.-^ 
 
 § 96. Alterations and Erasures — Effect Of. Any alteration or 
 erasure appearing on the face of the accounts offered in evidence, 
 renders them inadmissible unless explanation is given.-" And 
 where an attempt is made to impeach the general character of 
 
 the modern manufacturer or agent 
 ii. a large city, who ships his goods 
 ti. purchasers scattered through a 
 dozen states, and usually upon writ- 
 ten orders, must be prepared, be- 
 fore he can collect an account, to 
 transport his entire office and ship- 
 ping force to a remote county seat 
 in a distant state, to prove by liv- 
 ing witnesses the shipment or de- 
 livery of goods ordered, a condition 
 wholly intolerable and destructive 
 of business would result." Per 
 Porter, J., in Vallee Bros. v. North 
 Penn Iron Co., 32 Super, iir. 
 
 ^''lones V. Long, 3 Watts 325 ; 
 Pollock V. Wagenblast, i Phila. 18. 
 
 21 Hale v. Ard, 48 Pa. 22; Ful- 
 ton's Estate, 178 Pa. 78. 
 
 22Hale V. Ard, 48 Pa. 22. 
 
 2SGerman's Estate, 16 Phila. 318; 
 Wilson's Estate, 29 Lane. 45. A 
 visiting list of a physician has been 
 admitted to prove the number of 
 
 visits made to a patient : Moffatt's 
 Estate, I W. N. C. 518; but not 
 where the entries consist of hiero- 
 glyphics and signs intelligible only 
 to the person who made them, or 
 requiring the use of a reference 
 book to decipher them ; German's 
 Estate, 16 Phila. 318; Kelley's Es- 
 tate, S Dist. 263 ; or where, in the 
 books of a surgeon, the entries do 
 not show on whom, or by whom, 
 or when, an operation was per- 
 formed, or the character of the 
 operation, and there is nothing to 
 determine whether the charge is 
 reasonable : Foreman's Estate, 7 
 Dist. 214. 
 
 =*Staggers' Estate, 8 Super. 260; 
 O'Bold's Estate, 221 Pa. 145. 
 
 -"Langolf V. Pfromer, 2 Phila. 
 17; Kready's Estate, 21 Lane. 13. 
 
 -''Churchman v. Smith, 6 Whart. 
 146; Kline v. Gundrum, 11 Pa. 242; 
 Hill V. Scott, 12 Pa. 168. 
 
102 PENNSYLVANIA TRIAL EVIDENCE. 
 
 the book, the fact that other accounts contained therein were 
 altered is competent evidence on the question of accuracy. ^^ 
 
 § 97. Best Evidence Rule as Affecting Admissibility — Copies. 
 Books of original entries of goods sold or work done are not nec- 
 essarily the only evidence nor the best evidence of the transac- 
 tion, but the party may, if he desires, make out his case by testi- 
 mony of witnesses.^* Book entries are in fact considered a dan- 
 gerous kind of evidence at best, because they are merely declara- 
 tions in the party's own interest, and it has been frequently stated 
 that the rule admitting them would not be extended, but would 
 be strictly confined to the necessity which gave rise to the cus- 
 tom,^" and that they would not be received at all when the trans- 
 action, from its nature, admits of more satisfactory proof,^" espe- 
 cially since the parties are competent witnesses in their own be- 
 half.2^ 
 
 Prior to the Act of April 15, 1869, P. L. 30, making parties 
 competent witnesses, where no testimony of third persons was 
 available, the books of original entries were the evidence of the 
 transaction, the oath of the party being received merely to prove 
 the books. If the entries were made by a clerk, however, his 
 oath was the primary evidence, and the account was used to re- 
 fresh his memory. Since the passage of the above act, the party 
 stands in the same position the clerk stood prior thereto, and his, 
 testimony, when it can be produced, is the primary evidence, the 
 entries being competent to corroborate him or to refresh his 
 memory ,''^ unless he is unable to recall the transaction, in which 
 case the entries become the best evidence of it. Entries not ad- 
 
 ='Funk V. Ely, 45 Pa. 444- therefrom, the testimony, and not 
 2*Adams v. Columbia Steamboat the entries, are entitled to the great- 
 Company, 3 Whart. 75; Fitler v. est weight; Imhoff v. Smith, 3 
 Beckley, 2 W. & S. 458; Smith v. Phila. 381. 
 
 Smith, 21 Pa. 367. See contra Kel- aiCorr v. Sellers, 100 Pa. 169. 
 
 ly V. Holdship, i Browne 36. See ,,xt. , , ^^ _ _ 
 
 ■'. „ „ ^' -^ 322S[,chols V. Haynes, 78 Pa. 174; 
 
 ■ ** ■ Barnet v. Steinbach, i W. N C. 
 
 ^"Corr V. Sellers, 100 Pa. 169; 335; Hostetter v. Fenstermacher, i 
 
 Fulton s Estate, 178 Pa. 78. w. N. C. 466. See § 104. A clerk 
 
 3"Crouse v. Miller, 10 S. & R. who has no personal knowledge of 
 iSS ; Churchman v. Smith, 6 Whart. a transaction entered in a book 
 146; Shoemaker v. Kellog, 11 Pa. cannot be permited to testify to the 
 310; Wright V. Sharp, i Browne entries, the best evidence being the 
 344. Where oral testimony of the book itself: Zimmerman v. Rail- 
 clerk who made the entries differs road, 242 Pa. 444, 
 
BOOK. ENTRIES. IO3 
 
 missible as such are competent for the purpose of refreshing the 
 memory of the witness. ^^ 
 
 The books themselves must be produced as the best evidence. 
 Extracts copied from book entries will not be admitted.^* But if a 
 copy of plaintiff's book entries is filed in assumpsit in accordance 
 with a rule of court, and there is no denial of them by the de- 
 fendant, such copy is prima facia evidence of the sale and de- 
 livery of the goods,^" and the mere allegation by defendant that 
 the prices charged were too high, without denying the dealings 
 represented by the entries, will not prevent the admission of the 
 copy.^" It is not necessary, where the account is not so denied, 
 that one suing as administrator should have personal knowledge 
 of the correctness of the account.^' 
 
 § 98. Character of Books. The particular style or name of 
 the book in which the entries are made is immaterial. The test 
 is whether it contains the history of the daily transactions as they 
 occur, showing charges for sales made or work done as the case 
 may be. 
 
 Memoranda made on a slate or loose paper are not book en- 
 tries; but a book made up from such memoranda may be re- 
 ceived as the book of original entries.^* A day book which, as its 
 
 ssNichols V. Haynes, 78 Pa. 174. ssgiackstock v. Leidy, 19 Pa. 335. 
 
 2*Juniata Bank v. Brown, 5 S. & See §§ 65 and 66 for rule govern- 
 
 R. 226; Renshaw v. Proctor, 16 ing admissions in pleadings. 
 
 W. N. C. 495 ; Budden v. Petriken, 3«McCloy v. Maffett, 59 Pa. 344 ; 
 
 S Watts 286. But where a settle- Nellis v. Reiter, 2 W. N. C. 203. 
 
 ment was made from a copy taken ^^Mattern v. McDevitt, 113 Pa. 
 
 from an account, whicii had been 402. 
 
 in the possession of the opposite ^^Thompson v. McKelvey, 13 S. 
 
 party for several months without & R. 126; Hough v. Doyle, 4 Rawle 
 
 objection, a copy of such copy, to- 291; ^reinig v. Meitzler, 23 Pa. 
 
 gether with the book from which it 156; Keener v. -Zartman, 144 Pa. 
 
 was taken showing the same bal- 179. See § loi. An unsigned 
 
 ance due, is admissible : Phillips memoranda, though made in a book 
 
 V. Tapper, 2 Pa. 323. Extracts of original entries, is not admissible 
 
 from books of merchants in a dis- when offered on behalf of the party 
 
 tant state have been held admissible making it : Hottle v. Weaver, 206 
 
 to prove shipments by them, if sup- Pa. 87 ; but the mere fact that the 
 
 ported by the oath of the clerk who book contains other entries which 
 
 made the entries, or by proof of his are not original, does not render 
 
 hand-writing if he cannot be pro- those offered inadmissible : Ives v. 
 
 cured: Bell v. Keely, 2 Yeates 255. Niles, 5 Watts 323; Wollenweber 
 
 See § 285. y. Ketterlinus, 17 Pa. 389. 
 
I04 PENNSYLVANIA. TRIAL KVIDENCE. 
 
 name implies, is a book of daily transactions, is perhaps the most 
 usual book of original entries, though the manner and form of 
 keeping such records varies greatly in modern times and is con- 
 stantly changing to adapt itself to the needs of changing business 
 conditions. But a day book into which entries from a counter 
 book had been copied from time to time as the parties had oppor- 
 tunity, is not a book of original entry. In such case the counter- 
 book, if preserved as a permanent record, is the original.'"' A 
 journal in which entries were made at the time orders were filled, 
 is the proper evidence thereof, notwithstanding such orders were 
 frenquently received a long time prior thereto, and were entered 
 in an order book as received.*" A pass book containing entries 
 by a creditor, and which the debtor keeps in his possession, is 
 evidence against the debtor as an admission, regardless of whether 
 the items therein are the proper subjects of proof by book en- 
 tries.*^ A ledger which refers to other books not produced and 
 not purporting to be a book of original entries, is not admissible 
 as such.*^ But if the book is in fact one of original entries, it 
 will not be rejected merely because it was kept in ledger form.*^ 
 An order book** or an invoice book,*" is incompetent to prove the 
 sale or delivery of goods, nor is a book containing certain data 
 intended for use in making settlements with workmen, admissible 
 to show a sale of goods specified therein, *° even though it also 
 contains the names of the purchasers of the material.*^ Such 
 special account books are not evidence for any other purpose than 
 
 '"Breinig v. Meitzler, 23 Pa. 156. party charged : Scranton Trust Co. 
 
 •'"Laircl V. Campbell, 100 Pa. 159. v. Hartshorn, 36 Super. 208. 
 
 It is the sale of the goods, not the ^^Hoover v. Gehr, 62 Pa. 136; 
 
 receipt of the order, which is the Phila. v. Tradesmen Trust Co., 38 
 
 subject of proof by book entries. Super. 286. 
 
 See § 106. , ' *4Groff's Estate, 38 L. I. 261 ; 
 
 ■tiRuch V. Fricke, 28 Pa. 241; LaJrd v. Campbell, 100 Pa. rsp. 
 
 Mobr's Estate, 49 P. L. J. 438. isCooper v. Morrel, 4 Yeates 
 
 *2Huston's Estate, 167 Pa. 217; 341. But such book is admissible 
 
 Miller's Estate, 188 Pa. 214. Even where the invoice is referred to in 
 
 where the books of original entries a letter previously admitted and 
 
 were destroyed by fire, a ledger forming the basis of the action : 
 
 showing only the balance of an ac- Roebling's Sons Co. v. Constr. Co., 
 
 count is not admissible if there is 231 Pa. 261. 
 
 no witness produced who could say ■'"Alexander v. Hoffman, S W. & 
 
 the charge was composed of items S. 382. 
 
 known to have been furnished the *'Rogers v. Old, 5 S. & R. 404. 
 
BOOK ENTRIES. 105 
 
 that for which they are ke'pt.*^ A time book made up from time 
 sHps is not a book of original entries and not admissible as such 
 to show the hours of emploj'ees."' But when made up from 
 memoranda regularly handed in by the employee, and regular 
 payments in accordance therewith are shown to have been made, 
 it is admissible in a dispute between the parties concerning the 
 contract of employment.^" A receipt book containing receipts 
 for goods delivered to drivers, and signed by the person receiv- 
 ing them, is inadmissible as a book of original entries in absence 
 of proof that the book was kept according to a general custom in 
 that kind of business.^' A book of check stubs, containing 
 memoranda of checks drawn, is in no sense a book of original 
 entry,^- although such book may be received to show whether a 
 testator, in making voluntary payments to his son, intended such 
 payments as gifts or advancements.^" 
 
 § 99. Course of Business. In order to be admissible as a book 
 of original entries, it must appear that the accounts were entered 
 therein in the regular routine or course of the business of the 
 party offering them.^* A book containing charges against one 
 person only,^^ or entries made without intent to charge a party 
 and not in accordance with any business practice,^* or which 
 is merely a record of the casual sale of articles not ordinarily 
 handled in the party's line of business, is incompetent.'' 
 
 § 100. Form of Entries. A book account must, on its face, 
 appear to charge the defendant as a debtor for work done or for 
 goods sold and delivered, otherwise it is inadmissible,'^ and can- 
 
 ^^Gamber v. Wolaver, i W. & S. ''Entries charging for a liorse sold 
 
 6o. by one not in the business of buy- 
 
 ■'^Bockelcamp v. Railroad, 232 ing and selling horses : Shoemaker 
 
 Pa. 66; Leskie v. Kern, 2 W. N. C. v. Kellog, 11 Pa. 310; or for the 
 
 676. sale of river fiats by one not in that 
 
 '"Webb V. Lees, 149 Pa. 13. business : Stuckslager v. Neel, 123 
 
 'iSterrett v. Bull, i Bin. 234. Pa. 53, are incompetent to prove 
 
 '^Reddelien v. Atlcinson, 46 the sale. 
 
 Super. 159. ssRogers v. Old, S S. & R. 404; 
 
 '^Laning's Estate, 241 Pa. 98. , Fairchild v. Dennison, 4 Watts 258; 
 
 '^Shoemaker v. Kellog, 11 Pa. Alexander v. Hoffman, 5 W. & S. 
 
 310. 382; Phillips V. Tapper, 2 Pa. 323; 
 
 "Smith V. Lane, 12 S. & R. 80; Wall v. Dovey, 60 Pa. 212. Books 
 
 Fulton's State, 178 Pa. 78; Mc- of a third person, though contain- 
 
 Knight V. Newell, 207 Pa. 562. ing an account of items in a suit, 
 
 '^Walter v. BoUman, 8 Watts are not admissible, as they do not 
 
 S44, purport to be an account charging 
 
I06 PENNSYLVANIA TRIAL EVIDENCE. 
 
 not be offered in connection with otlier proof to supply such 
 omission. The entries must be self sustaining."'" An incompetent 
 entry does not become competent because of letters between the 
 parties mentioning a balance due the plaintiff, but not specifying 
 the amount to be the same as that shown in the account offered. ^^ 
 However, if other evidence is given which renders the entries 
 relevant as a link in a chain of circumstances tending to prove 
 the sale and delivery of goods, they become competent as such, 
 though inadmissible as book entries. °^ Entries incompetent as 
 book entries may also be used by the witness as a memorandum 
 to refresh his memory. "- 
 
 Charges in a book of original entries need not be in such form 
 as to be understood by the general public, providing they are in- 
 telligible to those in the business. But in the latter case, they 
 should be supported by evidence of their meaning and character."^ 
 Lumping charges without specifying details of the account, is 
 not permissible."* But if a witness testifies to the items of which 
 the entry is composed, it may be used by him as a memorandum 
 to refresh his memory."^ 
 
 A book of original entries is not incompetent merely because 
 written in pencil,"" though such fact is a circumstance which may 
 be considered in determining its credibility."^ 
 
 § 101. Memoranda — Accounts Copied From. In modern times, 
 when business is transacted on a large scale, it is necessary to 
 have different clerks in the different departments of the busi- 
 ness, and it is the rule rather than the exception that the actual 
 
 the defendant with goods delivered "^^j^gi^fiight v. Newell, 207 Pa. 
 
 to him by the plaintiff: Holt v. 562. See § 104. 
 Pie, 120 Pa. 425. See § 94. Neither "^Fulton's Estate, 178 Pa. 78. A 
 
 is the defendant's book of entries charge for "medicine" in a physi- 
 
 of work done for him or goods sold cian's book of original entries, is 
 
 to him by the plaintiff within the not too indefinite merely because 
 
 principle on which the plaintiff's the different drugs prescribed and 
 
 books are admitted: Summers v. the proportions of each are not 
 
 M'Kim, 12 S. & R. 405; Keim v. given: Staggers's Estate, 8 Super. 
 Rush, s W. & S. 377- . 260. 
 
 ""Hough V. Doyle, 4 Rawle 291 ; o^Baumgardner v. Burnham, 10 
 
 Wall V. Dovey, 60 Pa. 212. W. N. C. 445; Corr v. Sellers, 100 
 
 8»Worman v. Boyer, 14 S. & R. Pa. 169; Fulton's Estate, 178 Pa 
 
 212, 78. 
 
 "'Rogers v. Old, S S. & R. 404; ""Nichols v. Haynes, 78 Pa. 174. 
 
 Roebling Sons Co. v. Construction ""Hill v. Scott, 12 Pa. 168. 
 
 Co., 231 Pa. 261, "'Walton's Estate, 4 Kulp 487. 
 
BOOK ENTRIES. 107 
 
 sale of an article is made by one person, and the book entity by 
 another in a different department, who records not only the sale 
 of the one person, but also similar sales of many otlier employees. 
 Some length of time must necessarily elapse therefore before the 
 transaction is actually recorded in a permanent book of original 
 entry, and in the meantime some memorandum of it must be made 
 by the person who made the sale. The making of such memo- 
 randum does not constitute it the original entry, but the book into 
 which the memorandum is copied, whether on the same day, or 
 within a reasonable time,"* becomes the book of original entries 
 for the purpose of evidence. "' 
 
 § 102. Parties Against Whom Entries May be Offered. Book 
 entries are competent not only to charge the person against whom 
 they were made, but also against those who claim through him 
 or succeed to his rights,'" and therefore a book charging goods 
 to others than the defendant, is admissible to show the amount 
 and price of the articles if accompanied by other evidence that 
 the defendant was in fact the real purchaser.'''^ 
 
 Entries showing goods sold to a wife may be offered in evi- 
 dence against her husband without prior proof of the liability 
 of the husband to pay for them, the fact of sale to the wife being 
 one of the issues in the case, and it bein^ immaterial that 
 proof of it preceded proof of liability of the husband to 
 pay for them.''^ But joint entries against a husband and 
 wife for goods purchased by the wife, are not conclusive 
 evidence of a joint contract by them,'^ nor is an account against 
 a wife for necessaries evidence to fix liability against her sepa- 
 rate estate.'^* But entries against a husband are admissible against 
 his wife in an action where both are parties, if it appears he acted 
 as her agent. '^ And in proceedings on a mechanics' lien filed 
 against a house constructed on property belonging to a married 
 woman under contract made with her husband, charges against 
 
 •^^See § 107. '"Farmers' Bank v. McKee, 2 Pa. 
 
 <">Patton V. Ryan, 4 Rawle 408; 318. 
 Ingraham v. Bockius, 9 S. & R. '^Linn v. Naglee, 4 Whart. 92; 
 
 28s ; Jones v. Long, 3 Watts 325 ; Chambers v. Yarnall, 15 Pa. 265. 
 Breinig v. Meitzler, 23 Pa. 156; '^greinig v. Meitzler, 23 Pa. 156. 
 
 Hoover v. Gehr, 62 Pa. 136; Phila. '^^Rigoney v. Neiman, 73 Pa. 330. 
 
 V. Trust Co., 38 Super. 286. See ''iMoore v. Copley, 165 Pa. 296. 
 
 § 98. '^Hostetter v. Fenstermacher, i 
 
 W. N. C.A66. 
 
I08 PENNSYLVANIA TRIAL EVIDENCE. 
 
 the properly as belonging to him are admissible where it is shown 
 she ratified and adopted the contract made by him.^" 
 
 Book entries are not evidence of partnership. Therefore, en- 
 tries charging the defendants as partners are not admissible until 
 the plaintiff has given other evidence to show the existence of 
 a partnership relation/' although the trial judge may receive the 
 book in evidence on condition that proof of partnership be sub- 
 sequently given.'* Charges made in the name of a new firm in 
 accordance with instructions from one of the partners, are ad- 
 missible in an action against the firm in its old name,'" and 
 charges against one of two or more partners, made with intent 
 to charge the firm with work done or goods delivered to the firm, 
 are admissible in an action against the firm.^" 
 
 In a proceeding to enforce a mechanics' lien, the mere fact that 
 materials are charged on plaintiff's books in the name of the 
 contractor is not proof that his credit was relied on to the ex- 
 clusion of the credit of the building.*'^ 
 
 § 103. Proof — Court and Jury — Province Of. Before books 
 will be received in evidence, they must be proved by the person 
 who kept them, who should be preliminarily examined as to the 
 time and manner of making the entries. But if such person is 
 dead or out of the state, or for any other reason cannot be pro- 
 cured, his handwriting may be proved,*- and it is unnecessary to 
 go further and furnish evidence of the time and manner in which 
 the entries were made, if the account on its face appears to be one 
 of original entries. It will be presumed in such case that the 
 book was regularly kept as a record of daily transactions.*^ The 
 mere fact that the party charged admits that entries offered are 
 in the handwriting of a deceased person, does not estop him from 
 questioning the authenticity of a particular item therein.^^ 
 
 '"Bodey v. Thackara, 143 Pa. 171. ssRichg y. Broadfield, i Dall. 16: 
 
 "Johnston v. Warden, 3 Watts Sterrett v. Bull, i Bin. 234; Hay v, 
 
 toi. Kramer, 2 W. & S. 137; Ash v. 
 
 '^Bowers v. Still, 49 Pa. 65. Patten, 3 S. & R. 300; Patton v. 
 
 'fWilliamson v. Fox, 38 Pa. 214. .■Vsh, 7 S. & R. 116; Odell v. Cul- 
 
 s»Thompson v. Flanegan, 6 Phila. 'lert, 9 W. & S. 66; Alter v. Berg- 
 
 13; Bear v. Trexler, 3 W. N. C. haus, 8 Watts 77; Bulkley v. Wood, 
 
 314. 4 Super. 391. 
 
 siHommel v. Lewis, 104 Pa. 465. ''^Hoover v. Gehr, 62 Pa. 136; 
 
 See § 106. Lee v. Welsh, i W. N. C. 453. 
 
 ^■'Tower v. Hagner, 3 Whart, 48. 
 
BOOK ENTRIES. 109 
 
 Whether a book is one of original entries, is primarily a question 
 for the court. If on inspection of the book and an examination 
 of the party, it appears to be one not of original entries, it should 
 be rejected. But if this does not clearly appear, the question is 
 for the jury.^'^ If the book is admitted and testimony is subse- 
 quently given which raises a doubt as to its being one of original 
 entries, the question is also for, the jury.*" 
 
 § 104. Eefreshing Memory — Corroborative Evidence. Books 
 of account, whether admissible as books of original entries or not, 
 are competent to refresh the memory of a witness who has per- 
 sonal knowledge of the transactions,*^ or to corroborate his testi- 
 mony.** For this purpose the entries may be admitted to show 
 cash payments or lumped charges,*" and a bank book and check 
 book,"" and also a pay roll"' have been received. Shop books kept 
 in the name of a married woman are also competent to corrobor- 
 ate testimony of witnesses to the effect that the business had been 
 done in her name, and belonged to her."^ 
 
 § 105. Reputation for Accuracy. Where the accounts of a 
 particular person have been so frequently found to be inaccurate 
 as to destroy the confidence of his customers in himself and his 
 books, there is no reason why the jury should be permitted to give 
 them credit to which they are not entitled, and therefore proof 
 of their general reputation for accuracy among those dealing 
 with the owner, is competent as bearing on the weight to be given 
 them."^ If the person who made the entries is dead or beyond the 
 jurisdiction of the court, his general character for honesty and 
 correct bookkeeping may be shown, but not his character for 
 truth and veracity."* But if he be produced as a witness, his testi- 
 mony may be impeached by showing his character for truth and 
 
 ssRodman v. Hoops, i Dall. 85 ; used by witnesses for refreshing 
 
 Curren v. Crawford, 4 S. & R. 3; their memory, and also permitted it 
 
 Funk V. Ely, 45 Pa. 444. to go out with the jury : McKnight 
 
 **Van Swearingen v. Harris, I v. Newell, 207 Pa. 562. . See § 100. 
 
 W. & S. 356; Funk V. Ely, 45 Pa. sspjtier v. Eyre, 14 Pa. 392. 
 
 444; Hoover v. Gehr, 62 Pa. 136. s^Nichols v. Hayneg, 78 Pa. 174; 
 
 s^Nichols V. Haynes, 78 Pa. 174; Charles v. Bishoff, i Atl. 572. 
 
 Barnet v. Steinbach, i W. N. C. '"Patton v. Ash. 7 S. & R. ii6. 
 
 335 ; Hostetter v. Fenstermacher, i ''^Donohue v. Connor, 93 Pa. 356. 
 
 W. N. C. 466; Hottle V. Weaver, s^Welsh v. Cooper, 8 Pa. 217. 
 
 206 Pa. 87. A party cannot com- s^Weamer v. Juart, 29 Pa. 257. 
 
 plain of the refusal of an offer of a 9*Weamer v. Juart, 29 Pa. 257; 
 
 book as one of original entries Crouse v. Miller, 10 S. & R. 155. 
 where the court permitted it to be 
 
no 
 
 PENNSYLVANIA TRIAL EVIDENCE. 
 
 veracity, and at the same time the reputation of the books for 
 honesty and accuracy may be attacked."^ 
 
 Evidence of the general bad character of the books is not lim- 
 ited to such as relates to .the account in question, but it may be 
 shown that charges against other persons contained therein were 
 false or fraudulent."" Particular acts of irregularity in keeping 
 the accounts have been held admissible as being the only way in 
 which it is possible to show reputation."^ But the inquiry should 
 be limited to a period at or near the time covered by the account 
 in question."^ 
 
 § 106. Subject of Entries. The rule admitting book entries 
 to prove commercial transactions is confined to such entries as 
 are regularly made of goods sold or work done in the usual course 
 of the business of the person on whose behalf they are offered, 
 and has never been extended to prove cash paid or money 
 loaned,"" or collateral or special transactions and contracts inci- 
 dental to the business of the party offering them.^"" Such trans- 
 
 "^Crouse v. Miller, lo S. & R. 
 iSS; Barber v. Bull, 7 W. & S. 
 391; Funk V. Ely, 45 Pa. 444. 
 
 ""Funk V. Ely, 45 Pa. 444. 
 
 "'Barber v. Bull, 7 W. & S. 391. 
 
 »8Funk V. Ely, 45 Pa. 444. 
 
 ''•Duncoign v. Schreppel, i Yeates 
 347 ; Saam v. Saam, 4 Watts 432 ; 
 Hale V. Ard, 48 Pa. 22 ; Ahl v. Ahl, 
 176 Pa. 466; Reddelien v. Atkin- 
 son, 46 Super. 159. But a book of 
 original entries is evidence to show 
 the appropriation of a payment to 
 items specified therein : McQuaide 
 V. Stewart, 48 Pa. 198; and books 
 of an agent containing expenses in- 
 curred by him in fitting up his 
 master's vessel in a foreign port, 
 have been held admissible because 
 of the necess'ity of the case due to 
 the difficulty of securing other 
 proof : Seagrove v. Redman, 2 
 Yeates 254. Entries made many 
 years before have been admitted un- 
 der particular circumstances, for 
 the purpose of supporting a pre- 
 sumption of payment of a note : 
 Rodman v. Hoops, i Dall. 85. 
 
 i<>°Alexander v. Hoffman, 5 W. 
 & S. 382 ; Phillips V. Tapper, 2 Pa. 
 323; Schnader v. Schnader, 26 Pa. 
 384; Eshleman v. Harnish, 76 Pa. 
 97. The rule excluding entries to 
 prove collateral or special trans- 
 actions has been applied to the sale 
 of a horse by one not in the busi- 
 ness of buying and selling horses : 
 Shoemaker v. Kellogg, II Pa. 310; 
 the sale of river flats : Stucklager 
 v. Neel, 123 Pa. 53; or of land: 
 Handley v. Barrett, 176 Pa. 246; 
 or the cutting and delivery of 
 wood: Nickle v. Baldwin, 4 S. & 
 R. 290; Alexander v. Hoffman, 5 
 W. & S. 382; or where offered to 
 show the price of board or re- 
 freshments served : Gibbons's Es- 
 tate, I Camp. 10; or the terms on 
 which goods were delivered : 
 Baisch v. HofI, i Yeates 198; Mur- 
 phy v. Cress, 2 Whart. 33; or to 
 prove commissions for sale of 
 realty: 'Boyd v. Ins. Co., 113 Pa. 
 269; or to show premiums collect- 
 ed by an agent in action by insur- 
 ance company to recover same. 
 
BOOK ENTRIES. 
 
 Ill 
 
 actions are usually susceptible of proof by other evidence, either 
 parol or written, and the books are therefore not the best evi- 
 dence of them;^ moreover, the action is on the contract, not on 
 the book account,^ and where the contract is for goods to be 
 manufactured and delivered in the future, title to the goods does 
 not pass at the time the contract is made and they are not sub- 
 ject to a book charge nor may deliveries thereunder be so proved," 
 even though the accounts were kept in such manner that they 
 would have been competent as original entries in the absence of 
 contract.* 
 
 In a proceeding to enforce a mechanics' lien, book entries are 
 admissible to prove that the materials for the price of which suit 
 is brought were furnished at and for the particular building which 
 is the subject of the lien,^ or to prove the amount and items of the 
 claim, leaving the proof of the fact that the work was done on the 
 c'redit of the building to be shown by parol evidence." It is un- 
 
 Wissahickon Ins. Co. v. Wana- 
 macher, 15 Super. 580; or that 
 the person who kept the books was 
 an agent of the plaintiff, and not 
 his tenant : Townsend v. Kerns, 
 2 Watts 180; or a promise to pay 
 a debt: Poultney v. Ross, i Dall. 
 238; or that plaintiff had received 
 payments for the goods from a 
 third person : Winter v. Newell, 
 49 Pa. 507; or that goods sold a 
 wife were necessaries for which the 
 husband was liable : DeBraham v. 
 Walker, 3 W. N. C. 26; or on be- 
 half of defendants to show certain 
 payments on account: Hess's Ap- 
 peal, 112 Pa. 168; or to show mem- 
 bership in a partnership : Juniata 
 Bank v, Brown. 5 S. & R. 226; 
 Ganzer v. Fricke, 57 Pa. 316; 
 though they are competent as ad- 
 missions of partnership as against 
 the owners of the books : Welsh v. 
 Speakman, 8 W. & S. 257; Richter 
 V. Selin, 8 S. & R. 425. Where 
 there is a dispute as to whether 
 a certain balance was due on ac- 
 count of a particular transaction, a 
 party to a contract cannot prove it 
 
 by showing as an independent item 
 ot evidence that he had charged 
 himself with the consideration in 
 liis own books : Fifth Mutual Bldg, 
 Society v. Holt, 184 Pa. 572. 
 
 ^Lonergan v. Whitehead, 10 
 Watts 249; Myers v. Brice, 2 
 Penny. 382. 
 
 ^Schnader v. Schnader, 26 Pa. 
 384. But the mere fact that a sale 
 of goods was founded on a written 
 order on blanks provided for the. 
 purpose of designating quality, 
 quantity, etc., does not prevent their 
 being made the proper subject of 
 a book account and the foundation 
 of an action based on such account: 
 Vallee Bros. Electric Co. v. North 
 Penn Iron Co., 32 Super, iii. 
 
 ^Lonergan v. Whitehead, 10 
 Watts 249. 
 
 *Hall v. Woolen Co., 187 Pa. 18. 
 
 ^McMuUen v. Gilbert, 2 Whart. 
 277; Chambers v. Yarnall, 15 Pa. 
 265. 
 
 ^Presbyterian Church v. Allison, 
 10 Pa. 413 ; Chambers v. Yarnall, 
 IS Pa. 26s; Noar v. Gill, in Pa. 
 488. The mere fact that materials 
 
112 PENNSYLVANIA TRIAL EVIDENCE. 
 
 necessary that the entries should designate the precise materials 
 furnished to each, as the particular building may be shown by 
 parol.' 
 
 If the book has been open to the inspection of both parties, 
 entries made therein are competent as admissions, regardless ot 
 the subject or form of the entry.' And in a dispute as to wages 
 between an employer and employee, entries made in accordance 
 with memorandum handed in by the employee and showing regu- 
 lar payments of wages in accordance therewith, are the best evi- 
 dence of the proper construction of the contract between them." 
 
 § 107. Time of Making Entries. While the law fixes no pre- 
 cise time within which entries must be made, it should be done 
 at or near the time of the transaction, that is, at the time of the 
 sale and delivery in accordance with the usual course or require- 
 ments of the business. The accounts must not be a record of 
 past transactions, but of transactions as they occur."' 
 
 The proper time to make the entry is when the work is done or 
 the goods are delivered, either actually, or constructively by 
 setting aside for the purpose so that title to the property passes,^ ^ 
 or when articles ordered to be made are finished and ready for 
 delivery,'- or during the progress of the work and after it has 
 reached a certain stage of completion'" or the quantity and value 
 
 are cliarged in the name of the con- S. 9. Books are competent where 
 
 tractor is not conclusive evidence the entries were made at the time 
 
 that his credit alone was relied of loading the goods on delivery 
 
 upon and not the credit of the wagons : Curren v. Crawford, 4 S. 
 
 building: Hommel v. Lewis, 104 & R. 3 ; Keim v. Rush, 5 W. & S. 
 
 Pa. 465. z^y; or after live stock had been 
 
 ''Church V. Davis, 9 Watts 304; loaded and weighed and the vendor 
 
 Millett V. Allen, 3 W. N. C. 374; had returned to his home or place 
 
 Wolf V. Batchelder, 56 Pa. 87; of business: Schollenberger v. 
 
 Singerly v. Doerr, 62 Pa. 9. Seldonridge, 49 Pa. 83 ; or when 
 
 ^Darlington v, Taylor, 3 Grant goods have been selected by the 
 
 igS ; Welsh v. Speakman, 8 W. & purchaser and set aside for deliv- 
 
 S. 257 ; Ege's Appeal, 2 Watts 283 ; cry : Parker v . Donaldson, 2 W. 
 
 Himes v. Barnitz, 8 Watts 39; & S. 9; or when an order for 
 
 Ruch V. Fricke, 28 Pa. 241 ; Pall- goods is filled, though received 
 
 man v. Smith, 135 Pa. 188. long prior thereto : Laird v. Camp- 
 
 "Webb V. Lees, 149 Pa. 13; Td., bell, 100 Pa. 159. 
 153 Pa. 436. '^WoUenweber v. Ketterlinus, 17 
 
 '"Curren v. Crawford, 4 S. & R. ^a- 389. 
 3; Jones v. Long, 3 Watts 325. i^Kaughley v. Brewer, 16 S. & R. 
 
 iiParker v. Donaldson, 2 W. & 133. 
 
BOOK UNTRIES. 113 
 
 of materials used is determined." Entries made by a laborer on 
 Saturday nights of work done during the week, with items of 
 cash received during the same time, are admissible.'^ Entries in 
 a day book should be made on the evening of the same day or 
 on the following day, in absence of some reason for further delay 
 due to the peculiarities of the business.'" Entries copied from 
 memorandum of deliveries made by drivers, on the day following 
 such deliveries," or from cartage slips or delivery tickets at or 
 near the time the slips were signed,'* or made by a blacksmith 
 and copied several days to a week later from slate memoranda of 
 work done,'" are admissible. But entries made from slate or 
 pencil memoranda several days to two weeks thereafter,^" or 
 charges for liquor entered on a slate in a bar room and tran- 
 scribed within a couple of days,^' or entries from memoranda 
 made on loose scraps of paper carried in the pocket of the party 
 several days before transcribing,-- have been held inadmissible. 
 A book in which entries had all been copied at one time from 
 a memorandum book dating back several years, is also incompe- 
 tent." 
 
 Entries made when goods are ordered, but before delivery, are 
 not admissible.^* Where orders were sometimes not filled for 
 thirty days, at which timp the entries were transferred to a 
 journal with prices added, the journal is the proper book to prove 
 the account.-" 
 
 § 108. Whole of Accounts. One who offers in evidence a book 
 account thereby renders the whole of such account competent 
 so far as relevant to the question involved, and if only a part has 
 been offered, the remainder is at the disposal of the other for 
 the purpose of making his defense.^" If books are produced on 
 
 i*Koch V. Howell, 6 W. & S. 350; ^oKissler v. M'Conachy, i Rawle 
 
 Bolton's Appeal, 3 Grant 204; Ben- 435; Patterson v. Mfg. Co., 2 
 
 uers V. Maloney, 3 Phila. S7 ; Shan- Woodw. 215; Forsythe v. Norcross, 
 
 non V. Starkey, 5 Phila. 153. S Watts 432. 
 
 is^YearsIey's Appeal, 48 Pa. 531. ^iQgden v. Miller, i Browne 147. 
 
 1" Walter v. BoUmajn, 8 Watts ^^vicary v. Moore, 2 Watts 45 1- 
 
 544. ^^Geiger's Appeal, i Mona. 547. 
 
 i^Jones V. Long, 3 Watts 325. -*Parker v. Donaldson, 2 W. & S. 
 
 isphila. V. Trust Co., 38 Super. 9] Rhoads v. Gaul, 4 Rawle 403; 
 
 2gg Thompson v. Bullock, 2 Miles 269; 
 
 isHartley v. Brooks, 6 Whart. Rheem v. Snodgrass, 2 Grant 379. 
 
 189; M'Coy V. Lightner, 2 Watts ^s^aird v. Campbell, 100 Pa. 159. 
 
 347. 26Lancaster's Estate, t8 Phila. 10. 
 
 8 
 
114 PENNSYLVANIA TRIAL EVIDENCE. 
 
 notice and the party calling for them offers certain entries, the 
 other party may then read other entries connected with the subject 
 matter of the account, if made prior to the commencement of the 
 suit." 
 
 ^'Withers v. Gillespy, 7 S. & R. lo; Towers v. Hagner, 3 Wliart. 
 
 48. 
 
CHARACTER. II5 
 
 CHAPTER IV. 
 
 CHARACTER. 
 
 109. 
 1 10. 
 Ill 
 112, 
 
 "3 
 
 114. 
 
 115 
 116, 
 117, 
 118, 
 119. 
 120, 
 
 General principles. 
 
 Civil cases — Competent in rebuttal only. 
 
 Book accounts, action on. 
 
 Breach of promise of marriage. 
 
 Libel and slander. 
 
 Malicious prosecution and false imprisonment. 
 
 Seduction. 
 
 Wages of minor child^ — Action for, by mother. 
 Criminal cases — Generally. 
 
 Mitigation of crime. 
 
 Weight and effect as evidence. 
 Witnesses — Qualifications of. 
 
 § 109. General Principles. The word "character," both in 
 civil and criminal cases, means reputation as distinguished from 
 disposition. Character grows out of particular acts but is not 
 proved by them, since a person may, under the stress of special 
 circumstances, do a certain thing which is contrary to his ordinary 
 disposition and practice. Moreover, to permit character to be 
 shown by particular acts would be to create as many collateral 
 issues as there are acts to be proved, and thus confuse the jury 
 as to the real issue and prolong the trial. The established method 
 of proving character, therefore, is by showing the general repu- 
 tation of the person in the neighborhood in which he lives, and in 
 respect to the particular characteristic or trait which is the sub- 
 ject matter of investigation.^ The same rule appHes to evidence 
 offered in rebuttal of evidence of good character.^ 
 
 § 110. Civil Cases — Competent in Rebuttal Only. In civil pro- 
 ceedings, evidence of the character of a party is inadmissible un- 
 
 , iprazier v. Railroad, 38 Pa. 104; impeach his credibility, see §§ 472- 
 
 Alexander v. Com., 105 Pa. i. The 475. 
 
 fact that a person's character is not ^gyidence of good character in a 
 
 talked about in his neighborhood is criminal case cannot be rebutted by 
 
 evidence that it is good : Milliken evidence of an unlawful attempt to 
 
 v.. Long, 188 Pa. 411; Com. v. influence a juror: Com. v. Brown, 
 
 Howe, 35 Super. 554- For princi- 23 Super. 470; or of particular acts 
 
 pies governing admission of evi- of cruelty or brutality: Snyder v. 
 
 dence of character of a witness to Com., 85 Pa. 519. 
 
ii6 
 
 PENNSYIvVANIA TRIAL EVIDENCE. 
 
 less directly in issue or involved in the nature of the proceedings,^ 
 and even then evidence of good character is not admissible unless 
 and until it is attacked by evidence to the contrary, it being pre- 
 sumed to be good in absence 'of proof that it is bad.* It is im- 
 material, however, whether the attack be by direct evidence or by 
 insinuations and abuse on cross examination.' 
 
 It is the nature of the issue itself, and not the consequences to 
 be apprehended from the result, that puts character in issue," and 
 therefore the mere fact that the act in question is indictable if 
 proved,'' or that fraud is charged in the pleadings,' is insufficient. 
 To be in issue in a technical sense, character must be of particular 
 importance and therefore a material fact in the case." 
 
 ^Blackburn v. Holliday, 12 S. & 
 R. 140 ; Atkinson v. Graham, S 
 Watts 4U ; Porter v. Seiler, 23 Pa. 
 424; American Fire Ins. Co. v. 
 Hazen, no Pa. 530. 
 
 ■>Petrie v. Rose, 5 W. & S. 364; 
 Braddee v. Brownfield, 9 Watts 
 124; Chubb V. Gsell, 34 Pa. 114; 
 Clark V. North American, 203 Pa. 
 346; Burkhart v. North American, 
 214 Pa. 39. 
 
 i'Postens V. Postens, 3 W. & S. 
 127; Clark V. North American, 203 
 Pa. 346. 
 
 ^'Porter v. Seiler, 23 Pa. 424. 
 
 'Character is not brought in is- 
 sue merely because the defense to 
 an action on a fire insurance policy 
 charged the plaintiff with wilfully 
 causing the fire: American Fire 
 Ins. Co. V. Hazen, no Pa. 530. And 
 in an action for trespass for dam- 
 ages for stabbing the plaintiff, evi- 
 dence of good character of the de- 
 fendant is inadmissible, even for 
 the purpose of rebutting malice : 
 Porter v. Seiler, 23 Pa. 424 ; nor 
 is evidence of the respondent's rep- 
 utation for chastity admissible in 
 an action for divorce on the ground 
 of adultery : Talley v. Talley, 29 
 Super. 535. 
 
 'Anderson v. Long, 10 S. & R. 
 55; Nash V, Gilkeson, 5 S. & R. 
 
 352; Battles \. Laudenslager, 84 
 Pa. 446. 
 
 "The character of the plaintiff in 
 an action for libel or slander or of 
 ;i woman in an action for seduc- 
 tion is relevant : Leckey v. Bloser, 
 24 Pa. 401 ; American Fire Ins. 
 Co. V. Hazen, no Pa. 530. See 
 §S 112 and 115. Where the bene- 
 ficiary is shown to have induced a 
 testator to disinherit a contestant 
 of a will by represening that the 
 latter's wife was a person of ex- 
 travagance and general bad char- 
 acter, evidence is admissible of the 
 food character of the wife in order 
 to establish the allegation of fraud 
 and imposition in making the will 
 by proving that the representations 
 made to the testator were in fact 
 untrue: Dietrick v. Dietrick, 5 S. 
 & R. 207; and where in an issue 
 devisavit vel non, the contestant al- 
 leges fraud and undue influence on 
 the part of the principal devisees 
 under the will, consisting of repre- 
 sentations to the testator that they 
 were women of good character, 
 and that by keeping testator in a 
 state of intoxication they succeeded 
 in securing a will in their favor; he 
 may show that the beneficiaries are 
 persons of bad character: Nussear 
 v, Arnold, 13 S. & R. 323. 
 
charactue. 117 
 
 § 111. Civil Cases — Book Accounts, Action On. In an action 
 on book accounts, the general bad character of the person who 
 made them for dishonest and incorrect bookkeeping, and also 
 the reputation of the books themselves tending to show they are 
 unworthy of confidence or belief, is admissible.^" 
 
 § 112. Civil Cases — Breach of Promise of Marriage. An action 
 for breach of promise of marriage, being founded on contract, 
 does not necessarily involve the character of the parties. But 
 since the action is brought to recover not only compensation for 
 the immediate injury occasioned by the breach, but also for loss 
 of reputation, which must necessarily depend upon the conduct 
 of the plaintifif before the breach complained of, the woman's bad 
 reputation for chastity is admissible in mitigation of damages. ^^ 
 Evidence of specific immoral or immodest acts on her part since 
 the alleged promise was made is also competent for the purpose 
 of reducing damages or as a total defense, as the case may be, 
 and such evidence cannot be rebutted by proof of general good 
 character.'^ 
 
 § 113. Civil Cases — Libel and Slander. In an action for libel 
 or slander, the plaintiff's character is directly in issue because 
 damage to it is the basis of his claim, and the extent of his 
 injury necessarily depends in some degree upon the reputa- 
 tion which he possessed and his standing among his fellowmen 
 before the publication of the defamatory matter. Therefore, 
 in order that the amount of compensation may be com- 
 mensurate with the injury, the defendant may show in mitiga- 
 tion of damages, under a plea of the general issue, that the gen- 
 eral reputation of plaintiff for the particular thing with which 
 he was charged, is.bad.^^ But evidence of general reports of the 
 
 lOCrouse v. Miller, 10 'S. & R. sheep, it is proper to show his gen- 
 
 155 ; Barber v. Bull, 7 W. & S. eral reputation as to being a thief : 
 
 391; Weamer v. Juart, 29 Pa. 257. Drown v. Allen, 91 Pa. 393; and 
 
 See § IDS- where fornication and adultery 
 
 "Leckey v. Bloser, 24 Pa. 401 ; was charged, plaintiff's bad reputa- 
 
 Van Storch v. Griffin, 71 Pa. 240. tion for chastity may be shown : 
 
 ^-Leckey v. Bloser, 24 Pa. 401. Conroe v. Conroe, 47 Pa. 198; but 
 
 I'^Steinman v. McWilliams, 6 Pa. not that she was reputed to be a 
 
 170; Henry v. Norwood, 4 Watts thief: Smith v. Buckecker, 4 
 
 347 ; Conroe v. Conroe, 47 Pa. 198 ; Rawle 294. Where the charge is 
 
 Good V. Publishing Co., 36 Super. perjury, evidence of the plaintiff's 
 
 238. Where plaintiff was accused general character for truth and ve- 
 
 of being a thief and having stolen racity is admissible: Moyer v. 
 
Il8 PENNSYLVANIA TRIAL EVIDENCE. 
 
 commission of particular acts by plaintiff, even though they be 
 of the commission of the offense charged, cannot be received un- 
 der such plea.'* The fact that the circumstances which gave rise 
 to the libelous words were communicated to the defendant by a 
 certain reputable person before he uttered them, and that he 
 merely repeated the words, is admissible to disprove malice and 
 in mitigation of damages.'^ 
 
 § 114. Civil Cases — Malicious Prosecution and False Imprison- 
 ment. An action for malicious prosecution or false imprisonment 
 is based, in part at least, on injury done to the character of the 
 plaintiff by reason of the prosecution, and it is for this injury 
 among others, that he claims damages, thus putting his character 
 directly in issue. He therefore stands in the same position as a 
 plaintiff in an action for libel or slander, and in order that the dam- 
 ages may be commensurate with the injury it becomes necessary 
 to know what reputation he enjoyed prior to the injury and to 
 what extent it has suffered. Evidence of his general bad repu- 
 tation may therefore be given by the defendant as tending to 
 prove probable cause for the prosecution and in mitigation of 
 damages. It has also been held that a plaintiff in such action may, 
 for the purpose of showing want of probable cause, give evi- 
 dence of his good character in his case in chief without waiting 
 for it to be attacked by the defendant.'^ The reason given for 
 departing from the usual practice in civil cases is that the burden 
 is on the plaintiff to prove that defendant did not have probable 
 cause for instituting the prosecution, and in order to do so he 
 ought to be permitted to prove the material fact of his previous 
 good character and that defendant had knowledge of it. 
 
 Moyer, 49 Pa. 210; and where 276; Stepp v. Croft, 18 Super. loi. 
 
 plaintiff was charged with having Where in an action by a husband 
 
 stolen or embezzled money from and wife for slander of the wife, 
 
 an estate of which he was executor, the defense is that the husband had 
 
 defendant may give evidence as to originated the slander and induced 
 
 plaintiff's general reputation for the defendant to publish it, the bad 
 
 dishonesty: Good v. Publishing character of the husband cannot be 
 
 Co., 36 Super. 238. shown as evidence that the defend- 
 
 i*Fitzgerald v. Stewart, 53 Pa. ant should not have credited his 
 
 343; Lukehart v. Byerly, 53 Pa. statements: Tibbs v. Brown, 2 
 
 418; Pease v. Shippen, 80 Pa. 513. Grant 39. 
 
 ispitzgerald v. Stewart, 53 Pa. i«Glace v. Hummel, 10 Dist. no; 
 
 343 ; Lukehart v. Byerly, 53 Pa. Henning v. Wamsher, 3 Berks 71. ' 
 418; Leitz V. Hohman, 16 Super. 
 
CHARACTER. 119 
 
 It has been held that evidence of the character of the plaintiff 
 is not admissible in mitigation of damages where only the general 
 issue is pleaded.^' This decision was based on the ground that a 
 plaintiff should not be called upon to defend his character when 
 it is not put in issue. But character would seem to be as directly 
 in issue in an action for malicious prosecution for a criminal of- 
 fense as in an action for libel or slander, where evidence of char- 
 acter is admitted under the general issue.^^ Evidence of plaintiff's 
 general character since the prgsecution is inadmissible for any 
 purpose, though it may perhaps be shown that his character since 
 the prosecution on subjects unconnected with the charge made by 
 the defendant, is bad.^^ But evidence of bad character since the 
 prosecution is not admissible as evidence of the existence of prob- 
 able cause at the time the prosecution was begun. ^^ 
 
 § 115. Civil Cases — Seduction. In an action for seduction, 
 the character of the woman is in issue and is therefore open to 
 attack, but as in other civil cases, evidence of her good character 
 cannot be given until the defendant has given evidence to the con- 
 trary.-^ The evidence of bad character must be confined to gen- 
 eral reputation for chastity, and specific acts of improper con- 
 duct of the woman with other men, are not admissible.^^ But if 
 such acts have been shown without objection, they cannot be re- 
 butted by proof of the woman's general good character.^^ Evi- 
 dence of the general good character of the defendant is not ad- 
 missible to rebut evidence of the good character of the person 
 seduced.^* 
 
 Under the Act of May 19, 1887, P. L. 128, relating to the un- 
 lawful abuse of a female child under the age of sixteen years, 
 the word "repute" means reputation as distinguished from char- 
 acter, and evidence of the reputation of the woman for chastity 
 is proper.^^ 
 
 § 116. Civil Cases — Wages of Minor Child — Action For, by 
 Mother. In a suit by a mother for earnings due her minor son, 
 under the Act of May 4th, 1855, P. L. 430, which gives her the 
 
 I'Russell V. Shuster, 8 W. & S. "Wilson v. Sproul, 3 P. & W. 49; 
 
 308. Milliken v. Long, 188 Pa. 411. 
 
 '*See § 113. 22jjoffman v. Kemerer, 44 Pa. 
 
 i^Winebiddle v. Porterfield, 9 Pa. 452. 
 
 137. ^^Zitzer v. Merkel, 24 Pa. 408. 
 
 ^oWinebiddle v. Porterfield. 9 Pa. s^Zitzer v. Merkel, 24 Pa. 408. 
 
 137 ; Com. V. Storey, 49 Pa. 282, ^sCom. v. Emery, 51 Super. S5- 
 309. 
 
I20 PENNSYLVANIA TRIAL EVIDENCE. 
 
 same right as the father where he has deserted them, providing 
 she shall "afford them a good example and be of suitable char- 
 acter," the defendant may offer evidence of the immoral char- 
 acter of the mother.-" 
 
 § 117. Criminal Cases — Generally. In criminal cases evidence 
 of character is generally relevant, and the fact that the defendant 
 is of good character may be shown without waiting for the com- 
 monwealth to give evidence to the contrary. But proof of char- 
 acter must be limited to the general reputation of the defendant 
 with respect to the particular offense charged," and evidence of 
 particular acts committed by him cannot be given even though it 
 tends to prove the act complained of.-* But if evidence of par- 
 ticular matters tending to prove bad character is introduced 
 without objection, the defendant may offer evidence to rebut it.-^ 
 
 Evidence of character of the defendant is irrelevant on the 
 trial of an indictment for selling imitation butter, if the sale is 
 admitted and the only issue of fact is whether the article was 
 butter,'" or in an action for libel if the publication of a writing 
 which the law declares to be a malicious libel and unprivileged 
 is admitted.'*' One who is indicted for recklessly running over 
 another with an automobile, may give evidence of his reputa- 
 tion for care and humanity as bearing on the question whether his 
 negligence was so wanton as to be inhuman, but not evidence of 
 his care and skill as a chauffeur.'^ 
 
 § 118. Criminal Cases — Mitigation of Crime. The disposition 
 of a defendant may not be shown for the purpose of excusing 
 or mitigating crime.^' To hold that because a particular person 
 
 -"Eustice V. Coal Co., 120 Pa. Cathcart v. Com., 37 Pa. 108. 
 299. -*0n the trial of indictment for 
 
 -'On an indictment for receiving abortion, wliere evidence has been 
 stolen goods, a good reputation for given of the defendant's general 
 honesty may be shown : Com. v. good character, proof in rebuttal of 
 Cohen, 36 Super. 263; but on an a reputation of defendant for pro- 
 indictment for forgery, evidence curing abortions is incompetent: 
 that the defendant was known as Com. v. Gibbons, 3 Super. 408. 
 a "bad man" is inadmissible : Pauli 29^bg,.f,jfi,y v. Com., loi Pa. 
 v Com., 8g Pa. 432 ; and on a mur- 322. 
 
 der trial, where the defendant was soQo,,^ y Kolb, 13 Super. 347. 
 
 given every opportunity to show his •"Com. v. Di Silvestro, 31 Super, 
 
 character for peacefulness, it was 537. 
 
 held no error to reject an offer to aaCom. v. LeClem, 16 Dist. 13. 
 
 prove that he had "always been =3Keenan v. Com., 44 Pa. 55. 
 
 known as a kind hearted man" : 
 
CHARACTER. 121 
 
 whose disposition may be more excitable, quarrelsome or dis- 
 honest, and who has less will power to resist temptation than a 
 moderate, evenly balanced and orderly citizen, should be held to 
 a less strict accountability for his acts, would put a premium on 
 viciousness and place an additional burden on morality and self 
 control. Therefore where the only plea in a homicide case is 
 "not guilty," insanity not being alleged, evidence that defendant 
 had a temperament and disposition which at certain times ren- 
 dered him incapable of deliberating or premeditating is inadmis- 
 sible.^* 
 
 If self defense h, relied upon in a prosecution for homicide, evi- 
 dence that the deceased or one who was aiding in the assault on 
 defendant had a violent and ferocious disposition, is admissible 
 if it appears the defendant had knowledge of it.**^ But where 
 no question of self defense arises or there is no offer to show that 
 the defendant had knowledge of the character of the deceased, 
 .such evidence will not be received.'" 
 
 § 119. Criminal Cases — Weight and Effect as Evidence. Evi- 
 dence of good character in a criminal case is substantial and posi- 
 tive evidence, not a mere make-weight to be considered in a 
 doubtful case, and it may of itself create a reasonable doubt and 
 thereby produce an acquittal. '' It is therefore error to charge 
 that such evidence should be considered only where there is a 
 doubt as to defendant's guilt, and that if he clearly appears to be 
 guilty, evidence of his previous good character should have no 
 weight.^* But on the other hand, if the jury be satisfied beyond 
 
 "Jacobs V. Com., 121 Pa. 586; Howe, 35 Super. 554; Com. v. 
 
 Kimmel v. Kimmel, 3 S. & R. 366. Howe, 42 Super. 136; Com. v. As- 
 
 It is not error to refuse to charge ton, 227 Pa. 106. A reputation for 
 
 in a homicide case that "cooling honesty in a neighborhood where 
 
 time * * * after a conflict, may the defendant lived for over a year 
 
 differ with different persons, ac- prior to his arrest, may raise such 
 
 cording to the constitution of their reasonable doubt of his guilt as 
 
 nature" : Small v. Com., 91 Pa. to warrant an acquittal : Com. v. 
 
 304. Cohen, 36 Super. 263. 
 
 '^Abernathy v. Com., loi Pa. ^^Heine v. Com., 91 Pa. 14s ; 
 
 322;^ TiflSany v. Com., 121 Pa. 165. Hanney v. Com., 116 Pa. 322; Com. 
 
 3«Com. V. Ferrigan, 44 Pa. 86; v. Sayars, 21 Super. 75; Com. v. 
 
 Com. V. Strasser, 153 Pa. 451. Mandela, 48 Super. 56. But where 
 
 ^''Hanney v. Com., 116 Pa. 323; the court properly charged on the 
 
 Com. V. Cleary, 135 Pa. 64; Com. question of reputation, it is not 
 
 V. Beingo, 217 Pa. 60; Com. v. ground for reversal merely because 
 
 Miller, 31 Super. 309; Cora. v. he said that "there arrives a time 
 
122 
 
 l'iiNNSVl,VANIA TRIAL liVIDENCE. 
 
 a reasonable doubt, and from all the evidence, including char- 
 acter, that the defendant is guilty, evidence of good character 
 should not overcome the conclusion which follows from that view 
 of the case.^" The rule therefore is that' evidence of good char- 
 acter does not raise a distinct issue but should be taken into con- 
 sideration with all other evidence in the case.*" 
 
 § 120. Witnesses — ftualiflcation Of. In order to be qualified 
 to testify to the reputation of a person, the witness must be ac- 
 quainted with his reputation in the neighborhood in which he re- 
 sides.*^ A witness who saw the defendant only once a year away 
 from home and for a short time only, and knew nothing of his 
 business dealings or of people who knew him, is not competent.*^ 
 The witness may be cross-examined as to specific facts and re- 
 ports or as to statements he has made inconsistent with his direct 
 testimony, not for the purpose of proving such facts or discredit- 
 ing the defendant, but solely for the purpose of affecting the 
 credibility of the w\tness.^' 
 
 in the life of every criminal when 
 he commits his first offense, and 
 when he leaves the high plane on 
 which walks the upright, law abid- 
 ing citizen'' : Cora. v. King, 35 
 Super. 454; or that "many persons 
 are accused of crime when up to 
 the time of accusation they have 
 had a good character'' : Com. v. 
 Belserawitz, 35 Super. ^^ ; or that 
 "evidence of good character in a 
 murder case must be considered in- 
 ferior to what it is in case of ac- 
 cusations of a lower grade," where 
 such statement is followed by proper 
 instructions as to the general 
 weight of such evidence : McLain 
 V. Com., 99 Pa. 86. 
 
 ■'"'Com. V. Eckerd, 174 Pa. 137 ; 
 Com. V. Harmon, 199 Pa. 521 ; 
 Com. V. Dingman, 26 Super. 615 ; 
 Com. V. Miller, 31 Super. 309; Com. 
 Aston, 227 Pa. 106. It has been 
 held reversible error for the court, 
 after stating the law as to evidence 
 of good character, to say, "where 
 the jury is satisfied beyond a rea- 
 sonable doubt of the defendant's 
 
 guilt under all the evidence, evi- 
 dence of previous good character is 
 not to overcome the conclusion 
 which follows from that view of 
 the case,'' as the jury might have 
 been led to disregard the evidence 
 of character altogether : Com. v. 
 Cate, 220 Pa. 138. 
 
 ♦"Com. V. Dingman, 26 Super. 
 615; Com. V. Howe, 35 Super. 554; 
 Id. 42 Super. 136. A verdict of 
 murder in the first degree will not 
 be reversed merely because the trial 
 judge omitted to mention evidence 
 of good character in his charge, 
 where such evidence was very 
 meagre and there was no request 
 for instructions : Com. v. Caraffa, 
 222 Pa. 297. 
 
 *iCom V. Howe, 35 Super. 554. 
 
 *2Com. V. Wilson, 44 Super. 183. 
 
 ^^Coni, V. Wilson, 44 Super. 183.. 
 A witness on an indictment for lar- 
 ceny, who testifies as to the de- 
 fendant's good character, may be 
 asked on cross-examination whether 
 he had not heard the defendant 
 had burned his store to collect the 
 
CHARACTER. 
 
 123 
 
 insurance. This is not a violation 
 of the rule forbidding proof of 
 other specific crimes, as the sub- 
 ject under examination was the 
 defendant's reputation for hon- 
 esty, and the question called for 
 what people had said with respect 
 to his having burned his store, not 
 whether he had actually done it; 
 Com. V. McClellan, 42 Super. 504. 
 
 A character witness for one tried 
 for forgery, who testified he had 
 never heard anything against de- 
 fendant, may be asked on cross-ex- 
 amination whether he did not know 
 of the defendant's having been ar- 
 rested for attempting to pass coun- 
 terfeit money : Com. v. Wilson, 44 
 Super. 183. 
 
124 PENNSYLVANIA TRIAL EVIDENCE. 
 
 CHAPTER V. 
 
 CONFESSIONS. 
 
 § 121. Admissibility in general. 
 
 122. Artifice in obtaining. 
 
 123. Corpus delicti — Proof of, in murder case. 
 
 124. Court and jury — Province of. 
 
 125. Evidence acquired through incompetent confession. 
 
 126. Form and manner of making confession. 
 
 127. Inducement. 
 
 128. Joint defendants — Confession by one. 
 
 129. Subsequent confession after one improperly obtained. 
 
 130. Testimony of defendant. 
 
 131. Weight as evidence. 
 
 132. Whole confession. 
 
 § 121. Admissibility in General. Confessions, as distin- 
 guished from admissions in civil cases, are acknowledgments of 
 the commission of a criminal act, and, like admissions, are re- 
 ceived against the party making them on the theory that they are 
 declarations against his interest and therefore probably true. 
 This reason for the rule admitting them would not apply if there 
 are circumstances in the case which would be likely to render 
 the confession an untrue one, and therefore it should be made to 
 appear that the confession was voluntary and not made under 
 the inducement of any threat or promise which might have had 
 the effect of producing a false statement."^ 
 
 A confession is evidence only against the person who made it, 
 and will not be admitted to affect others who participated in the 
 crime.^ However, if made in the presence of a party to the 
 criminal act, who failed to make any denial of the charge, it may 
 be evidence against him as an admission.' 
 
 A confession will be received only where it relates to the par- 
 ticular crime for which the prisoner is being tried." The fact 
 that it shows knowledge by the defendant after the fact is inad- 
 missible where he is tried as principal.^ 
 
 § 122. Artifice in Obtaining. The fact that a confession was 
 
 'Com. v. Bczek, 168 Pa. 603; ■Com v. .\ston, 22^ Pa. 112. 
 
 Com. V. Willis, 223 Pa. 576. See ^Com. v. Wilson, 186 Pa. i. 
 
 § 127. 5Com. v. Clark, 130 Pa. 641. 
 
 -Matchin v. Matchin, 6 Pa. 332 ; 
 Fife v. Com., 29 Pa. 429. See § 128. 
 
CONFESSION. 125 
 
 obtained by artifice or trick does iiot render it incompetent so 
 long as no inducements or threats were used." The object of 
 evidence is to get at the truth, and a trick which has no tendency 
 to produce a false confession does not render its truth less prob- 
 able. But a confession obtained from a prisoner while under the 
 influence of liquor supplied him by the officer having him in 
 charge, is inadmissible.' 
 
 § 123. Corpus Delicti — Proof Of. Before a confession of 
 homicide is admissible in evidence, there must be other proof of 
 a corpus delicti, or at least sufficient evidence thereof to entitle 
 the case to go to the jury on that question.* This rule does not 
 apply in trials for misdemeanors." 
 
 § 124. Court and Jury — Province Of. If a confession oiifered is 
 alleged to have been involuntarily made, the question whether 
 there was any inducement held out which was calculated to make 
 the confession an untrue one, must be determined in the first in- 
 stance by the court.^" In order to decide this question, it is not 
 necessary to hear the conflicting evidence of witnesses on both 
 sides. Only witnesses called by the commonwealth to establish 
 the confession are heard at the time, the defendant having the 
 right to cross-examine them, and if the confession apears to have 
 been improperly obtained it should be excluded ; but if it appears 
 to have been voluntarily made, it should be received, and if after- 
 wards, the defendant gives evidence tending to contradict the fact 
 that it was voluntarily made, it becomes a question for the jury, 
 and should then be submitted to them with instructions to dis- 
 regard the confession altogether if found to have been made as 
 a result of threats or under stress of some inducement held out 
 by a person in authority. ^"^ 
 
 "Secretly stationing officers near no Pa. 263, does not render con- 
 
 the defendant's cell so as to over- tessions obtained thereby incompe- 
 
 hear conversations with another tent. 
 
 prisoner, or intercepting letters 'McCabc v. Cora., 8 Atl. 45. 
 written to an accomplice : Com. v. 'Gray v. Com., loi Pa. 380. 
 Goodwin, 186 Pa. 218; or falsely ''Com. v. Quick, 31 C. C. S4i- 
 inducing the prisoner to believe a ^"Fife v. Com., 29 Pa. 429; Com. 
 knife shown to him was liis own v. Johnson, 217 Pa. ^T, Com. v. 
 and was found where he had con- Aston, 227 Pa. 112. 
 cealed it: Com. v. Cressinger, 193 "Com. v. Shaflfer, 178 Pa. 409; 
 Pa. 326; or cross-examination of Com. v. Shew, 190 Pa. 23; Com. 
 defendant by a question which as- v. Epps, 193 Pa. 512; Com. v. As- 
 sumed his guilt: McClain v. Com., ton, 227 Pa. 112. 
 
126 PENNSYLVANIA TEIAL EVIDENCfi. 
 
 The action of the trial judge in admitting a confession where 
 the evidence is conflicting, will not be set aside on appeal in ab- 
 sence of clear error.'^ 
 
 § 125. Evidence Acquired Through Incompetent Confession. 
 Where a confession is incompetent as such, but on investigation 
 statements made therein are found to be true, such facts are com- 
 petent evidence.^^ ' Thus where a confession stated that the 
 prisoner concealed money at a certain place and on subsequent 
 search the money was found at that place, such evidence may be 
 used against him notwithstanding the confession itself was in- 
 competent.^* 
 
 § 126. Form and Manner of Making Confession. Confessions 
 may be made directly, either orally or in writing,^'' or indirectly 
 by acts or conduct of the defendant inconsistent with his inno- 
 cence and from which the jury may infer guilt. The former are 
 not admissible if it appears they were made under the stress of 
 some threat or inducement which was calculated to make them 
 untrue.'® Indirect confessions or admissions, are competent on 
 the same principle on which admissions against interest are re- 
 ceived in civil cases. Thus false statements made by the defend- 
 ant after his arrest, in regard to the crime charged,^' or attempts 
 to procure false testimony or to induce witnesses to absent them- 
 selves,'^ are admissible against him as tending to establish guilt.'" 
 
 Where statements with reference to defendant's conduct, made 
 in his presence and hearing but not in the course of judicial in- 
 quiry, although he be in custody, are such as would naturally call 
 for reply or explanation, his silence may be considered by the 
 jury as an acquiescence therein, and an admission of their truth.-" 
 But silence pending a judicial inquiry into his guilt, cannot be of- 
 fered against him as an admission.^' It is for the jury to deter- 
 
 i^Fife V. Com., 29 Pa. 429; Com. ^"Ettlinger v. Com., 98 Pa. 338; 
 
 V. Johnson, 162 Pa. 63. Com. v. Leskoski, 225 Pa. 382; 
 
 '3Com. V. Johnson, 213 Pa. 432. Com. v. Aston, 227 Pa. 112. See 
 
 '■'Laros V. Com., 84 Pa. 200. also § 74. 
 
 "A written confession is not in- ='Where the accusation of guilt 
 
 competent because not signed by was made by a fellow prisoner in a 
 
 the person who made it: Penna. v. confession made after a hearing 
 
 Stoops, Add. 381. before a magistrate had terminated, 
 
 '"See § 127. but while the parties and witnesses 
 
 "Com. V. Johnson, 162 Pa. 53. were in the court room, the silence 
 
 '"Cover V, Com., 20 W. N. C. 386. of the defendant is not admissible 
 
 '"Sec also §§ 51, 61. against him if it be not shown that 
 
CONFESSION. 
 
 127 
 
 mine from the circumstances mider which remarks were made, 
 whether defendant must have heard them, and whether they con- 
 tained such accusations of guilt that a failure to reply would 
 constitute an admission. ^^ But where a statement imputing guilt, 
 made in the presence of the prisoner, was immediately denied 
 by him, it is error to admit it, even though the court charges the 
 jury that the defendant could not be affected by such accusation. ^^ 
 
 § 127. Inducement. Where a confession is made as a result 
 of a promise or threat from one in authority, the inference of 
 truthfulness arising because it was against the interest of the de- 
 fendant, is replaced by an equally strong inference of untruthful- 
 ness resulting from the benefits hoped to be obtained thereby, 
 and the usefulness of the confession, and therefore its admissi- 
 bility as evidence, is destroyed.^* 
 
 It is the manner and circumstances under which a confession 
 is procured, however, and not the person to whom it is made, that 
 finally determines the question of its admissibility, and there- 
 fore the mere fact that it was made to a person in authority is no 
 reason for excluding it in absence of evidence that such official 
 secured it by improper inducements.^" Threats or promises made 
 
 he knew the hearing was over, and 
 that he was free to speak if he 
 wished to deny the accusation : 
 Com. V. Zorambo, 20^P3%^Q. 
 
 22Com. V. Detwilei^ 229 TNfc- 304 ; 
 Com. V. Ballon, 229 Pa. 323. 
 
 23Com. V. Johnson, 213 Pa. 607. 
 
 2*A promise by a detective to be- 
 friend the prisoner if he would 
 state the truth, is such an induce- 
 ment as will render the confession 
 inadmissible : Com. v. Sheets, 197 
 Pa. 6g; and a confession made to 
 a magistrate who administered an 
 oath to the defendant and threat- 
 ened to commit her if she did not 
 tell the truth, is inadmissible : 
 Com. v. Harman, 4 Pa. 269. But if 
 the confession is otherwise volun- 
 tary, the mere fact that it was made 
 under oath does not render it in- 
 admissible: Com. V. Clark, 130 Pa. 
 641 ; nor will a mere accusation of 
 guilt invalidate a confession : Com. 
 
 V. Wyman, 3 Brewst. 338. See § 129 
 for eflfect of incompetent confes- 
 sion on one subsequently made. 
 
 ^^Com. V. Eagan, 190 Pa. 10. 
 Com. V. Mosler, 4 Pa. 264; Com. v. 
 McGowen, 4 Clark 274. A state- 
 ment by an officer or other person 
 in charge of the defendant, that it 
 would be better for him in the end 
 to confess and tell what he knew, 
 followed by a confession to the 
 chief officer who told defendant to 
 tell the whole truth or nothing, but 
 that he could make no promise, and 
 that anything said would be used 
 against him, is not such inducement 
 as will prevent the confession be- 
 ing received in evidence : Rizzolo 
 V. Com., 126 Pa. 54. Statements 
 made to a coroner engaged in in- 
 vestigating the death of a child, in 
 reply to questions by him, are ad- 
 missible, even though the coroner, 
 after receiving the defendant's re- 
 
128 
 
 PENNSYLVANIA TRIAL EVIDUNCU. 
 
 by persons having nothing to do with the enforcement of the law, 
 are not such inducements as will render inadmissible a confession 
 made thereunder,^® nor will a confession be rejected because it 
 was made under oath," or was induced by a promise of secrecy,^' 
 or by the hope of spiritual welfare,-" or the promise of some col- 
 lateral benefit, there being no promise held out with respect to the 
 particular charge against the defendant.'" However, in such case 
 the inducement under which the confession was made should 
 also go to the jury so that they can judge of the motives that 
 operated on the prisoner's mind, and thus determine his credi- 
 bility." 
 
 § 128. Joint Defendants — Confession by One. Where two or 
 more persons are jointly indicted and tried, a confession by one 
 is admissible against him, although it implicates the others, and 
 has the effect of prejudicing the jury against them. The court 
 should, however, caution the jury that such confession is evi- 
 dence only against the person making it.'^ While the confession 
 
 ply, made a promise to let liim go 
 free if the iacts were as represent- 
 ed, but otherwise he would have to 
 hold him until after the inquest : 
 Com. V. Johnson, 162 Pa. 63. State- 
 ments by a jailor to one of three 
 persons accused of crime, to the 
 effect that if the commonwealth 
 should use any of them as wit- 
 nesses he supposed it would prefer 
 her, does not render inadmisible 
 a subsequent confession made be- 
 fore a magistrate, who warned the 
 defendant that anything she said 
 might be used against her : Fife v. 
 Com., 29 Pa. 429. The fact that 
 a prison inspector took a twelve- 
 year-old boy to the dungeon of the 
 prison, pointed out its horrors, and 
 told him he would be confined in 
 it with little food if he did not con- 
 fess, while if he did so he would be 
 provided with good food and quar- 
 ters, and might expect favors, was 
 held not to render the boy's subse- 
 quent confession incompetent : Com. 
 V. Dillon, 4 Dallas 116. 
 
 2<5Com. V'. Dillon, 4 Dall. 116. 
 
 "Com. V. Clark, 130 Pa. 641. See, 
 note 24, above. 
 
 -sCom. V. Goodwin, 186 Pa. 218. 
 
 2»Volkavitch v. Com., 12 Atl. 84; 
 Com. V. Goodwin, 186 Pa. 218; 
 Com. V. Snyder, 224 Pa. 526. 
 
 "oCo0t V. Wilson, 186 Pa. I. 
 Where detecwes led defendant to 
 believe they were members of a 
 band of outlaws, and that he could 
 be admitted as a member if his 
 criminal record were such as to 
 give assurance of his courage in 
 the commission of crimes, a state- 
 ment made by defendant that he 
 was connected with certain crimes, 
 among them being the one charged, 
 is admissible : Com. v. Wilson, 186 
 Pa. I. A confession voluntarily 
 made to one whom the defendant 
 had asked to become his bail, is 
 also admissible : Com. v. Johnson, 
 217 Pa. 77- 
 
 siCom. V. Wilson, 186 Pa. I. 
 
 5-Fife V. Com., 29 Pa. 429; 
 Brandt v. Com., 94 Pa. 290 
 
CONFESSION. 129 
 
 may in such case be read, omitting the parts referring to the other 
 defendants who were implicated, yet, it has been said that the 
 better practice is to read the entire confession as it was given, 
 and then instruct the jury to consider it as evidence only against 
 the party who made it.^^ Under this practice, the only escape 
 from prejudice by the confession of another charged with the 
 same offense, is to ask for a separate trial. 
 
 § 129. Subsequent Confession After One Improperly Ob- 
 tained. \\'here a confession has been improperly obtained, it will 
 be presumed that a second confession was induced by the same 
 influence, and evidence of it will not be received unless from the 
 length of time intervening or from proper warning or other cir- 
 cumstances, it is made to appear that the influence which led to 
 the first confession has been removed. Since matters which in- 
 fluence one person might have no effect on another, all the cir- 
 cumstances of the original confession must be taken into con- 
 sideration, together with the age, character and general situation 
 of the prisoner, in order to determine whether or not the original 
 influence continues to operate. The matter is largely within the 
 discretion of the trial court who hears the witnesses and has an 
 opportunity to observe the conduct of the prisoner.''* 
 
 The proper practice where a confession offered is objected to 
 on the ground that it was induced by the same influence which 
 induced a prior improperly obtained confession, would seem to be 
 for the court, before the evidence is received, to allow the defend- 
 ant to prove the circumstances under which the prior confession 
 was obtained and its connection with the second confession. The 
 court should then decide whether such circumstances show that 
 
 .Mspife V. Com., 21; Pa. 429. reporter and another to the em- 
 3*Com. V. Sheets, 197 Pa. 69. A ployer of the defendant, neither of 
 confession made by a woman on which referred to a previous con- 
 ihe day following the making of fession made to a detective, and 
 one under improper inducement, without anything to show that 
 and in the presence of the same either the reporter or the employ- 
 officer, without any warning hav- er knew of the prior confession, 
 ing been given her that it might be are competent. It is immaterial 
 used against her, and without any- that the sheriff was present at the 
 thing to remove the influence which first confession, and also at one of 
 led to the prior confession, is in- the second voluntary ones, if he 
 admissible : Com. v. Harmon, 4 Pa. said nothing and acted merely as 
 269. But confessions made a day jailor in admitting the visitors: 
 after the first, one to a newspaper Com. v. Sheets, 197 Pa. 69. 
 
 9 
 
130 PENNSYLVANIA TRIAL EVIDENCi;. 
 
 the prior influence continued and induced the second statement, 
 and admit or reject the latter accordingly. This practice was fol- 
 lowed in Commonwealth v. Sheets, 197 Pa. 69, and is in accord 
 with the rule established as to the reception of confessions in 
 other cases, requiring the preliminary question whether the con- 
 fession was voluntarily made, to be determined in the first in- 
 stance by the court.^^ But in Commonwealth v. Van Horn, 188 
 Pa. 143, the lower court refused to allow defendant to offer evi- 
 dence as to a prior confession, saying that the defendant had the 
 right to cross-examine the commonwealth's witnesses fully con- 
 cerning matters which occurred before the confession oflfered was 
 made. This was approved on appeal, where it was suggested that 
 even if the defendant's application had been granted it would not 
 have prevented the admission of the commonwealth's evidence, 
 but the only result would have been a question of credibility as 
 between the defendant and the officer who testified to the con- 
 fessions, and the right of the defendant to produce his evidence 
 in defense was as full and complete a remedy as if he had been 
 permitted to do so in advance. 
 
 While this would be true where both prior and subsequent con- 
 fessions were made before the same person, it would not be true 
 where they are made before different persons and the common- 
 wealth does not produce both. In the latter case the opportunit)', 
 to cross-examine would not be a substitute for the introduction 
 of evidence of the prior confession, since the witness produced 
 would know nothing concerning it. The court in the Van Horn 
 case stated that the offer by the defendant was unusual and that 
 the lower court, in rejecting it, followed the decision of a former 
 case mentioned. ^^ But an examination of the case referred to 
 shows that there was no question of a prior improperly obtained 
 confession inducing a subsequent one, but merely whether or not 
 the confession offered was improperly secured. 
 
 The decision in the Van Horn case is inconsistent with the 
 general rule in Pennsylvania that the question of improper in- 
 ducement must first be determined by the court, since if the evi- 
 dence as to whether or not the first confession was improperly 
 obtained and whether the improper influence which induced it 
 was removed prior to the second, be not received before the 
 second confession is admitted, then the trial judge is not in a 
 position to determine preliminarily the question of inducement. 
 
 s^See § 124, seRizzola v. Com., 126 Pa. 54. 
 
CONFESSION. 131 
 
 § 130. Testimony of Defendant. When a defendant in a 
 criminal case takes the witness stand in his own behalf, he waives- 
 his constitutional privilege, and his admissions or confessions are 
 evidence against him, not only in that trial, but also in any sub- 
 sequent trial so far as the testimony thus given is concerned, in 
 absence of statutory regulation on the subject.^' In such case a 
 greater latitude is permitted in cross-examining him than upon 
 cross-examination of other witnesses, and anything which tends 
 to contradict his denial that he committed the crime is proper 
 evidence.^* An answer to a question which assumes the guilt of 
 the defendant, but which does not amount to an unfair advantage, 
 is admissible.^*" 
 
 Testimony given by defendant on being sworn as a witness in 
 an investigation before a coroner's jury, and before he was 
 charged with a crime, may be used against him.*° But testimony 
 given under compulsion is not admissible, as this would be a vio- 
 lation of his constitutional right to refuse to testify against 
 himself." 
 
 § 131. Weight as Evidence. Confessions should be received 
 with caution, not only because of the danger of mistake, when 
 orally made, by reason of the misunderstanding of the witness 
 to whom they were made,*^ but for the further reason that the 
 mind of the defendant, under stress of an accusation of crime, 
 may be subject to varying motives of hope and fear which may 
 tend to induce an untrue confession. Furthermore, if the con- 
 fession be verbal, the mind of the witness who heard it, if he be 
 one engaged in the detection of crime, may be so biased by pro- 
 fessional zeal as to unduly magnify circumstances and statements 
 consistent with innocence, into proof of guilt. If the confession 
 is shown to have been induced by the hope of some collateral 
 benefit, the jury should consider the circumstances, and give it 
 
 3'Com. V. House, 6 Super. 92; P. L. 213, a person cannot refuse 
 Com. V. Ensign, 40 Super. 157. to testify on the trial of a contested 
 See § 6s, note 57. election case on the ground that he 
 ssCom. V. Fitzpatrick, I Super. may incriminate himself, but such 
 518; Com. V. House, 6 Super. 92. testimony may not afterwards be 
 See § 484. used against him except for per- 
 ^^McClain V. Com., no Pa. 263. jury in giving it. See Kelly's Elec- 
 ^"Williams v. Com., 29 Pa. 102. tion, 200 Pa. 430. Section 12 of 
 ^^Horstman v. Kaufman, 97 Pa. the Act of March 5, 1906, P. L. 78, 
 147. Under Art. 8, § 10, of the relating to the filing of election ex- 
 Constitution of Pennsylvania and penses, contains a similar provision, 
 § 19 of the Act of May 19, 1874, ^^See § 58 as to admissions. 
 
132 PENNSYLVANIA TRIAL EVIDENCE. 
 
 such weight as they may think proper in view of the motives 
 which operated on defendant's mind at the time it was made.^^* 
 
 A confession shown to have been voluntarily made is entitled 
 to great weight, however," and when corroborated by other cir- 
 cumstances, -may be sufficient to convict of first degree murder/" 
 Proof of the truth of collateral features of a confession, increases 
 the probability of its truth as a whole, while proof that it is un- 
 true in some immaterial part lessens such probability but does not 
 render it incompetent.*" A confession in open court by one 
 charged with treason, has been held competent to go to the jury 
 without other evidence of the overt act.*^ And on trial of a 
 charge of bigamy or adultery, a confession by the defendant is 
 in itself sufficient to prove prior marriage.*' 
 
 Disclosures amounting to admissions of fact rank lower in the 
 degree of evidence than actual confessions of guilt, since a dam- 
 aging fact may be admitted without intention to confess guilt.*" 
 
 § 132. Whole of Confession. As in other cases of admis- 
 sions, the whole of the confession must be received,'*'' although if 
 it contains irrelevant statements they may be stricken out. But if 
 this is done at the defendant's request, he cannot then ask to 
 have the balance of the confession stricken out on the ground 
 that it is not in evidence as a whole. '^^ The mere fact that the 
 witness did not hear all of it and therefore can testify only to a 
 part, does not render such part inadmissible if it is complete in 
 itself.^- And where the commonwealth wishes to prove certain 
 admissions made at a former trial, the whole testimony need not 
 be put in evidence. If the defendant wishes to show qualifying 
 statements, he can do so on cross-examination.^" 
 
 ■t^Com. V. Wilson, 186 Pa. i. *«Coni. v. Murtagli, I Ash. 272; 
 
 ^-iCom V. Wilson, 186 Pa. i. Com. v. Gamble, 36 Super. 146. 
 
 *'Com. V. Johnson, 211 Pa. 640. *"Com. v. Brown, 76 Pa. 319. 
 
 *nCom. V. Shaffer, 178 Pa. 409. ^"See § 59. 
 
 ■•"Respublica v. McCarty, 2 Dall. ''Com. v. Comporto, 233 Pa. 10. 
 
 86. ''-'Com. \ . Taylor, 129 Pa. 534. 
 
 ■"'■'Com. V. House, 6 Super. 92. 
 
CUSTOM AND USAGE. 133 
 
 CHAPTER VI. 
 
 CUSTOM AND USUAGK. 
 
 General Principles. 
 § 133. Definition. 
 
 134. Reqviirements of valid custom. 
 
 135. Contracts — Construction of. 
 
 136. Legal Principles — Violation of. 
 
 137. Morals — Violation of. 
 
 138. Pleading and proof. 
 
 § 133. General Principles. — Definition. Usage is a reason- 
 able and lawful public practice concerning transactions of the 
 same nature as those which are to be affected thereby, existing 
 at the place where the obligation is to be performed, and either 
 known to the parties or so well established that they are pre- 
 sumed to have known and acted with reference thereto.^ Custom 
 is usage so long established and so well known as to have ac- 
 quired the force of law.- From the standpoint of evidence, usage 
 is the fact to be proved in order to establish the existence of the 
 custom. 
 
 At common law custom and usage were distinguished on the 
 ground that the former was binding on the parties as the law 
 governing their actions, while the latter was merely current prac- 
 tice affecting a trade or calling to which they could conform or 
 not, according to their desire. The terms are generally used in- 
 terchangeably by our courts without regard to the common law 
 distinction. 
 
 When a valid custom is established by proof, the law presumes 
 that the parties knew it and contracted with reference to it, and 
 it becomes a part of the contract though not mentioned therein.^ 
 
 § 134. General Principles — ^Requirements of "Valid Custom. 
 The common law rule was that a custom, to be valid, must have 
 continued for so long that "the memory of man runneth not to 
 the contrary."* While some of the cases seem to favor the ap- 
 plication of the common law rule so far as possible, and to re- 
 quire proof of the existence of the custom as far in the past as 
 
 ^Miller v. Wiggins, 227 Pa. 564. 356; Ambler v. Phillips, 132 Pa. 
 
 =Adams v. Ins. Co., 76 Pa. 411. 167. 
 
 ^McMasters v. Railroad, 69 Pa. ^Jones v. Wagner, 66 Pa. 429; 
 
 374; Corcoran v. Chess, 131 Pa. Com. v. Mayloy, 57 Pa. 291. 
 
134 
 
 PENNSYIvVANIA TRIAL EVIDfiNCT. 
 
 the memory of living witnesses extends,' the generally accepted 
 rule is that it should have been followed for so long a time as to 
 have become generally known in the community in which it ex- 
 ists, so that parties may be presumed to have known and acted 
 with reference to it." If it cannot be shown to have existed so 
 long as to warrant such presumption, a party relying on it may 
 offer testimony from which the jury might find as a fact its ex- 
 istence and that it was taken into consideration in the transaction 
 in question. But the opposite party may then prove in rebuttal 
 that no such pustom was known to him or to his neighbors.' 
 
 In order to acquire the force of law, a custom must be so cer- 
 tain and uniform in operation as to leave no doubt of its exist- 
 ence.* It must also be continuous," notorious,^" of general appli- 
 cation,^^ and also reasonable, as it is not likely that anything un- 
 
 '^Com. V. Mayloy, S7 Pa. 291 ; 
 Jones V. Wagner, 66 Pa. 429; Penn- 
 sylvani Coal Co. v. Sanderson, 94 
 Pa. 302. 
 
 ^McMasters v. Railroad, 69 Pa. 
 374; Adams v. Ins. Co., 95 Pa. 
 348; Corcoran v. Chess, I3r Pa. 
 356; Ambler v. Phillips, 132 Pa. 
 167; Lockney v. Benef. Ass'n, 217 
 Pa. S68; Sillivan v. Whitraer, 11 
 Super. 243. 
 
 'Prigg V. Preston, 28 Super. 272. 
 
 ^Collins V. Mechling, i Super. 
 594. A doubt as to the extent of a 
 particular custom or usage pre- 
 cludes any hope of establishing it as 
 such. Thus a rule of bricklayers 
 association applying a system of 
 measurements which varies fre- 
 quently, cannot be adopted as a 
 custom in construing a contract 
 which is silent as to measurements: 
 Ambler v. Phillips, 132 Pa. 167; 
 and a custom of ocean passenger 
 travel that the owners of the vessel 
 are under no obligation to return 
 the price of passage to a passenger 
 ir. event of the ship being lost on 
 the voyage, cannot be proved by 
 single instances where the passage 
 money was not refunded : Cope v. 
 Dodd, 13 Pa. 33. 
 
 ''McMaster v. Railroad, 69 Pa. 
 374- 
 
 ^"A person cannot be bound by a 
 custom of which he had no knowl- 
 edge: Adams v. Ins. Co., 76 Pa. 
 411; Ambler v. Phillips, 132 Pa. 
 167. The custom must therefore 
 be shown to have been within the 
 knowledge of the parties, or so no- 
 torious as to effect them with 
 knowledge of its existence: Col- 
 lins V. Mechling, i Sup. 594; 
 Bremerman v. Hayes, 9 Sup. 8, 
 
 I'A custom becomes a law from 
 universal acquiescence, either local- 
 ly, where only a particular neigh- 
 borhood is affected, or generally, 
 where an entire community is to be 
 affected: Com. v. Mayloy, 57 Pa. 
 291. If the custom relates to some 
 particular trade or business,, it 
 should be shown to be in general 
 use in such business, and not rec- 
 ognized only in a particular local- 
 ity: Corcoran v. Chess, 131 Pa. 
 356. But it seems a custom as to 
 the operation of mines, if properly 
 proved, may relate to mines of a 
 particular district : Jones v. Wag- 
 ner, 66 Pa. 429 ; Pennsylvania Coal 
 Co. V. Sanderson, 94 Pa. 302; and 
 a business custom of a particular 
 
CUSTOM AND USAGE. 
 
 135 
 
 reasonable would be permitted to grow into- a custom.'^ 
 
 § 135. Contracts — Construction Of. When a custom or usage 
 is once established, it is considered a part of a contract and bind- 
 ing on the parties though not mentioned therein, the presumption 
 being that they knew of and contracted with reference to it.^' In 
 construing the contract, however, the court must be permitted to 
 interpret common words without the aid of other evidence, and 
 if their natural meaning is plain, they cannot be contradicted by 
 proof of a custom according to which they mean something else.^* 
 But if terms used are known and understood by a particular class 
 of persons in a special and peculiar sense, evidence of such mean- 
 ing must be received in order to arrive at a proper understanding 
 of the contract.^' Thus words which are technical, local, generic. 
 
 city has been held valid : Koons v. 
 Miller, 3 W. & S. 271. 
 
 '-McMaster v. Railroad, 69 Pa. 
 374. A custom is unreasonable 
 v/hich includes in measurements of 
 plastering half of the area of each 
 window in the house: Jordan v. 
 Meredith, 3 Yeates 318; or which 
 requires that the vendor of land 
 must pay commission to the broker, 
 regardless of contract : Addison v. 
 Wanamaker, 185 Pa. 536; or which 
 allows removal of minerals with- 
 out leaving adequate surface sup- 
 port : Jones v. Wagner, 66 Pa. 
 429; Horner v. Watson, 79 Pa. 
 242; Coleman v. Chadwick, 80 Pa. 
 81 ; or by which the results of an 
 employee's skill is recognized as 
 his property and not the property 
 of his employer : Dempsey v. Dob- 
 
 or which allows 
 property of his 
 making compen- 
 V. Hummel, 109 
 
 son, 184 Pa. 588; 
 a tenant to use 
 landlord without 
 sation : Anewalt 
 Pa. 271. 
 
 i^McMaster v. Railroad, 69 Pa. 
 374; Carter v. Coal Co., 77 Pa. 
 286; First National Bank v. Fiske, 
 133 Pa. 241 ; Pool V. White, 17S 
 Pa. 459. Evidence is competent to 
 show a custom among merchants 
 to charge interest on accounts after 
 
 a certain period : Koons v. Miller, 
 3 W. & S. 271 ; Watt v. Hoch, 25 
 Pa. 411 ; Adams v. Palmer, 30 Pa. 
 346; Karaber v. Becker, 27 Super. 
 266; or the custom of an insur- 
 ance company to accept premiums 
 within thirty days : Helme v. Ins. 
 Co., 61 Pa. 107; or a reasonable 
 time after they became due : Girard 
 Ins. Co. V. Ins. Co., 97 Pa. 15; or 
 as to the terms of payment in pur- 
 chasing certain articles : Pierson v. 
 Duncan, 162 Pa. 187; or the time 
 which constitutes a day's work 
 in a certain business : National 
 Dredging Co. v. Mundy, 155 Pa. 
 233 ; or a custom among physicians 
 not to charge for services rendered 
 each other : Bremerman v. Hayes, 
 9 Super. 8. 
 
 i*Burton v. Oil Co., 204 Pa. 349. 
 If land is sold at a fixed pripe per 
 acre, a custom that in sales of land, 
 the word "acre" meant more than 
 an acre, cannot be proved: Paull 
 V. Lewis, 4 Watts 402; nor may 
 mere representations as to the 
 quality of articles sold be proved to 
 have been customarily treated as a 
 warranty : Wetherill v. Nielson, 20 
 . Pa. 448. 
 
 I'Guillon V. Earnshaw, 169 Pa. 
 463; Moore v. Eisaman, 201 Pa. 
 
n,6 
 
 PI'NNSYLVANIA TRIAL KVIDICNCE. 
 
 indefinite or equivocal, or which are made so by proof of ex- 
 trinsic circumstances, may be explained by the custom or usage 
 of the particular business to which they relate.^" 
 
 The parties to a contract may desire to govern their actions 
 contrary to the rule established in relation thereto by custom, 
 amd therefore evidence of a custom which contradicts the express 
 terms of the writing is incompetent.'' Nor may evidence of a 
 custom in general dealings be shown as against an express under- 
 standing to the contrary in a particular transaction.''* But if 
 the terms of a contract are susceptible of more than one mean- 
 ing, the sense in which they were used may be shown.'" 
 
 § 136, Legal Principles — Violation Of. Evidence is not ad- 
 missible to prove a custom which is in violation of settled prin- 
 ciples of law, or of public policy, or the express provisions of a 
 statute.-" But if no statute or principle of public policy inter- 
 
 190; Morris v. Supplee, 208 Pa. 
 253- 
 
 '"Brown v. Brooks, 25 Pa. 210. 
 Evidence may be given to show that 
 the term "colheries" embraced all 
 moveable property at the mines : 
 Carey v. Bright, 58 Pa. 70; or to 
 show the meaning of the words "in- 
 evitable dangers of the river" in a 
 bill of lading : Gordon v. Little, 
 8 S. & R. 533; or that in computing 
 coal royalties, the "selling price at 
 the breaker" meant the selling price 
 at the place of delivery less the cost 
 of selling and freight: Shoemaker 
 V. Coal Co., 177 Pa. 405; or to 
 show the meaning of the words 
 "mills and manufacturers'' in an in- 
 surance policy : Franklin Ins. Co. 
 V. Brock, 57 Pa. 74; or the custom- 
 ary allowance and number of bricks 
 in a square yard in paving con- 
 tracts : Pittsburgh v. O'Neil, i Pa. 
 342 ; or the meaning of "measured 
 in the wall," as applied to masonry : 
 Welch V. Huckenstein, 152 Pa. 27 ; 
 Miller V. Higgins, 227 Pa. 564; or 
 the manner of measuring stone 
 work by mason's measure in a cer- * 
 lain locality: McCullough v. Ash- 
 bridge, iss Pa. 166; or to show 
 
 whether the words "one thousand 
 feet in each raft" of lumber meant 
 linear measure or otherwise : Brown 
 V. Brooks, 25 Pa. 210; or the mean- 
 ing of the words "early spring" in 
 a contract relating to a particular 
 business : Phoenix Iron Co. v. 
 Samuel, 13 W. N. C. 50. 
 
 "Sillman v. Whitmer, 11 Super. 
 243 ; Needy v. Railroad, 22 Super. 
 489; Meachman v. Gardner, 27 
 Super. 296; Harris v. Sharpless. 
 Stoddard v. Emery. 
 Maust v. Cressy, 42 
 
 Casualty Co., 207 Pa. 
 
 202 Pa. 243; 
 128 Pa. 436; 
 Super. 633. 
 
 '^Brown v. 
 609. 
 
 '"Morris v. Supplee. 208 Pa. 253. 
 
 -"Christian v. Dripps, 28 Pa. 271 ; 
 Green v. Tyler, 39 Pa. 361 ; Com. 
 V. Ellis, 46 Super. 72; Silliman v. 
 Whitmer, liSuper. 243. A custom 
 may not be shown allowing entry 
 for breach of condition in a ground 
 rent deed, different from that au- 
 thorized by rules of law : Stoever 
 v. Whitman, 6 Bin. 416; or justi- 
 fying encroachment on a public 
 highway: McNerney v. Reading, 
 150 Pa. 6ii; or permitting water 
 from roofs and waste pipes to flow 
 
CUSTOM AND USAGE. 
 
 137 
 
 ^ enes, and a rule of law is a mere privilege which may be waived, 
 such waiver may be by a custom known to and acquiesced in by 
 the parties as well as by express contract.-' A custom may also 
 be proved as an argument to the court on the question of the 
 proper construction of a statute. -- 
 
 A custom contrary to the ordinary duty of a carrier to de- 
 liver safely cannot be shown, -^ but the carrier may prove a cus- 
 tom which relieves it from certain common law duties, if no rule 
 of public policy is violated. Thus it may show that its duties 
 are discharged by delivering goods on a platform at a station 
 where its business did not justify an agent,-* or by delivery on a 
 steamboat landing,-'^ and an owner of goods is bound to take no- 
 tice of a usage of carriers to store goods in their warehouse when 
 the goods reach their destination.-" It may be shown that car- 
 riers by water between certain places, in selling produce for ship- 
 pers and bringing back the proceeds, act as carriers and not as 
 
 across and freeze on sidewalks : 
 Brown v. White, 202 Pa. 297; or 
 permitting overdrafts on banks by 
 depositors : Lancaster Bank v. 
 Woodward, 18 Pa. 357; or to 
 charge more than the legal rate of 
 interest : Green v. Tyler, 39 Pa. 
 361 ; or for brokers to appropriate 
 moneys belonging to their princi- 
 pals: Evans v. Wain, 71 Pa. 69; or 
 to re-hypothecate stock held as col- 
 lateral, without consent of custom- 
 er: Sproul v. Sloan, 241 Pa. 284; 
 or for factors to pledge goods be- 
 longing to their principals : New- 
 bold V. Wright, 4 Rawle 194; or 
 for an employee to retain owner- 
 ship in the products of his labor 
 and skill : Dempsey v. Dobson, 
 184 Pa. 588; or that the lowest bid- 
 der on a contract is entitled to 
 the work : Leskie v. Haseltine, 155 
 Pa. 98 ; or that in a certain business 
 or in a particular locality, a greater 
 number of pounds than is legally 
 required make a ton : Evans v. 
 Myers, 25 Pa. 114; Weaver v. 
 Fegely, 29 Pa. 27; Godcharles v. 
 Wigenan, 113 Pa. 431; or that cer- 
 
 tain descriptive words constitute a 
 warranty : Wetherill v. Neilson, 20 
 Pa. 448; or that owners of prop- 
 erty are entitled to make fictitious 
 bids at a public sale : Flannery v. 
 Jones, 180 Pa. 338. 
 
 2iColket V. Ellis, 10 Phila. 375. 
 A sheriff's sale of land, though 
 technically irregular, has been up- 
 held when it was in accord with 
 long established practice: Burd v. 
 Dansdale, 2 Bin. 91 ; McCormick v. 
 Meason, i S. & R. 98; Blythe v. 
 Richards, 10 S. & R. 261. The pro- 
 visions of a statute relative to the 
 mode of examining jurors may be 
 followed, notwithstanding an estab- 
 lished custom to the contrary : 
 Com. v. Nye, 240 Pa. 359. 
 
 --Steiner v. Coxe, 4 Pa. 13; Rapp 
 V. Palmer. 3 Watts 178. 
 
 ^•'Coxe V. Heisley, 19 Pa. 243. 
 
 -^McMaster v. Railroad, 69 Pa. 
 374 ; Allam v. Pennsylvania Rail- 
 road, 183 Pa. 174. 
 
 ^''Cope V. Cordova, i kawle 203. 
 
 ^^McCarty v. Railroad, 30 Pa. 
 247. 
 
138 PENNSYLVANIA TRIAL EVIDENCE. 
 
 commission merchants, and that their liability for loss of money 
 received for goods sold is that of a carrier."' 
 
 § 137. Morals — Violation Of. A custom which is in violation 
 of established principles of morality and religion cannot be shown. 
 Thus evidence that in a certain region it was customary for col- 
 ored persons to cohabit promiscuously without any legal mar- 
 riages, is inadmissible.^* 
 
 § 138. Pleading and Proof. A general custom has the force 
 and effect of a law and may therefore be given in evidence with- 
 out being pleaded, on the theory that the courts are bound to take 
 notice of it. But local or particular customs which relate to a 
 certain place or thing, must be specially pleaded.^' 
 
 Custom must be proved by evidence of general practice and 
 not by isolated or particular, cases where the alleged custom was 
 observed and followed.^" If the custom is general, proof of its 
 existence for the required length of time is all that is necessary. 
 It will then be presumed that all parties knew and acted with ref- 
 erence to it.^'^ But if it is a local or special custom existing only 
 in a particular community or in a certain trade or business, 
 it must also be shown that the person to be affected had knowl- 
 edge of the custom. ^^ One who sets up a local custom to assert a 
 right or justify an act, must show he had knowledge of and re- 
 lied upon it.^^ 
 
 ^^Harrington v. McShane, 2 Walts many years, and all occuring in a 
 
 443- single county of the common- 
 
 28Holmes v. Johnson, 42 Pa. 159. wealth : Com. v. Mayloy, 57 Pa. 
 
 See Hollis v. Wells, 3 Clark 169, as 291. 
 
 to a custom known as "bundling." ^iCoxe v. Heisley, 19 Pa. 243 ; 
 
 ^isStultz V. Dickey, S Bin. 285; Adams v. Ins. Co., 76 Pa. 411 ; Silli- 
 
 Adams v. Palmer, 30 Pa. 346. man v. Whitraer, II Super. 243; 
 
 soDean v. Swoop, 2 Bin. 72; Prigg v. Preston, 28 Super. 272. 
 
 Cope V. Dodd, 13 Pa. 33; Anewalt s^^iller v. Wiggins, 227 Pa. 564. 
 
 V. Hummel, 109 Pa. 271. A rule of ss^. custom to stop trains at a 
 
 practice by which courts in crimi- dangerous place and for passengers 
 
 nal cases enter a rule to recon- to frequently get off at such place, 
 
 sider their judgment and alter the cannot be shown in absence of evi- 
 
 sentence at a subsequent term of dence that the plaintiff knew of the 
 
 court, is not established by proof custom and acted in reliance upon 
 
 of only half a dozen cases where it : Margo v. Railroad, 213 Pa. 
 
 such practice was followed in as 463. 
 
DEPOSITIONS. 139 
 
 CHAPTER VII. 
 
 DEPOSITIONS. 
 
 § 139- 
 
 Generally. 
 
 
 Commission. 
 
 140. 
 
 Generall)'. 
 
 
 Issuance of. 
 
 
 Form. 
 
 141. 
 
 Name of commissioner. 
 
 142. 
 
 Names of witnesses. 
 
 143- 
 
 Residence of commissioner. 
 
 
 Interrogatories. 
 
 144- 
 
 Direct. 
 
 145- 
 
 Cross. 
 
 146. 
 
 Notice — Service of. 
 
 147. 
 
 Execution of. 
 
 148. 
 
 Counsel — Presence of. 
 
 149. 
 
 Witnesses — Attendance — Examination of. 
 
 
 Return of. 
 
 150. 
 
 Form and manner of making. 
 
 iSi. 
 
 Filing. 
 
 152. 
 
 Commission and depositions from other states. 
 
 
 Depositions under rule of court — Witnesses residing within the 
 
 
 state. 
 
 
 Issuance of. 
 
 153- 
 
 Application for rule^When allowed. 
 
 
 Form. 
 
 134. 
 
 Name of commissioner. 
 
 ISS. 
 
 Names of witnesses. 
 
 1S.6. 
 
 Notice. 
 
 1 57. 
 
 Place of taking. 
 
 isa 
 
 Time of taking. 
 
 159. 
 
 Service of. 
 
 160. 
 
 Second depositions. 
 
 
 Execution of. 
 
 161. 
 
 Time and place of taking. 
 
 162. 
 
 Transcribing testimony. 
 
 
 Witnesses. 
 
 163. 
 
 Attendance and oath. 
 
 164. 
 
 Examination. 
 
 
 Return of. 
 
 16S. 
 
 Form and manner of making. 
 
 166. 
 
 Filing. 
 
 167. 
 
 Depositions under rule of court — Witnesses residing outside the 
 
 
 state. 
 
 168. 
 
 Letters rogatory. 
 
 
 Objections. 
 
140 I'I'.NNSYLVANIA TRIAL EVIDENCE. 
 
 169. Manner of making. 
 
 170. Time 6f making. 
 
 171. Waiver of. 
 Offer in evidence. 
 
 172. Attendance of witness — Proof of inability to procure. 
 
 173. Competency of witness as affected by subsequent events. 
 
 174. Erasures and alterations. 
 
 175. Exhibits. 
 
 176. Lost depositions. 
 
 177. Other proceedings — Depositions taken in. 
 
 178. Reading — Whole of deposition. 
 
 179. Parties — Deposition of. 
 
 180. Production of books and papers. 
 
 § 139. Generally. When it is desired to obtain the testi- 
 mony of witnesses whose attendance at the trial cannot be pro- 
 cured, there are three methods of doing it, the choice in a particu- 
 lar case depending upon the circumstances. If the witness re- 
 sides within the state the practice is to take his depositions under 
 a rule entered for that purpose; if without the state, by deposi- 
 tions under the Act of Assembly,^ or under a commission or let- 
 ters rogatory. The mode to be adopted in any particular case is 
 largely within the discretion of the court and regulated by rules 
 of court. 
 
 The Act of May 23, 1887, P. L. 150, § 8, provides that the 
 testimony of any competent witness may be taken by deposition 
 or commission in accordance with the laws of the state and the 
 rules of the proper court. Under this act, a court rule must have 
 the law of the commonwealth to sustain it. The tendency of re- 
 cent decisions is to restrict the right to take depositions to cases 
 where there is some necessity shown, and it has been held that a 
 court rule providing that depositions may be taken by either party 
 on due notice to the other without regard to whether the witness 
 be aged, infirm or going, is contrary to law and void.^ It has 
 also been decided that the mere fact that the witness resides over 
 two hundred miles from the place of trial but within the state is 
 not sufficient reason for taking his depositions under a court rule 
 providing that depositions of witnesses without regard to their 
 being aged, infirm or going might be taken on cause shown.'' 
 This decision was not put on the ground that the lower court 
 abused its discretion, but on the broad ground that it is the coni- 
 
 iSee § 167 road, 214 Pa. 469. 
 
 ^International Coal Co. v. Rail- sjvjace v. Neff, 46 Super. 237. 
 
DEPOSITIONS. 141 
 
 men law right of parties to have the evidence of a witness given 
 before the court and jury so that they might have an opportun- 
 ity to judge of his credibility, and further that the right to take 
 depositions is not a common law right but existed only in equity 
 in exceptional cases for the purpose of preventing the loss of 
 important testimony, and that even under the statute the excep- 
 tion to the common law rule must be based on some necessity 
 which brings it within the reason of that rule. This decision 
 renders invalid the former practice of permitting the taking and 
 use of depositions of witnesses residing more than forty miles 
 from the place of trial. 
 
 Depositions are regarded as secondary evidence to be read only 
 when the witness cannot be obtained.* Notes of testimony of a 
 witness given at a former trial of the same issue or before an 
 auditor, are not admissible as a deposition.^ The constitutional 
 right of one accused of crime to meet his accusers face to face 
 prevents the use of depositions against him in criminal cases.'' 
 Buf UHder the Act of April 27, 1909, P. L. 258,' the defendant 
 may take depositions of witnesses residing without the state 
 but within the United States, and read the same in evidence if the 
 attendance of the witness cannot be procured. 
 
 § 140. Commission — Generally. A commission is the most 
 usual method of taking the testimony of witnesses residing out- 
 side the state. The rules regulating the practice in such case 
 are not to be rigidly construed to exclude such evidence' on the 
 theory that the presence of the witness is more satisfactory, as 
 this is often the only way of obtaining the testimony of non-resi- 
 dent witnesses and a bona fide, substantial compliance with the 
 rules will not be defeated by a mere technicality which has not 
 injured the other party.^ 
 
 § 141. Commission — Issuance Of — Form — Name of Commis- 
 sioner. The name of the commissioner must be inserted in the 
 commission," but designating him by his surname only with the 
 addition of his official title as justice of the peace, is sufficient 
 where there can be no mistake as to his identity.^" His address 
 
 *Haupt V. Henninger, 37 Pa. 138. ''Kellum v. Smith, 39 Pa. 241 ; 
 
 =Smith V. Hine, 179 Pa. 203; Rhees v. Fairschild, 160 Pa. 555. 
 
 Matthews v. Wilson, 7 W. N. C. '-^Yan Stophorst v. Maryland, 2 
 
 29. Dal. 401. 
 
 ^Art. I, § 9, Const, of Pa.; Com, i^Sweitzer v. Meese, 6 Bin. 500; 
 
 V Zorambo, 205 Pa. log. Kellum v. Smith, 39 Pa, 241. A 
 
 'See § 167. commission directed to "George 
 
142 PUNNSYLVANIA TRIAL EVIDENCB. 
 
 must also be given so that the opposite party may know where 
 he is located in case he wishes to join in the commission and 
 name other commissioners on his own behalf in the same local- 
 ity." 
 
 § 142. Commission — Issuance Of — Form — Names of Witnesses. 
 In the absence of court rule expressly requiring it, the names of 
 the witnesses to be examined need not be named in the commis- 
 sion/^ although the court may, on opplication, order such names 
 to be giverl,^' if sufficient cause is shown therefor." 
 
 § 143. Commission — Issuance Of — ^Form — Residence of Com- 
 missionei*. The residence of the commissioner or place of hear- 
 ing the testimony must be given so that the other party served 
 maiy know where to address him and to name another commis- 
 sioner in the same locality to act in his own behalf if he desires 
 to do so. The address must be designated with such reasonable 
 certainty as to permit the place to be readily found. Merely giv- 
 ing the name of the city^^ or the state^^ is insufficient. 
 
 § 144. Commission — Issuance Of — Interrogatories — Direct. 
 The rules governing the examination of witnesses should be ob- 
 served in preparing interrogatories. They should not be lead- 
 ing," and a question whether the witness has any further knowl- 
 edge of the matters under consideration must be made generally 
 and not limited to such matters as would benefit the plaintiff.^' 
 
 Objections to the form of the question should be made and 
 filed before the commission issues, so that the error, if any, can 
 be corrected. If no objection is made, but the opposite party 
 
 Dunlair" and returned executed by "State whether or not," is not lead- 
 
 "George Dunbar" will not be re- ing: Montgomery's Estate, 3 Brewst. 
 
 ceived: Breyfogle v. Berkley, 16 306. A commission on leading in- 
 
 S. & R. 264. terrogatories may be allowed only 
 
 i^Lowry's Estate, 4 Dist. 691 ; i" exceptional cases, as where a 
 
 Patterson v. Greenland, 37 Pa. 510. witness who testified under a prior 
 
 i=Heaton v. Findlay, 12 Pa. 304. commission stated facts in favor of 
 
 i^Leggett V. Austin, i Clark 310. "^^ ^^^^V t^'^'^S the testimony 
 
 i^Cot Co. V. Sternberger, 12 W. "'''"'^'^ '=°"''^ "°* '^^^'^ ^een foreseen 
 
 N. C. 290; Huber v. Huber, 17 ^^^ ^he nature of the interroga- 
 
 Phila. 322; Lowry s Estate, 4 Dist. ^°"^^' ^"^ ^^''^'^ ™'Sht operate 
 
 691. very unjustly against the other 
 
 •=Piggett V. Halloway, i Bin. P^rty unless he be permitted to fur- 
 g ther examme by interrogatories in 
 
 leading terms : McKinney v. Dows, 
 ii'Patterson v. Greenland, 37 Pa. 3 Watts 2So 
 
 S'°' 'sBachclier v. Altick, 14 Lane. 
 
 i^An interrogatory which begins 267. 
 
DEPOSITIONS. 143 
 
 joins in the commission by filing cross interrogatories, it is too 
 late to raise the question on the trial of the case/" If any of 
 the questions are clearly irrelevant, the opposite party may move 
 to have them stricken off before the commission issues. But if 
 there is any doubt as to their relevancy, the question vv^ill be left 
 to be determined vk'hen the testimony is offered in evidence upon 
 the trial.20 
 
 § 145. Commission — Issuance Of— ^Interrogatories — Cross. A 
 party who wishes to file cross interrogatories should do so within 
 the proper time, otherwise he will not be subsequently permitted 
 to take out a commission to cross examine the same witness on 
 leading interrogatories unless by special order of the court on 
 cause shown,^^ as where there was no opportunity to cross ex- 
 amine because matters material to the issue were not inquired of 
 in the direct interrogatories.^^ l/, however, the cross interroga- 
 tories are in fact filed before the commission issues, they must be 
 annexed even though the time for filing, as provided by rules of 
 court, had already expired.^^ Exceptions to irrelevant cross in- 
 terrogatories will be sustained,-* and such interrogatories may be 
 stricken off prior to issuing the commission.^" 
 
 § 146. Commission — Issuance Of— Notice — Service Of. Notice 
 of intention to take testimony under a commission must be given 
 the opposite party so that he will have time to prepare and file 
 cross interrogatories.^* If there is a discrepancy between the date 
 of the commission and that entered on the docket of the pro- 
 thonotary, it appearing that by the date on the commission, proper 
 notice was not given, the prothonotary may be called at the trial 
 to prove that the date on the docket is correct and that the entry 
 on the commission was made by mistake.^^ Insufficient notice is 
 waived by filing interrogatories,^* and a substantial compliance 
 with the rules of court as to notice will not be declared void be- 
 
 i^'Overton v. Tracy, 14 S. & R. C. 368. It is no ground for excep- 
 
 311; Hill V. Canfield, 63 Pa. ^^. tion that the answer to an inter- 
 
 ^Tingrey v. GrifSn, i T. & H. Pr. rogatory will not make out a case : 
 
 343 ; Bacheller v. Ahick, 14 Lane. Montgomery's Estate, 3 Brewst. 306. 
 
 267. ^'Moelling v. Navigation Co., 4 
 
 2iMcKinney v. Dews, 3 Watts ^- ^- ^- 7^' 
 
 250, 
 
 38s. 
 
 ^^Van Amringe v. Ellmaker, 4 
 Pa. 281. 
 ^^Hook V, Hackney, 16 S. & R. ,,Davis Shoe Co. v. Ins. Co., 138 
 
 Pa. 73. 
 
 23Case V. Cushman, i Pa. 241. ^sAmerican Ins. Co. v.Francia, 9 
 
 ^■'Cummings v. Thomas, 2 W. N. Pa. 390. 
 
144 PENNSYLVANIA TRIAL EVIDENCE. 
 
 cause of some technical irregularity which could not harm or 
 mislead the other side.'" No notice of the time of taking the 
 testimony need be given where the other part\- does not choose to 
 join and the commission is taken exparte.-'" 
 
 If court rules provide that notice of the commission must be 
 served on the opposite party, ser\'ice on his attorney is insuffi- 
 cient, even if he makes no objection at the time he is served.'" 
 
 A commission void as to one of the parties to the proceeding 
 because of want of notice, may nevertheless be offered against 
 another party who was properly served.-" 
 
 § 147. Commission — Execution Of. The person to whom a 
 commission is issued should carefully follow the instructions ac- 
 companying it. Such instructions are directory rather than man- 
 datory, however, and where there has been substantial compliance 
 with them, the evidence will not be excluded for slight irregu- 
 larities not effecting the merits, such as failure to add a seal or 
 because the commissioner signed as such, and not as a notary. ''■^ 
 
 A commission issued to two or more persons jointly must be 
 executed by all,-'* but if issued to them or any of them it may be 
 executed by one or more.^'' If they reside in different places, one 
 may take the testimony at any of the places named, even though 
 that is not his residence.*" But it cannot be taken before some 
 person other than those designated. ^^ 
 
 A commissioner is not made a tribunal to decide the merits of 
 the case merely by an agreement that he should report the facts 
 to the court with his opinion.*^ 
 
 § 148. Commission — Execution Of — Counsel — Presence Of. 
 Counsel have no right to be present at the taking of testimony 
 under a commission. If the attorney of the party who took out 
 the commission was present, the testimony will not be received 
 even though he took no part in the hearing,^" unless no objection 
 was made by the opposite party within the time fixed l^y rule of 
 
 2"Rliees \\ Fairchild, i6o Pa. ■'•■^Pennock v. Freeman, i Watts 
 
 S5S- 401 ; Berghaus v. Alter, 9 Watts 
 
 soNussear v. Arnold, 13 S. & R. 386. 
 323. -^I'Nussear \. Arnold. 13 S. & R. 
 
 siGracy v. Bailee, 16 S. & R. 323. 
 126. '"Kingsbury v. Kimball, 32 Pa. 
 
 ■■-Hall's Estate, 10 North. 97. 518. See § 141, note 10. 
 
 ■■isRhees v. Fairchild. 160 Pa. 555. "SRiddle's Appeal. 3 Penny. 524. 
 
 ■ ■i^Hoofnagle v. Dering, i Yeates ■"'Hollister v. Hollister, 6 Pa. 
 
 302 ; Guppy V. Brown, 4 Dal. 410. 449, 
 
DEPOSITIONS. 145 
 
 court for filing objections to irregularities.*" It has been held, 
 however, that the presence of the attorney for the opposite party 
 does not invalidate the commission,*' though the commissioner 
 cannot be compelled to permit him to be present.*- If counsel 
 for both parties attend and examine witnesses orally, the deposi- 
 tions are valid.*" 
 
 § 149. Commission — Execution Of — Witnesses — Attendance — 
 Examination. Commissioners appointed by any court of record 
 of the state have power to issue subpoenas to witnesses and com- 
 pel their attendance by attachment.** ' The witnesses must be ex- 
 amined under oath*^ administered by the commissioner, or in his 
 presence by some one having authority to administer oaths, and 
 in the absence of proof to the contrary, it will be presumed the 
 oath was properly administei-ed.*" 
 
 The witnesses must be examined in regard to interrogatories 
 annexed and not generally.*'^ Interrogatories directed to a witness 
 of one party need not be put to those of the other party,*' nor is 
 it necessary that the witnesses be examined separately.*" One 
 party has no right, on a commission issued by the other, to call 
 and examine on his own account witnesses not named in the com- 
 mission.^" 
 
 The commissioner should write down the answer to each sepa- 
 rate interrogatory and cross interrogatory. =' But it is not nec- 
 essary that each interrogatory should be copied and incorporated 
 in the body of the deposition with the answer. It is sufficient that 
 it appear each question has been separately answered,^- and they 
 
 lOGross V. Express Co., 35 Super. Jones v. Ross, 2 Dal. 143. If the 
 
 467- commissioner's certificate states the 
 
 *iLowenstein v. Bierbaum, 6 W. witness was "duly sworn," the fact 
 
 N. C. 452. that the words "to testify the truth" 
 
 *2Harper v. Young, 17 Phila. were added, does not render it ir- 
 
 109; Nelson v. Field, 11 Dist. 785. regular: Clark v. Benford, 22 Pa. 
 
 isMcCullough's Estate, 20 W. N. 353. ' 
 
 C. 471- ^''Vaughn v. Blanchard, 2 Dal. 
 
 **Act Feb. 26, 1831, P. L. 92; 192. 
 Bliss V. Milholland, 10 Dist. 201. ^'Miller v. Dowdle, i Yeates 404. 
 
 Under the Act of 1831, a commis- **Pigott v. Halloway, i Bin. 436. 
 
 sioner has power to commit for con- *" Arnold v. Lightner, i Dist. 791. 
 
 tempt a witness who refuses to be ^^McCullough's Estate, 20 W. N. 
 
 sworn and to testify: Com. v. Rob- C. 471. 
 
 erts, 2 Clark 340. See cases § 163, 5i\\^{thers v. Gillespy, 7 S. & R. 
 
 note 45. 10. 
 
 ^^Frank v. Calhoun-, 59 Pa, 381; "^Qafk y Benford, 22 Pa. 353. 
 
 10 
 
146 PENNSYLVANIA TRIAL EVIDENCE. 
 
 may be referred to by number only.'^= It is not necessary that 
 they be signed by the witness.^* 
 
 A commission will be rejected at the trial if all the questions 
 are not answered,^^ and in such case the commission may be re- 
 turned to be made complete.^" However if an unanswered inter- 
 rogatory has been substantially answered in other parts of the 
 deposition, it will be sufficient/' and failure to answer will be 
 deemed waived where a commissioner of both parties was pres- 
 ent and no objection made.'* 
 
 § 150. Return of Commission — Form and Manner of Making. 
 The commissioner should certify in his return the manner in 
 which it was executed, that witnesses were produced, sworn and 
 examined, and that their evidence was reduced to writing by 
 him.'* It must be signed by him in his official capacity,®" and 
 bear his official seal,°^ and must also show the place where the 
 depositions were taken. "^ While the depositions should be annexed 
 to the commission, if they are duly signed and enclosed with it, 
 and there is no evidence of irregularity or fraud, they will not 
 be rejected because not physically attached to the commission."^ 
 If the purpose of taking the deposition was to prove the execu- 
 tion of a paper, such paper should be described, identified and 
 annexed to the deposition.®* 
 
 Mere technical irregularities in the execution and return, which 
 do no harm, are not sufficient grounds for rejecting the testi- 
 mony, especially if no objection is made until the trial of the 
 
 53Hill V. Hill, 42 Pa. 198. «iA seal on the outside of the en- 
 
 s*Moulson V. Hargrave, i S. & velope has been held sufficient: 
 
 R. 201 ; Morss v. Palmer, 15 Pa. Si- Nussear v. Arnold, 13 S. & R. 323; 
 
 s^Withers v. Gilespie, 7 S. & R. Morss v. Palmer. 15 Pa. 51 ; 
 
 10- Wright V. Wood, 23 Pa. 120. If 
 
 ''"Hinkley v. Ins. Co., 4 Pa. 470. issued to two commissioners jointly, 
 
 '^Louden v. BIythe, 16 Pa. S32. the return must be by both and the 
 
 ssstewart v. Ross, i Yeates 148. fact that two seals are attached is 
 
 ^^Scott V. Horn, 9 Pa. 407. not sufficient if only one has sign- 
 
 soSigning as commissioner over ed : Wain v. Freedland, 2 Miles 
 
 the seal of the envelope enclosing the 161. 
 
 papers has been held sufficient, even ^Ht is sufficient if it appear that 
 
 though in the body of the papers they were taken in one of the coun- 
 
 he designated himself as a notary ties to which the commission was 
 
 public: Delaware & Hudson Canal directed: Nussear v. Arnold, 13 S. 
 
 Co. V. Webster, 18 W. N. C. 339. & R. 323. 
 
 Jf not properly signed it will be •■'•■^Kingston v. Lesley, 10 S. & R. 
 
 sent back to be corrected and a new 383. 
 
 return made : Jenkins v. Anderson, "-iPetriken v. Collier, 7 W. & S. 
 
 II Atl. 558. 392. 
 
DEPOSITIONS. 147 
 
 case.^' If a mistake or omission is made, the commission may be 
 sent back for correction.^" 
 
 § 151. Return — ^Filing. A commission is a court document 
 and should be returned addressed to the prothonotary of the 
 court which issued it. But if the commissioner by mistake hands 
 it to the party on whose behalf it was taken, the irregularity is 
 not ground for reversal if it was opened in the presence of the 
 attorney for the other party and immediately filed."' A party 
 who has the return in his possession may be ruled to file it."^ 
 
 Failure of the prothonotary to mark the commission as filed 
 or to make any record of its filing is not ground for rejecting it 
 if it is in fact produced by him from his records."" And the 
 mere fact that the party objecting had inquired for the deposi- 
 tion before trial and was informed by the prothonotary that it 
 was not returned, when in fact it had been returned and taken 
 from the office by the other party, is not sufficient ground for 
 rejecting it in the absence of any plea of surprise.'" But where, 
 in addition to want of record of filing, there is no evidence of a 
 formal return having been made, and no notice had been given 
 to counsel of either party, the commission will be rejected.'^ 
 
 § 152. Commission and Depositions from Other States. A com- 
 mission issued from another state is sufficiently authenticated 
 by a seal purporting to be of the court issuing it, without further 
 attestation of its genuineness.'^ A commissioner appointed there- 
 under may issue subpoenas to witnesses and on their refusal to 
 attend or answer questions, the court may issue an attachment for 
 contempt.'^ The witnesses will be compelled to answer all ques- 
 tions except such as may tend to incriminate them, without regard 
 to the question of relevancy, which will be left to be decided by 
 the court issuing the commission.'* 
 
 Examination will usually be confined to the written interroga- 
 
 "^Wallace v. McElvy, 2 Grant 44; '"Nussear v. Arnold, 13 S. & R. 
 
 Neill's Estate, 6 W. N. C. 256; 323. 
 
 Smith V. Cokefair, 8 C. C. 45. ,,.,,., _ ^ . 
 
 „„„. , , T r- D 'lUlrich V. Getz, II Lane. 142. 
 
 ""Hinckley v. Ins. Co., 4 Pa. 470; 
 
 Jenkins v. Anderson, 11 Atl. S5«. '^Mencke v. Strause, 17 Phila. 
 
 "^Clark V. Benford, 22 Pa. 353. '°4- 
 
 esNew York Bank v. Bank, 2 '^Act March 29, i860, P. L. 34i ; 
 
 Miles 16. Robb's Petition, i Dist. 367, 640; 
 
 ""Summers v. Wallace, 9 Watts Kotz v. Eilenberger, 9 C. C. 340; 
 
 161. Bliss V. Milholland, 10 Dist. 201. 
 
 See § 149, note 44. 
 
 '*Bliss V'. Milholland, 10 Dist. 201. 
 
148 PENNSYLVANIA TRIAL EVIDENCE. 
 
 tories annexed to the commission, on the theory that since our 
 courts have no knowledge of the issues except as appears therein, 
 they should not compel a citizen to submit to a general oral ex- 
 amination which may have no bearing on the case and which may 
 prove annoying and harmful to the witness. If the commission 
 itself pern-)its oral examination necessary to explain answers al- 
 ready given, the commissioner should apply to the court for' an 
 order requiring the witness to reply to certain questions set forth, 
 which request should be accompanied by a statement of the writ- 
 ten interrogatories and answers complained of, so that the court 
 can determine whether or not the explanation is really neces- 
 sary." 
 
 Where the laws of other states authorize the taking of oral 
 depositions in this state before a notary, the court will, on peti- 
 tion, compel attendance of witnesses named.'" 
 
 § 153. Depositions Under Rule of Court — Witnesses Residing 
 Within the State — Issuance Of — Application for Rule — ^When Al- 
 lowed. It is generally provided by court rules that the depositions 
 of aged, infirm or going witnesses may be taken de bene esse by 
 a rule entered as of course in the prothonotary's office and with 
 reasonable notice to the other side or such notice as may be ex- 
 pressly required. ''' When necessary such rule may be taken be- 
 fore plaintifif's statement is filed'^ or before the return day of the 
 writ,'" or before the transcript of an appeal from a magistrate's 
 court is filed in the common pleas,'" and depositions taken be- 
 fore any cause of action was pending in court has been admitted in 
 evidence where both parties were present when they were taken.'^ 
 When a party, desires to perpetuate testimony of witnesses for 
 possible future use, he may enter a rule in the lower court while 
 the case is pending in the appellate court'^ and if for any reason 
 
 ^'Neilson's Appeal, 230 Pa. S40- 251 ; Anonymous v. Galbraith, 2 
 
 76Thompson's Petition, 1 1 Del. Dal. 78 ; Anonymous, i Yeates 404. 
 
 165. Notice should be given to the op- 
 
 770 s jiQ posite party if no appearance has 
 
 been entered for him ; Gilpin v. 
 
 _ , . . , , r , Semple, i Dal. 2SI. 
 
 350. But desposition of defendant s„u i o. . t, 1 
 
 . . sojjarlan v. Stewart, 2 Rawle 
 
 ^'Hershey v. Ammon, 24 L,anc. 
 
 as on cross examination cannot be 
 taken before the statement is filed : 
 Anderson v. Cummings, 27 C. C. 
 99. 
 
 333- 
 
 ''^Montgomery v. Dickey, 2 Yeates 
 212, 
 
 82Act March 26, 1827, 9 Sm. L. 
 ^"Stotesbury v. Covenhoven, i 308; Huidekoper v. Cotton, 3 Watts 
 
 Dal. 164; Gilpin v. Semple, i Dal. 56. 
 
DEPOSITIONS. 149 
 
 additional facts are needed in the supreme court, a rule may be 
 entered in that court.*'' 
 
 A resident of another state temporarily within this common- 
 wealth,'* and one convicted and imprisoned and awaiting the de- 
 cision of the court on a motion for a new triaP" are going wit- 
 nesses within the rule permitting the depositions of such witnesses 
 to be taken. Whether a particular witness comes within the rule 
 is a matter within the discretion of the court before which the 
 cause is pending.*^ 
 
 It is often necessary to secure testimony for use in lieu of oral 
 testimony on the argument of a rule to show cause; In such case 
 depositions may be taken under a rule if the witnesses are within 
 the jurisdiction of the court, or under a commission or letters 
 rogatory if they reside in a foreign state or country. When a 
 rule to show cause is entered in court in support of which testi- 
 mony is needed, it is not necessary to enter a second rule to take 
 depositions. Such rule is always implied in the rule to show 
 cause.*'' 
 
 It is frequently provided by rule of court that depositions of 
 witnesses may be taken without regard to their being aged, infirm 
 or going if sufficient cause therefor be shown. Such rules are 
 valid so long as they are not contrary to the general laws of the 
 state relating to the taking of depositions.** 
 
 Depositions, being taken in the presence of both parties and 
 the witness cross examined, are looked upon with more favor 
 than testimony taken under a commission, and a deposition will 
 therefore be received even though the testimony of the same wit- 
 ness had been previously*" or subsequently"" taken under a com- 
 mission. 
 
 § 154. Depositions Under Rule of Court — Witnesses Residing 
 Within State — Issuance Of — Form — Name of Commissioner. Testi- 
 mony may be taken before any person authorized to administer 
 oaths, such as a judge, justice of the peace, magistrate, notary 
 
 '^Armstrong's Estate, 6 Watts ^TQcuion v. DeLisle, i Browne 
 
 236; Ree's Appeal, 2 W. & S. 417- 256. 
 
 8*Shoneman v. Fegley, 7' Pa. 433- **Act May 23, 1887, P. L. 158, § 
 
 s^Hopper V. Williams, 2 Clark 8; International Coal Co. v. Rail- 
 
 447. road, 214 Pa. 469. See § 139. 
 
 s^McCormick v. Irwin, 35 Pa. '"Hoffman v. Kissinger, i W. & 
 
 III. • tS. 277. 
 
 ""Schoneman v. Fegley, 7 Pa. 433. 
 
ISO PF,NNSYI,VANIA TRIAL EVIDENCE. 
 
 public, or by a commisioner appointed by the court,"^ and it is 
 sufficient to state in the notice that the depositions will be taken 
 before a person named "or some other person competent to ad- 
 minister an oath.""- The official character of such person should 
 be set forth in the return."^ But if omitted, the fact may be 
 shown by evidence aliunde."* 
 
 The mere fact that a notice failed to state that the depositions 
 were to be taken before a particular officer does not render the 
 testimony inadmissible, as it will be presumed that they were 
 to be taken before some person authorized to administer oaths."' 
 
 Since laws of foreign states are presumed to be the same as 
 those of Pennsylvania until the contrary is shown, notaries of 
 other states will be presumed to have the power to take deposi- 
 tions."* 
 
 § 155. Depositions Under Eule of Court — Witnesses Residing 
 Within the State — Issuance Of — Form — Names of Witnesses. 
 Name of witnesses need not be given unless required by rules of 
 court. "^ 
 
 § 156. Depositions Under Rule of Court — Witnesses Residing 
 Within the State — Issuance Of — Notice. Notice must be given 
 the other party of the intention to take depositions."* The length 
 of notice is generally governed by rule of court, which must be 
 complied with or the deposition will be excluded."" If no specific 
 time is fixed by rule, a reasonable time is required, and what is 
 reasonable depends upon the circumstances of each case and the 
 usage and practice in the particular court."" 
 
 siPhiUipi v..Bowen, 2 Pa. 20. Ross, 3 Bin. 539; Waugh v. Shunk, 
 
 The mere fact that they were taken 20 Pa. 130. 
 
 before a clerk of the commissioners '•^'Keller v. Mutz. 5 S. & R. 216. 
 
 of the county which was a party to "si^avelli v. Prudential Co., 2 
 
 the suit, does not invalidate the Lack. Jur. 306. 
 depositions ; Harmony Twp. Over- »"Cadbury \ . Nolen, 5 Pa. 320. 
 
 seers v. County, 91 Pa. 404. "^Vincent v. Huff, 4 S. & R.~298. 
 
 s^Alexander v. Alexander, 5 Pa. ""Travis v. Brown, 43 Pa. 9" 
 
 277- One complaining of the insufficiency 
 
 ""Waugh V. Shunk, 20 Pa. 130. of the notice should produce the 
 
 A signature to the certificate fol- rule alleged to be violated : Thomp- 
 
 lowed by the letters "J. P." is son v. Milford, 7 Watts 442. 
 sufficient to indicate the character "'"McConnell v. McCoy, 7 S. & 
 
 ot the officer as a justice of the R. 223; Cunningham v Irwin 7 S 
 
 peace: Wright v. Waters, 32 Pa. & R, 247; Hamilton v. Maguire, 2 
 
 •'' ' ' S. & R. 478. In the absence of court 
 
 s^Berks County Commissioners v. rule, six days' notice has been held 
 
DEPOSITIONS. 151 
 
 A notice which is not signed by the party or his attorney/ or 
 which is by mistake directed to the plaintiff or his attorney in- 
 stead of the defendant or his attorney, though served on the 
 proper person,- is insufficient, and a deposition taken pursuant 
 thereto will not be admitted. But a copy of the rule need not be 
 attached to the notice unless the court rules expressly require it.^ 
 
 A party who attends the taking of depositions and cross ex- 
 amines witnesses, waives all objection to the insufficiency of th6 
 notice;' and where he requests the examiner to cross examine 
 witnesses for him, he cannot allege ignorance of the time and 
 place of taking the depositions.^ An objection that notice was not 
 served in time as required by rule of court, cannot be raised on 
 appeal if no objection was made in the lower court.* 
 
 § 157. Depositions Under Rule of Court — Witnesses Residin|f 
 Within the State — Issuance Of — Notice — Place of Taking. The 
 notice of taking depositions should state the place where they are to 
 be taken with such reasonable certainty that it can be easily found. 
 It is insufficient to merely specify the house of a certain person 
 residing in a certain county unless the house be well known.'' 
 But giving the last name only of an innkeeper in a certain town 
 has been held sufficient.' A mere error in spelling the name of 
 the town where the depositions were taken is not ground for 
 rejecting them if it appears the opposite party could not have been 
 misled.^ 
 
 Where a party requests the examiner to cross examine wit- 
 nesses for him, he cannot allege ignorance of the place of taking 
 the depositions.^" 
 
 § 158. Depositions Under Rule of Court — Witnesses Residing 
 Within the State — Issuance Of — Notice — Time of Taking. The 
 notice should state particularly the time the depositions are to 
 
 sufficient when the parties lived S: 46; McCormick v. Irwin, 35 Pa. 
 
 near each other: Carpenter v. iii. 
 
 Groff, s S. & R. 161. sBarnett v. School Directors, 6 
 
 iM'Donald v. Adams, 7 W. & S. W. & S. 46. 
 
 371. "Keller v. Nutz, S S. & R. 246. 
 
 ^Adams v. Easton, 6 Watts 456. ''Sheeler v. Speer, 3 Bin. 130. 
 
 ^Goodwin v. White, i Brown 'Sweitzer v. Meese, 6 Bin. 500. 
 
 272; Alexander v. Alexander, s Pa. "Gibson v. Gibson, 20 Pa. 9. 
 
 277. '"Barnett v. School Directors, 6 
 
 *Porter v. Johnston, 2 Yeates 92; W. & S. 46. 
 Barnett v. School Directors, 6 W. & 
 
152 PENNSYIyVANIA TRIAL EVIDENCE. 
 
 be taken." It is the better practice to give notice only of the time 
 of commencing the hearing, and if the testimony cannot all be 
 taken in one day, the hearing may be continued on the following 
 day,^^ or at such other adjourned date as the parties may mutually 
 agree upon. If not continued on the following day and there is 
 no adjournment by mutual consent, the other party must then 
 be given notice of the time of the adjourned hearing," espe- 
 cially when he was present at the hearing in person or by at- 
 torney and the party who took out the commission did not ap- 
 pear." If there are many witnesses to examine and two or more 
 successive days are set and the notice states the examinations are 
 to begin on the first day and continvie each day, the proceedings 
 are regular.^' 
 
 A party who requests the examiner to cross examine wit- 
 nesses for him cannot allege ignorance of the time of taking the 
 depositions.'" 
 
 § 159. Depositions Under Rule of Court — Witnesses Residing 
 Within the State — Issuance Of — Notice — Service Of. It is gen- 
 erally provided by court rules that when service of any notice- 
 is required to be made on the opposite party, service on his at- 
 torney of record is sufficient. In absence of any rule, service of 
 notice'bf taking depositions on the attorney would seem to be suffi- 
 cient,'^ especially if he received it without objection,'* or if the 
 deposition has already been read in a former trial of the case.'" 
 The same rule applies where court rules require service on the 
 attorney, and service on the party is not objected to within a 
 reasonable time.^" But if the rules of court expressly require 
 service on the party, service on his attorney is insufficient,-' even 
 
 "A notice stating that the depo- '"Hamilton V; Menor, 2 S. & R. 
 
 sitions would be taken between cer- 70. 
 
 tain hours on a particular day is '^Kaiser v. Boro., + Leh. 294. 
 
 proper : Sweitzer v. Meese, 6 Bin. 'sphinjp; ^ Bowen, 2 Pa. 20. 
 
 500; but it is irregular to specify '"Barnett v. School Directors. 6 
 
 two suceeding days between the W. & S. 46. 
 hours of 9 a. m. and 9 p. m., ''Ives v. Niles, 5 Watts 323. 
 
 as it would necessitate the keeping '^Newlin v. Newlin, 8 S. ■& R. 
 
 of the examination open for the en- 41 ; Gracy v. Bailee, 16 S. & R. 126. 
 tire time or until the opposite party '"Snyder v. Wilt, 15 Pa. 59. 
 
 appeared: Carmalt v. Potts, 8 -"Helfrich v. Stein, 17 Pa. 143. 
 
 Watts 406. 2iNash v. Gilkcson, 5 S. & R. 
 
 '^Philipi V. Bowen. 2 Pa. 20. 352; Fleming v. Beck, 48 Pa. 309. 
 
DEPOSITIONS. 153 
 
 though he fails to expressly dissent from the service.-- Service 
 on special bail of a party ,-^ or on his wife though she be a nomi- 
 nal party to the record,-* has also been held insufficient. But 
 service at the dwelling house of a party on an adult member of 
 his family is sufficient,^'* and a return of service on the wife of a 
 party without mentioning the place, will be presumed to have 
 been served on her at their home.^" But such service on a mem- 
 ber of the family, has been held insufficient where the party was 
 absent from home and there would have been opportunity for 
 other service.^' 
 
 If only one of several defendants is served, the depositions are 
 good as to him.-* And if the person who served the notice swears 
 he served "copies of the notice," the court will presume all the 
 parties were served.^" 
 
 Where the defendant is merely a stakeholder in an issue to 
 determine whether the plaintiff or a third party is entitled to a 
 fund, a rule entered by the plaintiff to take depositions should be 
 served on such third persons. Notice to the defendant is not 
 sufficient.^" But notice to the party on the recc^rd is sufficient 
 if he has actively appeared in the suit, even though the suit has 
 been marked to the use of another.^^ 
 
 § 160. Depositions Under Rule of Court — Witnesses Residing 
 Within the State — Issuance Of — Second Depositions. If material 
 matters are omitted in the testimony, a second deposition may be 
 subsequently taken without entering a new rule.^- 
 
 § 161. Depositions Under Rule of Court — Witnesses Residing 
 Within the State — Execution Of — Time and Place of Taking. The 
 deposition must be taken upon the day and between the hours"''' 
 and at the place^* mentioned in the notice. But if the designated 
 time is between certain hours, and a meeting is held at the begin- 
 ning of the time and no one appears to cross examine, it is not 
 
 "Gracy v. Bailee, 16 S. & R. 372. 
 
 125 ; Cunningham v. Jordan, I Pa. sojvjicholson v. Eichelberger, 6 S. 
 
 442. & R. 546. 
 
 23Weaver v. Cochran, 3 Yeates aiRichter v. Selin, 8 S. & R. 423. 
 
 168. s^Martin v. Kaffroth, 16 S. & R. 
 
 -*Bauman v. Zinn, 3 Yeates 157. 120; Watson v. Brewster, i Pa. 
 
 25Campbell v. Shrum, 3 Watts 60. 381. 
 
 2«Snyder v. Wilt, 15 Pa. 59. s^Whitehill v. Lonsey, 2 Yeates 
 
 2'Lemon v. Bishop, I P. & W. 109; Bachman's Case, 2 Bin. yz. 
 
 485. 34Vickroy V. Skelley, 14 S. & R. 
 
 -"Sweitzer \. Meeze, 6 Bin. 500. 372; McCleary v. Sankey, 4 W. & 
 
 2»Vickroy v. Skelley, 14 S. & R. b. 113. 
 
] 54 PENNSYLVANIA TRIAL EVIDENCE. 
 
 necessary for the witnesses to remain until the end of the time 
 mentioned, so long as a reasonable time is given the other side 
 to appear.''^ If for any reason it is necessary to hold an ad- 
 journed meeting, notice must be given the opposite party of the 
 date of the adjournment unless he were present at the hearing 
 and received notice at that time."" After the depositions have 
 been read in evidence on former trials of the case, it is too late 
 to object to them on the ground that there is no proof that notice 
 of the time and place of taking them was given."' The right to 
 object on this ground is also waived by appearing at the hear- 
 ing."* 
 
 § 162. Depositions Under Rule of Court — Witnesses Residing 
 Within the State — Execution of — Transcribing Testimony. Testi- 
 mony should be taken down by the examiner or some one by his 
 authority,"' or it may be written by the witness himself, provid- 
 ing he is first sworn and the testimony is given in the presence of 
 the examiner.*" It should not be written by an attorney, agent, 
 or any person having an interest in the case*^ unless this is done 
 with the consent and in the presence of the opposite party or his 
 attorney.*^ But the mere fact that the body of the deposition 
 does not appear to be in the handwriting of the examiner is not, 
 in itself, sufficient to rebut the presumption of regularity of the 
 proceedings.*" 
 
 The present practice is to have the testimony taken and tran- 
 scribed by a stenographer. In such case the testimony, after it is 
 transcribed, must be read over to or by the witness, and if he 
 finds it correct, he must then sign it.** 
 
 § 163. Depositions Under Rule of Court — Witnesses Within 
 the State — Execution — Witnesses — Attendance and Oath. A per- 
 son authorized to take depositions has power to subpoena wit- 
 nesses, and if they refuse to appear, a rule may be entered to show 
 
 3=Bigoney v. Steward, 68 Pa. "McEntire v. Henderson, i Pa. 
 
 318. 402; Hill V. Myers, 43 Pa. 170. 
 
 ■'''iHamilton v. Menor, 2 S. & R. *iSwearingen v. Pendleton, 3 P. 
 
 70. See also § 158. &- W. 41. 
 
 3'Hill V. Myers. 43 Pa. 170. ^^Addleman v. Masterson, i P. & 
 
 "sVickroy v. Skelley, 14 S. & R. W. 454; Farmers and Mechanics' 
 
 372. Bank v. Woods, 11 Pa. 99; Wertz 
 
 ■'"Carmalt v. Post, 8 Watts 406; v. May, 21 Pa. 274. 
 
 Crossgrove v. Himmelrich, 54 Pa. ^^Piper v. White, 56 Pa. 90. 
 
 203. *-'Zehner v. Coal Co., 187 Pa. 487. 
 
DEPOSITIONS. 155 
 
 cause why an attachment should not issue/^ and the witness 
 may be imprisoned for contempt if he refuses to be sworn.*" 
 
 Witnesses must be sworn before they ar£ examined. It is im- 
 proper to permit their testimony to be iieard and reduced to 
 writing before the oath is administered and then merely sworn 
 to before the commissioner/^ although such error will be waived 
 if no objection is made by the opposite party at the time.** 
 
 It is no valid objection to a deposition that the witness did not 
 know in what cause he was being examined.*^ 
 
 § 164. Depositions Under Eule of Court — Witnesses Within 
 the State — ^Execution Of — Witnesses — Examination. Testimony 
 should be taken orally before the examiner in the usual manner 
 of judicial examinations, with opportunity to the other party to 
 cross examine.^" The examiner must receive all evidence 
 without regard to its relevancy, and note a,ny objections thereto. ^^ 
 If the opposite party persists in bringing out irrelevant matters 
 having no bearing on the controversy, the court may impose that 
 portion of the costs on him.^^ The testimony of a witness who 
 refuses to answer a question may be rejected as a whole,^^ unless 
 the question was in regard to an irrelevant matter,^* or was un- 
 important and substantially answered in another part of the depo- 
 sition.''' But failure to object, at the time the depositions are 
 filed, to the refusal of a witness to answer a question on cross 
 examination, is a waiver thereof.'" 
 
 A witness may be permitted to refresh his recollection from 
 books or memoranda, though nqt offered in evidence,'' or from 
 
 <5Act Feb. 26, 1831, P. L. 92; '"Prmgle v. Pringle, S9 Pa. 281. 
 
 Bowen v. Thornton, 9 W. N. C. '^Howell's Estate, 14 Phila. 329. 
 
 57S; Trimble v. Barnard, 13 W. N. This applies also to objections to 
 
 C. 127. See § 149, note 44. leading questions : Strickler v. 
 
 "Com. V. Roberts, 2 Clark 340; Todd, 10 S. & R. 63. 
 
 Act. Feb. 26, 1831, P..L. 92. 52Howell's Estate, 14 Phila. 329. 
 
 ■•^Sumniers v. McKim, 12 S. & R. saVincent v. Huff, 4 S. & R. 298. 
 
 40s; Grayson v. Bannon, 8 Watts s^Crossgrove v. Himmelrich, 54 
 
 524; Patterson V. Patterson, 2 P. & p 
 
 W. 200: Mclntire v. Henderson, i _' , ^ 
 
 T-, A i -D /; "Shannon v. Castner, 21 Super. 
 
 Pa. 402; Armstrong v. Burrows, 6 . »^ f>- ■ 
 
 Watts 266; Stonebreaker v. Short, ^^' 
 
 8 Pa. 155. '"Shannon V, Castner, 21 Super. 
 
 **Armstrong v. Burrows, 6 Watts 294. 
 
 266. "First National Bank v. Bank, 
 
 *»Fleming v. Ins. Co., 12 Pa. 391. 114 Pa. i. 
 
156 PKNNSYLVANIA TRIA^, EVIDENCE. 
 
 a copy of a prior lost deposition f^ and the fact that he mentions 
 papers not produced in evidence at the hearing is not ground for 
 rejecting his testimony, especially if the papers were such as 
 would probably not be kept,'^" or were in possession of the United 
 States Court at the time of the trial.™ 
 
 § 165. Depositions Under Rule of Court — Witnesses Residing 
 Within the State — Return Of — Form and Manner of Making. The 
 rules of court generally specify the manner of returning deposi- 
 tions, and such provisions must be strictly complied with."' The 
 return should show on its face that the depositions were taken 
 pursuant to rule"^ at the time and place specified"^ and before the 
 person designated in the notice,"* that the witnesses were sworn 
 before examination,"^ and that all essentials to a valid deposition 
 were observed. However, if omitted in the return, the time and 
 place of taking the depositions may be otherwise shown."" The 
 examiner need not certify at the end of the testimony of each 
 witness, but a general caption and certificate is sufficient."' 
 
 The burden is on the party objecting to show alleged irregu- 
 larities and point out defects in the return, and this must be done 
 in the lower court, otherwise the appellate court will presume 
 that the proceedings were regular."^ 
 
 ssBovard v. Wallace, 4 S. & R. Snyder, 7 S. & R. 166. If, how- 
 
 499- ever, the opposite party attends, 
 
 5'>TilghiTian v. Fisher, 9 Watts slight defects in this i-espect in the 
 
 441 ; American Ins. Co. v. Rose- return are cured : Selin v. Snyder, 
 nagle, 77 Pa. 507. ' 7 S. & R. 166. 
 
 ""Southern Bldg. & Loan Ass'n v. o^A slight difference between the 
 
 ins. Co., 23 Super. 88. notice and the return in spelling 
 
 "^ Rambler v. Tryon, 7 S. & R. the name of the examiner is no rea- 
 
 90; Wilson V. Leech, 3 Clark 519. son for rejecting the depositions 
 
 "^If the return has annexed a unless it be shown that they were 
 cppy of the rule of court under in fact two different persons : Sam- 
 which it was taken, it is no objec- pie v. Robb, 16 Pa. 305. * 
 tion that it did not state that it was ""A certificate which states the 
 taken pursuant to rule: Vincent v. witnesses were "sworn and exam- 
 Muff, 8 S. & R. 381. ined" sufficiently shows they were 
 
 ""Vickroy v. Skelley, 14 S. & R. sworn before the examiner: Sam- 
 
 372; Tilghman >. Fisher, 9 Watts pie v, Robb, 16 Pa. 305. 
 
 441. Where a particular house in ''"Sehn v. Snyder, 7 S. & R. 166 • 
 
 a town has been specified, it must Newlin v. Newlin, 8 S. & R. 41. 
 
 appear the depositions were taken "'Morss \. Palmer, 15 Pa. 51. 
 
 at that particular place : McCleary "SNewlin v. Newlin, 8 S. & R. 41 ; 
 
 V. Sankey, 4 W. & S. 113; Selin v. Winton v. Little, 94 Pa. 64. 
 
DEPOSITIONS. 157 
 
 § 166. Depositions Under Rule of Court — Witnesses Residing 
 Within the State — Return — Filing. Depositions are not the prop- 
 erty of the person at whose instance they were taken, nor has 
 he the right to withhold them. They are for the use of both 
 parties, and if the court rules do not require a return direct to 
 the prothonotary, they must be filed in that office within a rea- 
 sonable time,"" unless the other party consents to their remaining 
 in possession of the one who took them.'" If withheld without 
 consent, an order to produce and file them will be made on ap- 
 plication,'^ especially where they have been used in the case and 
 have thus become part of the record." A rule requiring filing 
 within a reasonable time is not complied with where it appears 
 that after being filed the depositions were removed from the pro- 
 thonotary's oiifice and retained for many years. '^ But permitting 
 a party to remove them from that office temporarily in case of 
 necessity does not warrant their rejection, even though the court 
 rules provide that a deposition must not be taken from the office 
 unless a copy is left in its stead.'* 
 
 The rules of court regelating the manner of returning deposi- 
 tions must be strictly complied with or they will be rejected when 
 offered by the party who took them.'° The opposite party may 
 offer them, however, even though they were not properly re- 
 turned and filed.'" If the rules permit, but do not require, filing 
 before trial, the court may, on making an order to file, require 
 the applicant to pay costs of taking the depositions." But filing 
 nunc pro tunc so as to obtain costs from the losing party will not 
 be allowed." 
 
 If notice of filing is required by rule of court, the giving of 
 such notice is a condition precedent to their validity as evidence.'" 
 
 6<»Gordon v. Little, 8 S. & R. 533 ; N. C. 193. 
 Nussear v. Arnold, 13 S. & R. 323; '^Ross v. Barker, 5 Watts 391. 
 
 Ankrim v. Sturgis, 9 Pa. 275; Ben- '♦Dailey v. Green, 15 Pa. 118. 
 
 nett V. Williams, 57 Pa. 404; ^sRambler v. Tryon, 7 S. & R. 
 
 Lowry's Estate, 6 Super. 143. go; Wilson v. Leech, 3 Clark 519. 
 
 '"Pepper's Estate, 3 Dist. 175. '^Smith v. Austin, 4 Brewst. 89. 
 
 '^Bennett v. Williams, 57 Pa. 404; ^'Martin v. Dearie, 9 Phila. 186; 
 
 Vanartsdalen v. Dickerson, 2 W. N. Johnston v. Railroad, 5 W. N. C. 
 
 C. Ill; Lorn v. Vandermack, 4 360. 
 Kulp 425. "Association v. Golbeck, 12 W. 
 
 '^O'Connor v. Weeks, 10 W. N. N. C. 533. 
 C. 372 ; Rogers v. Gilmore, 13 W. "Ewing v. Alcorn, 40 Pa. 492. 
 
158 PliNNSYI^VANIA TRIAL EVIDENCE. 
 
 But if the witness has since died, they will not be rejected unless 
 the opposite party has been injured by want of notice.'" 
 
 § 167. Depositions Under Rule of Court — Witnesses Residing 
 Outside the State. Under the Act of June 25, 1895, P. L. 279, 
 the testimony of witnesses residing outside the state, but within 
 the jurisdiction of the United States, may be taken under a rule 
 in any civil proceeding'^ in the same manner as where the wit- 
 nesses reside within the state, provided permission of the court 
 is first obtained and at least twenty days notice of the time and 
 place of taking the testimony is given the other side. The act 
 expressly provides that it is not intended to interfere with the 
 taking of testimony under a commission and interrogatories as 
 was theretofore practiced.'^ 
 
 Under the above act, the granting of the rule to take deposi- 
 tions rests in the sound discretion of the court, who will refuse 
 to allow it unless some special reason is shown. *^ The appli- 
 cation for the rule should therefore be accompanied by a full 
 statement of the nature of the action and the question involved, to- 
 gether with the names and addresses of witnesses and the subject 
 matter of the testimony they are expected to give.'* The fact 
 that certain knowledge possessed by the witnesses is important 
 to the case and that such witnesses are hostile to the party mak- 
 ing the application,'' or the fact that corporation books which are 
 in another state and cannot be removed therefrom, are necessary 
 to the examination of the witness,'" thus making it difficult to 
 frame interrogatories in advance which will properly bring out 
 the required testimony, is sufficient to warrant the granting of 
 the rule. 
 
 By Act of June 8, 191 1, P. L. 709, it was further provided 
 that a party to any civil proceeding desiring to take the testimony 
 of a witness residing in any other state or in any foreign country 
 
 '"Hagley v. Detwiler, 35 Pa. 409. may be taken on his own behalf un- 
 
 'iThis applies to orphans' court der § 8 of Act of May 23, 1887, P. 
 
 proceedings : Irvine's Estate, 209 L. 158, such applications will not be 
 
 Pa. 321- granted as a matter of course 
 
 '^Neilson's Appeal, 230 Pa. 540. where the other party objects : 
 
 '3Com. V. Miller, 11 Montg. 216; Gray v. Braden, 13 Dist. 481. 
 
 Sprague v. Greenwald, 5 Dist. 631 ; "^Hodell Co. v. Leonard, 17 C. C. 
 
 Hodell Co. V. Leonard, 17 C. C. 513; Carter v. Blair, 10 Dist. 749. 
 
 513; Buck V. Strong, 6 Dist. 116; ^-'Carter v. Oil Co., 5 Dist. 640. 
 
 Carter v. Blair, 10 Dist. 794- While soHsefner v. Ins. Co., 28 Lane. 
 
 depositions of a non-resident party 273. 
 
DEPOSITIONS. 159 
 
 may apply to the court for permission to take such testimony 
 orally before an examiner appointed by the court or before any 
 person authorized by the laws of such other state or country to 
 administer oaths. The act further permits the court, on grant- 
 ing the appHcation, to impose on the applicant such terms as it 
 may deem proper as to the payment of costs and expenses, in- 
 cluding reasonable counsel fees and travelling expenses, and also 
 to prescribe the notice to be given and the time within which the 
 testimony shall be taken. An application under the act will be 
 refused in absence of some good reason being shown for depart- 
 ing from the usual practice in such case to take the depositions 
 under a commission.^' 
 
 The Act of April 27, 1909, P. L. 258, permits the defendant 
 in a criminal case to present a petition to the court requesting 
 permission to take depositions of witnesses outside the state but 
 within the United States, stating that the testimony of such wit- 
 nesses is material and that their attendance cannot be procured. 
 Twenty-four hours notice of the intention to present the petition 
 must be given the district attorney. If the petition is allowed, 
 the court states what notice of the time and place of taking the 
 deposition is to be given the district attorney, who must also be 
 furnished with the names of witnesses. The depositions may be 
 taken before any person authorized by the laws of the foreign 
 state to administer oaths. If it appears at the trial that the wit- 
 ness whose depositions were taken is in attendance or is or can 
 be subpoenaed, or his attendance otherwise procured, the deposi- 
 tions will not be received. 
 
 § 168. Letters Rogatory. Letters rogatory are the means of 
 taking depositions in foreign countries where there is no comity 
 permitting their being taken under a commission. Such letters 
 are in form merely a request to a court in such country to cause 
 to be examined on written interrogatories annexed, a witness who 
 is within its jurisdiction, coupled with a promise by the court 
 making the request to return the favor in a similar case. Such 
 - letters will be issued only where it appears a commission will not 
 be effective.*' 
 
 Contrary to the practice in the case of a commission, the rules 
 of procedure under letters rogatory are those olthe foreign court 
 
 s'Dreisbach v. Ins. Co., 39 C. C. sswjlkinson v. Starr, 16 W. N. 
 
 676. C. 35; Bible House v. Gay, 15 W. 
 
 N. C. 271. 
 
l6o PENNSYLVANIA TRIAL EVIDENCE. 
 
 to which the letters are sent, and objections on the ground of 
 violation of rules under our own practice will not be considered.*" 
 Conversely, letters issued from a foreign tribunal to our courts 
 will be executed in accordance with our own system of procedure 
 and administration of the law, and therefore letters requesting 
 depositions to be issued in a criminal case will not be executed, 
 since the use of depositions in such case is prohibited by our 
 criminal procedure."" Likewise questions of irregularities in the 
 issuing of letters under the law of the country of their origin,"' 
 or of the relevancy of the interrogatories"- are exclusively for 
 the court from which they were issued, and will not be passed 
 upon here. But questions of conformity of the letters to the gen- 
 eral law governing such proceedings will be determined,"^ and 
 under the Act of April 8, 1833, P. L. 308, the attendance of wit- 
 nesses before the commissioner will be compelled in accordance 
 with the practice in the court from which it was sent."* 
 
 Letters rogatory must be accompanied by written interroga- 
 tories. Oral examination will not be heard. "^ 
 
 § 169. Objections — Manner of Making. The general rule is 
 that unless the deposition is objectionable as a whole, objection 
 should be made to the specific portions alleged to be inadmissible. 
 If made generally, the whole deposition will be admitted if any 
 part is competent evidence."" This rule has been applied where 
 the depositions were taken under agreement "reserving the right 
 to object to anything irrelevant.""' 
 
 § 170. Objections — Time for Making. The time for objecting 
 to the execution and return of a deposition is usually fixed by 
 rule of court, which must be strictly complied with."* Exceptions 
 filed three days after notice of the return of the commission and 
 before a jury was sworn in the case, are within court rules re- 
 
 8»Kueliling v. Liberman, 9 Phila. Watts 13; Anderson \. Neflf, ii 
 
 160; Zanssig v. Tel. Co., 9 W. N. S. & R. 207; Batdorff v. Bank, 61 
 
 C. SIC. Pa. 179; Bickhani v. Smith, 62 Pa. 
 
 ""Letters Rogatory, 2 Dist. 624. 45 ; Henry v. Com., 107 Pa. 361 ; 
 
 "iMcKenzie's Case, 2 Pars. 229. Martin v. Kline, 157 Pa. 473. 
 
 "^McKenzie's Case, i Clark 356. "'Wojoiechowski v. Johnkowski, 
 
 »3Doubt V. Railroad, 19 C. C. 178. 16 Super. 444. 
 
 "*McKenzie's Case, 2 Pars. 229. "«Perkins v. Johnson, 19 Pa. 510; 
 
 »6Doubt V, Railroad, 6 Dist. 238; Syphers >. Meighan, 22 Pa. 125; 
 
 see also Act April 8, 1833, P. L. 305. March v. Nordyke, 15 Atl. 875 ; 
 
 §§ i8-2Q. Davis Shoe Co. v. Ins. Co., 138 Pa. 
 
 ""Atchison V. McCullough, 5 73; Oteric v. Vitale, 30 Lane. 220. 
 
DEPOSITIONS. l6l 
 
 quiring exceptions to be filed at the first opportunity."" In ab- 
 sence of express provision, objections to irregularities in the 
 service of notice of a rule to take deposition should be made 
 within a reasonable time and before trial."" 
 
 An objection to the form of a question must be made at the time 
 it is put. It is too late to object at the trial of the case.^ But 
 in absence of an express rule to the contrary, objections to ir- 
 regularities in a commission may be taken at the trial of the 
 case.- 
 
 § 171. Objections — Waiver Of. One who, without objection, 
 appears and cross examines witnesses examined under a rule of 
 court, or who takes part in a commission by filing interrogatories, 
 thereby waives the right to object to the sufficiency of the notice 
 of the taking of the testimony^ or to the authority of the ex- 
 aminer,* or the form of questions.' But the m^re fact that depo- 
 sitions are taken by agreement of the parties is not a waiver of 
 any legal objections in absence of express stipulation to that 
 effect." 
 
 The admission of a deposition without objection does not pre- 
 vent an objection being made at a subsequent trial.' But where 
 many years have elapsed and the depositions have twice been 
 used on former trials, the right to object to irregularities in the 
 notice of the time and place of taking the depositions is waived.^ 
 
 § 172. Offer in Evidence — Attendance of Witness — Proof of 
 Inability to Procure. The oral testimony of a witness in court 
 is always preferred to his depositions, and one who offers the 
 latter must therefore show some reason why the witness is not 
 produced. Thus a party who has taken the depositions of an 
 infirm or going witness should nevertheless take out a subpoena 
 and attempt to procure the attendance of the witness or prepare 
 to satisfy the court that his physical condition is such that at- 
 
 ""Cunningham v. Jordan, i Pa. Phillipi v. Bowen, 2 Pa. 20; Amer- 
 
 442. ican Ins. Co. v. Francia, 9 Pa. 390; 
 
 "'"Helfrich v. Stem, 17 Pa. 143. Fry' v. Coleman, i Grant 445. 
 
 iSheeler v. Speer, 3 Bin. 130; ^Phillipi v. Bowen, 2 Pa. 20. 
 
 Strickler v. Todd, 10 S. & R. 63; 'Overton v. Tracy, 14 S. & R. 
 
 M'Kim V. Somers. i P. & W. 297. 311; Hill v. Canfield, 63 Pa. 77. 
 
 ^Withers v. Gillespy, 7 S. & R. ^Burke v. Young, 2 S. & R. 283. 
 
 10; Vesturme v. Way, 15 W. N. C. 'Swearingen v. Pendleton, 3 P. 
 
 224. & W. 41. 
 
 'Porter v. Johnson, 2 Yeates 92; sHill v. Myers, 43 Pa. 170. 
 
 II 
 
l62 PENNSYLVANIA TRIAL, EVIDENCB. 
 
 tendance is impossible or that he is out of the jurisdiction.^ If 
 the witness resides within the county and no reason is shown 
 for his absence,^" or if he is actually within the court room at the' 
 time of the trial," his depositions will not be received. These 
 principles are based on the common law rule that depositions are 
 a secondary kind of evidence, the best evidence being the testi- 
 mony of the witness in the presence of the court and jury, and 
 the general rule applies that the secondary evidence is not ad- 
 missible until it is shown that better cannot be had.^^ Ehie dili- 
 gence to procure the attendance of the absent witness must there- 
 fore be shown, and in absence of such proof, the depositions 
 cannot be read by either party. No attempt to subpoena the 
 witness need be shown if it appears from the depositions that he 
 resides in another state,^^ or where the witness, without knowl- 
 edge of the party, left the state a few days before trial,^* or 
 where it appears he has no home or family, and the last time 
 heard from was when his depositions were taken in another 
 state.i^ 
 
 Where the absence of the witness is because of physical in- 
 ability to attend, the condition of the witness must be shown to 
 the satisfaction of the court. No general rule can be laid down, 
 but the question depends upon the particular circumstances of 
 each case,^" and is one for the discretion of the trial judge, sub- 
 ject to review by the appellate court,^' which will reverse only 
 in clear cases of abuse of discretion.^* 
 
 § 173. Offer in Evidence — Competency of Witness as Affected 
 by Subsequent Events. If the witness was competent when his 
 depositions were taken, they are admissible even though at the 
 
 ^Mifflin V. Bingham, i Dall. 272; ^^Qould v. Crawford, 2 Pa. 89. 
 
 Wallace v. Mease, 4 Yeates 520; i«L,oss of memory by reason oi 
 
 Whitesell v. Crane, 8 W. & S. 369; advancing years has been held suffi- 
 
 Covanhovan v. Hart, 21 Pa. 49s. cient reason to admit ,a deposition 
 
 "•Foringer v. Stove Co., 223 Pa. in evidence : Jack v. Woods, 29 Pa. 
 
 42s. 375; Emig V. Diehl, 76 Pa. 359; 
 
 "Stiles v. Bradford, 4 Rawlle Rothrock v. Gallaher, 91 Pa. 108. 
 
 394- "Pepper v. Lodge, 16 S. & R. 
 
 i^Stiles V. Bradford, 4 Rawle 214; Dietrick v. Dietrick, i P. & 
 
 394; Pipher v. Lodge, 16 S. & R. W. 318; Dennison v. Fairchild, 7 
 
 214. Watts 309; Beitler v. Study, 10 Pa. 
 
 i^Scott V. Province, i Pitts. 189; 418. 
 
 Waters v. Wing, 59 Pa. 211. "Parks v. Dunkle, 3 W. & S. 291; 
 
 i^Hamilton v. McGuire, 2 S. & O'Connor v. Layton, 2 Am. L.'Reg. 
 
 R. 478. 121. 
 
DEPOSITIONS. 163 
 
 time of the trial he would have been incompetent.^" This applies 
 to depositions of a party who has since become incompetent 
 by reason of the death of the other party to the transaction.^" 
 
 § 174. Offer in Evidence — Erasures and Alterations. The bur- 
 den is on the person offering depositions to explain any material 
 alteration, erasure or interlineation unless it has been noted in 
 the jurat.^^ But if it is once shown that the alteration or erasure 
 existed at the time the cleposition was received by the prothono- 
 tary, it is presumed to have been made with the consent of the 
 witness. -- 
 
 § 175. Offer in Evidence — Exhibits. Exhibits of any kind re- 
 ferred to in the deposition should be properly marked and identi- 
 fied and annexed to it.-' If accoimt books are referred to, copies 
 of the accounts, properly authenticated, should be produced.-* 
 Merely attaching a paper with a pin without any mark to indi- 
 cate it was attached by the person before whom the depositions 
 were taken, and without any reference to it in the depositions or 
 other proof given to show that it was attached by the proper per- 
 son, is insufficient to warrant its admission in evidence. ^^ If ex- 
 hibits have been attached to a prior deposition taken in the same 
 case, parol evidence is admissible to show the papers referred 
 to in both cases are identical.^" 
 
 § 176. Offer in Evidence — Lost Depositions. A lost deposi- 
 tion may be proved by a copy in the same manner as other lost 
 writings. But before the copy will be received its authenticity 
 must be established and ground must be laid by showing proper 
 search was made for the original. ^^ 
 
 § 177. Offer in Evidence — Other Proceedings — Depositions 
 Taken In. Depositions taken for use on a certain trial are com- 
 petent in a subsequent cause whenever the circumstances are 
 such as would have rendered them admissible in the original pro- 
 ceeding,^* if the same matter is in dispute between the same 
 
 ^^Wolfinger v. Forsraan, 6 Pa. ^Dgusq^ehanna Coal Co. v. Quick, 
 
 294. 61 Pa. 328. 
 
 , 20Thomas v. Miller, 151 Pa, 482. ^^Dailey v. Green, 15 Pa. 118. 
 
 2iWilliams v. Pool, i T. & H. "Pipher v. Lodge, 16 S. & R. 
 
 Pr. § 608. - 214. 
 
 "Wallace v. McElvy, 2 Grant 44; ^sAct March 28, 1814, 6 Sm. L. 
 
 Johnson v. Beckman, 3 Grant 267. 208. Notes of testimony of the 
 
 ssPetriken v. Collier, 7 W. & S. former trial are depositions within 
 
 392. • the meaning of this act : Evans v. 
 
 2*Christie v. Woods, 2 Yeates Reed, 78 Pa. 415; Pratt v. Patter- 
 
 213. son, 81 Pa. 114; and depositions 
 
164 
 
 PENNSYI<VANIA TRIAL EVIDENCS. 
 
 parties or their representatives,-" even though the proceedings 
 be not the same.'^'^ The fact that the prior proceeding resulted 
 in a non-suit,^^ or that the form of the present action is different 
 
 used in the prior proceeding are 
 notes of testimony within § 9 of 
 Act May 23, 1887, P. L. 158, per- 
 mitting such notes to be used' in a 
 subsequent proceeding if for any 
 reason the witness cannot be pro- 
 cured : Fearn v. Ferry Co., 143 Pa. 
 122. 
 
 Depositions are admissible where 
 the witness is dead : White v. 
 Bisbing, i Yeates 400 ; Galbraith v. 
 Zimmerman, lOO Pa. 374; or out 
 of the jurisdiction : Magill v., 
 Kauffmann, 4 S. & R. 317; Car- 
 penter V. Groff, 5 b. & R. 161 ; or 
 sick or insane, or in such state of 
 seniHty as to have lost his memory : 
 Emig V. Diehl, 76 Pa. 359; Thorn- 
 ton \'. Britton, 144 Pa. 126; or can- 
 not be found or for any reason is 
 not competent to testify at the time 
 of the second trial : Act of May 23, 
 1887, P. L. 158, § 9. See §§ 306 to 
 315- 
 
 -■"Act March 28, 1814, 6 Sm. L. 
 208 : Vickroy v. Shelley, 14 S. & 
 R. 372; Evans \. Reed, 78 Pa. 415. 
 Depositions taken in an action by 
 husband and wife in the right of 
 the wife, for injuries to her through 
 negligence, are inadmissible in a 
 subsequent action brought by him 
 for his own injuries, there being no 
 identity of interest in the two ac- 
 tions : Fearn v. Ferry Co., 143 Pa. 
 122. See § 309, notes 3 and 4. 
 
 ''"Depositions on a rule to open 
 judgment are admissible on a sub- 
 sequent issue to try the validity of 
 the judgment : Haupt v. Henning- 
 er, 37 Pa. 138; Riegel v. Wilson, 
 60 Pa. 388; Shannon \. Castner, 
 21 Super. 294; or on a similar 
 rule subsequently taken in another 
 county: Winton v. Fitch, 5 Kulp 
 
 137. Depositions taken before arbi- 
 trators may be read in a subse- 
 quent proceeding on appeal from 
 their award : Forney v. Hallagher, 
 1 1 S. & R. 203 ; and depositions 
 taken before a register of wills is 
 admissible in a subsequent issue d. v. 
 n. . Commonwealth Title Ins. Co. v. 
 Gray, 150 Pa. 255 ; even though the 
 appellant was not a party to the 
 original proceeding. The appeal in 
 such case is for the benefit of all 
 parties interested : Ottinger v. Ot- 
 tinger, 17 S. & R. 142. A deposi- 
 tion taken in ejectment may be 
 read in a subsequent action for the 
 same land and between the same 
 parties in interest, even though the 
 actual parties to the suit be differ- 
 ent: Cooper V. Smith, 8 Watts 
 536 ; but if taken against one de- 
 fendant they cannot be read in a 
 subsequent action in which another 
 defendant is joined and the land is 
 not the same : Walker \ . Walker, 
 16 S. & R. 379; nor where a terra- 
 tenant is added in a subsequent 
 suit and it is sought to charge his 
 land : Good v. Good, 7 Watts 195 ; 
 nor where plaintiff in ejectment 
 claims by a different title in the 
 subsequent suit: Cluggage v. Dun- 
 can, I S. & R. in. A deposition 
 taken before the property board is 
 not admissible in a subsequent ac- 
 tion of ejectment for the same 
 land : DeHaas v. Galbraith, 2 Yeates 
 315; Montgomery \. Snodgrass, 2 
 Yeates 230; Sherman v. Dill, 4 
 Yeates 295; Kirkpatrick v. Van- 
 Horn, 32 Pa. 131 ; except to show 
 (he grounds on which the board 
 acted : Gongolas \ . Hoover, 6 S. & 
 R. 118. 
 
 2'Wertz V. May, 21 Pa. 274. 
 
DEPOSITIOXS. 165 
 
 from the prior action/- is immaterial so long as it is between 
 the same parties and for the same subject matter. 
 
 Where two actions, one by a single plaintiff and one by him 
 jointly with another, are brought against the same defendant and 
 tried together by consent, depositions taken by the single plain- 
 tifif, stating that defendant promised to pay interest on both ac- 
 counts, are admissible. ^'^ And if a subsequent cause of action in- 
 cludes a count which is the same as a count in a prior action, depo- 
 sitions taken in the first are admissible in the second in support 
 of the count common to both actions.'* But if a prior suit has 
 been discontinued because of misnomer of parties, depositions 
 taken therein are not admissible in a subsequent action between 
 the proper parties.'''^ Depositions taken in proceedings to strike off 
 a judgment against one of the heirs of land covered by the lien 
 of the judgment, cannot be used in subsequent partition proceed- 
 ings of the land, to which all the heirs are parties.'" 
 
 An amendment by adding a new party subsequent to the tak- 
 ing of the depositions, renders them inadmissible.'' In such case 
 the depositions should be re-taken so as to give the new party an 
 opportunity to cross examine witnesses. But the mere fact that 
 the depositions were entitled against two defendants, one of 
 whom was never served nor proceeded against, will not render 
 them inadmissible.'^ 
 
 An agreement of counsel that depositions taken in another 
 proceeding shall be admitted, does not entitle it to admission 
 in a subsequent trial of the same cause of action after plaintiff 
 has suffered a non-suit in the first.'" 
 
 § 178. Offer in Evidence — Reading — Whole of Deposition. 
 One who offers a deposition in evidence must read the whole 
 of it.*" Permitting him to offer only parts which are favor- 
 able is not cured by allowing the opposite party to offer any other 
 
 '^Depositions taken in an action 33g,i,iti^ y Lane, 12 S. & R. 80. 
 
 a1 law may be subsequently read in 34jfohIer v. Henry, 4 Phila. 61. 
 
 an equity suit : Galbraith v. Zim- ssgolms v. McCuIloch, S Pa. 473. 
 
 merman, 100 Pa. 374 ; Fulton v. ■''^Roberts v. Powell, 210 Pa. 594. 
 
 Sellers, 4 Brewst. 42; or vice ^Tfjorbach v. Knox, 6 Pa. 377. 
 
 versa: Winch v. James, 68 Pa. ^spurviance v. Dryden, 3 S. & R. 
 
 297 ; Eckman v. Eckman, 68 Pa. 402. 
 
 460; and depositions taken in an 30A.cme Mfg. Co. v. Reed, 197 Pa. 
 
 action of account rendered are ad- 359. 
 
 missible in a subsequent action of *"Southwark Ins. Co. v. Knight, 
 
 assumpsit : Hobart v. McCoy, 3 6 Whart. 327 ; Thomas v. Miller, 
 
 Pa. 419. 151 Pa. 482. 
 
l66 PENNSYLVANIA TRIAL EVIDENCE. 
 
 part of the testimony which he may deem material, since such 
 a course would place upon the latter the burden of affirming the 
 credibility of his opponent's witness."" If only a part is read, 
 the opposite party may, if he chooses, then read the remainder,*^ 
 unless there was no objection to offering a part and the reading 
 of the remainder is for the sole purpose of contradicting the wit- 
 ness*^ or unless the answer to a single interrogatory was offered 
 for a particular purpose, in which case the other is not warranted 
 in reading the entire deposition irrespective of its' relevancy to 
 the question." 
 
 If the party who took the deposition decides not to offer it in 
 evidence, the other may then offer it,*" and may read only such 
 part as he deems favorable, leaving the balance to be read by 
 his opponent if he desires to do so.'"' But where one party offers 
 depositions taken by the other, he makes the witness his own and 
 the court may refuse to permit him to impeach the credibility of 
 the witness by reading the cross interrogatories.*' 
 
 A deposition must be read as given without omissions,*^ and 
 will be construed in accordance with the general understanding 
 of the language without regard to its strict grammatical con- 
 struction.*" 
 
 § 179. Parties — Depositions Of. Since parties are competent 
 witnesses, their depositions may be taken in the same manner as 
 other witnesses^" and may also be taken as on cross examination."^ 
 But a party cannot be compelled in this manner to disclose his 
 own case or produce books and papers in his possession in ad- 
 
 iiThomas v. Miller, 151 Pa. 482; *nCotton v. Huidekoper, 2 P. & 
 
 Pittsburgh Railway v. vBoyd, 4 W. 149. 
 
 Penny, no. 5»Wise v. Phila. Dispensary, 4 
 
 "Breyfogle v. Beckley, 16 S. & W. N. C. 570; but plaintiffs decla- 
 
 R. 263. ration must first be filed : Mills v. 
 
 ^'^Logan V. McGinnes, 12 Pa. 27. Wells, i W. N. C. 506; Anderson 
 
 i-tMershon v. Hood, 2 Pitts. 207. v. Cummings, 12 Dist. 65. Com- 
 
 ■'■'■'O'Connor v. Iron Co., 56 Pa. pare Hershey v. Ammon, 24 Lane. 
 
 234- 350. 
 
 ■"■Calhoun v. Hayes, 8 W. & S. "Addicks v. Carrigan, i W. N. 
 
 127. C, 3S8; Yerkes v. Whitaker, 4 W. 
 
 "People's Bank v. Hazard, 231 N. C. 429; Stockam v. Vansant, 17 
 
 Pa.. 552. W. N. C. 158. 
 
 ^''Miles V. Stevens, 3 Pa. 21. 
 
DEPOSITIONS. 167 
 
 vance of the trial.^^ The party taking the rule will be required 
 to file an affidavit stating the reasons therefor, and the line of 
 examination which he wishes to pursue.^^ 
 
 A non-resident executor who is a party of record, cannot have 
 his own depositions taken on the ground of his residence without 
 the state, since for the purpose of the suit he is deemed to be 
 within the jurisdiction of the court. °* 
 
 § 180. Production of Books and Papers. Production of 
 books or papers before a commissioner will not be enforced"^ 
 even to refresh the momory of a witness.'"' If documents are 
 needed before trial, the prop'er proceeding is by bill of discovery,^'' 
 or by rule to produce for inspection in a proper case,°* or if 
 needed at the trial, by a subpoena duces tecum^^ or proceedings un- 
 der the Act of 1798."" But if the commission was issued for the 
 purpose of examining witnesses as to the genuineness of a signa- 
 ture to a writing, the instrument itself and not a copy must be 
 produced."^ 
 
 ^^Lorenz v. Navigation Co., S °*Middleby's Estate, 242 Pa. 39. 
 
 Legal Gazette 174; Pennsylvania ssQ^aJ^am v. Curamings, 11 Dist. 
 
 Co. V. Railroad, 20 Phila. 332; 68. 
 
 Ladenburg v. Railroad, 6 Dist. 453; ^^Ladenburg v. Railroad, 6 Dist. 
 
 Hellings v. Leavitt, 3 C. C. 14S ; 453- 
 Kichline v. Wolf, 12 North. 279. »'See § 253. 
 
 See § 180. =«See § 254. 
 
 53Asch v. Railway, 4 W. N. C. ^^See § 262. 
 
 571 ; Yerkes v. Whitaker, 4 W. N. «»See §§ 255 to 261. 
 
 C. 571. liiWeidner v. Connor, g Pa. 78. 
 
l68 PI'NNSYLVANIA TRIAI, EVIDENCE. 
 
 CHAPTER VIII. 
 
 DOCUMKNTAUY liVfDENCE. 
 
 A, BUST EVIDENCE RULE. 
 
 § i8i. General principles. 
 
 182. Exceptions to rule. 
 
 183. Primary evidence. 
 
 184. Admissions. 
 
 185. Certified copies under acts of assembly. 
 
 186. Duplicate papers — Notice. 
 
 187. Secondary evidence. / 
 
 188. Grades of secondary evidence. 
 
 189. Kinds of secondary evidence. 
 
 190. Proof. 
 
 Copies. 
 
 191. Oral testimony. 
 Preliminary. 
 
 Lost documents. 
 
 192. Existence, execution and delivery of originals. 
 
 193. Loss and search — Proof. 
 
 Originals in posession of adverse party. 
 
 194. Notice to produce. 
 
 195. Time of giving and sufficiency of notice.' 
 
 196. Effect of production. 
 
 B. PRIVATE DOCUMENTS. 
 
 197. Altered or mutilated instruments. 
 
 198. Blank spaces. 
 
 199. Effect of alterations — Materiality. 
 
 200. Extent of rule — Public records. 
 
 201. Deeds. 
 Execution, proof of. 
 
 202. General principles. 
 
 203. Acts, declarations and circumstances. 
 
 204. Handwriting of witnesses. 
 
 205. Handwriting of parties. 
 
 206. Subscribing witnesses. 
 
 207. Sufficiency of proof. 
 
 208. Acknowledged instruments. 
 
 209. Ancient documents. 
 
 210. Collateral writings. 
 
 211. Deeds. 
 
 212. Letters. 
 
 213. Notes and bills. 
 
 214. Papers filed in court. 
 
DOCUMENTARY EVIDENCE. 169 
 
 215. Receipts. 
 
 216. Rule of court dispensing with proof. 
 
 217. Sealed instruments. 
 
 218. Wills. 
 
 219. Charitable gifts. 
 
 220. Erasures and interlineations. 
 
 221. Lost wills. 
 
 222. Mark as signature. 
 
 223. Maps and plans. 
 
 224. Mortality tables. 
 
 225. Photographs. 
 
 226. Receipts. 
 
 227. Time tables. 
 
 228. Unstamped writings. 
 
 C. PUBUC DOCUMENTS. 
 
 229. Generally^— Modes of proof. 
 
 230. Assessment books. 
 
 231. Corporation accounts. 
 
 232. Historical and geographical books relating to public matters. 
 Judicial records. 
 
 233. Domestic — Docket entries. 
 
 234. Foreign states. 
 23s. Foreign countries. 
 
 236. Justices' courts. 
 
 237. United States courts. 
 
 238. Whole of record. 
 Law. 
 
 239. Domestic. 
 
 240. Foreign. 
 
 241. Federal questions. 
 
 242. Statutory 01 written law. 
 
 243. Unwritten or common law. 
 
 244. Maps, plans and surveys. 
 
 245. Marriages, births and deaths — Records of. 
 
 246. Municipal ordinances. 
 
 247. Notarial acts. 
 
 Official records and papers. 
 
 248. Domestic. 
 
 249. Foreign. 
 
 250. Recorded instruments. 
 
 251. Weather bureau reports. 
 
 252. Whole of record. 
 
 D. PRODUCTION OF DOCUMENTS. 
 
 253. Generally. 
 
 254. Rule to produce — Production prior to trial in aid of pleadings. 
 
 255. Rule to produce — Production at trial under Act of 1798. 
 
 256. Affidavit or petition. 1 
 
170 
 
 PKNNSYIvVANIA TRIAI, EVIDENCE. 
 
 257. Answer. 
 
 258. Non-production — Effect of. 
 
 259. Notice of rule. 
 
 260. Practice. 
 
 261. Time and place of production. 
 
 262. Subpoena duces tecum. 
 
 A. BEST EVIDENCE RULE. 
 
 § 181. General Principles. A party is bound to furnish the 
 best proof that the nature of his case affords, and if two different 
 grades or qualities of evidence exists, that which is best must be 
 produced.^ However this rule requires the best in kind only, and 
 
 ^An agreement as to boundaries, 
 which recites that it was made up 
 from a draft then before the par- 
 ties, but which draft was not pro- 
 duced or accounted for, is inadmis- 
 sible: McDermott v. Hoffman, 70 
 Pa. 31 ; and an itemized claim pre- 
 sented to the government for the 
 use of land by an army for camp- 
 ing purposes, is inadmissible where 
 there was no offer to prove it to 
 be the original or' a properly au- 
 thenticated copy : Bomgardner v. 
 Swartz, 26 Super. 263. A certificate 
 issued by a board of fire escapes, 
 is not admissible to show the ap- 
 proval of a fire escape by the board, 
 as the best evidence thereof would 
 be the testimony of the inspector 
 who issued the certificate : Sewell 
 V. Moore, 166 Pa. 570. Book en- 
 tries of the sale of land are second- 
 ary evidence. The testimony of the 
 person who negotiated the sale and 
 made the entry is the best evidence 
 of the transaction : Stuckslager v. 
 Neel, 123 Pa. 53. Hospital records 
 are not competent evidence in ab- 
 sence of the testimony of the physi- 
 cian who made them : Harkness v. 
 Boro., 238 Pa. 544. A receipt signed 
 by a third person is secondary evi- 
 dence of the payment of money ; 
 Townsend v. Kerns, 2 Watts 180; 
 Cutbush V. Gilbert, 4 S. & R. 551. 
 
 Transactions of a municipal or 
 quasi municipal governing body 
 should be proved by the minutes of 
 their meetings : Gearhart v. Dick- 
 son, I Pa. 224! Wain v. Phila., 99 
 Pa. 330; Roland v. Reading School 
 Dist., 161 Pa. 102; but if no min- 
 utes are kept its acts may be other- 
 wise proved, and omissions or er- 
 rors in the minutes may be sup- 
 plied or corrected by parol : Gear- 
 hart v. Dickson, I Pa. 224; Sugar 
 Creek School Dist. v. McBride, 22 
 Pa. 21S ; Sidney School Furniture 
 Co. V. Warsaw Twp. School Dist., 
 158 Pa. 35. See § 182, note 9. 
 
 Docket entries of the prothono- 
 tary are merely minutes of that offi- 
 cer and are not the best evidence 
 of the service or return of writs. 
 The writ itself should be produced : 
 Vincent v. Huff, 4 S. & R. 298. The 
 writ is also the best evidence of a 
 constable's levy: Mansfield v. Bell, 
 24 Super. 447. A certificate of the 
 orphans' court clerk that a party 
 had filed a recognizance, is not evi- 
 dence that the recognizance was in 
 accordance with the Act of Assem- 
 bly relating thereto. A certified 
 copy of the recognizance should be 
 produced : Jones v. HoUopeter, 10 
 S. & R. 326. 
 
 The subject matter of a suit can- 
 not be proved by parol. A copy of 
 
DOCUMENTARY EVIDENCE. 
 
 171 
 
 not the best in degree, and to exclude evidence under it, the evi- 
 dence not produced must not only be more direct, satisfactory 
 and conclusive than that offered, but must also be of a higher 
 grade of proof .^ The application of the rule is generally confined 
 to cases where the law has divided the evidence into primary and 
 secondary. But evidence will not be considered secondary un- 
 less it discloses on its face an indication that better remains be- 
 hind,' and therefore, while the rule was originally intended to 
 cover a much wider scope and is the foundation of many im- 
 portant principles of administrative law, it is generally limited 
 in its modern application to cases where some writing is in ques- 
 tion the contents of which should be proved by production of the 
 original rather than by a copy or other secondary evidence.* 
 For this reason the subject has been considered under the head of 
 documentary evidence. 
 
 The rule requiring production of the best evidence calls for the 
 best that can be produced at the time it is offered,^ and which is 
 
 the records should be produced : 
 Otto V. Trump, 115 Pa. 425 ; and a 
 certificate of a presiding judge that 
 a case is not pending before him, 
 cannot be admitted, the best evi- 
 dence of that fact being an inspec- 
 tion of the record : Voris v. Smith, 
 13 S. & R. 334. For the same rea- 
 son the district attorney cannot be 
 permitted to testify as to what was 
 done in a certain proceeding : Com. 
 V. Storey, 49 Super. 282. 
 
 The proper evidence of the ap- 
 pointment of a public officer by the 
 governor is his commission from 
 the governor under seal of the 
 commonwealth : Northumberland 
 Cotmty V. Zimmerman, 75 Pa. 26; 
 although a record of the appoint- 
 ment in a register kept by the sec- 
 retary of the commonwealth is 
 competent evidence without the 
 production of the commission: 
 Moore v. Huston, 3 S. & R. 169. In 
 order to prove the granting of a 
 pardon, the pardon itself should be 
 produced or its absence accounted 
 for. A certified copy of the min- 
 
 utes of the governor showing that 
 the person in question was pardon- 
 ed, is incompetent : Spalding v. 
 Saxton, 6 Watts 338; Cox v. Cox, 
 26 Pa. 375. 
 
 ^Williamsport v. Gas Co., 232 Pa. 
 232. As between two witnesses, 
 such testimony being of the same 
 kind, one will not be excluded 
 merely because the other had a bet- 
 ter opportunity of knowing the 
 facts : Western Union Tel. Co. v. 
 Stevenson, 128 Pa. 442; Canfield v. 
 Johnson, 144 Pa. 61 ; Williamsport 
 v. Gas Co., 232 Pa. 232. 
 
 sCutbush V. Gilbert, 4 S. & R. 
 550; Shoenberger v. Hackman, 37 
 Pa. 87 ; Western Union Tel. Co. v. 
 Stevenson, 128 Pa. 442; Williams- 
 port V. Gas Co., 232 Pa. 232. 
 
 ^American Mfg. Co. v. Smith, 33 
 Super. 469. The rule extends to 
 maps, surveys and drawings : Bry- 
 ant v. Stilwell, 24 Pa. 314. 
 • ^Gaines v. Com., So Pa. 319. This 
 rule applies, even though the event 
 took place many years before : 
 Howell v. Mellon, 1S9 Pa. 169. 
 
172 
 
 PliNNSYLVANIA TRIAL EVIDENCE. 
 
 within the reach of the party at that time. ' The mere fact thai 
 more conclusive evidence might possibly be obtained does not pre- 
 clude him from offering such as is available." 
 
 A written memorandum of a transaction is not necessarily the 
 best evidence of it to the exclusion of other evidence.^ But if 
 the memorandum is made at the time of the transaction, either in 
 discharge of a public duty or of some duty arising out of the 
 business relations of the parties, and the witness who made it 
 has no recollection of the facts aside therefrom, but when pro- 
 duced as a witness testifies that the memorandum was true and 
 correct when made, it then becomes admissible as the best evi- 
 dence of the transaction.' 
 
 § 182. Exceptions to Rule. The best evidence rule is not ap- 
 plied to documents not directly in issue but merely collateral 
 thereto," or where a record required by law to be kept is not part 
 
 ^In an action for negligently per- 
 mitting water to percolate through 
 the plaintiff's land from the defend- 
 ant's reservoir, it is not incumbent 
 on the plaintiff to dig a trench to 
 the reservoir in the hope of finding 
 better evidence, where he presents 
 the best evidence otherwise obtain- 
 able : Crozer v. New Chester Wa- 
 ter Co., 148 Pa. 130; and where 
 witnesses testified positively that 
 certain stains were blood spots, it 
 is no valid objection to their admis- 
 sion that a chemical analysis of the 
 spots was not made by an expert : 
 Gaines v. Com., 50 Pa. 319. 
 
 ^A written memoranda relating 
 to the cost of a plant does not war- 
 rant the exclusion of other evidence 
 thereof : Williamsport v. Gas Co., 
 232 Pa. 232; and a witness may 
 testify that a certain person was 
 confined in a penitentiary at a par- 
 ticular time, notwithstanding the 
 warden of the prison was required 
 to keep a journal of the reception 
 and discharge of prisoners : Howser 
 V. Com., 51 Pa. 332. In a suit to 
 recover one-half profits of erecting 
 a momument, plaintiff may show 
 the cost of materials, labor and ex- 
 
 penses of shipping, by witnesses who 
 assisted therein, and is not obliged 
 to call the defendant to prove by 
 him the actual sum paid : Canfield 
 v. Johnson, 144 Pa. 61 ; likewise, 
 the mere fact that a rope had been 
 weighed and a record made of the 
 weight, does not render inadmis- 
 sible the testimony of one who saw 
 it loadea on trucks for shipment, 
 and of an inspector who examined 
 it : American Mfg. Co. v. Smith, 
 33 Super. 469, An officer of a cor- 
 poration called as a witness to 
 prove the circumstances leading to 
 a contract, may be permitted to 
 testify that he is treasurer, with- 
 out proving that fact by the minute 
 book : Moore Implement Co. v. 
 Hench, 21Q Pa. 135; and where 
 dying declarations are written down 
 by a witness, but not called to the 
 attention of the declarant, nor sign- 
 ed by him, such writing does not 
 exclude oral evidence of the dec- 
 larations on the ground that it is 
 the best evidence : Allison v. Com.. 
 99 Pa. 17. See §§ 94 and 97. 
 
 ^See §§ 94 and 97. 
 
 "The fact that a certain person 
 was a minister may be shown by 
 
DOCUMENTARY liVIDENCE. 
 
 173 
 
 of the fact to be proved but merely a memoranda of its exist- 
 ence.^" Nor is it necessary to produce a writing to prove the fact 
 of its execution," or the matters which formed its basis/^ or to 
 identify a party to it/^ nor does the existence of written evidence 
 of ownership of personal property exclude parol testimony as 
 to ownership." 
 
 The best evidence rule is not enforced in a preliminary inquiry 
 before the court to determine the competency of a witness, since 
 a party cannot be expected at all times to be prepared with the 
 best evidence to prove the incompetency of any witness who might 
 be offered, and concerning matters as to which he had no prior 
 knowledge. ^^ 
 
 § 183. Primary Evidence. The best evidence of the contents 
 of a writing is the writing itself, which must be produced or 
 satisfactory cause shown for its non-production. '^'' Production 
 
 parol, without producing the record 
 of his ordination : Cummin v. 
 Smith, 2 S. & R. 440; and the fact 
 that a witness testified in another 
 suit may be shown without pro- 
 ducing the record : Brown v. Com., 
 76 Pa. 3ig. Performance of work 
 in the streets by a municipality may 
 be proved without the production 
 of the ordinance authorizing the 
 work to be done : Bohan v. Avoca 
 Boro., 154 Pa. 404; and acts of a 
 municipality may be proved other- 
 wise than by the records or other 
 written documents : Bohan v. Boro., 
 154 Pa. 404; Rothwell v, Boro., 21 
 Super. 234; Oakley v. Luzerne 
 Boro., 25 Super. 425. For the pur- 
 pose of contradicting a witness who 
 denies having been convicted of 
 crime, the fact of conviction may be 
 proved orally without producing 
 the record of conviction ; Com. v. 
 Racco, 22s Pa. 113; Act May 23, 
 1887, P. L. 158, § 9- See § 308. 
 
 ii'The fact that a certain person 
 had served a term of imprisonment 
 may be proved without production 
 of the record of the warden : How- 
 ser v. Com., 51 Pa. 332. 
 
 "Shoenberger v. Hackman, 37 
 
 Pa. 87. 
 
 i-Scott v. Baker, 37 Pa. 330. 
 
 '^^Fogler V. Evig, 2 Yeates 119. 
 This applies to the record of a suit : 
 Brown v. Com., 76 Pa. 319. 
 
 i^Gallagher v. Ins. Co., 149 Pa. 
 
 25- 
 
 i^Carmalt v. Piatt, 7 Watts 318. 
 
 ^"Carland v. Cunningham, 37 Pa. 
 228 ; Cottom V. Wiley, 39 Super. 507. 
 Oral proof of a conveyance of land 
 is inadmissible without proof of loss 
 of the deed : McDonald v. Camp- 
 bell, 2 S. & R. 473 ; nor may a 
 sheriff's deed be proved by an entry 
 in the minutes of the prothonotary, 
 without an attempt to produce the 
 deed itself : Lodge v. Berrier, 16 
 S. & R. 297. The date of a survey 
 must be proved by tHe survey it- 
 self : Dawson v. Laughlin, 2 
 Yeates 446; and the adoption of a 
 certain plan by a borough council 
 should be proved by the ordinance 
 itself, and not by a recital in the 
 plan : Oakdale Boro. v. Sterling, 
 8 Super. 428. A deposition which 
 tends to prove the contents of a 
 writing, the non-production of 
 which is not accounted for, is in- 
 admissible : McKee v. Reiff, 4 
 
174 PEN-NSYIvVANIA TRIAL EVIDENCE. 
 
 will be excused only in case of necessity, as where it is shown to 
 be lost, destroyed or beyond the jurisdiction of the court, or in 
 the hands of the opiX)site party who fails to produce it on notice." 
 In the absence of such proof, neither oral evidence^^ nor a copy 
 of the writing" will be received. 
 
 § 184. Primary Evidence — Admissions. Admissions are in 
 themselves in the nature of primary evidence, and the contents 
 of writings may be so proved without the production of the writ- 
 ing itself. Thus, declarations admitting the existence of a part- 
 nership are competent evidence, notwithstanding the existence 
 of a written partnership agreement,-" and admissions of title 
 to personal property will be received, though there is a written 
 bill of sale." 
 
 § 185. Primary Evidence — Certified Copies Under Acts of As- 
 sembly. There are numerous statutes making copies of public 
 records or publicly recorded private writings competent evidence 
 equal to the originals, when duly certified by the proper officer 
 having them in charge. Such copies are considered primary evi- 
 dence and will be received without prior proof of inability to pro- 
 cure the originals. ^^ 
 
 § 186. Primary Evidence — Duplicate Papers — Notice. A writ- 
 ing executed in duplicate may be proved by either, since both are 
 original evidence.-^ A carbon copy, if signed at the same time, 
 is considered an original for all purposes, and notice to produce 
 
 Yeates 340; Packer v. Gonsalus, i Wiley, 39 Super. 507. 
 
 S. & R. 526; though a payment isCollins v. Smith, 78 Pa. 423; 
 
 after judgment may be orally Martin v. McCray, 171 Pa. 575; 
 
 proved: Van Horn v. Frick, 3 S. Stern v. Stanton, 184 Pa. 468; Bry- 
 
 & R. 278. A list of receipts is in- ant v. Stillwell, 24 Pa. 314. 
 
 admissible where the receipts them- I'Wood v. Roach, 2 Dall. 180; 
 
 selves are in possession of the party Donath v. Ins, Co., 4 Yeates 275 ; 
 
 offering the list: Hart v. Yunt, i Curtis v. Patton, 6 S. & R. 135; 
 
 Watts 253. The contents of a news- Pipher v. Lodge, 16 S. & R. 214. 
 
 paper may not be proved unless its ^oWiddifield v. Widdifield, 2 Bin. 
 
 non-production is accounted for: 245; Edwards v. Tracy, 62 Pa. 
 
 Barr v. Moore, 87 Pa. 385. 374; Reed v. Kremer, in Pa. 482. 
 
 I'See §§ 192-196. McKinney v. See § 54. 
 
 Leacock, i S. & R. 27; Dreisbach =iConrad v. Farrow, 5 Watts 
 
 v. Berger, s W. & S. 564; Grauley 536. 
 
 V Jermyn, 163 Pa. 501 ; Brown v. s^See § 250 and also various sub- 
 Burr, 160 Pa. 458; Martin v. Mc- jects under Public Documents, §§ 
 Cray, 171 Pa. S7S; Deppen v. 229 to 252. 
 Bogar, 7 Super. 434; Cottom v. ^-^Cobb v. Burns, 61 Pa, 278. 
 
DOCUMENTARY EVIDENCE. 175 
 
 the original need not be given.^* A copy of a lost paper is not ad- 
 missible if there be a duplicate or counterpart in existence. ^^ A 
 tax duplicate is evidence of a grade equal to a certified copy of 
 the original assessment in the commissioner's office. ^^ 
 
 Every written notice to the opposite party may be proved by a 
 duplicate or copy of the original, without notice to produce the 
 latter; otherwise the notice to produce the original would have 
 to be proved in the same way, and notice to produce the preceding 
 notice would be required ad infinitum.^' 
 
 § 187. Secondary Evidence. Secondary evidence is admis- 
 sible whenever a satisfactory reason for non-production of the 
 original is given, as for instance, where it is lost,-^ or destroyed,-^ 
 or beyond the jurisdiction of the court,^" or is in possession of 
 the adverse party who refused to produce it on notice,'*'^ or in 
 possession of a third person who is beyond the jurisdiction and 
 refuses to produce it.^^ 
 
 If primary evidence is obtainable, secondary evidence is not 
 admissible even to corroborate it, but is wholly excluded.?** 
 Where secondary evidence has been received under the belief that 
 it was the best obtainable and it subsequently appears a higher 
 grade of evidence could have been procured, the court may re- 
 quire production of the latter and strike out the secondary evi- 
 dence.'* 
 
 2*Cole V. Elwood Power Co., 216 23 ; Garland v. Cunningham, 37 Pa. 
 
 Pa. 283. 228; American Underwriters Ass'n 
 
 ^^Kerns v. Swope, 2 Watts 7S- v. George, 97 Pa. 278; Gpttom v. 
 
 ^^Lewisburg Overseers v. Au- Wiley, 39 Super. 507. 
 
 gusta Overseers, 2 W. & S. 65. s^Ralph v. Brown, 3 W. & S. 395. 
 
 ^^Eisenhart v. Slayraaker, 14 S. Where a required communication is 
 
 & R. 153 ; Gaskeller v. Morris, 7 in possession of the governor of 
 
 W. & S. 32; Morrow v. Com., 48 the state, who refuses to surrender 
 
 Pa.' 305 ; Behrens v. Mountz, 37 it on a subpoena duces tecum on the 
 
 Super. 326. ground of public policy, secondary 
 
 -'Diehl V. Emig, 65 Pa. 320; evidence of its contents should not 
 
 Gorgas v. Hertz, 150 Pa. 538 ; be admitted : Gray v. Pentland, 2 
 
 Boalsburg Water Co. v. Water Co., S. & R. 23. 
 
 240 Pa. igS. ssWoods v. Ege, 2 Watts 333. 
 
 2i>Shortz V. Unangst, 3 W. & S. 3*Helzer v. Helzer, 187 Pa. 243. 
 
 4S ; Diehl v. Emig, 6s Pa. 320. But if suit is brought on a lost note 
 
 ^'Otto V. Trump, 115 Pa. 425; and plaintiff makes out a case for 
 
 Davis V. Ins. Co., S Super. 506. the jury on that basis, and the de- 
 
 ^^Buchanan v. Moore, 10 S. & R. fendant then produces a note which 
 
 27s ; McKellip v. M'llhenny, 4 he alleges is the basis of the action. 
 
 Watts 317; Milliken v. Barr, 7 Pa. the plaintiff is not bound to accept 
 
176 PENNSYLVANIA TRIAL EVIDENCE. 
 
 § 188. Secondary Evidence — Grades of Secondary Evidence. 
 
 Where from the nature of the case it appears different grades 
 of secondary evildence exists, the best must be produced,^'^ and 
 an offer of the weaker evidence without explanation may be made 
 the basis of an unfavorable inference."" Thus, parol evidence of 
 the contents of a letter is not admissible where the party has in 
 his possession a letter press copy,°^ and when the contents of a 
 lost letter, written by a merchant, is to be proved, it will be pre- 
 sumed the party who wrote it kept a copy in a letter book, and 
 due notice to produce such letter book, should be given before 
 trial. ^' The same rule applies to parol evidence of a lost deed 
 where it is possible to secure a copy,^" and parol evidence of lost 
 depositions has been rejected where the party might have taken 
 a second deposition.^" 
 
 When the existence of a better grade of secondary evidence is 
 not shown by the nature of the case, the evidence offered should 
 be admitted unless the party objecting proves that better evidence 
 was known to the party making the offer and could have been pro- 
 cured by him before the trial.^^ 
 
 § 189. Secondary Evidence — Kinds of Secondary Evidence. 
 Secondary evidence is perhaps most frequently proved by copies 
 of the original. If no copy can be obtained oral proof may be 
 given of its contents, regardless of whether the writing be a 
 private one or a public record,*^ and such proof is not excluded 
 by the existence of a power in the court to supply lost records.*" 
 Recitals in a subsequent deed may be admitted to prove the con- 
 tents of a lost deed,** and court records" or docket entries*" are 
 
 i! as genuine, but the burden of *2Armstrong v, Morgan, 3 Yeates 
 
 proving genuineness is on the de- 529; Harvey v. Thomas, 10 Watts 
 
 fendant and it is error to strike out 63 ; Farmers' Bank v. Gilson, 6 Pa. 
 
 plaintiff's evidence. Id. 51; Butler v. Slam, 50 Pa. 456; 
 
 ssDennis v. Barber, 6 S. & R. Clark v. Trindle, 52 Pa. 492 ; Gould 
 
 420; Stevenson v. Hoy, 43 Pa. 191. v. Lee, 55 Pa. 99; Braden's Estate, 
 
 ^''Shoenberger v. Hackman, 27 165 Pa. 184. 
 
 Pa. 87. ^^Miltimore v. Miltimore, 40 Pa. 
 
 "Stevenson V. Hoy. 43 Pa. 191. 151; Richard's .\ppeal, 122 Pa. 
 
 ■"^Dennis v. Barber, 6 S. & R. 420. 547. 
 
 ^'Hamilton v. Van Swearingen, "Dorff \. Schmunk, 197 Pa. 298. 
 
 Add. 48. _ ^"Barnett v. Barnett, 16 S. & R 
 
 *"McCally v. Franklin, 2 Yeates 50; Luce v. Snively, 4 Watts 396; 
 
 340. Harned v. Livezey. i W. N. C. 226. 
 
 *' Richard's Appeal, 122 Pa. 547. ■"'Buchanan v. Moore, 10 S. & R. 
 
DOCUMENTARY EVIDENCE. 177 
 
 admissible to prove the contents of documents therein referred 
 to or recited, if such documents are lost. A minute book showing 
 the sale of property by a county treasurer, is competent to prove 
 the contents of the treasurer's de.ed which has been lost.*' 
 
 If it appears a lost writing had been copied from a certain 
 form, such form, so far as used, is evidence of the terms of the 
 lost writing, and any variations made in the form may be orally 
 proved.** 
 
 § 190. Secondary Evidence — ^Proof — Copies. Proof by copies 
 of a writing may be by letter press or carbon copies, certified 
 copies, or copies made by persons who have compared them with 
 the originals, who must be called to prove their correctness." A 
 copy made by one who was in possession of the original as agent 
 for both parties, and handed to the witness to whom he read the 
 original for comparison, is sufficiently proved by the latter, since 
 it will be presumed the custodian, who acted for both parties, 
 read correctly.'* 
 
 A subscribing witness to the original document is competent to 
 prove a copy,°^ and a notary who protested and gave notice to the 
 endorser of a note, may prove the contents of the note.'^ If the 
 protest has been destroyed and the term of office of the notary has 
 expired, so that he has no authority to certify a document under 
 his former seal, he may offer and prove a copy of the protest.'^ 
 
 § 191. Secondary Evidence — Proof — Oral Testimony. A wit- 
 ness who is offered to prove orally the contents of a writ- 
 ing, must be shown to have read it or otherwise to 
 
 275 ; Harvey v. Thomas, 10 Watts be received : Com. v. Yerkes, 52 
 
 63 ; Woods V. Halsey, 9 Pa. 144 ; Super. 68. 
 
 Halsey v. Blood, 29 Pa. 319; Milti- ^oKrise v. Neason, 66 Pa. 253. 
 
 more V. Miltimore, 40 Pa. 151 ; Kaul Not decided whether, where two 
 
 V. Lawrence, 73 Pa. 410; Mulhearn persons compare the copy with the 
 
 V. Roach, 24 Super. 483; Given v. original, one of whom reads the 
 
 Given, 25 Super. 467. original and the other the copy, it 
 
 *^Watson V. Jones, 85 Pa. 117. is necessary for the copy and origi- 
 
 **Fisher v. Boro., I Super. 386. nal to change hands. The weight 
 
 ^'Kerns v. Swope, 2 Watts 75; of authority is to the effect that 
 
 McGinnis v. Sawyer. 63 Pa. 259; this is unnecessary. See cases cited 
 
 Krise v. Neason, 66 Pa. 253 ; Black- by the court in Krise v. Neason ; 
 
 stone v. White, 41 Pa. 330. A also Stephens' Digest of Evidence, 
 
 sworn copy of a town charter is 197; Greenleaf's Evidence, 508. 
 
 competent evidence : Blackstone v. 'iRandall's Appeal, 2 Walk. 465. 
 
 White, 41 Pa. 330. When a witness, ^^Ritter v. Singmaster, 73 Pa. 
 
 on being shown a copy of a writing, 400. 
 
 admits it is correct, the copy will '^j^ioyd v. McGarr, 3 Pa. 474. 
 12 
 
178 PENNSYLVANIA TRIAL EVIDBNCB;. 
 
 have had actual knowledge of it, and must be able to 
 testify at least to the substance of its contents.^^ But it is not 
 necessary that he should be able to give the exact language of 
 the writing. °° If it appears he did not read it but had only a 
 hasty glance at its contents while another read it aloud, he de- 
 rives his knowledge from hearsay and is incompetent.^* Proof 
 of an extract from a lost letter is inadmissible even though the 
 witness is willing to swear that the extract contains everything 
 in the letter relating to the matter in controversy. The contents 
 of the letter as a whole must be proved. ^^ 
 
 § 192. Secondary Evidence — Proof — Preliminary — Lost Docu- 
 ments — Existence, Execution and Delivery of Originals. When- 
 ever secondary evidence of a writing is ofifered on the ground 
 that better cannot be obtained, as where the original document 
 is lost or beyond the jurisdiction of the court, the existence, exe- 
 cution and delivery of the original must be clearly proved,^^ and 
 cannot be assumed.^" If an incomplete doci/ment is offered, it 
 will not be admitted unless accompanied by piroof of an attempt 
 to procure the missing parts.*" 
 
 It is not necessary, however, to prove the former existence of a 
 lost paper by direct evidence. Facts and circumstances from 
 which its existence may be inferred, are sufficient.*^ Thus the 
 existence of a lost deed may be proved by evidence that the 
 grantee paid the purchase money,*^ or by proving a petition aver- 
 ring the loss of the deed, and asking that a new one be made to 
 the grantee, and a decree of court granting the prayer of the 
 
 s^Coxe V. England, 65 Pa. 212; v. Munnell, 145 Pa. 497. It has 
 
 Richards' Appeal, 122 Pa. 547; Van been held that an effort to obtain 
 
 Horn V. Munnell, 14s Pa. 497. the paper in the possession of a 
 
 soEmig V. Diehl, 76 Pa. 359; third person beyond the jurisdiction 
 
 Cote V. Schoen, I Super. 583. must be shown : Snyder v. Arm- 
 
 o^Coxe V. England, 65 Pa. 212. strong, 2 W. N. C. 15. 
 
 5'Dennis v. Barber, 6 S. & R. sogaskin v. Seechrist, 6 Pa. 154; 
 
 420. Anders v. Central Railroad, 19 
 
 'sMcReynolds v. McCord, 6 Watts Super. 564. 
 
 288; Rhodes v. Seibert, 2 Pa. 18; "osusq. Mutual Ins. Co. v. Mar- 
 
 Slone V. Thomas, 12 Pat 209; dorf, 152 Pa. 22. 
 
 Roland v. Miller, 3 W. & S. 39°; "^Garwood v. Dennis, 4 Bin. 314; 
 
 Loughry v. McCullough, I Pa. 503 ; Moorehead v. Pearce, 2 Yeates 456 ; 
 
 Baskin v. Seechrist, 6 Pa. 154; Dorff v. Schmunk, 197 Pa. 298; 
 
 Porter v. Wilson, 13 Pa. 641 ; Bright v. Allen, 203 Pa. 386. 
 
 Coxe V. England, 65 Pa. 212; Krise ^^McDonald v. Adams, 7 W. & 
 
 V. Neason, 66 Pa. 253 ; Van Horn S. 371. 
 
DOCUMBNTAEY EVIDENCE. 1 79 
 
 petition,^^ or by showing a court record of an acknowledgment 
 of a treasurer's deed for unseated lands,"'' or the docket entries 
 of a lost bond filed in a judicial proceeding."^ But testimony 
 that the witness saw among papers of a certain person a deed to 
 him of a particular tract of land, without stating whether or, by 
 whom it was executed, is insufficient."" Acknowledgment by a 
 person in whose hands the original had been placed as agent of 
 both parties, that the paper was genuine, is prima facia evidence 
 of the fact."^ And the oath of one witness as to the genuineness 
 of a paper, is sufficient to take the case to the jury, though con- 
 tradicted by other witnesses or by circumstances."^ If the lost 
 instrument is one that required a stamp, the presumption is that 
 such stamp was attached."" 
 
 Evidence that would be insufficient to prove the signature on a 
 paper if produced, is also insufficient to prove execution of a lost 
 instrument, the same proof being necessary in both cases.'" 
 Therefore the testimony of one witness is insufficient to prove a 
 lost will,'^ and if the instrument is a deed, it is necessary to prove 
 both execution and delivery." If the person whose title is to be 
 affected was not named in the writing and did not sign it, his 
 connection must be proved in some manner.'^ Where there are 
 no subscribing witnesses, the act of destruction is the best evi- 
 dence obtainable, since it is no longer possible to prove the exe- 
 cution of the paper by witnesses who would have known the 
 handwriting. But in such case the witness who testifies to the 
 fact of destruction ought to first show an adequate knowledge 
 of its contents and identity, either from having actually seen and 
 read it, or from the admission of the person who destroyed it, 
 or other evidence equally satisfactory.'* 
 
 The existence of a power in the court to supply lost records 
 does not prevent their proof by secondary evidence. "* 
 
 •s^Gray v. Coulter, 4 Pa. 188. ^^McKenna v. McMichael, 189 
 
 ^*Reinboth v. Zerbe Run Im- Pa. 440. 
 
 provement Co., 29 Pa. 139. '-McCredy v. Navigation Co., 3 
 
 esBoyd v. Com., 36 Pa. 355. Wliart. 425; Nicholl's Petition, 190 
 
 «"Burke v. Hammond, 76 Pa. 172. Pa. 308. 
 
 "'Krise v. Neason, 66 Pa. 253. '^jack v. Woods, 29 Pa. 375. 
 
 ^^Krise v. Neason, 66 Pa. 253. '*McReynolds v. McCord, 6 Watts 
 
 «»Merkel v. Marx, 33 P. L. J. 420. 288; Coxe v. England, 65 Pa. 212; 
 
 '"Slone V. Thomas, 12 Pa. 209; Richards' Appeal, 122 Pa. 547. 
 
 lyOgan V. Gardner, -36 Pa. 588. '^Miltiraore v. Miltimore, 40 Pa. 
 
 151 ; Richards' Appeal, 122 Pa. 547. 
 
l8o PENNSYLVANIA TRIAL EVIDENCE. 
 
 § 193. Secondary Evidence — Proof — Preliminary — Lost Docu- 
 ments — Proof of Loss and Search. Before secondary evidence of a 
 lost document will be received, not only must proof of its existence 
 and execution be given, but also proof of loss and the efforts made 
 to recover it,'° unless it is shown to have been destroyed, in which 
 case proof of destruction would necessarily relieve the party of 
 further proof of search having been made." The degree of dili- 
 gence to be used in the search necessarily depends upon the cir- 
 cumstances of the case. It is not necessary that loss or destruc- 
 tion be proved beyond the possibility of mistake, but it is suffi- 
 cient to show such diligence in making a search as would be used 
 by good business men under the circumstances.'* The rule is 
 enforced in proportion to the character and importance of the 
 document and the motive which the party would have in preserv- 
 ing it.'° If it is unimportant and such as would naturally be dis- 
 carded or probably be destroyed or parted with, a careful search 
 is unnecessary.*" 
 
 Books and papers will be presumed to be in the place where 
 they ought to be, and proof of diligent search in such place and 
 inquiry of persons who would be most likely to know of them, 
 is sufficient,*"^ especially where the document was very old and all 
 the parties to it are dead.*^ But the search should be made at or 
 about the time the document is needed. Search made a long 
 time before trial is too remote.*^ If the paper is shown to belong 
 in a particular office, search must be made in such office,** and 
 the person in whose possession the paper had formerly been, 
 
 '■^HeUer v. Peters, 140 Pa. 648; no reason for preserving: Amer- 
 
 Strause v. Braunreuter, 14 Super. ican Life Ins. Co. v. Rosenagle, TJ 
 
 125. Pa. 507. 
 
 "Parks V. Dunkle, 3 W. & S. siParke v. Bird, 3 Pa. 360; Graff 
 
 291; V. Railroad, 31 Pa. 489; Empire 
 
 '■^Strause v. Braunreuter, 14 Transportation Co. v. Steele, 70 Pa. 
 
 Super. 125. 188; Brown v. Day, 78 Pa. 129. 
 
 '^Spalding Boro. v. Bank, 9 Pa. ^-Earley v. Enwer. 102 Pa. 338. 
 
 28. s.'ipQj.tgr V. Wilson, 13 Pa. 641. 
 
 sfRaab v. Urick, 2 W. N. C. 53. s-iSweigart v. Lowmarter, 14 S. 
 Tliis rule has been applied to bills & R. 200; Adams v. Easton, 6 
 posted in public places: Weeks v. Watts 465; McConahy v. Centre, 
 Haas, 3 W. & S. 520; lottery tickets etc.. Railroad, i P. & W. 426; Em- 
 after they have been surrendered pire Transportation Co. v. Steele, 
 and paid: Yoter v. Sanno, 6 Watts 70 Pa. 188; Heller v. Peters, 140 
 164; and to letters which there was Pa. 648. ' 
 
DOCUMENTARY EVIDENCB;. i8i 
 
 should be called to testify to its loss.^'^ But proof that the person 
 in possession of a document was charged with crime and fled 
 from the state,*** or that the papers were stolen" is sufficient to 
 excuse non-production. Loss of a public record is sufficiently 
 proved by the certificate of the officer having it in charge that it 
 cannot be found in his office.** 
 
 Where there is no absolute assertion that the original document 
 is lost, and no proper explanation given for its non-production, 
 secondary evidence is inadmissible.*" The fact that the witness 
 says he did not look for the original because it was not his custom 
 to preserve such papers, and that if he had looked there was no 
 prospect of finding it,"" or that search was made but without stat- 
 ing it was made among the business papers of the person in whose 
 possession the document would be likely to be found,"^ is insuffi- 
 cient to admit secondary evidence ; nor is it sufficient that a wit- 
 ness testifies he made a search in the office of a particular cor- 
 poration on the day previous to the trial, if he is unable to tell 
 how thorough a search was made or what time of day it was, and 
 no officer of the company is called to testify thereto."^ But if a 
 witness in his deposition states a document was sent to a certain 
 person and subsequently lost, and though diligent search was 
 made it could not be found, a copy attached to the deposition is 
 admissible in absence of any cross examination or evidence tend- 
 ing to contradict the witness."* 
 
 *°CaiTipbell V. Wallace, 3 Yeates lias not the original in his own 
 
 271 ; Hartz v. Woods, 8 Pa. 471 ; possession : Meyer v. Barker, 6 
 
 Empire Transportation Co. v. Bin. 228. 
 
 Steele, 70 Pa. 188. Where papers seWest Phila. Bank v. Field, 143 
 
 were shown to have been in posses- p^ ^73 
 
 sion of decedent prior to his death, ^rEllis v. Guggenheim, 20 Pa. 
 
 proof of unsuccessful search among q 
 
 his papers by the witness and an- ' . c p t> 
 
 ., ^ , „ r ., »»Weidman \. Kohr, 4 S. & R. 
 
 other to whom all papers of the ,, ., „ 
 
 J J -. u u a: • » 174; Ruggles V, Gaily, 2 Rawle 232 ; 
 
 decedent came, was held sufficient „ , „ ' 
 
 .^, ^ „• ., u i-u Dtruthers v. Reese, 4 Pa. 129. 
 
 without calling the person who thus _ 1 _ 
 
 , J ^ .. ■ • =»Moore v. Everitt, 20 Super. 13. 
 
 succeeded to their possession : ' .^ 
 
 r. r r> u i • f ''"McConachy v. Turnpike Co., I 
 
 Caufman v. Presbyterian Congre- p o -iir z- 
 
 gation, 6 Bin. 59; Krise v. Neason, ' ^ 
 
 66 Pa. 253. If a lost document is "'Empire Transportation Co. v. 
 
 traced from the hands of a plain- Steele, 70 Pa. 188. 
 
 tiff to hi^ attorney who is alleged to "-Moore v. Everitt, 20 Super. 13. 
 
 have lost it, it is not necessary that "°Susq. Coal Co. v. Quick, 61 Pa 
 
 the plaintiff be called to prove he 328. 
 
l82 PENNSYLVANIA TRIAL EVIDENCE. 
 
 If the court stenographer dies befores his notes of testimony 
 are transcribed, and no one else is able to transcribe them, or 
 where the testimony has been lost, the evidence may be supplied 
 in the same manner as lost or destroyed records."* But the mere 
 fact that the stenographer's successor testifies that the notes 
 could not be found, is insufficient to admit secondary evidence in 
 absence of proof of a search having been made.'^ 
 
 Whether a document is lost is a preliminary fact to be de- 
 termined before secondary evidence is received."" The question 
 of sufficiency of the proof of loss and search is a matter within 
 the discretion of the trial court, whose action thereon will not be 
 reversed in absence of clear error."' 
 
 § 194. Secondary Evidence — Proof — Preliminary — Original in 
 Possession of Adverse Party — Notice to Produce, Secondary evi- 
 dence may be given of the contents of a writing in possession or 
 under control of a party to a cause who refuses to produce it 
 on notice."* Such notice is necessary even though the paper is 
 in court at the time of the trial, since the object of the notice is 
 not only to secure production of the paper, but to give the party 
 in possession an opportunity to prepare testimony to support or 
 impeach it."" Inconvenience or absence from the state does not 
 excuse the giving of notice unless the party on whom it was to be 
 served could hot be found after diligent inquiry.^™ But if notice 
 that certain books or papers will be required is implied from the 
 nature of the action, other notice to produce is unnecessary.^ No- 
 
 "^Walter v. Sun Fire Office, 165 Finkbeiner, 68 Pa. 243; Pratt v. 
 
 Pa. 381; Humphrey v. Tozier, 154 Patterson, 81 Pa. 114; Reddelin v. 
 
 Pa. 410. Atkinson, 46 Super. 159; but not to 
 
 "^Susq. Mutual Fire Ins. Co. v. writings which are mere copies of 
 
 Mardorf, 152 Pa. 22. others in possession of the party 
 
 '"'Graff V. Railroad, 31 Pa. 489. giving the notice, nor will failure to 
 
 "'Leazure v. Hillegas, 7 S. & R. produce such copies permit the iii- 
 
 313; Hemphill v. McClimans, 24 troduction of secondary evidence: 
 
 Pa. 367; Gorgas v. Hartz, 150 Pa. Porter v. Lee, 16 Pa. 412. 
 
 538. o^Milliken v. Barr, 7 Pa. 23. 
 
 "^Buchanan v. Moore, 10 S. & R. '""Garland v. Cunningham, 37 Pa. 
 
 27s; M'Kellip V. M'llhenny, 4 228. 
 
 Watts 317; Milliken v. Barr, 7 Pa. 'Garland v. Cunningham, 37 Pa. 
 
 23 ; Garland v. Cunningham, 37 Pa. 228. This applies in an action of 
 
 228 ; American Underwriters Ass'n (rover for promissory notes : Mc- 
 
 V. George, 97 Pa. 238; Cottom v. Glean v, Hertzog, 6 S. & R. 154; 
 
 Wiley, 39 Super. 507. The rule c.r on the trial of an indictment for 
 
 also applies to letters : Patton v. stealing a bill : Com. v. Messinger, 
 
 Ash, 7 S. & R. 116; Elbert v. i Bin. 273. But it is not enough 
 
DOCUMENTARY EVIDUNCB. 183 
 
 tice to produce is also unnecessary where the instrument to be 
 proved is itself a notice ; otherwise if the party should continue 
 to refuse to produce, it would be necessary to produce notice of 
 a second notice, and so on indefinitely.^ 
 
 If on being called upon to produce a letter, a party states he 
 not only did not receive notice to produce, but never received 
 the letter, a copy is admissible the same as in case of lost docu- 
 ments.^ 
 
 The Act of February 27th, 1798, 3 Sm. L. 303, relating to the 
 production of books and papers,* does not change the rule allow- 
 ing secondary evidence to be given on failure to comply with 
 notice to produce,^ but it does not permit the court to compel the 
 production of papers on notice alone, without formal compliance 
 with its provisions. ° 
 
 § 195. Secondary Evidence — Proof — Preliminary — Originals in 
 Possession of Adverse Party — Notice to Produce — Time of Giv- 
 ing and Sufficiency Of. A reasonable time must be given to pro- 
 cure or account for the original. What is reasonable depends 
 upon the circumstances and is within the discretion of the trial 
 judge, who may consider whether, from the facts proved, the 
 document might have been produced if more time had been al- 
 lowed.' A notice given two days before the trial, where there 
 was no mode of travel which would have enabled the party to 
 bring the books in question to the place of trial within that time, 
 is insufificient.* 
 
 Proof that a notice to produce was delivered at a house where, 
 according to the city directory, the defendant resided, is sufficient 
 to warrant the admission of secondary evidence after non-com- 
 pliance with such notice." Notice to one of several executors is 
 sufficient where he was the only one who attended the trial, and 
 it appears the papers called for had been used at a former trial 
 of the case.^° 
 
 that the document be merely refer- ^Worman v. Sheepshanks, 14 S. 
 
 red to in the declaration : Alex- & R. 212. 
 
 ander v. Coulter, 2 S. & R. 494- ''Press Publishing Co. v. Reading 
 
 ^See § 186, note 27. News Agency, 44 Super, 428. 
 
 ^Press Publishing Co. v, News ^Porter v. Lee, 16 Pa. 412. 
 
 Agency, 44 Super. 428. ^Hazard v. Von Amringe, 4 Bin. 
 
 *See §§ 2SS-261. 295, note. 
 
 ^Alexander v. Coulter, 2 S. & R. i»Patton v. Goldsborough, 9 S. & 
 
 494- i<- 47- 
 
184 PENNSYLVANIA TRIAL EVIDENCE. 
 
 § 196. Secondary Evidence — Proof — Preliminary — Originals in 
 Possession of Adverse Party — Effect of Production. While it has 
 been said that a party who calls for books or papers in posses- 
 sion of his adversary and inspects them when produced, makes 
 them competent evidence for the party producing them, although 
 they would otherwise have been inadmissible on his behalf and 
 although they are not actually offered in evidence by the party 
 calling for them,^^ the later cases have adopted the rule that 
 when the document produced is found on inspection to contain 
 something which the party calling for it had no reason to expect 
 and which would not have been competent evidence for the other 
 side, he may decline to i;ead it, in which case his opponent may 
 make only such use of it as he could have made if not called upon 
 to produce. ^^ This rule is especially enforced where there has 
 been no notice to produce the document, but merely a request 
 for it in court, with which the other party was not bound to 
 comply.^' 
 
 Calling for the production of a book does not render the whole 
 book admissible, but only such parts as relate to matters in 
 issue." And where other papers in additions to those called for 
 are produced, the party cannot be compelled to offer all or none, 
 but he may offer only those called for.'° 
 
 Books produced by the plaintiff upon call by the defendant 
 cannot be used by the latter to prove a set-off of which no prior 
 notice was given. ^^ 
 
 B. PRIVATE DOCUMENTS. 
 
 § 197. Altered or Mutilated Instruments. When an erasure, 
 alteration or interlineation appears on the face of an instrument, 
 primarily there is a presumption in favor of innocence and there- 
 fore that it was made before execution." If the alteration does 
 not appear to be beneficial to the party offering the writing, or 
 is opposed to his interest,'* or if it was made with the same pen 
 
 1' Farmers & Mechanics' Bank v. 10. 
 Israel, 6 S. & R. 293. i^Heaffer v. Ins. Co., loi Pa. 178. 
 
 i^Summers v. McKim, 12 S. & R. "Latimer \. Hodgdon, s S. & R. 
 
 404; Withers v. Gillespy, 7 S. & R. 514. 
 10. ''Simpson v. Stackhouse, 9 Pa. 
 
 '■i Farmers & Mechanics' Bank 186; Jordan v. Stewart, 23 Pa. 244; 
 
 V. Israel, 6 S. & R. 293. Robinson v. Myers, 67 Pa. 9. 
 
 "Withers v. Gillespy, 7 S. & R. '^Jordan v. Stewart, 23 Pa. 244. 
 
DOCUMENTARY BVIDENCU. 
 
 185 
 
 and ink and in the same hand as the body of the writing,'" this 
 presumption remains unchanged. But if the alteration is of a 
 material part and is beneficial to the party offering it, or if there 
 is anything on the face of the instrument which appears sus- 
 picious, the presumption disappears and the burden is on the party 
 offering the writing to explain the alteration to the satisfaction 
 of the jury.-" The tendency of the later decisions is to hold 
 parties more strictly responsible for alterations of any kind.-^ 
 However, if the alteration is made accidentally, even in a ma- 
 terial part,-- or by a third person without authority of the holder 
 of the instrument,-^ it is not thereby invalidated but is admis- 
 sible in its original form.^* 
 
 i"Simpson v. Stackhouse, 9 Pa. 
 186; Robinson v. Myers, 67 Pa. 9; 
 Lee V. Newland, 164 Pa. 360. 
 
 =" Jordan v. Stewart, 23 Pa. 244; 
 Robinson v. Myers, 67 Pa. 9 ; 
 Burgwin v. Bishop. 91 Pa. 336; 
 Boustead v. Cuyler, 116 Pa. 551; 
 Hartley v. Corboy, 150 Pa. 28; 
 Nesbitt V. Turner, 155 Pa. 429; 
 Sober V. Mooney, 48 Super. 92; 
 Cornoy v. Wilson, 231 Pa. 281. 
 The fact that both parties to the 
 transaction are dead, though it 
 makes explanation more difficult, 
 does not change the rule requiring 
 it : Nagle's Estate, 134 Pa. 31. If it 
 is admitted an alteration was made 
 after execution, but the question as 
 to who made it is disputed, the case 
 is for the jury: Martin v. Kline, 
 IS7 Pa. 473. If the maker of a 
 note bearing an alteration admitted 
 at a former trial its execution, and 
 there has been no change since the 
 note will be received : Graham v. 
 Spang, I Mona. 167. If a writing 
 is made ambiguous by changes 
 which should also have been made 
 a( other places therein or not at all, 
 the presumption is that a change 
 as a whole was intended and the 
 writing will be so construed : Peter- 
 son's Estate, 212 Pa. 453. 
 
 2iCiti,zens' Bank v. Williams, 174 
 
 Pa. 66; Cornog v. \yilson, 231 Pa. 
 281. 
 
 "Foust V. Renno, 8 Pa. 378; 
 Neff V. Horner, 63 Pa. 327. 
 
 ^^Fritz V. Commissioners, 17 Pa. 
 131 ; Kountz v. Kennedy, 63 Pa. 
 187 ; Neff V. Horner, 63 Pa. 327 ; 
 Worrall v. Gheen, 39 Pa. 388; 
 Com. V. Dietrich, 7 Super. 515. 
 
 2*"If the alteration be made 
 fraudulently or with an illegal in- 
 tention, or if the original words 
 cannot be restored certainly, or if 
 any party has become interested in 
 the note or affected by it, or re- 
 lated to it since the alteration in 
 such a way that the restoration will 
 do any wrong to this party — in 
 either of these cases we should say 
 the party must abide by the altera- 
 tion he made, and accept the con- 
 sequences of making it. But unless 
 one of these reasons exist, we are 
 not aware of any good and suffi- 
 cient argument for refusing to per- 
 mit him to restore the instrument 
 to its original form and force." 
 Per Thompson, C. J., in Kountz v, 
 Kennedy, 63 Pa. 187. See refer- 
 ence to this case in Citizens' Nat. 
 Bank v. Williams, 174 Pa. 66, and 
 Shiffer v. Mosier, 225 Pa. 552. See 
 § 199- 
 
l86 PENNSYLVANIA TRIAL EVIDENCi;. 
 
 The general rule that the law presumes in favor of innocence 
 does not apply when the writing bearing an alteration is a negotia- 
 ble instrument. One who accepts such an instrument takes it sub- 
 ject to any imperfections appearing on its face, and it will be 
 presumed that he satisfied himself that it was regular and pro- 
 vided himself with the proofs necessary to meet the scrutiny he 
 had reason to expect it would be subjected to when offered in 
 evidence. ^° 
 
 If an altered document is admitted without objection, the ap- 
 pellate court will assume that the complaining party had an op- 
 portunity to examine it or was satisfied to admit it without ex- 
 amination.-" 
 
 § 198. Altered or Mutilated Instruments — Blank Spaces. If 
 a blank space is left in a paper, such as the omission of the date,-' 
 or the place of payment, ^^ or the amount^" of a note, the pre- 
 sumption is that the holder was authorized to fill it up, and the 
 fact that he inserted by mistake a wrong date and subsequently 
 corrected it will not invalidate the note.'" The same rule has 
 been applied to a bond signed in blank with authority in a cer- 
 tain person to fill it up.^^ But a paper purporting to be a can- 
 celled bond, though bearing no signature, must be shown to have 
 once existed as a valid obligation before it is competent evi- 
 dence.'^ 
 
 § 199. Altered or Mutilated Instruments — Effect of Alterations 
 — Materiality. A material alteration in a written instrument re- 
 leases a party who does not consent thereto, and the writing is 
 rendered inadmissible as evidence either in its changed or original 
 condition and there can be no recovery upon it,'' even though the 
 alteration may have been made without intent to defraud.'* The 
 contract is avoided not only as to the party making it, but even 
 
 25Simpson v. Stackhouse, 9 Pa. siwiiey v. Moor, 17 S. & R. 438; 
 
 186; Nagle's Estate, 134 Pa. 31; Costen's Appeal, 13 Pa. 292. 
 
 Citizens' Nat. Bank v. Williams, ^^Lenox.v. De Haas, 2 Yeates 37. 
 
 174 Pa. 66; Cornog v. Wilson, 231 ^^Babb v. Clemson, 10 S. & R. 
 
 Pa. 281. 419; Miller v. Reed, 27 Pa. 244; 
 
 28Sutton's Estate, 13 Super. 492. Craighead v. M.cLoney, 99 Pa. 211; 
 
 "Hepler v. Mount Carmel Bank, ^^^ ^- Corner, 63 Pa. 327; Shif- 
 
 97 Pa. 420. ^" '■■ ^°^'^'' 22s Pa. 55.2. 
 
 ,,„, ,, _, . „ "Marshall v. Gougler, 10 S. & 
 
 28Wessell V. Glenn, 108 Pa. 104. d ,<;. r- 1 o -I .^o t, 
 
 ^ R. 164; Fulmer v. Seitz, 68 Pa. 
 
 2»Worrall v. Gheen, 39 Pa. 388. 237 -^ Craighead v. McLoney, 99 Pa. 
 
 ^cHepler v. Mount Carmel Bank, 211; Shiffer v, Mosier, 225 Pa. 
 
 97 Pa. 420. 552. 
 
DOCUMENTARY IJVIDBNCI;. 187 
 
 as to an innnocent assignee or transferee f^ and while subsequent 
 assent to the change is a waiver of the right to rely on the altera- 
 tion as a defense, such assent does not validate the instrument as 
 to other parties not assenting.^" However if an alteration was 
 made accidentally or by a third person without authority, the 
 writing is admissible in its original form.'^ 
 
 If alterations are immaterial the instrument is admissible in 
 its original form,^^ and therefore the determination of what is or 
 is not material becomes important. As a general rule any tamper- 
 ing with the instrument which imposes upon a party an additional 
 burden or peril which he would not otherwise have incurred, 
 is an injury to him and therefore material.^'' Alterations which 
 change the evidence or rriode of proof*" or impose liability for 
 interest where such liability did not exist*^ or change the time*^ 
 or place of payment,*^ or add a name of a witness after execu- 
 tion** or change the word "order" to "bearer"*'' have been held 
 material. But where a contract provided work was to be done 
 "by" a certain time, changing the word "by" to "before" does not 
 change the time for performance, and is immaterial,*" and in- 
 serting in a joint note the words "or either of us," thus making 
 it a joint and several note, is immaterial, there being no distinc- 
 tion in legal effect between a joint and a joint and several note.*' 
 
 The legal effect of alterations is. for the court, and if material 
 and the facts are not disputed, binding instructions should be 
 given.** 
 
 § 200. Altered or Mutilated Instruments — Extent of Rule — 
 Public Records. The rule requiring a party offering a paper to 
 e,xplain erasures or alterations is confined to private writings and 
 
 s^Shiffer v. Hosier, 225 Pa. 552. 505; Kennedy v. Lancaster County 
 
 s^Shiffer v. Hosier, 225 Pa. 552. Bank, 18 Pa. 347; Hartley v. Cor- 
 
 3''See cases § 197, notes 22-24. boy, 150 Pa. 23. 
 
 3*Craighead v. McLoney, 99 Pa. *3Simpson v. Stackhouse, 9 Pa. 
 
 211. 186. 
 
 s^Craighead v. HcLoney, 99 Pa. **Harshall v. Gougler, 10 S. & R. 
 
 211; Citizens' Nat. Bank v. Wil- 163; Henning v. Werkheiser, 8 Pa. 
 
 liams, 174 Pa. 66; Lancaster v. 518; Shiffer v. Hosier, 225 Pa. 
 
 Barrett, i Super, g. 552. 
 
 *''Craighead v. HcLoney, 99 Pa. *''Sunday v. Dietrich, 16 Super. 
 
 211. 640. 
 
 *iNeff V. Horner, 63 Pa. 327; *<5Express Publishing Co. v. Al- 
 
 Fulmer v. Seitz, 68 Pa. 237 ; Craig- dine Press, 126 Pa. 347. 
 
 head v. HcLoney, 99 Pa. 211. "MiWeT v. Reed. 27 Pa. 244. 
 
 *2Stephens v. Graham, 7 S. & R. **Lancaster v. Barrett, I Super. 9. 
 
1 88 
 
 PENNSYLVANIA TRTAL EVIDENCE. 
 
 does not extend to public records, for the keeping of which the 
 parties are in no way responsible. Interlineations and erasures 
 in such records are presumed to be due to clerical mistakes and 
 corrected when made, and this presumption cannot be rebutted 
 by parol evidence.*^ 
 
 § 201. Deeds. A deed will not be received in evidence until 
 it is shown that the grantor had possession or some right, title 
 or interest, either legal or equitable, in the land when he made 
 the deed.^" It is not necessary that his title be fully proved how- 
 ever, but any evidence of title however small, is sufficient to ren- 
 der the deed admissible.''^ 
 
 The rule governing the admission of deeds does not apply to 
 a mere executory contract for the future conveyance of title to 
 
 *" Adams v. Betz, i Watts 425 ; 
 Hoffman v. Coster, 2 Whart. 453 ; 
 Xander v. Com., 102 Pa. 434; 
 Specht V. Sipe, 15 Super. 207. See 
 § 399- 
 
 5»Faulkner v. Eddy, i Bin. 188 
 Peters v. Condron, 2 S. & R, 80 
 Kennedy v. Skeer, 3 Watts 95 
 Murphy v. Lloyd, 3 Whart. S38 
 M'Donald v. Adams, 7 W. & S 
 371 ; Schrack v. Zubler, 34 Pa. 38 
 Bonaffon v. Peters, 134 Pa. 180. 
 Where plaintiff in ejectment relies 
 on the allegation that defendant is 
 a mere intruder, the latter may 
 prove the will of a former owner 
 devising the land to defendant's 
 grantor, though no title in the tes- 
 tator is shown, as such evidence 
 shows color of title in defendant : 
 Holloway v. Jones, 143 Pa. 564, 
 Although a deed exhibits imperfect 
 title to part of the tract described, 
 it is competent evidence in support 
 of title to the remainder : S'lhman 
 V. Whitmer, 11 Super. 243. 
 
 ^iHoak V. Long, 10 S. & R. g; 
 Zeigler v. Hautz, 8 Watts 380; 
 McHenry v. McCall, 10 Watts 456; 
 Goundie v. North Water Co., 7 
 Pa. 233; Meals v. Brandon, 16 Pa. 
 220. Identity of a grantor's name 
 with that of a warrantee from the 
 
 commonwealth of the same tract, is 
 sufficient to admit the deed : Atchi- 
 son V. McCulloch, 5 Watts 13. But 
 a deed from one not shown to have 
 had either title or actual possession 
 of the land, is not rendered com- 
 petent by showing a mere clearing 
 and cultivation of a part of the 
 land : Hoak v. Long, 10 S. & R. 9 ; 
 nor by the mere recording of the 
 deed : Bonaffon v. Peters, 134 Pa. 
 180. Recitals in the deed offered, 
 to the effect that the premises were 
 the same as were conveyed to the 
 grantor therein by a certain convey- 
 ance, are not sufficient without 
 production of such prior deed, 
 where it appears the alleged grantee 
 therein has title to the land in 
 question independent of such deed : 
 Meals v. Brandon, 16 Pa. 220. A 
 deed made by an administrator 
 should be accompanied by some 
 prior proof of his authority to exe- 
 cute it : Forrest v. Wallace, 3 
 Walk. 86. And a deed by a col- 
 lector of internal revenue of lands 
 sold for federal taxes, must be ac- 
 ctimpanied l)y proof of authority 
 and performance of all pre-requi- 
 sites to a valid sale : Emery v. 
 Harrison, 13 Pa. 317. 
 
DOCUMENTARY EVIDENCE. l8g 
 
 land, since a person may contract to convey certain land at a 
 future day without present title, with the object of procuring 
 title in the meanwhile. Such agreements are relevant therefore 
 to show origin of title, interest of the grantor in the premises be- 
 fore he conveyed them, and the terms and conditions on which 
 he claimed title.'^- 
 
 While proof of title in the grantor should be given before the 
 deed is offered,'^'' its admission before such proof is made will not 
 be reversed, the order of proof being within the discretion of 
 trial judge.''* 
 
 In an action of ejectment the plaintiff must rely on the strength 
 of his own title and not on the weakness of that of his'adversary. 
 Therefore if he claims by paper title, he must show a direct chain 
 of title from the commonwealth or extending back to a common 
 source with that of defendant,^'' either by conveyance or by re- 
 citals which are equivalent thereto.^" But an intermediate and 
 disconnected deed or one imperfectly executed would be admis- 
 sible for the purpose of showing an entry under it as the basis of 
 title by adverse possession,^' and if possession accompanies the 
 paper title, or, in case of unimproved land, if it is under the 
 care and control of the party and he has paid taxes on it, it is 
 sufficient to show a paper title for a period of twenty-one years. ^' 
 
 § 202. Execution — Proof Of. As a general rule, a written in- 
 strument, whether the original or a copy, cannot be admitted in 
 evidence without formal proof of execution,''^ unless such proof 
 is waived by agreement, "^ or by failure to object to its admission 
 without proof,"^ or by the general actions of the parties in treat- 
 
 s^Chew V. Parker, 3 Rawle 283; Shertz, 16 S. & R. 44; Barnhart v. 
 
 Arnold v. Pfoutz, 117 Pa. 103. Pettit, 22 Pa. 135. 
 
 53Richardson v. Stewart, 2 S. & "^McHenry v. McCall, 10 Watts 
 
 R. 84. 4S6. 
 
 r.r, ^ /-.J (^ n ''"McGennis v. Allison, 10 S. & R. 
 
 '^■'Peters v. Condron, 2 S. & R. . ., , ' . . , 
 
 „ T 1 r, T5 /: 197 ; American Underwriters Ass n 
 
 80: Lauchner v. Rex, 20 Pa. 464. ^' ' t, o tt 
 
 V. George, 97 Pa. 238; Huston v. 
 
 =5McGrew v. Harmon, 164 Pa. Ticknor, 99 Pa. 231; Com. v. 
 
 ^^5' Hickey, 172 Pa. 39; Shroeder v. 
 
 ssBonaffon v. Peters, 134 Pa. Glass, i79_Pa. 623; Waverly Bank v. 
 
 180; Crist V. Boust, 26 Super. 543. Furman, 4 Super. 415. A marriage 
 
 5'Sailor V. Hertzog, 10 Pa. 296 ; certificate does not prove itself : 
 
 Crist V. Boust, 26 Super. 543- But Broadrick v. Broadrick, 25 Super, 
 
 a deed is not evidence of posses- 225. 
 
 sion according to boundaries de- ""Heilmer v. Battin, 27 Pa. 517. 
 
 scribed therein: HefFelfinger v. o'Dunning v. Heller, 103 Pa. 269. 
 
190 PENNSYLVANIA TRIAL EVIDENCE. 
 
 ing the instrument as genuine."^ And if it has been given in evi- 
 dence by one party, it becomes evidence for the other without 
 proof of execution."' It has also been held that a paper pro- 
 duced by the adverse party on notice, may be given in evidence 
 by the party calling for it, vi^ithout proof of execution.** 
 
 § 203. Execution, Proof Of — General Principles — Acts, Decla- 
 rations and Circumstances. The common law rule requires the pro- 
 duction of the subscribing witnesses to a writing whenever possi- 
 ble, even though the person whose name appears thereon admits 
 having signed it.*' 'Various reasons are given for the rule, chief 
 among which is that the subscribing witnesses are the persons 
 whom the parties have chosen to prove what took place and they 
 have a right to the benefit of the knowledge of such witnesses 
 concerning the transaction. Whatever weight may have been at- 
 tached to this reason in early times, it is entitled to little con- 
 sideration at present when witnesses are usually called in for 
 the purpose of subscribing their names to the paper without be- 
 ing given any knowledge of its contents other than a general 
 statement of its general nature and purpose, and consequently 
 the transaction makes no impression on them and is soon for- 
 gotten, and subsequently recalled only when the signatures are 
 shown them. Under such circumstances it seems little less than 
 absurd to say their testimony is better evidence than the direct 
 acknowledgment of the parties to the writing, especially in view 
 of the rule that admissions against interest are primary evidence 
 of the highest kind.** 
 
 The common law rule was followed in Pennsylvania however,*' 
 although an exception was made in the case of promissoi-y notes, 
 where the admission of the maker Uiat he signed the note was 
 held competent proof without calling the subscribing witness 
 or accounting for his absence.** While there has been some 
 
 "^Wall V. Royal Society, 179 Pa. without proof of tlie handwriting 
 
 355- of the person who kept it : Boggs 
 
 esMoelling v. Lehigh Coal Co., v. Miles, 8 S. & R. 406. 
 
 13 Phila. 109; Robeson v. Schuyl- (""'Call v. Dunning, 4 East. 53; 
 
 kill Navigation Co., 3 Grant 186. Rex. v. Haringworth, 4 M. & S. 
 
 '^Frantz v. Harman, 2 Yeates 350. 
 
 473! Tams v. Hitner, g Pa. 441; eogee § 58. 
 
 Balliet v. Fink, 28 Pa. 266. Where "'Truby v. Byers, 6 Pa. 347; 
 
 the party calling for a book from Williams v. Floyd. 11 Pa. 499. 
 
 a public office ofifers it in evidence, "sWilliams v. Floyd, 11 Pa. 499; 
 
 the other party may then use it Stewart v. Gleason, 23 Super. 325. 
 
DOCUMENTARY BVIDENCU. IQI 
 
 language indicating a disposition on the part of the courts to 
 apply this exception in all cases where the party against whom the 
 writing is offered admits having signed it,^' the question has never 
 been directly decided/" and the general practice has been to re- 
 quire the subscribing witness to be called. If they cannot be pro- 
 cured, there is no reason why admissions of the fact of execution 
 should be considered secondary to proof of handwriting/^ nor 
 should there be any distinction between direct and incidental 
 admissions/" 
 
 When neither subscribing witness nor proof of handwriting 
 can be obtained, evidence of acts or circumstances from which 
 the jury may infer execution, is admissible/^ 
 
 The fact that a party produces a writing in obedience to notice 
 to produce is such an admission of its genuineness as to obviate 
 the necessity of further proof of execution.'* 
 
 § 204. Execution, Proof Of — General Principles — Handwriting 
 of Witnesses. Whenever the subscribing witnesses to a writing 
 cannot be procured, proof of their handwriting is next in order.'^ 
 Such proof is permitted where the witness is dead,'" or out of 
 the jurisdiction," or cannot be found,'* providing proof of a 
 reasonable effort to find him and secure his testimony has been 
 given,'" or, though called as a witness, has lost all memory of 
 
 69 American Underwriters Ass'n 345 ; Hamilton v. McGuire, 2 S. & 
 
 V. George, 97 Pa. 238. R. 47S. 
 
 '"Gallagher v. London Co., 149 '^Powers v. M'Ferran, 2 S. & R. 
 
 Pa. 25. 44. 
 
 'iConrad v. Farrow, S Watts '^Truby v. Byers, 6 Pa. 347; 
 
 S36; Fritz V. Com., 17 Pa. 130. North Penn Iron Co. v. Interna- 
 
 See Irwin v. Patchen, 164 Pa. 51. tional Lythoid Co., 217 Pa. 538. It 
 
 '^Harrington v. Gable, 81 Pa. is only necessary for a party to 
 
 406. show that he neglected ■ nothing 
 
 '^Taylor v. Meekly, 4 Yeates 79; v,'hich afforded a reasonable hope 
 Sigfried v. Levan, 6 S. & R. 308; of procuring the subscribing wit- 
 Blight V. Schenk, 10 Pa. 285 ; Diehl ness. In Conrad v. Farrow, S Watts 
 V. Emig, 65 Pa. 320. S36, it was said in a per curiam 
 
 ''^Franz v. Harman, 2 Yeates opinion : "As regards endeavors to 
 
 473 ; Tarns v. Hitner, 9 Pa. 441 ; procure the subscribing witnesses, 
 
 Balliet v. Fink, 28 Pa. 266. the rule is not to be strained beyond 
 
 '^Hays V. Harden, 6 Pa. 409. For the requirements of convenience, 
 
 rules governing competency of wit- When a party finds names sub- 
 
 nesses to testify to handwriting, see scribed to the attestation without a 
 
 §§ 320, 321, 339, 340. visible ligament of connection with 
 
 '«Irwin V. Patchen, 164 Pa. 41. ' anything in the known world, what 
 
 "Engles V. Bruington, 4 Yeates is he to do? Certainly, not to in- 
 
192 
 
 PENNSYLVANIA TRIAL EVIDENCE. 
 
 the transaction/" or where he has become incompetent to testify 
 through interest in the case,*^ even though such interest arose 
 by reason of his own voluntary act.*' But if the witness was in- 
 competent at the time of the execution of the instrument, his 
 handwriting cannot be proved.*^ 
 
 Proof of the handwriting of a subscribing witness may be re- 
 butted by evidence of his declarations that he had not witnessed 
 the instrument,"* or in case of a witness to a will, by his declara- 
 tions to the eflfect that the testator was mentally incompetent to 
 make a will, since proof of the signature of the witness is prima 
 facie evidence of the sanity of the testator at the time he signed 
 it.*' But if two witnesses to a will are produced, declarations of a 
 third who is not called are inadmissible.*'^ 
 
 § 205. Execution — Proof of — General Principles — Handwrit- 
 ing of Parties. Where it is impossible to either procure the wit- 
 nesses to a paper or prove their handwriting, proof of the hand- 
 writing of the parties who executed it may then be given.*^ But 
 such proof need not be made in addition to proof of the signature 
 of subscribing witnesses.** 
 
 quire of everyone in the world. In 
 the investigation of old transac- 
 tions, the witnesses sometime seem 
 to have dropped, for the occasion, 
 from the clouds ; and where no 
 particular avenue to a knowledge 
 of them promises to be more pro- 
 ductive than another, it is hard for 
 a party to determine ,what to do. 
 We certainly would not expect him 
 to stand by the wayside, inquiring 
 of every one who passed." 
 
 If a .subscribing witness is within 
 the state, though in a distant coun- 
 ty, he must be called : Hautz v. 
 Rough, 2 S. & R. 349; Truby v. 
 Byers, 6 Pa. 347; and if he is not 
 produced, proof must be made that 
 due diligence was used in trying 
 to find him, and that inquiry was 
 made at his last known place of 
 residence : Truby v. Byers. 6 Pa. 
 347; Tarns \-, Hitner, 9 Pa. 441. 
 But if the witness has no fixed 
 residence within the state, and dili- 
 gent search for him was made with- 
 
 out success when the case was for- 
 merly on the trial list, it is unnec- 
 essary to make a second search 
 prior to actual trial : Gallagher v. 
 London Assurance Co., 149 Pa. 25. 
 
 '^"Hamsher v. Kline, 57 Pa. 397. 
 
 siBell V. Cowgell, i Ash. 7. 
 
 "-Hamilton v, Marsden, 6 Bin. 45. 
 
 "■''Mackrell v. Wolf, 104 Pa. 421 ; 
 Miller v. Carothers, 6 S. & R. 214. 
 
 **Neely v. Neely, 17 Pa. 227. The 
 signature of a magistrate on an in- 
 strument purporting to have been 
 acknowledged and subscribed by 
 him, may be rebutted by showing 
 that his books contained no report 
 of the acknowledgment : Nourse v. 
 M'Cay, 2 Rawle 70. 
 
 '•"Harden v. Hays, g Pa. 151. 
 
 ""Fox v. Evans. 3 Yeates 506. 
 
 '"Clark V. Sanderson, 3 Bin. 192; 
 Miller v. Carothers, 6 S. & R. 215 ; 
 McGennis v. Allison, 10 S. & R. 
 197. 
 
 **Engles V. Bruington, 4 Yeates 
 345 ; Hays v. Harden, 6 Pa. 409. 
 
DOCUMENTARY EVIDENCE. 193 
 
 If a writing is signed by a mark and there is nothing in its 
 construction to distinguish it from the ordinary marlcs used by 
 ilHterate persons in executing contracts or other writings, it can- 
 not be proved by the testimony of witnesses who were not pi^es- 
 ent and did not see it made,*' but other circumstances may be 
 proved tending to estabHsh the genuineness of the mark."" Owing 
 to the difficuhy of proving such signature, it should always be 
 attested by subscribing witnesses. 
 
 § 206. Execution — Proof Of — General Principles — Subscribing 
 Witnesses. The rule which requires a party to produce the best 
 evidence within his power, makes it necessary to call subscribing 
 witnesses to a writing, if there are any, since they are the per- 
 sons chosen by the parties to prove the making of the contract,'^ 
 and until their absence is accounted for, other evidence of exe- 
 cution will not be received. ^^ If there are two witnesses, the 
 handwriting of one, though shown to be dead or incompetent, 
 cannot be proved until an account is given of the other. °^ 
 
 A subscribing witness is one who was present when the instru- 
 ment was executed and who at that time signed his name as a 
 witness at the request or with the assent of the parties; and 
 though he did not actually see the party sign, if he was called 
 for immediately after and the parties acknowledged their signa- 
 tures and asked him to sign as a witness, it will be deemed one 
 
 s'Engles V. Bruington, 4 Yeates See §§ 182, 210. It applies also to 
 
 345 ; Shinkle v. Crock, 17 Pa. IS9- receipts where the question is 
 
 »»Burrows v. Davis, 6 Lane. L. whether or not the receipt had been 
 
 R. 398; Reap v. Featherstone, 4 given: Heckert v. Haine, 6 Bin. 
 
 Luz. L. R. 4; Dunn's Estate, 3 ^^- ^^^ n°' ^° '°^t writings: 
 
 Dist. 248. See § 222. M'Mahan v. M'Grady, S S. & R. 
 
 314. Execution of negotiable in- 
 
 "Clark V. Sanderson, 3 Bin. 192 ; .truments may be proved by the ad- 
 
 Truby V, Byers, 6 Pa. 347; W.l- .^j^^j^^ ^f ^j,^ ^^^^^ ^ith^^,^ ^^1,. 
 
 hams V. Floyd, 11 Pa. 499- See i„g the subscribing witnesses : Wil- 
 
 § 203. 
 
 liams V. Floyd. II Pa. 499. Whether 
 
 '^Tams V. Hitner, 9 Pa. 441 ; this rule should be extended to ad- 
 
 Truby v. Byers, 6 Pa. 347; North mit testimony of the parties thereto 
 
 Penn Iron Co. v. International in all cases as primary evidence 
 
 Lithoid Co., 217 Pa. 538. The rule without first calling subscribing 
 
 is enforced not only in suits be- witnesses, is an open question : 
 
 tween the parties to the instrument, Gallagher v. London Co., 149 Pa. 
 
 hut between third parties : Tams v. 25. See § 203. 
 
 Hitner, g Pa. 441; unless the writ- ^^Tams v. Hitner, 9 Pa. 441; 
 
 jng' is only collaterally in issue. Davison v. Bloomer, i Dall. 123. 
 
 13 .„ .._. , ..J 
 
194 
 
 PENNSYLVANIA TRIAL EVIDENCE. 
 
 transaction and the attestation is sufficient. °* But a witness who, 
 though present at the execution of an instrument, did not sign 
 at the time, cannot become a subscribing witness by signing it 
 at a later date, and without request or consent of the parties.'^ 
 
 It is not necessary to call all the subscribing witnesses to a 
 writing. The testimony of one"" or proof of the handwriting 
 of one"^ is sufficient unless two witnesses are essential to the 
 validity of the particular instrument. 
 
 § 207. Execution — Proof Of — General Principles — Sufficiency 
 of Proof. It often happens that a person called upon to witness 
 the execution of a writing between other parties is but little ac- 
 quainted with either, and in addition thereto, the transacting be- 
 ing very brief and the purport of the writing not being ex- 
 plained in detail, it makes but little impression on his mind and 
 it is very difficult for him to swear positively to the execution 
 after the lapse of a considerable period of time. From the neces- 
 sity of the case, therefore slight proof of execution is sufficient to 
 go to the jury,"' the presumption being that what the witness 
 
 »*Huston V. Ticknor, gp Pa. 231. 
 A deed is sufficiently proved by one 
 who was asked by the grantor to 
 witness it after is was signed and 
 sealed : Diehl v. Emig, 65 Pa. 320. 
 
 "^Huston V. Ticknor, 99 Pa. 231 ; 
 Shomaker v. Dean, 201 Pa. 439. 
 
 >"5McAdams v. Stilwell, 13 Pa. 
 90. 
 
 "^Thomas v. Harlocker, i Dall. 
 14; Kelly V. Dunlap, 3 P. & W. 
 136. 
 
 "'It is sufficient that the subscrib- 
 ing witness recognize his own sig- 
 nature, though he does not recall 
 the person who is alleged to have 
 executed the writing : Hampsher v. 
 Kline, 57 Pa. 397; or does not 
 recollect the act of signing by him- 
 self or by the parties : Bennett v. 
 Fulmer, 49 Pa. 155; or the formal 
 delivery of the instrument : Mil- 
 ler's Estate, 3 Rawie 312; and 
 where the witness testifies that 
 from certain minutes it appears he 
 was present at a certain place at a 
 particular time, and that he recog- 
 
 nized his signature to the paper 
 and a seal used, and that from all 
 the circumstances he was con- 
 vinced he was present and wit- 
 nessed the execution of the writing 
 in question, it was held sufficient: 
 Piggott V. Holloway, l Bin. 435. It 
 is also sufficient that a witness to a 
 paper signed by officers of a cor- 
 poration and bearing its seal, says 
 he heard them acknowledge affix- 
 ing their hands and seals, though 
 he did not see the seal put on the 
 paper: Berks & Dauphin Tpk. Co. 
 V. Myers, 6 S. & R. 12. Testimony 
 of one subscribing witness that he 
 saw the party sign his name must 
 be submited to the jury: Groff v. 
 Groff, 209 Pa. 603; even though he 
 contradicts himself in cross-exami- 
 nation : Duflfy V. Duflfy, 20 Super. 
 2S; and testimony of one of the 
 parties to a paper that he executed 
 it, and that one of the subscribing 
 witnesses signed in his presence, and 
 that he was familiar with the hand- 
 writing of the other, both of whom 
 
DOCUMENTARY EVIDENCE. I9S 
 
 attested took place in his presence,'" and that there was a formal 
 delivery of the instrument."" Facts omitted by the witness may 
 be shown by other evidence.^ 
 
 § 208. Execution, Proof Of — Acknowledged Instrument. Ac- 
 knowledgment for the purpose of recording dispenses with fur- 
 ther proof of execution,^ though such acknowledgment was not 
 made until after suit brought,^ and the paper has not been actu- 
 ally recorded,* or though the other party has given notice that 
 proof of execution would be required.' Nor is it necessary to 
 prove the handwriting of the magistrate or notary before whom 
 it was acknowledged. His certificate and seal are prima facia 
 evidence of his authority and signature." Under the Act of 
 March 23d, 1819, 7 Sm. L. 190, providing that deeds executed 
 outside of the state for lands lying within the state should be cer- 
 tified under the hand and seal of a judge, a deed acknowledged 
 before a judge and accompanied by a certificate of the clerk on 
 which was affixed the seal of the court, was held sufficient to 
 dispense with further proof of execution.^ 
 
 § 209. Execution, Proof Of — Ancient Documents. A writing 
 which is thirty or more years old, is not usually susceptible of 
 direct proof of execution because of the lapse of time, and will 
 therefore be received in evidence without such proof if regular 
 on its face and produced by, or shown to have been found 
 among the papers of, one in whose custody it would naturally 
 be found.* All witnesses to such writing are presumed to be 
 
 are dead, is sufficient proof of exe- 203. 
 
 cution: Irwin v. Patchen, 164 Pa. "Browne v. Bank, 6 S. & R. 484; 
 
 SI. ' Goddard V. Gloninger, s Watts 209 ; 
 
 99Sigfried v. Levan, 6 S. & R. Keicliline v. Keichline, 54 Pa. 75. 
 
 307; Hamsher v, Kline, 57 Pa. 397. See § 247. Failure to state in the 
 
 '""Miller's Estate, 3 Rawle 312. certificate of acknowledgment that 
 
 'Taylor v. Meekly, 4 Yeates 79; it was made before a justice of the 
 
 Sigfried v. Levan, 6 S. & R. 308; peace in a certain county does not 
 
 Miller's Estate, 3 Rawle 312. render it void. The required proof 
 
 ^Brotherton v. Livingston, 3 W. may be made by parol : Scott v. 
 
 & S. 334; Shiffer v. Broadhead, 126 Gallagher, 11 S. & R. 347. 
 Pa. 260. ^Criswell v. Altemus, 7 Watts 
 
 3Jones v. Porter, 3 P. & W. 132; 565; Sanford v. DeCamp, 8 Watts 
 
 Kelly v. Dunlap, 3 P. & W. 136. 542. 
 
 *M'DiIl V. M'Dill, I Dall. 63; ^Lewis v. Lewis, 4 W. & S. 378; 
 
 Hamilton v. Galloway, I Dall. 93; Lau v. Munna, 43 Pa. 267; Bowser 
 
 Keichline v. Keichline, 54 Pa. 75. v. Cravener, 56 Pa. 132 ; McRey- 
 
 ^Sutherland v. Ross, 6 Montg. nolds v. Longenberger, 57 Pa. 13. 
 
ig6 
 
 PENNSYLVANIA TRIAL JiVIDENCB. 
 
 dead and the custody raises a presumption of validity which 
 stands as a substitute for direct proof of execution even though 
 the witnesses are in fact shown to be living." If a document has 
 been lost or destroyed, but if in existence would have been ad- 
 missible as an ancient document without proof of execution, the 
 contents may be supplied by secondary evidence without such 
 proof/" 
 
 Thirty years appears to be the time required to make a docu- 
 ment ancient, though it would seem that twenty-one years, the 
 period of the statute of limitations, ought to be enough.^^ 
 
 The rule admitting ancient documents without proof of exe- 
 cution extends to all kinds of writings whether of a private or 
 public nature. Documents of the latter kind have also the addi- 
 tional advantage which accrues to public records kept by the 
 person whose duty it is to keep them, and which are recognized 
 as authentic by all persons. ^^ 
 
 •'McGennis v. Allison, lo S. & R. 
 197 ; McKeynolds v. Longenberger, 
 57 Pa. 13. 
 
 "'McReynoIds v. Longenberger, 
 57 Pa. 13- 
 
 iiMcGennis v. Allison, 10 S. & R. 
 197. It has been held not to be ab- 
 solutely necessary that the instru- 
 ment should be thirty years old, 
 especially where accompanied by 
 the testimony of a witness who was 
 present at the signing, though he 
 did not witness it : Everly v. Ston- 
 er, 2 Yeates 122. 
 
 ^^The rule admitting ancient 
 documents has been applied to a 
 list of first purchasers of realty 
 from William Penii, on file in the 
 Surveyor General's office : Hurst v. 
 Dippo, I Dall. 20; Morris v. Van- 
 deren, i Dall. 64 ; Com. v. Al- 
 burger, i Whart. 469; to ancient 
 articles of agreement between the 
 Pennsylvania and Maryland colo- 
 nies in reference to boundaries : 
 Koss V. Cutshall, i Bin. 399; to a 
 list of the first grantees or renters 
 from the proprietaries, taken from 
 ancient records : Kingston v. Les- 
 
 ley, 10 S. & R. 383; to an ancient 
 receipt in the Surveyor General's 
 Office proved to be in the handwrit- 
 ing of his son, who frequently 
 transacted business for him : Urket 
 V. Coryell, 5 W. & S. 60; to tax 
 receipts accompanying title papers 
 to property : Reynolds" v. Longen- 
 berger, 57 Pa. 13 ; to official maps 
 and plans of a public nature : Com. 
 \ . Alburger, i Whart. 469 ; Smucker 
 v. Penna. Railroad, 188 Pa. 40; or 
 certified copies thereof : Com. v. 
 Alburger. i Whart. 469; or maps 
 cf a private nature, where they 
 have been recognized as fixing 
 proper boundaries : Huffman v. 
 McCrea, 56 Pa. 95; though such 
 map has been rejected where it 
 was made by one who was not a 
 party nor privy to the suit: Biddle 
 V. Shippen, i Dall. 19; to transfer 
 ot improvement rights accompanied 
 by over thirty years possession, if 
 made while the transferor had 
 title: Healy v. Moul, 5 S. & R. 
 iSi ; to a will devising land, though 
 it was never probated : Shaller v. 
 Brand, 6 Bin. 435 ; to agreements 
 
DOCUMENTARY EVIDENCE. 
 
 197 
 
 § 210. Execution, Proof Of— Collateral Writings. If a writ- 
 ing is not directly in issue, it is not necessary to furnish the best 
 proof obtainable by calHng the subscribing witness, but it may be 
 proved by any competent evidence. ^^ 
 
 § 211. Execution, Proof Of — Deeds. Common law proof of a 
 deed may be made by producing the deed itself and showing 
 thirty years' possession thereunder,'* or proving its execution by 
 the subscribing witnesses or by evidence of their handwriting or 
 of the handwriting of the grantor."^ Statutory proof may be 
 made by producing the deed with a proper acknowledgment for 
 the purpose of recording appended thereto/* or by producing 
 an exemplification of a record of it in the office of the recorder 
 of deeds.^^ 
 
 § 212. Execution, Proof Of — Letters. A letter is inadmis- 
 sible without proof of the genuineness of the signature being 
 given,'* unless it is shown to have been received in due course 
 of mail and purports to have come in answer to a prior letter. 
 
 for the sale of land or deeds ac- 
 companied by possession for thirty 
 years or more : Zeigler v. Houtz, 
 I W. & S. 533; even though the 
 aeed is defectively acknowledged : 
 Cable V. Cable, 141 Pa. 459; or, if 
 the property is wild land or unculti- 
 vated, when accompanied by pay- 
 ment of taxes for that length of 
 time : Williams v. Hillegas, S Pa. 
 492; to an ancient deed though 
 from one in whom no title is shown, 
 if offered by those cla:iming through 
 such deed,, for the purpose of show- 
 ing a claim by adverse possession : 
 Olewine v, Nessmore, 128 Pa. 470; 
 but such deed must be accompanied 
 by possession : McGennis v. Alli- 
 son. ID S. & R. 197; Arnold v. 
 Gorr, I Rawle 223; Walker v. 
 Walker, 67 Pa. 185; although pos- 
 session need not extend over the 
 entire time where immediate right 
 of possession was not given : 
 Scharff V. Keener, 64 Pa. 376; 
 Walker v. Walker, 67 Pa. 185 ; and if 
 proof of possession cannot be had, 
 the deed may be read in evidence if 
 
 its genuineness can be satisfactorily 
 established by other circumstances : 
 Walker v. Walker, 67 Pa. 185 ; or 
 by proof of the handwriting of a 
 deceased witness : Thomas v. Hor- 
 locker, i Dall. 14. 
 
 i^Mix, V. Smith, 7 Pa. 75 ; Wright 
 v. Wood, 23 Pa. 120; Kitchen v. 
 Smith, loi Pa. 452. 
 
 i*See § 209. 
 
 if^Donaldson v. Phillips, 18 Pa. 
 170. If there are two witnesses, 
 proof that one has removed from 
 tlie state, and of the handwriting of 
 another, is sufificient : Kelly v. Dun- 
 lap, 3 P. & W. 136. Acknowledg- 
 ments of subscribing witnesses pre- 
 paratory to recording are sufficient 
 proof of execution to admit the 
 deed in evidence : Brotherton v. 
 Livingston, 3 W. & S. 334; Steiner 
 V. Coxe, 4 Pa. 13. See § 208. 
 • i«See § 208. 
 
 "McGennis v. Allison, 10 S. & R. 
 197; Donaldson v. Phillips, 18 Pa. 
 170. See § 250. 
 
 '^Sweeney v. Oil Co., 130 Pa. 
 193; Aspell V. Smith, 134 Pa. sg. 
 
198 PENNSYIvVANIA TRJAL EVIDENCK. 
 
 and shows a knowledge by the wriler of the contents of such 
 prior letter, in which case the circumstances are sufficient evi- 
 dence of the genuineness of the repl} to warrant its submission 
 to the jury without proof of the handwriting of the sender.'' 
 
 When a copy of a letter mailed to another is offered, it must be 
 shown that the original was received by the addressee or was at 
 least mailed to him at his proper address.^" 
 
 § 213. Execution, Proof Of— Notes and Bills. The rule that 
 where there is a subscribing witness to a writing he must be 
 called Or his absence accounted for before other evidence of 
 execution will be received, does not apply to negotiable instru- 
 ments, and if the maker admits having signed the paper, this is 
 sufficient proof. ^' Notes are usually executed without subscrib- 
 ing witnesses, and proof of the handwriting of the maker must 
 generally be resorted to.^- Where the signature and the initials 
 of the maker on some of the revenue stamps attached to a note 
 are proved by one who knows the handwriting, the note is ad- 
 missible although the witness cannot identify the initials on the 
 remainder of the stamps.^" 
 
 § 214. Execution, Proof Of — Papers Filed in Court. A paper 
 duly executed and filed among the records of a court as required 
 by law, will be presumed to have been properly signed before 
 filing and will be admitted in evidence without proof of execu- 
 tion in the same manner as other records.-* But proof is not 
 dispensed with merely because a paper is filed in the prothono- 
 tary's office in connection with plaintiff's claim,-^ or where the 
 paper is shown to have been irregularly executed.^" 
 
 § 215. Execution, Proof Of — Keceipts. The rule requiring 
 proof of execution of papers before offering them in evidence ap- 
 
 '"Roe V. Ins. Co., 149 Pa, 94; -^Irvine v. Lumbermen's Bank, 2 
 
 Comerer v. Ins. Co., 53 Super. 516. W. & S. 190. 
 
 If a letter is alleged to have been ssRges v. Jackson, 64 Pa. 486. 
 
 written by an agent in reply to one .,.,,n ,^ 
 
 ^ ^ , : • ■ , M . , "ViUee v. Com., i Mona. 445 ; 
 
 sent to his principal, there must be _ 
 
 r r . . , M , .... , Burns v. Lyon, 4 Watts 363. Corn- 
 proof of receipt of the letter by „ ^.7 i, . , %, „ i, 
 ;, . . , , ^. .^ , ^, ■' pare Petit v. McAdam, 2 S. & R. 
 the pnncipal and authority of the ^ , o <, 
 
 , . 1 V , \ir u 420. See also § 248, notes 38 to 41, 
 
 agent to reply : Yost v. Mensch, ■ , . <. 
 
 .41 Pa. 73. • '"'"'"'' ^ ^^^• 
 
 =»Huckstein v. Kelly, 139 Pa. 201. '=Hiraes v. Barnitz, 8 Watts 39; 
 
 See § 395 as to presumption of re- ^'""h v. Myler, 22 Pa. 36. 
 
 ceipt of mailed letters. ^apgtjt y McAdams, 2 S. & R. 
 
 2' See § 203, note 68. 420. 
 
DOCUMENTARY EVIDENCE. > 199 
 
 plies to receipts.-^ But a receipt in a deed is made competent 
 evidence by the acknowledgment of the deed.^* And if the re- 
 ceipt is an ancient document and produced from the proper cus- 
 tody, it is admissible without proof as in the case of other an- 
 cient writings.^" 
 
 § 216. Execution, Proof Of — Rule of Court Dispensing with 
 Proof. It is frequently provided by rules of court that when a 
 copy of a writing is filed in the case it shall be unnecessary to 
 prove its execution at the trial unless execution is denied by the 
 defendant in his affidavit of defense.'" The plaintiff must fully 
 comply with the provisions of such rule if he wishes to take ad- 
 vantage of it, otherwise he will be left in the same position as if 
 no rule on the subject had been made.'^ Denial of execution by 
 the defendant merely throws upon the plaintiff the burden of 
 proving it. It does not raise a prima facia presumption of 
 forgery or require plaintiff to furnish evidence of a higher grade 
 than would have been necessary if the general issue had been 
 pleaded and there was no rule on the subject.'^ 
 
 A rule dispensing with proof of execution of a note includes 
 endorsements thereon when the action is against the maker.'^ 
 But if there is an alteration on the face of a writing which does 
 not appear on the copy filed, the plaintiff is not relieved from 
 explaining the alteration.'*^ 
 
 § 217. Execution, Proof Of — Sealed Instruments. When the 
 signature on a sealed instrument is duly proved, the fact of seal- 
 ing and delivery will be presumed, even though there be no 
 
 -'Heckert v. Haines, 6 Bin. i6; affidavit, a plea of non est factum 
 
 Mitchell V. Mitchell, i8 W. N. C. which is not sworn to is insufficient 
 
 439. to require proof of execution by the 
 
 -sRelly V. Dunlap, 3 P. & W. 136. plaintiff: McGovern v. Hoesback, 
 
 -''McReynolds v. Longenberger, S3 Pa. 176; nor does the plea of 
 
 57 Pa. 13. non assumpsit without filing an affi- 
 
 ^° Reese v. Reese, 90 Pa. 89; Pet- davit, require such proof to be 
 erson v. Hausbeck, 8 Super. 36 ; made : Conshohocken Tube Co. v. 
 Medary v. Gathers, 161 Pa. 87; Iron Car Equipment Co., 161 Pa. 
 Lane. County Bank v. Henning, 171 391 ; Roberts v. Iron Car Equip- 
 Pa. 399; Ahrns v. Chartiers Valley ment Co., 161 Pa. 348. 
 Gas Co., 188 Pa. 249; Philadelphia aiSunday v. Dietrick, 16 Super. 
 V. Trust Co., 38 Super. 286. In an g^Q 
 action on a firm note, an affidavit 
 by one member denying execution 
 by him or that he had any knowl- 
 edge thereof, is sufficient : Hogg V. ■''^'Miller v. Weeks, 22 Pa. 89; 
 OrgiU, 34 Pa. 344. If the rule re- Dexter v. Powell, 14 Super. 162. 
 quires denial of the execution by 34j;fesbitt v. Turner, 155 Pa. 429. 
 
 s^Stewart v. Gleason, 23 Super. 
 325. 
 
200 
 
 PRNNSYLVANIA TRIAL EVIDENCU. 
 
 reference to sealing in the body of the instrument.'^ An agree- 
 mient of counsel waiving proof of execution and delivery of an 
 instrument, also dispenses with proof of sealing.''" 
 
 A corporate seal appearing on a writing must be proved to be 
 that of the corporation, not necessarily by one who saw it af- 
 fixed, but by anx'one who can identify it.'' 
 
 § 218. Execution, Proof Of— Wills. The execution of a will 
 must be proved by two competent witnesses,'* each of whom 
 must separately testify to all the necessary facts so that no 
 part of the proof may depend on the testimony of one witness.'' 
 The witnesses need not necessarily be subscribing witnesses,*" 
 though if there are such witnesses they must be called if alive 
 and within the jurisdiction of the court. If dead, or out of the 
 jurisdiction, or if they cannot be found,*^ or have since become in- 
 competent to testify,*- proof of their handwriting is next in 
 
 '=Long V. Ramsay, i S. & R. 72; 
 Lesher v. Levari, 2 Dall. 96 ; Steel 
 V. Tuttle, IS S. & R. 210; Fisher v. 
 Kean, i Watts 278; Miller v. 
 Binder, 28 Pa, 489. 
 
 3«Heilner v. Battin, 27 Pa. 517. 
 
 •"Foster v. Shaw, 7 S. & R. 156; 
 Leazure v. Hillegas, 7 S. & R. 313 ; 
 Farmers' Tpk. Co. v. McCuUough, 
 25 Pa. 303- 
 
 38Act of April 8, 1833, P. L. 249, 
 § 6. If the will is subscribed by 
 more than two, the others need not 
 be called: Rees v. Stille, 38 Pa. 
 138. 
 
 '"Hock V. Hock, 6 S. & R. 47; 
 Derr v. Greenawalt, 76 Pa. 239; 
 Combs' Appeal, 105 Pa. 155 ; Sim- 
 rell's Estate, 154 Pa. 604. 
 
 Where proof is circumstantial, 
 the testimony of one cannot be sup- 
 ported by the other : Derr v. Green- 
 await, 76 Pa. 239. The testimony 
 of one witness is sufficient, how- 
 ever, to rebut an imputation of 
 fraud in procuring the will : Lewis 
 V. Lewis, 6 S. & R. 489. And if a 
 witness after duly proving the will, 
 subsequently denies he signed in 
 
 the presence of the testator, circum- 
 stances may be proved to support 
 the will even against his testimony : 
 Rice's Estate, 173 Pa. 298. If at- 
 testation be proved by one or both 
 witnesses, the mere fact that they do 
 not recall the circumstances attend- 
 ing execution will not invalidate 
 the will, the presumption being that 
 everything else essential to its va- 
 lidity existed : Mullen v. McKelvy, 
 
 5 Watts 399; Barker v. McFerran, 
 26 Pa. 211 ; Vernon v. Kirk. 30 Pa. 
 218; McKee v. White, 50 Pa. 354; 
 Leckey v. Cunningham, 56 Pa. 370. 
 If, however, the witness states posi- 
 tively that certain essential things 
 were absent, the presumption is re- 
 butted: Barr v. Graybill, 13 Pa. 
 396; Vernon v. Kirk, 30 Pa. 218. 
 
 *"Carson's Appeal, 59 Pa. 493 ; 
 Combs's Appeal, 105 Pa. 155. 
 
 *'Hays V. Harden, 6 Pa. 409. 
 
 ■•-Loomis V. Kellogg, 17 Pa. 60. 
 But if the witness was incompetent 
 at the time of execution of the will, 
 proof of his handwriting is not ad- 
 missible : Miller v. Carothers, 6 S. 
 
 6 R. 215; Harding v. Harding, 18 
 Pa. 340. See note 39 above. 
 
DOCUMENTARY ttVIDl^NCE. 
 
 20 1 
 
 order, and if such proof cannot be obtained, the testator's signa- 
 ture may then be proved." If only one of two subscribing wit- 
 nesses can be produced, the testimony of the other may be sup- 
 pHed by circumstances.'''' 
 
 It is not necessary that the subscribing witnesses should have 
 known the contents of the will," or even that the writing which 
 they attested was a will,*" or that they should have seen the tes- 
 tator sign or make his mark, so long as he acknowledged his sig- 
 nature in their presence.*' But the witnesses should sign in the 
 testator's presence, though failure to do so will be cured by a 
 subsequent duly attested codicil.** The mere fact that they 
 signed before the testator is immaterial.*" 
 
 The will need not have been read over to the testator in the 
 presence of the witnesses,^" whether signed by the testator or by 
 another at his request,^' and even though the testator was unable 
 to read or write,'^- knowledge of its contents being presumed 
 
 ■•aMiller v. Carothers, 6 S. & R. 
 i'i5 ; Hays v. Harden, 6 Pa. 409. 
 Proof of testator's signature is 
 prima facie evidence of execution, 
 though the body of the will is not 
 in his handwriting : Weigel v. 
 Weigel, 5 Watts 486; Frew v. 
 Clarke, 80 Pa. 170. If the signature 
 was by a third person at the testa- 
 tor's request, the witnesses should 
 testify to the testator's inability to 
 sign and the fact that he requested 
 the other person to sign for him : 
 Cavett's Appeal, 8 W. & S. 21; 
 Grabill v. Barr, s Pa. 441. If the 
 witness testifies there was no such 
 request made, the proof of execu- 
 tion is insufficient : Barr v. Gray- 
 bill, 13 Pa. 396; Snyder v. Bull, 17 
 Pa. 54. But mere inability of one 
 witness to remember such request 
 will not invalidate the will if the 
 testimony of the other witness is 
 clear: Greenough v. Greenough, 11 
 Pa. 489; Vernon v. Kirk, 30 Pa. 
 218; Kirk V. Carr, 54 Pa. 285. 
 
 «*Miller v. Carothers, 6 S. & R. 
 215; Raynolds' V. Reynolds, 16 S. 
 
 & R. 81 ; Carson's Appeal, 59 Pa. 
 493 ; Scott's Estate, 147 Pa. 8g. A 
 will signed by one witness may be 
 proved by such witness and an- 
 other person with knowledge of 
 testator'? handwriting : Miller v. 
 Carothers, 6 S. & R. 215. 
 
 *5Combs's Appeal, 105 Pa. ISS ; 
 Morgan's Estate, 219 Pa. 355; 
 Kessler's Estate, 221 Pa. 314. "The 
 witness cannot be asked whether he 
 would have witnessed it if he had 
 known its contents : Spence v. 
 Spence, 4 Watts 165. 
 
 *"Linton's Appeal, 104 Pa. 228; 
 Lillibridge's Estate, 221 Pa. S ; 
 Historical Society v. Kelker, 226 
 Pa. 16. 
 
 *'Leckey v. Cunningham, 56 Pa. 
 370; Kessler's Estate, 221 Pa. 314, 
 
 *8Walton's Estate, 194 Pa. 528. 
 
 *"Miller v. McNeill, 35 Pa. 217. 
 
 ''"Kessler's Estate, 221 Pa. 314; 
 Lillibridge's Estate, 221 Pa. 5. 
 
 ''Harding v. Harding, 18 Pa. 
 340. 
 
 ''^Combs's Appeal, 105 Pa. 155 ; 
 Harden v. Hays, 9 Pa. 151. 
 
202 PKNNSYLVANIA TRIAL EVIDKNCS. 
 
 from the fact of execution. ^^ The will is valid, though a third 
 person, through ignorance, signs his own name when requested 
 by testator to sign for him."* 
 
 Unlike proof of execution of an ordinary writing, the subscrib- 
 ing witnesses to a will testify not only to the fact of execution 
 of the particular paper^° offered as a will, but they also bear 
 witness that at the time of making the will the testator was of 
 sound and disposing mind, memory and understanding.^" If 
 proper proof of execution is furnished it will be presumed, in 
 absence of evidence to the contrary, that the testator was men- 
 tally competent and intended the paper to be his last will and 
 testament.^'' Therefore, proof of the handwriting of a deceased 
 subscribing witness is not only evidence that he attested the will, 
 but also of the sanity of the testator.'* 
 
 An ancient will, accompanied by possession for thirty years, 
 is admissible in evidence without proof of execution as in the 
 case of other ancient documents.'" And the fact of probate of 
 a will, being prima facie evidence of its due execution, dispenses 
 with further proof thereof when the will is offered in subsequent 
 proceedings."" 
 
 § 219. Execution, Proof Of— Wills — Charitable Gifts. A will 
 containing a gift for charitable purposes must be proved by two 
 or more disinterested persons who are also subscribing wit- 
 nesses. ""^ It is not necessary, however, that the witnesses should 
 have heard the will read or have known its contents,"^ nor that 
 the testator signed in their presence, so long as he actually ac- 
 knowledged his signature in their presence."^ 
 
 Under the Act of 1855 it was held that the interest which dis- 
 
 •■"'^Hess's Appeal, 43 Pa. 73; 155; Kisecker's Estate, igo Pa. 
 
 Hoshauer v. Hoshauer, 26 Pa. 404; 476; Lillibridge's Estate, 221 Pa. 5. 
 
 Vernon v. Kirk, 30 Pa. 218; Dick- ^sHarden v. Hays, 9 Pa. 151. 
 
 inson V. Dickinson, 61 Pa. 401 ; s9Shaller v. Brand, 6 Bin. 435. 
 
 Linton's Appeal, 104 Pa. 228; Lilli- .„_ , , , , ^o n o 
 
 , ., , „ %, soFolmar's Appeal, 68 Pa. 482; 
 
 (bridges Estate, 221 Pa. S- A^t, > t? /I n 
 
 ,,?, '„. , -^ o Amberson's Estate, 204 Pa. 397. 
 
 s-iVernon v. Kirk, 30 Pa. 218. ^ •'^' 
 
 =r.The identity of the instrument "A<=' ^P"' ^6, 185s, P. L. 332, 
 
 should be clearly proved: McAn- ^ "• ^'"'"^'^ Estate, 206 Pa. i; 
 
 drews's Estate, 206 Pa. 366; Tom- f^^'°^' Estate, 221 Pa. 98; Kess- 
 
 linson's Estate, 133 Pa. 245. ^" ' ^'*^t^' ^'' ^^- ^'^■ 
 
 "oCombs's Appeal, 105 Pa. 155; "^Combs's Appeal, 105 Pa. 155; 
 
 Egbert v. Egbert, 78 Pa. 326. Morgan's Estate, 219 Pa. 355 ; Kess- 
 
 "Reynolds v. Reynolds, 16 S. & 'er's Estate, 221 Pa. 314. 
 
 R. 82; Combs's Appeal, loS Pa. i^^Kessler's Estate, 221 Pa. 314. 
 
DOCUMENTARY EVIDENCi;. 2O3 
 
 qualified a witness was an interest existing at the time of the 
 execution of the will,"'' either by the direct terms of the will 
 itself as legatee or devisee, or by reason of an interest in the re- 
 ligious or charitable institution which was the object of the tes- 
 tator's bounty .«= By the Act of June 7, 191 1, P. L. 702, the 
 former disqualification was removed and it is only an interest in 
 the particular charity to which the gift is made which now dis- 
 qualifies the witness.^" This act has no application to wills exe- 
 cuted before its date."'' 
 
 § 220. Execution, Proof Of — Wills — ^Erasures and Interlinea- 
 tions. Erasures or interlineations in a will, if in the testator's 
 handwriting, are presumed, in absence of explanation, to have 
 been made before execution."* If it appears they were in fact 
 made after execution, they must be proved to have been made 
 by the testator or by his authority,"' and while such alterations 
 are ineffective unless the will is republished, a subsequent codicil 
 is sufficient for that purpose.'" 
 
 Unauthorized alterations after execution are void and the will 
 stands as originally drawn, '^ even though the person who made 
 them testifies it was done by authority of the testatrix, if there is 
 no subsequent republication and the subscribing witnesses fully es- 
 tablish the will in its original form.'^ But where one subscrib- 
 ing witness is dead and his handwriting is proved and the other 
 testifies that certain alterations were made subsequent to execu- 
 tion, the former proves the will in its altered state and the latter 
 as originally drawn, and together they fail to establish the will 
 in either form.'' 
 
 **Historical Society v. Kelker, charitable institution, was not in- 
 
 226 Pa. 16. competent by reason of interest. 
 
 "^Kessler's Estate, 221 Pa. 314; o^Kelly's Estate, 236 Pa. 54; 
 
 Shoemaker's Estate, 235 Pa. 402; Leech's Estate, 236 Pa. 57. 
 Kelly's Estate, 236 Pa. 54; Leech's ^^wikoff's Appeal, 15 Pa. 281; 
 
 Estate, 236 Pa. 57. A legatee un- Linnard's Appeal, 93 Pa. 313; Mor- 
 
 der a prior will was competent : row's Estate, 204 Pa. 479. See also 
 
 Combs's Appeal, 105 Pa. 155; also Tomlinson's Estate, 133 Pa. 245. 
 an executor under the will, not- ""Charles v. Huber, 78 Pa. 448; 
 
 withstanding his right to commis- Simrell's Estate, 154 Pa. 604. 
 sions : Jordan's Estate, 161 Pa. ''"Linnard's Appeal, 93 Pa. 313; 
 
 ■ 393 : Kessler's Estate, 221 Pa. 314. Morrow's Estate, 204 Pa. 479. 
 
 ""Prior to the Act of 1911 it was ^^Grubbs v. McDonald, 91 Pa. 
 
 held that an employee of (Combs's 236. 
 
 Appeal, IDS Pa. 155) or contributor "Simrell's Estate, 154 Pa. 604. 
 
 to (Evans's Estate, 12 Dist. 694) a "Charles v. Huber, 78 Pa. 448. 
 
204 PENNSYLVANIA TRTAL EVIDENCE. 
 
 § 221. Execution, Proof Of— Wills— Lost Will. A will which 
 has been lost or has been destroyed without the testator's con- 
 sent, may be proved by secondary evidence in the same manner 
 as other lost writings after its execution has been duly proved as 
 in other cases.'* But the testimony of loss or accidental de- 
 struction must be clear and satisfactory, the burden being on the 
 party offering it to overcome the presumption which arises where 
 it was last seen in possession of the testator, that it was de- 
 stroyed by him with intent to revoke.'^ And if the offer is to 
 show the will was destroyed by some third person without the 
 consent of the testator, the evidence must be sufficient to over- 
 come both the presumption of revocation and the presumption 
 of innocence arising in favor of such third person.'* It is not 
 enough merely to show he had opportunity and motive for doing 
 the act." 
 
 In all cases vvhere the issue is whether the will was lost, can- 
 celled or destroyed, acts and declarations of the testator and also 
 of all persons connected with him from the date of the will to his 
 death or subsequent thereto, are competent evidence.'* 
 
 § 222. Excution, Proof Of — Wills — Mark as Signature. A 
 mark or cross in lieii of a signature is a valid execution of a 
 will,'" even though the testator was assisted in making the mark,"" 
 or was able to write his name, had he chosen to do so,*"^ pro- 
 viding it was made with intention of executing the will.*^ If the 
 testator's name and his mark appears on the will, it will be pre- 
 sumed both were made by him, in absence of evidence to the 
 contrary.*^ And if he makes his mark, the fact that a witness 
 afterwards adds his name incorrectly, will not invalidate the 
 
 '^Foster's Appeal, 87 Pa. 67; 16, 
 
 McKenna v. McMichael, 189 Pa. so^ain % . Ryder, 84 Pa. 217. It 
 
 440; Michell V. Low, 213 Pa. 526. ib not necessary to prove a request 
 
 'f'Deaves's Estate, 140 Pa. 242 ; by testator for such assistance : 
 
 (iardner v. Gardner, 177 Pa. 218; Vandruff v. Rinehart, 29 Pa. 232; 
 
 Gfeller v. Lappe, 208 Pa. 48; Fal- Cozzen's Will, 61 Pa. 196. 
 
 Ion's Estate, 214 Pa. 584; Michell s'Main v. Ryder, 84 Pa. 217. 
 
 \ . Low, 213 Pa. 526. 8=.\ mark made by testator as the 
 
 ^"Michell V. Low, 213 Pa. 526. beginning of an attempt to write 
 
 "Stewart's Estate, 149 Pa. in. liis name, but which was not fin- 
 
 'SQardner's Estate, 164 Pa, 420; ished, cannot be proved as a signa- 
 
 Oardner v. Gardner, 177 Pa. 218. ture by mark; Plate's Estate, 148 
 
 See § 278. Pa. ss. 
 
 '"Act of January 27, 1848. P. L. "SRurford v. Burford, 29 Pa. 221. 
 
DOCUMENTARY EVIDENCE. 205 
 
 will.^^ But although testator's name had been affixed to the will 
 at his request and with the intent that he should then make his 
 mark, the execution is incomplete if he fails to do so.'^ 
 
 A will executed by mark should be proved in the same manner 
 as other wills by the testimony of witnesses who saw it made'" 
 or to whom the testator acknowledged having made it.^' But one 
 who did not see testator make it cannot identify it as being similar 
 to marks made by him to other papers, where there is nothing 
 peculiar about the mark to distinguish it from marks made by 
 other illiterate persons.'^ 
 
 § 223. Maps and Plans. A map or plan may be used by a 
 witness and offered in evidence as an aid to his verbal descrip^ 
 tion of a place or object,*" and it is immaterial whether he made 
 it himself or whether it was made by some other person, so long 
 as he testifies that the picture represents his personal knowledge 
 or observation,"" or it is shown by competent witnesses that it is 
 a correct representation of the place in question, or that the per- 
 son who made it was familiar with the locality or had means of 
 knowledge necessary for the purpose of making the map."^ The 
 plan must also have been made at such time and under such cir- 
 cumstances as to insure an accurate representation of conditions 
 which existed at the time the event in question took place. "^ A 
 plan of lots made many years before the appropriation of land by 
 a railroad and covering only part of the land taken, is not com- 
 petent to show it was adapted to building purposes at the time 
 of the appropriation,"' nor is a plan of the streets of a borough, 
 made and approved after a railroad was built, admissible on the 
 question of damages, since it would introduce as an element of 
 
 **Long V. Zook, 13 Pa. 400. v/ay is admissible : Theiss v. 
 
 ssMain v. Ryder, 84 Pa. 217. Weiss, 166 Pa. 20. 
 
 soBurford v. Burford, 29 Pa. ""Com. v. Swartz 40 Super. 370. 
 
 Tr .1. V i 11 "iCox \. Railroad, 215 Pa. 506. 
 
 221. If the witness actually saw . , 
 
 , J. ■ ■ ^ ■ \ ^u i. u A plan made by an engineer from 
 
 It made, it is immaterial that he '^ ■' , * 
 
 .., J .. r>„ his notes of survey is competent : 
 
 can neither read nor write: Car- ^ „ „ ^ 
 
 , . , T, Johnston v. Gallery, 184 Pa. 146; 
 
 sons Appeal, 59 Pa. 493- 4 ' .. -a -o ■: \ Z, 
 
 _ _ Bassett v. Penna, Railroad, 201 Pa. 
 
 s'Dunn's Estate, 3 Dist. 248. ^^6 
 
 ssShinkle v. Crock, 17 Pa. 159- "^Smucker v. Railroad, 6 Super. 
 
 See § 205. 521 ; Hogan v. Burneson, 44 Super. 
 
 *"ln condemnation proceedings a 409. 
 plan showing the land could be '^Gorgas v. Phila. H. & R. Rail- 
 used and improved in a certain road, 215 Pa, 501, 
 
206 PENNSYLVANIA TRIAL EVIDENCE. 
 
 damage, matters not in existence at the time the land was taken.'* 
 
 A map or plan referred to in a deed becomes a part thereof 
 and has the same force and effect as if copied in the deed."' 
 
 § 224. Mortality Tables. Standard tables of mortality are 
 admissible in actions for death or permanent injuries resulting 
 from negligence as tending to show expectation of life. But 
 the jury should be instructed that they are not to be accepted as 
 establishing expectation of life, but merely as an aid in arriving 
 at the expectancy, and that their value depends largely upon the 
 health, character, habits, employment and social condition of the 
 person injured."^ 
 
 Mortality tables may be proved by any standard work contain- 
 ing them, and it would seem that courts will take judicial notice 
 of the nature and purpose of such tables, and therefore no fwe- 
 liminary proof as to their authority and value is necessary.*" 
 
 § 225. Photographs. The courts judicially recognize the use 
 of photography as a means of reproducing the likeness of a person, 
 place or object, and photographs are therefore always admissible 
 when relevant to the subject under consideration, upon prelimi- 
 nary proof of accuracy in taking them being given.** For this 
 purpose the testimony of any person familiar with the original 
 is competent, and it is not necessary to call the photographer who 
 took the picture, or that it should have been taken by an expert. '"' 
 But in a criminal case, where the life of the defendant is at stake, 
 a photograph ought to be accompanied by clear proof of the cir- 
 cumstances under which it is taken and also its subsequent cus- 
 
 "^Walker v. South Chester Rail- maindertnan : Shippen's Appeal, 80 
 
 road, 174 Pa. 288; Smucker v. Pa. 391. 
 
 Railroad, 6 Super. 521. "Tgreinsholtz v. Penna. Railroad, 
 
 "'Higgins V. Boro., S Super. 92; 229 Pa. 88. 
 
 Deppen v. Bogar, 7 Super. 434. ^'Udderzook v. Com., 76 Pa. 
 
 I'eSteinbrunner v. Pittsburgh & 340; Beardslee v. Col. Twp., 188 
 W. Railroad, 146 Pa. 504; McCue Pa. 496; Buck v. McKeesport, 223 
 V. Knoxville Boro., 146 Pa. 580; Pa. 211. If a witness has been per- 
 Kraut V. Frankford & Southern mitted to refer to a photograph be- 
 Railway, 160 Pa. 327; Campbell v. fore such preliminary proof is 
 York, 172 Pa. 205; Pauza v. Coal given, the error is cured by fur- 
 Co., 231 Pa. 577; Breinsholtz v. nishing subsequent proof thereof: 
 Railroad, 229 Pa. 88. It has been Beardslee v. Col. Twp., 188 Pa. 
 held that such tables will not serve 496. 
 
 as an authoritative guide in a con- ""Com. v. Swartz. 40 Super. 370; 
 
 test between a life tenant and re- Wallace v. Railroad, 222 Pa, 556, 
 
DOCUMENTARY EVIDENCE. 207 
 
 tody and history, and should not contain extraneous matters 
 written thereon which would be likely to affect the jury."" 
 
 If a photograph is of the place where an accident occurred, it 
 should be shown that the physical condition of the place was the 
 same when it was taken as at the time of the accident, although 
 a photograph taken after changes were made may be admitted if 
 accompanied by proof as to the nature and extent of such 
 changes.^ The mere fact that the photograph does not show 
 every part of a locality will not exclude it.^ 
 
 § 226. Receipts. Receipts for money are not conclusive but 
 only prima facia proof of payment, and are always open to ex- 
 planation or correction.' A receipt for purchase money in a deed 
 is evidence against the grantor and those claiming under him,* 
 but is not conclusive,' and if the conveyance is made on the ex- 
 press condition that the purchase money be paid, the receipt is 
 not even prima facia evidence of payment. ° A receipt is not ad- 
 missible at all against strangers,' and therefore a receipt in a 
 deed is not evidence to affect the title of a third person where 
 the vendee claims to be a purchaser for value without notice. In 
 such case the latter must prove payment of the consideration 
 independently of the receipt.' 
 
 § 227, Time Tables. A time table of a railroad company is 
 competent evidence against the company to show the distance 
 
 io«Com. V. Stirling, lo Dist. 437. ^chestnut Hill Co. v. Piper, 15 
 
 The appellate court will not review W. N. C. 55. 
 
 the discretion of the trial judge in sghoemaker v. Stiles, 102 Pa. 
 
 excluding photographs where the j^g. Nichols v. Nichols, 133 Pa. 
 
 objection was that they were taken ^^S. 
 
 by inexperienced photographers ,^^^^ ^ ^^^^^^^ ^g p^ ^^^, 
 
 without proper care; and it appear- p^^^^ g^,^ ^^^ ^^ y. -^^^X, 54 
 
 ed the jury had personally visited p 
 
 the ground and the photographs ' ' . o s -o 
 
 i^^.,a„^„ „ "Hamilton v. M Guire, 3 S. & R. 
 
 were unnecessary: Kauffman v. t,, • o - r, 
 
 Ins. Co., 231 Pa. 642. ^SS; Watson v. maine, 12 S. & R. 
 
 iBeardslee v. Columbia Twp., 188 '3i; We.gley v. Weir, 7 S. & R. 
 
 Pa. 496. But a photograph taken ^09; Nichols v. Nichols, 133 Pa. 
 
 three months after an accident and ^•^ ' 
 
 showing a stone pile, is inadmissible «Eichelberger v. Gitt, 104 Pa. 64. 
 
 where it appears a stone pile had 'Loyd v. Lynch, 28 Pa. 419. 
 
 caused the accident but was re- ^Union Canal Co. v. Young, i 
 
 moved shortly after it happened, Whart. 410; Hoffman v. Stroheck- 
 
 and before the photograph was er, 9 Watts 183 ; Bolton v. Johns, 
 
 taken : Buck v. McKeesport, 223 s Pa. 14S ; Coxe v. Sartewell, 21 
 
 Pa. 211. Pa. 480. 
 
2p8 Pt'NNSVl^VANIA TRIAL EVIDlJNCli. 
 
 between stations and as a basis for fixing the speed of trains. 
 The objection that distances given therein are only approximate 
 and merely for the information of travellers, is not a sufficient 
 reason for rejecting it, but the defendant will be permitted to 
 prove the distance stated was not correct. '■' 
 
 § 228. Unstamped Writings. A writing not bearing a stamp 
 in accordance with the Federal Revenue Laws is inadmissible." 
 But though executed without being stamped as required by the 
 Act of June 13th, 1898, 30 St. L. 448, it will be admitted in evi- 
 dence without a stamp since the repeal of that act without re- 
 serving the right to enforce any of the penalties therein provided 
 for disregarding its provisions, and the burden is now on the 
 party objecting to the paper to show that the stamp was omitted 
 with intent to evade the act.^^ 
 
 C. PUBLIC DOCUMENTS. 
 
 § 229. Generally — Modes of Proof. As a general rule, the 
 production of the original of public documents or records is un- 
 necessary as proof may be made by exemplifications under the 
 great seal of the state or country or under the seal of a court^- 
 or by copies certified under the hand and seal of the proper officer 
 having them in charge,^^ or' by examined copies duly made and 
 sworn to by any competent witness.'* The practice of producing 
 the originals is also unadvisable, as public papers should be pre- 
 served for public convenience, and should always be in their 
 place and accessible to all.'' 
 
 If the particular circumstances of a case require the produc- 
 
 "Schwarz v. Delaware L. & W. is not definitely settled in Pennsyl- 
 
 Railroad, 218 Pa. 187. vania : Krise v. Neason, 66 Pa. 
 
 '"Chartiers Tpk. Co. v. McNam- 253. It seems that such course is 
 
 ara. 72 Pa. 278. unnecessary. See § 190, note so. 
 
 'iQhio Railroad v. Penna. Co., '■''Ridgway v. Farmers' Bank. 12 
 
 222 Pa. 573. S. & R. 256. In Commonwealth \. 
 
 '^See §§ 233-237. Clymer, 217 Pa. 302. a statistical 
 
 '^See §§ 248-249. clerk was permitted to testify that 
 
 '■•Ridgway v. Farmers' Bank, 12 he had examined the records of the 
 
 S & R. 256; American Ins. Co. v. state hoard of medical examiners 
 
 Rosenagle, 77 Pa. 507; Otto v. and could not find the name of the 
 
 Trump, IIS Pa- 425. Whether it is defendant therein, the court saying 
 
 original and copy to change hands, that the records were voluminous 
 
 to another holding a copy, for the and the inconvenience of producing 
 
 necesasry, when an examined copy tliem for inspection by the jury 
 
 is made by one reading the original was great. 
 
DOCUMENTARY EVIDENCE. 209 
 
 tion of the originals, they must be brought from the office where 
 kept and verified by the officer in charge or his clerk or some 
 person specially authorized by him for that purpose. ^° But it is 
 not necessary if the document is a book, to call the person who 
 made the entries. ^^ Acts providing for the admission in evidence 
 of certified copies of public books and papers, do not exclude 
 the originals when properly authenticated.^' Nor is it necessary 
 when a copy is offered to call witnesses to prove execution. '^"^ 
 
 The doctrine of presumptive existence from lapse of time does 
 not apply to public documents and records which are supposed 
 to always remain in the custody of officers charged with their 
 keeping, and such documents must be produced, or if lost, sup- 
 plied by secondary evidence,-" in the same manner as lost private 
 writings.-' 
 
 § 230. Assessment Books. Tax books from a commissioner's 
 office are competent to show assessment and non-payment of 
 taxes and the subsequent sale of the land.^^ While the person 
 who made the entries need not be called,^-'* the books must be pro- 
 duced and authenticated by some officer or clerk having official 
 custody of them, and cannot be verified by one who has no con- 
 nection with the office.^* 
 
 A tax collector is a public officer to whose official acts credit 
 
 i^Hockenbury v. Carlisle, I W. obliterated: Jones v. Hollopeter, 10 
 
 & S. 282; Devling v. Williamson, S. & R. 326. 
 
 9 Watts 3II- "McCoy v. Lightner, 2 Watts 
 
 i^Brattan v. Mitchell, 7 W. & S. •, ,7 ggg ss 214, 390. 
 
 259; Cuttle V. Brockway, 24 Pa. ,,^^^^.^ ^ g^^I^^i^^^ g p^ ^^^ 
 
 145. The onginal record of a pro- ,,^^^^.^ ^ ^^^^^.^^^ ^ p^ ^^^. 
 
 seeding before a justice of the Rj^^ard's Appeal, 122 Pa. 547- 
 peace in a foreign state is sum- 
 
 ciently .proved by the oath of a "^^S" "■ Campbell, 5 Watts 
 
 witness who identified the signature ^^^l Cuttle v. Brockaway, 24 Pa. 
 
 of the justice and testified he had '^S ; Crum v. Burke, 25 Pa. 377! 
 
 no seal: Kean v. Rice, 12 S. & R. "^^^^ "■ ^"^yth, sS Pa. IS9; Lyman 
 
 c , . „.,.,, V. Phila., s6 Pa. 488. Such books 
 
 203. See also § 230, notes 23-24. . , , , 
 
 It is unnecessary in such case to ^''^ evidence only for the purpose 
 
 show an attempt was made to sub- 1°' ^^"^'^ ^^^ "^ "a<^^- P^"^' ^• 
 
 poena the justice himself: Denni- ^owen, 202 Pa. 453. 
 
 son V. Otis, 2 Rawle 9. "Cuttle v. Brockoway, 24 Pa. 
 
 isMiller v. Hale, 26 Pa. 432. Nor HS ; Bratton v. Mitchell, 7 W. & 
 
 is it necessary to produce the origi- ^- 259- 
 
 nal even though it appears from the ^*Hockenbury v, Carlisle, i W. & 
 
 copy that part of the writing was S. 282; Miller v. Hale, 26 Pa. 432. 
 
 14 
 
2IO PENNSYLVANIA TRIAL EVIDUNCfi. 
 
 should be given, and his tax duplicates and entries of payments 
 of taxes are evidence thereof without calling him to testify.^^ 
 
 § 231, Corporation Accounts. While corporation books are 
 not public documents, they have in certain instances been put on 
 the same plane as public documents to the extent that they may 
 be proved by copies certified by the officer having them in charge. 
 Thus by Act of May 25, 1897, P. L. 82, copies of book accounts 
 of common carriers and other public service corporations are ad- 
 missible in evidence in proceedings between third persons when 
 sworn to by an officer or employee in charge of the books and 
 filed ten days prior to trial. By Act of June 22, 1883, P- L. 154, 
 a similar rule applies to copies of book entries of a banker, when 
 accompanied by an affidavit made by an officer of the bank stat- 
 ing that the entry was made in the regular course of business, 
 that there are no interlineations or erasures, and that the copy 
 has been compared and found to be correct. 
 
 § 232. Historical or Geographical Books Relating to Public 
 Matters. Standard historical or geographical books are admis- 
 sible as evidence of remote transactions of a public nature where 
 better evidence cannot be obtained. But they cannot be received 
 to prove a private right.^" Ancient books containing letters from 
 William Penn, and also a list of first purchasers from him, are 
 admissible on a question of ownership of a public city square.^' 
 But a "gazetteer" is not competent to prove the distance between 
 different cities, such fact being susceptible of better proof. ^^ 
 
 § 233. Judicial Records — Domestic — Docket Entries. A paper 
 or record which bears the seal of the court in which it is offered 
 or of any other court in the state is admissible without further 
 proof, as the court will take judicial notice of the seal.^^ And 
 records of the common pleas which have been removed to the 
 appellate court will be received in evidence without being au- 
 thenticated as records of the latter court.*"* 
 
 Docket entries are competent to prove the contents of a record 
 which has been lost ^^ or removed from the common pleas to the 
 
 25Lewisburg Overseers v. Au- ="Coni. v. Sheriff, i Brewst. 183; 
 
 gusta Overseers, 2 W. & S. 65. Com. v. Snowden, i Brewst. 218. 
 
 "eSpalding v. Hedges, 2 Pa. 240. 3»Eisenhart v. Slaymaker, 14 S. 
 
 2^Com. V. Alburger, i Whart. 469. R. 153. 
 
 ^^Spalding v. Hedges, 2 Pa. 240. sijjarvey v. Thomas, 10 Watts 
 
 63 ; Boyd v. Com., 36 Pa. 355. 
 
DOCUMENTARY EVIDUNCI;. 211 
 
 appellate court,^^ or to show that a suit was brought. ^^ But 
 memoranda on the margin of the docket showing the name of 
 the attorney in the case, is not properly a part of the record,'* 
 nor are docket entries admissible to prove the issuing, service and 
 return of a writ, since the writ itself is the best evidence thereof.'" 
 
 A judgment is not evidence of a matter incidentally connected 
 with it or which may be inferred from it'" unless it is directly in 
 issue." In an action for malicious prosecution, the record of 
 the prosecution is competent to show plaintiff was acquitted and 
 that defendant was the prosecutor.'^ 
 
 The record of a deed in the prothonotary's office is equivalent 
 to recording and is competent evidence without production of the 
 deed.'' 
 
 § 234. Judicial Records — Foreign States. "The records and 
 judicial proceedings of the courts of any state or territory, or 
 of any such country [subject to the jurisdiction of the United 
 States] shall be proved or admitted in any other court within the 
 United States, by the attestation of the clerk and the seal of the 
 court annexed, if there be a seal, together with a certificate of the 
 judge, chief justice or presiding magistrate, that the said attesta- 
 tion is in due form. And the said records and judicial proceed- 
 ings, so authenticated, shall have such faith and credit given to 
 them in every court within the United States, as they have by law 
 or usage in the courts of the state from which they are taken."*" 
 
 The above provisions are not complied with unless the record 
 of the foreign proceeding is certified by the chief justice or pre- 
 siding magistrate of the court. ^"^ Certification by one who styles 
 himself "judge of the probate court,"*- or by one of several 
 
 2-Eisenhart v. Slaymaker, 14 S. ^^Act of Congress of May 26, 
 
 & R. 153; Stoner's Appeal, 2 Pa. 1790, as amended by Act of March 
 
 428; Berghaus v. Alter, 5 Pa. 507. 27, 1804, U. S. Rev. Stat. § 905. This 
 
 "Ruggles V. Gaily, 2 Rawle 232. act was passed for the purpose of 
 
 '^Barlow v. Beall, 20 Pa. 178. carrying into effect Art. IV, § i, of 
 
 ssVincent v. Huff, 4 S. & R. 298. the Constitution of the United 
 
 36Lentz V. Wallace, 17 Pa. 412; ^*^*"' P'°"'"^'''S that full faith and 
 
 Martin v. Gernandt, ig Pa. 124. "^'^'^ =^^" ^^ ^iven in each state 
 
 .,_, . ^^ . „ to the public acts, records and ju- 
 
 "Garrigues v. Hams, 17 Pa. 344. ,• • 1 ,. r ,, 
 
 ^-r-r dicial proceedings of every other 
 
 '^Katterman v. Stitzer, 7 Watts state. 
 
 189- *iLathrop V. Blake, 3 Pa. 483. 
 
 '''Stonebreaker v. Short, 8 Pa. ■*2\Yaghabaugh v. Entriken, 34 
 
 iSS- Pa. 74. 
 
212 rENNSYLVANIA TRIAI, EVIDENCE. 
 
 judges, without stating he was the chief justice/' is insufficient. 
 But if the record describes the person as being the only judge of 
 the court, it is unnecessary to state he is the chief justice or the 
 presiding magistrate.^* Proof that the foreign court had juris- 
 diction is unnecessary. *° 
 
 The clerk should certify that he is clerk of the particular court, 
 and that the seal attached is the seal of his office,*" and the judge's 
 certificate must be annexed, setting out that the attestation of 
 the clerk is in the proper form.*' A record certified to by the 
 same person who is both judge and clerk, is good if it appears 
 he could legally occupy the same office.** 
 
 The mode of exemplification provided by the Act of 1790 is 
 not exclusive, and any other competent evidence approved by 
 the foreign state may be admitted to prove its records.*^ The act 
 does not declare the effect of the records as evidence when duly 
 authenticated, but merely entitles them to the same faith and 
 credit they would have received in the court from which they 
 came.°°. 
 
 § 235. Judicial Records — Foreign Countries. Judgments of 
 foreign countries are usually authenticated by an exemplification 
 made under the great seal of the country, which proves itself, or 
 by a properly proved copy or a copy properly authenticated by 
 the certificate of an officer authorized by law to give such cer- 
 tificate.^^ If none of these modes of proof is available, inferior 
 proof may be admitted. A copy of a record of proceedings in 
 the English court of Chancery, certified by the senior clerk of 
 the record department of the court and accompanied by a cer- 
 tificate under seal of the court, made by one of the masters, stat- 
 ing that the clerk is the proper officer to certify proceedings,'- 
 and also a certified copy of a record of the High Court of Justice 
 of Ontario, certified in accordance with our Act of Congress,"' 
 have been held sufficient. 
 
 "Van Storch v. Griffin, 71 Pa. ■'sOhio v. Hinchman, l^ Pa. 479. 
 
 241. '"'Baker v. Field, 2 Yeates 532; 
 
 ^*Com. V. AIsop, I Brewst. 328. Kean v. Rice, 12 S. & R. 203 ; La- 
 
 "Ripple V. Ripple, i Rawle 386. throp v. Blake, 3 Pa. 483; Ohio v. 
 
 •"Clark V. Depew,' 25 Pa. 509. Hinchman, 27 Pa. 479; Person v. 
 
 A certificate by the deputy clerk is Lipps, 219 Pa. 99. 
 
 insufficient: Lathrop v. Blake, 3 sofiaxley v. Linah, 16 Pa. 241. 
 
 Pa. 483; Ensign v. Kindred, 163 "^iWilliams v. Wilks, 14 Pa. 228. 
 
 Pa. 638. '-'Pearson's Estate, 19 Phila. 128. 
 
 ■"Snyder v. Wise, lo Pa. 157; r'aGautier Steel Company's Case, 
 
 Dimmick v. Leath, s Kulp 255. 18 W. N. C. 346. 
 
DOCUMENTARY EVIDENCBI. 213 
 
 § 236. Judicial Records — Justice's Court. Recoi'ds kept by 
 magistrates and justices of the peace are not within the scope of 
 the Federal Act of 1790,'* although where the transcript of a 
 judgment of a justice in another state, when filed in the common 
 pleas court of that state, is considered the same as the judgment 
 of the latter court, such judgment, when sued upon in this state, 
 is given the same credit as if it had been originally obtained in 
 the court of record.'^ But records of justices of the peace are 
 within the rule relating to other public records, and a copy is 
 admissible when proved by the oath of witnesses.^" Docket en- 
 tries of a justice of the peace are also admissible,^^ but a tran- 
 script, though certified by him, will not be received,"* unless 
 proved by the oath of the justice himself,^" or unless made com- 
 petent by statute, in which case its competency does not depend 
 on abstract rules of evidence, but on the provisions of the act."" 
 
 § 237. Judicial Recprds — United States Courts. The United 
 States Courts are not foreign tribunals with respect to state 
 courts, and the authentication of their proceedings is not within 
 the provisions of the Act of May 26, 1790, Rev. St. § 905, but 
 may be proved in the same manner as proceedings of our own 
 courts."' 
 
 § 238. Judicial Records — Whole of Record. A judicial record, 
 to be admissible in evidence, must be made up and certified as 
 
 ^''Snyder v. Wise, 10 Pa. 157; in another county is prima facie 
 
 Baird v. Campbell, 4 W. & S. 191. evidence for plaintiff in an action 
 
 "SRowley v. Carron, 117 Pa. 52. on the judgment. And by Act of 
 
 ^"Welsh V. Crawford, 14 S. & R. ^^^^h 29, i860, P. L 342, § I, a 
 
 transcript of the record of the pro- 
 
 • . ceedings of a justice of another 
 
 ^^'Dennison v. Otis, 2 Rawle 9; 3^^^^, when properly certified, is 
 
 Com, V. Montgomery, 2 Pa. 461; ,^^^1, ^^.^^^^^ ^^ ^^^^ procedings. 
 
 Hams v. Christian, 10 Pa, 233; ^he Act of March 12, 1869, P, L. 
 
 Com, V, Brown, 193 Pa. 507. 323, § 2, makes the official acts of 
 
 ssKatterman v. Stitzer, 7 Watts aldermen in Philadelphia and Lan- 
 
 189; Wolverton v. Com,, 7 S, & R. caster, when certified under their 
 273 ; Magee v. Scott, 32 Pa. 539- ' hands and seals, evidence of the 
 
 5'Hibbs V. Blair, 14 Pa. 413 ; facts therein recited without further 
 
 Kenderdine v. Ivins, i Phila, 25. certificate as to the official character 
 
 ""Keck V. Appleback, 2 P, & W. of the alderman, See also Act of 
 
 46s ; Kenderdine v. Ivins, I Phila, February 27, 1845, P. L, 73, § 4, re- 
 
 25. Under the Act of March 20, lating to actions on foreign judg- 
 
 1810, 5 Sm, L. 161, a certified tran- ments obtained before justices, 
 
 script of a judgment of a justice ^^Williams v, Wilkes, 14 Pa, 228, 
 
214 PENNSYLVANIA TRIAL EVIDENCE. 
 
 a whole, and not in loose and detached parts."' If objection is 
 made on this ground, the determination of the question must 
 depend upon the certificate attached to the record. Every court 
 is best able to judge of its own records, and its officers are pre- 
 sumed to certify nothing but the truth. For this reason, before 
 another court would be justified in saying that a certificate does 
 not state the truth, there must be something more than the mere 
 absence of certain things which are usually included in the record, 
 and therefore if it purports to be a full copy of the whole record 
 a§ contained in the office, it is admissible though an inspection 
 shows it is not complete."^ It may be incomplete, and yet actu- 
 ally contain everything in the office."^ However, such record 
 would be evidence only as far as it goes, and if papers necessary 
 to the case are not included, they must be prqduced or accounted 
 for before secondary evidence of their contents will be received."^ 
 The fact of loss is sufficiently proved by the oath of the pro- 
 thonotary that the missing papers cannot be found in his office."' 
 If it appears from the certificate or from the exemplification 
 that the whole record as found in the office was not included, the 
 part offered will not be received."^ A certificate stating that it 
 is a "true copy taken from the original record," is insufficient."* 
 But a certificate that it is a "copy of the record" will be presumed 
 to mean a complete copy,"" and the mere fact that the certificate 
 recites that among the court records "it is inter alia contained," 
 does not imply that the copy is not complete.^" A certificate that 
 a record was a copy of the "judgment roll" on file, is sufficient, 
 
 o-Hampton v. Speckenagle, 9 S. authenticated under the seal of an 
 
 & R. 212; Christine v. Whitehill, 16 American Consul, is competent 
 
 S. & R. 98; Ingham v. Crary, i P. though it does not, on its face, pur- 
 
 & W. 389; Susq. etc. Railroad v. port to be a complete record: 
 
 Quick, 68 Pa. 189. Thompson v. Fitzgerald, 233 Pa. 
 
 "^Edraiston v. Schwartz, 13 S. & 242. 
 
 R. 135; Christine v. Whitehill, 16 osEberts v. Eberts, 55 Pa. no. 
 
 S. & R. 106; McCormick v. Irwin, „„n , „ ., t^ , 
 
 , t> TT, . T71 . - ""Ruggles V. Gaily, 2 Rawle 232. 
 
 35 Pa. in; Eberts v. Eberts, 55 „,□ , , o ,i- t^ 
 
 o o , „ .„ „ T-, u- T "^Bonesteel v. Sullivan, 104 Pa. 9. 
 
 Pa. no; Schuylkill & Dauphin Im- ' ^ -^ 
 
 provement Co. v. McCreary, 58 Pa. "'Christine v. Whitehill, 16 S. & 
 
 304; First Nat. Bank v. Crosby, ^- ^■ 
 
 179 Pa. 63. <»>Voris v. Smith, 13 S. & R. 334; 
 
 ""Voris V. Smith, 13 S. & R. 334; Reber v. Wright, 68 Pa. 471; 
 
 Eberts V. Eberts, 55 Pa. no. An Bonesteel v. Sullivan, 104 Pa. 9; 
 
 exemplification of a record of pro- Shilling v, Seigle, 207 Pa. 381. 
 
 ceedings in England, certified by the '"Maus v. Mahoning Twp., 24 
 
 court and the stenographer and Super. 624. 
 
DOCUMENTARY EVIDENCE. 21 5 
 
 it appearing such term was applied to the formal record when 
 made up and completedJ^ 
 
 The mere fact that the record contains some unnecessary 
 things, does not render it inadmissible/^ Receipts for money 
 paid on a judgment are part of the record, and as such are com- 
 petent evidence. '' 
 
 § 239. Law — Domestic. Courts, take judicial notice of the 
 statutes and decisions of their own state, and no formal proof 
 thereof need be given. Provision is made for their printing and 
 publication, and such printed copies may be used without proof 
 of authenticity whenever reference thereto is necessary to refresh 
 the recollection of the court. A copy of the laws published an- 
 nually under authority of the legislature is evidence of all acts 
 therein contained, whether public or private,'* though the volumes 
 known as "Smith's Laws" have been held not to be evidence of 
 private or special acts which are printed only in part.'^ 
 
 § 240. Law — Foreign. The laws of another state or country 
 are matters of fact and must be proved as such, and in the ab- 
 sence of such proof they will be presumed to be the same as the 
 law of Pennsylvania,'" unless it was the intention of the parties 
 to an action that the law of another state should be considered 
 by the court without proof.'' 
 
 Evidence of foreign law is for the information of the court, 
 and the jury are given instructions with reference to it." But 
 it is error for the court to give such instructions in absence of 
 evidence on the subject.'" 
 
 ^'^Clark V. Depew, 25 Pa. 509. C. SiP- And where it appears from 
 
 '-Erb V. Scott, 14 Pa. 20. the statement of claim and affidavit 
 
 '^Lathrop V. Blake, 3 Pa. 483. 01 defense that the contract sued 
 
 '*Biddis V. James, 6 Bin. 321 ; on was made in another state, and 
 
 Kean v. Rice, 12 S. & R. 203 ; Gray - there is nothing in the statement to 
 
 V. Monongahela Navigation Co., 2 show what was the law of such 
 
 W. & S. 156. Compare cases § 316, state on the subject, a rule for 
 
 note 18. judgment for insufficient affidavit 
 
 '^Clark V. Tpk. Co., 13 L. I. 156. of defense will be discharged if 
 
 "Bennett v. Cadwell, 70 Pa. 253; under the Pennsylvania law a valid 
 
 Phillips V. Gregg, 10 Watts 158; defense is shown: Adams Paper 
 
 Cabarga v. Seegar, 17 Pa. 514; Co. v. Cassard, 206 Pa. 179; Mus- 
 
 Evans v. Cleary, 125 Pa. 204; Van ser v. Stauffer, 178 Pa. 99. 
 
 Auken v. Dunning, 81 Pa. 464; '^Bock v. Lauman, 24 Pa. 435. 
 
 Musser v. Stauffer, 178 Pa. 99; '^Bollinger v. Gallagher, 170 Pa. 
 
 Linton V. Moorhead, 209 Pa. 646. 84. 
 
 In an affidavit of defense, foreign ^^Whiting Mfg. Co. v. Bank, 15 
 
 law should be averred as any other Super. 419. 
 fact: Boughton v. Bank, 9 W. N. 
 
2l6 PENNSYLVANIA TRIAL ItVIDENCU. 
 
 § 241. Law — Foreign — ^Federal Questions. In the United 
 States Courts, the different states are not regarded as foreign 
 but as domestic states whose laws will be judicially noticed with- 
 out pleading or proof. It has therefore been held that in order 
 to avoid conflicting rules of evidence in the same case, whenever 
 a question under the constitution and laws of the United States 
 arises in a state court from which an appeal lies to the federal 
 court, the former will also take notice of the laws of other states 
 which may come in question in the case without requiring proof 
 of them.*" But the United States Supreme Court has held that 
 these decisions are based upon a misapprehension of the extent to 
 which that court will judicially notice laws of the states, and that 
 such laws are judicially noticed only in cases when it exercises 
 original jurisdiction of the subject matter and not where juris- 
 diction is acquired by appeal from the state courts.*' 
 
 § 242. Law — Foreign — Statutory or Written Law. The 
 method of proving written foreign law varies according to the 
 circumstances.*^ The best evidence rule applies as in other cases, 
 but the strict requirements of proof may be relaxed where the 
 necessity of the case demands it and there is reason to believe that 
 better evidence is unobtainable, or where a rigid adherence to the 
 rules of evidence would produce injustice.*' The usual mode of 
 proof is by exemplifications under the seal of the state,** or by 
 a proved copy or one properly authenticated by the certificate of 
 an officer authorized by law to make it,*^ or by officially printed 
 volumes which are admitted without further proof, as prima 
 facia evidence of their contents.*° The last is the most conveni- 
 ent mode of proof, and indeed it would seem that such volumes, 
 printed under the direct supervision of the state, would be more 
 
 8°Garrigues v. Harris, \^ Pa. ot the United States, shall be au- 
 
 344; Ohio v. Hinchman, 27 Pa. thenticated by having the seals of 
 
 479. such state, territory or country af- 
 
 *iHanley v. Donoghue, 116 U. «^ed thereto." A copy of a statute 
 
 ^ of another state, certified by the 
 
 ' „ ,,, „ secretary of state and bearing the 
 
 *=Ph>lhps V. Gregg, 10 Watts 158, ^^^^^ ^^^,^ j^ admissible: Grant v. 
 
 8"Phillips V. Gregg, 10 Watts 158. Henry Clay Coal Co., 80 Pa. 208; 
 
 *«The Act of May 26, 1790, as U. S. Rev. St., § 905. 
 
 amended by Act of March 27, 1804, -'''Phillips v. Gregg, 10 Watts 158; 
 
 U. S. Rev. Stat., § 90s, provides Bollinger v. Gallagher, 170 Pa. 84. 
 
 that "The acts of the legislature of *"Kean v. Rice, 12 S. & R. 203; 
 
 any state or territory or of any Mullen v. Morris, 2 Pa. 85 ; Tenant 
 
 country subject to the jurisdiction v Tenant, no Pa. 478. 
 
DOCUMENTARY EVIDUNC3J. 217 
 
 satisfactory and less liable to error or fabrication than sworn 
 copies.*' Even though not regularly bound in a volume, a copy 
 printed by the official printer of a state, bound up with a few 
 other acts in a paper cover, has been admitted.** The rule ad- 
 mitting officially printed volumes also applies to the laws of for- 
 eign countries upon its being shown that they would be competent 
 evidence in the country from which they came.*^ 
 
 The mere fact that the act proved refers to another act, does 
 not make it necessary to also prove the latter."" And if it in- 
 clude different subjects, only such part as relates to the matter 
 in question need be offered."^ 
 
 § 243. Law — Foreign — Unwritten or Common Law. Foreign 
 unwritten laws may be proved by the testimony of one who has 
 knowledge of them,"^ or by the officially printed reports of de- 
 cisions of the highest court of that state. "^ The burden of prov- 
 ing that they are statutory lies on the party objecting."* 
 
 Any person learned in the law of the foreign state or country 
 or who, though not a lawyer, has been in a position which made 
 it his duty to know, or which rendered it probable that he would 
 make himself acquainted with the law on the particular subject, 
 is competent to testify thereto. "= An expert who testifies to for- 
 eign law cannot be given a hypothetical state of facts and be re- 
 quested to say what would be the law on such facts. He must 
 testify to what the courts have held, not to what they would hold 
 on facts given."" An ex parte affidavit by an attorney having 
 knowledge of the law of the foreign country, but having no au- 
 thority to certify thereto, cannot be accepted as proof of such 
 law."' 
 
 Usage or custom of a foreign state or country, having the 
 force of law, may be proved like any other foreign unwritten 
 
 8'Jones V. Maffet, S S. & R. 523. 84; Musser v. Stauffer, 192 Pa. 
 
 ssThompson v. Musser, i Dall. 398 ; O'Malley v. Ins. Co., 47 Super. 
 
 4S8. S33- 
 
 -Jones V. Maffet. S S- & R- S23. o.Dougherty v. Snyder, 15 S. & 
 
 ""Grant v. Henry Clay Coal Co., 
 
 Ri84. 
 
 80 Pa. 208; Adle v. Sherwood, 3 / 
 
 Whart. 481. -' °^A.mer. Ins. Co. v. Rosenagle, 
 
 "Adle V. Sherwood, 3 Whart. ''' ^'^^ 507- 
 
 481. "«BoUinger v. Gallagher, 170 Pa. 
 
 "^Phillips V. Gregg, 10 Watts 158; 84 
 
 Bollinger v. Gallagher, 170 Pa. 84. "'Coleman's Estate, 13 Pa. C. C. 
 
 "^Bollinger v. Gallagher, 170 Pa. 81. 
 
2l8 
 
 PENNSYLVANIA TRIAL KVIDENCE. 
 
 law, by the testimony of any person having knowledge of it."" 
 
 § 244. Maps, Plans and Surveys. Official maps, plans and 
 surveys relating to matters of general and public interest are 
 competent evidence, when properly authenticated,"' on questions 
 of both public and private rights. If offered on questions of 
 title, the map or plan must be shown to bear an official character 
 and must be traced to the possession or office of the surveyor,^"" 
 while if offered on a question of boundary only, this is not nec- 
 essary.^ But if the map or plan is an ancient one, it is sufficient 
 to show that it came from the proper office and was generally 
 recognized as genuine.^ Such maps found in the surveyor gen- 
 eral's office and relating to official matters, are competent' and 
 are presumed to be official until the contrary is shown.* 
 
 § 245. Marriages, Births and Deaths, Records Of. Records 
 of marriages, births and deaths kept by religious scocieties are 
 by statute, made competent evidence on all occasions.^ This act 
 
 38 Phillips V. Gregg, 10 Watts 158. 
 See § 138. 
 
 °"A town plan found in the re- 
 corder's office, but not recorded or 
 marked "filed," is not sufficiently 
 proved merely by the statement of 
 a clerk that it had been in the 
 office for a number of years : 
 Franey v. Miller, 11 Pa. 434; nor 
 i.v a map containing a recital that 
 it was a draft of the borough as 
 laid out in a certain prior year ad- 
 missible in absence of proof by the 
 surveyor or evidence to account for 
 the absence of the original : Com. 
 A . Switzer, 134 Pa. 383. Mere re- 
 citals on a borough plan, signed by 
 ihe burgess, that it was duly re- 
 corded pursuant to resolution of 
 borough councils, is insufficient; 
 the resolution should be offered 
 and the recorder's certificate ob- 
 tained to prove the record : Oak- 
 dale Boro. V. Sterling, 8 Super. 428. 
 '""Blackburn v, Holliday, 12 S. 
 & R. 140; Sample v. Robb, 16 Pa. 
 30S ; McCausland v. Fleming, 63 
 Pa. 36. See § 288. 
 'See § 276. 
 
 ^Com. V. Alburger, i Whart. 469; 
 Baird v. Rice, 63 Pa. 489. 
 
 ^Com. V. Alburger, i Whart. 469; 
 Vastbinder v. Wagner, 6 Pa. 339; 
 Lindsay v. Scroggs, 2 Rawle 141. 
 
 "Miller v. Carothers, 6 S. & R. 
 215. A survey made by one who, 
 though not a deputy surveyor, had 
 for many years been employed to 
 make official surveys, is admissible : 
 Burd V, Seabold, 6 S. & R. 137; 
 but not if it was not signed by 
 the owner nor filed in the proper 
 place, and had nothing to indicate 
 it was official: Washington Semi- 
 nary V. Boro., 18 Super. 555. 
 
 =Act 1700, I Sm. L. 20. A reg- 
 istry duly kept by the pastor of a 
 church as part of his duties, is 
 evidence : Benz's Estate, i W, N. 
 C. 486; and e.xtracts from such 
 records, kept by a church in a for- 
 eign country and in accordance 
 with law, are admissible when sup- 
 ported by the oath of the pastor 
 who was the proper custodian of 
 them: American Life Ins. v. Rose- 
 nagle, ^^ Pa. 507. 
 
DOCUMENTARY EVIDENCI;. 2I9 
 
 was in conformity with the common law rule, and before the 
 registry is admissible it must be authenticated by the person who 
 kept it.** But such registers are not evidence of anything con- 
 tained therein which it was not the duty of the ofScer to make. 
 Thus, a registry of baptisms is not admissible to prove births 
 entered merely as incidental to the baptismal record,^ nor is a 
 registry of deaths and burials competent to prove births and 
 pedigree.* 
 
 Registers of burials kept by religious societies in foreign coun- 
 tries are competent evidence," and extracts from such records, 
 certified by the proper officer in the manner customary in such 
 country, .are also competent, the certificate of the United States 
 Consul at the particular place, to the effect that the officer certify- 
 ing is the proper officer and that the mode of authentication is 
 the usual mode, being prima facie proof thereof.^" The consul 
 has also authority to translate extracts which are in a foreign 
 language." 
 
 Entries of baptisms and marriages by a bishop on the register 
 of any church of which he had supervision, are competent evi- 
 dence of such facts, ^- and books or registers of a health officer, 
 or certificates thereof are competent to prove marriages, births 
 or deaths.^' 
 
 § 246. Municipal Ordinances. Municipal ordinances may be 
 proved by the official ordinance book when produced by the 
 proper person. It is not necessary to first show that the ordi- 
 nance was validly enacted.^* Ordinances and resolutions of the 
 cities of Philadelphia and Pittsburgh as printed and published in 
 book form, or copies duly certified by the clerks of councils and 
 mayor of the city, are also competent evidence. '^^ 
 
 ^Stoever v. Whitman, 6 Bin. 416; public, is competent evidence of 
 
 Mallie v. Bow, 10 Del. 521. See pedigree: Kingston v. Lesley, 10 S. 
 
 preceding note. & R. 383. 
 
 'Clark V. Trinity, S W. & S. 266. "Act March 31, 1837, P. L. 117, 
 
 ^Sitler V. Gehr, 105 Pa. 577. § 21. 
 
 9Act March 31, 1837, P- L. 117, '^Act March 17, 1838, P. L. 82, 
 
 § 20. § S. 
 
 loA copy of a registry of deaths i^Act March 8, i860, P. L. 132, 
 
 of the Quakers in England, proved § 9. 
 
 before the Lord Mayor of London, i*Grier v. Homestead Boro., 6 
 
 is admissible: Hyam v. Edwards, i Super. 542; Ridley Park v. Citi- 
 
 Dall. I ; and a copy certified be- zens' Electric Co., 9 Super. 615. 
 
 fore a deputy secretary of a for- ^^Act March 21, 1866, P. L. 262, 
 
 eign island, who was also a notary § i. 
 
220 PENNSYLVANIA TRIAL EVIDICNCE. 
 
 § 247. Notarial Acts. The official acts, protests and attesta 
 tions of all notaries public certified under their hands and seals" 
 of office, are admissible as proof of all facts therein stated, includ- 
 ing the fact of notice to the drawers, acceptors or indorsers of 
 bills and notes." Such certificates prove themselves" and are 
 prima facie evidence of the facts stated^^ such as presentation and 
 demand of payment^" and notice of non-payment. ^'^ They are not 
 conclusive, however, but have only the probative force and effect 
 of a deposition, being merely a substitute for oral evidence deliv- 
 ered in court.^^ The act itself provides that such certificate may be 
 contradicted by other evidence, and it has been held this may be 
 done by examining the notary himself. ^^ If he have no recol- 
 lection of the transaction, it will be presumed he acted according 
 to law." 
 
 The official acts of notaries of foreign countries are also prima 
 facie evidence of the matters therein set forth, when accompanied 
 by the certificate of a consul or vice consul that the notary is 
 the proper officer and that his official acts are in accordance 
 with the law of the particular country.-^ 
 
 § 248. Official Records and Papers — Domestic. Copies of all 
 records or papers on file in the offices of the different depart- 
 ments of state and other public offices are competent evidence 
 without production of the original when certified under the hand 
 and seal of the head of the respective department or office. This 
 
 i«The courts will judicially notice ^igi-g^gj-t ^, Allison, 6 S. & R. 
 
 the seal of a notary public: Mul- 524; Browne v. Bank, 6 S. & R. 
 
 len V. Morris, 2 Pa. 85; and his 484; Kase v. Getchell, 21 Pa. 503. 
 
 certificate under seal is prima facie 22M(.Qgg y Bank, S Watts 32 ; 
 
 evidence that he has been duly com- Farmers' Nat. Bank v. Marshall, 9 
 
 missioned: Stroheim v. Mfg. Co., Super. 621. The certificate can 
 
 10 Dist. 668. have no greater effect than is given 
 
 "Act January 2, 1815, 6 Sm. L. il by the terms of the act: -Ben- 
 
 238 ; December 14, 1854, P. L. nett v. Young, 18 Pa. 261 ; Kase v. 
 
 (185s) 724. § I. Getchell, 21 Pa. 503. 
 
 isBrowne v. Bank, 6 S. & R. 484; ^^Craig v. Shallcross, 10 S. & R. 
 
 Mullen V. Morris, 2 Pa. 85. 377; Parry v. Almond, 12 S. & R. 
 
 loStarr v. Sanford, 45 Pa. 193; 284. 
 
 Union Safe Dep. Bank v. Strauch. 2+Jenks v. Bank. 4 W. & S. 505; 
 
 20 Super. 196; Farmers' Nat. Bank McGarr v. Lloyd, 3 Pa. 474; Sherer 
 
 V. Marshall, 9 Super. 621. v. Bank, 33 Pa. 134. 
 
 =ijenks V. Bank, 4 W. & S. 505; ^■'•'Act April 27, 1876, P. L. 49; 
 
 Erittain v. Bank, 5 W. & S. 87. Starr v. Sanford, 45 Pa. 193. 
 
DOCUMENTARY EVIDENCE. 
 
 221 
 
 applies to the office of the secretary of state,-" secretary of the 
 treasury,-' auditor general,^* surveyor general,^' secretary of the 
 land office,'""* or the military,'^ insurance,^- health, ^^ and canal 
 commissioners'^* departments. Extracts from assessment books 
 of unseated lands taken from assessments in the commissioners' 
 office are also competent.'^ So also copies of entries in bank 
 books certified by an officer of the bank, are competent in all 
 proceedings except those in which the bank is a party, providing 
 ten days' prior notice was given to the opposite party.'" Journals 
 
 20Act March 31, 1823, 8 Sm. L. 
 
 144, § I : Northumberland County 
 V. Zimmerman, 75 Pa. 26. 
 
 27 Act March 31, 1823, 8 Sm. L, 
 
 144, § I. 
 
 28Act March 31, 1823, 8 Sm. L. 
 144, § i; April 15, 1828, P. L. 491, 
 § 2. The accounts of a public offi- 
 cer, settled and certified by the 
 auditor general as a copy of his 
 records, are prima facie evidence 
 to enable the state to recover from 
 the bondsman a balance due from 
 the officer : Com. v. Farrelly, i P. 
 & W. 52. 
 
 2»Act March 31, 1823, 8 Sm. L. 
 144, § I ; February l6, 1833, P. L. 
 46, § I ; by section 3 of the lattei 
 act, the surveyor general is also 
 authorized to make copies of an- 
 cient official papers vs^hen they have 
 become worn and defaced. 
 
 soAct March 31, 1823, 8 Sm. 
 L 144, § I ; January 25, 1828, 10 
 Sm. L. 19. § I : Dickerman v. 
 Parrish, 6 Pa. 210. Copies of book 
 entries in the land office are com- 
 petent to prove ownership of a 
 warrant : Oliphant v. Ferren, I 
 Watts 57. A book kept by a com- 
 missioner of sales of public land, 
 found among his papers after his 
 death, is evidence of the sale of 
 land : Struthers v. Reese, 4 . Pa. 
 129. A certificate from the land 
 office, signed by a clerk or a deputy 
 for the secretary, under the official 
 seal, is admissible as a certificate 
 
 of the secretary: Grant v. Levan, 
 4 Pa. 393; Urket v. Coi'yell, 5 W. 
 & S. 60. 
 
 "Act April II, 1867, P. L. 68. 
 An inspection roll of a recording 
 officer has been held competent evi- 
 dence of the facts therein contained : 
 Moore v. Houston, 3 S. & R. i6g. 
 Mustering officers of the govern- 
 ment are competent to prove their 
 own acts and official papers. The 
 official character of such officers be- 
 ing recognized by the public gener- 
 ally, will be prima facia assumed: 
 Chapman v. Herrold, 58 Pa. 106. 
 Certificates of entries in books of 
 the War Department of the United 
 States relating to the mustering in 
 of recruits, are competent evidence, 
 but are not records which import 
 absolute verity : Chapman v. Her- 
 rold, 58 Pa. 106. 
 
 32Act March 7. 1889, P. L. 9. 
 
 33 Act May 29, 1907, P. L. 305. 
 
 "Act March 31, 1845, P. L. 272, 
 § I. By Act January 25, l8S9, P- 
 L. 6, the office of canal commis- 
 sioner was abolished and the au- 
 ditor general was authorized to 
 furnish certified copies of papers 
 on file in that office. 
 
 s^Act April 19, 1843, P. L. 342, 
 § 2. This act does not exclude the 
 originals : Miller v. Hale, 26 Pa. 
 432. 
 
 36Act June 22, 1883, P. L. 154. 
 See § 231. 
 
222 PENNSYIyVANIA TRIAL EVIDENCE. 
 
 of Congress and of the state legislature are also competent evi- 
 dence of the facts contained therein. ^^ 
 
 If a statute directs a bond to be filed in a particular office, 
 such bond, or a certified copy thereof, is admissible in evidence 
 without any proof 'of execution or delivery. The fact that it was 
 found among the proper records and purports to have been taken 
 pursuant to the act, is prima facia sufficient for that purpose.*** 
 But in order to render such bonds competent evidence, all statu- 
 tory prerequisites to their validity must have been complied with. 
 Thus, under the Act of March 28th, 1803, 4 Sm. L. 45, requir- 
 ing a coroner's bond to be first recorded in the proper county 
 and then forwarded to and filed with the secretary of the com- 
 monwealth, a copy certified by the latter from the originals filed 
 in his office is inadmissible if it was not first recorded. ^° A cer- 
 tified copy of a sheriflf's bond is also inadmissible if it does not 
 appear on its face to have been executed before the recorder of 
 deeds as provided by law. The fact that the person before whom 
 it was takn bears the same name as the recorder is insufficient. 
 His official character must affirmatively appear.*" But though a 
 statute require the approval of a bond by the judges of the court 
 of quarter sessions, it is enough that it be actually approved by 
 them, though they style themselves judges of the common pleas.*^ 
 
 Copies duly certified by a public officer*^ are not conclusive, 
 but only prima facie evidence,*^ and are admissible only when 
 they include documents properly belonging to the office and which 
 it was the officer's duty to certify," although if the certificate 
 contain extraneous matters the court may strike out such part 
 and admit the remainder.*^ 
 
 § 249. Official Records and Papers — Foreign. "All records 
 and exemplifications of books which may be kept in any public 
 
 s^Miles V. Stevens, 3 Pa. 21; thereof may be supplied aliunde by 
 
 Southwark Bank v. Com., 26 Pa. a copy of the certificate of the offi- 
 
 446- cer, certified to by the recorder of 
 
 ssBurns v. Lyon, 4 Watts 363; deeds. 
 Boyd V. Com., 36 Pa. 355. See also •"Com. v. Laub, i W. & S. 261. 
 
 § 214. *2'p|,g certificate must be made by 
 
 3»Young V. Com., 4 Bin. 113. ihe present incumbent of the office: 
 
 ^^Dunn V. Com., 14 S. & R. 430. Jones v. Ross, 2 Dall. 143. 
 In Bennett v. Paine, 7 Watts 334, it ■'sWolf v. Goddard, 9 Watts 544; 
 
 was held that where the acknowl- Strimpfler v. Roberts, 18 Pa. 283. 
 edgment of a deed did not set out **Garwood v. Dennis, 4 Bin. 314; 
 
 the official character of the person Salmon v. Ranee, 3 S. & R. 315. 
 before whom it was taken, proof ^^johnson v. Hocker, i Dall. 406. 
 
DOCUMENTARY fiVIDBNCU. 223 
 
 office of any state or territory or of any country subject to the 
 jurisdiction of the United States, not appertaining to a court, 
 shall be proved or admitted in any court or office in any other 
 state or territory, or in. any such country, by the attestation of 
 the keeper of the said records or books, and the seal of his 
 office annexed, if there be a seal, together with the certificate 
 of the presiding justice of the court of the county, parish, or 
 district in which such office may be kept, or of the governor or 
 secretary of state, the chancellor or keeper of the great seal 
 of the state or territory or country, that the said attestation is 
 in due form and by the proper officers. If the said certificate 
 is given by the presiding justice of a court, it shall be further 
 authenticated by the clerk or prothonotary of the said court, 
 who shall certify under his hand and the seal of his office, that 
 the said presiding justice is duly commissioned and qualified; 
 or, if given by such governor, secretary chancellor or keeper of 
 the great seal, it shall be under the great seal of the state, terri- 
 tory or country aforesaid in which it is made. And the said 
 records and exemplifications so authenticated, shall have such 
 faith and credit given them in every court and office within the 
 United States, as they have by law or usage in the courts or 
 offices of the state, territory or country, as aforesaid, from which 
 they are taken."*'' 
 
 The certificate must state that the attestation was in due form 
 and made by the proper officer.*' But the mere fact that the 
 recording officer fails to state in the certificate that the paper was 
 recorded in his office is not ground for rejecting it if the judge 
 certifies it was made by the proper officer.** And where the sec- 
 retary of state certifies a paper from his own office, it is not 
 necessary for him to certify that his own attestation is in due 
 form.*" A record of an abstract of a mortgage in another state, 
 if recorded according to the laws of that state, is competent evi- 
 dence in Pennsylvania when duly authenticated under the Act of 
 Congress, though the record of an abstract would have been in- 
 admissible under Pennsylvania law.^" 
 
 *«Act March 27, 1804, U. S. Rev. shall be proved, and the effect 
 
 Stat. § 906. This act was passed thereof. 
 
 pursuant to Art. IV, § 1 of the *''Coni. v. Alsop, i Brewst. 328. 
 
 Constitution of the United States, *8Com. v. Alsop, i Brewst. 328. 
 
 giving Cojtigress power to prescribe *i'Grant v. Coal Co., «o Pa. 208. 
 the manner in which records and s^Garrigues v. Harris, 17 Pa. 344. 
 
 proceedino-s of the several states 
 
224 PENNSYLVANIA TRIAL EVIDENCE. 
 
 A certificate of inheritance, certified to by the judge and clerk 
 of a foreign court, in which it was stated that a certain relation- 
 ship had been established, is admissible though the certificate 
 fails to show affirmatively that witnesses were sworn.^^ But the 
 fact that the return of a commission taken out to examine wit- 
 nesses in a foreign country, contains a written report of the 
 names of persons confined in a certain place, which report is 
 certified by the clerk of chancery to have been signed by the "late 
 directors" of the place of confinement, does not make the report 
 evidence as an official paper if the commission itself is ex- 
 cluded." 
 
 The Act of 1870^" makes certified copies of powers of at- 
 torney, on file in public offices of Great Britain, from residents 
 of the United States authorizing their attorney to receive money 
 from the government, competent evidence in any proceeding in 
 this state, providing the copy be authenticated by the affidavit of 
 the official having the I'ecord in charge, taken before a notary, 
 and a United States Consul further certifies to the identity of the 
 officer and the notary. The consular seal in such case proves 
 itself. The act also provides that copies of receipts given by 
 attorneys or agents for the payment of money, and copies of re- 
 ports, adjudications, and awards and of book entries thereof, 
 may be certified in the same manner and shall become competent 
 evidence. 
 
 The Act of 1804 is not exclusive in its requirements, and any 
 other competent mode of proof may be resorted to.^* 
 
 § 250. Recorded Instruments. A duly certified copy of the 
 record of an instrument is evidence in all cases where the original 
 would be received.^^ Such copy is not secondary evidence, but is 
 equivalent to the original, and excuse for failure to produce the 
 latter need not be shown,"" although it is also competent evi- 
 dence. °' 
 
 Express statutory provision has been made for the admission 
 
 "lYung's Estate, Igg Pa. 35. vision has been made for recording 
 
 5=Jones V. Ross, 2 Dall, 143. papers. See also § 248 as to certi- 
 
 158 April 14, P. L. 70. (led copies of public documents gen- 
 
 ^*Criswell v. Altemus, 7 Watts erally. 
 
 565; Person v. Lipps, 219 Pa. pg. 5»Curry v. Raymond, 28 Pa. 144; 
 
 soThe Act of February 24, 1834, .Swank v, Phillips, 113 Pa. 482; 
 
 ■P, L. 68, makes exemplifications Davis v. Railway, 114 Pa. 308. 
 
 competent whenever the original '^Lewis v. Bradford, 10 Watts 
 
 would be, in all cases where pro- 67. 
 
DOCUMENTARY EVIDENCE. 225 
 
 of certified copies of the bonds of a justice's of the peace re- 
 corded in the office of the recorder of deeds of the proper 
 county,^' deeds of county commissioners,^" sheriffs, coroners, 
 marshalls, treasurers and patents granted by the commonwealth,"" 
 assignments of mortgages and letters of attorney authorizing 
 satisfaction of mortgages,*^ and releases of legacies or recog- 
 nizances charged on land."^ The Act of May 28, 1715, i Sm. L. 
 94, § 5, makes a certified copy of a deed primary evidence equal 
 to the original. But this act does not apply to deeds executed 
 and recorded out of the state, though of lands situated in Penn- 
 sylvania. Such conveyances must be proved according to the 
 laws of the state in which the land lies.*" A copy of a deed not 
 properly acknowledged so as to entitle it to be recorded, is inad- 
 missible,"^ even though supported by the oath of a witness who 
 testified that he could not swear to the accuracy of the copy, but 
 presumed that, being an exemplification under seal of a public 
 officer, it was correct,"^ 
 
 § 251. Weather Bureau Records. Records of the United 
 States Weather Bureau are public records, and as such are ad- 
 missible in evidence."" But a diary of a person connected with 
 the weather bureau, containing matters consisting largely of 
 individual opinion of the person who made the entries, is incom- 
 petent."^ 
 
 § 252. Whole of Record. While the general rule is that the 
 whole of a. public record must be offered as in case of other writ- 
 ings, an extract is sufficient if it appears on its face to contain 
 all that relates to the subject in controversy, and in such case it 
 is not necessary for the party to go to the expense of copying 
 irrelevant matter."^ 
 
 =sAct April II, 1840, P. L. 29s, e^Vickroy v. McKnight, 4 Bin. 
 
 §§ 4 and S- 204 ; Kerns v. Swope, 2 Watts 75. 
 
 s^Act April 5, 1849, P. L. 344, "^Kerns v. Swope, 2 Watts 75. 
 
 § 2. ' "I'Nolt V. Crow, 22 Super. 113. 
 
 «»Act March 14, 1846, P. L. 124, "^Hufnagle v. Canal Co., 227 Pa., 
 
 § i; Act February 16, 1833, P. L. 476. 
 
 46, § 2. ^^Tliis rule has been applied to 
 
 ''lAct April 9, 1849, P. L. 527, admit parts of a statute: Adle v. 
 
 § 14. Sherwood, 3 Whart. 481 ; Grant v. 
 
 o^Act April 26, 1850, P. L. S8i, Coal Co., 80 Pa. 208; or of a map 
 
 § 24. or plot: De France v. Strickler, 4 
 
 ^'Donaldson v. Phillips, 18 Pa. Watts 327; Farr v. Swan, 2 Pa. 
 
 170; Penrose v. Wolf, 33 h- I. 298. 245. 
 
 IS 
 
22t) PENNSYLVANIA TRIAL EVIDENCE. 
 
 D. PRODUCTION OE DOCUMENTS. 
 
 § 253. Generally. Whenever vk^ritings in possession of one 
 party to a cause are material and necessary to enable the other 
 to prove his case, the latter may adopt one of several methods of 
 procuring them or getting their contents before the jury. If he 
 happens to be in possession of a copy, he may give his opponent 
 notice to produce the original on the trial of the case, and if the 
 latter fails to do so the copy may then be offered in lieu of the 
 original."* If he has no copy or other secondary evidence of 
 its contents he may enter a rule to produce under the Act of 
 1789'° or issue a subpoena duces tecum.''^ These methods con- 
 template the production of the writing only at the trial of the 
 case. If for any reason it is necessary to secure an inspection 
 of the document prior to trial, as for instance for the purpose of 
 enabling the party to prepare his pleading, this may be done by a 
 bill of discovery,''^ or a rule to show cause entered in accordance 
 with rules of cour't,^^ or statutory provisions which may exist 
 with regard to the particular subject matter.'* 
 
 While the court before which a matter is pending has author- 
 ity to make an order for inspection of a writing in possession of 
 
 «»See §§ 194, 195. ward 108. A petition which alleges 
 
 '"See §§ 255-261. documents are material to the pe- 
 
 71Q S 262 titioner's case may be amended so 
 
 ,„„ „ -,, o n o as to state that they are necessary 
 
 '^Cottrell V. Warren, 18 Pa. 487; +„ ., ; ^ ^ ■ ■ c ^. ,- 
 
 ^ , -.^ , „ -r, ; ' ' to a just decision of the question: 
 
 Dock V. Dock, 180 Pa. 14; Hap- t^ •„> w ^ . nr j j o 
 
 _ ' ^. ^' -, Keims Estate, I Woodward 108. 
 
 persett v. Eaton, 20 Dist. 501. the -rr ,, „ .... . , , ^. - 
 
 K , , , , If the petition is for production of 
 
 fact that the document sought to „ „ , ,. . ^i a ■ , 
 
 . , . , . , f , papers relating to the affairs of a 
 
 be examined is also evidence for the ,, „ j „t ^u ^ -n 
 
 , . , decedent, the court will presume 
 
 other party does not affect the right -^a ■ " ^ ■ 1 .• , , 
 
 . \. T^ 1 T^ , o affairs meant in relation to the 
 
 of examination: Dock v. Dock, 180 „ ., • j- .. t .^ -j- •, 
 
 matter m dispute, but if it appears 
 
 *■ ^' the parties had other dealings, the 
 
 '^See § 254. order will be modified so as to limit 
 
 '*The Act of June 14, 1836, P. L. its effect accordingly : Keim's Es- 
 
 63S> § 32, provides for the produc- tate, I Woodward 108. 
 
 tion of books before the court or The Act of February 24, 1867, P. 
 
 an auditor appointed to examine L. 153, provides for the production 
 
 into matters relating to the execu- of books in proceedings between cer- 
 
 tion of a trust. The practice under tain corporations and their work- 
 
 this act is similar to that under the men, and the Act of May 17, 1883, 
 
 Act of 1798 (§§ 255-261 below) ex- P. L. 32, authorizes councils of 
 
 cepting that the remedy for non- cities of the first class to compel 
 
 compliance with the order is by at- the production of documents ma- ' 
 
 tachment : Keim's Estate, i Wood- terial to any inquiry before them. 
 
DOCUMENTARY JiVIDENCB. 22/ 
 
 the Other party, this power will seldom be exercised, unless there 
 are special circumstances requiring it,'^ 
 
 The court may order the production of books of an insolvent 
 corporation on demand of the receiver, but before asking for 
 attachment for failure to obey the order, the receiver should ap- 
 ply for a rule to show cause why the books should not be pro- 
 duced and give the person in possession a reasonable time to an- 
 swer.'" A rule will be granted on an assignee for the benefit of 
 creditors to compel him to produce books and papers, of the as- 
 signor for the inspection of creditors.'''' A petition for an order 
 on a partner to produce papers belonging" to the partnership must 
 describe the papers with reasonable certainty before an order 
 will issue.'* 
 
 § 254. Rule to Produce — Production Prior to Trial in Aid of 
 Pleadings. It sometimes happens that a defendant has in his 
 possession papers material to the case, an inspection of which 
 is necessary to enable plaintiff to prepare his declaration. In 
 such case, if the defendant refuses to permit an inspection on re- 
 quest, the court will grant a rule on him to produce it in court 
 for tha't purpose or furnish plaintiff a copy of it.'* And where, 
 in order to secure necessary information to prepare an affidavit 
 of defense, the defendant requires an inspection of books and 
 papers in possession of the plaintiff, and defendant shows that 
 he made demand for inspection and was refused, a rule for 
 judgment for want of an affidavit of defense will be indefinitely 
 suspended until opportunity for examination is given.*" But in 
 such case the defendant should allege his inability to make an affi- 
 davit of defense without inspection of the document and ask for 
 a suspension of the rule for judgment until an opportunity for 
 such inspection has been afforded him by the plaintiff. A mere 
 allegation that plaintiff refused permission to examine certain 
 books for the purpose of ascertaining the merits of plaintiff's 
 claim is insufficient to prevent judgment.*^ 
 
 If it is desired to question the correctness of copies of book 
 
 ''sDock V. Dock, i8o Pa. 14; Gor- Piso v. Ins. Co., 12 Dist. Si : Penna. 
 
 don's Estate, II L,ack. 9. See § 254. Co. v. Railroad, 20 Phila. 332; 
 
 '^Leslie V. Railway, 22 C. C. 300. Simmons v. Hoffman, 6 Dist. 218. 
 
 "Ingraham v. Coxa, i Ash. 38. ^^Lord v. Ocean Bank, 20 Pa. 384 ; 
 
 '^Rushton V. Harrington, i W. N. Wanner v. Emmanuel Church, 174 
 
 C. 78. Pa. 466. 
 
 '^Murphy V. Morris, 2 Miles 60; si Wanner v, Emmanuel Church. 
 
 Boyce v. Super, 35 W. N. C. 339; 174 Pa. 466. 
 
228 PENNSYLVANIA TRIAL EVIDENCE. 
 
 accounts or instruments sued on, a suggestion in the affidavit of 
 defense is insufficient. The proper practice is to take a rule on 
 the plaintiff to produce the original in court for inspection. '- 
 Such rule should be supported by an affidavit that the defendant 
 is informed or has reason to believe the copy is not a true one.^' 
 If the plaintiff fails to produce in obedience to the rule, judgment 
 for an insufficient affidavit of defense will be refused.** When 
 the defendant wishes 'to deny execution of the instrument he 
 should demand inspection of the original and then deny it was 
 signed by him.*" 
 
 A court rule requiring the production of a paper on which the 
 action is founded or which is needed by the other party, does not 
 apply to a document which is publicly recorded and capable of 
 being proved by certified copy.*" 
 
 § 255. Rule to Produce — Production at Trial Under Act of 
 1798. The Act of February 27, 1798, 3 Sm. L. 303, authorizes 
 the court to require either party at the instance of the other to 
 produce books or writings in their possession containing evidence 
 pertinent to the case.*' The act applies only to parties, and 
 therefore if the document desired is in possession of a stranger 
 no order can be made under it but resort must be had to a sub- 
 poena duces tecum.** 
 
 "^^Kelly V. Livingston, i W. N. C. them, to produce books or writings 
 gS ; Richardson v. Snyder, 6 W. in their possession or power, which 
 N. C. 414 ; Warnecke v. Sherman, contain evidence pertinent to the 
 22 W. N. C. 225 ; Harrar v. Croney, issue ; and if either party shall fail 
 2 Dist. 375; Gallagher v. Stock, 4 to comply with such order, and to 
 Kulp 269. produce such books or writings, 
 s^Burton v. McCully, g W. N. C. or to satisfy the said court why the 
 206; Duffy V. Boyer, 8 Del. 43. same is not in the party's power 
 8*Wilson V. Kahn, i W. N. C. 444. so to do, it shall be lawful for the 
 s^Allen V, Germantown Bank, 10 said courts, if the party so refus- 
 W. N. C. 188; Graham v. Hull, 8 ing shall be a plaintiff, to give judg- 
 C. C. 202. ment for the defendant as in cases 
 *8Walls V. Walls, 170 Pa. 48. of non-suit, and if a defendant, to 
 s'The act provides as follows: give judgment against him or her 
 "The Supreme Court and several by default, as far as relates to such 
 courts of common pleas in the state part of the plaintiff or plaintiffs' 
 shall have power in any action de- demand, or the defendant or de- 
 pending before them, on motion, fendants' defense, to which the 
 and on good and sufficient cause books or papers of the party is ai- 
 shown, by affidavit or affirmation, leged to apply." 
 and due notice thereof being given, ''sRose v. King, S S. & R. 241. 
 to require the parties or either of See § 262. 
 
documb;ntary uvidknce. 229 
 
 The act in terms refers to "any action'' but in practice it has 
 been held not to apply to actions of tort,*" or to proceedings of 
 a quasi criminal nature in which a party its subject to a penalty 
 or forfeiture, since an order to produce in such case would com- 
 pel a person to give evidence against himself.^" But in criminal 
 proceedings against an officer of a corporation based on illegal 
 acts done by him in his office, the production of the corporate 
 books will be ordered since they are not the property of the de- 
 fendant and ordering their production is not compelling him to 
 testify against himself. ^^ 
 
 And order for production is within the discretion of the lower 
 court and the appellate court will reverse only in clear cases of 
 abuse of discretion."^ 
 
 § 256. Affidavit or Petition. A proceeding under the Act of 
 1798 must be by pe'tition and affidavit setting forth every fact 
 necessary- to authorize the court to act. It should describe the 
 papers with reasonable certainty,"' and aver that they contain 
 evidence pertinent and material to the issue, and that they are 
 believed to be in the possession or under the control of the oppo- 
 site party."* But the petition need not state what part of the 
 books or papers is thought to be relevant, nor specify the part of 
 the claim to which they apply, "^ nor is it necessary that it should 
 positively appear that the papers exist and are in the hands of 
 the other parly. It is sufficient if reasonable ground for belief 
 in such possession be shown."* 
 
 § 257. Answer. The party against whom a rule to produce 
 is taken may file an answer setting forth any reason he may have 
 for not producing the documents called for. It is sufficient if he 
 avers their non-existence"^ or that they have been lost."* But a 
 
 ^'Morgan v. Watson, 2 Whart them and gather evidence : Amer- 
 
 10; Rogers v. Dun, 8 Dist. 6i6. ican Car Co. v. Water Co., 221 Pa. 
 
 ""Logan V. Railroad, 132 Pa. 403; 529. 
 
 Boyle V. Smithman, 146 Pa. 255. ^*WilIs v. Kane, 2 Grant 47; 
 
 '^McElree v. Darlington, 187 Pa. Rose v. King, s b. & R. 241 ; Dor- 
 
 593. ris V. Coal Co., 21S Pa. 638. 
 
 "^Cowles V. Cowles, 2 P. & W. ssTonti v. Surety Co., 2 Brewst, 
 
 139. Prac, § 2450; Wills v. Kane, 2 
 
 s'Cowles V. Cowles, 2 P. & W. Grant 47. 
 
 139; Wills V. Kane, 2 Grant 47; "^Wright v. Crane, 13 S. & R. 
 
 Philadelphia Co. v. Park, 138 Pa. 447; Cowles v. Cowles, 2 P. & W. 
 
 346. A party is not entitled to have 139. 
 
 a mass of books and papers pro- "TCottrell v. Warren, 18 Pa. 487. 
 
 duced in order that he may search ^*Gilpin v. Howell, 5 Pa. 41. 
 
230 PENNSYLVANIA TRIAI, EVIDENCK. 
 
 mere statement that they are not in his possession and that it is 
 not in his power to produce them is insufficient. He must state 
 that they had never been in his possession or if once in, how and 
 why they went out of his possession and the reason why it is 
 not within his power to produce them,"" otherwise it would be 
 possible to avoid producing by giving them to another for the 
 very purpose of putting it out of his power to produce.^"" A 
 statement that "all papers" were given to the opposite party 
 without mentioning the particular paper in question,^ or that an 
 unsuccessful search was made on the morning of the trial when 
 an order to produce had been made nearly a year before,^ is 
 insufficient. 
 
 An answer that the books called for are not entitled to credit' 
 or that they are in another city in constant use and so numer- 
 ous that their production would cause great inconvenience and 
 expense is insufficient* even though the party calling for them is 
 afforded every facility for examination at the place where they 
 are located.^ But if the petitioner is willing to accept such ofifer 
 to examine the books elsewhere, the rule will be made absolute 
 for his protection." It is not a good answer by an administrator 
 that he is acting under ancilliary letters and that the foreign ad- 
 ministrator has possession of the books. For all purposes he 
 represents the deceased and is liable to produce the books unless 
 he shows they are wrongfully withheld from him.' An answer 
 to a rule to produce the charter of an insurance company, which 
 merely avers the charter was a matter of record and not within 
 the party's possession or control is insufficient of it fails to state 
 the act by which the company exists or does business.' 
 
 The party against whom the rule is taken may rely in his an- 
 swer on defects in the petition which defeat any right which the 
 other might have had to require the production of the papers, but 
 
 »»Wright V. Crane, 13 S. & R. ^Thompson v. Taylor, 9 W. N. C. 
 
 447; Cowles v. Cowles, 2 P. & W. 169. 
 
 139; Leonard v. Sharpe, I W. N. „„ , „ , ,,, ,, „ 
 
 ., , ID- . r J T r^ "Beeber v. Parker, 17 W. N. C. 
 
 C. 34S; Bickford v. Ice Co., 13 > / ■ 
 
 Phila. d-j. ^'^■ 
 
 loowright V. Crane, 13 S. & R, '''^''=*°'' ^- Stafford, 16 W. N. C. 
 
 447. 5-'7. 
 
 ilvong V. Miller, 24 Lane. 353. 'Elliott v. Ruddach, i T. & H. 
 
 2Tuttle V. Loan Co., 6 Whart. Prac., § 654. 
 
 216. ^Exchange Ins. Co. v. Micliener, 
 
 -Wills V. Kane, 2 Grant 47. 5 W. N. C. 36. 
 
DOCUMENTARY EVIDBNCU. 23 1 
 
 such defects must be specifically set forth.' An answer is suffi- 
 cient which alleges that the defendant is ready and willing to 
 produce any book desired but that the books are described in 
 such general terms and the defendant's books are so numerous 
 that it is impossible to determine which were meant.^° 
 
 If the answer is not sufficiently specific in its terms, the court 
 may allow a supplemental answer to be filed/^ 
 
 § 258. Non-production — Effect Of. Where a party fails to 
 produce books or papers called for or to show sufficient excuse 
 for non-production, a non-suit will be granted or judgment en- 
 Hered by default as the case may be, so far as relates to that 
 part of the case to which the papers apply,^^ unless there is 
 ample evidence to sustain a recovery aside from the count in 
 support of which the production is asked. ^^ It is not necessary 
 that prior notice be given of an intention to move for judgment 
 by default in event of non-production.^* 
 
 Judgment entered by default does not liquidate the damages. 
 This must be done on the trial'^^ or by writ of inquiry^" unless it 
 is merely a matter of arithmetical calculation, in which case the 
 prothonotary may assess damages as in other cases. '^^ 
 
 Refusal to produce a document cannot be made the basis of 
 adverse comment or of a presumption against a party if produc- 
 tion would have a tendency to incriminate him.^^ If the docu- 
 ment is not produced and the party calling for it is permitted to 
 offer a copy in evidence, thus securing its full benefit, failure to 
 produce is rendered harmless and would seem to be a waiver of 
 objection to non-production. ^° 
 
 § 259. Notice of Rule. A rule to produce should be taken 
 out a sufficient length of time before trial to give ample time for 
 argument of the rule prior thereto.^" If sufficient time is not al- 
 lowed, the order will not be made.^^ The notice should describe 
 
 "Wills V. Kane, 2 Grant 47- i^Cowles v. Cowles, 2 P. & W. 
 
 loPhiladelphia Co. v. Park Bros., 139. 
 138 Pa. 346- isWright v. Crane, 13 S. & R. 
 
 "Bickford v. Ice Co., 13 Phila. 447; Tuttle v. Loan Co., 6 Whart. 
 
 67. 216. 
 
 i^Act of 1798: Wright v. Crane, I'Wills v. Kane, 2 Grant 47. 
 
 13 S. & R. 447; Cowles v. Cowles, i^Boyle v. Smithman, 146 Pa. 
 
 2 P. & W. 139 ; McNair v. Wilkins, 255. 
 
 3 Whart. SSI. i^Gilpin v. Howell, S Pa. 41. 
 "Wills V. Kane, 2 Grant 47; ^"Rose v. King, S S. & R. 241. 
 
 Foster v. Sandeman, S Phila. 133. ^^Fairhaven Bank v. Power, 2 
 
 "Wills V. Kane, 2 Grant 47- W. N. C. 27s. 
 
232 PENNSYIvVAXTA TRIAL EVIDENCE. 
 
 the document with reasonable certainty," and should be directed 
 to one who is a party on the record. Directing it to his agent is 
 not sufficient.^^ But an executor or administrator is a party within 
 the rule,-* even though he is merely ancilliary to a foreign ad- 
 ministrator.^^ 
 
 § 260. Practice. The party against whom the order is sought 
 to be obtained must either produce the books or writings or satisfy 
 the court that he is unable to do so. If he intends to resist pro- 
 duction for any reason he should raise the question by answer 
 supported by proof on the return of the rule to produce.^" Ques- 
 tions of relevancy or the right to compel production should be 
 raised at this time, so that they can be considered in determining 
 whether the order should be made.^'' If an answer denying the 
 affidavit is not filed, the averments therein are sufficient without 
 further proof as a basis for making the rule absolute.-* Where 
 the answer sufficiently denies custody or control of the books or 
 papers, the rule will be discharged unless the petitioner then 
 shows by evidence that is clear and convincing that the contrary 
 is true.^" 
 
 If the rule is made absolute, the party against whom it was 
 taken must produce the books at the trial or show why it is not 
 in his power to do so,'"' the only question at that time being 
 whether the testimony given to account for non-production is satis- 
 factory to the court.'^ An excuse for non-productiort presented 
 after trial and on a subsequent motion before the court in banc 
 is too late.'^ In making absolute a petition for an order to pro- 
 
 22Rose V. King, 5 S. & R. 241. contents of the documents made at 
 
 2sRose V. King, 5 S. & R. 241. the trial: McNair v. Wilkins, 3 
 
 2*Kuhn V. Elmaker, i Clark 318. Whart. 551. It is too late to ob- 
 
 25Elliott V. Ruddach, i T. & H. ject at the trial that the affidavit 
 
 Pi"-, § 6S4- <loes not state to what part of the 
 
 -"Tuttle V. Loan Co., 6 Whart. plaintiff's demand the desired docu- 
 
 216; Langcliff Coal Co. V. Coal Co., raents were applicable: Wills v. 
 
 10 Dist. 645. Kane, 2 Grant 47. 
 
 2'Tuttle V. Loan Co., 6 Whart. ^sgkinner v. Perot, i Ash. 57. 
 
 216; Gilpin V. Howell, S Pa. S4i. ^n^egargee v. Ins. Co., 15 Phila. 
 
 A statement by counsel and pro- 226 : Culver v. Phaeton Co., 13 W. 
 
 duction of an affidavit at the trial N. C. 238; Dexter v. Walker, 7 C. 
 
 of the case giving an excuse for C. 274. 
 
 failure to produce books, is not '"'Gilpin v. Howell, S Pa. 541. 
 
 sufficient substitute for an answer ■"'iTuttle v. Loan Co., 6 Whart. 
 
 to the rule, nor is failure to an- 216. 
 
 swer cured by an admission of the ^^^Q^air v. Wilkins, 3 Whart. 
 
 S5I. 
 
DOCUMENTARY EVIDENCE. 233 
 
 duce a bond accompanying a moi^tgage and a minute book of a 
 corporation, the order should not be enlarged to include all 
 "papers, bonds and books desired by counsel.""'^ 
 
 A party who puts in evidetice a book or paper which has been 
 produced in response to a rule, admits it is what it purports 
 to be.^"* 
 
 § 261. Time and Place of Production. While the Act of 1798 
 does not expressly limit the order to produce, it has been the 
 practice to confine its operation to production on the trial of 
 the case and riot prior to trial, unless the parties have a common 
 interest in the document called for,'' or unless the evidence is 
 needed on hearing before the court, as under a rule to open 
 judgment. '•' The act does not require production before an ex- 
 aminer,''' or a notary or commissioner,^* or an arbitrator, or 
 referee.^" But in a case where depositions of a nominal plaintiff 
 were being taken, the court ordered the production of the books 
 necessary to cross examine him and stayed proceedings until the 
 order was complied with.*" 
 
 Documents produced in obedience to an order are in the cus- 
 tody of the court, who may make such order as to their disposi- 
 tion or allow such access to them as it may deem proper. ^"^ 
 
 ^sSchmitt's Appeal, 231 Pa. 473. right to compel their production in 
 
 3*MoeIling v. Coal Co., 8 W. N. advance of trial: Rice v. West, 7 
 
 C. 194. See § ig6 for leflfect of pro- Dist. 764. 
 
 duction of documents in response aoHildreth v. Davis, 6 Kulp 286. 
 
 to notice to produce. .".TLevick v. Diffely, 13 W. N. C. 
 
 B^Arrott V. Pratt. 2 Whart. 566; ^^. p,„„3y,,„„i, Co. v. Railroad, 
 
 Raub V. Van Horn, 133 Pa. 573; r C C i;!? 
 
 Hildreth v. Davis, 6 Kulp 286. '' „ • ^ • „r xr 
 
 „ . 1 .1. J ^- ^sprestien v. Sarmiento, 4 W. N. 
 
 Even m cases where the document is _„ ^. ,,„.. „^ 
 
 , ,, r .u J C. 89 ; Sn-npler s Petition, 25 C. C. 
 
 necessary to the case of the adverse ^ t , , t^ -i 1 .^ t^- . 
 
 party, the better practice would '' = Ladenberg v. Railroad, 6 Dist. 
 
 seem to require production by bill 
 
 of discovery or by rule to produce : ^"Gardiner v. Lincoln, 5 Phila. 24. 
 Prestien v. Sarmiento, 4 W. N. C. "Borton v. Streeper, 2 Miles 41- 
 89; Simpler's Pet., 25 C. C. 81. See also § 254, note 79- 
 See also §§ 253, 254. Papers ma- ^^Beals v. See, 10 Pa. 56. The 
 tcrial to the title of the party pos- fact that books were permitted to 
 sessing them without which he can- be taken to the office of counsel 
 not maintain his claim and which of the party calling for their pro- 
 he must produce at the trial, are duction for the purpose of being- 
 papers in which the opposite side inspected is not ground for re- 
 has no interest and therefore no versal. Id. 
 
234 PENNSYLVANIA TRIAL EVIDENCE. 
 
 § 262. Subpoena Duces Tecum. The production of books or 
 papers in possession of the adverse party or a third person may 
 be compelled by a subpana duces tecum.*^ This subpoena issues 
 as of course and should describe the documents desired with the 
 same reasonable certainty as is required in the petition for an 
 order to produce under the Act of 1798, so that the party sub- 
 poenaed may be able to determine what is wanted. He cannot 
 be compelled to produce a mass of books and papers in order 
 that the other party may search .through them for the purpose of 
 gathering evidence.*' 
 
 As a general rule, production under a subpcena duces tecum 
 may be compelled only at the trial of the case/* or before an 
 examiner in equity proceedings in proper cases/^ unless the party 
 calling for production has also an interest or property in the 
 documents demanded, when production may be compelled in ad- 
 vance of the trial.*" And if the case is to be heard before the 
 court alone, as on a rule to open judgment, and testimony is taken 
 before a commissioner, a subpcena duces tecum may issue to 
 compel the production of papers or books before him, but in such 
 case there should be a preliminary rule entered and an order 
 of court founded upon an affidavit setting forth the necessity of 
 the production and notice given to the other side." 
 
 A subpoena duces tecum may be directed to an officer having 
 actual custody of the books or papers of a corporation which is 
 a party to the proceeding.** But it will not issue to compel a 
 public officer to produce records in his office, of which certified 
 
 *2But a person may not have 2 W. N. C. 261 ; Prestien v. Sar- 
 
 papers taken from his custody by miento, 4 W. N. C. 89; Simpler's 
 
 a subpoena duces tecum, nor may Petition, 10 Dist. 141 ; Graham v. 
 
 one who is in temporary possession Cummings, II Dist. 68. 
 
 of papers belonging to another be ^''Philadelphia v. Railway, 18 
 
 compelled to produce them : Mon- Phila. 424 ; Burkholder v. Hertzler, 
 
 roe V. Building Ass'n, 16 Phila. 4 Del. 400. 
 
 108; Simpler's Petition, 10 Dist. *'!Sollers v. Dunbar, i W. N. C. 
 
 141. ?I3. See also § 261, note 35. 
 
 *2See § 256. A general order to *^Trimble v. Mulhollen, 8 Dist. 
 
 produce a list of persons and firms 441 ; Simpler's Petition, 10 Dist. 
 
 with whom defendant had contracts 141. 
 
 in a particular year will not be en- *8Lorenz v. Lehigh Nav. Co., 5 
 
 forced: American Car Co. v. Water Leg. Gaz. 174; Bliss v. Mulholland, 
 
 Co., 221 Pa. 529. 10 Dist. 201; Simpler's Petition, 10 
 
 **Struthers v. Evening Bulletin, Dist. 141. 
 
DOCUMENTARY IJVIDItNCE. 235 
 
 copies would be competent evidence,''^ nor to compel the pro- 
 duction of a copy of a printed newspaper containing certain ad- 
 vertisements, where other copies could be obtained by the party 
 by purchase or otherwise.^" 
 
 If a party has not been called upon to produce books on the 
 trial, it is error for the court to comment unfavorably on their 
 non-production,'^ nor will counsel be permitted to comment ad- 
 versely on failure to produce where production might involve a 
 penalty or forfeiture.'- 
 
 *fDelaney v. Regulators, i Yeates "iWyoming, Coal Co. v. Price, 81 
 403. Pa. 156. 
 
 '"Shippen v. Wells, 2 Yeates 260. s^Boyle v. Smithman, 146 Pa. 25s ; 
 
 Logan V. Railroad, 132 Pa. 403. 
 
236 PlvNNSVLVAXlA TRIAL ICVinEN'Ot:. 
 
 CHAPTER IX. 
 
 EXHIBITS. 
 
 §263. 
 
 Animals. 
 
 264. 
 
 Diagrams — Referring to objects in court room, 
 
 26s. 
 
 Experiments. 
 
 266. 
 
 Models. 
 
 
 Physical Examination. 
 
 267. 
 
 Objects or places. 
 
 268. 
 
 Persons. 
 
 269. 
 
 View of premises by jury. 
 
 § 263. Animals. Inspection of an animal should not be al- 
 lowed if there is no reason to believe the defect or injury com- 
 plained of would be thus made to appear Therefore, in an ac- 
 tion for breach of warranty of a horse, it is not error for the 
 trial judge to refuse to allow an exhibition of the horse in the 
 presence of the jury if the unsoundness is such that it appears 
 only under special conditions and the conditions and the season 
 were entirely different from those under which the unsoundness 
 was discovered, and under which it would be most likely to ap- 
 pear.^ 
 
 § 264. Diagrams — Referring to Objects in Court Room. A 
 witness may use maps or diagrams to illustrate his testimony ,- 
 but he should not be permitted to give distances by referring to 
 the relative position of objects in the court room without any- 
 thing going on the record by which the appellate court could 
 review the case.^ 
 
 A handwriting expert may use diagrams to illustrate his theory 
 as to the genuineness of a disputed signature and counsel should 
 be permitted to use them to illustrate their arguments to the jury, 
 but such diagrams are not evidence which can be submitted to 
 the jury.* 
 
 § 265. Experiments. Experiments which illustrate material 
 issues may be performed for the benefit of the jury. Thus a wit- 
 ness in a forgery case may illustrate the effect of an ink eradi- 
 cator where it is shown the defendant had possession of such an 
 
 iBlake v. Hunsberger, 46 Super. «Kupp \, Rummel, 199 Pa. 90; 
 
 i2. Butcher v. Philadelphia, 202 Pa. I ; 
 
 ^See § 223. Rachmel v. Clark, 205 Pa. 314. 
 
 *Hagan v. Carr, 198 Pa. 606. 
 
EXHIBITS. 237 
 
 article,' and the court may order the defendant to permit plain- 
 tiff to cut a portion from a boiler which had exploded, for the 
 purpose of being tested by a person appointed by the court," or 
 may appoint a civil engineer to make a survey for the purpose of 
 the case/ Counsel may illustrate well known physical facts or 
 principles in support of his argument to the jury, even though 
 the illustration had not been made as part of the evidence.* 
 
 § 266. Models. A model of an object is frequently helpful 
 to supplement and illustrate the verbal description of witnesses. 
 Thus in an action for injuries caused by the fall of a scaffold, a 
 model of the scaffold, though not put in evidence or treated as 
 such, may be used in connection with the description of a witness 
 as to the mode of building it.^ A model of a house where a crime 
 was committed may also be used in a criminal case.^° 
 
 § 267. Physical Examination — Objects or Places. As a gen- 
 eral rule, one who has control of the subject matter of a con- 
 troversy or place of an occurrence and refuses, without just 
 cause, to permit the other party to examine it, subjects himself 
 to adverse criticism and his action may properly be brought to 
 the attention of the jury who may infer therefrom that there was 
 something which he wished to conceal." And when a defendant 
 having control of the place where an accident occurred refuses 
 to permit witnesses for plaintiff to inspect or make a survey of 
 it, the court may, on petition filed, make an order to that efifect.'^^ 
 An order will also be made on defendant to permit plaintiff to 
 cut a piece from a boiler which exploded, for the purpose of 
 having it tested,'^ and the court may appoint a civil engineer to 
 make a survey of defendant's mine whefe the action is for dam- 
 ages for removal of surface support.^* 
 
 In an action for alleged infringement of a patented article, the 
 court may order the production of the article for inspection at 
 the proper time. But an order to produce and operate the ma- 
 chine before the issue is joined has been said to be an improvi- 
 dent use of equity powers.^' 
 
 ''Com, V. Wilson, 44 Super. 183. "Bryant v. Stilwell, 24 Pa. 314. 
 
 "Baran v. Reading Iron Co., 26 C. See § Si- 
 C. 14. ^^Richards v. Railroad, 21 Dist. 
 
 'Heath v. Walton, 9 Dist. 206. 1122. 
 
 ^Hoffman v. Railroad, 143 Pa. ^^Baran v. Iron Co., 26 C. C. 14. 
 
 503. ^*Heath v. Walton, 9 Dist. 206. 
 
 'Geist V. Rapp, 206 Pa. 411. ''Com. v. Perkins, 124 Pa. 36. 
 
 loCom. V. Fry, 198 Pa. 379. 
 
238 PENNSYLVANIA TRIAL EVIDENCE. 
 
 § 268. Physical Examination — Persons, A plaintiff may ex- 
 hibit a bodily injury to the jury/° and the court may, in its dis- 
 cretion, make an order on him to compel him to submit to a 
 personal examination by physicians acting on behalf of a defend- 
 ant who is sought to be held responsible for such injuries. ^^ 
 Such examination may be ordered a reasonable time before triaF* 
 providing request for such order be made. In a murder case an 
 examination by experts for the defense, of the body and clothes 
 of the murdered person will not be permitted before trial unless 
 it is made to appear that such course is necessary to bring out 
 the facts before the jury.^" The court will not coriipel the at- 
 tendance of a witness for the purpose of exhibiting him to the 
 jury,^" and, where the defendant's physician has been permitted 
 to examine the plaintiff, the latter will not be compelled to offer 
 himself to the jury for inspection.^"^ 
 
 When an order for examination of the plaintiff is made the 
 proceedings will be stayed until he has complied therewith. ^^ The 
 plaintiff may be ordered to file a bill of particulars so that the 
 necessity of an examination may be determined.^^ The general 
 practice in actions for damages for personal injuries, is to volun- 
 tarily permit an examination to be made by physicians acting on 
 behalf of the defendant, in lieu of filing a bill of particulars.^* 
 
 The jury may be permitted to determine from the personal 
 appearance of a party, how long he will likely live and whether 
 his injuries are permanent, ^° and may also be permitted to judge 
 for themselves whether or not a person is a minor, in absence 
 of direct proof of his age.-* But this will not be permitted on 
 the trial of an indictment for rape where the defendant's age is 
 material and the commonwealth has offered no evidence in that 
 respect.^' 
 
 lepowler v. Sargeant, I Grant ^oPettit %. Brewer, 8 W. N. C. 
 
 355- 253. 
 
 iTClark V. Northumberland Boro., ^'Benson v. Railway, 228 Pa. 290. 
 
 23 C. C. SSS ; Lawrence v. Keim, 45 "Lawrence v. Keitn, 45 L. L 434; 
 
 L. L 434; Harvey v. Traction Co., ""= ''■ Railroad, 7 C. C. 565. 
 
 26 W. N. C. 231; Hess V. Rail- "^Lawrence v. Keim, 45 L. I. 434; 
 
 road, 7 C. C. S65; Dimenstein v. ^^'"^y "■ Traction Co., 26 W. N. 
 
 Reichelson, 34 W. N. C. 295. See ^- ^^^• 
 
 contra, Kinsman v. Harris, 6 North- "^ee Rogers v. Transit Co., 22 
 
 ampton 230. ^'^'- ■+'■ 
 
 -^Benson v. Railway, 228 Pa. 290. 
 "Hacker v. Traction Co., 5 Dau- ^eSnodgrass v. Bradley, 2 Grant 
 
 phin 62. ^2 
 
 i»Com. V. Haley, 2 Dist. 533. ^rCom. v. Walker, 33 Super. 167. 
 
EXHIBITS. 239 
 
 Family resemblance is a circumstance, though a very weak one, 
 which may be considered by the jury when there is a question of 
 identity or of parentage.^* 
 
 § 269. View of Premises by Jury. The trial court may in its 
 discretions permit the jury to view the place where an injury oc- 
 curred or other event took place.^° It is not necessary in a crimi- 
 nal case, even in a trial for murder, that the defendant or his coun- 
 sel should accompany the jury, no constitutional right of the 
 prisoner being impaired by such action.^" In proceedings before 
 a jury of view to assess damages to change the grade of a street, 
 it is also within the discretion of the trial court to allow a view 
 of the premises. ^^ The Act of May 21, 1895, P. L. 89, making 
 such view a matter of right, applies only to actions brought, 
 and not to proceedings on appeals from an award of viewers ap- 
 pointed by the court. '^ 
 
 The object of a view is to better enable the jury to understand 
 the testimony, and it may be of the highest importance where the 
 evidence is conflicting. But the jury may not act wholly on the 
 knowledge thus acquired, but must consider the testimony of the 
 witnesses in connection with the facts as they appeared on the 
 view and base their decision upon the whole case thus pre- 
 sented. '^ 
 
 2sSheehan's Estate, 139 Pa. 168. i; Ham v. Canal Co., 155 .Pa 
 
 In a fornication and bastary case, 548; Roberts v. Philadelphia, 239 
 
 the jury may take into considera- Pa. 339. When the jury have view- 
 
 tion any resemblance between the ed the scene of an accident it is 
 
 child and the defendant : Com. v. not improper for the court to 
 
 Pearl, 33 Super. 97. charge that they have the aid of 
 
 28Com. V. Miller, 139 Pa. ^T, their own observations "to supple- 
 
 Mintzer v. Hogg, 192 Pa. \y/. ment the testimony of witnesses": 
 
 '"Cora. V. Salyards, 158 Pa. 501 ; Ham v. Canal Co., 155 Pa. 548 ; or 
 
 Com. V. Van Horn, 188 Pa. 143. that "the statements of witnesses 
 
 siBond V. Philadelphia, 218 Pa. must be considered by you, yet you 
 
 475- are not bound to be controlled 
 
 32 Frazee v. Light Co., 20 Super. thereby if your own examination of 
 
 420; Bond V. Philadelphia, 218 Pa. the premises leads to a different 
 
 475- conclusion," if followed by the in- 
 
 33Hartman v. Railroad, 22 W. N. struction that the verdict must be 
 
 C, 84; Flower v. Railroad, 132 Pa. based on the testimony of witnesses 
 
 524; Hoffman v. Railroad, 143 Pa. and what the jury saw: Gorgas v. 
 
 503; Gorgas v. Railroad, 144 Pa. Railroad, 144 Pa. i. 
 
240 PENNSYLVANIA TRIAL EVIDENCH;. 
 
 CHAPTER X. 
 
 HEARSAY. I 
 
 § 270. General Principles. 
 
 271. Conspirators — Declarations of. 
 
 272. Continuance of conspiracy. 
 
 273. Preliminary proof. 
 
 274. Deceased persons — Declarations of. 
 
 275. Against interest. 
 
 276. Boundaries. 
 
 277. Course of business or professional duty. 
 
 278. Execution and contents of will. 
 
 279. Pedigree. 
 
 280. Public and general rights. 
 
 281. Dying declarations. 
 
 282. Belief as to impending death. 
 
 283. Proof. 
 
 284. Whole of declaration. 
 
 285. Ex parte affidavits. 
 
 286. Paternity of child — Declarations concerning. 
 
 287. Physical condition and feeling — Declarations as to. 
 
 288. Recitals in ancient documents. 
 
 289. Reputation. 
 
 290. Bawdy house. 
 
 291. Boundaries. 
 
 292. Insanity. 
 
 293. Pedigree — Legitimacy — Marriage. 
 Res gestae. 
 
 294. General principles. 
 
 295. Desertion — Cause of. 
 
 296. Homicide. 
 
 297. Motive, intent and purpose. 
 
 298. Negligence. 
 
 299. Payment. 
 
 300. Possession of realty. 
 300a. Rape. 
 
 301. Sale and transfer of property. 
 
 302. Self-serving declarations. 
 
 303. Letters — Statements contained in. 
 
 304. Marriage — Proof of acceptance of offer. 
 
 305. Memoranda and accounts. 
 
 306. Testimony given in former proceedings. 
 
 307. Absence or disability of witness. 
 
 308. Contradiction of witness. 
 
 309. Parties — Identity of. 
 
 310. Proceedings — Nature of. 
 Proof. 
 
HEARSAY. 
 
 241 
 
 311. Memorandum of testimony. 
 
 312. Recollection of person who heard testimony. 
 
 313. Stenographer's notes. 
 
 314. Subject matter — Identity of. 
 
 315. Whole of testimony. 
 
 § 270. General Principles, As a general rule oral or written 
 statements, made by a person not called as a witness and there- 
 fore without the sanction of an oath or opportunity for cross- 
 examination, are inadmissible.^ But this rule has many excep- 
 
 ^McCullough V. Montgomery, 7 
 S. & R. 17 ; Farmers' Bank v. 
 WhitehiU, 16 S. & R. 88. 
 
 The rule excluding written state- 
 ments may be illustrated by the fol- 
 lowing cases in which it has been 
 applied : Statement of age, height 
 and weight in a certificate of dis- 
 charge from the army: Com. v. 
 Crowley, 26 Super. 124 ; the fact 
 that the name of a person whose 
 age is in question was entered on 
 the assessor's list : Clark v. Church, 
 S W. & S. 266; a certificate of a 
 board of health based on the re- 
 port of an undertaker and on coffin 
 plate inscriptions : Dinan v. Su- 
 preme Council, 201 Pa. 363; cer- 
 tificate of the surveyor general as 
 to certain practice in the public 
 land office : Lowrey v. Gibson, 2 
 Yeates 81 ; memoranda of births 
 in a church registry kept for pur- 
 pose of recording bapstisms only: 
 Clark V. Trinity Church, 5 W. & S. 
 266; written agreements or letters 
 or statements between a third per- 
 son and a party to the suit : . PauU 
 V. Mackey, 3 Watts no; English v. 
 Hanna, 4 Watts 424; Grim v. Bon- 
 nell, 78 Pa. 152; Muskegan Curtin 
 Co. V. Mfg. Co., 13s Pa. 132; Floyd 
 V. Hotchkiss, 5 Super. 216; United 
 States I'el. Co. v. Wenger, 55 Pa. 
 262 ; receipts for payment of money 
 or for goods, signed by third per- 
 sons: Cutbush V. Gilbert, 4 S. & 
 R. 551 ; English v. Hanna, 4 Watts 
 16 
 
 424 ; Glaser v. Reno, 6 S. & R. 206 ; 
 Longenecker v. Hyde, 6 Bin. i ; 
 Redfield Mfg. Co. v. Dysart, 62 
 Pa. 62; Smalley v. Morris, 157 Pa. 
 349; telegram from a third person 
 claiming reward for horse in pos- 
 session of a party : Cummings v. 
 Gann, 52 Pa. 484; assessments of 
 taxes as evidence of value of land : 
 Hanover Water Co. v. Iron Co., 84 
 Pa. 279; Hennershotz v. Gallagher, 
 124 Pa. I ; Com. v. Tryon, 31 Super. 
 146; statements made in a will with 
 reference to ownership of land, 
 where such statements are not dec- 
 larations against interest : Pipher v. 
 Lodge, 16 S. & R. 214; statement 
 in a will that a debt was due testa- 
 tor, in an action by the executor to 
 recover such debt : Zimmerman v. 
 Zimmerman, 47 Pa. 378; averment 
 of amount of damages in a state- 
 ment of claim : Vivian v. Chal- 
 lenger. 45 Super, i ; averment of 
 date of a crime in the information : 
 Com. V. Craig, 19 Super. 81 ; charge 
 of court when offered in subsequent 
 proceedings as evidence of facts 
 therein stated: King v. Diehl, 9 S. 
 & R. 409; Butler v. Slam, 50 Pa. 
 4S6. 
 
 The following are illustrations of 
 the application of the rule to oral 
 declarations of third persons not 
 called to testify : Declarations of 
 surveyor made in absence of the 
 parties : Hubley v. White, 2 Yeates 
 133 ; see § 276 ; declarations of an 
 
242 
 
 PUNNSYI^VANIA TRIAL EVIDENCE. 
 
 tions, there being times when statements made by others are ma- 
 terial and original evidence and will be received as such, not- 
 withstanding they are declarations made without oath. Thus 
 the hearsay rule has no application where the question is whether 
 certain things were said or written by a third person and not 
 whether they are true. And if the question is whether a person 
 acted in good faith and with reasonable cause, the information on 
 which he acted is competent evidence even though it consists of 
 declarations made by third persons, and regardless of whether 
 such declarations were in fact true or false. The same rule ap- 
 plies in all cases where the fact that statements were made, and 
 not their truth or falsity, is the point in controversy.^ 
 
 If testimony on its face appears competent and not objection- 
 able as hearsay, the court will not presume it to be such, espe- 
 cially when cross-examination would have conclusively disclosed 
 the competency or incompetency of the evidence.^ 
 
 § 271. Conspirators, Declarations Of. It would be unjust and 
 
 executor who is not a party to the 
 proceedings, that there was no will : 
 Lightner v. Wike, 4 S. & R. 203; 
 declarations of an interpreter as to 
 what a party had said through such 
 interpreter : Plymouth Coal Co. v. 
 Kommiskey, 116 Pa. 365; declara- 
 tions of the former owner of land 
 as to its value: O'Brien v. Railway, 
 194 Pa. 236; or as to stopping of a 
 drain: Huddleston v. Boro., 11 1 
 Pa. no; declarations of a prior 
 lessor as to the terms of his oral 
 lease of the premises ; Arrott Mills 
 Co. V. Way Mfg. Co., 143 Pa. 435 ; 
 declarations of third persons for 
 whom defendant had installed heat- 
 ers, as to their dissatisfaction with 
 the work: Halberstadt v. Bannan, 
 149 Pa. SI ; declarations of in- 
 dorsers of a note, who are not 
 parties to the action thereon : Slay- 
 maker V. Gundacker, 10 S. & R. 
 75 ; declarations as to intentions of 
 prosecutors, made by one not a 
 party to the prosecution but who 
 merely testified as a witness for the 
 commonwealth : Com. v. Eberle, 3 
 
 S & R. 9; declarations of a wife 
 after being shot by her husband, 
 tending to show she believed him 
 insane : Sayres v. Com., 88 Pa. 291 ; 
 declarations of third person or ab- 
 sent witness to will, to the effect 
 that testatrix was mentally incom- 
 petent when she made the will : 
 Fox V. Evans, 3 Yeates 506; dec- 
 larations by a deceased witness of 
 his intention to serve certain papers, 
 though accompanied by proof that 
 he set off in the direction of the 
 residence of the person to be 
 served, where the question is 
 whether the papers were served : 
 Farmers' Bank v. Whitehill, 16 S. & 
 R. 88; testimony of an officer of 
 a company as to certain measure- 
 ments, where the knowledge of the 
 witness is based solely on reports 
 from subordinates : Holmes v. 
 Chartiers Oil Co., 138 Pa. 546; 
 depositions as to book entries by a 
 witness who did not make the en- 
 tries : Porter v. Lee, 16 Pa. 412. 
 
 ^Com. V. Storey, 49 Super. 282. 
 
 ^Ellis V. Gugenheim, 20 Pa. 287. 
 
HEARSAY. 243 
 
 a plain violation of the hearsay rule to permit one accused of a 
 wrongful act to be affected by statements made by another who 
 is a stranger to him. But if a person has conspired with one or 
 more other persons to do an unlawful act, each represents the 
 other with respect to the act to be accomplished and everything 
 said or done by any of them in pursuance of the common purpose 
 is admissible against all.* This rule applies to both civil and 
 criminal cases whenever a combination by two or more persons 
 to do a wrongful act is shown. In civil proceedings the question 
 most frequently arises where it is charged that property was con- 
 veyed or other acts done with intent to defraud creditors.^ 
 
 After the fact of conspiracy is once established, declarations 
 by one, to become admissible, need not have been made in the 
 presence of the other conspirators,^ but all acts done or declara- 
 tions made by each in pursuance of the unlawful purpose are 
 a part of the act itself and are admissible as part of the res 
 gestae thereof.^ 
 
 The question of accomplices differs from the question of con- 
 spiracy in that there may be accomplices without previous con- 
 spiracy, in which case the acts and declaration^ of one accomplice 
 are inadmissible against the others, though evidence as to their 
 identity and presence at the time the crime was committed may 
 be received.* 
 
 § 272. Conspirators, Declarations Of — Continuance of Con- 
 spiracy. Declarations and acts of conspirators, to be admissible 
 against each other, must have been made or done during the ex- 
 istence of the conspiracy or continuance of the common purpose 
 or in furtherance thereof.' If made before the conspiracy was 
 formed they are mere declarations of a stranger to the person 
 against whom they are offered," and if made after its completion 
 
 *Com. V. Eberle, 3 S. & R. 9; 'Com. v. Heine, 91 Pa. 145 ; Com. 
 
 Scott V. Baker, 37 Pa. 330; Hart- v. Zuern, 16 Super. 588; Com. v. 
 
 man v. Diller, 62 Pa. 37 ; Lowe v. Stambaugh, 22 Super. 386. 
 
 Dalrymple, 117 Pa. 564. ^Com. v. Kaiser. 184 Pa. 493. 
 
 ^Reitenbach v. Reitenbach, i "Confer v. McNeal, 74 Pa. 112; 
 Rawie 362; Hartman v. Diller, 62 Heine v. Com., 91 Pa. 145; Mar- 
 Pa. 37; Lowe v. Dalrymple, 117 shall v. Faddis, 199 Pa. 397; Com. 
 Pa. 564. See also §§ 14 to 19. v. Zuern, 16 Super. 588; Com. v. 
 
 sMcKee v. Gilchrist, 3 Watts 230 ; Stambaugh, 22 Super. 386 ; Green 
 
 Jackson v. Summerville, 13 Pa. 359; v. Kiefer, 36 Super. 587; Com. v. 
 
 Burns v. McCabe, 66 Pa. 356; 72 Donnelly, 40 Super, 116. 
 
 Pa. 309 i Com. V. Biddle, 200 Pa. lOThomas v. Maddan, 50 Pa. 261. 
 640. 
 
244 
 
 PENNSYLVANIA TRIAL EVIDENCIt. 
 
 though in relation thereto, they are mere narratives of past 
 events. ^^ But although one of alleged conspirators was not origi- 
 nally a party thereto, if he subsequently joins in the unlawful 
 enterprise and accepts its benefits he becomes a party to every 
 act which had previously been done by any of the others in pur- 
 suance thereof and is affected by their declarations.^^ 
 
 § 273. Conspirators, Declarations Of — Preliminary Proof. Be- 
 fore declarations of one of alleged conspirators are admissible 
 against the others, there must be proof, aside from the declara- 
 tions themselves, of the existence of a conspiracy. ^^ Such proof 
 need not be conclusive, but slight evidence of a common purpose 
 and design is sufficient. A conspiracy may be inferentially es- 
 tablished by showing the relation, conduct, or circumstances of 
 the parties,^* so long as the evidence is enough to fairly raise a 
 question for the jury." In civil cases where it is alleged that 
 property was transferred or other acts done with intent to de- 
 fraud creditors, slight evidence of concert and collusion between 
 the parties is sufficient to warrant the admission of their acts and 
 declarations against each other.'* 
 
 "Declarations made by the as- 
 signee of goods nearly a month 
 after an assignment alleged to have 
 been in fraud of creditors, to the 
 cfifect that he had given no consid- 
 eration therefor, are inadmissible 
 against the assignor as having been 
 made after the conspiracy was end- 
 ed : Heine v. Com., 91 Pa. 145. And 
 in an action of trespass for con- 
 spiracy to assault plaintiff, decla- 
 rations by one of the defendants at 
 a hearing three days after the as- 
 sault was committed are inadmis- 
 sible against the others : Wagner v. 
 Aulenbach, 170 Pa. 495. 
 
 i-FIinchman v. Richie, Brightly 
 N. P. 143; Peterson v. Speer, 29 
 Pa. 478. 
 
 i^'Com. v. Zuern, 16 Super. 588; 
 Marshall v. Faddis, 199 Pa. 397 ; 
 Green v. Kiefer, 36 Super. 587; 
 Com. v. Donnelly, 40 Super. 116. 
 See §§ 16 and 19. 
 
 "Rogers v. Hall, 4 Watts 359; 
 Gibbs V. Neely, 7 Watts 305 ; Mc- 
 
 Dowell V. Rissell, 37 Pa. 164; Con- 
 fer v. McNeal, 74 Pa. 112; Mc- 
 Dowell V. Rissell, 2>7 Pa. 164; 
 Lowe V. Dalrymple, 117 Pa. 564; 
 Com. V. Zuern, 16 Super. 588. 
 
 '^Marshall v. Faddis, 199 Pa. 
 397. The question is properly left 
 '.o the jury where the various items 
 of proof of conspiracy when taken 
 together are sufficient to warrant a 
 finding of conspiracy, although such 
 items taken separately would fall 
 far short of being sufficient: Kin- 
 7.er V. Mitchell, 8 Pa. 64; Weil 
 Brothers v. Cohn, 4 Super. 443. 
 Division of profits of a fraudulent 
 transaction has been held sufficient : 
 Kimmell v. Greeting, 2 Grant 125. 
 But where the evidence merely 
 shows that defendant probably 
 overheard a conversation among 
 others without taking part therein 
 or consenting thereto, it should be 
 rejected: Com. v. Wilson^ 186 
 Pa. I. 
 
 "In the following cases the evi- 
 
HEARSAY. 
 
 245 
 
 If the court decides sufficient proof of a conspiracy has been 
 given to warrant the introduction of declarations of one against 
 the others, the evidence is received and the question whether or 
 not a conspiracy exists is then for the jury."^' 
 
 While the preliminary proof of conspiracy may not be supplied 
 by the declarations of the accused persons, yet the declarations of 
 one are admissible against himself,'* and the connection of each 
 with the transaction may thus be successively proved."^" But 
 such declarations offered generally as to all the defendants are 
 
 dence of collusion was held suffi- 
 cient to admit declarations of the 
 parties against each other : Where 
 a conveyance was made in absence 
 of the grantee and the grantor on 
 same night fled from creditors : 
 Rogers v. Hall, 4 Watts 359 ; where 
 a re-sale of realty in payment for 
 which judgment notes had been 
 given, was made with unusual 
 haste and before the notes were 
 entered of record : Lowe v. Dal- 
 ryraple, 117 Pa. 564; where judg- 
 ments were confessed to a third 
 person who entered them before 
 notes given for the purchase of 
 realty could be entered : Brown v. 
 Parkinson, 56 Pa. 336; where the 
 holder of a judgment after the 
 pioceeds were attached, appeared 
 by counsel and admitted nothing 
 was due under the judgment : Pal- 
 mer V. Gilmore, 148 Pa. 48; where 
 a bond gi\en to a relative was en- 
 tered in time to become a prior lien 
 over creditors who were about to 
 seize the debtor's property : Bredin 
 v. Bredin, 3 Pa. 81 ; where a stock 
 of goods was sold a few hours be- 
 fore execution in favor of a credi- 
 tor was placed in the hands of the 
 sheriff: Deakers v. Temple, 41 Pa. 
 234; where a large quantity of coal 
 bought on credit was immediately 
 transferred to one who knew of 
 the indebtedness of the vendor and 
 at inadequate price : Kelsey v. Mur- 
 phy, 26 Pa. 78; where the debtor 
 
 remained in possession of property 
 after a sale : McDonnell v. Ris- 
 sell, 37 Pa. 164; Hartman v. Diller, 
 62 Pa. 37; Tisch v. Utz, 142 Pa. 
 186; where the purchaser at sher- 
 iff's sale falsely represented he was 
 bidding on behalf of the debtor's 
 family and thus secured the prop- 
 erty at a low figure : McCaskey v. 
 Graff, 23 Pa. 321 ; where the par- 
 ties to the alleged fraudulent trans- 
 action divided the profits : Kimmell 
 \. Geeting, 2 Grant 125. 
 
 In the following cases evidence 
 of collusion was held insufficient to 
 admit declarations : Where prop- 
 erty of the debtor had been sold 
 and paid for a month before the 
 levy : Scott V. Heilager, 14 Pa. 
 238; where the mere fact of con- 
 fession of judgment for valid con- 
 sideration is shown : Farran v. 
 Fruit Co., 22 W. N. C. 157; where 
 an amicable action of ejectment was 
 entered subsequent to judgment : 
 Bell V. Throop, 140 Pa. 641 ; where 
 the debtor remained in charge of a 
 store as manager : Unangst v. Mfg. 
 Co., 141 Pa. 127; where the only 
 evidence of collusion is the mere 
 fact of relation of husband and 
 wife: Tripner v. Abrahams, 47 Pa. 
 220. 
 
 ^'Gibbs V. Neely, 7 Watts 305; 
 Com. V. Zuern, 16 Super. 588. See 
 also § 15. 
 
 i^Com. V. Boulos, 35 Super. 102. 
 
 "Helser v. McGrath, 58 Pa. 458. 
 
246 PENNSYIvVANIA TRIAIv EVIDENCE. 
 
 inadmissible, though they could have been received under a spe- 
 cial offer against the party who made them.^" 
 
 The trial court may in its discretion, and where particular cir- 
 cumstances require it, admit evidence of acts and declarations of 
 alleged conspirators before a prima facia case of conspiracy is 
 shown, on condition that proof thereof be subsequently fur- 
 nished.^"^ 
 
 § 274. Deceased Persons, Declarations Of. A declaration by a 
 party to a cause is competent evidence against himself if it 
 amounts to an admission or confession of a fact material thereto, 
 and as such may be proved by any person who heard it. It is 
 immaterial whether the party who made the declaration testifies 
 in the suit, or is living or dead.^- But similar declarations made 
 by a stranger to the proceeding are incompetent. The person 
 who made them, if alive, must be produced as a witness.^^ But 
 if he be dead, the rule is relaxed and proof of his declarations 
 may be received if he had peculiar means of knowing the facts 
 stated and had no interest to misrepresent them. Such declara- 
 tions may be proved either by calling the person who heard them 
 or by producing the writing in which they were made. 
 
 § 275. Deceased Persons, Declarations Of — Against Interest. 
 If a statement of a person since deceased was against his interest 
 at the time he made it and he had no reason to misrepresent it, 
 his personal sacrifice will be considered equivalent to an oath and 
 proof of the declaration will be admmitted after his death,-* and 
 its effect may not be impaired by the admission of other state- 
 ments in aid of interest unless they were made in the presence 
 of the party against whom they are offered.-^ 
 
 Declarations against interest will be construed most strongly 
 against the person making them.'" 
 
 § 276. Deceased Persons, Declarations Of — Boundaries. Decla- 
 rations concerning the location of boundaries of realty, made by 
 deceased owners and surveyors, are competent, not as establishing 
 reputation but as tending to establish independent facts which, 
 
 ^"Marshall v. Faddis, 199 Pa. 397. may be admitted in favor of the 
 
 2'Com. V. Zuern, 16 Super. 588; person making them or those who 
 
 Marshall v. Faddis, 199 Pa. 397. claim through him : Allegheny City 
 
 --See § 54. V. Nelson, 25 Pa, 332. 
 
 23See § 270. -''Wonsetler v. Wonsetler, 23 
 
 -■•Harrisburg Bank v. Tyler, 3 W. Super. 321. 
 
 & S. 373; Taylor v. Gould, 57 Pa. -'''Gabler's Appeal, 5 Cent. 314. 
 152. Declarations against interest 
 
HEARSAY. 247 
 
 by reason of the lapse of time, may not be the subject of more 
 direct proof. Such declarations are admissible on the theory that 
 they were part of the res gestae, and therefore it is necessary that 
 they should have been made while the declarant was on the 
 ground and in the act of pointing out the boundary or determin- 
 ing its location.-' The rule applies not only to declarations of a 
 deceased owner or surveyor,^* but also to declarations of other 
 persons who had special knowledge of the facts and no interest 
 to misrepresent them.^^ But declarations of persons who are liv- 
 ing and who might be produced to testify will not be received.^" 
 
 § 277. Deceased Persons, Declarations Of — Course of Business 
 or Professional Duty. Declarations made by a person in the regu- 
 lar course of his business or professional duty are competent 
 after his death, if made of his own knowledge and at or near the 
 time the act was performed,^^ The competency of such evidence 
 has been extended to permit book entries or memoranda made in 
 the course of business to be received, although the person who 
 made them is living.^^ 
 
 § 278. Deceased Persons, Declarations Of — Execution and Con- 
 tents of Will. Declarations of a testator as to the contents of 
 his will and showing his intention or state of mind with respect 
 to the disposition of his property, are admissible whenever the 
 genuineness of the will is questioned or there is an allegation of 
 want of testamentary capacity, fraud or undue influence in its 
 
 2^Potts V. Everhart, 26 Pa. 493; Bender v. Pitzer, 27 Pa. 333; Mc- 
 
 Dawson v. Mills, 32 Pa. 302; Mc- Causland v. Fleming, 63 Pa. 36; 
 
 Causland v. Fleming, 63 Pa. 36; Moul v. Hartman, 104 Pa. 43. 
 
 Kennedy v. Lubold, 88 Pa. 246; aoguchanan v. Moore, 10 S. & R. 
 
 Kramer v. Goodlander, 98 Pa. 366; 275. 
 
 Collins V. Clough, 222 Pa. 472. ^i Smith v. Lane, 12 S. & R. 80. 
 
 28Properly authenticated field Field notes of a surveyor or his 
 
 notes of a surveyor are admissible deputy are competent after the 
 
 as his declarations if made contem- death of the person who made 
 
 poraneously with the survey : Col- them : Vincent v. Huff, 4 S. & R. 
 
 lins V. Clough, 222 Pa. 472. But his 298; Leazure v. Hillegas, 7 S. & 
 
 declarations to the effect that he had R. 313; Ross v. Rhoads, 15 Pa. 
 
 made a survey are not admissible, 163; Galbraith v. Elder, 8 Watts 
 
 even though all his papers have been 81. A justice's docket is evidence 
 
 accidentally burned : Bonnet v. against defendant in an action for 
 
 Devebaugh, 3 Bin. 175. fees earned by the justice : Har- 
 
 ^^Hamilton v. Menor, 2 S. & R. ris v. Christian, 10 Pa. 233. 
 
 70; Nieman v. Ward, i W. & S. ^^ See § 94. 
 68; Mills v. Buchanan, 14 Pa. 59; 
 
248 i-RNNSYLVANIA TRIAL EVIDENCE. 
 
 execution."^ And if a will shown to have been in existence can- 
 not be found after the testator's death, his declarations made be- 
 tween the time of execution of the will and the date of his death 
 are competent on the question whether the will was destroyed 
 with intent to revoke."* 
 
 A testator's declarations are not in themselves competent proof 
 to establish fraud or undue influence, but are admissible merely 
 as corroborative evidence to show there are grounds for ap- 
 prehending and unusual opportunities for exercising undue in- 
 fluence, and to illustrate the eiifect of such influence after it has 
 been established,^" unless perhaps where the declarations were 
 made at the time the will was executed and thus formed part 
 of the transaction."" But for the purpose of showing the mental 
 condition of the testator at the time the will was made, his decla- 
 rations are in the nature of direct proof, even though they did 
 not accompany the execution of the will, so long as they were so 
 near in point of time as to justify an inference as to the testator's 
 condition of mind at that time."' 
 
 The limitation of time before and after the execution of the 
 will must necessarily depend upon the character of the mental 
 unsoundness attempted to be proved. If of temporary character, 
 the declarations must be much nearer in point of time than if it 
 is permanent and of long standing."* If the question is one of 
 fraud, evidence of declarations must be confined to those made 
 so near to the time of execution of the will as to warrant the 
 inference of fraud existing at that time."" 
 
 While declarations of the testator are not admissible to affect 
 the legal construction of a will,*" if a latent ambiguity exists his 
 declarations indicating an intent to give his property in a particu- 
 lar way will be received. ^"^ 
 
 s^Herster v. Herster, 116 Pa. Pa. 149; Herster v. Herster, 122 
 
 612; Swope V. Donnelly, 190 Pa. Pa. 239; Swope v. Donnelly, 190 
 
 417; Gfeller v. lyappe, 208 Pa. 48; Pa. 417. 
 Lappe V. Gfeller, 2H Pa. 422. ^sjjerster v. Herster, 122 Pa. 239. 
 
 '^^Youndt V. Youndt, 3 Grant See § 322. 
 140; Gardner's Estate, 164 Pa. 420; aog^opg ^ Donnelly. 190 Pa. 417. 
 
 (Gardner v. Gardner. 177 Pa. 218; "Comfort v. Maether, 2 W. & S. 
 
 Lappa V. Gfeller, 211 Pa. 462. 450; Woodman v. Good, 6 W. & S. 
 
 35Herster v. Herster, 122 Pa. 239; 169; Jones v, McKee. 3 Pa. 496. 
 Swope V. Donnelly, 190 Pa. 417; "'Vernor v. Henry, 3 Watts 385; 
 
 Robinson v. Robinson, 203 Pa. 400. Brownfield v. Brownfield, 12 Pa. 
 
 '"Herster v'. Herster, 122 Pa. 239. 136. See § 379. 
 
 s^McTaggart v. Thompson, 14 
 
HEARSAY. 249 
 
 § 279. Deceased Persons, Declarations Of — Pedigree. When 
 questions of pedigree arise, it is often necessary to go back for 
 necessary proofs to a remote period of time and the only evidence 
 obtainable is such as can be gathered from various family records 
 and statements made by different members of the family who are 
 now dead. From the necessity of the case therefore, the rules of 
 evidence are much relaxed,*- and declarations made by deceased 
 members of the family before any dispute arose, are received as 
 the best evidence which the nature of the case affords. The 
 reason for the rule does not apply if there is better proof to be 
 had, and therefore if the fact to be proved is comparatively recent 
 and susceptible of proof in the ordinary way by living witnesses, 
 such declarations will not be admitted.*^ It must also be made 
 to appear to the satisfaction of the court, and from evidence 
 other than the declarations themselves that the declarant was a 
 member, either by blood or marriage, of some branch of the fam- 
 ily in respect to which the declarations were made,** and that 
 they were made before any dispute arose.*^ 
 
 Written declarations of pedigree, as evidenced by recitals in 
 ancient deeds, wills, or other documents which are shown to have 
 come from the proper custody and to have been made by an- 
 cestors of the parties to the suit,*^ and entries of births and 
 deaths, made by a parent in the family Bible, are also competent 
 evidence of pedigree.*' Inscriptions on tomb-stones are compe- 
 tent evidence of the date of death of the deceased.** 
 
 *^Douglass V. Sanderson, I Yeates fact that the recitals referred to 
 
 15. persons of the same names as those 
 
 «Albertson v. Robeson, i Dall. ^^'°^" to have been related to par- 
 
 g: Watson v. Brewster, i Pa. 381; *'" *°. "^^ ^"'t- 'dent.ty of name 
 
 Covert V. Hertzogg, 4 Pa. US; "f being pnma facia evidence of 
 
 Dickens' Estate, 163 Pa. 14; Dinan identity of person, where the trans- 
 
 V.' Supreme Council, 201 Pa. 363. 
 
 action is remote : Sitler v. Gehr, 
 los Pa. 577. 
 
 "Sitler V. Gehr, 105 Pa. 577; iTDouglas v. Sanderson, i Yeates 
 
 Gehr V. Fisher, 143 Pa. 311. ^^. Carskadden v. Poorman, 10 
 
 *5Strickland v. Poole, I Dall 14; Watts 82. Such entries made by a , 
 
 Sitler v. Gehr, 105 Pa. Pa. 577. child who testifies he copied them 
 
 ^^Morris v. Vanderen, i Dall. 64; from another book at the direction 
 
 Paxton V. Price, I Yeates 500 1 of his deceased father, are inadmis- 
 
 Bowser v. Cravener, 56 Pa. 132 ; sible in absence of evidence to ac- 
 
 Scharfl v. Keener, 64 Pa. 376 ; Sit- count for the non-production of the 
 
 ler V. Gehr, 105 Pa. 577; Jackson v. original book: Curtis v. Patton, 6 
 
 Gunton, 26 Super. 203. But rela- S. & R. 13S. 
 
 tionship is not proved by the mere ^^MalUe v. Boro., 10 Del. 521. 
 
250 PENNSYLVANIA TRIAL EVIDKNCE. 
 
 The term "pedigree" includes not only descent and relationship 
 but also the facts of birth, marriage and death and the time when 
 such events took place.'"' 
 
 § 280. Deceased Persons, Declarations Of — Public and General 
 Rights. Declarations relating to matters of general or public 
 interest or rights, made before any dispute arose and by a person 
 who had competent means of knowledge of the subject^ are ad- 
 missible.'" It seems it is not necessary that such declarations 
 should have actually accompanied some act on the res gestae 
 principle:^^ as is the case of declarations relating to private bound- 
 aries, the competency of such evidence appearing to be based on 
 the rule admitting evidence of reputation to prove certain mat- 
 ters.=^ 
 
 § 281. Dying Declarations. Dying declarations of a mur- 
 dered person relating to the circumstances of his death are ad- 
 missible in a prosecution of the person or persons accused of 
 committing the murder,'^ if made at a time when the declarant 
 was in actual danger of death, and believed death' was impend- 
 ing,^* and it appears death did actually follow. '^ Different rea- 
 sons are given for this rule. One is that the belief in impending 
 death has a tendency to prevent deliberate falsehood and thereby 
 supplies the want of an oath. Another reason given is that such 
 evidence is frequently the only direct proof that can be obtained 
 and to exclude it would often permit murderers to go unpunished, 
 thus admitting it on the ground of necessity for the protection 
 of human life."" The latter reason seems the only one consistent 
 with the limitation which confines its admission to prosecutions 
 for homicide. 
 
 •'■'American Life Ins. Co. v. Rose- found dead about three hundred 
 
 nagle, ^^ Pa. 507. yards from the house, apparently 
 
 •'■'''Birmingham Boro. v. Anderson, having been killed by the persons 
 
 40 Pa. S06. ■ who committed the robbery : Brown 
 
 5'Birmingham Boro. v. Anderson, v. Com., Ti Pa. 321. The compe- 
 
 40 Pa. S06; Collins v. Clough, 222 tency of such declarations is con- 
 
 _ Pa. 472, 486. fined to homicide cases, and they 
 
 iJ^See § 289. are inadmissible in an action for 
 
 i^sRailing v. Com., no Pa. 100. death caused by negligence : Fried- 
 Evidence was excluded of dying man v. Railroad, 7 Phila. 203; or 
 declarations of a wife in a prosecu- in a prosecution for fornication and 
 tion for the murder of her husband, bastardy: Com. v. Reed, s Phila. 
 even though the wife was mortally 528. 
 wounded in the perpetration of ■''''See § 282. 
 robbery by the defendant and on ''''^Kilpatrick: v. Com., 31 Pa. 198. 
 the ssme morning her husband was ""Railing v. Com., no Pa. 100. 
 
HEARSAY. 251 
 
 It was said in an early case that the necessity for the admission 
 of such evidence was confined to the exigency of a particular 
 case where there were no other witnesses present to prove the 
 iact." But a later decision construes the word "necessity" to 
 mean public necessity for the protection of lives, and that the 
 evidence is competent not only where no other proof is obtain- 
 able, but in all cases no matter how much other testimony may 
 be within reach. ^* This is consistent with the theory that such 
 declarations are original and not merely secondary evidence. 
 
 Since the common law confined the admission of dying decla- 
 rations to prosecutions for homicide, such declarations of a 
 woman who died from the effects of an abortion committed upon 
 her were inadmissible in a prosecution therefor under Sections 
 87 and 88 of the criminal code of March 31, i860, P. L. 404, 
 because those sections fixed such crime as felony of a lesser grade 
 than homicide. °^ This rule was changed by the Act of June 26, 
 189s, P. L. 387, which makes such declarations competent in 
 prosecutions for abortion when the woman dies as a result of the 
 operation, providing the commonwealth first proves that she was 
 of sound mind at the time the statements were made."" The act 
 also provides that there can be no conviction unless the decla- 
 rations of the woman are corroboroated by other evidence."^ 
 
 § 282. Dying Declarations — Belief as to Impending Death. 
 Dying declarations must be shown to have been made under 
 the influence of a belief that death was impending."^ A state- 
 ment to that effect by the declarant need not necessarily be 
 shown, but the fact may he inferred from all the circumstances 
 and from his condition at the time.*^ A belief that death is near 
 is the test of competency,** and the testimony of a witness to 
 
 ''Respublica v. Langcake, i "^SuUjyari v. Com., 93 Pa. 284; 
 
 Yeates 415. Kane v. Cora,, 109 Pa. 541 ; Com. 
 
 58Com. V. Rpddy, 184 Pa. 274. v. Latampa, 226 Pa. 23. 
 
 ^^Railing v. Com., no Pa. 100. "^Kilpatrick v. Com., 31 Pa. 198; 
 
 soThe constitutionality of this act Sullivan v. Com., 93 Pa. 284; Com. 
 
 has been attacked without success on v, Winkelman, 12 Super. 497 ; Com. 
 
 the ground that it is a special law v. DeLeo, 242 Pa. 510. 
 
 changing the rules of evidence in a 64gullivan v. Com., 93 Pa. 284; 
 
 judicial proceeding, and also on the Com. v. Winkelman, 12 Super. 497. 
 
 ground that it denies one accused Declarations have been held compe- 
 
 of crime of the right to meet the tent where the deceased appeared to 
 
 witnesses face to face : Com. v. be in a dying condition, stated he 
 
 Winkelman, 12 Super. 497. would never get up, and made ar- 
 
 81-Com. V. Keene, 7 Super. 293. rangements for his burial : Kil- 
 
252 
 
 PENNSYIvVANIA TRIAI, EVIDENCE. 
 
 the effect that the declarant was in his right mind and conscious 
 that he was dying has been held prima facia proof of compe- 
 tency. "^ 
 
 Declarations made while the declarant was under the influence 
 of drugs are admissible if it appears he was conscious and under- 
 stood everything said to him."* 
 
 § 283. Dying Declarations — Proof. Whether dying declara- 
 tions were made under the belief of impending death must be 
 determined in the first instance by the court. "^ But after they 
 are admitted it is not error to charge that before considering 
 them at all the jury should be satisfied that the declarant believed 
 death near, was conscious of his surroundings, and answered 
 questions intelligently."* Where there is evidence that prior to 
 his dying declarations accusing the defendant of murder the de- 
 ceased had made other declarations to the effect that the shooting 
 was accidental, the jury should be charged that if they believe 
 such prior statements they should acquit the defendant.*' 
 
 ratrick v. Com., 31 Pa. 198; or 
 where declarant stated he was 
 dying and made a will : Com. v. De 
 Leo, 242 Pa. 510; or where made 
 on the day following an injury and 
 while on his way home, to a friend 
 whom he met, and after stating his 
 belief that he would "never get over 
 it," it appearing that he died two 
 days later from the injuries : Ke- 
 hoe V. Com., 85 Pa. 127 ; or where 
 made two hours after receiving in- 
 juries, while he was able to walk, 
 and four days before his death, and 
 although his physician informed 
 him that his injuries were not nec- 
 essarily fatal, if he believed he was 
 dying at the time : Com. v. La- 
 tampa, 226 Pa. 23 ; or where de- 
 clarant, on being informed by his 
 physician that he was rapidly sink- 
 ing, said that he was satisfied he 
 was dying, although three days be- 
 fore he had stated he did not feel 
 that he was going to die : Small 
 V, Com., 91 Pa. 304; or where, a 
 few moments after declarant was 
 shot, he said that he would die, 
 and a few hours later he was so 
 
 told by his physician, though the 
 declarations were not made until 
 the next day : Com. v. Rhoads, 23 
 Super. 512; or where they were not 
 made until several days after the 
 declarant had stated she did not ex- 
 pect to recover : Com. v. Winkel- 
 man, 12 Super. 497; or where a 
 person on the night after he was 
 shot repeatedly said that no one 
 shot in such a manner ever recov- 
 ered : Sullivan v. Com., 93 Pa. 284. 
 And where the injured person on 
 the day following the injury called 
 in a person to write his will, stat- 
 ing that the defendant had shot 
 him and he expected to die, the 
 mere fact that he asked the scrive- 
 ner whether the will would have 
 any effect if he got well does not 
 render the declarations incompe- 
 tent : Allison v. Com., 99 Pa. 17. 
 
 "'Com. V. Silcox, 161 Pa. 484. 
 
 ""Com. V. Straesser, 153 Pa. 451. 
 
 •"Com. V. Winkelman. 12 Super. 
 497; Com. v, DeLeo, 242 Pa. 510. 
 
 "'Com, \. Winkelman, 12 Super. 
 497. 
 
 ""Com. V. Silcox, 161 Pa. 484. 
 
HEARSAY. 253 
 
 Where the statements were reduced to writing by the witness 
 but not signed by or called to the attention of the declarant, the 
 existence of the writing does not Vender oral proof of the decla- 
 rations inadmissible;'" and a written declaration is admissible 
 though made in a foreign language and translated by one person 
 to another who wrote it down, though in such case it is proper 
 to charge that contradictions and inconsistencies therein may have 
 been due to the failure of the interpreter to correctly translate 
 it." 
 
 § 284. Dying Declarations — Whole of Declaration. Dying 
 declarations are competent only to prove the circumstances imme- 
 diately connected with the declarant's death. But when offered 
 in evidence they should be offered as a whole and irrelevant parts, 
 if any, will be stricken out on motion before the evidence is re- 
 ceived. ^^ 
 
 § 285. Ex Parte Affidavits. Ex parte afifidavits taken with- 
 out rule of court or notice to the other side, though made before 
 an officer authorized to take an oath, are inadmissible, there be- 
 ing no opportunity to cross-examine.'^ This rule applies to affi- 
 davits filed in injunction proceedings, when offered in subsequent 
 proceedings,'* and also to afifidavits of defense.'^ 
 
 An ex parte affidavit has been received in evidence to 
 prove a copy of a paper relating to pedigree and on file 
 in a foreign country,'" and such affidavit made in an ad- 
 joining state has also been received, but only because of. the 
 particular facts of the case, the original having been pro- 
 duced in court." In a later case the court refused to extend 
 this rule where the witnesses were within the state at the time 
 of the trial." In modern times when facilities for communication 
 
 '"Allison V. Com., 99 Pa. 17. '^Shaffer v. Lauria, 50 Super. 
 
 'iCom. V. Mika, 171 Pa. 273. 135. 
 
 '^Com. V. Spahr, 211 Pa. 542. '''Jacoby v. Ins. Co., 10 Super. 
 
 Where the only defense in a homi- 366. 
 
 cide case was insanity, it was held '^Hyam v. Edwards, I Dall. 2 ; 
 
 no error to admit dying declarations Fockler v. Simpson, cited in Doug- 
 
 as to prior threats, if the only ob- lass v. Sanderson, i Yeates 15 ; 
 
 jection was to the declarations as a Kingston v. Lesley, 10 S. & R. 383; 
 
 wh,ole; Com. v. Spahr, 211 Pa. Winder v. Little, i Yeates 152. 
 
 542. "Douglass V. Sanderson, i 
 
 '^Lilly V. Kitzmiller, I Yeates Yeates 15. 
 
 28 ; Farmers' Bank v. Whitehill, 16 '^Kingston v. Lesley, 10 S. & R. 
 
 S. & R. 89. 383. 
 
 'oReller v. Nutz, 5 S. & R. 246. 
 
254 PENNSYLVANIA TRIAL EVIDENCE. 
 
 and travel are greatly increased, and the difficulties of obtaining 
 testimony under a commission or letters rogatory are not so 
 great as in early times, there would seem to be no reason or neces- 
 sity for admitting ex parte affidavits in any case. 
 
 § 286. Paternity of Child — Declaration Concerning. A 
 mother's declarations as to the paternity of her child, made in ex- 
 tremis, are admissible in a prosecution of the father for forni- 
 cation and bastardy.*" The declarant must have actually believed 
 herself in danger of death. *^ But if she dies without having 
 testified under oath in any proceeding regarding the paternity of 
 her child, her declarations made in extremis are not sufficient to 
 convict in absence of corroborative evidence.'^ And where it is 
 shown she had improper relations with two or more men at 
 about the same time, her testimony will not be received, as it 
 would be impossible for her to determine which is the father of 
 her child.*' But the fact that the period of gestation is unusually 
 long will not disprove her allegation of paternity, though her 
 credibility as a witness is for the jury.** 
 
 § 287. Physical Condition and Feeling — Declarations as To. 
 The character and nature of bodily sensations can be accurately 
 known only to the person who actually experiences them, and 
 hence can ordinarily be proved only by his testimony. But where 
 the existence of such condition is a fact to be determined, his acts, 
 declaration or exclamations showing physical suffering become 
 admissible. Thus where a physician is called upon to examine a 
 person, the latter's description of his bodily sensation and ail- 
 ments which go to make up the symptoms of the disease neces- 
 sarily enter into and form part of the basis of the opinion of the 
 physician as to the patient's condition. Such declarations, though 
 in the nature of hearsay, may then be proved by the physician in 
 any action where the testimony is relevant;*' 
 
 8"Act of March 31, i860, P. L. The question is one of fact for the 
 
 382, § 37. Such declarations niay jury: Id.; Cora. \. Betz, 2 Wood. 
 bo sufficient proof of the crime, 
 though they contain no particulars 
 as to the time and place when the 
 
 child was begotten: Com. v. Phil- *'Com. v. McCarty, 2 Clark 351, 
 
 lips, 2 Lack. Jur. 146. Declarations '^°'"- "• ^"'^' 4 Clark 219. ' 
 
 by a married woman charging one **Com, v. Hoover, 3 Clark 514. 
 
 not her husband with being the ss^ichtenwallner v. Laubach, 105 
 
 father of her child, are not within Pa. 366; Lakeshore & Michigan 
 
 the act: Com. v. Reed, S Phila. 528. Railroad v. Rosenzweig, 113 Pa. 
 
 "^Easley v. Com., 11 Atl. 220 519. 
 
 *-Com. V. Betz, 2 Wood. 210. 
 
HEARSAY. 255 
 
 § 288. Recitals in Ancient Documents. As a general rule re- 
 citals in deeds, while competent evidence against the grantor and 
 persons claiming through him,^^ are mere hearsay with respect to 
 third persons and those who claim by title paramount to the 
 deed.*' But there is an exception to this rule in the case of re- 
 citals in ancient deeds where possession has accompanied the 
 deed. In such case there is a presumption that the deed is valid 
 and effectual or it would probably have been contested, and it will 
 be received as prima facia evidence of the facts recited therein, 
 even against third persons.** 
 
 Ancient maps and surveys are admissible to show boundaries 
 of realty where claim has been made in accordance therewith,*' 
 providing they do not contradict official grants or public records."" 
 But they are not evidence of title unless they bear an official char- 
 acter."^ 
 
 Newspapers published many years ago, will be received as evi- 
 dence of matters of public interest occurring at that time."^ 
 
 § 289. Reputation. Reputation is the estimation in which 
 one is held in the community in which he lives. The fact 
 that one person ascribes to another a particular fault or virtue is 
 hearsay. But if a great many persons in the community con- 
 cede that the person in question has a particular characteristic, 
 this general estimation, known as reputation as distinguished from 
 the opinion of the one person, becomes a matter of fact and ad- 
 vances the evidence beyond the confines of mere hearsay and 
 makes it competent proof. This applies not only to persons, but 
 also to any place, object or condition capable of being character- 
 ized by public opinion."^ 
 
 *^See § 73. Sample v. Robb, 16 Pa. 305 ; Mc- 
 
 s^Morris v. Vanderen, i Dall. 64; Causland v. Fleming, 63 Pa. 36; 
 
 Penrose V. Griffith, 4 Bin. 231 ; Gar- Galloway v. Ogle, 2 Bin. 468; 
 
 wood V. Dennis, 4 Bin. 314; James Woods v. Edge, 2 Watts 333; Min- 
 
 V. Letzler, 8 W. & S. 192 ; Sitler v. eral Railroad v. Auten, 188 Pa. 568. 
 
 Gehr, 105 Pa. 577. See § 244. 
 
 '^Garwood v. Dennis, 4 Bin. 314; "sgulick v. Railroad, 36 P. L. J. 
 
 James v. Letzler, 8 W. & S. 192; 57. 
 
 Dougherty v. Welshans, 233 Pa. '^Reputation is treated here prin- 
 
 121. cipally with reference to places or 
 
 s^Com. V. Phila., 16 Pa. 79; Mc- things or conditions as distinguish- 
 
 Causland v. Fleming, 63 Pa. 36. ed from its application to persons. 
 
 "oPenny Pot Landing v. Phila., As to the latter, see Character, §§ 
 
 16 Pa. 79. 109-120. Evidence of reputation as 
 
 '^Sweigart v. Richards, 8 Pa. 436; to ownership of land has been re- 
 
256 PENNSYLVANIA TRIAL UVIDfiNCE. 
 
 § 290. Reputation — Bawdy House. Not only may the general 
 reputation of the inmates or frequenters of an alleged bawdy 
 house be proved in order to establish the character of the place, 
 but evidence may be given to show the reputation of the house 
 itself, the purpose of strangers visiting the place, the time of their 
 visits, and their conduct while there."* While evidence of the 
 reputation of the house in itself would be perhaps insufficient to 
 establish its character, yet it is a circumstance to be weighed with 
 other evidence."^ Proof of the reputation of the house will not 
 be received however where the prosecution is for keeping and 
 maintaining a disorderly house for gaming and drinking."* 
 
 § 291. Reputation — Boundaries. Reputation as to boundaries 
 of land is entitled to consideration in cases where the lapse of 
 time is so great as to. render it difficult if not impossible to prove 
 their location by any other method."' But such evidence is in- 
 admissible on questions of title."' 
 
 § 292. Reputation — Insanity. The mental condition of a 
 person cannot be proved by evidence of reputation,"" nor is evi- 
 dence of common reports among the defendant's former asso- 
 ciates that he was subject to fits and other attacks, admissible 
 on a trial for murder.^™ 
 
 § 293. Reputation — Pedigree — Legitimacy — ^Marriage. When 
 no better evidence is obtainable, common reputation in a family 
 is admissible to show who are its members, or in connection with 
 other evidence, to prove pedigree, legitimacy and marriage."^ 
 Reputation of marriage, when accompanied by proof of co-habi- 
 
 ceived in a dispute where a son Nieman v. Ward, i W. & S. 68; 
 
 claimed by gift from his father : Hecker v. Sterling, 36 Pa. 423 ; Mc- 
 
 Greenwich Coal Co. v. Learn, 234 Causland v. Fleming, 63 Pa. 36; 
 
 Pa. 180; but not reputation as to Collins v. Clough, 222 Pa. 472, 485. 
 
 character and value of a coal "^Sample v. Robb, 16 Pa. 305. 
 
 strata: Washington County v. Mar- s'»Pidcock v. Potter, 68 Pa. 342; 
 
 quis, 233 Pa. 552. Lancaster County Bank v. Moore, 
 
 "*Com. V. Sarves, 17 Super. 407; 7& Pa. 407; see dictum to the con- 
 
 Com. V. Bunnell. 20 Super. 51 ; trary in Rogers v. Walker. 6 Pa. 
 
 Com. V. Murr, 7 Super. 391 ; Com. 37i. 
 
 V. Brink, 49 Super. 620. ""Hall v. Com., 22 W. N. C. 25. 
 
 "i>Com. V. Murr, 7 Super. 391. 'Pickens's Estate, 163 Pa. 14; 
 
 nnri Ox ,. o o r) Amold V. lus. Co., 20 Supcr. 6l. 
 
 ""Com. V. Stewart, I S. & R. 342: . ^ , ' . 
 
 ^ c tr T-i o An averment of parentage m an act 
 
 Com. V. Soo Hoo Doo, 41 Super. , , , , , , 
 
 of assembly passed for the purpose 
 
 of legitimatizing a child is prima 
 
 "'Sturgeon v. Waugh, 2 Yeates facie evidence of the tacts stated: 
 
 249 
 
 91 
 
 476 ; Irwin v. Bear, 4 Yeates 262 ; McGannigle v. McKee, 77 Pa. 81 
 
HEARSAY. 
 
 257 
 
 tation, is sufficient to raise a presumption of marriage in civil 
 cases. ^ Proof of reputation and co-habitation is not in itself 
 proof of marriage, however. It is merely a circumstance from 
 which marriage will be presumed,^ and the presumption wholly 
 disappears in the face of better proof that a marriage did or did 
 not in fact exist.* If the evidence of reputation and co-habita- 
 tion is contradictory, it does not raise even a presumption of 
 marriage, but may be considered along with other evidence 
 thereof.^ 
 
 § 294. Res Gestae — General Principles. Every transaction or 
 event has connected with it a series of circumstances which affects 
 its character in some degree and which is necessary to be known 
 in order to properly understand and interpret it." These circum- 
 stances are included in the term "res gestae'' which means the 
 transaction or matter under investigation, whether it be a princi- 
 pal fact in the case or only incidental or collateral facts.'' 
 
 ^Thorndell v. Morrison, 25 Pa. 
 326; Com. V. Stump, 53 Pa. 132; 
 Richard v. Brehm, 73 Pa. 140; 
 Strauss's Estate, 168 Pa. 561. Proof 
 of reputation alone, without co- 
 habitation, is not sufficient : Com. 
 V. Stump, 53 Pa. 132. See § 396. 
 
 sYardley's Estate, 75 Pa. 207; 
 Hunt's Appeal, 86 Pa. 294; Read- 
 ing Fire Company's Appeal, 113 Pa 
 204. 
 
 "Hill V. Hill, 32 Pa. 511; Hunt's 
 Appeal, 86 Pa. 294. Where the re- 
 lation between the parties is illicit 
 in the beginning, it is presumed to 
 so continue until a change in rela- 
 tion is established by proof; and 
 without proof of a subsequent ac- 
 tual marriage, continued co-habi- 
 tation and reputation is not suffi- 
 cient to raise a presumption of mar- 
 riage : Reading Fire Ins. Com- 
 pany's Appeal, 113 Pa. 204; Patter- 
 son's Estate, 237 Pa. 24. 
 
 ^Greenawalt v. McEnelley. 85 Pa. 
 352. 
 
 °"It is a principle of law, of logic, 
 of philosophy and of common sense, 
 that In order to decide with accur- 
 
 acy upon the character of any phe- 
 nomenon or transaction, we must 
 know all the facts of which it con- 
 sists, and all the circumstance that 
 are truly connected with and influ- 
 ence it. In all investigations, physi-' 
 cal and moral, which are guided by 
 evidence or observation, the more 
 carefully these facts are collected 
 find considered, the more certain 
 are the conclusions. This is essen- 
 tially what is, in short, called the 
 rule of the res gestae. If we elimi- 
 nate from the transaction any of 
 the facts which tend to illustrate 
 its character we are guilty of the 
 fallacy of non-observation, and 
 endanger the accuracy of our in- 
 duction." Per LowRiE, J., in Hol- 
 lingshead v. Allen, 17 Pa. 275. 
 
 'It has been suggested that the 
 expression "matter under investiga- 
 tion" more fully describes the res 
 gestae rule, as it includes states and 
 conditions of persons and things, 
 and the relations between parties, 
 as well as acts done : Young v. 
 Com., 28 Pa. 501. 
 
 17 
 
258 
 
 PKNNSYLVANIA TRIAL UVIDIiNCU. 
 
 No fixed measure of time or distance from the main occur- 
 rence can be established as a rule in determining what shall be 
 a part of the res gestae. Each case must necessarily depend upon 
 its own circumstances.^ The incidents may be separated by a 
 lapse of time more or less appreciable, but they must grow out 
 of, and be in a legal sense immediately connected with, the liti- 
 gated act." Therefore if a period of time intervenes between the 
 beginning of the transaction and the declarations or acts ofifered, 
 the question arises whether the transaction was wholly completed 
 and ended before such declarations or acts were made or done, 
 or whether it had continued without interruption during that 
 time." 
 
 The mere fact of nearness in time of the evidence offered, does 
 not alone qualify it. It must be so immediately connected with 
 the transaction as to form part of its history. ^"^ On the other 
 hand there are instances where the matter under investigation is 
 of such nature that a full und.erstanding of it cannot be had 
 without a knowledge of accompanying acts and circumstances 
 extending over a considerable period of time, in which case they 
 are all admissible as a part thereof within the res gestae rule.'^ 
 
 ^Com. V. Werntz, i6i Pa. 591. 
 
 9ColI V. Transit Co., 180 Pa. 618; 
 Shadowski v. Railway, 226 Pa. 537. 
 
 i°Declarations offered as explana- 
 tory of a conversation, made at 
 another place and at about an hour 
 later, are inadmissible in absence 
 of evidence that the conversation 
 was continuous up to the time the 
 declarations were made : Alexander 
 V. Com., los Pa. i. 
 
 iiBigley v. Williams, 80 Pa. 107. 
 
 i^McLene v. Fullerton, 4 Yeates 
 S22; Richter v. Selin, 8 W. & S. 
 425 ; Devling v. Little, 26 Pa. 502. 
 Where a church election was al- 
 leged to have been illegal, acts and 
 declarations at previous meetings 
 of the congregation and at hearings 
 on the question involved were held 
 admissible : Com. v. Woelper, 3 S. 
 & R. 29. And where the question 
 is whether property was held in 
 trust, every matter coirnected with 
 the transaction, how the alleged 
 
 trustee got the property and how he 
 held and disposed of it, is a part 
 of the res gesta:: Hollingshead v. 
 Allen, 17 Pa. 275. Execution of 
 the bond accompanying a mortgage 
 is a part of the mortgage trans- 
 action: Lewars v. Weaver, 121 Pa. 
 268; Watkins v. Moore, 192 Pa. 
 211; and where the signature of a 
 married woman to a mortgage is 
 alleged to have been secured against 
 her will, her objections to execut- 
 ing the paper, made before and at 
 the time of signing, during a period 
 of several hours, are admissible: 
 Louden v. Blythe, 16 Pa. 532, 27 
 Pa. 22. A married woman who 
 claims title to property as her sepa- 
 rate estate as against an execution 
 creditor of her husband, may show 
 means to invest in realty by prov- 
 ing an inheritance from her grand- 
 father and offer in evidence letters 
 which passed between her and the 
 executor of her grandfather's es- 
 
IIItARSAY. 
 
 259 
 
 Prior conversations necessary to a full understanding of the 
 transaction, and introductory thereof, may also be given as a part 
 of the transaction.'" But declarations made after a contract is 
 complete and negotiations ended and the rights of the parties 
 fixed, are incompetent.'* 
 
 If evidence is offered as part of the res gestse, it is immaterial 
 whether the declarant be dead or alive ; nor is it open to the 
 objection that it is favorable to the party offering it,'° such evi- 
 dence being an exception in this respect to the general rule that 
 what a person says or does is not competent evidence to support 
 his own cause. Being one of the incidents which make up the 
 whole of a transaction, the declarations are as competent as any 
 other incident connected therewith. '° 
 
 tate with reference thereto : Han- 
 nis V. Hazlett, 54 Pa. 133. Decla- 
 rations made at the time of re- 
 turning a horse purchased a few 
 days before are competent : Knauss 
 V. Shiffert. 58 Pa. 152. 
 
 "Harper v. Kean, 11 S. & R. 
 280. See also note 12, this section. 
 One who alleges he was induced to 
 enter into contract by certain rep- 
 resentations made by plaintiff when 
 the contract was signed, may give 
 evidence of similar representations 
 made by plaintiff's agent a short 
 time before : Rinesmith v. People's 
 iiailway, go Pa. 262 ; and in an ac- 
 tion for unlawfully obstructing 
 windows in plaintiff's house, he may 
 show statements made by the de- 
 fendant before and while the house 
 was being built, to the effect that 
 defendant was willing the windows 
 should be placed next his property : 
 Omensetter v. Kemper, 6 Super. 
 309. An answer made by the plain- 
 tiff in an action for breach of 
 promise of marriage, to one who 
 was defendant's messenger when 
 the latter told plaintiff of defend- 
 ant's desire to marry her, is admis- 
 sible : Elhs V. Guggenheim, 20 Pa. 
 287. 
 
 i*Chapin v. Iron Co., 145 Pa. 
 478. 
 
 i^See §§ 302-305 as to self serv- 
 ing declarations. 
 
 i^Where defendant, a gratuitous 
 bailee, lost goods belonging to plain- 
 tiff, acts and declarations by de- 
 fendant immediately on discovering 
 the loss, showing an effort on his 
 part to recover the goods, are com- 
 petent in his favor as evidence that 
 he used due dihgence with respect 
 to them : Thompkins v. Saltmarsh, 
 14 S. & R. 274. And where the lia- 
 bility of owners of a vessel for 
 goods lost in a wreck depended 
 upon the question whether a cable 
 which had parted was fit for ordi- 
 nary navigation, statements of the 
 crew, to the effect that the cable 
 was sound, made while in consulta- 
 tion with the captain as they were 
 putting out the cable to prevent the 
 vessel from dragging her anchor in 
 a storm, are admissible on behalf 
 of the defendant: Reed v. Dick, 8 
 Watts 479. A person in possession 
 of land may offer his own declara- 
 tions and acts in marking bound- 
 aries : Potts v. Eberhart, 26 Pa. 
 403. Declarations showing cause of 
 desertion are competent: See § 295. 
 
260 PENNSYLVANIA TRIAL EVIDENCE. 
 
 § 295. Res Gestae — Desertion, Cause Of. Where the question 
 to be determined is the reason for the separation of husband and 
 wife, declarations of the parties at or near the time the separation 
 took place are admissible. Thus, declarations of a wife a few 
 days prior to leaving her husband, concerning his treatment of 
 her^^ and statements as to her reason for leaving him, made to 
 a neighbor to whose house she had gone at night for protection,'* 
 and also her declarations and the prints of fingers on her throat 
 six hours after the acts which caused her to leave, made and 
 shown to persons to whom she would naturally complain," are 
 competent evidence. But her declarations concerning acts of her 
 husband at times long past and not connected with any immediate 
 cause for leaving,^" and declarations of a husband several days 
 after he had abandoned his wife^' are inadmissible. 
 
 Declarations and manifestations of sorrow on the part of a 
 wife immediately after her husband deserted her are admissible 
 on her behalf to show want of consent.-- But whether such con- 
 dition or state of mind existed a week or more after the deser- 
 tion is immaterial.^' 
 
 § 296. Res Gestae — Homicide. In a murder case, the admis- 
 sibility of declarations offered as a part of the res gestae of the 
 criminal act depends upon their having been made at a time an,d 
 place and under such circumstances as to raise a reasonable pre- 
 sumption that they were voluntary utterances induced by or 
 springing out of the transaction, and so near in point of time as 
 to effectually exclude any presumption that they were the result 
 of premeditation and design. ^'^ Thus declarations of an injured 
 person, made immediately after her injuries were received and 
 
 And where, on being arrested, the made by defendant at the time of 
 defendant was searched and money his arrest, and expressions of will- 
 was found in his possession, decla- ingness to go with the officer, ad- 
 rr.tions made by him at the time missible in his favor as showing 
 as to where he got it are admissible conduct inconsistent with guilt : 
 in his favor : Rhoads v. Com., 48 Turner v. Com., 86 Pa. 54. 
 Pa. 397. One who left the state ^'Gilchrist v. Bale, 8 Watts 355. 
 after a crime was committed may '^Cattison v, Cattison, 22 Pa. 275. 
 show he voluntarily returned on '"Howe v. Howe, 16 Super. 193. 
 hearing he was accused of it : -"Kidder v. Lovell, 14 Pa. 214. 
 Hester v. Com., 85 Pa. 139; but -'Lyon v. Lyon, 197 Pa. 212. 
 his statements to third persons on -^Bealor v. Hahn, 117 Pa. 169. 
 his return home afe not evidence : ^^Hahn v. Bealor, 132 Pa. 242. 
 Hester v. Com., 85 Pa. 139; nor are -'Com. v. Werntz, 161 Pa. 591. 
 voluntary declarations of innocence 
 
ITKARSAY. 261 
 
 while she was fleeing from the person who committed the act,^^ 
 or statements made a few minutes after an injury was received 
 and after the injured jjerson was removed to a house where his 
 wounds were dressed, in which he repeated declarations which he 
 had made immediately after receiving the wounds,'" are admis- 
 sible, it being apparent that the continuity of events had not been 
 broken, and there had been no opportunity for premeditation. 
 But declarations made a few hours after the injury was received 
 are not admissible.^' 
 
 If two persons are murdered at the same time and place and 
 apparently by the same person, evidence of the circumstances 
 connected with the murder of one are admissible in a prosecution 
 for murder of the other.^^ 
 
 § 297. Res Gestae — Motive, Intent and Purpose. Whenever 
 the motive, intent or purpose in doing an act is material to the 
 issue, any thing said or done at the time from which a motive 
 may be inferred, or which tends to show the intent or purpose 
 with which it was done, is a part of the res gestte.^" Declarations 
 by a depositor as to his intention and purpose in making a de- 
 posit,^" or by a father as to the nature of a business transaction 
 between him and his son,*^ or by one of defendant's confederates 
 immediately before a crime was committed, tending to show the 
 intent and purpose of the confederation,'- are competent evidence 
 under this rule. A letter written by the maker on the date of 
 a note and referring to it, is admissible on the question whether 
 the note given was in renewal of a previous one.'' And one sued 
 by a husband for enticing away his wife, may show that ten days 
 before plaintiff's wife left him she complained to a witness that 
 her husband had beat her and showed marks on her arms, as 
 tending to prove that the wife left because of such treatment and 
 not because of the acts of the defendant.'* 
 
 25Cora. V. Van Horn, 188 Pa. 143. ^^Brown v. Com., 76 Pa. 319. 
 
 2«Com V. Werntz, 161 Pa. 591. ^ggee also §§ 21 and 25. 
 
 On a murder trial, the declarations '"Merigan v. McGonigle, 205 Pa. 
 
 of a child to her parents to the ef- 321 ; Laughlin v. Laughlin, 219 Pa. 
 
 feet that she had seen men near the 629. 
 
 place of the crime and had heard ^ ^iPostem v. Postern, 3 W. & S. 
 
 cries of distress, were allowed to be 127. 
 
 proved in connection with the testi- •''^Com. v. Bubuis, 197 Pa. 542. 
 
 mony of the child to thfc same ef- "First National Bank v. McMan- 
 
 fect: Howser v. Com., 51 Pa. 332. igle, 69 Pa. 156. 
 
 2'Kane v. Com., 109 Pa. 541. '*Gilchrist v. Bale, 8 Watts 355. 
 
262 
 
 PENNSYLVANIA TRIAL EVIDENCE. 
 
 § 298. Res Gestae — Negligence. When a person is injured 
 accidentally or through an act of negligence of another, the actual 
 occurrence usually occupies a very brief interval of time, and is 
 quickly ended. The res gestae of such transaction is therefore 
 usually very limited, and the period when declarations become 
 merely narrative of a past occurrence begins very soon after the 
 accident. ^'^ Therefore, to be competent evidence, they should be 
 made contemporaneously with the injury or accident, or within 
 so short a time thereafter as to exclude all opportunity for pre- 
 meditation, and lead to the conclusion that they were spontaneous 
 utterances called forth by the happening of the event. ^® 
 
 35Keefer v. Pacific Ins. Co., 201 
 Pa. 448. See opinion of Sui,z- 
 EERGER, P. J., in McCuIlough v. 
 Transit Co., 16 Dist. 513. 
 
 si^Evidence has been received of 
 declarations of a locomotive engi- 
 neer made immediately after an ac- 
 cident, to the effect that the train 
 was behind time : Hanover Rail- 
 road V. Coyle, 55 Pa. 396; declara- 
 tions made while the injured per- 
 son's clothing was in flames, as to 
 the cause of an explosion of an oil 
 lamp: Elkins v. McKean, 79 Pa. 
 493 ; declarations of a person in- 
 jured while getting off a train, 
 made after the train had moved 
 from the station, and while declar- 
 ant was lying on the station plat- 
 form : Penna. Railroad v. Lyons, 
 129 Pa. 113; declarations of a 
 motorman and another employee of 
 defendant, made within a couple 
 minutes after an accident, and while 
 the injured person was lying on the 
 track: Coll v. Transit Co., 180 Pa. 
 6r8; declarations of a chief steve- 
 dore as to the insufficiency of a 
 rope, the breaking of which caused 
 plaintiff's injuries: Mullan v. 
 Steamship Co., 78 Pa. 25; decla- 
 rations of defendant's employees 
 made while a fire was burning and 
 tending to show it was caused by 
 (heir negligence : Shafer v. Lacock, 
 168 Pa. 497; declarations of drivers 
 
 of two omnibusses, made immedi- 
 ately after a collision between them, 
 and accusing each other of negli- 
 gence : Baylis v. Omnibus Co., 173 
 Pa. 378. 
 
 In the following cases evidence 
 offered as res gestae was excluded: 
 Declarations of officers of a rail- 
 road, made after an accident: Erie 
 & W. V. Railroad v. Smith, 125 Pa. 
 iSg; Briggs v. East Broad Top 
 Railroad, 206 Pa. 564; or of de- 
 fendant's superintendent, made two 
 days after the accident : Garrett v. 
 Hillside Coal Co., 4 Walk. 451; 
 declarations of a driver, made after 
 the person injured had gone to a 
 hospital to have his wounds dressed 
 and had returned to the place where 
 the team was standing: Quigley v. 
 Adams Express Co., 27 Super. 116; 
 declarations of a person injured, 
 made fifteen minutes after the ac- 
 cident and not at the place where 
 it happened : Keefer v. Ins. Co., 
 201 Pa. 448; Greed v. Light Co., 
 238 Pa. 242 ; exclamations by a 
 third person made while the car 
 which injured plaintiff was ap- 
 proaching, to the effect that it 
 would run over plaintiff : Shadow- 
 ski v. Railway, 226 Pa. 537; con- 
 versation between the driver of a 
 carriage and motorman of a car, 
 after the former had been thrown 
 . from his carriage by a collision 
 
HEARSAY. 
 
 263 
 
 § 299. Res Gestae — Payment. Declarations accompanying^'' 
 payment of money are part of the res gestae of such act, and are 
 admissible to show the application or purpose or on whose ac- 
 count the payment was made or received.^* Being a part of the 
 transaction, such statements will not be excluded on the ground 
 that the person who made them was a competent witness and 
 should have been called to testify. If a party constitutes another 
 his agent to receive payment, the declarations of the agent in 
 following out his instructions^' as to matters connected with the 
 payment are provable as such either by the testimony of the 
 agent himself or by a third person who heard thern.^" 
 
 § 300. Res Gestae — Possession of Realty. Declarations of the 
 owner of land while in actual possession, indicating the extent 
 and character of his possession or claim of possession,*^ or ex- 
 planatory of his claim of title,*^ are competent evidence either 
 against him or in his favor on the theory that they are part of 
 
 with the car and had gotten up 
 and gone to the raotorman: Mc- 
 Cullough V. Transit Co., 16 Dist. 
 513; declarations of the motorman 
 of a car after an injured person 
 had been moved from the place of 
 accident: Oster v. Schuylkill Trac- 
 tion Co., 19s Pa. 320; expressions 
 of opinion as to the origin of a fire, 
 made by a bystander not shown to 
 have any knowledge or means of 
 knowledge thereof and at a later 
 time and different place : Trexler v. 
 Baltimore & Ohio Railroad, 28 
 Super. 198; declarations by per- 
 sons arrested in alleged bawdy 
 house, not made in presence of de- 
 fendant and there being no evi- 
 dence to show when or where they 
 were made : Com. v. Evans, 53 
 Super. 443. 
 
 ^^Declarations made after the 
 transaction to the effect that cer- 
 tain payments were made are inad- 
 missible : Young v. Com., 28 Pa. 
 SOI. 
 
 ssWoodwell V. Brown, 44 Pa. 121 ; 
 Featherman v. Miller, 45 Pa. 96; 
 Layton v. Brightfield, 3 Penny. 181 ; 
 Laughlin v. Laughlin, 219 Pa. 629. 
 
 Where a bill of exchange was 
 handed by a vendee to the vendor's 
 clerk in payment for goods bought, 
 which the clerk refused to accept 
 but told the vendee he would show 
 it to his employer, statements made 
 by the employer when shown the 
 bill are admissible as part of a con- 
 tinuous transaction : Koch v. How- 
 ell, 6 W. & S. 3S0. 
 
 ^^Declarations of an agent are not 
 admissible if made outside the busi- 
 ness of his agency : Mueller's Es- 
 tate, 159 Pa. 590. See also § 76. 
 
 *°Portland v. Lewis, 2 S. & R. 
 197; Featherman v. Miller, 45 Pa. 
 96; Deardorf v. Hildebrand, 2 
 Rawle 226; Levering v. Ritten- 
 house, 4 Whart. 130. 
 
 *iBennett v. Hethington, 16 S. & 
 R. 193; Sample v. Robb, 16 Pa. 
 305; Dawson v. Mills, 32 Pa. 302; 
 Susquehanna Coal Co. v. Quick, 68 
 Pa. 189. 
 
 ^^Bennett v. Hethington, 16 S. & 
 R. 193; Miles V. Miles, 8 W. & S. 
 135; Jones V. Brownfield, 2 Pa. 
 SS ; Duffy v. Congregation, 48 Pa 
 46. 
 
264 PKNNSYLVANIA TRIAL F.VmENCE. 
 
 the res gestse of his possession.*'' Declarations of a tenant, made 
 while in possession, are also admissible as explanatory of the 
 character of his possession,** and it is immaterial whether he be 
 living or dead. The declarations are admissible because they ac- 
 company the possession and explain its nature and not be- 
 cause they are the declarations of a deceased person whose testi- 
 mony can no longer be obtained." But declarations of a tenant 
 will not be received to prove a parol lease or its terms.*" 
 
 § 300a. Res Gestae — Rape. On the trial of an indictment for 
 rape, the fact that the woman upon whom the alleged rape was 
 committed made complaint to persons to whom she would natu- 
 rally complain, is competent evidence. There has been consider- 
 able discussion and differences of opinion in various jurisdictions 
 as to the theory on which such evidence is admitted, and conse- 
 quently as to whether or not the details of the complaint should 
 also be received. The better reasoning seems to favor its admis- 
 sion as a part of the res gestje of the transaction, and consequent 
 admission of the details as well as the fact of complaint, and 
 without regard to whether or not the woman upon whom the 
 rape is alleged to have been committed has been called as a wit- 
 ness.*^ However, in the latter case, no conviction should be per- 
 mitted if the complainant could have been called to testify but did 
 not take the stand, nor should 'a conviction be sustained where 
 she could not be called, unless there is also other evidence tend- 
 ing to prove the fact that the rape was committed.*' 
 
 Statements made by the complainant in answer to questions 
 will not be excluded so long as there is no indication that the an- 
 swers were prompted by the questions.*" 
 
 The weight of such complaints as evidence depends upon the 
 promptness with which they were made and the nature of the 
 explanation given for any delay. An unreasonble or unexplained 
 
 *^See §§ 276 and 291 for declara- *'See elaborate discussion of this 
 
 tions and reputation as to bound- question by Endlich, P. J., in Com. 
 
 aries. v. Bardino, 20 Dist. 473. Compare 
 
 **Rankin v. Tenbrook, 6 Watts also rule applicable to desertion 
 
 388; Sheaffer v. Eakman, 56 Pa. cases, § 295. 
 
 144; Broloskey v. McClain, 61 Pa. *8Com. v. Bardino, 20 Dist. 473. 
 
 146- *''Com. V. Bardino, 20 Dist. 473. 
 
 *5Sheaffer v. Eakman, 56 Pa. 144; Compare Com. v. Dorwart, 19 Dist. 
 
 Broloskey v. McClain, 61 Pa. 146. 740. 
 
 *<'Garber v. Doersom, ii^ Pa. 162. 
 
HEARSAY. 265 
 
 delay would justify a strong inference against the truthfulness 
 of the complainant's testimony.'*" 
 
 § 301. Res Gestae — Sale of Property. Declarations ' accom- 
 panying a sale or transfer of property and illustrating the char- 
 acter of the transaction, are competent evidence within the res 
 gestae rule. But those made prior"^ or subsequent^- thereto are 
 not admissible unless the transaction was not completed and 
 something remained to be done before title to the property would 
 pass.°^ Declarations have been admitted when offered to show 
 for whom'** or from whom'*" the property was purchased, or who 
 was the owner of it^" or how and for what purpose the trans- 
 feree was to hold it,**' or to show the transaction was or was not 
 fraudulent as to creditors. '' And when a purchaser of land at 
 sheriff's sale is accused of fraudulently preventing competitive 
 bidding, evidence is admissible of everything said or done by 
 him to that end,'" and also of declarations of bystanders at the 
 sale, apparently influenced by his acts."" 
 
 § 302. Self Serving Declarations. Declarations which are 
 favorable t-o the interests of the person making them, made in 
 the absence of the other party to the transaction and not coming 
 within some recognized exception to the hearsay rule nor offered 
 to rebut evidence of want of credibility,'*' are not admissible on 
 
 5»Com. V. Mtynarczyk, 34 Super. ^sGrim v. Bonnell, 78 Pa. 152. 
 
 256. See Donaldson v. Com., 95 ^^A bill of lading is admissible 
 
 Pa. 21, where the court criticized at a declaration by the party de- 
 
 the failure of the commonwealth to livering it that the goods belonged 
 
 call a physician who had examined to the consignee : Jordan v. Wil- 
 
 the woman a day after the alleged son, 25 Pa. 390. And where there 
 
 rape was committed. is a question as to whether title 
 
 s^Selin V. Snyder, 11 S. & R. 319; to goods had passed, evidence of 
 
 Plumer v. Guthrie, 76 Pa. 441. payment and how it was to be 
 
 s^Banks v. Clegg, 14 Pa. 390. made is admissible : Fitler v. Mor- 
 
 Subseqiient declarations of a father ris, 6 Whart. 406, 
 
 that land transferred to his sons ^'Sergeant v. Ingersoll, 15 Pa. 
 
 had been given by way of advance- 343. 
 
 ment are not admissible : Levering '^Kimmel v. McRight, 2 Pa. 38 ; 
 
 V. Rittenhouse, 4 Whart. 130; Mil- York County Bank v. Carter, 38 
 
 ler's Appeal, 107 Pa. 221. Pa. 446; Poundstone v. Jones, 182 
 
 s^Thompson v. Franks, 37 Pa. Pa. S74- 
 
 327. soSelim V. Snyder, 11 S. & R. 
 
 5*Burk V. Hoover, 3 P. & W. 292 ; 319; Hoffman v. Strohecker, 9 
 
 Rees v. Livingston, 41 Pa. 113; Watts 183. 
 
 Hay v. Martin, 2 Mona. 526; Light ""Walter v. Germant, 13 Pa. 515. 
 
 V. Zeller, 144 Pa. S7o. "'See § 11. 
 
266 
 
 PENNSYLVANIA TRIAL EVIDENCE. 
 
 behalf of the person making them. To admit such evidence 
 would give him an opportunity to manufacture testimony 
 for himself."^ Admissions or declarations of a party against 
 his own interest are competent evidence against him how- 
 ever, and while the whole of what was said at the time may then 
 be offered in rebuttal,"' self serving declarations made at other 
 
 ^-Self interest induces men to be 
 cautious in saying anything against 
 themselves, but prone to speak in 
 their own favor. It is a safe rule 
 therefore to admit the one in evi- 
 dence and to reject the other: 
 Bassler v. Niesly, 2 S. & R. 352. 
 The rule excluding such declara- 
 tions has been applied in the follow- 
 in cases : declarations made at 
 the time a writing was signed but 
 not in the presence of the other 
 party : Wallace v. Baker, i Bin. 
 6io; Reichart v. Castator, 5 Bin. 
 log; United States v. Mertz, :> 
 Watts 406; Wilt V. Snyder, 17 Pa. 
 77 ; Medary v. Gathers, 161 Pa. 87 ; 
 Hentzler v. Weniger, 32 Super. 164; 
 conversations occurring after a 
 transaction or at the time but not 
 in presence of other party : Gorden 
 V. Bowers, 16 Pa. 226; Africa v. 
 Trexler, 232 Pa. 493 ; declarations 
 of a vendee when he took possession 
 of land, as to the terms of his con- 
 tract of purchase : Taylor v. 
 Adams, 2 S. & R. S34 ; statements in 
 a letter to a third person respecting 
 the matter in controversy, though the 
 letter had been admitted on other 
 grounds : Jacoby v. I<aussatt, 6 S. 
 & R. 300; declarations of defend- 
 ant in a judgment, offered to de- 
 stroy its validity : Unangst v. Good- 
 year, 141 Pa. 127; Tisch v. Utz, 
 142 Pa. 186; statements made by 
 defendant in his affidavit of de- 
 fense : Jacoby v. Ins. Co., 10 Super. 
 366; declarations by a party to a 
 cause, confirming his testimony at 
 the trial, unless part of the res 
 
 gestae or offered to rebut evidence 
 ot recent fabrication : Wills v. 
 Church, S S. & R. 19°; Romig v. 
 Romig, 2 Rawie 239; Clever v. Hil- 
 berry, 116 Pa. 431; Crooks v. 
 Bunn, 136 Pa. 368 ; Frazer v. Linton, 
 183 Pa. 186; see also §§ 10 and 11; 
 books of a defendant in a suit for 
 an alleged loan, showing absence 
 of entry of receipt of loan : Doug- 
 lass V. Mitchell, 35 Pa. 440; oath 
 of a person made before" an elec- 
 tion officer, to the effect that he was 
 of sufficient age to votfe, where the 
 question is whether he is of such 
 age: Clark v. Church, S W. & S. 
 266; declarations of alleged part- 
 ner to third persons, to the effect 
 that he was not a member of the 
 frrm : Sinsheimer v. Hartman, ig 
 Super. 494; entries in a tax as- 
 sessor's book, where the question is 
 whether property was rural or 
 urban : Philadelphia v. Gowen, 202 
 Pa. 433 ; statement by testator in 
 his will that a certain person was 
 indebted to him, unless it be coupled 
 with direction that the debt be de- 
 ducted from a legacy given the 
 debtor : Eichelberger's Estate, 13s 
 Pa. 160. Where there is a question 
 for which of two persons of the 
 same name a land warrant was in- 
 tended, acts and declarations of a 
 claimant prior to the date of the 
 warrant are evidence in his own 
 favor, but not those done or made 
 thereafter : Simpson v. Hall, 4 S. & 
 
 R- 337. 
 
 "»See § 59. 
 
HEARSAY. 
 
 267 
 
 times will not be received for that purpose."* 
 
 § 303. Self Serving Declarations — Letters — Statements Con- 
 tained In. Conversations between parties in relation to matters 
 in dispute are always competent evidence in a subsequent suit 
 growing out of the dispute, and written communications between 
 them in the form of letters are admissible on the same principle 
 when the letters of one are replied to by the other, or though not 
 replied to, are shown to have been received and to have contained 
 matters which called for reply"'' or where they contain som« 
 formal demand or notice which it is the duty of the party sending 
 them to make or give. In such cases the letters are competent 
 as a whole, even though they contain statements favorable to the 
 interest of the party who sent them and on whose behalf they 
 are offered. "^ 
 
 A letter written by a plaintiff to the defendant before a suit, 
 presenting his view of his rights with respect to the matter in 
 dispute but not shown to have been received and to which no re- 
 ply was made,"^ or written to third persons and not communi- 
 cated to the party against whom it is offered"' is not competent 
 
 «*Patton V. Goldsborough, 9 S. & 
 R. 47; Kean v. Ellraaker, 7 S. & 
 R. i; Galbraith v. Green, 13 S. & 
 R. 85 ; McPeake v. Hutchinson, s 
 S. & R. 295 ; Romig v. Roraig, 2 
 Rawle 239; Wonsetter v. Wonset- 
 ter, 23 Super. 321 ; Grove's Estate, 
 38 Super. 424. 
 
 «5See § 74- 
 
 ^^A letter containing a notice of 
 the recision of a contract or other- 
 wise relating to the subject matter 
 of the suit : Crossgrove v. Himmel- 
 rich, 54 Pa. 203 ; Selig v. Rehfuss, 
 19s Pa. 200, or making a demand 
 for payment, where demand was 
 essential to recovery : Glatfelter v. 
 Mendels, 46 Super. 562, is admis- 
 sible as a whole, even though it con- 
 tains statements favorable to the 
 plaintiff; and where a defendant 
 claims a set off for damages, and 
 the plaintiff contends the delay in 
 performance of the work for 
 which damages are claimed was 
 caused by the defendant's failure to 
 
 construct sidings to facilitate the 
 work, a letter complaining of such 
 failure, written by the plaintiff to 
 the defendant shortly after the con- 
 tract was made and before any 
 dispute arose, is admissible : Hucke- 
 stein V. Kelly, 152 Pa. 631. But a 
 letter written by a witness long 
 after the date of sending an allegea 
 notice and reciting that such notice 
 was sent, is inadmissible to prove 
 the fact of sending it : Gearhart v. 
 Gwinn, 32 Super. 567. 
 
 "'Fraley v. Bispham, 10 Pa. 320; 
 Dempsey v. Dobson, 174 Pa. 122; 
 Kann v. Bennett, 223 Pa. 36. 
 
 "^This rule has been applied to a 
 letter written by defendant in an 
 action for libel to a third person, to 
 the effect that at the time the al- 
 leged libel was printed he had leased 
 the newspaper containing it to an- 
 other : Crooks v. Bunn, 136 Pa. 
 368; and to letters between officers 
 of a defendant corporation, which 
 letters were not communicated to 
 
268 PENNSYLVANIA TRIAL gVIDKNCE. 
 
 on behalf of the plaintiff so far as such declarations are con- 
 cerned. 
 
 § 304. Self Serving: Declarations — Marriage — Proof of Accept- 
 ance of Offer. In an action for a breach of promise of marriage, 
 after proving the promise on the part of the defendant the plain- 
 tiff may prove her assent and acceptance by evidence of her acts 
 and her declarations to third persons showing expectation of mar- 
 riage, though done or made in the absence of the defendant."' 
 
 § 305. Self Serving Declarations — Memoranda and Accounts. 
 A memorandum of a transaction made by a party in his own 
 books and not coming within the rules governing book entries, is 
 not competent evidence in his favor. ^° Nor is an account of an 
 administrator evidence to show that no debt was due from his 
 intestate to claimant." On the same principle, one sued for an 
 alleged loan cannot show in support of his contention that he did 
 not receive the loan, that he made no entry of it and made cer- 
 tain declarations at the time respecting his financial condition 
 inconsistent with the receipt of the loan.^- 
 
 § 306. Testimony Given in Former Proceedings. The princi- 
 pal reasons for excluding hearsay testimony is because the 
 statements were not made under oath, and there was no op- 
 portunity to cross-examine the person making them. These ob- 
 jections do not apply if the statements offered were made in the 
 course of a prior judicial proceeding in which the other party 
 had an opportunity to cross-examine, and such testimony was 
 held admissible at common law in any subsequent proceedings 
 between the same parties and involving the same subject matter, 
 if for any sufficient reason the attendance of the witness could not 
 at that time be secured. This rule was applied not only to testi- 
 
 ihe plaintifif: American Car Co. v. '"Hottle v. Weaver, 2o6 Pa. 87; 
 
 Water Co., 218 Pa. 542. In an ac- Murphy v. McMullin, 219 Pa. 506. 
 
 tion for malicious prosecution, a A memorandum written on the bot- 
 
 letter written by the plaintiff in the torn of a certificate of protest, to 
 
 original suit to his counsel propos- the effect that notice of protest was 
 
 ing a compromise is inadmissible, duly sent, is not evidence if the 
 
 though the fact that a proposition memorandum is not in fact a part 
 
 for settlement was made at the of the certificate : Zollner v. Mof- 
 
 time is competent : Beach v. Wheel- fitt, 222 Pa. 644. 
 
 er, 24 Pa. 212. "Lehn v. Lehn, 9 S. & R. 57. 
 
 «»Moritz V. Melhorn, 13 Pa. 331 ; "Do^ghjasj ^ Mitchell, 35 Pa. 
 
 Ellis V. Guggenheim, 20 Pa. 287; 440. See § 94, notes 12 and 13. 
 Leckey V. Bloser, 24 Pa. 401. 
 
HEARSAY. 
 
 269 
 
 mony given in court, but also to depositions taken for the pur- 
 pose of being read in the former proceedings/' The common 
 law rule was substantially re-enacted by the Act of May 23, 1887, 
 P. L. 158, relating to the competency of witnesses/* The con- 
 stitutionality of the act was attacked on the ground that it vio- 
 lated that provision of the Constitution of Pennsylvania which 
 gives the accused in criminal prosecutions the right to meet the 
 witnesses face to face and a similar provision in the Constitution 
 of the United States giving him the right to be confronted by the 
 witnesses against him. The act was upheld however on the 
 ground that the prior proceeding in which the defendant had an 
 opportunity to cross-examine the witnesses, was a sufficient op- 
 portunity to exercise his constitutional right/'' 
 
 If the defendant waives his constitutional privilege and testifies 
 in his own behalf, his testimony may be used against him in a 
 
 I'SEvans V. Reed, 78 Pa. 415. 
 
 ^■•Section 3 of the act contains 
 ihe following provisions : "When- 
 ever any person has been examined 
 as a v^itness, either for the com- 
 monwealth or for the defense, in 
 any criminal proceeding conducted 
 in or before a court of record, and 
 the defendant has been present and 
 has had an opportunity to examine 
 or cross-examine, if such witness 
 afterwards die. or be out of the 
 jurisdiction so that he cannot be 
 effectively served with a subpoena, 
 or if he cannot be found, or if he 
 become incompetent to testify for 
 any legally sufficient reason, prop- 
 erly proven notes of his examina- 
 tion shall be competent evidence 
 upon a subsequent trial of the same 
 criminal issue ; but, for the pur- 
 pose of contradicting a witness, the 
 testimony given by him in another 
 or in a former proceeding may be 
 orally proved." 
 
 Section 9 of the same act pro- 
 vides : "Whenever any person has 
 been examined as a witness in any 
 civil proceeding before any tribunal 
 of this commonwealth or conducted 
 
 by virtue of its order or direction, 
 it such witness afterwards die, or 
 be out of the jurisdiction so that he 
 cannot be effectively served with a 
 subpoena, or if he cannot be found, 
 or if he become incompetent to tes- 
 tify for any legally sufficient rea- 
 son, and if the party against whom 
 notes of the testimony of such wit- 
 ness are offered, had actual or con- 
 struetive notice^ of the examination 
 and an opportunity to be present 
 and examine or cross-examine, 
 properly proven notes of the ex- 
 amination of such witness shall be 
 competent evidence in any civil is- 
 sue which may exist at the time 
 of his examination, or which may 
 be afterwards formed between the 
 same parties and involving the 
 same subject matter as that upon 
 wJiich such witness was so ex- 
 amined ; but for the purpose of 
 contradicting a witness, the testi- 
 mony given by him in another, or 
 in a former proceeding, may be 
 orally proved." 
 
 ^=Com. V. Cleary, 148 Pa. 26. See 
 Brown v, Com., 73 Pa. 321. 
 
270 
 
 PJlNNSYIvVANIA TRIAL, EVIDJJNOJ. 
 
 subsequent trial of the case even though he then decides not to 
 go on the stand. '^ 
 
 § 307. Testimony Given in Former Proceedings — ^Absence or 
 Disability of Witnesses. Testimony given in a former proceeding 
 is admissible in a subsequent proceeding if the witness is dead'' 
 or is out of the jurisdiction/* even though only temporarily ab- 
 sent/'' or cannot be found after diligent search,*" or is sick,*^ or 
 insane or in such a state of senility as to have lost his memory.*^ 
 And if a witness by reason of age and failing memory cannot 
 recall his testimony at the former trial, but swears that if he did 
 so testify it was true, his former testimony as to such matters 
 may be admitted.*^ 
 
 When a person examined as a witness is at the time competent 
 to testify but subsequently becomes incompetent for any reason, 
 his testimony taken when he was competent becomes admissible.'* 
 This rule applies where a party has been rendered incompetent 
 by reason of the death of his adversary,*^ or where the testimony 
 has been rendered incompetent by a statute passed after it was 
 given but before the subsequent trial.*" And if one accused of 
 
 'OCom. V. Doughty, 139 Pa. 383; 
 Com. V. House, 6 Super. 92. See §§ 
 484. 490. 
 
 "Chess V. Chess, 17 S. & R. 409; 
 Moore v. Pearson, 6 W. & S. SI ; 
 Jones V. Wood, 16 Pa. 25 ; Evans 
 V, Reed, 78 Pa. 415; §§ 3 and 9, 
 Act of 1887, § 306, note 74. 
 
 TSMagill V. Kaufifman, 4 S. & R. 
 317; N. Y. Ins. Co. V. Johnson, 23 
 Pa. 72 ; Giberson v. Patterson 
 Mills, 187 Pa. 513; §§3 and 9, Act 
 of 1887, § 306, note 74. 
 
 79-Wright V. Cumpsty, 41 Pa. 102. 
 
 s^BaUman v. Heron, 169 Pa. 510; 
 Greenan v. Eggeling, 30 Super. 253 ; 
 §§ 3 and g, Act of 1887; compare 
 Brennan v, Jacobs, I Mona. 213. 
 See note 88, this section. 
 
 s'^Perrin v. Wells, 155 Pa. 299; 
 Knights of Pythias v. Leadbeter, 2 
 Super. 461 ; §§ 3 and 9 of the Act 
 of 1887 admits notes of testimony 
 when the witness is "incompetent 
 to testify for any legally sufficient 
 reason." See § 306, note 74. 
 
 ^-Emig V. Diehl, 76 Pa. 359; 
 Malloy V. U. S. Express Co., 22 
 Super. 173. 
 
 *3Rothrock v. Gallaher, 91 Pa. 
 108. 
 
 8*See §§ 3 and 9, Act of 1887, 
 § 306, note 74. 
 
 ssWalbridge v. Knipper, 96 Pa. 
 48; Pratt V. Patterson, 81 Pa. 114; 
 Galbraith v, Zimmerman, 100 Pa. 
 374. The same rule is adopted by 
 provisions in §§ 3 and 9 of the Act 
 of 1887 permitting his former testi- 
 mony to be used when he has "be- 
 come incompetent to testify for any 
 legally sufficient reason." The fact 
 that it is afterwards discovered that 
 the surviving party would have 
 been a competent witness, is not 
 grounds for reversing at the in- 
 stance of a party who objected to 
 his competency : Merriman v. Mc- 
 Manus, 102 Pa. 102. 
 
 «"Wells V. Ins. Co.. 187 Pa. 166. 
 
HEARSAY. 271 
 
 crime testifies in his own defense, he waives his constitutional 
 privilege, and the testimony is admissible against him on a subse- 
 quent trial, even though he elects not to go on the stand at that 
 time.*^ 
 
 If the witness is living and not shown to be out of the juris- 
 diction or unable for other reasons to attend,*' or if it appears 
 he had not been fully examined at the previous trial,*' his former 
 testimony will not be admitted. While it was held in an early 
 case that depositions taken under a rule of court in a former 
 cause, but not in fact read in evidence at that trial, were inadmis- 
 sible in subsequent proceedings,"" under the Act of 1887^^ it is 
 immaterial whether they were in fact used on the prior trial. 
 
 The question whether a proper effort has been made to secure 
 the attendance of an absent witness before offering his testimony 
 taken at a former trial, is a preliminary one for the court,"^ and 
 after it has passed upon such question and admitted the testi- 
 mony on the ground of inability of the witness to attend, a sub- 
 sequent offer to prove that the witness could have attended will 
 not be received."^ The absence of a witness must not be due to 
 the fault of the party who offers his prior testimony.'* 
 
 § 308. Testimony Given in Former Proceedings — Contradiction 
 of Witness, Evidence of what a witness swore to in a former 
 proceeding, even though between different parties, is aways ad- 
 missible to contradict his present testimony and impeach his 
 credibility."^ In such case his prior testimony is not considered 
 as conclusively establishing the fact but as the declaration or ad- 
 mission of the witness that it is so,'" and it cannot be admitted 
 
 s^Com. V. Doughty, 139 Pa. 383 ; 215 Pa. 241 ; Clark v. Hubbard, 44 
 
 Cora. V. House, 6 Super. 92. Super. 37. 
 
 ssRichardson v. Stewart, 2 S. & "^pgyndstone v. Jones, 182 Pa. 
 
 K. 84; Huidekoper v. Cotton, 3 574. 
 
 Watts 56; Lafferty's Estate, 184 "*Com. v. Lenouskey, 11 Kulp 71. 
 
 Pa. 502. The court must be satis- '^Coyjrden v. Reynolds, 12 S. & R. 
 
 fied that proper effort has been 281 ; Parker v. Donaldson, 6 S. & 
 
 made to locate the missing witness r R. 132; Harden v. Hays, 9 Pa. 
 
 Clark V. Hubbard, 44 Super. 13. 151. For such purpose his former 
 
 s^Noble V. McCUntock, 6 W. & testimony may be orally proved : 
 
 S S8. Act of 1887, §§ 3 and 9, § 306, note 
 
 ""Lewis V. Stammers, i Dall. 2. 74- • 
 
 "See § 9 of Act of 1887, § 306, "SBecker v. Phila., 217 Pa. 344. 
 
 note 74. Depositions taken on a rule to open 
 
 "^Delahunt v. United Tel. Co., judgment are admissible in a sub- 
 
272 PENNSYLVANIA TRIAL EVIDENCE. 
 
 where, though ostensibly offered to discredit the witness, its ef- 
 fect is to operate as independent evidence,"' or where there is 
 nothing in it really contradictory to the testimony given at the 
 subsequent trial."' 
 
 § 309. Testimony Given in Former Proceedings — Parties — 
 Identity Of. In order to render prior testimony admissible in a 
 subsequent proceeding, identity of parties in interest must unite 
 with identity of subject matter in whole or in part."" The word 
 parties includes all persons having a right to control the proceed- 
 ings, to produce evidence and cross-examine witnesses, and to 
 appeal from the decision if the right of appeal lies.^"" At com- 
 mon law complete identity of all parties in the subsequent action 
 did not seem to be necessary, the question of admissibility der 
 pending rather on the opportunity of the party against whom the 
 evidence was offered to cross-examine the witness.^ While the 
 Act of 1887 merely states that the subsequent proceedings must 
 be between the same parties and involve the same subject matter, 
 the word parties would doubtless include those who were subse- 
 quently joined and substituted for the real party in a representa- 
 tive capacity. This construction is sanctioned by the Act of 
 March 28, 1814, 6 Sm. L. 208, which provides that depositions 
 taken in a cause may be read in evidence in any subsequent cause 
 where the same matter shall be in dispute between the parties or 
 their heirs, executors, administrator or assigns, and under which 
 act it has been held that the notes of testimony taken at the 
 former trial stand on the same footing as depositions. - 
 
 Testimony in a suit by a husband and wife to recover for in- 
 juries to the wife in an accident in which both were injured, is 
 not admissible in a subsequent suit by the husband for his own 
 injuries,^ nor are depositions in a suit by both for injuries to the 
 wife admissible in a subsequent action by the husband for loss 
 of services of his wife due to the same injury.' In such case 
 
 sequent pj-oceeding to show the "^Fearn v. F. Ferry Co., 143 Pa. 
 
 ground on which the rule to open 122; Kyper v, SheafFer, 42 Super, 
 
 was based, but not for the purpose 277. 
 
 of proving the facts testified to i<>»Walker v. Phila., 195 Pa. 168. 
 
 therein, the witness being person- iHaupt \. Henninger. 37 Pa. 138. 
 
 ally present: Anderson v. Snyder, -'Evans v. Reed, 78 Pa. 415. See 
 
 14 Super. 424. § 177. 
 
 "Smith V. Price, 8 Watts 447. spearn v. Ferry Co., 143 Pa. 122. 
 
 »*Com. V. Scouton, 20 Super. f'ce § 177, note 29. 
 S03. •'Walker v. Phila., 195 Pa. 168. 
 
HEARSAY. 273 
 
 the joinder of the husband in the wife's suit is merely formal 
 and gives him no right of control. Testimony in an ejectment 
 suit brought by an executor is not admissible in a subsequent 
 suit by the same person as an individual in regard to the same 
 subject matter, but claiming against the testator's will ;" nor are 
 depositions taken in a suit for trespass admissible in a subse- 
 quent proceeding in which other parties, though employees of 
 one of the prior parties, are joined." But where two actions 
 against the same defendant, one by a single plaintiff and the 
 other by the same plaintiff and another jointly, were* tried to- 
 gether by consent, it was held that depositions taken in one pro- 
 ceeding were admissible on the joint trial.' And the mere fact 
 that in an action of replevin a stranger to the controversy was 
 joined as a party defendant, does not make the testimony inad- 
 missible in a subsequent action between the proper parties." 
 
 § 310. Testimony Given in Former Proceedings — ^Nature of 
 Proceedings. So long as the former testimony was given under 
 oath in a judicial proceeding of some kind to which the person 
 against whom the testimony is offered was a party and in which 
 he had the right and opportunity to cross-examine, the actual 
 nature of the proceedings is of secondary importance. *" Testi- 
 mony taken under a rule to show cause why judgment should not 
 be opened," or in proceedings before road jurors,^^ or before 
 arbitrators,^- or referees,^^ has been admitted in subsequent pro- 
 ceedings. While in criminal cases, Section 3 of the Act of 1887 
 requires the testimony to have been taken "in or before a court of 
 record," testimony 'taken before a committing magistrate will be 
 admitted though such court is not a court of record, so long as the 
 right to cross-examine had been exercised or had been waived.^* 
 These decisions are based on the common law rule that the oppor- 
 tunity and right to cross-examine is the criterion for judging of 
 
 ^Sample V. Coulson, 9 W. & S. 62. '"Haupt v. Henninger, 37 Pa. 
 
 'Kyper v. Shaefifer, 42 Super. 138. 
 
 277. i^Keim v. Reading, 32 Super. 613. 
 
 ^Smith V. Lane, 12 S. & R. 80; i^Zell v. Benjamin, i Walk. 113; 
 
 Hocker v. Jamison, 2 W. & S. 438. Walbridge v. Knipper, 96 Pa. 48. 
 
 ^Wright V. Cumpsty, 41 Pa. 102. "McAdam v. Stilwell, 13 Pa. 90. 
 
 "Section 9 of the Act of 1887 re- See § 177. 
 
 fers to "any civil proceeding before i*Brown v. Com., "jj. Pa. 321 ; 
 
 any tribunal of tlie commonwealth, Com. v. Keck, 148 Pa. 639; Com. v. 
 
 or conducted by virtue of its order Lenousky, 206 Pa. 277. 
 or direction." See § 177. 
 18 
 
274 PENNSYLVANIA TRIAL EVIDENCi;. 
 
 the admissibility of the testimony even in criminal cases, which 
 rule has not been changed by the Act of 1887.^^ 
 
 A coroner's inquest is not a proceeding between the common- 
 wealth and a party subsequently indicted for the murder of the 
 deceased, and testimony given at the hearing cannot be admitted 
 in the subsequent prosecution.^" Nor is a criminal prosecution 
 an action between the prosecutor and the prisoner within this 
 rule. Hence a prosecution of the payee of a note for forgery 
 is not a proceeding between such prosecutor and the defendant 
 as will admit testimony given therein to be used in evidence in a 
 subsequent action on the note.^^ 
 
 § 311. Testimony Given in Former Proceedings — ^Proof — 
 Memorandum of Testimony. Where under the common law long 
 hand notes were offered to prove the testimony of a witness at a 
 former trial, it was not necessary to give the entire testimony ver- 
 batim, but the substance thereof was sufficient as in the case of 
 proof by oral testimony.^' This was a rule of necessity, since to 
 make long hand notes of the entire testimony would have pro- 
 longed trials to an unreasonable extent. When such notes are of- 
 fered therefore, it is only necessary that the person who made 
 them should be able to swear that he believes they contain the 
 substance of all that the witness said.^' 
 
 It is necessary however that the notes should be proved by the 
 person who made them. Proof by a third person, even though 
 he be the witness himself^" is not sufficient. This rule extends 
 to proof of notes made by the judge who heard the prior case, 
 since it is no part of his duty to make notes of testimony and 
 his official oath of office is not a substitute for an oath as a wit- 
 ness.^^ 
 
 JSKeim v. Reading, 32 Super. 613. of an examination in diief has no 
 
 i^McLain v. Com., 99 Pa. 86. recollection thereof aside from them 
 
 I'Harger v. Thomas, 44 Pa. 128. and does not recollect whether 
 
 i^Chess V. Chess, 17 S. & R. 409. there was a cross examination, the 
 
 i»Moore v. Pearson, 6 W. & S. notes are competent in absence of 
 
 SI ; Schall v. Miller, s Whart. 156. anything to show that there was 
 
 Notes of counsel which he alleges one: Chess v. Chess, 17 S. & R. 
 
 contain the whole of the substance 409; Moore v. Pearson, 6 W. & S. 
 
 of the examination in chief, and 51 ; Rhine v. Robinson, 27 Pa. 30. 
 
 what he thought material of the ^oFranklin Fire Ins. Co. v. Upde- 
 
 cross-examination, are competent: graff, 43 Pa. 350. 
 
 Phila. & Reading Railroad v. =iMiles v. O'Hara, 4 Bin. 108; 
 
 Spearen, 47 Pa. 300; and even Foster v. Shaw, 7 S. & R. 156; 
 
 though the person who made notes 
 
HEARSAY. 27s 
 
 § 312. Testimony Given in Former Proceedings — Proof — 
 Recollection of Person Who Heard Testimony. At common law, 
 evidence given at a former trial may be proved by the oral testi- 
 mony of any person who heard it.^^ It is not necessary that he 
 should be able to give the exact words used by the witness. This 
 would usually be impossible by reason of lapse of time and the 
 length of the testimony, and the more honest and conscientious 
 the witness might be the greater reluctance he would have in at- 
 tempting to swear positively to the exact words lised. All that 
 is necessary is that he should be able to give the substance of 
 what the witness said,^^ though he will not be permitted to give 
 the substance of the entire testimony of a number of different 
 witnesses, but must give the substance of what each separate 
 witness said.-* 
 
 The witness must be able to state the substance of the whole 
 testimony including the cross-examination, since it is the fact 
 that opportunity for cross-examination was given that makes the 
 evidence competent at all.^' The recollection of the witness 
 should be reasonably clear as to the facts testified to on direct 
 examination, and as to what extent, if any, they were affected by 
 the cross-examination.^'' And even though Ije may not be able 
 to testify to the substance of what the witness at the former 
 trial said, he may be permitted to prove what such witness did 
 not say, the omission being a fact which may be proved distinct 
 from any other.^' It is immaterial that a book from which the 
 witness refreshed his memory at the former trial is not pro- 
 duced.^* 
 
 While the acts providing for official stenographers have rendered 
 proof by the recollection of or memoranda taken by witnesses un- 
 necessary in most cases, there are still frequent occasions for re- 
 verting to such mode of proof, as for example in hearings before 
 justices of the peate or magistrates or before viewers or in similar 
 
 Livingstone v. Cox, 8 W. & S. 6l ; ssWolf v. Wyeth, 11 S. & R. 149; 
 
 Schall V. Miller, 5 Whart. 156. Watson v. Gilday, 11 S. & R. 337; 
 
 ^^Walbridge v. Knipper, 96 Pa. Hepler v. Mt. Carmel Bank, 97 Pa. 
 
 48. 420. 
 
 23Cornell v. Green, 10 S. & R. aeHepler v. Mt. Carmel Bank, 97 
 
 14; Chess V. Chess, 17 S. & R. 409; Pa. 420. 
 
 Hepler v. Mt. Carmel Bank, 97 Pa. „.d tt i ur ^^ 
 
 ^ ' ^' 27Bemus v. Howard, 3 Watts 255. 
 
 420. 
 
 =*Cotton V. Huidekoper, 2 P. & ''^ox v. Norton, i P. & W. 412. 
 
 W. 149. 
 
276 PliNNSYLVANIA TRIAI, EVIDENCE. 
 
 proceedings where shorthand notes are not always taken. The 
 Act of 1887 is silent as to how the prior testimony is to be proved 
 except for the purpose of contradicting a witness, in which case 
 it provides that the testimony may be orally proved. It has been 
 held, however, that the act does not change or limit the common 
 law rule in any way, and therefore oral proof may be resorted 
 to in any case where better proof cannot be had.^" 
 
 § 313. Testimony Given in Former Proceedings — Proof — Ste- 
 nographer's Notes of Testimony. Whenever the testimony of wit- 
 nesses is taken down in shorthand by an official stenographer, his 
 report of the proceedings at the trial becomes the best evidence 
 thereof and proof by the recollection or memoranda of witnesses 
 who heard it becomes incompetent in a subsequent proceeding 
 except for the purpose of contradicting a witness. The proper 
 method of proving the notes is to call the stenographer to identify 
 them or his official transcript thereof, and after such identification 
 he may be permitted to read therefrom as desired.'"' It is not 
 necessary that he have any personal recollection of the testimony 
 independent of his notes.'*' This would, in fact, be an impossi- 
 bility in most cases. By Section 4 of the Act of May nth, 191 1, 
 P. L. 279, whenever a transcript of the notes of testimony is duly 
 certified by the stenographer and the trial judge and filed of 
 record in the case, such notes are considered prima facia correct 
 whenever offered in a subsequent proceeding, without the neces- 
 sity of calling the official stenographer to prove them. A carbon 
 copy of the original transcript, which the stenographer swears 
 is a correct copy, has been allowed to be used in evidence where 
 the original filed in court had been lost.'^ 
 
 The fact that testimony is contained in a formal bill of excep- 
 tions does not render it competent without further proof. While 
 it is true that evidence incorporated in a bill of exceptions be- 
 comes part of the record of a case, it is a part thereof only for 
 the purpose of review by the appellate court and not for the 
 purpose of evidence in another proceeding.''' 
 
 § 314. Testimony Given in Former Proceedings — Subject Mat- 
 ter — Identity Of. Identity of subject matter in whole or in part 
 must unite with identity of parties in interest to render the testi- 
 
 20Keim v. Reading, 32 Super. 613. s^Maiioy v. U. S. Express Co., 22 
 
 '"Com. V. House, 6 Super. 92. Super. 173. 
 
 3iCom. V. Levi, 44 Super. 253. '^Edwards v. Gimbel, 202 Pa. 30. 
 
HlvARSAy. 277 
 
 mony in one case admissible in another.^* But so long as the 
 subject matter is the same, the form of the action is unimportant, 
 and the mere fact that in a subsequent suit the action was changed 
 in form from account render to assumpsit'^" or from replevin 
 to assumpsit,*" is immaterial. And even though the subject mat- 
 ter in dispute in the subsequent suit be different, testimony re- 
 lating to a particular branch of the suject of inquiry which 
 arose in both cases may be admitted. ^^ Testimony will not be 
 rejected merely because new matters have been introduced at the 
 second trial upon which the witness was not examined at the 
 first.** 
 
 In an action on a note, testimony given in a prior criminal pro- 
 ceeding for forging the note in suit is not competent. Aside from 
 the question of difference in parties, the subject matter in the 
 criminal prosecution is the guilt or innocence of the defendant, 
 while in the civil suit it is the question of liability on the note.*^ 
 And if the question in an action on a fire insurance policy is as 
 to the condition of the insurance company at a certain time, testi- 
 mony given in a former proceeding and relating to the condition 
 of the company prior to that time is incompetent.*" 
 
 § 315. Testimony Given in Former Proceeding — Whole of 
 Testimony. Whenever testimony given in a former proceeding 
 is offered, the whole of what was there said on the particular 
 subject under investigation must be given, since the effect of the 
 testimony is to be gathered from all that the witness said con- 
 cerning the matter, and it would be unfair to prove part of his 
 statements and exclude the rest.*^ Therefore if for the purpose 
 of contradicting the witness only part of his former testimony is 
 read, the whole of what he said on the same subject may then 
 be given in his behalf.*^ Where it is merely desired to prove an 
 
 s^Fearn v. Ferry Co., 143 Pa. ^spjrst National Bank v. Wire- 
 
 122; Kyper v. Shaeffer, 42 Super, bach, 106 Pa. 37. 
 
 277- sojjarger v, Thomas, 44 Pa. 128. 
 
 35Evans V. Reed, 78 Pa. 41S. 40Susquehaiina Fire Ins. Co. v. 
 
 =«Wright V. Cufflpsty, 41 Pa. 102. M^rdorf, 152 Pa. 22. 
 
 s^Where there is a dispute as to o o t> o 
 
 ^, , , . r ,■ ■ ■ , . *^Wo\i V. Wyeth, 11 S. & R. 148; 
 
 the boundaries of adjoining tracts tt j n^ 
 
 of land, testimony in proceedings to 
 
 Bemus v. Howard, 3 Watts 255. 
 
 recover one tract is admissible in ^^w^iihgim v. Cornell, 3 Grant 
 
 proceedings to recover another so 178; Rudy v. Myton, 19 Super, 
 
 far as it relates to the same bound- 312. - 
 ary : Jones v. Wood, 16 Pa. 25. 
 
278 PENNSYLVANIA TRIAL EVIDENCE. 
 
 admission made by the witness at a former trial, it is unnecessary 
 to put in evidence tiie whole of his testimony. The admission 
 alone will be received, and if there are any qualifying statements 
 the opposite party may then offer them in evidence.^' 
 
 ''^Com V. House, 6 Super. 92. 
 
JUDICIAI* NOTICE. 279 
 
 CHAPTER XL 
 
 JUDICIAI, NOTICi:. 
 
 § 316. General Principles. There are many matters, the ex- 
 istence, nature or truth of which the court will recognize with- 
 out proof, on the theory that they are self evident or of such 
 common knowledge as to render proof useless, the rule being 
 that the court will take notice of what ought to be and is generally 
 known within the limits of its jurisdiction.^ It is not necessary 
 that such matters be offered as evidence in the case, but they are 
 brought to the attention of the court and jury merely for the 
 purpose of refreshing their memory.^ 
 
 Under the above rule the courts will judicially notice the official 
 character of public officers,^ the existence of municipalities* or 
 municipal divisions of a county,^ various geographical facts, such 
 as the distance between," or location, of municipalities or the 
 boundaries and divisions of a state, ^ general historical facts^ and 
 other matters of common knowledge, such as the result of a 
 vote at a general election,^ or that a certain day of the month fell 
 on a particular day of the week,^" the ordinary speed of railway 
 trains between cities," or the use of photography as a proper 
 
 iKilpatrick v. Com., 31 Pa. 198. ^Pearce v. Langfit, loi Pa. 507; 
 
 ^Wilson V. Van Leer, 1^7 Pa. Com. v. Kaiser, 184 Pa. 493 ; Com. 
 
 371. V, Salawich, 28 Super. 330; Sheri- 
 
 ^This has been applied to judges : den Boro., 34 Super. 639. 
 
 Kilpatrick v. Com., 31 Pa. 198; ^An agreement between Lord 
 
 justices of the peace and aldermen : Baltimore and' William Penn, re- 
 
 Hibbs V. Blair, 14 Pa. 413 ; Fox v. latihg to the boundary line be- 
 
 Com., 81* Pa. Sli; deputy col- tween Maryland and Pennsylvania: 
 
 lectors of internal revenue and Thomas v. Stigers, S Pa. 480; or 
 
 their. official acts: Lerch v. Snyder, the termination of the Civil War: 
 
 112 Pa. 161; and members of the Com. v. Frink, 13 P. L. J. 127, will 
 
 bar: Phila. v. Jacobs, 22 W. N. C. be judicially noticed. 
 
 348. ^Rauch v. Com., 78 Pa. 490. 
 
 ^Monongahela City v. Electric ^^Wilson v. Van Leer, 127 Pa. 
 
 Light Co., 12 Pa. C. C. S2fl. 37i. 
 
 ^Sandy Lake Boro. v. Gas Co., 16 '*Pearce v. Langfit, loi Pa. 507; 
 
 Super. 234. Sloss-Sheffield Co. v. Iron Co., 54 
 
 *Pearce v. Lanfit, loi Pa. 507; Super. 11. Not decided whether 
 
 Sloss-Sheffield Co. v. Iron Co., 54 noflce would be taken of the time 
 
 Super. II. of arrival or departure of trains: 
 
 Pearce v. Langfit, supra. 
 
28o PENNSYLVANIA TRIAL EVIDENCE. 
 
 means of producing a correct likeness.^^ But judicial notice will 
 not be taken that benzine is of the same nature as camphine or 
 spirit of gas,'^ nor of the existence of a strike among telegraph 
 operators." 
 
 The court will also take judicial notice of the official acts of 
 the various departments of the general government/^ and of the 
 laws of their own state," but not of private acts," or municipal 
 ordinances,^^ or the laws of foreign states or countries unless 
 they are by implication incorporated in an Act of Congress/" or 
 the case is one which arises under the Federal Constitution, and 
 a writ of error would lie to the Supreme Court of the United 
 States where the states are not regarded as foreign, in which 
 case our courts will also take judicial notice of the law of any 
 state which may be necessary to a decision of the case.-" 
 
 General customs have the force and effect of laws, and may be 
 judicially noticed without other proof. ^^ 
 
 i-Udderzook v. Com., 76 Pa. 340. lar piece of land : Alleg. City v. 
 
 '■^Mears v. Humboldt Ins. Co., 92 Nelson, 25 Pa. 332; nor of special 
 
 Pa. 15. acts contained in volumes known as 
 
 '*Com. V. Telegraph Co., 14 W. Smith's Laws, but not printed in 
 
 N. C. 535- full : Clark v. Tpk. Co., 13 L. I. 
 
 '■^Lewis V. Lackawanna Co., 200 156. See § 239. 
 
 Pa. 590. J 8 York City v. Miller, 11 York 
 
 i"Van Swartow v. Com., 24 Pa. 138; Com. v. Chittenden, 13 Pa. C. 
 
 J3I. See § 239. C. 362; Phila. v. Cohen, 13 W. N. 
 
 ^''The court will not take judicial C. 468; Edwards v. Perrette, 35 C. 
 
 notice of the charter of a bank C. 269. 
 
 though incorporated under a gen- '"Flanigen v. Ins. Co., 7 Pa. 306. 
 
 eral banking law: First National -"Ohio \. Hinchman, 27 Pa. 479. 
 
 Bank v. Gruber, 87 Pa. 468; nor But see § 241. 
 
 act conferring certain powers on a -^Koons v. Miller, 3 W. & S. 
 
 corporation: Timlow v. Phila. & 271; Watt v. Hoch, 25 Pa, 411. 
 
 Reading Railroad, 99 Pa. 284; nor See also § 138. 
 providing for a survey of a particu- 
 
333. 
 334. 
 33S 
 336. 
 337. 
 338. 
 339 
 340 
 341 
 342 
 343. 
 344 
 345 
 346. 
 
 OPINIONS. 281 
 
 CHAPTER XII. 
 
 OPINIONS. 
 
 WITNESSES IN GENERAL. 
 
 317- 
 
 General Principles, 
 
 318. 
 
 Basis of opinion — Hypothetical question. 
 
 319. 
 
 Distance. 
 
 320. 
 
 Handwriting. 
 
 321. 
 
 Preliminary proof. 
 
 322. 
 
 Mental condition. 
 
 
 Physical condition. 
 
 323. 
 
 Persons. 
 
 324- 
 
 Places or objects — Negligence. 
 
 325- 
 
 Speed. 
 
 
 Value and damages. 
 
 326. 
 
 Generally. 
 
 327- 
 
 Realty. 
 
 328. 
 
 Qualification of witness. 
 
 329- 
 
 Cross examination. 
 
 330. 
 
 Preliminary question for court. 
 
 331. 
 
 Weather conditions. 
 
 B. EXPERTS. 
 
 332. General principles. 
 
 Basis of opinion. 
 
 Facts in evidence. 
 Hypothetical question. 
 
 Qualification of witness. 
 
 Weight of testimony. 
 Business Methods. 
 Common knowledge, matters of. 
 Handwriting. 
 
 Comparison. 
 Mechanical, enginering or scientific questions. 
 Mental condition. 
 Negligence. 
 Physical condition. 
 Professional skill. 
 Value. 
 
 A. WITNKSSIvS IN GENKE.\L. 
 
 § 317. General Principles. As a general rule a witness must 
 testify to facts within his knowledge and not to inferences of 
 
282 PENNSYLVANIA TRIAIv EVIDENCE. 
 
 fact/ or conclusions based on facts in the case or facts known 
 
 'Statements of a witness as to the 
 manner in which it was necessary 
 for a servant to perform certain 
 duties with which the witness was 
 familiar, are statements of, facts, 
 and not mere opinion, and are ad- 
 missble: Kehler v. Schwenk, 151 
 Pa. 505 ; and a statement that a 
 certain contract "was considered 
 at an end by all parties" ■ Devling 
 V. Williamson, 9 Watts 311; or, 
 that "several payments were agreed 
 to be made without any condi- 
 tion" : Commercial Bank v. Wood, 
 17 W. & S. 89, was held to be a 
 statement of the witness's ■ knowl- 
 edge of what the parties had agreed 
 upon. A witness acquainted with 
 the insurance business may testify 
 as to the influence which knowl- 
 edge of a particular fact would 
 have had in the making of a con- 
 tract of insurance : Hartman y. 
 Ins, Co., 21 Pa. 466'. Compare 
 Franklin Ins. Co. v. Gruver, lOo 
 Pa. 266. 
 
 The rule which prohibits a wit- 
 ness from testifying to his infer- 
 ences or conclusions based on facts 
 has been applied in the following 
 cases : Where the question was as 
 to the existence of an alleged oral 
 contract and a witness was asked to 
 state what was agreed upon be- 
 tween the parties : Smith' v. Colin, 
 170 Pa. 132; Dimeling v. Buffalo, 
 etc. Railroad, 215 Pa. 480; or what 
 was meant by language used : 
 Bane v. Council, 48 Super. 449; or 
 whether a contract complete in all 
 its terms had been made : Brown 
 V. Finney, dy Pa. 214; or whether' 
 from the conduct of two parties an 
 agreement existed between them : 
 Canfield v. Johnson, 144 Pa. 61; or 
 what was the understanding of the 
 parties to a transaction : Irwin v. 
 
 Nolde, 164 Pa. 205; or whether a 
 certain check was accepted in full 
 settlement of account: Smith v. 
 Cohn, 170 Pa. 132; or whether 
 from the conduct of certain parties 
 a mutual attachment or implied 
 promise of marriage existed; Les- 
 key V. Bloser, 24 Pa. 401; or 
 whether from declarations heard a 
 contract had existed between third 
 persons : Scull v. Irwin, 15 S. & R. 
 231 ; or whether there had been a 
 substantial performance of a con- 
 tract : Shires v. O'Connor, 4 Super. 
 46s ; or whether from acts or dec- 
 larations of the parties, the wit- 
 nesses believed libellant's life and 
 health were in danger : Richards 
 V. Richards, 37 Pa. 225; or whether 
 a wife's cruel treament of her hus- 
 ban(J affected his ability to attend 
 to his business : Barnsdall v. Barns- 
 dall, 171 Pa. 625; or whether an 
 attorney used proper discretion : 
 Livingston v. Cox, 8 W. & S. 6l ; 
 or whether a good artificial harbor 
 could be constructed at a certain 
 place: Miles v. Stevens, 3 Pa. 21; 
 or whether an ice jam was due to a 
 certain cause : Shaw v, Susq. Boom 
 Co., 125 Pa. 324; or whether a cer- 
 tain piece of land was included in 
 a levy : Woodburn v. Farmers' 
 Bank, S W. & S. 447; or whether 
 ill feeling between other parties 
 was due to a certain cause : Miller 
 V, Miller, 187 Pa. 572; or whether 
 a certain person whose claim had 
 been entered on the books of a 
 building association was a member 
 of the association : Fifth Mutual 
 Building Society v. Holt, 184 Pa. 
 572 ; or as to who appeared to be 
 the head of a certain household ; 
 Wood V. Praul, 217 Pa. 293; or 
 whether « cable, which the witness 
 had not seen, had been carefully 
 
OPINIONS. 
 
 283 
 
 to him.- Therefore if he says he does not know a certain fact 
 in question he cannot testify to his impressions' or to what he 
 thinks or believes concerning if or state his understanding of it 
 from, conversations with others.^ There are times, however, 
 when, by reason of the nature of the subject under investigation, 
 
 mended : Musser v. Lancaster City 
 Railway, 176 Pa. 621 ; or whether 
 it was possible to see one person 
 strike another at a certain distance, 
 there being nothing to show the 
 witness was any better qualified 
 than the jury to form a correct 
 conclusion : Com. v. ' Campbell, 31 
 Super. 9 ; or whether there was 
 danger of fire from leakage of gas 
 mains : Denniston v. Phila., i 
 Super. S99. 
 
 -Spotts V. Spotts, 4. Super. 448; 
 Underbill v. Wynkoop, 15 Super. 
 230; Satler Lumber Co. v. Exler, 
 239 Pa. 135. A witness will not be 
 permitted to answer a' question 
 which would make him the sole 
 arbitrator of the matter in dispute: 
 Omensetter v. Kemper,. 6 Super. 
 309; nor may he be asked whether 
 he made a complete contract: 
 Brown v. Finney, 67 Pa. 214; or 
 had fulfilled all his obligations with 
 reference thereto : Farrington v. 
 Woodward, 82 Pa. 259; or whether 
 a title is good and marketable: 
 Murray v. Ellis, 112 Pa. 4*^5; nor 
 may he give his opinion as to the 
 legal construction of a writing : 
 Ormsby v. Ihmsen, 34 Pa. 462. 
 
 On an indictment for selling oleo- 
 margarine as butter, a witness who 
 testified to the ingredients may not 
 be asked whether materials used 
 for coloring was not one of the 
 legitimate ingredients, since the an- 
 swer would involve the construc- 
 tion of the statute governing the 
 sale of oleomargarine: Com. v. 
 Mellet, 27 Super. 41. And in a 
 scire facias sur mechanics' lien, 
 
 where there is no dispute as to 
 whether any part of the structure 
 was old or new, the character of 
 the operation as a whole is a ques- 
 tion of law and opinions of con- 
 tractors are incompetent : Caldwell 
 V. Keating, 18 Super. 297. 
 
 ^If it appears from the testimony 
 of the witness that what he terms 
 his impression is founded on recol- 
 lection of facts and that he used 
 the word "impression"' as synony- 
 mous with "recollection," his testi- 
 mony is competent : Duvall v. Dar- 
 by, 38 Pa. 56- The admission of 
 testimony that a witness believed 
 that a certain act had not been done 
 is not error if he subsequently 
 gives the facts on which his belief 
 is based : Meighen v. Bank, 25 Pa. 
 288; and where he has te.stified to 
 the terms and conditions of an 
 agreement under which certain 
 payments were to be made, the 
 mere fact that he further gives his 
 opinion as to the effect of the 
 agreement does not render his testi- 
 mony objectionable: Commercial 
 Bank v. Wood, 7 S. & R. 89. Where 
 there is a question of identity or 
 personal skill which is not suscepti- 
 ble of direct proof, the witness may 
 be permitted to give his belief or 
 opinion : Carmalt v. Post, 8 Watts 
 406. 
 
 ^Carmalt v. Post, 8 Watts 406; 
 Burkholder v. Beetem, 65 Pa. 496. 
 
 ■"■Sampson v. Sampson, 4 S. & R. 
 329; Scull V. Wallace, 15 S. & R. 
 231; Given V. Albert, 5 W. & S. 
 333; Hartranft's Estate, 153 Pa. 
 530. 
 
284 PlCNNSYLVANIA TRIAL EVIDENCE. 
 
 the knowledge of the witness as to the facts and his conclusion 
 or opinion based thereon are so blended as to render it impos- 
 sible to determine where the former ends and the latter begins; 
 as for instance in questions relating to the condition of things or of 
 temperature, color, sound or distance where no accurate measure- 
 ments can be obtained. In such cases the witness must neces- 
 sarily testify to the results of his observations made in regard to 
 an appearance or condition which he cannot reproduce for the 
 benefit of the jury. There are also cases where, because of the 
 nature of the question involved, the court and jury require the 
 aid of persons having special knowledge or experience in regard 
 to the subject matter under consideration which ordinary wit- 
 nesses do not have. Such witnesses are permitted to testify to 
 conclusions from the facts in evidence because the jury are with- 
 out the requisite knowledge to draw the conclusions for them- 
 selves.* 
 
 It follows from the foregoing principles that whenever the 
 circumstances can be fully and adequately described to the jury 
 and are such that their bearing on the issue can be estimated by 
 all men without special knowledge or training, opinions of wit- 
 nesses, whether expert or non-expert, are not admissible;' but 
 where mere descriptive language is inadequate to convey to the 
 jury the precise facts or their bearing on the issue, the descrip- 
 tion of the witness must of necessity be allowed to be supple- 
 mented by his opinion, in order to put the jury in a position to 
 make an intelligent and final decision on the facts.* The appli- 
 cation of this rule to existing facts is a matter on which opinions 
 may naturally differ, and the only proper course is to keep the 
 
 "See § 332. sfhe ground upon which such evi- 
 
 'Graham v. Penna. Railroad, 139 dence is admissible is that of ne- 
 
 Pa. 149; Dooner v. Canal Co., 164 cessity. because the facts in issue 
 
 Pa. 17; Auberle v. McKeesport, cannot be adequately described or 
 
 179 Pa. 321; Smith v. Traction are of such nature that they can^ 
 
 Co., 187 Pa. no; Closser v. Wash- not_ otherwise be readily under- 
 
 ington Twp.. 11 Super. 112; Reese stood by the jury. Hence, it fol- 
 
 V. Clark, 198 Pa. 312; Phila. v. lows that whenever such necessity 
 
 Dobbins. 24 Super. 136. Where the does not exist this exception to the 
 
 jury have all necessary data from general rule requiring witnesses to 
 
 which they may make a simple testify to facts and not conclusions 
 
 mathematical computation, the wit- of opinions also ceases : Graham v. 
 
 ness will not be permitted to make Penna. Railroad Co., 139 Pa. 149. 
 it for them : Blauvelt v. Railroad, 
 206 Pa. 141. 
 
OPINIONS. 285 
 
 principle steadily in view and apply it according to the circum- 
 stances of each case." 
 
 § 318. Basis of Opinion — Hypothetical ftuestion. As a gen- 
 eral rule, the opinion of a non-expert witness must be based on 
 facts known or testified to by him, and is supplementary to his 
 verbal description. He cannot be asked to give an opinion on a 
 hypothetical statement of facts of which he has no knowledge." 
 
 § 319. Distance. A witness may always be permitted to give 
 his opinion as to distance,'^ particularly if there was no opportun- 
 ity to make accurate measurments. But if measurements could 
 have been easily obtained and accuracy therein is important in 
 the case, opinions have very little weight and should not be ac- 
 cepted as against actual measurements made by other witnesses. ^- 
 A witness who saw work done in connection with the grading of 
 a railroad track, may give an estimate as to the height of the 
 grade even though he did not measure it.^^ 
 
 § 320. Handwriting. Any person familiar with the hand- 
 writing of another is competent to give his opinion as to whether 
 a particular writing was done by such person.^* But he must 
 testify from personal knowledge of the handwriting, not from 
 what others have told him, and while he may state his belief as 
 
 "Graham v. Penna. Railroad Co., spots, even though he made no 
 139 Pa. 149. Thus the question chemical analysis of them: Gaines 
 whether or not a trolley pole in the v Com., 50 Pa. 319. And where 
 middle of the street was in a dan- experts disagree, the opinions of 
 gerous condition is not a matter non-expert observers as to whether 
 of opinion but a matter of descrip- certain stains were human blood 
 tion : McKim v. Phila., 217 Pa. 243. may be sufficient to sustain a con- 
 But whether or not a person was viction in a criminal case : McLain 
 intoxicated may be .the subject of v. Com., 99 Pa. 86. 
 an opinion by witnesses who saw i^Beardslee v. Columbia Twp., 
 his actions at the time, because the 188 Pa. 496; Com. v. Marion, 232 
 effects of liquor differ so widely in Pa. 413. 
 
 different persons that mere descrip- uDowny Bros. v. Railroad, 219 
 
 tive language would be inadequate Pa. 32. 
 
 to convey to others the informa- ^^Rgthchild v. Railroad, 163 Pa. 
 
 tion necessary for the formation of 49; McNeill v. Milville Coal Co., 
 
 an intelligent opinion : Com. v. 12 Luz. Leg. Rec. 205 ; Mclntyre v. 
 
 Eyler, 217 Pa. 512. See also first City, 238 Pa. 524. 
 
 paragraph of note i, this section. I'Downey Brothers Co. v. Penna. 
 
 A witness may testify that an arti- Railroad, 2ig Pa. 32. 
 
 cle sold resembled yellow butter : I'lSection i of the Act of May 15, 
 
 Com. V. Caulfield, 27 Super. 279; 1895, P. L. 69, as amended by Act 
 
 or that certain spots were blood June 6, 1913, P. L. 4Si, provides 
 
286 
 
 PENNSYLVANIA TRIAI, EVIDENCli;. 
 
 to its genuineness" such belief must be founded on his knowl- 
 edge of the handwriting and not on circumstances connected with 
 the writing in question.^' 
 
 The necessary knowledge may have been acquired either from 
 having seen the party write^' or from having had ' communica- 
 tion with him by letter or otherwise under circumstances afford- 
 
 ihat "where there is a question as 
 to any writing, the opinions of the 
 following persons shall be deemed 
 to be relevant: (a) The opinion of 
 any person acquainted with the 
 handwriting of the supposed writ- 
 er.". 
 
 i^Watson V. Brewster, I Pa. 381. 
 A witness will not be permitted to 
 testify to his impression as to hand- 
 ing: Carter v. Connell, I Whart. 
 392. But testimony has been ad- 
 mitted where the witnesses merely 
 declared that the writing looked 
 like that of the party alleged to 
 have written it, though they could 
 not say they believed it to be his 
 writing: Shitler v. Bremer, 23 Pa. 
 413. Compare Fullam v. Rose, 181 
 Pa. 138, where it was held that the 
 mere statement that the signature 
 "looks like" that of a certain per- 
 son, is insufficient for any purpose 
 and especially not to warrant the 
 adoption of such signature as a 
 test for comparison. 
 
 i^Testimony will be rejected 
 where the witness is unable to 
 identify writing from a knowledge 
 thereof, but only because it was 
 written on the margin of a letter 
 written by the party in question : 
 Taylor v. Sutherland, 24 Pa. 333. 
 
 I'A witness who has seen a party 
 sign his name but once : McNair v. 
 Com., 26 Pa. 388; Wilson v. Van 
 Leer, 127 Pa. 371 ; Broadrick v. 
 Broadrick, 25 Super. 225; or who 
 has repeatedly heard him acknowl- 
 edge his signature without having 
 seen him write it : Cabarga v. 
 
 Seger, 17 Pa. 514, may be permit- 
 ted to testify to the handwriting; 
 but if he has no recollection of the 
 signature, and if on refreshing his 
 memory from a known genuine 
 signature he is still unable to testify 
 independently of comparison of the 
 signatures, he is not competent: 
 McNair v. Com., 26 Pa. 388. See- 
 ing a person write is insufificient to 
 qualify a witness if the writing was 
 done for that express purpose : 
 Reese v. Reese, 90 Pa. 89. 
 
 Familiarity with handwriting of a 
 party from having frequently seen 
 writing admitted to be genuine is 
 sufficient though the witness may 
 never have actually seen him write : 
 Secofid National Bank v. Wentzel, 
 151 Pa. 142; and knowledge se- 
 cured in an office where the writer 
 worked as a clerk is also sufficient: 
 Goddard v. Gloninger, 5 Watts 209. 
 
 If a person has been dead for a 
 long time, witnesses may speak 
 from knowledge derived from sig- 
 natures and writings in family rec- 
 ords admitted to be in such per- 
 son's handwriting, from letters in 
 possession of the family purporting 
 to be signed by him, and from offi- 
 cial documents filed in the proper 
 office and acted upon as genuine : 
 Sweigart v. Richards, 8 Pa. 436. But 
 if there are living witnesses who 
 are capable of proving the writing 
 from their own knowledge, they 
 should be called : Vickroy v. Skel- 
 ley, 14 S. & R. 37^. 
 
OPINIONS. 
 
 287 
 
 ing a reasonable presumption that the letters or documents were 
 in the handwriting of the party. ^* 
 
 No arbitrary limit of time can be fixed within which a witness 
 must have seen a person write. It must depend upon his intelli- 
 gence, his habit of observation, and the apparent strength and 
 competence of his memory, which must be passed on in the first 
 instance by the court. ^'' 
 
 § 321. Handwriting — Preliminary Proof. Before an opinion 
 on handwriting will be received, there must be preliminary proof 
 of the qualifications upon which the witness bases his right to 
 testify,^" and he may be cross-examined and his knowledge 
 tested by showing him various signatures and asking him to state 
 whether or not they are genuine. ^^ But if a witness in written 
 depositions states he knows the handwriting in question, it is no 
 valid objection that the basis of his knowledge does not appear 
 if the opposite party had the apportunity to cross-examine thereon 
 but declined to do so.^^ 
 
 The question of quahfication of the witness is primarily one 
 for the court.^^ If the facts which form the basis of his com- 
 
 'sPorter v. Wilson. 13 Pa. 641; 
 Groff V. Groff, 209 Pa. 603; Berk- 
 ley V. Maurer, 34 Super. 363. Fa- 
 miliarity with handwriting from 
 correspondence with a person is 
 sufficient though the witness may 
 never have actually seen him write : 
 Com. V. Smith, 6 S. & R. S68; 
 United States v. Simpson, 3 P. & 
 W. 473- 
 
 But one who has had no personal 
 correspondence with the supposed 
 writer and has not seen him write, 
 but has only seen letters or papers 
 alleged to have -been written by him, 
 cannot qualify as a witness : Phila. 
 etc. Railroad v. Hickman, 28 Pa. 
 318; Brant v. Dennison, S Atl. 86<); 
 nor may he state whether the letters 
 to others were of such character 
 as to enable him to judge if they 
 were written by the person in ques- 
 tion: Phila. etc. Railroad v. Hick- 
 man, 28 Pa. 318. 
 
 I'One who has frequently seen 
 another write his name, though not 
 within two years prior to the trial : 
 Baker v. Haines, 6 Whart. 284; or 
 who saw the person write but three 
 times from twenty to thirty years 
 previously: Wilson v. Van Leer, 
 127 Pa. 371, has been held compe- 
 tent. 
 
 soSlaymaker v. Wilson, I P. & 
 W. 216; Porter v. Wilson, 13 Pa. 
 641. 
 
 -^It is not error on cross-exami- 
 nation to place a paper, on which 
 was written a signature, inside an 
 envelope in such manner that the 
 signature only could be seen 
 through an aperature cut in the 
 envelope : Groff v. Groff, 209 Pa. 
 603. 
 
 22Whittier v. Gould, 8 Watts 485. 
 
 23Com. V. Grauman, 52 Super. 
 204. 
 
288 
 
 PENNSYLVANIA TRIAL EVIDENCE. 
 
 petency are subsequently contradicted or denied, the whole ques- 
 tion may then be submitted to the jury.^* 
 
 § 322. Mental Condition. The determination of the question 
 of mental condition of a person depends to a great extent upon 
 the opinions of those who have had opportunity for observing his 
 conduct, this being the highest and most direct evidence that the 
 nature of the question affords.-'' But before such opinion will 
 be received and in order to afford an opportunity to test the 
 soundness of his conclusions, the witness must testify to the facts 
 and circumstances which forms the basis of it, and which facts 
 must be the result of personal observation and not based on 
 statements made by others.'" The value of the testimony depends 
 upon the witness and his opportunities for observation.-" 
 
 An exception to the above rule exists in the case of subscrib- 
 ing witnesses to a will who are witnesses not only to the execution 
 of the will but also to the mental state of the testator,-' and who 
 may therefore give an opinion on the latter question without stat- 
 ing the facts on which it is founded.^" But this exception does 
 
 ••Wilson 
 
 Van Leer, 127 Pa. 
 
 371. 
 
 25Bricker v. Lightner, 40 Pa. 199; 
 Dickinson v, Dickinson, 61 Pa. 401 ; 
 Pidcock V. Potter, 68 Pa. 342; 
 Shaver v. McCarty, no Pa. 339. 
 A witness may be asked whether 
 from his actual knowledge of tes- 
 tator he considered him competent 
 to make a will : Wogan v. Small, 
 II S. & R. 141; or whether from 
 the general appearance of a person 
 he considered him capable of trans- 
 acting important business : Wilkin- 
 son V. Pearson, 23 Pa. 117; Hepler 
 V. Hosack, 197 Pa. 631 ; Moorhead 
 V. Scovel, 210 Pa. 446; and he may 
 testify that a person's "countenance 
 and appearance indicated childish- 
 ness": Irish V. Smith, 8 S. & R. 
 573. 
 
 ^''Rouch V. Zehring. 59 Pa. 74 ; 
 Nevling v. Com., 98 Pa. 322; Tay- 
 lor V. Com., 109 Pa. 262 ; Ecessor 
 V. Elcessor, 146 Pa. 359; Com. \. 
 Wireback, 190 Pa. 138; Hepler v. 
 
 Hosack, 197 Pa. 631 ; Com. v. 
 Marion. 232 Pa. 413. Where the 
 facts testified to by the witness 
 indicate a sound mind : Com. v. 
 Wireback, 190 Pa. 138, or are in- 
 conclusive in their nature and con- 
 sistent either with soundness or un- 
 soundness of mind : First National 
 Bank v. Wireback, 106 Pa. 37; El- 
 cessor V. Elcessor, 146 Pa. 359; an 
 opinion founded thereon wil not 
 be considered. The mere fact that 
 a testator in his will gave one son 
 a nominal sum only, is not suffi- 
 cient ground to form the basis of a 
 belief in the testator's insanity: 
 Commonwealth Ins. Co. v. Gray, 
 ISO Pa. 255. 
 
 2'Rambler v. Tryon, 7 S. & R. 
 90; Cora. V. Fencez, 226 Pa. 114. 
 
 =sEgbert V. Egbert, 78 Pa. 326. 
 
 ^'Logan V. McGinnis, 12 Pa. 27 ; 
 Titlow V. Titlow, 54 Pa. 216; Eg- 
 bert V. Egbert, 78 Pa. 326; Dickin- 
 son V. Dickinson. 61 Pa. 401. 
 
OPINIONS. 289 
 
 not extend to those who are not subscribing witnesses,^" nor does 
 it extend to subscribing witnesses to a deed or other instrument, 
 as in such case the signature of the witness implies nothing more 
 than that it was executed by the person whose act or deed it pur- 
 ports to be.""^ 
 
 The facts which form the basis of the opinion of the witness 
 must have occurred and must relate to the condition of the person 
 in question at or near the time the act in question was done. If 
 the unsoundness of mind is a premanent condition, the question 
 of time would not be so important as where such condition oc- 
 curs at irregular intervals. In the latter case the condition of 
 the defendant's mind at the time he committed a particular act 
 would not be shown by proof of his mental condition at other 
 times. ^^ 
 
 A witness who fails to qualify to give an opinion as to mental 
 condition, may nevertheless testify that he had seen and talked 
 with the person in question and observed nothing in his conduct 
 or appearance to indicate he was of unsound mind.^^ 
 
 § 323. Physical Condition — Persons. A witness may testify 
 to distinct facts observed by him in the physical appearance and 
 condition of another tending to indicate that such person was 
 or was not in good health, for instance that he was aflflicted with 
 shortness of breath,^* or was intoxicated,"^ or that his appearance 
 and conduct was that of a healthy person."* 
 
 But he cannot testify to matters which require special knowl- 
 
 ^''Logan V. McGinnis, 12 Pa. 27 ; prior to the crime, he was held in- 
 
 Roche V. Wegge, 202 Pa. 169. competent: Com. v. Buccieri, 153 
 
 ■■'iDean v. Fuller, 40 Pa. 474; Eg- Pa. 535. An opinion based on acts 
 
 bert V. Egbert, 78 Pa. 326. and conversations of the testator 
 
 2-Where the question is as to the some time after the execution of a 
 
 mental state of a defendant result- will is incompetent as to his mental 
 
 ing from his intoxicated condition condition at the time : Eckert v. 
 
 at the time of committing murder, Flowry, 43 Pa. 46. See § 278. 
 
 a witness who did not see him im- ^sCom. v. Wireback, 190 Pa. 138; 
 
 mediately before the crime was Com. v. Gearhardt, 205 Pa. 387; 
 
 committed cannot give an opinion Com. v. Fencez, 226 Pa. 114; Com. 
 
 on the effect of intoxication on his v. Marion, 232 Pa. 413. 
 
 mind, from having seen him intoxi- 34United Breth. Aid Society v. 
 
 cated at other times : Nevling v. O'Hara, 120 Pa. 256. 
 
 Com., 98 Pa. 322. And where the s^Com. v. Eyler, 217 Pa. 512. 
 
 defendant was subject to epileptic =^Baldi v. Ins. Co., 18 Super. 599; 
 
 fits but the witness had not seen Thompson v. Stevens, 71 Pa. 161. 
 him so affected for several months 
 
 19 
 
290 PENNSYLVANIA TRIAL EVIDENCE. 
 
 edge and learning, and which are therefore within the pecuHar 
 province of the expert. Thus he cannot testify that a person had 
 a certain disease" or state the effect of an injury upon the health 
 of the injured person'* or the extent and manner of bodily suf- 
 fering.'^ 
 
 § 324. Physical Condition — Places or Objects — Negligence. 
 Where the condition of a place or object is such that a verbal 
 description is inadequate to convey to the jury a full understand- 
 ing of the facts and their bearing on the case, the witness may 
 be permitted to supplement his description by his opinion. In 
 such case the testimony has been said to be the assertion of a 
 fact dependent in some measure upon opinion, rather than an 
 abstract opinion without more.*" This rule is frequently ap- 
 plied in negligence cases where the witness is permitted to say 
 whether or not he considers as dangerous the place which he de- 
 scribes,*^ and opinions have been received as to whether a storm 
 was unusually violent,*^ or whether the abutments of a bridge 
 were located in the best practical way to pass the waters at times 
 of flood,*'* or as to the condition of air ducts in a coal breaker 
 and the means employed to control dust.** 
 
 The rule admitting opinions in the cases above described is 
 one of necessity and the moment the necessity ceases the rule 
 
 s^United Breth. Aid Society v. Musick v. Latrobe Boro., 184 Pa. 
 
 O'Hara, 120 Pa. 256. 375 ; also see reference to Beatty 
 
 ^'Monongahela v. Stewartson, g6 v. Gilmore in Graham v. Penna. 
 
 Pa. 436. Penna. Railroad, 139 Pa. 149) ; of 
 
 3»L,ombard & South St. Railway a highway unprotected by a guard 
 
 V. Cliristian, 124 Pa. 114. rail: Kitchen v. Union Twp., 171 
 
 *»Per Beli,, J., in Beatty v. Gil- Pa. 145; or as to the danger of 
 more, 16 Pa. 463, and quoted by cleaning a machine while in mo- 
 Mitchell, J., in Graham v. Penna. tion : Whitaker v, Campbell, 187 
 Co., 139 Pa. 149. The opinion of a Pa. 113; or the dangerous char- 
 non-expert witness, based on facts acter of a crossing: Kraut v. Rail- 
 in the case, that the body of a per- way, 160 Pa. 327, and whether an 
 son found drowned could have float- injured person stopped at the proper 
 ed to the place where found if he place to look and listen: Cookson 
 had committed suicide, is inadmis- v. Railway, 179 Pa. 184. 
 sible: Continental Ins. Co. v. Del- *-Minnequa Imp. Co. v. Coon, 10 
 peuch, 82 Pa. 225. W. N. C. 502. 
 
 ^iQpinions have been received as ^^Ricjjig y. Delaware Co., 156 Pa. 
 
 to the dangerous condition of an 643. 
 
 unguarded area-way : Beatty v. Gil- ■'■'Harvey v. Coal Co., 201 Pa. 
 
 more, 16 Pa. 463 ; McNerney v. 63. 
 Reading, 150 Pa. 611; (compare 
 
OPINIONS. 2QI 
 
 is no longer applied, and the opinions of witnesses, experts or 
 otherwise, will not be received.*^ Thus where a verbal descrip- 
 tion is sufficient to enable the jury to properly understand exist- 
 ing conditions, a witness will not be permitted to state whether a 
 place where an accident happened was or was not dangerous,*" 
 or whether certain property is rural or urban,*' or whether the 
 erection of a frame building next to an insured building increased 
 the risk of fire.''^ And if the circumstances of an accident are 
 fully described and there is nothing in the evidence that an ordi- 
 nary person could not fully understand, opinions are incompe- 
 tent.*' Thus a witness may not state whether a motorman used 
 good judgment in operating his car in a manner and under 
 circumstances fully described,^" or whether he could have stopped 
 in time to avoid an accident,'^ or whether the pilot of a steamboat 
 might have changed his course in time to avoid a collision,'^ or 
 whether an injured person could have avoided driving into a hole 
 in the street if due care had been used.''^ 
 
 § 325. Speed. A witness may give his opinion as to the speed 
 at which an object was moving at a particular time, there being 
 no other way in which he can convey to the jury an idea of what 
 took place. The every day experience and knowledge of a wit- 
 ness concerning time and distance is usually considered sufficient 
 
 ■'^Graham v. Penna. Railroad, 139 and reference thereto by Mr. Jus- 
 Pa. 149. TicE Mitchell in Graham v. Penna. 
 
 ^''This has been applied to a rail- Penna. Railroad, 139 Pa. 149) : a 
 way platform : Graham v. Penna. freight car without handles for em- 
 Co., 139 Pa. 149 ; to a sluice : ployees to get aboard : Dooner v. 
 Platz V. McKean Twp., 178 Pa. Canal Co., 164 Pa. 17. See also § 
 601 ; a bridge or roadway without 343. 
 
 a guard rail: Amberle v. McKees- *'PhiIa. v. Dobins, 24 Super. 136. 
 
 port, 179 Pa. 321 ; Closser v. Wash- ^'Franklin Ins. Co. v. Gruver, 
 
 ington Twp., II Super. 112; Seig- 100 Pa. 266. 
 
 ler V. Mellinger, 203 Pa. 256 ; apart ^^Buchanan v. Flinn, 51 Super. 
 
 of a steamship not provided with 145. 
 
 guard rails : American Steamship ^oWoeckner v. Elev. Co., 187 Pa. 
 
 Co. V. Landreth, 102 Pa. 131 ; a 206. 
 
 grade crossing: Seifred v. Penna. "iphjia. Trac. Co. v. Bernheimer, 
 
 Railroad, 206 Pa. 399; a furnace 125 Pa. 615; Thomas v. Railway, 
 
 at which plaintiff was working: 132 Pa. 504. 
 
 Reese v. Clarke, 198 Pa. 312; an 52pi5jijer v. Ferry Co., 124 Pa. 
 
 unguarded cellar-way : Musick v. 154. 
 
 Latrobe Boro., 184 Pa. 37s; (com- s^Ake v. City, 238 Pa.v37i. 
 pare Beatty v. Gilmore, 16 Pa. 463, 
 
292 PliNNSYLVANI'A TRIAL EVIDENCE. 
 
 to enable him to form an intelligent judgment on the subject,^* 
 though the value of such opinions varies greatly, depending upon 
 the experience and opportunities for observation which the wit- 
 ness had in such matters. The opinion of a witness that a car 
 was moving at a high speed when an accident occurred, is entitled 
 to no consideration where it is shown that the car was stopped 
 almost immediately after the accident.^^ And where the record 
 of speed made by the conductor of a train is produced and shows 
 only a moderate rate of speed, testimony of witnesses who desig- 
 nate no particular speed but merely say that the train was run- 
 ning very fast, is of no value. '^'' Witnesses who have frequently 
 seen trains passing a certain crossing may state whether a par- 
 ticular train which passed was running at the usual rate of 
 speed. ^' 
 
 § 326. Value and Damages. Where the extent of damage to 
 real or personal property depends upon its market value and the 
 depreciation thereof, a description cannot adequately convey to 
 the jury the information required to form the basis of an intelli- 
 gent estimate of such value and it is therefore necessary to resort 
 to the opinions of witnesses who are personally acquainted with 
 the property. Such opinions must be based upon facts proved 
 and the measure cannot be estimated in a lump sum without 
 specifying the items which form the basis of the opinion.'* And 
 when the witness has given the total value of property he should 
 then be permitted to read the items from which he made it up, so 
 that the jury may judge of the reliability of his estimate."' 
 
 In an action for damages for personal injuries resulting in 
 death, a witness may give his opinion from his knowledge of the 
 age, health and habits of the deceased, as to how long the latter 
 would probably have been useful to his family.'^" 
 
 § 327. Value and Damages — Realty. The measure of dam- 
 ages for injuries to real estate is usually the difference between 
 its market value before and after the injury. To determine this 
 value is often a very difficult question, and the jury should have 
 
 ''''Dugan V. Arthurs. 230 Pa. 299; ii73,-acken a. Railroad, 222 Pa. 
 
 Schaffer v. Coleman, 35 Super. 410. 
 
 386. 58Rq1j1j y Carnegie, 145 Pa. 324; 
 
 ''''Moss V. Phila. Traction Co., Byrne v. Cambria, etc. Railway, 219 
 
 180 Pa. 389, Pa. 217. 
 
 ^"Keiser v. L,ehigli Val. Railroad, '"King v. Faber, 51 Pa. 387. 
 
 212 Pa. 409. ooPenna. Railroad v. Henderson, 
 
 51 Pa. 315. 
 
OPINIONS. 
 
 293 
 
 the benefit of the knowledge of witnesses who are familiar with 
 the property in the neighborhood. And as knowledge of such 
 value cannot be imparted by a mere description of the land, it 
 is necessary to receive the opinions of such witnesses. 
 
 The witness must testify from his own knowledge of value 
 based on the prices at which similar properties in the neighbor- 
 hood are generally held for sale, and at which they are sometimes 
 sold in the ordinary course of business."^ But the witness may 
 be asked on cross-examination concerning particular sales for 
 the purpose of testing the accuracy and extent of his knowledge 
 and to ascertain whether he knew of and considered them in 
 forming an opinion. ^- 
 
 § 328. Value and Damages — Eealty — ftualification of Witness. 
 Witnesses who have personal knowledge of the market value of 
 the land in question, or who live in the neighborhood and have 
 general knowledge of the value of land in. that place, or have had 
 opportunities to learn the value of properties similarly situated, 
 and also persons who, whether privately or as real estate agents, 
 have been engaged in buying or selling property in the neighbor- 
 hood, are competent to express an opinion on the market value of 
 the land in question."^ Such opinions should be based on a fair 
 
 *i Pitts, etc. Railroad v. Vance, 
 115 Pa. 325; Friday v. Penna. Rail- 
 road, 204 Pa. 405. See § 328. 
 
 "^See §§ 329 and 46. 
 
 ^^Witnesses should be familiar 
 with the property, its area, uses, ex- 
 tent and condition of improvements, 
 and should have some knowledge 
 of values in the neighborhood: Sut- 
 ton V. Penna. Railroad, 214 Pa. 274; 
 Markowitz v. Pittsburgh, etc. Rail- 
 road, 216 Pa. 535; id. 539. The 
 following persons have been held 
 competent : Residents of the neigh- 
 borhood shown to have general 
 knowledge of values: Langford v. 
 Light Co., 43 Super. 394; a farmer 
 who has known the land in ques- 
 tion for a great many years, fre- 
 quently passed it, observed im- 
 provements and quality of the land, 
 knew something of land values and 
 had served as county commissioner. 
 
 though he could not recall any par^ 
 ticular sale : Mewes v. Pipe Line 
 Co., 170 Pa. 364; White v. Rail- 
 road, 222 Pa. 534; Matteson v. 
 Railroad, 40 Super. 234; Curtin v. 
 Nittany Valley Railroad, 13S Pa. 
 20; one who occupied the premises 
 for many years and knew the cost 
 thereof and prices at which neigh- 
 bors held their property, though he 
 did not know the price at which 
 more than one property sold: Hill 
 v. Boro., 47 Super. 261 ; a real es- 
 tate agent who had several years 
 before negotiated for the sale of a 
 piece of property near the > one in 
 question : Schuylkill River Railroad 
 V. Stocker, 128 Pa. 233 ; one who 
 paid for several tracts of land in 
 the neighborood while acting as 
 agent for another. Pitts. & L. E. 
 Railroad v. Robinson, 95 Pa. 426; 
 persons familiar with mill property 
 
294 
 
 PENNSYLVANIA TRIAL EVIDENCE. 
 
 consideration of the extent and condition of the improvements, 
 the quantity and productive qualities of the land, and the uses 
 
 and market values in the neighbor- 
 hood, and who have knowledge of 
 diminution of water supply : Men- 
 gel's Executors v. Water Co., 224 
 Pa. 120 ; a manufacturer and real 
 estate agent, familiar with mill 
 properties and values in the neigh- 
 borhood, though he knew of no 
 sales of similar property for many 
 years : Lewis v. Water Co., 176 Pa. 
 237 ; one who has acquired knowl- 
 edge of values while acting as 
 county commissioner r O'Brien v. 
 Railway, 194 Pa. 336; persons fa- 
 miliar with the business of renting 
 property for lodges : Boteler v. 
 Phila. & Reading Railroad, 164 Pa. 
 397. One who has acted as a view- 
 er in the case and has a general 
 knowledge of market value, may 
 testify from his observations while 
 so acting : Dorian v. E. Brandy- 
 wine Railroad, 46 Pa. 520; Gorgas 
 v. Phila. & Reading Railroad, 144 
 Pa. I ; Galbraith v. Pitts, etc. Rail- 
 road, 2 Super. 359; Lee v. Spring- 
 field Water Co., 176 Pa. 223 ; but 
 it he testifies different from the 
 estimate in the report which he had 
 signed while acting as viewer, such 
 report may be offered in rebuttal to 
 discredit him : Dawson v. Pitts., 
 159 Pa. 317. The fact that the wit- 
 ness made inquiry as to the value 
 after being subpoenaed, with a view 
 to testifying, does not disqualify 
 him : Swank v. Carnegie Gas Co., 
 S Super. 371. 
 
 The following are incompetent to 
 testify to land values: One not 
 acquainted with land values in the 
 i.eighborhood : Michael v. Pipe 
 Line Co., 159 Pa. 99; Struthers v. 
 Phila. etc. Railroad, 174 Pa. 291 ; 
 Stevenson v. Coal Co., 201 Pa. 112; 
 Shrimer v. Eastern Railway, 205 
 
 Pa. 648; Lynch v. Troxell, 207 Pa. 
 162; one who, though he lived in 
 the neighborhood, says he does not 
 know of any sale of land therein 
 and that the price would depend 
 largely on the buyer : Galbraith v. 
 Phila. Co., 2 Super. 359; one who 
 lived three miles from the property, 
 had not been on it before its ap- 
 propriation by a railroad, and did 
 not know its boundaries, acreage or 
 any sales of like property in 
 the neighborhood : Lawandoski v. 
 WilkesBarre, etc. Railway, 35 
 Super. 10; one who has seen dam- 
 aged coke ovens but once when the 
 ovens were in operation, and then 
 only as he traveled along the high- 
 way: Herbert v. Rainey, 162 Pa. 
 525 ; a contractor who has no 
 knowledge of values in the neigh- 
 borhood, and, who visited the prem- 
 ises merely to estimate on the cost 
 of changes made necessary by the 
 acts complained of : Grier v. Home- 
 stead Boro., 6 Super. 542; one not 
 in the real estate business and who 
 has no knowledge of real estate 
 values in neighborhood but merely 
 acted as special agent in an at- 
 tempt to sell neighboring property : 
 Schuylkill Co. v. Stocker, 128 Pa. 
 233 ; one who has knowledge only 
 of farm property, where the ques- 
 tion is as to the value of a mill site : 
 Bachert v. Coal Co., 208 Pa. 362; 
 one who has knowledge only of the 
 retail coal business and of leases 
 and royalties paid thereunder, 
 where the question is as to value of 
 the land: Baker v. Pitts, etc. Rail- 
 way, 219 Pa. 398; Lilley v. Penna. 
 Railroad, 219 Pa. 447; one who 
 has shown no knowledge or ex- 
 perience in regard to such matters, 
 where the question is as to amount 
 
OPINIONS. 
 
 29s 
 
 to which it may reasonably be appHed, together with the general 
 selling price of realty in the neighborhood."* 
 
 Market value of land is not a question of science and skill upon 
 which only one who has made a special study may give an opinion, 
 and in order to qualify a witness he need not be an expert in the 
 ordinary sense of the word. Any person who is shown to have 
 knowledge of the property, its location, buildings, uses, environ- 
 ments and sales of other land in the immeaiate vicinity is compe- 
 tent to testify."^ Of course the better qualified he may be by 
 reason of experience in the real estate business or otherwise, the 
 more weight his testimony will be entitled to receive from the 
 jury."* In all questions of competency there must be a sliding 
 scale, the only standard of which is that the witness shall have 
 such knowledge of the subject matter as can be reasonably ex- 
 
 of coal necessary to support a pipe 
 line, or as to the effect of the line 
 on coal lands : Wallace v. Jefferson 
 Gas Co., 147 Pa. 205 ; one who was 
 not on the ground when pipes were 
 laid, where the question is as to 
 damages done by the work of con- 
 struction : Pennock v. Crescent 
 Pipe Line Co., 170 Pa. 372; one 
 who has no knowledge of the dif- 
 ference between the level of a cel- 
 lar floor and stream, where the 
 question is as to damage caused by 
 an act preventing drainage of a cel- 
 lar : Bailey v. Mill Creek Coal Co., 
 20 Super. 186; one who was only 
 thirteen years old when damage 
 was done to property and who had 
 no definite idea as to the value of 
 land in the vicinity : Gallagher v. 
 Kemmerer, 144 Pa. 509; one who 
 admits no familiarity with the mar- 
 ket value of land in the neighbor- 
 hood, and that his estimate of value 
 is based on what he thinks the 
 farm would produce: White v. 
 Railroad, 229 Pa. 480. 
 
 **Piftsburgh, etc. Railroad v. 
 Vance, 115 Pa. 325; Michael v. 
 Crescent Pipe Co., iS9 Pa- 99; Orr 
 V. Gas Co., 2 Super. 401 ; Grier v. 
 Homestead Boro., 6 Super. 542. 
 
 •i^Hewitt v. Pittsburgh, etc. Rail- 
 road, 19 Super. 304; Jones v. Rail- 
 road, 151 Pa. 30; Galbraith v. 
 Phila. Co., 2 Super. 359; Reed v. 
 Pittsburgh, etc. Railroad, 210 Pa. 
 211; Hope v. Phila., etc. Railroad, 
 211 Pa. 401; Rea v. Pittsburgh, etc. 
 Railroad, 229 Pa. 106. 
 
 o^One who has been in the real 
 estate business in the neighborhood, 
 dealt in the same kind of property, 
 and is familiar with the value of 
 property may testify as an expert : 
 Griswold v. Gebbie, 126 Pa. 353; 
 Darlington v. AUeg. City, 189 Pa. 
 202; but such dealer who has no 
 knowledge of land values except 
 from an examination made long 
 after the damage was suffered, can- 
 not testify as an expert, though he 
 may do so as an ordinary witness : 
 Struthers v. Phila., etc. Railroad, 
 174 Pa. 291. The fact that wit- 
 nesses offered to testify to the de- 
 crease in rental value of land are 
 experts as to real estate values in 
 the neighborhood, is relevant, as 
 such knowledge qualifies them to 
 give an intelligent opinion on the 
 subject: McCartney v. Phila., 22 
 Super. 257. 
 
2g6 PENNSYLVANIA TRIAL EVIDENCE. 
 
 pected in view of the circumstances of the particular case,"' and 
 this standard of qualification should not be set so high as to ex- 
 clude the only available testimony which the nature of the ques- 
 tion afifords."^ In a neighborhood where sales are few. a witness 
 should not be required to have as full a knowledge of the subject 
 as in other localities where they are frequent and of public in- 
 terest."" He should have had some special opportunity for ob- 
 servation and should in general have in his mind the data forming 
 the basis of his opinion so that he can, if called upon, place such 
 data before the jury to enable them to judge of the reliability of 
 his opinion." But the mere fact that he cannot give the elements 
 of the damages does not render him incompetent; it merely af- 
 fects his credibility.'^ 
 
 A witness cannot base his testimony on what he has heard from 
 others,'^ though his knowledge of other sales may be .based on 
 general reports in the neighborhood.''' If he knows the relative 
 value, though unable to fix the market price, his evidence is ad- 
 missible in connection with, and in corroboration of, the testimony 
 of others.'* 
 
 The fact that the witness would not care to own land after a 
 railroad is located across it is incompetent,'" nor is an opinion 
 
 ^'Lalley v. Central Valley Rail- he has no knowledge of the value 
 
 road, 215 Pa. 436; Scott v. Central after taking, where the latter evi- 
 
 Valley Railroad, 33 Super. 574. dence is supplied by other testi- 
 
 *'White V. Western AUeg. Rail- mony : First Presbyterian Church 
 
 road, 222 Pa. 534. v. Pittsburgh, 223 Pa. 165 ; and 
 
 ""White V. Western Alleg. Rail- witnesses who examined property 
 
 road, 222 Pa. 534. two years after a flood may testify 
 
 '"Pittsburgh, etc. Railroad v. to the cost of restoring the prop- 
 Vance, IIS Pa. 32s; Brown v. erty to its condition prior to the 
 Corey, 43 Pa. 49s; Shaffer v. Boro., flood, where there is other evidence 
 44 Super. I. ^■'' to its condition immediately 
 
 'iHope V. Phila., etc. Railroad, after the flood: Keats v. Gas Co., 
 
 211 Pa. 401. 29 Super. 480; a witness may 
 
 "Com. v. Tryon,' 31 Super. 146; also testify to depreciation in the 
 
 Winett v. Gas Co., 37 Super. 204. value of property caused by an ap- 
 
 "Hanover Water Co. v. Iron Co., propriation fifteen years before 
 
 84 Pa. 279. trial, although his knowledge is 
 
 "Dawson v. Pittsburgh, 159 Pa. limited to a period shortly before 
 
 317; Hewitt V. Pittsburgh, etc. trial, on its being shown that the 
 
 Railway, 19 Super. 304. The wit- property and stream had remained 
 
 ness may testify to his knowledge •" substantially the same condition: 
 
 of property before a portion was Stauffer v. Boro., 215 Pa. 143. 
 taken by the city, though he states '"Dilts v. Railroad, 222 Pa, 516. 
 
OPINIONS. 297 
 
 that many a man would give more for land with than without a 
 railroad on it, conclusive that the land owner suffered no damage 
 from the construction of the roadJ" A statement by a witness 
 after giving an opinion as to value, to the effect that he would 
 be willing to bu)- the property for the amount named, does not 
 entitle his opinion to greater weight than the opinions of others." 
 
 If the witness is propery qualified, the mere fact that he shows 
 bias or prejudice is not ground for rejecting his testimony. His 
 credibility is for the jury.'* 
 
 § 329. Value and Damages — Realty — Qualification of Witness 
 — Cross Examination. A wide latitude is allowed in cross-examin- 
 ing a witness who testifies to land values, and every pertinent 
 question should be allowed to be put to him so as to enable the 
 jury to judge of his means of knowledge and place a proper 
 estimate on his testimony.'" For this purpose evidence may be 
 brought out which would be improper on direct examination, 
 such as the valuation of part of the land after it had been cut 
 by a railroad*" or concerning particular sales in the neighborhood 
 to ascertain whether he knew of and considered them in forming 
 his opinion f^ and for the purpose of affecting the weight of the 
 opinion he has given, it may be shown that it is based upon a 
 misapprehension of the facts. *^ But evidence of particular sales 
 and prices cannot be introduced for the purpose of having his 
 answer go to the jury as affirmative evidence of value,*^ nor may 
 the witness be asked to compare the value of this land with other 
 land in the vicinity, the sales of which he testified he knows. To 
 show valuation by comparison, or to attempt to weaken the testi- 
 mony of a witness by showing that his opinion was not based on 
 a proper comparison of properties, would be to introduce col- 
 
 '*Plank Road Co. v. Raraage, 20 Railway, 215 Pa. 501 ; Schonhardt 
 
 Pa. 9S. V. Penna. Railroad, 2.16 Pa. 224; 
 
 "Friday v. Penna. Railroad, 204 Rea v. Railroad, 229 Pa. 106; 
 
 Pa. 405. Brown v. City, 231 Pa. S9S ; Matte- 
 
 'SBrennan v. Railroad, 230 Pa. son v. N. Y. C. Railroad, 40 Super. 
 
 228. 234. 
 
 '"Com. V. Hazlett, 16 Super. S34; s^Henkel v. Railroad, 213 Pa. 
 Davis V. Railroad, 215 Pa. 581 ; 485 ; Schonhardt v. Penna. Rail- 
 Hope V. Phila. & Western Railroad, road, 216 Pa. 224; Neely v. Rail- 
 211 Pa. 401. road, 219 Pa. 349. 
 
 '"Davis V. Penna. Railroad, 215 ^'Schonhardt v. Penna. Railroad, 
 
 Pa. 581. 216 Pa. 224; Roberts v. Phila., 239 
 
 "Becker v. P. & R. Railroad, Pa. 339; Rea v. Railroad, 229 Pa. 
 
 177 Pa. 252; Gorgas v. Phila., etc. 106. 
 
298 PENNSYLVANIA TRIAL EVIDENCE. 
 
 lateral issues and is therefore open to the same objection that ex- 
 cludes testimony of particular sales.** 
 
 § 330. Value and Damages— Realty— ftualification of Witness 
 — Preliminary Question for Court. The question of competency 
 of the witness to give an opinion on a question of value of realty 
 must be determined preliminarily by the trial court, and the op- 
 posite side should be given an opportunity to cross-examine as 
 to his qualifications before the witness testifies.^" The party of- 
 fering the witness should show in this preliminary examination 
 that the witness has knowledge of the land, its area, improve- 
 ments, uses for which it is adapted and general selling price in 
 the neighborhood.*" But after his competency has been estab- 
 lished, it is not error, before he has expressed on opinion, to 
 refuse to allow him to be asked what elements of damage he had 
 taken into consideration in malting his estimate.*' 
 
 § 331. Weather Conditions. A witness may testify that a cer- 
 tain storm was of an unusually violent nature.** But while a 
 weather bureau official may testify to weather conditions and 
 rain fall, and state what, in his opinion, would or would not con- 
 stitute an extraordinary rainfall, the jury can determine from 
 such data whether a particular flood was extraordinary and there 
 is no necessity for offering the opinion of the witness thereon.*" 
 
 B. Experts. 
 
 § 332. General Principles. There is no clearly defined rule as 
 to what constitutes an expert. '"' He is usually one who is experi- 
 enced, trained or skilled in some particular business or subject, 
 and who, by reason of such knowledge, is better qualified to speak 
 on the subject than witnesses who have made no special study 
 of it.*"- The proper office of the expert is to instruct the court 
 and jury in matters so far removed from the ordinary pursuits 
 
 S'tNeely v. Western Alleg. Rail- soCatlin v. Coal & Iron Co., 225 
 
 road, 219 Pa. 349. Pa. 262. 
 
 *°Friday v. Penna. Railroad, 204 s'Leard v. Railroad, 229 Pa. 475. 
 
 Pa. 40s ; Hope v. Pinila. & Western **Minnequa Imp. Co. v. Coon, 
 
 Railroad, 211 Pa. 401; Markowitz 10 W. N. C. 502. 
 
 V. Pitts., etc., 216 Pa. 535 ; White *8Hufnagle v. Canal Co., 227 Pa. 
 
 V. West Alleg. Railroad, 222 Pa. 476. 
 
 534; Mengell v. Water Co., 224 Pa. ooCom. v. Gibbons, 3 Super. 408. 
 
 120. "iStruthers v. Railroad, 174 Pa. 
 
 291. 
 
OPINIONS. 
 
 299 
 
 of life, that accurate knowledge can be acquired only by special 
 study or experience."^ 
 
 No one can testify as an expert in regard to matters which are 
 not and cannot be followed as a business or which are of such 
 nature that the witness could not know more about it than the 
 jury,"" nor as to something which, in the nature of the case, no 
 person could possibly know or foretell."* Therefore to justify 
 the admission of expert testimony, the subject vinder examina- 
 tion must be of such nature as to render knowledge of it more 
 certain by study and investigation. "'^ 
 
 Whether a particular question is such as calls for expert testi- 
 mony is largely within the discretion of the trial court."" 
 
 § 333. General Principles — Basis of Opinion — Facts in Evi- 
 dence. Where the facts are admitted or proved by evidence 
 which is not conflicting, the expert may give an opinion based 
 thereon,"^ otherwise he must base his opinion on the testimony 
 adduced by one of the parties and made known to him either by his 
 having heard it or having it read to him and which, for the pur- 
 
 "-Coyle V. Com., 104 Pa. 117; 
 Com. V. Farrell, 187 Pa. 408. 
 Where accounts are simple and 
 easily understood by an ordinary 
 person, testimony of an expert will 
 not be admitted on the question 
 whether or not they show the ex- 
 istence of a partnership ; Ryder v. 
 Jacobs, 182 Pa. 624; Fifth Mutual 
 Bldg. Ass'n V. Holt, 184 Pa. 572. 
 
 »3Franklin Fire Ins. Co. v. Gru- 
 ver, 100 Pa. 266; Denniston v. 
 Phila. Co., I Super. 599; Linoski 
 V. Coal Co., 157 Pa. iS3- An ex- 
 pert will not be permitted to give 
 an opinion as to the original pur- 
 pose of a wall built many years 
 before : Sinnott v. Mullin, 82 Pa. 
 333 ; or whether the actual danger 
 of fire was increased by the erec- 
 tion of adjacent buildings : Frank- 
 lin Fire Ins. Co. v. Gruver, 100 Pa. 
 Pa. 266; or as to the danger of fire 
 from escaping gas : Denniston v. 
 Phila. Co., I Super. 599. But when 
 
 a horse took fright at an object, 
 reared, fell, and died suddenly, 
 opinions were held competent on 
 the question whether the object in 
 question was calculated to frighten 
 horses, whether the fall could have 
 killed a horse and whether it could 
 have been frightened to death by 
 the object: Piollet v. Simmers, 106 
 
 Pa. 95- 
 
 "^Whether or not an oil or gas 
 well ~ will continue to produce in 
 paying quantities cannot be definite- 
 ly determined, and the opinion of 
 an expert thereon is not admis- 
 sible : Collins v. Mechling, i Super. 
 594; Galbraith v. Phila. Co., 2 
 Super. 359. 
 
 "'Collins V. Mechlin, I Super. 
 
 594. 
 
 ""Ryder v. Jacobs, 182 Pa. 624; 
 Phila. V. Neill, 211 Pa. 353; Cox v. 
 Pottery Co., 38 Super. 545. 
 
 '•^Gillman v. Railway, 224 Pa. 
 267. 
 
300 
 
 PENNSYLVANIA TRIAI, EVIDKNCE. 
 
 pose of his opinion, he assumes to be true."* He may even give 
 an opinion based upon the testimony in chief of another expert, 
 without considering the cross-examination."" But if the evidence 
 is contradictory he cannot be asl<ed to give his opinion upon the 
 whole case as adduced by both sides. To allow this would per- 
 mit him to usurp the functions of the jury and determine the case 
 on its facts.'"" Nor may he be permitted to express an opinion 
 which is merely speculative or based on facts not supported to 
 some extent by the evidence.' 
 
 § 334. General Principles — Basis of Opinion — Hypothetical 
 Question, The purpose of a hypothetical question is to secure 
 from an expert his opinion on a state of facts appearing from the 
 evidence and assumed to be true. The facts upon which it is 
 given should therefore be clearly stated so that the jury may 
 know upon what the opinion is based. The question should in- 
 clude a full statement of all material facts^ which the party offer- 
 ing it may reasonably deem established by the testimony of his 
 
 "^Olmsted v. Gere, lOO Pa. 127; 
 Yardley v. Cuthbertson, 108 Pa. 
 395; Lewis v. Seifert, 116 Pa. 628; 
 Gillman v. Media Railway, 224 Pa. 
 267; McDyer v. Railway, 227 Pa. 
 641; Huffnagle v. Canal Co., 227 
 Pa. 476. 
 
 ^"Good V. Good, i Mona. 718. 
 But an opinion based on an opinion 
 of another person not called as a 
 witness, without any evidence to 
 show that either the witness or his 
 informant had any personal knowl- 
 edge of the subject matter, is in- 
 competent: Com. V. Hazlett, 16 
 Super. 534. 
 
 ^"''Gillman v. Railway, 224 Pa. 
 267. 
 
 ^In absence of evidence he may 
 not state his opinion as to the 
 cause of the fall of a pile driver : 
 Zeigler v. Simplex Co., 228 Pa. 64; 
 or how an engine shaft might have 
 been bent: Pitts. Engine Co. v. 
 Mfg. Co., 43 Super. 483; or how 
 machinery acts when defective : 
 Zeigler v. Simplex Co., 228 Pa. 64; 
 or whether it was possible for gas 
 
 to escape from an underground 
 pipe line into a cellar, where the 
 pipe was not examined : Stoner v. 
 Penna. Supply Co., 40 Super. 599. 
 But in Southwest Penna. Pipe Line 
 V. Sand Co., 43 Super. 524, a wit- 
 ness with long experience in re- 
 pairing pipe lines was permitted to 
 give an opinion as to how a break 
 under a river might have been 
 caused, although the pipe was not 
 examined. And persons in the busi- 
 ness of shipping animals may tes- 
 tify whether certain animals could 
 have been injured in the manner 
 shown by the testimony if the 
 car had been handled properly : 
 Schaeffer v. Phila. & Reading Rail- 
 road, 168 Pa. 209; or may state 
 that certain injuries shown to ex- 
 ist could have been caused only by 
 negligent handling of the car : 
 .\ugustine v. Railroad, 55 Super. 
 126. 
 
 -McCullough's Estate, 2 Mona. 
 4. Irrelevant facts need not be in- 
 cluded : Miller's Estate, 179 Pa 
 64.S. 
 
OPINIONS. 
 
 301 
 
 own witnesses,^ but should not assume facts not warranted b)' 
 the evidence.* If opposing counsel thinks all the facts are not 
 included in the question, he may incorporate them in questions 
 on cross-examination. ° 
 
 The whole examination is under control of the trial judge who 
 should see that it is fairly and reasonably conducted."* 
 
 § 335. General Principles — ftualifications of Witness. A wit- 
 ness offered as an expert must be shown to have had some op- 
 portunity or means of acquiring special knowledge or experience 
 with reference to the particular question or subject matter. No 
 definite rule can be laid down as to the necessary extent of such 
 knowledge or experience. Much depends upon the nature of the 
 question.' The witness need not possess all knowledge on the 
 
 sCoyle V. Com., 104 Pa, 117; Mil- 
 ler's Estate, 179 Pa. 645 ; Gillraan 
 V. Railroad, 224 Pa. 267. 
 
 *Reber v. Herring, 115 Pa. 599; 
 Jones V. Railroad, 202 Pa. 81. 
 
 ^Gillraan v. Railway, 224 Pa. 267. 
 
 •^Coyle V. Cora., 104 Pa. 117. 
 
 'Ardesco Oil Co. v. Gilson, 63 
 Pa. 146; Com. V. Gibbons, 3 Super. 
 408. A physician who has gradu- 
 ated from a reputable medical col- 
 lege and served three years as an 
 army surgeon is competent to tes- 
 tify concerning the proper treat- 
 ment of a broken limb : Olmsted v. 
 Gere, 100 Pa. 127; and one who 
 has made tests of the effect of 
 powder marks from a pistol fired 
 at close range and has had experi- 
 ence in cases of gun shot wounds, 
 is qualified to testify on the sub- 
 ject: Sullivan v. Com., 93 Pa. 284. 
 One who has had a technical course 
 :n engineering may state whether a 
 railroad trestle was properly built : 
 Dutton V. Phila., B. & W. Railroad, 
 32 Super. 630. A bricklayer of 
 long experience may state what is 
 the customary allowance of bricks 
 per square yard : Pitts, v. O'Neill, 
 I Pa. 342. A witness with long ex- 
 perience in handling oils may state 
 whether a room in which an ex- 
 
 plosion occurred was properly ven- 
 tilated and what precautions should 
 have been taken to prevent ex- 
 plosion : Bardsley v. Gill, 218 Pa. 
 56. One who has general knowledge 
 of similar appliances and has seen 
 the drawings and specifications on 
 which a patent issued may state 
 whether there is anything new and 
 useful about the invention to justify 
 a patent for it : Haley v. Flaccus, 
 193 Pa. 521. A millwright is com- 
 petent to testify that if a mill dam 
 had been a foot lower as claimed 
 by one of the parties, the mill would 
 not have been capable of doing the 
 work which it was shown to have 
 done for many years : Detweiler v. 
 Groff, 10 Pa. 376. An expert may 
 identify a substance as oleomarga- 
 rine, though he may be unable to 
 state all its ingredients : Com. v. 
 Caulfield, 27 Super. 279; one who 
 has been connected with the use of 
 inks for many years may make com- 
 parisons of ink used in different 
 writings : Com. v. Pioso, 17 Super. 
 45. A 'person familiar with the 
 life insurance business may state 
 whether the insurance company 
 would take as a risk a person en- 
 gaged in a certain occupation : 
 Hartman v. Ins. Co., 21 Pa. 466; 
 
302 
 
 PENNSYLVANIA TRIM, EVIDENCE. 
 
 particular subject. If he shows large experience and general fa- 
 miliarity therewith, he is competent.* It is therefore no objection 
 that a physician called as an expert had never before treated or 
 particularly observed a case of the exact character. Such fact 
 affects the weight of his testimony but not its competency." 
 
 Prima facia, every person is an expert in the particular branch 
 of business which he follows.^" But it is not imperatively re- 
 
 and one who has been in the busi- 
 ness of buying and seUing building 
 stone and has frequently examined 
 the stone in a particular quarry, 
 may testify to its adaptability for 
 building purposes : Keim v. Read- 
 ing, 32 Super. 613. One with many 
 years experience in selling monu- 
 ments may testify to the cost of 
 moving and building foundations 
 for monuments : Canfield v. John- 
 son, 144 Pa. 6:. One who has 
 worked on tow boats a number of 
 years is competent to say whether 
 it is safe in rough weather to stop 
 a vessel having a number of boats 
 m tow : Del. & Ches. Steam Boat 
 Co. V. Starrs, 69 Pa. 36. 
 
 A locomotive fireman is not com- 
 petent to testify to the necessity of 
 a safety switch at a particular 
 place: Ballard v. N. Y. C. Rail- 
 road, 126 Pa. 141 ; nor may a wit- 
 ness be asked whether he knows 
 the duties of a railroad engineer at 
 a crossing in absence of some proof 
 that he is qualified to furnish an 
 opinion on the subject: Born v. 
 Phila. & Reading Railway, 198 Pa. 
 409. One who occasionally gives 
 instructions on mines and mining 
 but who has never been in a mine, 
 may not give an opinion concerning 
 the cause of a cave in : Limeoski 
 V. Susq. Coal Co., 157 Pa. 153; 
 nor may a witness who has neve^ 
 seen or heard of gasoline being 
 used for a particular purpose, tes- 
 tify to its effect when so used : 
 Lancaster Silver Plate Co. v. Ins. 
 
 Co., 170 Pa. isi; nor may one not 
 a chemist and who has made only 
 a few tests of whiskey from for- 
 mula prescribed in text-books, tes- 
 tify to the purity of whiskey : Hass 
 v, Marshall, 14 Atl. 421 ; nor is a 
 real estate broker competent to 
 testify to the usual commission for 
 the sale of a colliery, if it appears 
 he had no experience in such sales 
 and knew nothing as to commis- 
 sions paid : Potts v. Aechternacht, 
 93 Pa. 138; nor may he testify to 
 the value of certain land where he 
 had no knowledge of the particular 
 piece of land or of land in the 
 neighborhood until after it was 
 condemned, and then secured his 
 knowledge only from inquiry made 
 in the neighborhood before the trial. 
 In such case he may testify only as 
 an ordinary witness : Struthers v. 
 Railroad, 174 Pa. 291. An expert 
 in gas manufacturing who has no 
 knowledge of real estate values, is 
 not a competent witness where a 
 part of the realty belonging to a 
 gas plant was taken but the plant 
 itself was not destroyed. Spring 
 City Gas Co. v. Penna., etc. Rail- 
 road, 167 Pa. 6. See also § 328 as 
 to competency of witness to testify 
 to real estate values. 
 
 'Follansbee v. Garrett, 48 Super. 
 183. 
 
 "Flaherty v. Water Co., 30 Super. 
 446. 
 
 '"Whelen v. Harrison, 40 Leg. 
 Int. 170. 
 
OPINIONS. 
 
 303 
 
 quired that the business or profession of the witness should be 
 that to which the question relates. There are some matters of 
 which every person with opportunities for observation may form 
 a reliable opinion. ^^ 
 
 The question whether or not a witness is competent to testify 
 as an expert is a preliminary one for the court.^" If he appears 
 to be qualified, his testimony may then be left to the jury with 
 instructions to give it such weight as they think proper in view 
 of the experience, skill or knowledge the witness has been shown 
 to possess. ^^ The question is one which rests in the discretion 
 of the trial judge and the appellate court will not reverse because 
 of the admission of such testimony if it appears the witness had 
 any claim to the character of an expert,^* or for rejecting the 
 
 iiArdesco Oil Co. v. Gilson, 63 
 Pa. 146. A surveyor and engineer 
 ot long experience, who has fre- 
 quently made measurements of ex- 
 cavations and masonry, though not 
 a builder, may testify to the exist- 
 ence of a system of "constructive 
 measurements" : Ambler v. Phillips, 
 132 Pa. 167. The mother of four 
 children may testify that a certain 
 child was fully developed at its 
 birth; Allen's Appeal, 99 Pa. 196; 
 and a nurse who had long experi- 
 ence in cases of child birth may 
 testify that in her opinion an abor- 
 tion had been performed on a car- 
 tain person : Com. v. Gibbons, 3 
 Super. 408. Witnesses who have 
 had practical experience in the man- 
 ufacture and use of concrete, 
 though not familiar with the tech- 
 nical rules as to percentages, may 
 testify to results secured by cer- 
 tain mixtures : McDonald v. Sund- 
 strom, 31 Super. 241. A steam 
 fitter at an oil mill, though without 
 experience with stills, may state 
 whether the iron of which stills 
 were made was of sufficient thick- 
 ness: Ardesco Oil Co. v. Gilson, 
 63 Pa. 146. Experts in microscopy 
 or photography may testify to facts 
 discovered concerning a certain sig- 
 
 nature, though they are not hand- 
 writing experts : Wenchell v. Stev- 
 ens, 30 Super. 527. One not a car- 
 penter has been permitted to testify 
 to thq cost of building a barn : 
 Cummings v. Ins. Co., 192 Pa. 359. 
 But an undertaker who has never 
 studied any books on medicine or 
 given any special attention to the 
 subject, may not testify to the 
 length of time a person had been 
 dead when found : Com. v. Far- 
 rell, 187 Pa. 408. 
 
 i^Sorg V. German Congregation, 
 63 Pa. 156; Ardesco Oil Co. v. Gil- 
 son, 63 ■ Pa. 146; Del., etc. Tow 
 Boat Co. v. Starrs, 69 Pa. 36; Al- 
 len's Appeal, 99 Pa. ig6; Ryder v. 
 Jacobs, 182 Pa. 629; Davis v. Rail- 
 road, 215 Pa. 581. It is irregular 
 for the court, after admitting ex- 
 pert testimony, to leave it to the 
 jury to say whether or not he had 
 such experience as would make him 
 an expert : Whitmire v. Montg. 
 Co., i6s Pa. 253. 
 
 "Del., etc. Tow Boat Co. v. 
 Starrs, 69 Pa. 36; Wells v. Leek, 
 151 Pa. 431; Walbert v. Trexler, 
 156 Pa. 112. 
 
 i^Sorg V. German Congregation, 
 63 Pa. 156; Del., etc. Tow Boat 
 Co. V. Starrs, 69 Pa. 36; Allen's 
 
304 PENNSYLVANIA TRIAL EVIDENCE. 
 
 testimony if it is doubtful whether he is qualified to testify as 
 such.'^ 
 
 In deciding the question of competency, the court should have 
 the benefit of every aid, the most effective of which is cross- 
 examination by opposing counsel, who have the right to cross- 
 examine as to competency before the witness testifies in chi&f,'" 
 and it is error to refuse to permit such cross-examination on the 
 theory that if incompetent the testimony can be subsequently 
 stricken out." 
 
 § 336. General Principles — Weight of Testimony. The weight 
 to be attached to the opinions of experts varies greatly, depending 
 upon the nature of the question involved and the qualifications 
 shown by the witnesses. Such testimony is entitled to little 
 weight unless it comes from persons shown to possess such ex- 
 perience, knowledge and skill as entitles their opinions to pass 
 as scientific truths,^* and the greater the experience or knowledge, 
 the greater the value of the opinion resting on it.^° 
 
 Opinion evidence is of a lower grade than positive testimony 
 of actual facts.-" While it has been said that such evidence is 
 the lowest grade that ever comes into a court of justice,^' yet 
 there are times when it is the highest order of evidence that the 
 nature of the case affords, as where the question involves some 
 branch of science or arts which requires special knowledge to 
 understand. In such cases the knowledge and experience of ex- 
 perts is entitled to great weight and the jury should be instructed 
 to give their testimony careful consideration.^^ But they are not 
 bound by it, and may ignore it altogether.'^ 
 
 Appeal, 99 Pa. ig6; Stevenson v. Pa. 324. Opinions based on dis- 
 
 Ebervale Coal Co., 203 Pa. 316. puted facts are entitled to little 
 
 i^Groff V. Groff, 209 Pa. 603. weight : Guarantee Trust Co. v. 
 
 i^First National Bank v. Wire- Waller, 240 Pa. 575. 
 
 bach, 12 W. N. C. 150; Friday v. "'Wells v. Leek, 151 Pa. 431. 
 
 Penna. Railroad Co., 204 Pa. 405. ^ng^own v. Bush, 45 Pa. 61 ; 
 
 In an action for damages for fail- Berkley v. Maurer, 34 Super. 363 ; 
 
 urc to provide surface support, an Messner v. Elliott. 184 Pa. 41. 
 
 expert may be examined prelimi- -'Davifson v. Pitts., 159 Pa. 317; 
 
 narily as to the fertility of the soil Guarantee Trust Co. v. Waller, 240 
 
 and the uses to which it was adapt- Pa. 575. 
 
 ed: Weaver v. Coal Co., 216 Pa. -"Pannell v. Com., 86 Pa. 260. 
 
 195. --'Bollinger v. Gallagher, 170 Pa. 
 
 •'Davis V, Penna. Railroad, 215 84; Com. v. Shultz, 221 Pa. 467. 
 
 Pa. 581. In Pannell v. Com., 86 Pa. 260, it 
 
 isCarr v. Northern Liberties, 35 was held error for the court to 
 
OPINIONS. 305 
 
 § 337. Business Methods. Where the subject under investiga- 
 tion involves a knowledge of the ways, means and methods of 
 doing work with which the jury is presumably unacquainted, the 
 testimony of a witness having special knowledge thereof may be- 
 received. Thus an expert may testify as to the efficiency of a 
 particular method of distribution of samples for advertising pur- 
 poses,^* or state whether a certain method of handling tobacco 
 is injurious,-'' or whether a particular method of operating trains 
 is a safe one.*" A witness familiar with a particular business 
 may also testify to the existence of a trade custom with reference 
 to which a written contract may have been made ; but he cannot 
 be permitted to give his opinion as to how the trade would con- 
 strue the words used.^' 
 
 § 338. Common Knowledge, Matters Of. Where the question 
 involved is such as can be understood by any person without spe- 
 cial knowledge, training or skill, opinions of experts are unnec- 
 essary and inadmissible. Thus the effect on passengers of the 
 sudden starting of cars,** or whether or not sewing made on two 
 different articles was done by the same person and with the same 
 thread,-* or the meaning of the term "skim milk,"^° or whether 
 the danger of fire has been increased by the erection of adjoin- 
 
 cliarge in regard to the opinions of testimony that is merely opinion 
 medical experts as to sanity : "We testimony. It may be of value and 
 question very much whether you it may be of no value, just as it 
 will realize much, if any, valuable appeals to you ... If you con- 
 aid from them in coming to a cor- sider the testimony cannot do you 
 rect conclusion as regards the re- any particular good, you will dis- 
 sponsibility for crime," even though miss it, but whether you dismiss it 
 in another part of the charge they or not is a matter entirely for you, 
 were told that "great respect should and what effect you will give it is 
 be paid to the opinion of that class also a matter for you.'' The minor- 
 ot witness." But in Com. v. Shultz ity opinion of the court was based 
 it was held by a divided court that on the decision in Pannell v. Corn- 
 it was not error to charge that the monwealth. 
 
 jury "are not bound to decide the ^ipgrry v. Jensen, 142 Pa. 125. 
 
 case according to the views of the -^Field v. Schuster, 26 Super. 82. 
 
 doctors one way or the other. -«Lewis v. Seifert, 116 Pa. 628. 
 
 The doctors are not the jury, -'Columbia Glass Co. v. Glass 
 
 they cannot take the stand and Co., 43 Super. 367. 
 
 say such and such is the case and *«Holmes v. Alleg. Traction Co., 
 
 then decide the case. You have '53 Pa- IS2. 
 
 been told that you are bound by the ^^Coni. v. Farrell, 187 Pa. 408. 
 
 evidence, or as much of it as you soConi. v. Hufnal, 4 Super. 301. 
 believe; when you come to medical 
 20 
 
.306 PENNSYLVANIA TRIAL, EVIDENCE. 
 
 ing buildings^^ are not matters requiring the aid of expert opin- 
 ions. 
 
 § 339. Handwriting. The early cases are not uniform as to 
 ■the extent and conditions under which opinions were admissible 
 to prove handwriting, but it was generally held such testimony 
 was admissible only to corroborate or to contradict other evi- 
 dence on the subject;^- Section 55 of the Criminal Procedure 
 Act of March 30, i860, P. h. 427, permitted experts to testify 
 concerning the genuineness of handwriting in a criminal case 
 without other proof first being made, and the Act of May 15, 
 1895, P. L. 69, and its amendment of June 6, 1913, P. L. 451, 
 made opinions of experts competent in all cases civil or crimi- 
 nal,"^ whenever there is a question as to any handwriting."* 
 
 A witness who properly qualifies to testify as an expert under 
 the above acts is not rendered incompetent by reason of the fact 
 that he has also a knowledge of the person's handwriting from 
 having seen him write. "° Expert microscopists may testify that 
 as a result of their examination of a signature they found that 
 the signature overlapped the seal, without qualifying as hand- 
 writing experts."* 
 
 Expert testimony is entitled to little weight as against the testi- 
 mony of many persons familiar with handwriting."' 
 
 § 340. Handwriting — Comparison. At common law compari- 
 son by the jury was allowed only to corroborate other proof of 
 the genuineness of the writing, and in absence of such inde- 
 
 siPranklin Ins. Co. v. Gruver, s^Section i of the Act of 1895, 
 100 Pa. 266. But such testimony as amended by the Act of 1913 pro- 
 may be received to prove that in \ides that "where there is a question 
 the insurance business the technical as to any writing the opinions of 
 rl.'ik and the rate of insurance is the following persons shall be 
 thereby increased : Hartman v. Ins. deemed to be relevant . . . (b) 
 Co., 21 Pa. 466. The opinion of those who have had 
 
 "^Fulton v. Hood, 34 Pa. 365; special experience with, or who 
 
 Burkholder v. Plank, 6g Pa. 225; have pursued special studies relat- 
 
 Ballentine v. White, 77 Pa. 20. ing to documents, handwriting and 
 
 "^Section 5 of the Act of 1895 alterations thereof, who are herein 
 
 provides that "all provisions of this called experts." 
 
 act shall apply to all courts of judi- sowenchell v. Stevens, 30 Super. 
 
 Cciture, criminal and civil, and to all 171. 
 
 persons having, by law or consent ""Wgngj^gH y Stevens, 30 Super, 
 
 of parties, authority to hear, re- 527. 
 
 ceive and examine evidence." ''Fuller's Estate, 222^ Pa. 182. 
 
OPINIONS. 
 
 307 
 
 pendent proof no comparison by them could be made."^ While 
 there was a tendency in some of the early decisions to restrict 
 such evidence to civil cases,^' the rule seems to have been that 
 it was equally admissible in criminal cases.*" 
 
 The Act of May 15, 1895, P. L. 69, provides that experts may 
 make comparison of disputed handwriting with any writing ad- 
 mitted or proven to the satisfaction of the court to be genuine, 
 and may place the genuine and disputed writing in juxtaposition*"^ 
 and call the attention of the jury to the principles and reasoning 
 by which he arrives at his conclusion. Such opinion, together with 
 any other evidence on the subject, is then submitted to the jury 
 to aid them in a final determination of the question. *- 
 
 s^Travis v. Brown, 43 Pa. 9 
 Haycock v. Greup, 57 Pa. 438 
 Aumick v. Mitchell, 82 Pa. 211 
 Berryhill v. Kirchner, 96 Pa. 489 
 Foster v. Collner, 107 Pa. 305. The 
 same principle was applied to com- 
 parison of printing type : McCorkle 
 V. Binns, 5 Bin. 340. 
 
 si'Farmers' Bank v. Whitehill, 10 
 S. & R. no. 
 
 "Com. V. Smith, 6 S. & R. 571 ; 
 Callan v. Gaylord, 3 Watts 321. 
 
 ^^An expert may, for the purpose 
 of illustrating the reasons for his 
 conclusions, use a free hand dia- 
 gram representing the two signa- 
 tures, so long as the jury under- 
 stand that its use is limited for that 
 purpose and that it is not to be re- 
 garded as evidence : Hagan v. 
 Carr, igS Pa. 606. But he may not 
 write a copy of the disputed signa- 
 ture on a blackboard and compare 
 such copy with copies of authentic 
 writings. The act allows only 
 comparisons of the genuine and dis- 
 puted signatures : Grofif v. Groff, 
 209 Pa. 603. 
 
 ^^The act provides: "§ 2. It shall 
 be competent for experts in giving 
 their testimony under the pro- 
 visions of this act, to make com- 
 parison of documents and compari- 
 son of disputed handwriting with 
 
 any document or writing admitted 
 to be genuine, or proven to the sat- 
 iftaction of the judge to be genu- 
 ine, and the evidence of such experts 
 respecting the same shall be sub- 
 mitted to the jury as evidence of 
 the genuineness or otherwise of 
 the writing in dispute." 
 
 "§ 3. It shall be competent for 
 experts in formulating their opin- 
 ions to the court and jury, to place 
 the genuine and disputed signa- 
 tures or writings in juxtaposition, 
 ard to draw the attention of the 
 jury thereto; and it shall further- 
 more be competent for counsel to 
 require of an expert a statement of 
 the principles on which he has 
 based his work, the details of his 
 work, and his opinion that the re- 
 sults are important to the point at 
 issue, or the reasoning, analysis and 
 investigation by which he has ar- 
 rived at his opinion." 
 
 "§ 4. The opinions of the wit- 
 nesses to handwriting being sub- 
 mitted as competent testimony to 
 the jury, the final determination as 
 to whether any particular hand- 
 writing is genuine or simulated 
 shall remain, as heretofore, a ques- 
 tion for the jury on all the evi- 
 dence submitted." 
 
308 PICNNSYLVANIA TRIAI. EVIDENCE. 
 
 The Act of 1895 did not change the law as it existed prior to 
 its passage, by which the jury were authorized to malie compari- 
 sons/^ nor did it change the rule that to authorize the admission 
 of a writing offered as a test or standard for comparison, noth- 
 ing short of evidence by a person who saw the party write the 
 paper or an admission by such party of its genuineness, or evi- 
 dence of equal authority, is sufficient." Neither letter press 
 copies" nor composite photographs of several genuine signa- 
 tures^will be received for that purpose. But a signature made 
 with pencil may be used.*^ 
 
 § 341. Mechanical, Engineering or Scientific Questions.. Mat- 
 ters involving questions of mechanical or engineering skill or 
 requiring scientific knowledge are frequent subjects of expert 
 testimony, as where it is sought to determine the reasonableness 
 of the price for constructing a building,^^ or the quantity of water 
 necessary to supply a town,'" or whether machinery was repaired 
 and kept in proper condition for successful operation,^" or whether 
 a trestle was properly constructed,^^ or the cause of the collapse 
 of a building or bridge. ^^ An expert may also testify that under 
 the circumstances of a shipment of meat it could not have spoiled 
 before delivery if it had been in proper condition, when shipped,^* 
 
 ^^Groff V. Groff, 209 Pa. 603 ; was hers without having an oppor- 
 
 Shannon \ . Castner, 21 Super. 294. tunity to read or examine the let- 
 
 **McCorkle v. Binns, 5 Bin. 340; ter, a subsequent denial by her after 
 
 Baker v. Haines, 6 Whart. 284; proper examination is sufficient to 
 
 Depue V. Place, 7 Pa. 428; Travis exclude it for the purpose of com- 
 
 V. Brown, 43 Pa. 9; Cohen v. parison : Hartje v. Hartje, 35 
 
 1 eller, 93 Pa. 123 ; Shannon v. Super. 14. 
 
 Castner, 21 Super. 294. If such ^^Cohen v. Teller, 93 Pa. 123. 
 
 proof is furnished and there is op- ^''Vandcrslice v. Snyder, 4 Dist. 
 
 posing testimony given, the de- 424. 
 
 cision of the trial judge is ordinar- ^'Groff v. Groff, 209 Pa. 603. 
 
 ily conclusive since the credibility ^swintg^j ,, Schmitz, 36 Super, 
 
 of the witness is an important 496. 
 
 factor, and of this he is better '"'Ephrata Wafer Co. v. Boro., 24 
 
 able to judge than the appellate !>uper. 353. 
 
 court. Id. The personal signature '"Sharpless v. Zelley, 37 Super, 
 
 of a partner cannot be used as a 102. 
 
 standard for comparison with the s^Dutton v. Phila., etc. Railroad, 
 
 signature made by the same person 32 Super. 630; Stremme v. Dyer, 
 
 ot the partnership name : Daniel v. 223 Pa. 7. 
 
 Lance, 29 Super. 454 ; and where "^Thorp v. Boudwin, 228 Pa. 165 ; 
 
 the respondent in a divorce case Hass v. Bore, 54 Super. 75. 
 
 admitted handwriting in a letter '^Ryan v. Ulmer, 108 Pa. 332. 
 
OPINIONS. 309 
 
 or that the effect produced by a certain article sold was the same 
 as that produced by a sample. °* 
 
 § 342. Mental Condition. The testimony of medical experts 
 is sometimes the only evidence available to support the defense of 
 insanity in a crimnal case, and such testimony is also frequently 
 , resorted to in cases involving the mental capacity of a person to 
 transact business. If the physician testifies from personal ex- 
 amination, he may give his opinion without stating the facts on 
 which he bases it.'*" If he does not speak from personal knowl- 
 edge but the facts are admitted or are assumed to be true, he may 
 give his opinion based thereon as a matter of scientific deduc- 
 tion.''* He may also express an opinion as to the witness's 
 power of memory, based on the nature and accuracy of the latter's 
 testimony on the stand. °'' 
 
 A physician who was acquainted with a testator for many 
 years,°* or who attended him during his last illness when his will 
 was made,^" may state whether in his opinion the testator was 
 . mentally competent to make a will. But expert opinions that 
 testator was incompetent cannot prevail against positive state- 
 ments of witnesses who were present when the will was made, to 
 the effect that the testator knew what he was doing and was men- 
 tally competent to transact business."" 
 
 The warden of a penitentiary with many years experience and 
 study of real and feigned insanity, may testify that many of the 
 prisoners feigned insanity so successfully as to deceive ex- 
 perts."^ 
 
 § 343. Negligence. Whether a particular act was performed 
 in a prudent and proper manner is a subject on which a witness 
 qualified to speak may express his opinion. He may show the 
 manner of performance, and state whether the precautions taken 
 
 5*Tilton V, Miller, 66 Pa. 388. view: Com. v. Buccieri, 153 Pa. 
 
 =5Hej)ler v. Hosack, 197 Pa. 631. 535. 
 A physician who was called to at- ^"Coyle v. Com., 104 Pa. 117. 
 
 tend a person within an hour after See § 334. 
 
 he committed a crime and who ^'Com. v. Buccien, 153 Pa. 535. 
 
 made a general examination of the "s^Bitner v. Bitner, 65 Pa. 347 ; 
 
 accused at that time, may testify Doran v. McConlogue, 150 Pa. 98. 
 whether there were any indications ""Pidcock v. Potter, 68 Pa. 342. 
 
 ot epilepsy though the examination ""Klein's Estate, 207 Pa. I91 ; 
 
 was not made with that object in Moorhead v. Scovel, 210 Pa. 446. 
 
 "'Com. V. Wierbach, 190 Pa. 138. 
 
310 PliNNSYLVANIA TRIAL EVIDENCE. 
 
 were reasonably sufficient under the circumstances."^ But the 
 question whether a general line of conduct is negligent or careful, 
 is for the jury."^ Nor may a witness state whether a motorman 
 used good judgment in operating his car under circumstances 
 which are fully described."* 
 
 § 344. Physical Condition. The opinion of a physician is al- 
 ways competent where the physical condition of a person is in issue. 
 He may also state when"^ or how certain injuries were inflicted and 
 what was the cause of death,"" or whether a certain disease re- 
 sulted from particular injuries,"^ or whether a certain instrument 
 could have produced the particular kind of wound,"' or whether 
 injuries are likely to be permanent."" A physician who examined 
 an injured person more than two years after an accident may 
 testify he found internal injuries of long standing which, in his 
 opinion, were caused by the accident.'^" And where it is shown 
 that one accused of murder was wearing the hat of the deceased 
 when arrested, a physician who examined the body may testify 
 that cuts in the hat corresponded with cuts in the head of the man 
 murdered. '^'^ 
 
 A physician who has described the nature and symptoms of a 
 disease may testify whether it is easy or difficult to diagnose.'^ 
 
 § 345. Professional Skill. An expert may state whether or 
 not in his opinion another expert was qualified to perform certain 
 acts, if such opinion is based on knowledge acquired from ob- 
 serving such acts.''^ One physician may also state whether an- 
 other in treating a patient, used such care and diligence as the 
 case demanded.'* 
 
 "^Elder V. Coal Co., 157 Pa. 490; Super. 325; Moss v. Transit Co., 42 
 
 Kehler v. Schwenk, 151 Pa. 505. Super. 466. 
 
 But a brakeman accused of negli- ^^QQ^n. v. Bubnis, 197 Pa. 542; 
 
 gence cannot be asked whether he Com. \. Campbell, 31 Super. 9. 
 emitted to do anything which could ^''Wilt v. Vickers, 8 Watts 227; 
 
 have been done to prevent the acci- Goldstein v. Twp., 43 Super. 158. 
 dent: North Pa. Railroad v. Kirk, '"Brown v. Traction Co., 230 Pa. 
 
 90 Pa. IS- 498. 
 
 esElder v. Coal Co., iS7 Pa. 490. "Com. v. Karamarkovic, 218 Pa. 
 
 "''Woeckner v. Electric Co., 187 405. 
 Pa. 206. See § 324. "-'Baldi v. Ins. Co., 18 Super. 599. 
 
 "i^Com. V. Campbell, 31 Super. 9. '"Laros v. Com., 84 Pa. 200. 
 
 ""Com. V. Crossmire, 156 Pa. "^ physician may state whether 
 
 304; O'Mara v. Com., 75 Pa. 424. from an examination of an injured 
 
 "'Blasband v. Transit Co., 42 person and the facts in evidence, 
 
OPIXION^S. 3TI 
 
 Evidence relating to a person's professional skill must be con- 
 fined to his skill in reference to the particular subject matter 
 under consideration and not to his skill generally. Thus in an 
 action for malpractice the testimony should be confined to the 
 defendant's treatment of the particular case.'^ 
 
 A physician cannot testify to the measure of another physi- 
 cian's responsibility in case of the refusal of the patient to obey 
 instructions, such question being a legal rather than a medical 
 one/*' 
 
 § 346. Value. One having special knowledge of the value of 
 goods", machinery or other personal property, may be permitted 
 to testify thereto though he may not be technically an expert. 
 His familiarity with the particular articles, or with the trade or 
 business in which they were manufactured, sold or used, enables 
 him to estimate the value in a way which others could not do. 
 It is immaterial that he never saw the particular goods in ques- 
 tion.^^ 
 
 Persons who follow a particular trade or line of work may be 
 called as experts on questions relating to the value of such work, 
 and may state whether or not certain charges are reasonable.^* 
 But county commissioners who had signed contracts for construc- 
 tion of bridges, but who know nothing of bridge building, are 
 incompetent to say whether a fair price was paid for a certain 
 bridge.'" 
 
 Real estate brokers may testify as experts concerning the value 
 of realty in the neighborhood where they transact business. The 
 testimony of such persons, because of their greater opportunities 
 for observing and knowing prices paid for other properties, is 
 
 another physician used proper skill Girard Fire Ins. Co. v. Braden, 96 
 
 and care in treating the injury, and Pa. 81 ; Sykes v. Thornton, 223 Pa. 
 
 whether the condition of the in- 589. A witness famiHar with the 
 
 jured person was as good as that of manufacture and sale of beer may 
 
 the average person with the same estimate the value of the control of 
 
 injuries after treament by skillful licensed properties in connection 
 
 physicians : Olmsted v. Gere, 100 with a brewery : Stocker v. Schneid- 
 
 Pa. 127. er, 228 Pa. 149. 
 
 "Mertz V. Detweiler, 8 W. & S. ■^sgeth Thomas Clock Co. v. Dob- 
 
 376. bins, 16 Super. 325 ; Worden v. 
 
 ™Mertz V. Detweiler, 8 W. & S. Connell, 196 Pa. 281 ; Blew v. Twp., 
 
 376. 42 Super. Sio. 
 
 ^'Mish V. Wood, 34 Pa. 45i ; ''"Com. v. Sunderlin, 31 Super. 
 
 Thompson v. Boyle, 85 Pa. 477; 349- 
 
312 PKNXSYLVANIA TRIAI, EVIDENCE. 
 
 generally entitled to greater weight than that of ordinary wit- 
 nesses residing in the neighborhood but who are usually less 
 interested in the subject of values and know less about it gener- 
 ally.*" If the witness fails to qualify as an expert, his testimony 
 may still be competent as an ordinary witness. ^"^ 
 
 soSee § 328, note 66. See also § *'Struthers v. Railroad, 174 Pa. 
 
 328 for general rules governing 291. 
 opinions as to value of realty. 
 
PAROt EVIDENCE. 313 
 
 CHAPTER XIII. 
 
 PAROL EVIDUNCi;. 
 
 A. ADMISSIBILITY TO AFFECT WRITINGS IN GENERAL. 
 
 347. General rule. 
 
 348. Collateral agreements. 
 
 349. Collateral writings. 
 Consideration. 
 
 350. Additional or different. 
 
 351. Failure of. 
 
 352. Proof of, where none is mentioned. 
 
 353. Construction of writing. 
 
 354. Language — Interpretation of. 
 
 355. Latent ambiguity. 
 
 356. Mutual construction and understanding of parties. 
 
 357. Subject matter — Explanation and identification of. 
 
 358. Technical or trade terms. 
 
 359. Contradiction of writing. 
 
 360. Fraud, accident or mistake. 
 
 361. Contemporaneous parol agreement — Fraudulent use of writing 
 
 in violation of. 
 
 362. Date of writing. 
 
 363. Incomplete writings — Omissions. 
 
 364. Presumptions or inferences — Rebuttal of. 
 Proof. 
 
 365. Court and jury — Question for. 
 
 366. Offer of. 
 
 367. Standard of. 
 
 368. Sufficiency of — Two witness rule. 
 
 369. Subsequent agreements and declarations. 
 
 370. Third persons — Rights of. 
 
 B. APPLICATION OF RULE TO PARTICULAR WRITINGS. 
 
 371. Bills of lading. 
 
 372. Bonds and mortgages. 
 
 373. Book entries. 
 
 374. Deeds. 
 
 375. Judgments — Confession of. 
 
 376. Promissory notes. 
 
 377. Public records. 
 
 378. Receipts. 
 Wills. 
 
 379. Ambiguity — ^Latent. 
 
 380. Ambiguity — Patent. 
 
 381. Fraud and undue influence. 
 
 382. Intent of testator. 
 
 383. Mistake. ' 
 
314 PENNSYLVANIA TRIAI, EVIDENCE. 
 
 A. ADMISSIBILITY TO AFFECT WRITINGS IN GENERAL. 
 
 § 347, General Eule. Whenever parties to an agreement have 
 put it in writing, it will be presumed that this was done because 
 of the greater accuracy and certainty of this means of showing 
 what the agreement was and in preserving the evidence of it/ 
 The writing thus becomes the expression of the final result of 
 the negotiations between the parties and is the best and only evi- 
 dence of the transaction,- all preliminary agreements and con- 
 versations being presumed to have been merged in such writing, 
 and parol evidence to contradict or vary its terms is therefore 
 inadmissible.'' This rule is subject to a number of exceptions 
 hereafter to be considered. 
 
 § 348. Collateral Agreements. A parol agreement which is 
 collateral to and not a necessary part of a written agreement, or 
 which relates to a different subject than that contemplated by the 
 writing, may be shown without violating the parol evidence rule.* 
 
 As a general rule a collateral verbal contract in the nature of 
 a guaranty of the title or quantity of land conveyed, is not merged 
 in the conveyance in absence of an express covenant in the deed 
 covering the same subject matter, and may be proved and enforced 
 after the land is conveyed.^ A parol guaranty of a bond and mort- 
 gage," or warranty of an article sold' may be shown, and in an 
 
 iMartin v. Berens, 67 Pa. 459. Taylor v. Sattler, 179 Pa. 451. It 
 
 -Rearick v. Rearick, 15 Pa. 66; may be orally shown that as be- 
 
 Miller v. Fichthorn, 31 Pa. 252; tween joint makers of a judgment 
 
 Pioso V. Bitzer, 209 Pa. 503. note, the note represented a loan to 
 
 •''Cozens V. Stevenson, 5 S. & R. one of them, and the other was 
 
 421; Frey v. Heydt, 116 Pa. 601; merely a surety : Taussig's Appeal, 
 
 Woodcock V. Robinson, 148 Pa. 221 Pa. 62; or that an assignment 
 
 503 ; Union Storage Co. v. Speck, was made for a certain purpose : 
 
 194 Pa. 126; Vito V. Birkel, 209 Pa. Helms v. Trust Co., 35 Super. 542. 
 
 206; Murphy v. Greybill, 34 Super. ^Frederick v. Campbell, 13 S. & 
 
 339. Evidence of a conversation R. 133; Richardson v. Gosser, 26 
 
 previous to the execution of a writ- Pa. 335 ; Close v. Zell, 141 Pa. 390. 
 
 ing may be admitted however to It may be shown by parol that a 
 
 corroborate testimony given to grantor agreed to defend any suit 
 
 prove a contemporaneous parol against the grantee: Birchfield v. 
 
 agreement: Phillips Gas Co. v. Castleman, Add. 181. 
 
 Glass Co., 213 Pa. 183. "Overton v. Tracey, 14 S. & R. 
 
 ■•Stafford V. Stafford, 27 Pa. 144; 311. 
 
 Heilman v. Weinman, 139 Pa. 143; 'Driesbach v. Lewisburg Bridge 
 
 Parcell v. Grosser, 109 Pa. 617; Co., 8i* Pa. 177. 
 White V. Black, 14 Super. 459; 
 
PAROL EVIDENCE. 315 
 
 action on a note parol evidence is admissible to show that the 
 note was given in the purchase of a business, with the under- 
 standing that if the business was not a success the purchaser 
 should return the property and thus satisfy the note, which was 
 done.* Such evidence does not contradict the terms of the note 
 but is merely proof of payment by the fulfillment of a parol con- 
 tract. 
 
 § 349. Collateral Waitings. A writing which is the basis of 
 an action and therefore directly in issue, becomes the law gov- 
 erning the relation of the parties and it is the duty of the court 
 to place a construction upon it as written. But the parties are 
 not bound by writings between strangers or which are only inci- 
 dentally or collaterally in issue and not the basis of the action, 
 and the rule excluding parol evidence to vary written agreements 
 has no application." When such writing is offered, it is merely 
 evidence to be considered by the jury with other proofs in the 
 case, the duty of the court being performed by deciding the ques- 
 tion of its relevancy. 
 
 § 350. Consideration — Additional or Different Consideration. 
 The amount of the consideration in a contract, whether large or 
 small, does not usually afifect the covenants of the parties, and 
 therefore the iact that there was some other or different con- 
 sideration than that expressed in the writing may be orally 
 shown,'" the consideration mentioned being held only presump- 
 tive evidence that it is the real one.'"^ Thus in the case of a deed, 
 the insertion of the true or whole consideration is unnecessary 
 to the validity of the grant and the parties frequently insert a 
 nominal amount.'^ If for any reason the real consideration be- 
 comes material, it may then be shown by parol. '^ 
 
 ^Martin v. McQune, 8 Super. 84. 151; Henry v. Zurflieh, 203 Pa. 
 
 'Weaver v. Wood, 9 Pa. 220; 440. 
 
 Everson v. Fry, 72 Pa. 326; Curtin i^j^ck v. Dougherty, 3 Watts 
 
 V. Gas Co., 233 Pa. 397; Alexander 151; Miles v. Waggoner, 23 Super. 
 
 V. Righter, 240 Pa. 22. 432. In addition to the considera- 
 
 ^''Holmes's Appeal, 79 Pa. 279; tion mentioned in a deed, it may be 
 McGary v. McDermott, 207 Pa. shown by parol that there was also 
 620; Press Publishing Co. v. Read- a release of several thousand dol- 
 ing News Agency, 44 Super. 428. lars of indebtedness as further 
 
 I'Jack V. Dougherty, 3 Watts consideration : Strawbridge v. Cart- 
 
 151 ; Henry v. Zurflieh, 203 Pa. ledge, 7 W. & S. 394. It may be 
 
 440. shown that a mortgage was for a 
 
 l^Jack V. Dougherty, 3 Watts larger sum than the mortgagor had 
 
 received : Mackey v. Brownfield, 13 
 
3l6 PliNNSVIvVANIA TRIAL UVIDENCK. 
 
 Where the consideration in a deed for more than one tract of 
 land is mentioned in a kimp sum, it may be shown orally how the 
 consideration was apportioned.''' But if rent in a lease was re- 
 served in money, it may not be orally shown that part of the 
 rent was to be paid in board." 
 
 § 351. Consideration — Failure Of. Parol evidence is always 
 competent to prove failure of consideration mentioned in a writ- 
 ing, either in whole or in part. Such evidence does not change 
 the terms of the contract but merely gives a reason why it should 
 not be carried out.'" 
 
 § 352. Consideration — Proof Of, Where None is Mentioned. 
 If no consideration is expressed, it does not contradict the writ- 
 ing to permit it to be orally proved.'' Thus a passenger injured 
 while riding on the defendant's railroad under what purported 
 on its face to be a free pass, may show by parol that the pass 
 had in fact been given him as part consideration for the lease of 
 a pleasure resort.'* And where the consideration for the as- 
 signment of a bond is not stated, it may be shown that though 
 absolute on its face it was intended merely as collateral security.'" 
 
 § 353. Construction of Writing. When not affected by some 
 technical rule of law, a written contract should be so interpreted 
 as to give eiifect to the true intention and understanding of the 
 
 S. & R. 239; Swift V. Hawkins, i agreement permits the payment ot 
 
 Dall. 17 ; or that a certain other a less sum of money on the happen- 
 
 tract of land was to be conveyed ir,g of a certain condition, parol 
 
 to the grantor: McMullen v. Glass, evidence is permissible to show the 
 
 27 Pa. 151; or that a station was conditions were fulfilled: Wil- 
 
 to be erected by the grantee on land mington, etc. Railroad v. High, 89 
 
 conveyed for a nominal considera- Pa. 282. 
 
 lion : West Chester, etc. Railroad v. i^Burns v. Penna. Railroad, 229 
 
 Broomall, 18 W. N. C. 44; or that Pa. 648. 
 
 the value of land oVer and above >-'Stull v. Thompson, 154 Pa. 43. 
 
 the consideration named was in- '^McCulloch v. McKee, 16 Pa. 
 
 tended as an advancement to the 289; Machin v. Trust Co., 210 Pa. 
 
 grantee : Hayden v. Mentzer, 10 S. 253. 
 
 & R. 329; or that there was an ^^Hartley v. M'Anulty, 4 Yeates 
 
 agreement to pay mechanics' liens: 95; White v. Weeks, i P. & W. 
 
 Buckley's Appeal, 48 Pa. 491; or 486; Galway's Appeal, 34 Pa. 242; 
 
 that though a money consideration Bowser v. Cravener, 56 Pa. 132; 
 
 was mentioned, the property was in Cooper v. Potts, 185 Pa. 115. 
 
 fact conveyed as a gift: Lewis v. i^Camden & Atl. Railroad v. 
 
 Brewster, 57 Pa. 410; Audenried's Bausch, 7 Atl. 731. 
 
 Appeal, 89 Pa, 114; and if an '"Leas v. James, 10 S. & R. 307. 
 
PAROL EVIDENCE. 317 
 
 parties when it was executed.^" In order to do this, it is essen- 
 tial that the court should have all information necessary to prop- 
 erly understand its language, terms and subject matter, so as to 
 be able to put itself intellectually in the same situation as the 
 parties were in at the time the writing was executed. If the writ- 
 ing is not sufficiently full and clear to enable this to be done 
 from a consideration of it alone, it is proper to resort to ex- 
 trinsic proof to supply it.^^ Such proof is received, not to vary 
 the writing, but to explain the meaning of doubtfuP^ or contra- 
 dictory terms. ^^ The intent of the parties must be taken from 
 the wording of the writing however, and if it is clear and un- 
 equivocal there is no room for parol construction.'* 
 
 The mere fact that the law requires certain contracts to be in 
 writing in order to be valid, does not necessarily exclude oral 
 evidence concerning them. Such contracts frequently grow out, 
 and are a part, of other transactions as to which no writing is 
 required by law, and in order that the whole transaction may be 
 examined, parol evidence will be received so long as it does not 
 contradict the express terms of the written part.'^ 
 
 § 354. Construction of Writing — ^Language — Interpretation 
 Of. In construing contracts, the words used must be given their 
 plain, ordinary and popular meaning unless they have acquired 
 a particular meaning in relation to the subject matter, or unless 
 it appears from the writing that they were used in some other 
 peculiar sense.'" If the language used is fairly capable of only 
 one construction, the intent of the parties must be gathered from 
 it as written, and parol evidence cannot be offered to show a 
 different meaning.'^ But if the language is doubtful or equivocal 
 
 '"Morris's Appeal, 88 Pa. 368. Super. 459. The words "with in- 
 
 ''Miller v. Fichthorn, 31 Pa. terest" used in an agreement for 
 
 2S2. the purchase of certain articles, 
 
 , "Foster v. McGraw, 64 Pa. 464. cannot be orally shown to have been 
 
 '^Kelley v. Thompson, 7 Watts intended as a promise to pay for 
 
 401. the use of them : Forrest v. Nel- 
 
 '*Com. V. Cashman, 32 Super. 459. son, 108 Pa. 481 ; nor may an 
 
 '^Miller v. Fichthorn, 31 Pa. agreement to pay rent from a spe- 
 
 252. cified time be shown to include rent 
 
 '"Strafford Pub. Co. v. Stetson which become due prior to that 
 
 Co., 41 Super. 560. date: Goen v. Adamson, 11 Atl. 74; 
 
 "Fisher v. Deibert, 54 Pa. 460; nor may an exception in a fire in- 
 Book V. New Castle Nail Co., isi surance policy of "oil in tanks" be 
 Pa. 499; Fry v. National Glass Co., shown to apply only to tanks locat- 
 207 Pa. SOS ; Com. v. Cashman, 32 ed at a particular place, in absence 
 
3i8 
 
 PKNNSYIvVANIA TRIAL EVIDENCr;. 
 
 in meaning and capable of more than one construction, parol 
 evidence is admissible to show the sense in which the words 
 were intended to be used.-' 
 
 § 355. Construction of Writing — Latent Ambiguity. Where 
 an ambiguity is one which cannot be discovered from an in- 
 spection of the writing, but appears only when an attempt is made 
 to apply it to the subject matter, parol evidence is admissible to 
 explain and identify the subject matter.^' But an ambiguity 
 which appears on the face of a writing must be interpreted by 
 the court and may not be explained by parol. ^" 
 
 § 356. Construction of Writing — Mutual Construction and Un- 
 derstanding of Partieis. The parties have always a right to put 
 their own construction on their writing, and in case of doubt as 
 to the intention expressed therein, such mutual construction is 
 the one which will be adopted by the court, though it might not 
 be the one which would have been adopted from an inspection of 
 
 of fraud or mistake in the policy : 
 Weisenberger v. Ins. Co., 56 Pa. 
 442; nor may a contract to drill a 
 well and "get water from bed rock 
 unless good water acceptable to- 
 you" should be found at a less 
 depth, be varied by a parol agree- 
 ment that the contractor guaran- 
 teed the water obtained from bed 
 rock would be acceptable or fit for 
 drinking purposes : Book v. New 
 Castle Nail Co., 151 Pa. 499. A 
 statement in the prospectus of an 
 oil company that land was bought 
 by the company from the "original 
 owners," cannot be explained by 
 parol : Simons v. Vulcan Oil Co., 
 61 Pa. 202; nor may a deed be 
 orally shown to have been intended 
 as a will : Fellbush v. Egen, 221 Pa. 
 420. 
 
 -*Brown v. Brooks, 25 Pa. 210; 
 Felbush v. Egen, 221 Pa. 420. 
 Parol evidence will be received to 
 show that "one hundred feet in each 
 raft" of lumber meant linear or 
 square measure : Brown v. Brooks, 
 25 Pa. 210; or that "end of a sea- 
 son'' meant the end of a business 
 
 season : Adams v. Lake, 2 W. N. 
 C. 228; or to show whether an as- 
 signment "in lieu of" any loss in a 
 particular matter meant that it 
 should be in full satisfaction of such 
 loss or only on account thereof : 
 Selser's Estate, 141 Pa. 529; or to 
 show what was the understanding 
 of the parties as to the method of 
 performance of work to be per- 
 formed as such work "should be 
 done" ■ Quigley v. DeHaas, 98 Pa. 
 292 ; or to show that the parties 
 meant to use certain words in their 
 popular and not in their legal sense : 
 Cochran v. Shenango Gas Co., 40 
 P. L. J. 82. See also § 358 as to 
 interpretation of technical or trade 
 terms. 
 
 -"Commercial Bank v. Clapier, 3 
 Rawie 335; McCullough v. Wain- 
 wright, 14 Pa. 171; Lycoming Ins. 
 Co. V. Sailer, 67 Pa. 108. See § 357. 
 See also § 379 for application of 
 rule to wills. 
 
 "oWright v. Weakley, 2 Watts 
 89. See § 380 for application of 
 rule to wills. 
 
PAROL EVIDENCE. 
 
 319 
 
 the writing alone.'^ Sucii construction may be shown by evi- 
 dence of acts, declarations or circumstances relating to the trans- 
 action, and which took place at the time of or subsequent to the 
 execution of the writing."^ 
 
 Where a lease of mining rights provided that the lessee should 
 prosecute operations with "due diligence," a parol agreement be- 
 tween the parties as to what constituted due diligence may be 
 shown. ^' And where a lease has been terminated and another is 
 drawn containing the same or similar terms, parol evidence of the 
 acts of the parties under the first is admissible to explain a latent 
 ambiguity in the second.^* 
 
 § 357. Construction of Writing — Subject Matter — Explanation 
 and Identification Of. Every writing must be interpreted accord- 
 ing to its subject matter ;^^ and if there is a subject matter in 
 existence that satisfies all the terms of the writing, parol evi- 
 dence cannot be admitted to show something else was intended.'* 
 But if the nature, quality or condition of the subject matter is 
 not clearly expressed it is proper to resort to parol evidence to 
 supply the deficiency. Such proof does not contradict the writ- 
 ing, but merely aids in the proper interpretation of it.'' If a 
 
 ^iWright V. Gas Co., 2 Super. 
 219. 
 
 32Selden v. Williams, 9 Watts i ; 
 Berridge v. Glassey, 112 Pa. 442; 
 Cummins v. Ins. Co., 197 Pa. 61 ; 
 Sweigart v. Hertzel, 20 Super. 56. 
 
 33Bartley v. Phillips, 165 Pa. 325. 
 
 3*Wright V. Gas Co., 2 Super. 
 219. 
 
 35Wright V. Gas Co., 2 Super. 
 219. 
 
 s^Harvey v. Vandegrift, 89 Pa. 
 346. Where a deed is clear . and 
 conveys all the coal under a certain 
 tract, it cannot be orally shown 
 that a certain vein of coal was not 
 included : King v. Gas Co., 204 Pa. 
 628; and if a contract calls for a 
 certain quantity and kind of lum- 
 ber generally, it may not be shown 
 that it was to be taken from a par- 
 ticular lot : Watsontown Car Mfg. 
 Co. V. Lumber Co., 99 Pa. 605. See 
 § 374. 
 
 3'Bertsch v. Coal Co., 4 Rawle 
 130; Eckel V. Jones, 8 Pa. 501; 
 Morris's Appeal, 88 Pa. 368; Barn- 
 hart V. Riddle, 29 Pa. 92; George 
 V. Conneaut Twp., 18 Super. 47 ; 
 Duquesne Nat. Bank v. Williams, 
 15s Pa. 48; Centenary Church v. 
 Clime, 116 Pa. 146; Cox v. Wilson, 
 25 Super. 63s ; Rouseville Boro. 
 School District v. School District, 
 29 Super. 214. Parol evidence is 
 admissible to show which of two 
 localities was intended : George v. 
 Conneaut Twp., 18 Super. 47; or 
 what was included in the word ''es- 
 tate" used by a testator : Schwab 
 V. Ginkinger, 181 Pa. 8 ; or to show 
 the amount of land included in the 
 description : McClure v. Jones, 121 
 Pa. 550; or the kind of stone to be 
 used in a building: Centenary 
 Church V. Clime, 116 Pa. 146; or 
 v.'hat was included in the word '"re- 
 sources" : Rouseville Boro. v. 
 
320 
 
 PENNSYLVANIA TRIAL fiVIDENCe. 
 
 contract is silent concerning material matters, such missing parts 
 may be orally shown.'* And if a deed or agreement indicates 
 a method of determining the location of land, parol evidence is 
 admissible to apply the description to the land.'' But such evi- 
 dence cannot be admitted to first describe the land and then ap- 
 ply the description.^" 
 
 § 358. Construction of Writing: — Technical or Trade Terms. 
 Parol evidence is always admissible to show the meaning of tech- 
 nical or trade terms used by the parties with reference to a par- 
 ticular business or Occupation. Such evidence does not vary the 
 terms of the writing, but merely assists in showing the true in- 
 terpretation of it.*^ But if the parties have, by their actions, 
 placed a certain construction on the words used, they are estopped 
 
 School District, 29 Super. 214; or 
 the word "demands" as used in a 
 writing: Barnhart v. Riddle, 29 
 Pa. 92; or the term "foregoing 
 agreement" where three different 
 papers were pasted together : Clarke 
 A. Adams, 83 Pa. -309; or to show 
 the scope of a guaranty : Aldridge 
 V. Echleman, 46 Pa. 420 ; Dennis- 
 ton V. Schaal, S Super. 632; or to 
 show what was included in the sale 
 of ii business : Volkenand v. Drum, 
 154 Pa. 616; or in the words "'all 
 moneys due" under a certain con- 
 tract: Heh-ns v. Trust Co., 35 
 Super. 542; or to show the scope 
 of a general release of all demands : 
 'Gould V. Lee, 55 Pa. 99. See also 
 §374. 
 
 s'DuBois V. Bigler, 95 Pa. 203 ; 
 Centenary Church v. Clime, 116 Pa. 
 146. See § 363. 
 
 s'Tate V. Reynolds, 8 W. & S. gi ; 
 Ferguson v. Staver, 33 Pa. 41 r ; 
 Peart v. Brice, 152 Pa. 277; Stam- 
 ets V. Denniston, 193 Pa. 548; Boise 
 V Zimmerman, 3 Super. 181 ; Wil- 
 son V. Sale, 41 Super. 566; Ranney 
 V. Byers, 219 Pa. 332. See also § 
 
 374- 
 
 ^'Ferguson v. Staver, 33 Pa. 411; 
 Peart v. Brice. 152 Pa. 277. 
 
 *^Oral testimony is admissible to 
 
 show the meaning of "an outfit of 
 drilling tools and lines'' and "a 
 complete carpenter's rig of good 
 quality'' : Glenn v. Strickland, 21 
 Super. 88; or the term "theatrical 
 season" : Strafford Pub. Co. v. Stet- 
 son, 41 Super. 560; or "regular 
 season" : Lovering v. Miller, 218 
 Pa. 212; or "net sixty days": 
 Hagen Co. v. Greenwood, 27 Super. 
 239; or what was included in the 
 term "colliery" : Carey v. Bright, 
 58 Pa. 70; or "properly brick 
 work" • Edmonds v. Bank, 215 Pa. 
 547 ; or "barn frame lumber" : 
 Bialas v. Elder, 44 Super. 219; or 
 what was meant by the words 
 "sample warranted" ■ Conestoga 
 •Cigar Co. v. Finke, 144 Pa. 159; or 
 "prepare the bed" when used in 
 connection with street paving: Mc- 
 Donough V. Jolly, 165 Pa. 542; or 
 "e.xcavate and prepare" when used 
 in reference to a road bed: Miller 
 V. Railway, 179 Pa. 350; or "early 
 spring" when used in reference to 
 a particular trade : Phoenix Iron 
 Co. V. Samuel, 13 W. N. C. 50; or 
 of the term "pulmonary disease" 
 when used in an insurance applica- 
 tion : Carson v. Ins. Co., i Super. 
 572. See also § 354. 
 
PAROI< EVIDENCE. 
 
 321 
 
 from showing that their meaning in the trade is something dif- 
 ferent.*^ 
 
 § 359. Contradiction of Writing. When parties, without 
 fraud or mistake, have put their agreement in writing, such writ- 
 ing is not merely the best, but the only evidence of it*^ and is 
 conclusively presumed to contain the whole agreement,** and evi- 
 dence of an oral agreement relating to the same subject matter 
 and contradicting the terms of the writing or tending to show a 
 different agreement is inadmissible.^"' 
 
 There are two general classes of cases, however, where parol 
 evidence is admissible to contradict or vary a writing ; first, where 
 there was fraud, accident or mistake in the execution of the in- 
 strument itself ;*" and second, where the execution of the instru- 
 ment was induced by a contemporaneous parol promise and the 
 promisor is attempting to use it in violation of such promise.*' 
 
 ^-Mercer Mining Co. v. McKee, 
 77 Pa. 170. See § 356. 
 
 ^'Martin v. Berens, 67 Pa 459; 
 Irvin V. Irvin, 142 Pa. 271. 
 
 **Sidney School Fur. Co. v. 
 School District, 130 Pa. 76. 
 
 *^Kaufman v. Friday, 201 Pa. 
 178 ; Eberle v. Ins. Co., 4 Atl. 808 ; 
 (see also note to this case) ; First 
 National Bank v. Dick, 22 Super. 
 445 ; Becker v. Bldg. Ass'n, 239 Pa. 
 Sgo. It may not be shown that it 
 was agreed orally that a bank de- 
 posit could be withdrawn at any 
 time, when the certificate stated on 
 its face that the deposit was pay- 
 able in one year : Baer's Appeal, 
 127 Pa. 360; or that a tenant was 
 not to be liable for the rent of 
 premises burned, where the lease 
 provided he was to rebuild in such 
 case without deduction for rent : 
 Martin v. Berens, 67 Pa. 459; or 
 that work under a contract was to 
 be done in a different manner than 
 that provided therein : Collins v. 
 Baumgardner, 52 Pa. 461 ; or that 
 an unconditional subscription to a 
 fund was not to be paid until the 
 
 happening of a certain event : 
 Espy v. Mount Lebanon Cem. Co., 
 I Walk. 40; nor may an oral guar- 
 anty be shown in contradiction of a 
 written one : Heagy v. Umberger, 
 10 S. & R. 339; O'Harra v. Hall, 4 
 Dall. 340. But a verbal warranty 
 of payment by the assignor of 
 bonds may be proved : Bollinger v. 
 Eckert, 16 S. & R. 422; or a verbal 
 warranty of the quantity of land 
 sold : Frederick v. Campbell, 14 S. 
 & R. 293. 
 
 **See § 360. It is not enough that 
 there are parol stipulations contra- 
 dictory to the writing in order to 
 change its legal effect. There must 
 be fraud, accident or mistake al- 
 leged and proved : Thome v. Warf- 
 f.ein, 100 Pa. 519. In absence of 
 such allegations parol evidence will 
 not be admitted merely because it 
 is alleged that a contract was exe- 
 cuted in the haste and excitement 
 of the court room and did not con- 
 tain the- true agreement : Reilly v. 
 Daly, 159 Pa. 605. 
 
 ^'Phillips V. Meily, 106 Pa. 536. 
 See § 361. 
 
 21 
 
322 
 
 PENNSYLVANIA TRIAL EVIDENCE. 
 
 § 360. Contradiction of Writing — ^Fraud, Accident or Mistake. 
 If a misapprehension of a material fact has been induced on the 
 part of one by misrepresentations on the part of another, the exe- 
 cution of a writing based thereon ought not extinguish the 
 right of the injured person to show the fraud by which his con- 
 sent was procured,** and parol evidence will be admitted for this 
 purpose, even though it contradict the terms of the writing." 
 The real purpose in such case is not to alter the writing, but to 
 show such failure of consideration as entitles the party to equi- 
 table relief by setting it aside either in whole or in part.^" 
 
 Parole evidence is also admissible to prove accident or mistake 
 in drawing an instrument,^^ and it is no valid objection that such 
 
 *«Stubbs V. King, 14 S. & R. 206. 
 
 *»Horn V. Brooks, 61 Pa. 407; 
 Martin v. Berens, 67 Pa. 459; Phil- 
 lips V. Meily, 106 Pa. 536; Wolf v. 
 Arrott, 109 Pa. 473; Honesdale 
 Glass Co. V. Storms, 125 Pa. 268; 
 Com. V. Julius, 173 Pa. 322. One 
 who is unable to read and write 
 may set aside a writing by parol 
 proof that she was deceived as to 
 its contents : Monroe v. Monroe, 93 
 Pa. 520; Wanner v. Landis, 137 Pa. 
 61 ; American Harrow Co. v. 
 Swoope, 16 Super. 451. It may also 
 be shown that it was represented 
 that a written order for goods 
 would be held merely as a memo- 
 randa to show where they were to 
 be delivered, and that they were to 
 be sent on consignment, and not on 
 sale : El Dorado Jewelry Co. v. 
 Hopkins, 34 Super. 446; El Dorado 
 Jewelry Co. v. Hartung, 36 Super. 
 463; or that a certain provision 
 was omitted from a contract be- 
 cause of express assurance by the 
 other party that its legal effect 
 would be the same : Bank v. For- 
 dyce, 9 Pa. 275. A receipt in full, 
 given because of false representa- 
 tions that nothing could be recov- 
 ered on a further claim for extra 
 work, may be avoided by parol 
 proof: McGrann v. Railroad, m 
 
 Pa. 171. But misrepresentations 
 made by a principal to a surety on 
 a bond cannot be proved in an ac- 
 tion by the obligee against the 
 surety, as the former cannot be af- 
 fected by unauthorized representa- 
 tions of the principal r Lane's Ap- 
 peal, 112 Pa. 499. 
 
 soAtherholt v. Hughes, 209 Pa. 
 156. 
 
 siParol evidence may be given to 
 show that a particular clause in an 
 agreement was inserted by mistake: 
 Hamilton v. Asslin, 14 S. & R. 
 448; Middleton v. Thompson, 163 
 Pa. 112; or accidentally omitted: 
 Grower v. Sterner, 2 Whart. 75 : 
 Caulk v. Everly, 6 Whart. 303; 
 Kauffelt V. Leber, 9 W. & S. 93; 
 Gump's Appeal, 65 Pa. 476; Hynd- 
 man v. Hogsett, ill Pa. 643; Mar- 
 tinsburg Bank v. Supply Co., 150 
 Pa. 36; Lee v. Taylor, 154 Pa. 95; 
 Schotte V. Meredith, 192 Pa. 159; 
 Townsend v. Lalock, 222 Pa. 330. 
 See also § 363; or to show that 
 more or less property was conveyed 
 than the parties intended: Stubbs 
 v. Pyle, 14 S. & R. 206; Bowman 
 V. Bittenbender, 4 Watts 290 ; Chew 
 V Gillespie, 56 Pa. 308; or that a 
 mistake was made in the descrip- 
 tion of land: Trexler v. Fischer, 
 130 Pa. 275; or of boundaries: 
 
PAROI< evidence;. 
 
 323 
 
 evidence would change its legal construction or effect.^^ But a 
 mistake of law on the part of one of the parties in construing the 
 
 Kostenbader v. Peters, 80 Pa. 438. 
 But in Collam v. Hocker, I Rawle 
 108, parol evidence to prove the 
 reservation of a right of way not 
 mentioned in a deed was held in- 
 admissible, and in Shepherd v. 
 Watson, I Watts 35, where a right 
 of way was plainly appurtenant to 
 ihe land granted, such evidence was 
 held incompetent to show the par- 
 ties did not intend the right should 
 be conveyed. In neither of these 
 cases, however, was there any alle- 
 gation of mistake. Parol evidence 
 is also admissible to show that what 
 was intended to be only a charge 
 on land was mistakenly drawn as 
 a deed of conveyance : Dayton v. 
 Newman, 19 Pa. 194; or that a 
 statement made in a foreign lan- 
 guage was improperly translated : 
 Escher v Southwark Mills, 221 Pa. 
 180. But sureties on an adminis- 
 trator's bond cannot avoid liability 
 by offering to show by parol that 
 the bond was not intended to cover 
 funds in the hands of the adminis- 
 trator at the time it was given, 
 there being no averment of an 
 agreement that such fund was not to 
 be covered, nor of mistake in dat- 
 ing the instrument : Stub v. Stub, 
 3 Pa. 251. 
 
 It is no ground for excluding pa- 
 rol evidence that the paper was 
 read over to the person who sign- 
 ed it before he placed his signature 
 thereon, though such fact affects 
 the weight of his testimony: Kos- 
 tenbader V. Peters, 80 Pa. 438 ; and 
 the mere fact that a party to a 
 writing prepared by another did 
 not read it over before signing does 
 not estop him from showing a mis- 
 take therein : Meyers v. Ins. Co., 
 156 Pa. 420. But if a mistake is 
 
 due to the carelessness of the party 
 offering to prove it, and he has ac- 
 cepted the benefits of the contract, 
 parol evidence is . not admissible. 
 Thus, the maker of a note cannot 
 show by parol that he signed it 
 without reading and believing it 
 was only a receipt : I^ett v. Kunkle, 
 1/8 Pa. 273; and where one ac- 
 cepts and enjoys the protection of 
 an insurance policy for a long time, 
 he cannot repudiate his liabiHty for 
 an assessment by setting up a mis- 
 take as to the character of the pol- 
 icy, where it appears he signed the 
 application without reading it : 
 Susquehanna Mutual Fire Ins. Co. 
 y. Swank, 102 Pa. 17. An applicant 
 for fire insurance may show that 
 the agent of the company wrote up 
 the application and made a mistake 
 in entering his answers : Moliere v. 
 Ins. Co.. S Rawle 342; Eilenberger 
 V. Ins. Co., 89 Pa. 464; Myers v. 
 Ins. Co., 156 Pa. 420; or that the 
 agent made a mistake in represent- 
 ing that claimant was protected by 
 a policy in his own name on the 
 property of another : Manhattan 
 Ins. Co. V. Webster, 59 Pa. 227. 
 But matters which form a condi- 
 tion precedent to the assumption of 
 liability by the insurers, cannot be 
 shown to have been made by mis- 
 take, as for example, a misstate- 
 ment that there were no encum- 
 brances on the insured property : 
 Cooper v. Ins. Co., 50 Pa. 299. 
 
 ^-Where a lease called for "semi- 
 annual rent of three hundred dol- 
 lars,'' it may be shown the rent was 
 erroneously expressed, and that it 
 should have been three hundred 
 dollars a year, payable seipi-an- 
 nually : Snyder v. May, 19 Pa. 235 ; 
 and in an action for the price of 
 
324 
 
 PENNSYLVANIA TRIAL, EVIDENCE. 
 
 writing cannot be relieved against^' unless the party who in- 
 duced the mistake is seeking to take advantage of it.'* 
 
 It may be shown by parol that writing following the signatures 
 was intended to be a part of the contract and was placed there be- 
 fore signing, and that the signatures were placed before it by mis- 
 take.^^ But evidence of matters which did not take place at the 
 time of the execution of the writing, and as to which the other 
 party had no knowledge, is incompetent."* 
 
 § 361. Contradiction of Writing — Contemporaneous Parol 
 Agreement— Fraudulent Use of Writing in Violation Of. When a 
 writing has been obtained for a certain purpose orally agreed 
 upon, which purpose formed the inducement for its execution, 
 and an attempt is subsequently made by one party to use it for 
 another and different purpose in violation of the oral agreement, 
 such use is a fraud on the rights of the other,"' who may then 
 offer evidence of the oral agreement, even though it may ma- 
 terially vary or contradict the terms of the writing.^* 
 
 a colliery sold at a fixed sum to be 
 paid at a certain rate on each ton 
 of coal mined, it may be shown that 
 the parties agreed that the pur- 
 chaser should not be absolutely 
 bound to mine the necessary amount 
 tr pay the entire price : Chalfont v. 
 Williams, 35 Pa. 212. A judgment 
 confessed to a trustee for the bene- 
 fit of all creditors may be orally 
 shown to have meant all his "busi- 
 ness" creditors, but that such word 
 was omitted by mistake : Jenkins v. 
 Davis, 141 Pa. 266. 
 
 ^^Cochran v. Pew, 159 Pa. 184. 
 
 ^^Mechley's Estate, 20 Pa. 478. 
 
 s^Cox V. Burdett, 23 Super. 346. 
 
 so-yVager v. Chew, is Pa. 323. 
 
 ='White V. Black, 14 Super. 459; 
 Phillips Gas Co. v. Pittsburgh Plate 
 Glass Co., 213 Pa. 183 ; Winters v. 
 Schmitz, 36 Super. 496; Ganby v. 
 Weckerly, 220 Pa. 285. 
 
 o^Hurst V. Kirkbride, cited in I 
 Bin. 615 ; Caley v. Railroad Co., 80 
 Pa. 2^63; Green?, vvalt v. Kohne, 85 
 Pa. 369; Walker v. France, 112 Pa. 
 203 ; Thomas v. Loose, 1 14 Pa. 35 ; 
 
 Cullman v. Lindsay, 114 Pa. 166; 
 McCormick Harvesting Co. v. Nich- 
 olson, 17 Super. 188; Fidelity and 
 Casualty Co. v. Harder, 212 Pa. 
 96 ; Ramsden v. Simplex Co., 39 
 Super. 587 ; Croyle v. Improvement 
 Co., 233 Pa. 310. The rule admit- 
 ting parol evidence which formed 
 the inducement to the execution of 
 a writing, though it may contradict 
 its terms, is further illustrated by 
 the following cases in which it has 
 been applied : Parol agreement to 
 guarantee goods sold under a writ- 
 ten contract : McCormick Mach. 
 Co. V. Nicholson, 17 Super. 188; 
 or to permit return of goods not 
 used: Keough v, Leslie, 92 Pa. 424; 
 or that the vendor of goods should 
 retain title as collateral security 
 until paid for : Ferguson v. Raf- 
 ferty, 128 Pa. 337; or that goods 
 ordered should be furnished within 
 a certain time: Powelton Coal Co. 
 \ . McShain, 75 Pa. 238 ; or that the 
 assignee should pay certain indebt- 
 edness of the assignor : Oliver v. 
 Oliver, 4 Rawle 141 ; or that the 
 
PAROL EVIDENCi;. 
 
 325 
 
 The promise which forms the mducement must have been made 
 by a party to the writing,'"' and it must be alleged that the con- 
 tract was executed on the faith of such promise."" But it is not 
 necessary to allege that the oral promise or agreement was omit- 
 ted through fraud, accident or mistake. The promise may have 
 been made with the honest intention of performing it, and the 
 parties may have had a good reason for omitting the additional 
 agreement from the writing. No fraud or mistake would there- 
 fore exist at the time the writing was executed. It is the subse- 
 quent action of one party in attempting to obtain an unfair ad- 
 vantage by refusing to carry out the parol promise and attempt- 
 ing to use the writing in violation thereof, that constitutes a 
 fraud on the other against which he may defend by showing the 
 oral agreement which induced him to sign the written one.°^ It 
 is as much a fraud to obtain a paper for one purpose and use it 
 for another and unfair purpose, as to obtain it in the first place 
 
 grantee should perform certain 
 work on the land sold : Croyle v. 
 Improvement Co., 233 Pa. 310;' or 
 that a landlord should make certain 
 improvements : Yinger v. Young- 
 man, 30 Super. 139; Shughart v. 
 Moore, 78 Pa. 469; or that a 
 mortgagee should rely on the prop- 
 erty and the mortgagor should not 
 be personally liable: Wheatley v. 
 Niedick, 24 Super. 198; or that cer- 
 tain other premises in addition to 
 those covered by an agreement of 
 sale, were to be granted: Martin 
 V. Fridenberg, 169 Pa. 447; or 
 that a vendor should be permitted 
 to take certain timber from laiid 
 sold : Campbell v. McClenachan, 6 
 S. & R. 171 ; or that the considera- 
 tion for land sold by father to son 
 need not be paid but should be con- 
 sidered an advancement : Rearich v. 
 Swinehart, 11 Pa. 233; or that the 
 purchaser of a coal mine at a cer- 
 tain rate per ton for coal mined 
 should not be bound to mine enough 
 to pay the entire consideration : 
 Chalfant v. Williams, 35 Pa. 212; 
 
 or that an assignment of a mort- 
 gage was made on certain condi- 
 tions : Barclay v. Wainwright, 86 
 Pa. 191 ; or that a severable con- 
 tract was executed with the under- 
 standing that it was to be consid- 
 ered an entire one : Graver v. Scott, 
 80 Pa. 88; or that a contract was 
 signed on condition that it would 
 be void unless another person sign- 
 ed : Bruch v. Shafer, 45 Super. 
 612. 
 
 ^"Davis v. Meade, 13 S. & R. 
 281. 
 
 ^oCallan v, L/ukens, 89 Pa. 134. 
 See also cases note 58 above. 
 
 ^iRenshaw v. Gans, 7 Pa. 117; 
 Rearich v. Swinehart, 11 Pa. 233; 
 Dutton V. Tilden, 13 Pa. 46; Lip- 
 pincott V. Whitman, 83 Pa. 244; 
 Honesdale Glass Co. v. Storms, 125 
 Pa. 268; Gandy v. Weckerly, 220 
 . Pa. 290 ; Phillips Gas Co. v. Plate 
 Glass Co., 213 Pa. 183 ; Croyle v. 
 Iron Co., 233 Pa, 310; Zeller v. 
 Haupt, 41 Super. 647; Herrman v. 
 Bredo, 42 Super. 427. 
 
326 
 
 PENNSYLVANIA TRIAL IJVIDKNCE. 
 
 by a fraudulent statement"" and the other is not estopped from 
 setting up the parol agreement on the ground that he executed 
 and accepted the writing."^ 
 
 The above rule applies to a contract made by an agent where 
 the principal attempts to enforce it even though the agent acted 
 beyond the scope of his authority in making the parol agreement, 
 since by affirming the contract the principal affirms it with all its 
 conditions."* But if the contract bears on its face notice that 
 agents are unauthorized to change its terms and that the writing 
 constitutes the whole agreement, parol evidence is inadmissible 
 to vary it.*^ The same rule applies where an agreement made 
 by the parties in person contains a stipulation that it contains the 
 whole of the contract, and that all verbal communications are 
 merged in the writing."" 
 
 A parol, contemporaneous agreement may be proved by evi- 
 dence of what was said and done by the parties at the time the 
 contract was made, and it is then for the jury to determine 
 whether the oral agreement existed and if so, whether it induced 
 the making of the written one. But evidence of an unexpressed 
 intent, motive or belief existing in the mind of the party setting 
 up the parol agreement, is no aid to the jury in determining 
 
 e^Parke v. Chadwich, 8 W. & S. 
 96; Renshaw v. Gans, 7 Pa. 117. 
 
 "^Sidney School Furniture Co. v. 
 School District, 130 Pa. yt. 
 
 "■'Caley v. Railroad, 80 Pa. 363 ; 
 Keough V. Leslie, 92 Pa. 424. Com- 
 pare Rice V. Lewis, 4 Atl. 810. 
 
 ^^Thomas v. Loose, 114 Pa. 35; 
 Express Publishing Co. v. Aldine 
 Press, 126 Pa. 347; Hallowell v. 
 Lierz, 171 Pa. 577; Rinker v. Ins. 
 Co., 214 Pa. 608; Scientific Amer- 
 ican V. Creighton, 32 Super. 140. 
 Where a trust company agrees to 
 advance money to a contractor on 
 condition that a release of liens be 
 given by sub-contractors, the latter, 
 cannot allege the release was not 
 binding on them because they were 
 induced to sign it by a promise by 
 the contractor that it should not be 
 binding unless all sub-contractors 
 signed, in absence of evidence that 
 
 the contractor was acting for the 
 trust company and had been au- 
 thorized to make such promise : 
 Dowd V. Crow, 205 Pa. 214. But 
 parol evidence was admitted in an 
 action on a written agreement to 
 purchase an organ, where the verbal 
 inducement by an agent to the ef- 
 fect that a stool and music book 
 were included, was permitted to be 
 shown: Chicago Cottage Organ 
 Co. V. McManigal, 8 Super. 632. 
 And where a provision that no 
 other agreement should be recog- 
 nized unless in writing is inserted 
 at the end of a writing and signed 
 only by the agent of the vendor, it 
 is not binding on the vendee, and 
 does not render parol evidence of 
 representations of the agent in- 
 ducing the agreement inadmissible: 
 Harvey v. Dimon, 36 Super. 82. 
 
 ""Express Publishing Co. v. Al- 
 dine Press, 126 Pa. 347; Ridgway 
 
PAROI, HVIDENCi;. 327 
 
 whether the words or acts of the other were such as to create 
 such intent, motive or belief, and therefor as a general rule the 
 former may not be asked what induced him to sign the writing,^' 
 but he must first prove the alleged false or fraudulent misrepre- 
 sentation and he may then testify that such representations in- 
 duced him to act.*^ 
 
 § 362. Date of Writing. Although a writing is presumed to 
 have been executed on the day of its date, it may be shown, that 
 the date is in fact erroneous and that it was executed at another 
 time,*^ especially, if there is anything on the face of the writing 
 which would lead persons examining it to suspect that the date 
 which it bore was not the true one.'° A writing which is un- 
 stamped but dated at a time when a revenue stamp was necessary, 
 may be shown to have been in fact executed at a time when the 
 stamp was not required.'^ 
 
 § 363. Incomplete Writings — Omissions. Although a writing 
 must be construed from a consideration of the matters contained 
 therein and will be presumed to contain the whole of the agree- 
 ment between the parties,'^ yet if it shows on its face that it is 
 not the whole agreement, or does not purport to be complete, 
 parol evidence will be received, not for the purpose of changing 
 the writing but to show the whole transaction to which it belongs 
 in order that the rights of the parties thereunder may be de- 
 termined.'^^ There is no necessity for alleging or proving that 
 the missing parts were omitted through fraud, accident or mis- 
 Dynamo Engine Co. v. Cement Co., '"Parke v. Neeley, 90 Pa. 52; 
 221 Pa. 160; Otto Gas Engine Cutter v. Pierson, 26 Super. 10. 
 Works V. Pepper, 228 Pa. 205 ; "Biery v. App, 18 W. N. C. 6. 
 Guernsey v. Moon, 46 Super. 645. '^Jessop v. Ivory, 158 Pa. 71. 
 
 "'Spencer v. Colt, 89 Pa. 314; '^Miller v. Fischthorn, 31 Pa. 
 
 Juniata Bldg. Ass'n v. Hetzel, 103 252; Holt v. Pie, 120 Pa. 425. 
 Pa. S07; Thomas v. Loose, 114 Pa. Parol evidence will be admitted un- 
 35; CuUmans v. Lindsay, 114 Pa. der this rule vi^hen a writing pro- 
 166; Cake V. Pottsville Bank, 116 vides that the person executing it 
 Pa. 264; Goods Roads Machinery "further agrees" to a certain thing, 
 Co. V. Union Twp., 34 Super. 538. and there is no precedent part of 
 See § 21. the agreement to which the word 
 
 "^Cummings v. Cummings, 5 W. "further" can apply: Schwab v. 
 & S. SS3; Com. v. Julius, 173 Pa. Ginkinger, i8i Pa. 8; or stipulates 
 322; Weaver v. Cone, 174 Pa. 104. that certain work was to be done 
 See § 21. 'according to instructions'' : Leg- 
 
 "^Geiss v. Odenheiner, 4 Yeates goe v. Mayer, 2 Super. 529; or re- 
 278; Finney's Appeal, 59 Pa. 398; fers to "attached specifications" 
 Parke v. Neeley, 90 Pa. 52. v/hich are not in fact attached : 
 
328 
 
 PENNSYLVANIA TRIAL EVIDENCE. 
 
 take, or that they formed the inducement to the contract/* nor 
 does the rule which requires the testimony of two witnesses or 
 their equivalent to vary the terms of a writing apply in such case, 
 the object being merely to show matters not covered by the writ- 
 ing." 
 
 It may be shown that a part of an agreement was omitted from 
 the writing by one party without the knowledge and consent of 
 the other." And if the parties, on discovering an accidental 
 omission from their agreement, decide that the writing need not 
 be changed but that they will abide by their oral agreement, such 
 agreement may be shown by parol." One who represents that a 
 part omitted was unnecessary cannot afterwards object to parol 
 evidence being given to show such omitted part.'^ 
 
 The rule admitting parol evidence to supply omitted parts does 
 not apply if the law requires the particular contract to be in writ- 
 
 Monocacy Bridge Co. v. American 
 Bridge Co., 83 Pa. 517; or to a 
 conversation : Holt v. Pie, 120 Pa. 
 42s; Selig V. Rehfuss, IQS Pa. 200; 
 Nye V. Pittsburgh, 2 Super. 384; 
 Byrne v. Elf reth, 41 Super. 572 ; or 
 to some other agreement : Venango 
 County Commissioners v. McCal- 
 mont, 3 P. & W. 122 ; or fails to 
 state the time of performance : 
 Russell V. Pittsburgh Railway, 17 
 Super. 195 ; Horner v. Horner, 
 14s Pa. 258; or the time for re- 
 payment of a loan : Philadelphia v. 
 Kelly, 166 Pa. 207; or the time 
 during which an agreement was to 
 remain in force : Real Estate Title 
 Ins. Co. V. Lambeth, 125 Pa. 549; 
 or the place of delivery of goods : 
 Musselman v. Stoner, 31 Pa. 265. 
 Parol evidence is also admissible to 
 show the name of a corporation 
 left blank in a written contract : 
 Hagy v. McGuire, 147 Pa. 187; or 
 whether a note bore interest from 
 maturity : Beaver v. Slear, 182 Pa. 
 213 ; or that two endorsers on a 
 note were jointly liable as accom- 
 modation endorsers : Ross v. Espy, 
 
 66 Pa. 481 ; or that certain future 
 payments under an agreement were 
 to be made in current funds : Mc- 
 Minn v. Owen, 2 Dal. 173. But it 
 cannot be shown orally that a par- 
 ticular kind of money was meant if 
 a contract specifically requires pay- 
 ment in "current money of Penn- 
 sylvania" : Bond v. Haas, 2 Dal. 
 133; or "current lawful money": 
 Lee V. Biddis, i Dal. 175. 
 
 Minutes of a meeting which au- 
 thorize a contractor "to repair a 
 macadam road under the supervision 
 of the state highway department" is 
 not such a complete contract as to 
 exclude oral evidence thereof : 
 Smith V. Twp., 54 Super. 141. 
 
 '*Holt V. Pie, 120 Pa. 425; Nye 
 V. Pittsburgh Co., 2 Super. 384. 
 
 '^Lichtenwalner v. Laubach, 105 
 Pa. 366; Real Estate Title Com- 
 pany's Appeal, 125 Pa. 549; Nye v. 
 Pittsburgh Co., 2 Super. 384. See 
 § 368. 
 
 '"Flagler v. Pleiss, 3 Rawle 343. 
 
 "Lauchner v. Rex, 20 Pa. 464; 
 Clark v. Partridge, 2 Pa. 13. 
 
 '^Witte V. Dickson, 35 L. L 114. 
 
PAROL UVIDENCi;. 329 
 
 ing.^" But if such wi-iting is merely a part of a larger and more 
 comprehensive transaction not required to be in writing, other 
 parts of the transaction may be orally proved. In such case the 
 oral proof is not admitted for the purpose of affecting the par- 
 ticular writing, but for the purpose of enlarging the scope of 
 judicial inquiry so as to embrace the whole transaction to which 
 the writing belongs, and thus enable the court to more clearly 
 define the rights of the parties.^" 
 
 The fact that a part of a contract was omitted by mistake, and 
 also the part omitted, may be proved by the scrivener or by the 
 declarations and admissions of the parties at the time of making 
 the agreement.^' 
 
 § 364. Presumptions or Inferences — Rebuttal Of. Parol evi- 
 dence may be given to rebut a presumption or inference arising 
 from the nature or terms of a writing, as for instance the pre- 
 sumption that a judgment against an endorser of a note passes by 
 assignment of a judgment against the maker,*^ or that where no 
 time of payment is mentioned in a note it is due on demand,^^ 
 or the presumption arising as to the place of delivery of an arti- 
 cle sold.** The legal inference that carriers are not liable for 
 inevitable accident may be repelled by proof that the carrier 
 orally agreed to insure safe delivery without excepting such 
 cause.*'' But the presumption that a lost deed was made accord- 
 ing to articles of agreement cannot be rebutted by parol where the 
 attempt is to establish a lien on realty contrary to a stipulation 
 in the agreement of sale.**' 
 
 § 365. Proof — Court and Jury — Question Tor. While the con- 
 struction of a writing is for the court, an admixture of oral and 
 written evidence draws the whole case to the jury.*^ When 
 parol evidence is offered it is the duty of the court in the first 
 instance to decide whether it is sufficient to sustain the allegation 
 of fraud, accident or mistake, or the existence of a parol contem- 
 poraneous agreement which induced the execution of the writing. 
 If it appears competent for that purpose, it should be received 
 
 '"Musselman v. Stoner, 31 Pa. ^^Morrison v. Davis & Co., 20 Pa. 
 
 265. 171. 
 
 '"Miller v. Fichthorn, 31 Pa. 252. ^^Patterson v. Forry, 2 Pa. 456; 
 
 *iTownsend v. Lacock, 222 Pa. 'Tgchwab v. Ginkinger, 181 Pa. 8 
 
 330. Selig V. Ruhfuss, 19S Pa. 200 
 
 *2Bank v. Fordyce, 9 Pa. 275. Boon v. Trust Co., 39 Super. 65 
 
 *'Horner v. Horner, 14s Pa. 258. Winters v. Schmitz, 36 Super. 496. 
 
 8*Musselman v. Stoner, 31 Pa. 265. 
 
330 PENNSYIvVANIA TRIAL liVIDENCU. 
 
 and if subsequently it fails to come up to the required standard 
 it should then be withdrawn from the jury."** But if the evidence 
 offered appears insufficient to warrant a chancellor in reforming 
 the writing, the jury should not be permitted to do so and the 
 evidence should not be submitted to them.'" 
 
 If a writing is illegible in part, the matter of deciphering it is 
 for the jury on evidence submitted and not for the court as a 
 matter of legal construction."" 
 
 § 366. Proof — Offer Of. Whenever an offer of parol evidence 
 tends to contradict a writing, it should contain a statement of the 
 reason why it is deemed admissible for the purpose, as for ex- 
 ample that it was omitted therefrom by fraud, accident or mis- 
 take, or that it was a contemporaneous parol agreement which 
 formed the inducement for the signing of the writing. It is not 
 sufficient merely to offer to prove an oral agreement or declara- 
 tions made by the parties at the time the writing was signed."^ 
 But an offer to prove a transaction partly in writing and partly 
 oral cannot be refused on the ground that the writing cannot be 
 varied by parol, as the court cannot know in advance whether any 
 part of the oral testimony contradicts the writing."^ 
 
 § 367. Proof — Standard Of. Parol evidence to vary the terms 
 of a writing on the ground of fraud, accident or mistake, or be- 
 cause of a contemporaneous oral contract which induced the exe- 
 cution of the writing, must be clear, precise and indubitable,"^ 
 and these words, or words equivalent in meaning must be used in 
 submitting the case to the jury."* It is not necessary, however, 
 that there be no opposing testimony,"^ or that the evidence of- 
 
 ssMiller v. Smith, 33 Pa. 386; "^Wolf v. Wolf, 158 Pa. 621. 
 
 Wolf V. Wolf, 158 Pa. 621. »3Honesdale Glass Co. v. Storms, 
 
 si'Penna. Railroad v. Shay, 82 Pa. 125 Pa. 268; Sutch's Estate, 201 Pa. 
 
 ig8; Sylvius V. Koseck, 117 Pa. 67; 305; Streator v. Paxton, 201 Pa. 
 
 Breneiser v. Davis, 141 Pa. 85 ; 135 ; Pisoso v. Bitzer, 209 Pa. 503 ; 
 
 Ahlborn v. Wolff, 118 Pa. 242; Og- Williamson v. Carpenter, 205 Pa. 
 
 den V. Traction Co., 202 Pa. 480; 164; Bierman v. Lebanon Valley 
 
 Hicks V. Harbison, 212 Pa. 437; College, 20 Super. 133; Snyder v. 
 
 Dorris v. Coal Co., 215 Pa. 638; Phillips, 25 Super. 648; Miller v. 
 
 Kennett Square Bank v. Shavif, 218 Wise, 33 Super. 589. 
 Pa. 612. 9*Miller v. Wise, 33 Super. 589. 
 
 ""Armstrong v. Burrows, 6 Watts "'Honesdale Glass Co. v. Storms, 
 
 266. 15(5 Pa. 268; White v. Black, 14 
 
 "^Express Publishing Co. v. Al- Super. 459. ^ 
 dine Press, 126 Pa. 347. 
 
PAROL EVIDENCE. 331 
 
 fered should lead to a certain conclusicin,"'' or that the jurj' should 
 have "implicit confidence" in it or that it prove the fact to their 
 "entire satisfaction."'" Ey "indubitable proof" is not meant that 
 the proof must be so clear as to leave no doubt in the minds of 
 the jurors, but only that it must have such weight as to make out 
 the facts alleged beyond a reasonable doubt. "^ The true standard 
 of proof is that the evidence should be so clear as to carry con- 
 viction to the minds of the jury that the witnesses are credible 
 and the facts distinctly remembered and accurately stated, and to 
 the court that if the facts alleged are true the matters in issue 
 are definitely and distinctly established."" 
 
 The rule requiring parol evidence to be clear, precise and in- 
 dubitable, does not apply where the evidence oflfered does not 
 contradict the writing but the purpose is merely to explain'"" or 
 interpret if^ or show a subsequent agreement^ or modification of 
 it,^ or its true consideration where only a nominal one is men- 
 tioned,* or to supply an omission where the writing is incomplete.* 
 
 § 368. Proof — Sufficiency Of— Two Witness Rule, When the 
 averments in a bill in equity are denied in the answer, there is oath 
 against oath and the uncorroborated testimony of the plaintiflf is 
 insufficient to warrant a chancellor in granting the relief asked, 
 and the bill will be dismissed unless the testimony of another wit- 
 ness or corroborating circumstances be produced.^ The reforma- 
 tion of a written instrument on the ground of fraud, accident or 
 mistake in its execution, or because an attempt is being made to 
 use it in violation of a contemporaneous parol agreement which 
 induced its execution, is an equitable proceeding within the above 
 
 ^^Young V. Edwards, 72 Pa. 257 ; 232 ; Phillips v. American Cement 
 
 Spencer v. Colt, 89 Pa. 314; Ott v. Co., 220 Pa. 141; Barnes's Estate, 
 
 Oyer, 106 Pa. 6. 221 Pa. 399. See § 369. 
 
 *'Ott V. Oyer, 106 Pa. 6. ^Germantown Dairy Co. v. Mc- 
 
 osQtt V. Oyer, 106 Pa. 6 ; Beyer- Callum, 223 Pa. SS9- See § 369. 
 
 town National Bank v. Hartraan, ■'Watterson v. Allegheny Valley 
 
 147 Pa. SS8 ; Highlands v. Railroad, Railroad, 74 Pa. 208. 
 
 209 Pa. 286. =ReaI Est. Title Co.'s Appeal, 125 
 
 ""Spencer v. Colt, 89 Pa. 314; Pa. 549- See §§ 363 and 368, notes 
 
 Ott V. Oyer, 106 Pa. 6; Cullmans 12 to 15. 
 
 V. Lindsay, 114 Pa. 166; Burt v. "Pusey v. Wright, 31 Pa. 387; 
 
 Burt, 221 Pa. 171. Rowley's Appeal, 115 Pa. 150. See 
 
 """Lycoming Mutual Ins. Co. v. Act May 28, 1913, P, L. 358, which 
 
 Sailer, (f] Pa. 108. changes the rule except in cases 
 
 'Graybill v. Ins. Co., 170 Pa. 75. v/here attempt is made to reform 
 
 ^Yeager v. Cassidy, 12 Super, or overthrow a writing. 
 
332 PENNSYLVANIA TRIAL UVIDUNCE. 
 
 rule, though brought in a court of law, and the allegations of the 
 party seeking to reform the writing, if denied by the other party, 
 must be corroborated by another witness or by circumstances 
 equivalent thereto/ 
 
 The mere fact that two or more persons have a common in- 
 terest in the subject matter of a litigation does not cause them to 
 lose their individuality, and their testimony is that of independ- 
 ent witnesses. Their common interest affects their credibility 
 only, and not their competency.' 
 
 The corroborating circumstances relied on must be sufficient 
 to warrant a finding of the truth of the parol agreement.* If a 
 party's testimony, though denied by the other, is clear and posi- 
 tive and corroborated in some of its main features, the case is 
 for the jury.^" And in a proceeding to open a confessed judg- 
 ment on the ground of fraud in procuring the instrument, if the 
 answer to the rule is not sworn to and does not deny the specific 
 allegations of fraud, and no testimony is presented, the charge 
 of fraud is sufficiently proved by one witness. ^^ 
 
 The two witness rule does not apply in criminal cases,^^ or where 
 the instrument on its face shows an apparent mistake or altera- 
 
 'Juniata Bldg. Ass'n v. Hetzel, and husband and wife : Cottage Or- 
 
 103 Pa. 507; North and West gan v. McManigal, 8 Super. 632; 
 
 Branch Railroad v. Swank, 105 Pa. Guernsey •.. Froude, 13 Super. 405 ; 
 
 555; Phillips v. Meily, 106 Pa. 536; Italo-French Produce Co. v. Thom- 
 
 Jackson v. Payne, 114 Pa. 67; Jones as, 28 Super. 293. 
 
 V. Backus, 114 Pa. 120; Mifflin "Yeisley v. Bundel, 15 Atl. 854. 
 
 County Bank v. Thompson, 144 Pa. i"Smith v. Harvey, 4 Super. 377; 
 
 393 ; Halberstadt v. Bannan, 149 Perkiomen Railroad v. Bromer, 217 
 
 Pa. 51 ; Strickland v. Isett, 186 Pa. Pa. 263. The corroborating circum- 
 
 280; Gaynor v. Railroad, 189 Pa. stances may be in the form of ad- 
 
 5 ; Dickson v. Hartman Mfg. Co., missions of the existence of the 
 
 179 Pa. 343; Rothschild v. Mc- parol agreement: Huckstein v. 
 
 Laughlin, 6 Super. 347; Keller v. Kelly, 152 Pa. 631; Osborne v. 
 
 Railroad, 10 Super. 240; Fidelity Walley, 8 Super. 193. But evidence 
 
 Trust Co. V. Kohn, 27 Super. 374; of a right granted the plaintiff un- 
 
 Faux V. Fitler, 232 Pa. 33. der a prior contract of the same 
 
 sThis rule applies to the testi- kind is not sufficient to corroborate 
 mony of partners: Pyroleum Ap- his testimony of a similar parol 
 pliance Co. v. Hardware Co., 169 right granted under a later con- 
 Pa. 440; joint parties: Keystone tract: Wyckoflf v. Ferree, 168 Pa. 
 Axle Co. V. Leyda, 188 Pa. 322. 261. 
 
 (See dictum .to the contrary in "Yost v. Mensch, 141 Pa. 73. 
 
 Thomas v. Loose, 114 Pa. 35, 46) ; '^Com y Pioso, 17 Super. 45. 
 
PAROL evidenci;. 333 
 
 tion,^^ or where the purpose is not to vary the terms of the writ- 
 ing but to set it aside entirely,'* or show it was extended. '' In 
 such cases the testimony of a single witness, no matter how con- 
 tradicted, must go to the jury." 
 
 § 369. Subsequent Agreements and Declarations. The parol 
 evidence rule is not violated by the admission of proof of a subse- 
 quent oral agreement modifying or supplementing the written 
 contract," or agreeing to abandon it in whole or in part.'* Such 
 modification may be shown either by an express oral agreement or 
 by acts and declarations of the parties,'*" and evidence of their 
 original negotiations prior to the making of the written contract 
 is also admissible to show the reason for its terms and to sustain 
 the averment of change when the reason subsequently ceased to 
 exist. ^° 
 
 The subsequent agreement must be considered in connection 
 with the old contract which must be followed except in so far as 
 it is expressly altered.^' 
 
 If a written contract is vague and indefinite in its terms and 
 leaves most of the details unprovided for, conversations between 
 the parties may be shown to supplement the writing.^^ But mere 
 ex parte promises or declarations made subsequent to the writing 
 are not part of it and are not admissible to change its character 
 or legal effect.^'' 
 
 '^Clement's Appeal, 2 Penny. 313 ; since the proceeding is on the bond 
 
 Yeager v. Cassidy, 16 Lane. 305. which was not executed with refer- 
 
 '*Gibson v. Railroad, 164 Pa. ence to such subsequent agreement, 
 
 142; Spritzer v. Railroad, 226 Pa. and to admit the evidence would 
 
 166; Pyroleum Co. v. Hardwick, permit its terms to be changed by 
 
 i6g Pa. 440. parol : Vaughn v. Ferris, 2 W. & S. 
 
 '^Kime v. Ice Co., 240 Pa. 61. 46. 
 
 "'See §§ 363, 367, notes 100 and i "Reber v. Brownback, 27 Super, 
 
 to 5 inclusive. 471 ; Germantown Dairy Co. v. Mc- 
 
 I'Lefevre v. Lefevre, 4 S. & R. Galium. 223 Pa. 554. 
 
 241; Malone v. Dougherty, 79 Pa. '^Holloway v. Frick, 149 Pa. 178; 
 
 46; Hollaway v. Frick, 149 Pa. 178; Hyde v. Kiehl, 183 Pa. 414. 
 
 Phillips V. American Cement Co., ^''Holloway v. Frick, 149 Pa. 178. 
 
 220 Pa. 141 ; Winans v. Bunnell, 13 ^'McCaufey v. Keller, 130 Pa. 53. 
 
 Super. 445 ; Germantown Dairy Co. 22Qj-een v. Pall, 155 Pa. 126. 
 
 v; McCallum, 223 Pa. 554. But in ^aprey v. Heydt, 116 Pa. 601. 
 
 a proceeding on a judgment entered This applies to declarations by the 
 
 on a bond for the performance ol assignee of a mortgage that he 
 
 a written contract, evidence of a would pay it if the mortgagor did 
 
 subsequent alteration of the con- not: Hamilton v. Neel, 7 Watts 
 
 tract by parol is not admissible; 517; or a promise to repair leased 
 
334 PENNSYLVANIA TRIAL ICVIIJICNCE. 
 
 § 370. Third Persons — Rights Of. The parol evidence rule 
 applies only to actions between the parties to the instrument and 
 their representatives or those claiming under them, and not to 
 strangers who are at liberty to contradict the writing to any ex- 
 tent if it is not in accordance with the truth.-* If third persons 
 have acquired rights under an instrument, such rights cannot be 
 affected by permitting a parol variation of the agreement between 
 the original parties even though fraud or mistake is alleged.-" 
 
 B. APPLICATlO>f OP RULE TO PARTICULAR WRITINGS. 
 
 § 371. Bills of Lading. While it has been said that a bill of 
 lading is but a memorandum and not such a complete contract as 
 to exclude all testimony of what is not expressed therein,^" the 
 courts have refused to follow and apply this doctrine to its full 
 extent in later decisions-' and it has been stated that under the 
 modern forms of bills of lading it may be doubted whether the 
 view that they are not complete contracts would be adhered to.-' 
 Even the decision in which the court announced the doctrine that 
 a bill of lading was a memorandum only, held that what was 
 clearly expressed therein could not be contradicted by parol ex- 
 cept for fraud or mistake.-' 
 
 premises, made after possession that a mortgage given to a person 
 taken under the lease : Drucken- other than the vendor is a purchase 
 miller v. Young, 27 Pa. 97; or dec- money mortgage, so as to give it 
 larations that money loaned to a precedence over a mortgage record- 
 child and rep^resented by a bond, was ed before it : Albright v. Bldg. 
 intended as an advancement: Frey Ass'n. 102 Pa. 411. 
 v. Heydt, 116 Pa. 601 ; or declara- ssgaitimore and Philadelphia 
 tions as to what was intended to be Steamboat Co. v. Brown, 54 Pa. 
 included in the terms of a deed : 77, 
 
 Christine v. Whitehill, 16 S. & R. "Qreenawalt v. Kohne, 85 Pa 
 
 98; or proof to convert a deed ab- 369; Hostetter v. Railroad, 11 Atl. 
 
 solute into a conditional one : Long 609. 
 
 V. McConnell, 158 Pa. 573. ^sReller v. Railroad, 10 Super. 
 
 ^■iKrider v. Lafferty, I Whart. 240; affirmed 196 Pa. 57. 
 
 303; Selser's Estate, 141 Pa. 529; -'f Baltimore and Philadelphia 
 
 Galbraith v. Bridges, 168 Pa. 325. Steamboat Co. v. Brown, 54 Pa. ^^. 
 
 25Heilner v. Imbrie, 6 S. & R. Compare Keller v. Railroad, 10 
 401 ; Com. V. Brenneman, i Rawle Super. 240, where parol evidence to 
 311; Scott V. Burton, 2 Ash, 312; explain an apparent conflict between 
 Springer v. Citizens' Gas Co., 145 the written destination in the re- 
 Pa. 430. Parol evidence is not ad- ceipt and that in the printed part 
 missible as against a bona fide of the bill of lading was rejected, 
 mortgagee without notice to prove 
 
PAROL fiVIDljNCE. 335 
 
 If the bill of lading states that goods were received in good 
 condition by the carrier, the latter cannot show that they were in 
 bad condition;^" and if it indicates that the person transporting 
 the goods received them as a common carrier, he may not show 
 he was not engaged in the business of a common carrier for a 
 part of the distance if the freight charge was received in full for 
 the entire distance.'^ 
 
 § 372. Bonds and Mortgages. A bond and mortgage, as in 
 the case of other written obligations, may be varied by parol only 
 in case of proof of fraud or mistake in their execution or of the 
 existence of a contemjxjraneous oral agreement, but for which 
 the instrument would not have been executed. Thus if a bond 
 for payment of the purchase price of realty provides for interest, 
 it cannot be shown, in absence of an allegation of fraud or mis- 
 take or a contemporaneous oral agreement which induced the 
 signing of the bond, that the interest was not to be paid until a 
 certain incumbrance was removed. ^^ But evidence is admissible 
 to show that it was agreed no personal liability on the bond was 
 to be assumed but that the property alone was to be liable,^^ or 
 that a bond of indemnity should not be proceeded on until lia- 
 bility of the principal for the act charged had been legally estab- 
 lished,'* or that the execution of a bond was induced by repre- 
 sentations that it was merely a matter of form and the obligor 
 should never be called upon to pay."' It may also be shown that 
 a mortgage was intended to be drawn for three years but by mis- 
 take was drawn for one year only, and that the mistake was not 
 corrected by reason of the promise of the mortgagee that it was 
 unnecessary.^" 
 
 § 373. Book Entries. Book entries or accounts are not writ- 
 ten contracts within the parol evidence rule,'^ and though they 
 may contain memoranda of a contract, such memoranda does 
 not exclude other evidence thereof. Thus entries in firm books 
 showing credits of dividends to a partner after his withdrawal 
 
 soWarden v. Greer, 6 Watts 424. 3*Fidelity and Casualty Co. v. 
 
 'iChouteaux v. Leech, 18 Pa. Harder, 212 Pa. 96. 
 
 224. 35j/[iller V. Henderson, 10 S. & R. 
 
 '^Buchanan v. Dawson, 34 Super. 290. 
 
 400. ^^Lippincott V. Witman, 83 Pa. 
 
 33Irwin V. Shoemaker, 8 W. & S. 244. 
 
 75; Hoopes v. Beale, 90 Pa. 82; ''Chapin v. Cambria Iron Co., 
 
 Schweyer v. Walbert, 190 Pa. 334, 145 Pa. 478; Coverdill v. Heath, 
 
 12 Super. IS- 
 
336 PENNSYLVANIA TRIAL EVIDENCE. 
 
 from the partnership, may be explained by showing they were 
 made as a matter of bookkeeping so as to gradually cancel the 
 partner's indebtedness to the firm.^* And a transaction which a 
 book memorandum indicates was a sale of cattle may be orally 
 shown to have been in reality a contract of bailment. ^^ The 
 meaning of entries and printed regulations in a bank book may 
 also be explained by parol.*" 
 
 § 374. Deeds. A deed of conveyance, being the last act of 
 the parties with reference to the transfer of realty, overcomes all 
 prior negotiations or agreements, whether written or oral, which 
 are in any manner contradictory to it,*^ and in absence of any al- 
 legation of fraud, accident, mistake or inducement, parol evi- 
 dence is inadmissible to vary or limit the scope of its express 
 covenants. *- 
 
 If the description of the land convened is clear, and no latent 
 ambiguity appears when an attempt is made to apply it on the 
 ground, and there is a subject matter which satisfies its terms, 
 there is no room for the admission of parol evidence to show the 
 parties meant something else.*'' Nor will an agreement that er- 
 rors of calculation "and the like" in a deed might be corrected 
 at any time, be construed to permit the insertion of material mat- 
 ters by parol'.** If however from uncertainty of the description 
 or because of the generality of the terms used, there is a doubt 
 as to the boundaries or the location of the land, parol evidence 
 
 ssMcConomy v. Reed, 152 Pa. 42, right of way may not be shown 
 
 ^^Sheaffer v. Sensenig, 182 Pa. where such way is not mentioned in 
 
 634 the deed: Collins v. Hocker, I 
 
 *''Wirigate v. Mechanics' Bank, 10 Rawle 108. Parol evidence that a 
 
 Pa. 104; Sheaffer v. Sensenig, 182 deed executed by a wife alone was 
 
 Pa. 634; Thompson v. Trust Co., by consent of her husband, is in- 
 
 234 Pa. 452. admissible. The only evidence of 
 
 *iCrotzer v. Russell, 9 S. & R. consent is his joinder in the deed: 
 
 78; Moser v. Miller, 7 Watts 156; Trimmer v. Heagy, 16 Pa. 484. 
 
 Gangloflf V. Smaltz, i8 Super. 460; ^^Snyder v. Snyder, 6 Bin. 483; 
 
 Buchanan v. Dawson, 34 Super. Shepard v. Watson, i Watts 35; 
 
 400. Beeson v. Hutchinson, 4 'Watts 
 
 *2Christine v. Whitehill, 16 S. & 442; Harvey v. Vandegrift, 89 Pa, 
 
 R. 98; CoUingwood v. Irwin, 3 346; King v. Coal Co., 204 Pa. 628 
 
 Watts 306; Buck V. Fisher, 4 Carroll \. Miner, i Super. 439 
 
 Whart. 516; lyloyd v. Farrell, 48 Cunningham v. Neeld, 198 Pa. 41 
 
 Pa. 73; Blood V, Crew Levick Co., McKinley \. Ulery, 47 Super. 353, 
 
 177 Pa. 606; Schiehl's Estate, 179 See also § 357. 
 
 Pa. 308. A parol variation of a **Wager v. Chew, 15 Pa. 323. 
 
PAROL, EVIDENCE. 337 
 
 may be resorted to for the purpose of showing what the parties 
 intended/^ or to apply the written description to the land,*' and 
 it may be shown that there was no intention to convey certain 
 land which might, by reason of the general language, be within 
 the scope of the description/' The time of delivery of the 
 deed,*^ or the fact that the purchaser was to hold the property in 
 trust for a third person*" may be shown by parol, but not that it 
 was to be held in trust by the purchaser for the grantor, as this 
 would contradict the deed.°° The nature and quantity of inter- 
 est conveyed must also be ascertained from the instrument itself 
 and cannot be orally shown. '^'^ 
 
 Parol evidence concerning a d6ed may consist of declarations 
 made by the parties at the time of and before the execution of the 
 deed and while negotiations for the land were pending, such 
 negotiations being a part of the transaction which resulted in the 
 conveyance of the property."^ 
 
 § 375. Judgments — Confession Of. It has been said that judg- 
 ments can no more be made the instruments of fraud than less 
 weighty matters, and when used for that purpose they are open 
 to inquiry like any other transaction.^^ Thus a parol contempo- 
 raneous agreement may be shown to the effect that the plaintiff 
 promised not to collect a judgment on the happening of a cer- 
 tain event,^* or that it should not be collected except for certain 
 purposes,'^ or should be used in a certain locality only,^'' or that 
 execution was not to be issued without notice.^' 
 
 It has been held that evidence is admissible to show that a judg- 
 ment was not to be entered on a judgment note until after a 
 
 i^Hoflman v. Danner, 14 Pa. 25 ; *'Porter v. Mayfield, 21 Pa. 263. 
 
 Pittsburgh Trust Co. v. Mfg. Co., ^''Porter'v. Mayfield, 21 Pa. 263. 
 
 229 Pa. 295; Kountz v. Railway, 48 ^'Caldwell v. Fulton, 31 Pa. 475; 
 
 Super. 132 ; Little v. Creek, 233 Pa. Carroll v. Miner, i Super. 439. 
 
 534; Beck v. Schekter, 240 Pa. 596. ^^Safe Deposit and Trust Co. v. 
 
 See also § 357. Mfg. Co., 229 Pa. 295; Beck v. 
 
 *^Ferguson v. Staver, 33 Pa. 411; Schekter, 240 Pa. 596. 
 
 Peart v. Brice, 152 Pa. 277. But ^s^yers's Appeal, 28 Pa. 179. 
 
 parol evidence cannot be admitted "^Hartzell v. Reiss, I Bin. 289; 
 
 to first describe the land and then Brown v. Morange, 108 Pa. 69. See 
 
 apply the description. Id. Heil v. Ginginger, i Wood. 259. 
 
 ■"Hurst V. Kirkbride, i Bin. 616 ; ^.jDavidson v. Young, 167 Pa. 265. 
 
 Dinkle v. Marshall, 3 Bin. 587; s«Baillie v. Kessler, 6 W. N. C. 
 
 Hetherington v. Clark, 30 Pa. 393. 527. 
 
 "Wheelock v. Harding, 4 Super. s'Sommer v. Wilt, 4 S. & R. 19. 
 21. 
 
 22 
 
338 PENNSYLVANIA TRIAL EVIDENCE. 
 
 certain time or on the happening of a certain event.''* But the 
 contrary was held in a later case in which the earlier decision 
 was limited to its particular facts, which were that the evidence 
 was admitted in favor of creditors,^" the court refusing to apply 
 the rule that obtaining an instrument for one purpose and using 
 it for another is fraudulent. This case was in turn referred to 
 in a later decision"" where it was held that a parol agreement that 
 a mortgage drawn for one year should not be payable until the 
 end of three years was admissible, and the court, in discussing 
 Fulton v. Hood, stated there was no offer in that case to show 
 that the warrant of attorney had been signed on the faith of the 
 alleged parol agreement or that it would not otherwise have been 
 signed. 
 
 It is difficult to see on principle why the rule permitting parol 
 proof of a promise which induced the signing of the writing 
 should not apply in such case. The opposite rule cannot be con- 
 sistently sustained in view of decisions on the subject of parol 
 evidence to vary other writings."^ 
 
 § 376. Promissory Notes. In an action by the payee against 
 the maker of a promissory note, parol evidence will not be re- 
 ceived, in absence of any allegation of fraud, mistake or con- 
 temporaneous oral agreement which induced the execution of the 
 note, to change the terms of the promise itself. °^ The same rule 
 
 ^^Ayers's Appeal, 28 Pa. 179. or only out of money derived from 
 
 '^Fulton V. Hood, 34 Pa. 365. a certain source : Fuller v. Law, 
 
 ""lyippincott V. Witman, 83 Pa. 207 Pa. loi ; Homewood Bank v. 
 
 244. See Philbin v. Davinger, 29 L. Heckert, 207 Pa. 231 ; or that the 
 
 I. 325 ; Lippincott v. Rittenhouse, 9 time of payment was to be extend- 
 
 Montg. IS9- ed: Hill v. Gaw, 4 Pa. 493; 
 
 ^^See German v. Conover, 52 Coughenour v. Suhre, 71 Pa. 462; 
 
 Super. 473, where the right to set Clark v. Allen, 132 Pa. 40; or that 
 
 up a parol contemporaneous agree- a not payable on demand would 
 
 ment tliat judgment was not to be not be demanded until the end of 
 
 entered until the happening of a cer- one year : Dodge v. Chessman, 10 
 
 tain event, was impliedly recognized Super. 604 ; or that the note was 
 
 though the case was decided on to be renewed at maturity : Anspach 
 
 the ground of laches in applying ^. Bast, 52 Pa. 356; Heist v. Hart, 
 
 for a rule to open judgment. 73 Pa. 286; Wolf v. Rosenbach, 2 
 
 "^It may not be shown that a note Super. 587; Wolf v. Wolf, 2 Super, 
 
 was not to be paid according to its 590; or that it was signed with the 
 
 terms, but only upon the happening understanding that it was a mere 
 
 of a certain event: Hocker v. matter of form and not an obliga- 
 
 National Oil Refining Co., 73 Pa. tion to pay money: Zeigler v. Mc- 
 
 93; Phillips V. Meily, 106 Pa. 536; Farland, 147 Pa. 607; or that the 
 
PAROL liVIDENCE. 
 
 339 
 
 applies to the acceptor of a bill of exchange who cannot vary the 
 terms of his acceptance by parol,"' although if the acceptance is 
 irregular, evidence will be received to show a promise by the ac- 
 ceptor to pay according to the terms of the order."'' 
 
 Parol evidence will be received in proceedings between the 
 original parties to a note, for the purpose of showing want or 
 failure of consideration"^ or the time of payment when no time 
 is mentioned"" or an agreement that a rebate should be allowed 
 from the face of the note at maturity."' A contract of endorse- 
 ment is merely implied by law from the fact of endorsement in 
 blank, and such implied contract may be qualified by proof of 
 a different agreement between the parties at the time it was made 
 and is not subject to the rule excluding parol evidence to vary 
 the terms of express contracts."* In case of a non-negotiable 
 instrument the endorsement by the payee does not make him lia- 
 ble as an endorser of a negotiable instrument, and he may show 
 an oral condition attached to such endorsement."" 
 
 Although many cases contained dicta to the effect that a parol 
 agreement inducing the execution of a note might be shown,'" 
 there was a marked tendency to reject such evidence in absence of 
 
 payee would not negotiate it : 
 Heist V. Hart, 73 Pa. 286; Phillet 
 V. Esler, 29 W. N. C. 258; or that 
 the amount is different from thait 
 mentioned therein : Kooker v. Ad- 
 dis, I W. N. C. 327. 
 
 e^Mason v. Graff, 35 Pa. 448. In 
 Leary v. Meredith, s W. N. C. 37, 
 it was held that the acceptor of 
 a draft which contained no defi- 
 nite time of payment could prove 
 the time by parol and thus rebut 
 the inference that it was payable on 
 demand. 
 
 "*Gillespie v. Mather, 10 Pa. 28. 
 
 ""Anspach v. Bast, 52 Pa. 356; 
 Hipps V. Wardle, i Atl. 727. 
 
 ""Ross V. Espy, 66 Pa. 481; 
 Horner v. Horner, 14S Pa. 258; 
 Leary v. Meredith, 5 W. N. C. 37- 
 
 "'Michigan Life Ins. Co. v. Wil- 
 liams, 15s Pa. 406. Such agree- 
 ments does not contradict the note, 
 but merely shows a credit which 
 was to be applied in part payment. 
 
 •'^It may be shown that endorsers 
 agreed that in case of loss, they 
 should bear it equally : Ross v. 
 Espy, 66 Pa. 481 ; or that an en- 
 dorsement in blank was made with 
 the understanding that it was with- 
 out recourse to the endorser : Pat- 
 terson V. Todd, 18 Pa. 426 ; Cake v. 
 Pottsville Bank, 116 Pa. 264; Hill 
 V, Ely, S S. & R. 363; or that de- 
 mand and notice of non-payment 
 was waived : Patterson v. Todd, 18 
 Pa. 421 ; Barclay v. Weaver, 19 
 Pa. 396. 
 
 ooShaffstall v. McDaniel, 152 Pa. 
 598. 
 
 7»In Horner v. Horner, 14s Pa. 
 258, the court stated the rule that 
 a writing cannot be enforced con- 
 trary to the provisions of a con- 
 temporaneous parol agreement 
 which induced its~ execution, but it 
 was not necessary to apply it in 
 that case because the defendant 
 merely attempted to show a parol 
 
340 
 
 PDNNSYLVANIA TRIAL EVIDENCE. 
 
 any allegation of fraud, accident or mistake, whenever the ques- 
 tion was whether the terms of the writing could be directly con- 
 tradicted." It was this tendency of the Supreme Court de- 
 cisions that led the Superior Court in Gandy v^ Weckerly, 34 
 Super. 79, where the question was whether a note payable abso- 
 lutely at a certain time could be varied by a contemporaneous 
 parol agreement that payment was to be made only out of funds 
 derived from a certain source, to state that they were bound by 
 
 agreement as to the time of pay- 
 ment where none was mentioned in 
 the note, and the only effect of the 
 evidence was to rebut the legal in- 
 ference that the note was payable 
 on demand. In Clinch Valley Coal 
 Co. V. Willing, 180 Pa. 165, parol 
 evidence was admitted to show that 
 realty referred to in the notes as 
 collateral security should be sold 
 and the proceeds applied to the 
 notes before the maker should be 
 called upon to pay, although they 
 were payable at a specified time. 
 The court said the parol agreement 
 was not inconsistent with the notes 
 because the latter recited the pledge, 
 and the only question was when the 
 pledge was to be enforced, whether 
 before or after action. In Martin 
 V McCune, 8 Super. 84, a parol 
 agreement that the maker of a note 
 should have the right on certain 
 conditions to return the property 
 which formed the consideration and 
 that the note should then be sur- 
 rendered, was permitted to be 
 shown on the ground that per- 
 formance of such an agreement 
 amounted to payment and was not 
 inconsistent with the note. In this 
 case the court, -in referring to the 
 case of Wolf v. Rosenbach, 2 Super. 
 587, holding that a parol agreement 
 to renew at maturity could not be 
 shown, said that there was in that 
 case no averment of fraud or a 
 tender of a renewal note, or that 
 the defendant was induced to sign 
 
 the original note by reason of the 
 oral stipulation, and the case was 
 therefore rightly decided on its 
 facts. 
 
 The dictum in Keller v. Cohen, 
 217 Pa. 522, is to the effect that a 
 contemporaneous oral agreement 
 which induced the execution of a 
 note may be shown where the pur- 
 pose is to prove that payment was 
 to be made out of profits derived 
 from a certain source. In Lebanon 
 National Bank v. Long, 220 Pa. 
 556, a joint maker attempted to es- 
 cape liability on the ground that 
 he was induced by the payee to sign 
 the note as an accommodation for 
 bis brother, the other maker, in or- 
 der to enable the payee to comply 
 with the banking laws. This de- 
 fense was rejected on the ground 
 that it was insufficiently proved. 
 
 'ipulton V. Law, 207 Pa. loi ; 
 Kreiiger v. Nicola, 205 Pa. 38; 
 Homewood Bank v. Heckert, 207 
 Pa. 231. In Fuller v. Law the court 
 refused to admit evidence of a con- 
 temporaneous parol agreement to 
 the effect that the note was to be 
 paid only out of dividends on stock 
 for the purchase price of which the 
 note was given, on the ground that 
 failure to perform the oral agree- 
 ment to ■ accept payment in a par- 
 ticular form was not a legal fraud 
 and as there was no fraud in the 
 creation of the note the parol evi- 
 dence was inadmissible. 
 
PAROIv EVIDENCE. 
 
 .341 
 
 prior decisions and accordingly held such evidence inadmissible. 
 This case was reversed by the Supreme Court" where the rule 
 applied to other writings — that the violation of a contemporane- 
 ous parol agreement which induced the execution of the writing 
 is such a fraud as will admit parol evidence of it — was adopted. 
 This case seems to abolish all distinction, if any ever existed, be- 
 tween the application of the parol evidence rule to notes and to 
 other writings. ^^ 
 
 § 377. Public Records. The rule excluding parol evidence to 
 contradict a writing, applies to public records of all kinds, as 
 well as private writings.'* But, as in the case of private writ- 
 ings, such evidence is admissible to explain the record''^ or to 
 show fraud'^ or mistake.^' 
 
 As a general rule official court records, regular on their face, 
 when offered in evidence in another proceeding, are conclusive 
 of the facts contained therein and may not be varied by parol.''* 
 But if the record does not show what took place at a former trial 
 or what matters were litigated, such facts may be orally shown, as 
 they do not contradict but merely explain the record.'" Parol 
 
 "220 Pa. 285. 
 
 '^Later cases, following this rule, 
 have held that it may be shown that 
 the execution of a note was in- 
 duced by a contemporaneous parol 
 agreement that payment should not 
 bt demanded if certain losses should 
 occur in a partnership between the 
 parties: Faux v. Pitler, 223 Pa. 
 568; or that payment should be 
 made only out of the profits of a 
 business : Alexander v. Righter, 240 
 Pa. 22. 
 
 "Patton V. Miller, 13 S. & R. 
 254; Graham v. Smith, 25 Pa. 323; 
 McMicken v. Com., 58 Pa. 213; 
 Cumberland County v. Boyd, 113 
 Pa. 52. 
 
 '^Thompson v. Chase, 2 Grant 
 367; Carmony v. Hooker, 5 Pa. 
 30s; Stark V. Fuller, 42 Pa. 320; 
 Tarr v. Eddy, 142 Pa. 410. 
 
 '«Mitchell V. Kintzer, 5 Pa. 216; 
 Lowry V. MacMillan, 8 Pa. 157; 
 Thome v. Ins. Co., 80 Pa. IS- 
 
 "Com. V. Blaine, 4 Bin. 186; 
 
 Parker v. Luflfborough, 10 S. & R. 
 249; Carr v. Frick Coke Co., 170 
 Pa. 62. 
 
 '^Cumberland County v. Boyd, 
 113 Pa. 52; Cochran v. Sanderson, 
 151 Pa. S91 ; Patchin v. Coal Co., 
 226 Pa. 159. This rule applies to 
 an auditor's report : Stecher v. 
 Com., 6 Whart. 60; or to a trus- 
 tee's bond, properly filed and 
 marked approved by the court : 
 Leedom v. Lombaert, 80 Pa. 381 ; 
 or to a record of a justice of the 
 peace : Coffman v. Hampton, 2 W. 
 & S. 377; Springer v. Wood, 18 
 W. N. C. S20; or to an acknowl- 
 edgment in open court of a treas- 
 urer's deed : Duff v. Wynkoop, 74 
 Pa. 300; Lee v. Newland, 164 Pa. 
 360; or to the description. in a me- 
 chanics' lien : Dreisbach v. Keller, 
 2 Pa. 76. 
 
 ''"Meyers v. Hill, 46 Pa. 9; Mc- 
 Dermott v. Hoffman, 70 Pa. 31 ; 
 Treftz V. Potts, 74 Pa. 343; Sus- 
 quehanna Ins. Co. V. Mardorf, 132 
 
342 PENNSYLVANIA TRrAL KVIDENCK. 
 
 evidence of what transpired on the hearing of a motion for a new 
 trial*" or to show that a prior issue was not tried on its merits*^ 
 may also be given. While a sheriff's or constable's return may 
 not be contradicted by parol,'^ this rule does not prevent its im- 
 peachment for fraud or forgery,*"* or exclude evidence offered 
 to explain matters which are ambiguous or to correct mistakes,'"' 
 nor is such return conclusive except between the parties in the 
 cause in which it is made. In collateral proceedings it is only 
 prima facie evidence and may be contradicted.*' A receipt for 
 money appearing in a court docket may be explained by parol in 
 the same manner as other receipts,*" and payment after judg- 
 ment my also be shown.*' 
 
 The minutes of a meeting kept in pursuance of statutory di- 
 rection and authority, are conclusive of the facts recorded unless 
 the existence of fraud or collusion can be shown,** or unless they 
 are ambiguous or incomplete on their face, in which cases they 
 may be explained and supplemented by parol.*" 
 
 A municipal ordinance cannot be affected by parol evidence of 
 declarations of individual members of councils. '"' 
 
 § 378. Receipts. A receipt is not a contract but merely an 
 admission of the facts contained therein by the person who signed 
 it. The rule excluding parol evidence to vary the terms of a 
 written contract does not apply therefore, and the receipt is al- 
 ways open to explanation, contradiction or corroboration."^ A 
 
 Pa. 22; German Amer. Tr. Co. v. sswhjjghead v. School District, 
 
 Shallcross, 147 Pa. 485. 145 Pa. 418; Geiser Mfg. Co. v. 
 
 ^"Stark V. Fuller, 42 Pa. 320. Twp., 40 Super. 97. 
 
 s'Carmony v. Hoober, S Pa. 305. ^''Gearhart v. Dixon, i Pa. 224; 
 
 s^Paxson's Appeal, 49 Pa. 195 ; Hamill v. Supreme Council, 152 Pa. 
 
 Henderson v. Henderson, 133 Pa. 537; Rose v. Independent Chevra 
 
 399. Kadisho, 215 Pa. 69. This rule ap- 
 
 ^Ht may be shown that the date plies to acts of a municipal cor- 
 
 of levy had been inserted after the poration, which may be proved 
 
 return : Henderson v. Henderson, otherwise than by the minutes of 
 
 133 Pa. 399. councils or its records: Scranton 
 
 s-iHoffman v. Danner, 14 Pa. 25; & Pitts. Trac. Co. v. Canal Co., I 
 
 Shoemaker v. Ballard, 15 Pa. 92 ; Super. 409. 
 
 Com. V. Rooney, 167 Pa. 244; ""Chester v. Eyre, 181 Pa. 642. 
 
 Wildesin v. Bare, 171 Pa. 387. "iGue v. Kline, 13 Pa. 60; Bell 
 
 »°Lowry V. Coulter, 9 Pa. 349. v. Bell, 12 Pa. 235 ; Batdorf v. Al- 
 
 ""Borlin v. Highberger, 104 Pa. bert, 59 Pa. 59; Jessop v. Ivory, 
 
 143. See § 378. 172 Pa. 44; SheaiTer v. Sensenig, 
 
 "Van Horn v. Frick, 3 S. & R. 182 Pa. 634; Sargeant v. Ins. Co., 
 
 278. 189 Pa. 341; McPherran's Estate, 
 
PAROIv EVIDENCE. 343 
 
 receipt is prima facia evidence of payment and settlement, how- 
 ever, and should be set aside only for weighty reasons, such as 
 fraud, mistake or ignorance of the legal rights of the party who 
 gave it,"- and the evidence of such matters should be clear and 
 satisfactory,"^ especially after the lapse of many years."* If the 
 testimony of the plaintiff that a receipt purporting to be in full 
 was not intended as such is directly contradicted by the defend- 
 ant, the case will not be submitted to the jury but the receipt 
 will control."' 
 
 Where others act to their injury on the faith of a receipt given 
 for the purpose of being shown to them, the person who made 
 it will be estopped from disputing its contents."" 
 
 § 379. Wills — Ambiguity — Latent. Parol evidence to aid in 
 the construction of a will is admissible only from necessity to ex- 
 plain that which would otherwise have no effect."' A will may 
 on its face be apparently clear and unequivocal and bear no indi- 
 cation of any doubt as to the property devised or the person to 
 whom it is given, and yet, when it is attempted to execute and 
 apply it to the subject matter or identify the object of the devise, 
 a question may arise as to which particular property was meant 
 or what particular person was intended to be benefited, because 
 the description is defective, uncertain or too general to be un- 
 derstood. Parol evidence is in such case admissible to whatever 
 extent may be necessary to remove the ambiguity"^ and apply the 
 
 212 Pa. 42s ; Gregory v. Huslander, "^McDonald v. Piper, 193 Pa. 
 
 227 Pa. 607; Com. V. Miller, 31 312. 
 
 Super. 317. A receipt "in full of "^Harris v. Hay, in Pa. 562; 
 
 account to date" is not conclusive Benseman v. Ins. Co., 13 Super. 
 
 that it was a settlement of all ac- 363. 
 
 counts ; Cole v. High, 173 Pa. 590 ; "sCrawford v. Oil Co., 189 Pa, 
 
 and a receipt for money as a loan 415 ; McDonald v. Piper, 193 Pa. 
 
 may be prcpved to have been in- 312. 
 
 tended for a particular purpose ""Atkins v. Payne, 190 Pa. 5. 
 
 only: Frick v. Shimer, 26 Super. s'Wusthoff v. Dracourt, 3 Watts 
 
 563. 240; Hunter v. Hunter, 229 Pa. 
 
 "2Hamsher v. Kline, 57 Pa. 397; 349. 
 
 Russell V. Presbyterian Church, 6s "^Best v. Hammond, 55 Pa. 409; 
 
 Pa. 9; Benseman v. Ins. Co., 13 Thompson v. Kaufman, 9 Super. 
 
 Super. 365; Moore v. Robinson, 47 350; Miller's Estate, 26 Super. 443; 
 
 Super. 72; Penn Furniture Co. v. Washington and Lee University's 
 
 Ins. Co., 47 Super. Tj; Gregory v. Appeal, in Pa. 572; Metzger's Es- 
 
 Huslander, 227 Pa. 607. tate, 222 Pa. 276; Hunter v. Hun- 
 ter, 37 Super. 311. 
 
344 
 
 PENNSYLVANIA TRIAL EVIDliNCE. 
 
 provisions of the will to the subject,"" or object"" intended. For 
 this purpose, facts relating to the claimants under the w^ill, the 
 property claimed, the circumstances of the testator, the state of his 
 
 ""Where realty is merely de- 
 scribed as a house and lot located 
 at a certain place or by a certain 
 number, evidence is admissible to 
 show the amount of the land in- 
 cluded in the lot : Myers v. Myers, 
 i6 Super. Sii ; and a devise of a 
 farm occupied by a certain person 
 and "containing eight fields" may be 
 shown in fact to include nine fields : 
 Coleman v. Eberly, 2 W. N. C. 3. 
 Compare cases under note 2 below. 
 
 '■""A bequest to the "Second Na- 
 tional Bank" of Mercer, there be- 
 ing no such bank in the place, may 
 be shown to have been intended for 
 the Farmers and Mechanics' Na~ 
 tional Bank in which the testator 
 held stock, it appearing that was 
 the second national bank establish- 
 ed in the town and was generally 
 known as the Second National Na- 
 tional Bank : Snyder's Estate, 217 
 Pa. 71. A bequest to "Foreign Mis- 
 sionary Work" would, it seems, be 
 sufficient designation of an object 
 to permit complete identification of 
 the intended donee by parol : Pres- 
 byterian Mission v. Culp, 151 Pa. 
 467; and a bequest to the "For- 
 eign Missionary Society" may be 
 shown to have been intended for 
 the "Missionary Society of the 
 Methodist Church" : Bryson's Es- 
 tate, 7 Super. 624; and one to the 
 "Missions and Schools of the Epis- 
 copal Church about to .be estab- 
 lished at or near Port Cresson," 
 may be shown to have been in- 
 tended for the "Missionary So- 
 ciety of the Protestant Episcopal 
 Church," which had established a 
 mission at the place mentioned : 
 Domestic and Foreign Missionary 
 Society's Appeal, 30 Pa. 425. A 
 
 legacy to the "Foreign Missionary 
 Society" may be shown to have 
 lieen intended to benefit the society 
 of the church of which testator 
 was a member : Amberson's Estate, 
 204 Pa. 397; and a bequest to the 
 "Theological Seminary at Prince- 
 ton'' may be shown to have been 
 intended for the "Theological Sem- 
 inary of the Presbyterian Church" 
 at that place : Newell's Appeal, 24 
 Pa. 197. A legacy to a church, 
 designating it by the name of the 
 village in which it was located, may 
 be shown to have been intended 
 for the particular church of which 
 testator had been a member, there 
 being another church in the same 
 village : Wampole's Estate, 3 Super. 
 414. A bequest to the "Pennsylva- 
 nia Agricultural Society'' and the 
 "Refuge for Decayed Merchants" 
 may be respectively shown to have 
 been intended for the "Pennsylva- 
 nia State Agricultural Society" and 
 the "Merchants Fund" : Cresson's 
 Appeal, 30 Pa. 437. The "German 
 Eldership" may be shown to be the 
 of two tracts of land on which tes- 
 common designation of the "Ger- 
 man Eldership of the Church of 
 God" : Kimmel v. Wagner, i Walk. 
 191. A gift to the "Institution for 
 the Blind" at a certain place, may 
 be shown to have been meant for 
 the "Pennsylvania Institute for the 
 Instruction of the Blind" commonly 
 known as the "Institution for the 
 Blind." in preference to another 
 institution known as the "Pennsyl- 
 vania Industrial Home for Blind 
 Women" : Pennsylvania Industrial 
 Home's Appeal, 3 Penny. 429. A 
 legacy to "William Wilson's chil- 
 dren" may be shown to have been 
 
PAROL EVIDltNCE. 
 
 345 
 
 affections toward the object of his bounty, his family and affairs, 
 and his acts and declarations relating to the thing given or the 
 person to whom it is given, are all relevant.^ 
 
 On the other hand, if there is in existence a subject which satis- 
 fies the terms of the will and to which they are applicable,^ and 
 a beneficiary answering to the description therein,^ there is no 
 
 intended for the children of "Seth 
 Wilson," where it appears that the 
 testator frequently confused the 
 two names : Miller's Estate, 26 
 Super. 443 ; and a legacy to "Sam- 
 uel" may be shown to have been 
 intended for "William," though 
 there were persons answering to 
 each name, where it appears testa- 
 tor did not know the former and 
 usually called the latter Samuel : 
 Powell V. Biddle, 2 Dall. 70. Com- 
 pare cases under note 3, this sec- 
 tion. 
 
 iVernor v. Henry, 3 Watts 385 ; 
 Brownfield v. Brownfield, 12 Pa. 
 136; Wagner's Appeal, 43 Pa. 102; 
 Washington and Lee University's 
 Appeal) III Pa. 572; Wampole's 
 Estate, 3 Super. 414. See also cases 
 in preceding note. 
 
 ^Wusthoff V. Dracourt, 3 Watts 
 240; Thompson v. Kaufman, 9 
 Super. 30s ; Myers v, Myers, 16 
 Super, sii; Hunter v. Hunter, 37 
 Super. 311. A devise of land re- 
 ferring to the "old coal bank in the 
 flat" as a boundary, cannot be 
 shown by parol to have meant a 
 coal bank "on the slope" if one in 
 the flat actually existed : Hunter v. 
 Hunter, 37 Super. 311 ; 229 Pa. 
 349; and if the boundaries to a 
 house and lot are clearly defined as 
 used by the testator, it cannot be 
 shown that he intended to include 
 something else : Smith v. Metzger, 
 32 Super. 596. Likewise, where a 
 testator directed that his widow 
 should have a choice of two rooms 
 in a certain house for her use dur- 
 
 ing life, parol evidence is not ad- 
 missible to show that her choice 
 was to be confined to particular 
 rooms in the house : Wusthoff v. 
 Dracourt, 3 Watts 240. A devise 
 of two tracts of land on which tes- 
 tator and his son resided respec- 
 tively, cannot be shown to include 
 two other tracts of woodland which 
 had been used in connection with 
 said tracts, but which formed no 
 part thereof : Brendlinger v. Brend- 
 linger, 26 Pa. 131. Compare cases 
 under note 99, this section, 
 
 ■''A gift to "my nephew," naming 
 him, cannot be shown to have been 
 intended for the wife's nephew : 
 Root's Estate, 187 Pa. 118; or the 
 husband's nephew : Green's Appeal, 
 42 Pa. 2S ; or for an illigitimate 
 nephew : Appel v. Byers, 98 Pa. 
 479, of the same name, if a nephew 
 by blood of that name is in exist- 
 ence. And a bequest made to the 
 "M. E. Church, to be used by said 
 denomination for the furtherance 
 and spread of the Gospel" cannot 
 be shown to have been intended for 
 a local congregation called "M. E. 
 Church of Coropolosis" : Rouser's 
 Estate, 8 Super. 188. A gift to 
 the "General Assembly of the Pres- 
 byterian Church," there being but 
 one in existence at the time of the 
 testator's death, cannot be shown 
 by parol to have been intended for 
 another body subsequently organ- 
 ized and bearing that name : Trus- 
 tees v. Sturgeon, 9 Pa. 321. Com- 
 pare cases under note 100, this sec- 
 tion. 
 
346 PENNSYLVANIA TRIAL IvVIDIiNCE. 
 
 room for the introduction of parol evidence, and a doubt sug- 
 gested by extrinsic circumstances cannot be permitted to affect its 
 construction. To admit such evidence would be changing the 
 terms of the will and writing a new one for the testator.* Like- 
 wise if the object of testator's gift is not in some manner desig- 
 nated or described, it cannot be orally shown, as that would also 
 be making a will for the testator rather than interpreting one 
 which he has made.° 
 
 § 380. Wills — Ambiguity — Patent. A patent ambiguity, be- 
 ing one which appears from an inspection of the instrument, can- 
 not be explained by parol. To permit this to be done would, in 
 effect, make a will for the testator to the extent that he had 
 omitted to do it for himself," and therefore when he fails to make 
 an intelligible devise or bequest the gift is void.' But while 
 words cannot be supplied to disclose an intent where none is ex- 
 pressed, yet if an intent appears from the writing, though defec- 
 tively expressed through ignorance or mistake, necessary words 
 may be read into it in order to state more clearly what the tes- 
 tator intended to say.^ 
 
 § 381. Wills — Fraud and Undue Influence. Evidence of fraud 
 or undue influence is offered, not for the purpose of changing the 
 terms of the will but to set it aside entirely on the theory that it 
 is not the testator's will, and the parol evidence rule is therefore 
 not violated by admitting such evidence." 
 
 § 382. Wills — Intent of Testator. The primary consideration 
 in construing a will is to ascertain the intent of the testator. 
 But such intent must be gathered from the terms of the will itself, 
 and its meaning as expressed cannot be changed or explained by 
 parol evidence." The question for determination therefore is 
 not what the testator may have meant to say, but what is the 
 
 ♦Johnson's Appeal, 3 W. N. C. "Iddings v. Iddings, 7 S. & R. 
 
 52; Appel V. Byers, 98 Pa. 479; in. For rules governing the ad- 
 
 Rouser's Estate, 8 Super. 188; missioji of evidence to show fraud, 
 
 Root's Estate, 187 Pa. 118. see §§ 14 to 19, inclusive. See also 
 
 ^Newell's Appeal, 24 Pa. 197 ; §§ 278 and 360. 
 
 Presbyterian Missions v. Gulp, 151 '"Best v. Hammond, 55 Pa. 409; 
 
 Pa. 467. Woodman v. Good, 6 W. & S. 169; 
 
 "Trustes v. Sturgeon, 9 Pa. 321; Porter's Appeal, 94 Pa. 332; 
 
 Iddings V. Iddings, 7 S. & R. 11. Baker's Appeal, 115 Pa. 590: AUs- 
 
 U<elly V. Kelly, 25 Pa. 460. house's Estate, 23 Super. 146; 
 
 sMcKeehan v. Wilson, 53 Pa. 74. Myers v. Myers, 16 Super. 511. 
 
PAROL evidp;nce;. 347 
 
 meaning of the words which he used." A doubt suggested by 
 evidence of his circumstances when he wrote the will cannot be 
 permitted to aflfect its construction/- 
 
 But while parol evidence is inadmissible to control or modify 
 the intent of the testator, it may be admitted when necessary to 
 enable the court to place itself in the situation of the testator at 
 the time the will was executed, so as to more accurately interpret 
 the writing in view of the circumstances.''' Such evidence is also 
 admissible to rebut a resulting trust arising from the language of 
 the writing.'* 
 
 § 383. Wills — Mistake. As a general rule parol evidence is 
 inadmissible to change the terms of a will on the ground of al- 
 leged mistake'^ or because it would have been more natural for 
 the testator to make provisions different from those contained in 
 his will.'" To admit such evidence where the provisions of the 
 will are clearly expressed would be a long step in the direction of 
 making a will for the testator. 
 
 "Hancock's Appeal, 112 Pa. 532; meant to charge land with certain 
 
 Woelpper's Appeal, 126 Pa. 562 ; payments but omitted the provision 
 
 Bruckman's Estate, 195 Pa. 363. by mistake : Bonner v. Rowdybush, 
 
 i^Sponsler's Appeal, 107 Pa. 95 ; 3 Penny. 92 ; or that he used a 
 
 Baker's Appeal, 115 Pa. 590. certain word by mistake, when the 
 
 i^Gilmore's Estate, 154 Pa. 523. will • as written makes complete 
 
 See § 278. sense : Robinson v. Williams, I W. 
 
 i*Iddings V. Iddings, 7 S. & R. N. C. 337; or that the scrivener 
 
 III. made a mistake in the name of the 
 
 I'^Iddings V. Iddings, 7 S. & R. devisee: Sauer v. Mollinger, 138 
 
 hi; Wa;llize v. Wallize, 55 Pa. 242. Pa. 338. 
 It cannot be shown that testator 'n^cKeehan v. Wilson, 53 Pa. 74. 
 
348 PENNSVLVANJA TRIAL KVinitNCK. 
 
 CHAPTER XIV. 
 
 PRESUMPTIONS. 
 
 § 384. 
 38s 
 386, 
 387 
 388, 
 389. 
 390. 
 391 
 392 
 393 
 394. 
 395 
 396. 
 397 
 398. 
 399 
 400. 
 401 
 402, 
 
 General Principles. 
 Continuance of existing facts. 
 . Death arising from absence. 
 
 Effect of presumption. 
 
 Motive for absence — Existence of. 
 
 Proof of absence. 
 Evidence — Failure to produce — Concealment or manufacture of. 
 Grant necessary to perfect title. ' 
 
 Innocence — Conflicting presumptions. 
 Issue — Possibility of. 
 Legitimacy. 
 
 Letters — Delivery to addressee in due course of mail. 
 Marriage. 
 
 Payment — Presumption of, from lapse of time. 
 Performance of duty — Due care. 
 
 Regularity of public acts, proceedings, records and documents. 
 Res ipsa loquitur. 
 Sanity. 
 Wages of servant — Payment of. 
 
 § 384. General Principles. A presumption is an inference as 
 to the existence of a fact not known, arising from its logical con- 
 nection or association with other facts which are known or 
 proved. Within the scope of this definition are included two 
 general classes into which presumptions are usually divided, ■ to 
 wit, presumptions of law and presumptions of fact; the former 
 being also divided into conclusive and prima facie or rebuttable 
 presumptions. 
 
 Presumptions of law are founded on experience and common 
 observation, and are useful in aiding in the proof of facts which 
 it might be impossible to establish by inference logically flowing 
 from facts actually proved. When a connection is found to ex- 
 ist between things so that when one occurs the other is always or 
 generally known to follow, the existence of the latter will be 
 presumed from proof of the former. Such presumptions are 
 conclusive when the connection appears to be constant or uni- 
 versal, and prima facia only when the connection is not so uni- 
 versal as to establish a certainty.^ The former, because they are 
 
 'Cambria Iron Co. v. Tomb, 48 Pa. 387. 
 
PRIJSUMPTIONS. 349 
 
 so general and uniform, and from motives of public policy and 
 for the sake of greater certainty, are positive rules of law which 
 require certain inferences of fact to be drawn from the existence 
 of other facts, dispensing with further proof and excluding all 
 evidence to the contrary. In the latter class the inference arising 
 from the existence of certain facts is not so universal as to war- 
 rant the same conclusion in all cases and the consequent re- 
 jection of all evidence of a different conclusion, but yet is so 
 nearly universal that the court will presume the conclusion fol- 
 lowed so as to relieve the party of the necessity of offering proof 
 thereof, unless and until evidence to the contrary sufficient to re- 
 but the presumption has been given by the other party. 
 
 Presumptions of fact are mere inferences drawn from other 
 facts in evidence in the particular case, and do not depend upon 
 rules based on general experience and observation in other cases. 
 They derive their force solely from logic arid probability and are 
 within the exclusive province of the jury as are other inferences 
 and deductions from facts in evidence, and are therefore open to 
 rebuttal by other evidence in the case or by other- presumptions of 
 fact or deductions drawn therefrom. 
 
 The function of a true presumption is to aid a party in sustain- 
 ing the burden of proof cast upon him by the pleadings in the 
 case or by the rules of procedure. If the presumption is a con- 
 clusive one of law, proof of a state of facts upon which it is 
 based is sufficient to entitle a party to judgment. If rebuttable, 
 such proof is sufficient for that purpose in absence of evidence to 
 the contrary. In either case the presumption is drawn by the 
 court and the jury is bound thereby. On the other hand, pre- 
 sumptions of fact are drawn^ by the jury only. Mr. Stephen, 
 in his Digest of the Law of Evidence, treats presumptions of fact 
 as mere arguments from the evidence, and conclusive presump- 
 tions of law as conclusive proof. ^ The latter in reality are sub- 
 stantive rules of common or statute law, as, for instance, the pre- 
 sumption that a person intended the natural and probable conse- 
 quences of his acts, or that an ordinary debt has been paid within 
 the period of the statute of limitations, while the former are, as 
 a rule, not true presumptions but mere inferences which the jury 
 may draw as a logical conclusion from facts in evidence, to assist 
 them in rendering a verdict. 
 
 ^Page 3SI. 
 
3SO riJNNSVLVANIA TRIAL BVlRliNCK. 
 
 No presumption can be drawn from a presumption. It must 
 always be based on facts shown to exist, and should be a reason- 
 able and natural deduction from those facts." If circumstantial 
 evidence is relied upon to prove a fact, the circumstances must 
 be proved and not themselves presumed.* Presumptions are Only 
 intended to supply the place of facts and not to contradict them, 
 and cannot be relied upon unless the facts actually appear." But 
 when a presumption on behalf of a party entitles him to have his 
 case submitted to the jury, it cannot be withdrawn from them 
 merely because the other party gives evidence, however strong, to 
 rebut the presumption. The weight of the rebutting evidence is 
 for the jury.° 
 
 Some of the more important presumptions are considered in 
 the succeeding sections in this chapter. It is not within the scope 
 of a work on evidence to consider in detail all presumptions aris- 
 ing in the course of the administration of the law, as such at- 
 tempt would involve an examination of the entire body of sub- 
 stantive law. 
 
 § 385, Continuance of Existing Facts. A state of facts 
 proved to have existed at a given time, will be presumed to con- 
 tinue in absence of evidence to the contrary.' Thus there is a 
 presumption of continuance in life of a person absent or un- 
 heard of, which presumption remains until replaced by a pre- 
 sumption of death at the end of seven years.' The presumption 
 of life continues throughout the whole of such period, unless 
 there are circumstances showing that the absent person was at 
 some particular time in contact with some specific peril which 
 would justify a presumption of death at an earlier date." But 
 where a husband disappeared and his wife remarried before the 
 
 ^Phila. Passenger Railway v. other facts : Piiila. Pass. Railway 
 
 Henrice, 92 Pa. 431. v. Henrice, g2 Pa. 431. 
 
 ■♦Douglas V. Mitchell, 35 Pa. 440; "Cohen v. Transit Co., 228 Pa. 
 
 Phila. Pass. Railway v. Henrice, 92 ^43. 
 
 Pa. 431; Welch v. Eric Valley "Pcnna. Railroad Co. v. Weiss, 87 
 
 Railroad, 181 Pa. 461 ; Bube v. Pa. 447. 
 
 Weatherly Boro., 25 Super. 88. 'Oiler v. Bonebrake, 65 Pa. 338. 
 
 Thus if it be shown the driver of «Innis v. Campbell, i Rawle 373. 
 
 a car was asleep or intoxicated at See § 386. 
 
 the time of an accident, a presump- "Burr v. Sim, 4 Whart. 150; 
 
 tion of negligence would properly Mutual Benefit Co.'s Petition, 174 
 
 arise; but that he was asleep or in- Pa. i; Baker v. Trust Co., SS 
 
 toxicated must be proved as a fact Super. 15. 
 and cannot itself be presumed from 
 
PRESUMPTIONS. 351 
 
 expiration of seven years, it was held that the presumption of 
 innocence would prevail over the presumption of continuance 
 in life, and death would be presumed to have occurred before the 
 remarriage of the wife.^" 
 
 Ownership of property once established is presumed to con- 
 tinue until some transfer is shown. ^^ And if a confession has 
 been obtained by improper means, it will be presumed that a sub- 
 sequent confession was obtained by the same improper influ- 
 ences.'^* Insanity once shown to exist is also presumed to con- 
 tinue until proof is given that reason is restored,'^^ though proof 
 of the existence of insanity at any indefinite time past, together 
 with the presumption of continuance of such condition, is not 
 sufficient evidence to excuse a homicide.^* Where a person has a 
 fixed domicil, it will be presumed to continue until another has 
 been acquired.'^ But where goods delivered to a carrier are of 
 a perishable nature, there is no presumption that they remain in 
 the same condition in which they were at the time of delivery.'" 
 
 § 386. Death Arising from Absence. Ordinarily a person is 
 presumed to continue to live though his whereabouts are unknown.'' 
 But if he has been absent from his last known residence'^ and not 
 seen or heard of for a period of seven years, the presumption of 
 life is overcome by a presumption that he has since died.'^ While 
 the presumption of life continues during the entire period of 
 seven years, if there is evidence that the person has been sub- 
 jected to some grave and specific peril, this may justify a pre- 
 sumption of death before the end of that time.*" And where a 
 married man disappears and is not heard of for more than seven 
 years and the wife remarries before the expiration of that time, 
 the presumption of validity of the second marriage and of legiti- 
 
 i°McCausland's Estate, 213 Pa. '^^Price v. Price, 156 Pa. 617. 
 
 189. See also § 392, note 61. '"Farmers' Nursery Co. v. Cowan, 
 
 ^'Hartman v. Incline Plane Co., 21 Super. 192. 
 
 II Super. 438. "See § 385. 
 
 '^Com. V. Sheets, 197 Pa. 69. i*Morrison's Estate, 183 Pa. 155 ; 
 
 See § 129. Francis v. Francis, 180 Pa. 644. 
 
 i^Com. V. Winnemore, I Brewst. i^Bradley v. Bradley, 4 Whart. 
 
 356. Likewise a person proved to 173; Burr v. Sim, 4 Whart. 150; 
 
 have been of sound rtlind on a cer- Mutual Benefit Co.'s Petition, 174 
 
 tain day will be presumed to have Pa. i ; Baker v. Trust Co., 55 
 
 continued in the same state on the Super. 15: 
 
 following day: First Nat. Bank v. '"'Butt v. Sim, 4 Whart. 150; 
 
 Wirebach, 12 W. N. C. 150. Mutual Benefit Co.'s Petition, 174 
 
 '*Com. v. Calhoun, 238 Pa. 474. Pa. i. 
 
352 PENNSYLVANIA TRIAL EVIDENCE. 
 
 macy of the children will overcome the presumption of continued 
 life, and the husband will be presumed to have died before the 
 wife's second marriage.^' 
 
 The presumption of death is not rebutted by the fact that dur- 
 ing the seven years the absentee was mentioned as legatee in a 
 will." But the fact that after the expiration of seven years the 
 person presumed to be dead had been included in a distribution 
 of an account of an estate is some evidence for the jury as tend- 
 ing to rebut the presumption of death. ^^ 
 
 § 387. Death Arising from Absence— Effect of Presumption. 
 The presumption of death from absence is as effective as direct 
 proof of the fact of death,-* and the property which such person 
 would have inherited from his father does not vest in him and 
 pass through him to his children, but passes directly to the grand- 
 children.^^ In partition proceedings it is unnecessary to add as 
 a party interested the name of one presumed to be dead,^" nor 
 may such person be considered a member of a class of legatees.'' 
 One presumed to be dead, is also presumed to have died without 
 issue, ^* unless he had a family when last heard from.-*" 
 
 § 388. Death Arising from Absence — Motive for Absence — 
 Existence Of. No presumption of death arises where the evi- 
 dence shows a motive for absence and concealment.'"' And where 
 a wife left her. husband's home and went to another country, no 
 presumption of death arose by reason of his being absent from 
 her and unheard of for seven years. Flis absence must be an 
 absence from the place where they last lived. ^"^ 
 
 § 389. Death Arising from Absence — Proof of Absence. Be- 
 fore a presumption of death can arise, it must be shown that in- 
 quiry was made at the person's last place of residence and that 
 he has been absent therefrom and unheard of for a full period 
 
 WMcCausIand's Estate, 213 Pa. -''Welch's Appeal, 126 Pa. 297. 
 
 i8g. "Clement's Estate, i Del. Co. 
 
 ^^Whiteside's Appeal, 23 Pa. 114. 167. 
 
 -^Keech v. Rinehart, 10 Pa. 240. -"Miller v. Beates, 3 S. & R. 490; 
 
 -*Wanner's Estate, i Wood. 112; Duffy's Estate, 36 W. N. C. 199; 
 
 Esterly's Appeal, 109 Pa. 222. Campbell \. Reed, 24 Pa. 498. 
 
 ^^Esterly's Appeal, 109 Pa. 222. -"Campbell v. Reed, 24 Pa. 198. 
 
 But if the parent died before the 3»Wolff's Estate, 12 W. N. C. 
 
 expiration of seven years, the fam- 535. 
 
 ily of the absentee take through "lY^iHiams' Estate, 8 W. N. C. 
 
 him and not directly from his de- 3IQ. 
 ceased parent : Baker v. Trust Co., 
 55 vSuper. 15. 
 
PRESUMPTIONS. 353 
 
 of seven years,^- unless the period of absence is so long that the 
 person, if living, must have attained an age considerably in ad- 
 vance of the average term of human existence, in which case a 
 presumption of death may arise without proof of inquiry.'''' After 
 proper proof of inquiry is given, the opposite party may then 
 rebut the presumption by evidence that the person still continues 
 to live."* 
 
 § 390. Evidence — Failure to Produce — Concealment or Manu- 
 facture Of. Evidence may sometimes consist of what is not 
 proved as well as that which is offered at the trial."' If a party 
 fails to produce evidence which is within his contrcjl and which 
 it would naturally be to his interest to produce, and fails to give 
 any satisfactory reason for such omission, the jury have a right 
 to infer that the evidence, if produced, would have been unfavor- 
 able to him.'"' But this is merely a presumption or inference of 
 fact, and not a presumption of law."' The principle is not con- 
 fined to the production of documentary evidence in the possession 
 or under control of the party, but extends- to non-production of 
 witnesses who presumably are best informed on the subject un- 
 der investigation,"* especially if their relations with such party 
 are friendly, and their bias, if any, would be in his favor. "^ But 
 if the witness is equally available and necessary for both sides, 
 the presumption against one for failing to call him is no stronger 
 than the presumption against the other.*" The presumption aris- 
 
 s^Fulweiler v. Baugher, IS S. & Ginder v. Bachman, 8 Super. 405 ; 
 
 R. 45. Wills V. Hardcastle, 19 Super. 525. 
 
 "Innis V. Campbell, l Rawle *''In an action on a note, where 
 
 373. there is a question whether defend- 
 
 3*Miller v. Beates, 3 S. & R. 490; ant's name was forged to a paper 
 
 Thomas v. Thomas, 124 Pa. 646. by a third person, there is no pre- 
 
 3'Frick V. Barbour, 64 Pa. 120. sumption against him for failing to 
 
 "^See § SI. call the alleged forger as a witness: 
 
 "''Church V. Church, 2S Pa. 278; Shannon v, Castner, 21 Super. 294; 
 
 Frick V. Barbour, 64 Pa. 120; Hall and where a party calls his oppo- 
 
 V. Vanderpool, is6 Pa. 152; Wills nent to prove his own case, the 
 
 V. Hardcastle, 19 Super. 52s ; First fact that on cross-examination the 
 
 Nat. Bank v. McKinley Coal Co., opponent fails to bring out matters 
 
 210 Pa. 76. which he must have known and 
 
 "^Green v. Brooks, 21S Pa. 492; which would have been against his 
 
 Lewis V. Fleer, 30 Super. 237 ; Ron- interests, cannot be used against 
 
 dinella v. Ins. Co., 24 Super. 293 ; him, as to do so would be to put 
 
 Oldham v. U. S. Express Co., 25 the burden of proof on the wrong 
 
 Super. S49. party: Heflner's Estate, 134 Pa. 
 
 3»Steininger v. Hoch, 43 Pa. 432 ; 436. 
 23 
 
354 PENNSYLVANIA TRIM, EVIDENCE. 
 
 ing from failure to produce evidence may always be rebutted by 
 showing a bona fide effort was made to produce it.*^ 
 
 The extent of comment which may be made on the failure of 
 a party to produce evidence within his power, is a matter largely 
 within the discretion of the trial judge,*^ whose action is not 
 ground for reversal so long as he says nothing in his charge which 
 tends to preclude the jury from deciding the case on its merits.^^ 
 
 § 391. Grant Necessary to Perfect Title. After a great lapse 
 of time and undisputed possession of realty without claim by one 
 through whom title is derived but from whom no conveyance can 
 be shown, the law presumes whatever grant may be necssary to 
 perfect title in the subsequent holder and supply the missing link 
 in his chain of title.** This presumption arises not only against 
 a mere intruder, but also against one claiming under color of 
 title*^ and applies to easements and other incorporeal heredita- 
 ments as well as to the land itself,*^ but hot to cases where the 
 claim of title is to public property.*' 
 
 The rational ground for presumption is when the conduct of 
 the party out of possession cannot be accounted for without sup- 
 posing that the estate has been conveyed to the one in possession.*^ 
 The presumption may, however, grow out of the relation between 
 the presumptive grantor and grantee, and it is not always neces- 
 sary that the grantee should be in actual possession.*" It de- 
 pends upon the facts of each particular case and not upon the 
 kind or character of the title set up by the other party. ^^ There 
 ' must be proof of possession, payment of taxes, or other acts or 
 assertion of ownership for a sufficient length of time by the party 
 to whom the missing conveyance is to be presumed to have been 
 
 *iCostello V. Costello, igi Pa. 379, 
 
 *2ColIins V. Leafey, 23 W. N. C 
 264. 
 
 *3Ginder v. Bachman, 8 Super 
 405 ; Wills V. Hardcastle, 19 Super, 
 525. 
 
 **Galloway v. Ole, 2 Bin. 468 
 Taylor v. Dougherty, i W. & S 
 324; Kingston v. Leslie, 10 S. & R 
 383; Hastings v, Wagner, 7 W. & 
 S. 21s; Fox V. Thompson, 31 Pa. *''Glass v. Gilbert, 58 Pa. 266. 
 172 ; Dougherty v. Welshaus, 233 ^oDougherty v. Welshaus, 233 Pa. 
 
 Pa. 121. 121. 
 
 *^Townsend v. Boyd, 217 Pa. 
 386; Dougherty v. Welshaus, 233 
 Pa. 121.' 
 
 ■"'Kingston v. Leslie, 10 S. & R. 
 383. 
 
 *''Com. V. Alburger, i Whart. 
 469. 
 
 ^^Kingston v. Leslie, 10 S. & R. 
 383; Dougherty v. Welshaus, 233 
 Pa. 121. 
 
PRESUMPTIONS. 355 
 
 niade.^^ A permissive trespass, though long continued, is not 
 sufficient for this purpose. °- 
 
 There seems to be no positive rule as to the length of time nec- 
 essary to create a presumption of conveyance. In case of ease- 
 ments and other incorporeal hereditaments which do not admit 
 of actual possession, the period required for adverse possession is 
 usually deemed sufficient."'' Where the subject matter admits of 
 actual possession, the rule varies according to the circumstances."* 
 But there would seem to be no good reason why the statutory 
 period should not be applied."" 
 
 Whether the circumstances justify a presumption of grant is a 
 question of law for the court."^ 
 
 § 392. Innocence — Conflicting Presumptions. A breach of 
 law will never be presumed. On the contrary, the presumption is 
 that every person has conformed to the law and the burden is 
 on him who charges a breach to prove it. Therefore one charged 
 with wrongdoing, whether a tort or a crime, need not give any 
 evidence at all until the opposite party has given evidence tend- 
 ing to prove guilt,"' even though to do so involves proving a 
 negative, unless the fact is one peculiarly within the knowledge 
 of the party charged."* 
 
 If there are conflicting presumptions, the one in favor of inno- 
 
 51 Warner v. Henby, 48 Pa. 187. Wallace v. Presb. Church, iii Pa. 
 
 "^Susquehanna County v. Deans, 164; McElroy v. Railroad Co., 7 
 
 33 Pa. 131. Pa. 536. 
 
 "^Kingston v. Leslie, 10 S. & R. "^Kingston v. Leslie, 10 S. & R. 
 
 383; Newman v. Rutter, 8 Watts 383. 
 
 51. The presumption of a grant of -ssSee Warner v. Henby, 48 Pa. 
 an incoporeal hereditament after an 187. See also Taylor v. Dougherty, 
 adverse user for twenty-one years, i W. & S. 324, where the court 
 has been applied to the use of a suggests thirty years, the time re- 
 road over the land of another with- quired to raise a presumption of 
 out permission or objection: Gar- due execution of a deed, as suffi- 
 rett V. Jackson, 20 Pa. 331 ; Pierce cient. See § 209. 
 V. Cloud, 42 Pa. 102; Plitt v. Cox, "^Stoevef v. Witman, 6 Bin. 416; 
 43 Pa. 486; to the use and enjoy- Newman v. Rutter, 8 Watts Si. 
 ment of a stream of water in a par- "^Breiden v. Paflf, 12 S. & R. 430 ; 
 ticular way : Strickler v. Todd, 10 Horan v. Weiler, 41 Pa. 470 ; Win- 
 S. & R. 63 ; Wheatley v. Chris- lack v. Geist, 107 Pa. 297 ; Dowd 
 man, 24 Pa. 298; and to the pay- v. Crow, 205 Pa. 214; Silverman v. 
 ment and receipt of a ground rent: Rumberger, 4 Super. 439. 
 Heckerman v. Hummel, 19 Pa. 64; '^Wile's Estate, 6 Super. 435. 
 
3S6 PENNSYIvVANIA TRIAL EVIDENCE. 
 
 cence will prevail."^ Thus where a penal statute is violated by 
 a corporation through the unauthorized act of one of its officers, 
 the presumption that the latter did no more than his duty is 
 overcome by the presumption of innocence that the company did 
 not instruct him to violate the law."" And if a wife, after sepa- 
 rating from her husband, does not hear anything from him for 
 many years and she then remarries, even though" the circum- 
 stances are not such as to raise a presumption of death, yet the 
 presumption of innocence applies, and it will be presumed she 
 made due inquiry and discovered that her first husband was 
 dead,"^ the burden being on those alleging the invalidity of the 
 second marriage to prove it."- In such case the presumption of 
 continuance of the first marriage must yield to the presumption 
 of innocence and the presumption of legitimacy of the children 
 of the second marriage. A different rule is applied, however, 
 where an alteration in the date of a note is beneficial to the 
 holder. In such case there' is no presumption of innocence and 
 the burden is on the holder to prove the alteration was made be- 
 fore the note was executed."^ 
 
 § 393. Issue, Possibility Of. The possibility of bearing chil- 
 dren is presumed to exist even though the woman has long passed 
 the age at which the ability to do so usually ceases."* 
 
 § 394. Legitimacy. A child born in lawful wedlock is pre- 
 sumed to be legitimate and nothing short of absolute proof of 
 impotency or of non-access will bastardize the issue."^ This pre- 
 sumption exists where the child is begotten prior to the marriage 
 of the parents and born subsequently thereto, though it may be 
 rebutted by showing non-access prior to marriage."" If a person 
 is admitted to be the child of certain parents, the marriage of 
 
 ssgenser v. Bower, I P. & W. zcns' National Bank v. Williams, 
 
 450; Picken's Estate, 163 Pa. 14; 174 Pa. 66; Cornog v. Wilson, 231 
 
 Wile's Estate, 6 Super. 435. Pa. 281. See § 197. 
 
 ""Hazleton Coal Co. v. Megargel, "•'List \. Rodney, 83 Pa. 483; 
 
 4 Pa. 324. Keller's Estate, 11 Lane. 185. 
 
 "Williams' Estate, 8 W. N. C. ii5Com. v. Shepherd, 6 Bin. 283; 
 
 310; Breiden v. Paff, 12 S. & R. Page v. Dennison, I Grant 377. 
 
 430; Senser v. Bower, i P. & W. "sDgjmJson v. Page, 29 Pa. 420; 
 
 4S0; McCausland's Estate, 213 Pa. Kleinert v. Ehlers, 38 Pa. 439; 
 
 189. Tioga Co. V. South Creek Twp., 75 
 
 "^Wile's Estate, 6 Super. 435. Pa. 433 ; Page v. Dennison, i Grant 
 
 ''Neff V. Horner, 63 Pa. 327 ; 377. 
 Nagle's Estate, 134 Pa. 31; Citi- 
 
PRESUMPTIONS. 357 
 
 such persons is presumed."^ But there is no presumption of 
 legitimacy where a man marries the mother of an illegitimate 
 child.'"* 
 
 § 395. Letters— Delivery to Addressee in Due Course of Mail. 
 The fact of depositing in a post-office or street letter box a prop- 
 erly addressed and stamped letter raises a presumption, founded 
 on common experience, that it reached its destination in due 
 course of mail and was received by the addressee. °^ This is not 
 a presumption of law but one of fact only and solely for the de- 
 termination of the jury under all the evidence.'" While the 
 earlier cases were inclined to confine this rule to letters relating 
 to commercial paper and containing notice of dishonor of bills or 
 non-payment of notes," it was subsequently extended to cases 
 where by the terms of a contract notice was to be given by one 
 party to another in a distant place and the custom and usage of 
 business justified the use of the mails in sending it,'^ and is now 
 applied generally, regardless of the subject matter of the letter. '' 
 But a jury will not be permitted to infer that a letter enclosed 
 in another which was addressed to the postmaster at a certain 
 place, was in turn posted by him and that it finally reached its 
 destination, especially where better proof of delivery could have 
 been obtained." 
 
 A letter will be presumed to have been delivered in the ordi- 
 nary and usual course of transmission of the mails," though such 
 presumption is fully rebutted by evidence that it was in fact re- 
 ceived at a later date.''* When a witness testifies to having mailed 
 
 8'Picken's Estate, 163 Pa. 14. ^^gugqugjianna Mut. Ins. Co. v. 
 
 88Janes' Estate, 147 Pa. 527. Toy Co., 97 Pa. 424. 
 
 "''Whitrnore v. Ins. Co., 148 Pa. '^^Poisom y Cook, 115 Pa. 539; 
 
 40s ; Jensen v. McCorkell, 154 Pa. Whitmore v. Ins. Co., 148 Pa. 405 ; 
 
 323; London Assurance Co. v, McSparran v. Hughes, 193 Pa. 184; 
 
 Russell, I Super. 320; Phoenix Black v. Roebuck, 17 Super. 324; 
 
 Brew Co. v. Weiss, 23 Super. 519; Beeman v. Supreme Lodge, 215 Pa. 
 
 Beeman v. Supreme Lodge, 215 Pa. 627; Neubert v. Water Co., 2H 
 
 627. Pa. 582 ; Beeman v. Supreme 
 
 ^oWhitmore v. Ins. Co., 148 Pa. Lodge, 215 Pa. 627. 
 
 40s ; Black v. Roebuck, 17 Super. '*First Nat. Bank v. McManigle, 
 
 324; Phcenix Brewing Co. v. 69 Pa. 156. 
 
 Weiss, 23 Super. 519. '^Veley v. Clinger, 18 Super. 125. 
 
 ^'Tanner v. Hughes, 53 Pa. 289; '"McSparran v. Ins. Co., 193 Pa. 
 
 Kennedy v. Altvater, 77 Pa. 34. 184; Beeman v. Supreme Lodge, 
 
 21S Pa. 627. 
 
3S8 PENNSYLVANIA TRIAI, EVIDENCE. 
 
 a letter it will be presumed this was clone in accordance with the 
 postal regulations and was duly stamped." 
 
 § 396. Marriage. A presumption of marriage arises in civil 
 cases from proof of reputation and co-habitation as man and 
 wife.'* But this presumption disappears when there is better 
 proof that a marriage did or did not exist," and if the evidence 
 of co-habitation and reputation is contradictory, no presumption 
 of marriage is raised thereby, but such evidence may be consid- 
 ered by the jury along with other proof of marriage.*" 
 
 Proof of reputation alone, without co-habitation, is insufficient 
 to raise a presumption of marriage ;^'^ and if co-habitation was 
 illicit in the beginning, such relation will be presumed to con- 
 tinue until a change is established by clear proof. °^ But where 
 the parties, in good faith and after the removal of any obstacle 
 to a valid marriage, live as husband and wife for many years 
 until the death of one of them, the presumption of continuance 
 of the original illicit relation gives way to the superior presump- 
 tion in favor of compliance with the ' requirements of law and of 
 morality and decency.*^ 
 
 § 397. Payment — Presumption Of, From Lapse of Time. 
 After the lapse of twenty years all debts, no matter how solemn 
 may be the instruments on which they are based; whether spe- 
 cialties, mortgages, judgments or other claims not within the 
 statute of limitations, are presumed to be paid.** This is a rule 
 of convenience and policy resulting from a necessary regard for 
 the peace and security of society and also for the debtor, who 
 should not be called upon to defend stale claims at a time when 
 witnesses are dead and papers lost, destroyed or discarded as 
 useless.*^ 
 
 "Reynolds v. Casualty Co., 30 Pa. 204; Patterson's Estate, 237 
 
 Super. 456. Pa. 24. 
 
 '8Com. V. Stump, S3 Pa- 132; ssThewlis's Estate, 217 Pa. 307. 
 
 Yardley's Estate, 73 Pa. 207; 8«Bickley v. Richards, 13 S. & R. 
 
 Hunt's Appeal, 86 Pa. 294; Read- 394; Foulke v. Brown, 2 Watts 
 
 ing Fire Co.'s Appeal, 113 Pa. 204; 209; Peter's Appeal, 106 Pa. 340; 
 
 Strauss Estate, 168 Pa. 561. Lash v. Von Neida, 109 Pa. 207; 
 
 ♦"Hillv. Hill, 32 Pa. Sli; Hunt's Gregory v. Com., 121 Pa. 6n ; 
 
 Appeal, 86 Pa. 294. Br'eneman's Appeal, I2i Pa. 641 ; 
 
 8»Greenawalt v. McEnelley, 85 Hummel v. Lilly, 188 Pa. 463. 
 
 Pa. 3S2. »°Foulke v. Brown, 2 Watts 209; 
 
 »iCom. V. Stump, 53 Pa. 132. Eby v. Eby, 5 Pa. 435; Miller v. 
 
 s^Hunt's Appeal, 86 Pa. 294; Overseers, 17 Super. 159. 
 Reading Fire Ins. Co.'s Appeal, 113 
 
PRESUMPTIONS. 359 
 
 Unlike the statute of limitations, the presumption does not bar 
 the debt. It is merely a rule of evidence affecting the burden of 
 proof, and therefore no new promise is required as the basis of 
 a suit.^^ Within twenty years the burden of proof is on the 
 debtor; after that time it shifts to the creditor.*^ The presump- 
 tion affects the commonwealth as well as individuals.** 
 
 While the presumption of payment is conclusive evidence of 
 payment until rebutted, any competent evidence tending to show 
 the debt is not in fact paid will be received for that purpose.*' But 
 the evidence should be clear and convincing, especially if suit is 
 not brought until after the death of the debtor,"" though it need 
 not be of the same quality as is required to remove the bar of 
 the statute of limitations.''- The presumption gathers strength 
 as time advances, and after an additional period of years it can- 
 not be overcome by anything short of clear proof. '^ The testi- 
 mony of the plaintiff alone that the debt has not been paid is 
 sufficient if positive and uncontradicted,'^ but not where the debt 
 was in the form of a judgment of a justice of the peace and there 
 was no proof that it was not paid to the justice.'* Proof of the 
 poverty and insolvency of the debtor, if shown to have existed dur- 
 ing the whole of the period of twenty years, is sufficient to rebut 
 the presumption,'^ but not proof of insolvency alone or that dur- 
 ing only a part of that time the debtor was unable to meet his 
 obligations. '° If payments on account have been made within 
 
 8«Eby V. Eby, S Pa. 435. Pa. 312; Hummell v. Lilly, 16 
 
 8'Foulk V. Brown, 2 Watts 209; Super. 327. 
 
 Reed v. Reed, 46 Pa. 239; Titusville "iFoulke v. Brown, 2 Watts 209; 
 
 Bank v. Thompson, 44 Super. 200. Devereux's Estate, 184 Pa. 529. 
 
 ssMellon's Appeal, 114 Pa. 564; '^peter's Appeal, 106 Pa. 340; 
 Stewart's Estate, 147 Pa. 383; Gregory v. Com., 121 Pa. 611; Can- 
 Ash's Estate, 202 Pa. 522. non v. Hileman, 229 Pa. 414; 
 
 s^'Reed v. Reed, 46 Pa. 239; Geiger's Estate, 14 Super. 523; 
 
 Phila. Trust Co. v. Railroad, 160 Miller v. Overseers, 17 .Super. 159. 
 
 Pa. 590; O'Hara v. Corr, 210 Pa. "^Titusville Bank v. Thompson, 
 
 341 ; Richards v. Walp, 221 Pa. 412. 44 Super. 200. 
 
 And admission of the debt is com- "^Miller v. Overseers, 17 Super, 
 
 petent, though accompanied by a re- 159. 
 
 fusal to pay : Gregory v. Com,, 121 "'Taylor v. Megargee, 2 Pa. 225 ; 
 
 Pa. 611; Porter v. Nelson, 121 Pa. Kline v. Khne, 20 Pa. 503; Guillou 
 
 628. V. Redfield, 205 Pa. 293; Deve- 
 
 '"Gregory v. Com., 121 Pa. 611; reux's Estate, 184 Pa. 429. 
 
 Fidelity Trust Co. v. Chapman, 226 ""Devereux's Estate, 184 Pa. 429; 
 
 Guillou V. Redfield, 205 Pa. 293. 
 
360. PENNSYLVANIA TRIAL KVIDlJNCE. 
 
 twenty years the presumption is rebutted,"' but credits endorsed 
 on the writing are not sufficient unless proved to have been made 
 within the twenty years when it was against the interest of the 
 creditor."* Frequent demands for payment, without denial of lia- 
 bility by the debtor, is evidence of the continued existence of the 
 debt."" If reasons are shown for delay, no presumption arises.^"" 
 
 A legal presumption of payment does not arise before the ex- 
 piration of twenty years, though a shorter period, if accompanied 
 by proof of persuasive circumstances tending to support the pre- 
 sumption, may be submitted to the jury as a basis for inferring 
 payment as a matter of fact.^ Thus evidence by the debtor that 
 he was able to pay and that on the other hand the creditor was 
 constantly pressed for money, might justify a presumption of 
 payment before the expiration of twenty years. But the mere 
 fact that the debtor was able to pay would be insufficient.^ 
 
 Whether or not the facts and circumstances relied on would, 
 if true, be sufficient to rebut the presumption of payment, is a 
 question of law for the court. But whether such facts and cir- 
 cumstances are true, is for the jury.^ 
 
 § 398. Performance of Duty;— Due Care. At common law 
 there is a presumption that every person does his duty and in ab- 
 sence of all evidence it will be presumed that a person did all that 
 the law required of him in the way of care and caution in per- 
 forming a particular act.* The natural instincts of self-preserva- 
 tion are also the highest motives for care in reasonable beings, and 
 are therefore permitted to stand as proof that due care was exer- 
 cised in a given case involving danger of personal injury, until 
 the contrary is shown.' But before a case is entitled to go to 
 
 "^Kitchen V. Deardoff, 2 Pa. 481 ; Devereux's Estate, 184 Pa. 429; 
 
 Darlington's Appropriation, 13 Pa. Brownell v. Oviatt, 215 Pa. 514. 
 
 430. ^Morrison v. Collins, 127 Pa. 28. 
 
 "i^Lash V. Von Neida, 109 Pa. 207 ; "Gregory v. Com., 121 Pa. 611; 
 
 Runner's Appeal, 121 Pa. 649; Titusville Bank v. Thompson, 44 
 
 Hart V. Bucher, 182 Pa. 604. Super. 200. 
 
 ""McDowell V. McCullough, 17 S. ♦Penna. Railroad v. Weber, 76 
 
 & R. 51; Stout V. Levan, 3 Pa. Pa. 157; Longenecker v. Railroad, 
 
 23s; Reed V. Reed, 46 Pa. 239; 105 Pa. 328; Rice v. Jackson, 171 
 
 Miller v. Overseers, 17 Super. 159. Pa. 8g. This also applies to acts of 
 
 '""Foulke V. Brown, 2 Watts 209. public officers: Murphy v. Chase, 
 
 'Webb V. Dean, 21 Pa. 29; 103 Pa. 269. See § 399. 
 
 Hughes V. Hughes, 54 Pa. 240; =Allen v. Willard, 57 Pa. 374; 
 
 Woodward v. Carson, 208 Pa. 144; Cleveland, etc. Railroad v. Rowan, 
 
 Sleltzer v. Steltzer, 10 Super. 310; 66 Pa. 393. 
 
PRESUMPTIONS. 361 
 
 the jury in reliance upon such presumption, there must be proof 
 that the other party to the transaction was negligent, since in ab- 
 sence of such proof to overcome the presumption that he also 
 exercised due care, the presumptions are evenly balanced and it 
 leaves the case without any evidence for the jury to consider." 
 
 When a person is killed at a railroad crossing and there are no 
 eye witnesses to the accident, it will be presumed that the deceased 
 stopped, looked and listened before attempting to cross.' But if 
 it appears from the circumstances of the accident that if he had 
 looked he must have seen the approaching train, a presumption 
 that he did not stop arises, which rebuts the presumption of due 
 care.* The fact that the deceased did not stop at the only place 
 where he could have seen the approaching train, is also sufficient 
 to rebut the presumption that he exercised due care.' But the 
 mere fact that witnesses testify they saw the deceased approach 
 a crossing without stopping, is insufficient if none of them testify 
 they saw him continuously as he approached.^" 
 
 The law presumes that the presence of a person on a railroad 
 track at a crossing of a public highway was for the lawful pur- 
 pose of crossing the railroad. But this presumption does not 
 extend to other parts of the railroad not open to public travel. ^^ 
 
 § 399. Regularity of Public Acts, Proceedings, Records and 
 Documents. Whenever a judicial or official act is performed by a 
 public officer, the maxim omnia prassumuntur rite essa acta ap- 
 plies.'^ This extends to public state officers of all kinds,'' to acts 
 
 «Allen V. Coal Co., 212 Pa. 54; '^Philadelphia v. Com., 52 Pa. 
 
 Mulvaney v. Railway, 213 Pa. 343; 451; Safe Deposit Co. v. Schuylkill 
 
 Hanna v. Railway, 213 Pa. 157; Co., 190 Pa. 188; Houseman v. 
 
 Unger v. Railway, 217 Pa. 106. Navigation Co., 214 Pa. 552. The 
 
 'Weiss V. Railroad, 79 Pa. 387 ; presumption does not apply how- 
 
 Schum V. Railroad, 107 Pa. 8; ever to proceedings of a constable 
 
 Blauvelt \. Railroad, 206 Pa. 141; under a landlord's warrant, as he 
 
 Hugo v. Railroad, 238 Pa. 594. acts as agent of the landlord and 
 
 ^Howard v. Railroad, 219 Pa. not as a public officer : Ramsdell v. 
 
 3S8; Hamilton v. Railroad, 227 Pa. Seybert, 27 Super. 133. 
 
 137. i*Gram's Appeal, 4 Watts 43; 
 
 "Kinter v. Railroad, 204 Pa. 497. Cathcart v. Com., 37 Pa. 108; 
 
 '"Patterson v. Railroad, 210 Pa. Springbrook Road, 64 Pa. 451; 
 
 47; Hanna v. Railroad, 213 Pa. Com. v. Kocher, 23 Super. 65. 
 
 157. There is an exception to this rule 
 
 I'Welsh V. Railroad, 181 Pa. 461. in the case of a record of convic- 
 
 i^Ormsby v. Ihmsen, 34 Pa. 462; 
 Mansel v. Nicely, 17s Pa. 367. 
 
362 PENNSYLVANIA TRIAL EVIDENCE. 
 
 and proceedings before all courts, whether they be of record" or 
 not of record/" and to registers of wills.'" 
 
 On appeal, in absence of anything appearing in the record to 
 the contrary, every intendment of fact will be made in support 
 of the judgment of the lower court and the regularity of the pro- 
 ceedings therein,^' including proceedings of courts of another 
 state,'* and it will be presumed that no fact was submitted to the 
 jury without evidence of its existence.'' Judicial sales are pre- 
 sumed to be fair and regular and to have been conducted accord- 
 ing to law,^° and a sheriff's deeds in pursuance thereof properly 
 executed.^' 
 
 Public records and documents are presumed to be correct, of 
 proper origin, and validly executed^^ and if any alterations ap- 
 pear therein, it will be presumed they were made before execution 
 or were mere clerical mistakes and corrected as soon as made.^^ 
 
 § 400. Ees Ipsa Loquitur. While the general rule is that neg- 
 ligence will not be presumed but must be proved, there are cases 
 in which a presumption or inference of negligence arises from the 
 circumstances under which an injury occurred and in which the 
 maxim res ipsa loquitur will be applied, thus throwing upon the 
 defendant the burden of proving his freedom from fault. This 
 maxim applies only to two classes of cases; first, where there is 
 an absolute duty or obligation practically amounting to that of 
 insurer on the part of the defendant toward the plaintiff; and 
 second, where the circumstances are free from dispute and show 
 that the thing which caused the injury was under the exclusive 
 control and management of the defendant and the accident was 
 such that in the ordinary course of experience would not have 
 happened if proper care had been used, and cannot be accounted 
 for on any other theory except that of negligence.^* 
 
 tion in a capital case : Johnson v. -"Craig's Admr., Tj Pa. 448. 
 
 Com., IIS Pa. 369. ^iBai-tholomew's Church v. 
 
 '"Hershey V, Mylin, 18 Lane. 172; Wood, 80 Pa. 219. 
 
 Van Gorder v. Lee, 25 C. C. 239; 22Robb v. Ankeny, 4 W. & S. 128; 
 
 Ohio V. Hinchman, 27 Pa. 479. Birmingham v. Anderson, 40 Pa. 
 
 i^Failor's Estate, 10 Super. 253. 506. See §214, 229. 
 
 ''Pittsburgh v. Maxwell, 179 Pa. "sXander v. Com., 102 Pa. 434; 
 
 SS3; Com. v. Roth, 8 Super. 220; Specht v. Sipe, 15 Super. 207. See 
 
 Sweeney's License, 11 Super. 569. J 200. 
 
 isRipple V. Ripple, I Rawle 386; =*Shafer v. Lacock, 168 Pa. 497; 
 
 Morgan v. Neville, 74 Pa. 52. East End Oil Co. v. Torpedo Co., 
 
 '"Kidder v. Boom Co., 24 Pa. 190 Pa. 350; Aument v. Tel. Co., 
 
 193- 28 Super. 610. 
 
PRESUMPTIONS. 363 
 
 The first class of cases includes those where a carrier under- 
 takes, in consideration of the fare charged, to safely transport 
 the passenger to his destination and thereby undertakes and is 
 bound to furnish proper and safe conveyances and competent 
 servants. In such case, if an injury to a passenger occurs as a 
 result of some defect in, or something done or' not done in con- 
 nection with, the means of trai-\sportation or their operation, there 
 arises a presumption of negligence which puts upon the carrier 
 the burden of showing the injury was not due to any fault of 
 his.-" The rule is founded not only on the duty of the carrier 
 to carry safely, but also on the fact that the passenger is usually 
 ignorant of the machinery and appliances and their defects, and 
 is therefore obliged to rely entirely on the carrier and its agents 
 for his safety.^^ This reason for the rule extends it to all cases 
 where human beings submit their bodies to the control of persons 
 engaged in employments wherein the lives or limbs of such third 
 persons are put in danger. ^^ The presumption is limited, however, 
 to cases, where the cause of the accident does not appear and is 
 not known,^* but has some connection with the appliances, ma- 
 chinery, instrumentalities of transportation, or the method of 
 operating them.^' Nor does it arise from the mere fact of in- 
 
 ^''Laing V. Colder, 8 Pa. 479 ; public elevator : Fox v. Phila., 208 
 
 Meier v. Railroad, 64 Pa. 225 ; Pa. 127. 
 
 Fleming v. Railroad, 158 Pa. 130; ^^Penna. Railroad Co. v. Mac- 
 Palmer V. Railroad, 206 Pa. 574- Kinney, 124 Pa. 462; Farley v. 
 The defect need not have been in Traction Co., 132 Pa. 58; Keller v. 
 the car in which plaintiff was rid- Railway, 149 Pa. 65. 
 ing, but may have been in another ^epemja. Railroad v. MacKinney, 
 of defendant's cars which ran into 124 Pa. 462; Hertine v. Railroad, 
 it: Palmer v. Railroad, 206 Pa. 574. 151 Pa. 244; Fleming v. Railroad, 
 The presumption arises not only 158 Pa. 130. No presumption of 
 where injury is caused by acci- negligence arises where the injury 
 dent or defect in the means of was received by a passenger while 
 transportation, but also where the stepping from the car into a de- 
 carrier fails to give an account of pression in the street: Rist v. 
 the loss of goods: Penna. Railroad Transit Co., 236 Pa. 218; or was 
 V Miller, 87 Pa. 395 ; or where an caused by an employee allowing 
 accident was due to a defect in the cars to bump together with unnec- 
 track : McCafiferty v. Railroad, 193 essary force while coupling them : 
 Pa. 339; or to a sudden stop of the Hertine v. Railroad Co., 151 Pa. 
 car: Tilton v. Transit Co., 231 Pa. 244; or by a rock rolling down 
 63. from a mountain side and striking 
 28F0X V. Phila., 208 Pa. 127. the train : Fleming v. Railroad, 158 
 ^'The rule has been applied to a Pa. 130; or by some flying missile 
 
364 
 
 PDNNSYI^VANIA TRIAL EVIDENCE. 
 
 jury, but from the cause of the injury or the circumstances at- 
 tending it."" The plaintiff must therefore prove facts and cir- 
 cumstances from which a connection between the accident and 
 injury may reasonably be inferred.'^ 
 
 In the second class of cases, where the duty is not absolute but 
 arises in the ordinary course of business, it must appear that the 
 thing which caused the accident was under the exclusive manage- 
 ment of the defendant, that all the elements of the occurrence 
 were within his control, and that the result was so far out of the 
 usual course that there is no fair inference that it could have been 
 produced by any other cause than negligence. If there is any 
 other cause apparent and to which the injury may reasonably be 
 attributed, the inference of negligence cannot be drawn."- The 
 
 outside of the car : Penna. Rail- 
 road V. MacKinney, 124 Pa. 462; 
 Ginn V. Railroad, 220 Pa. 552; or 
 by the act of other passengers in 
 opening a door : Graeff v. Railroad, 
 161 Pa. 230; or crowding plaintiff 
 off the platform : Dennis v. Rail- 
 way, l6s Pa. 624; or where the in- 
 jury was due to a collision between 
 the car and a wagon not under con- 
 trol of defendant : Blew v. Transit 
 Co., 227 Pa. 319; or from the fact 
 that steps of a car were coated 
 with ice and slippery : Sutton v. 
 Railroad, 230 Pa. 523 ; nor does it 
 apply to one who holds a reduced 
 rate ticket in which he agrees to as- 
 sume all risk of accident: Crary v. 
 Railroad, 203 Pa. 525; or where a 
 passenger who was standing on an 
 open summer car, was swung out- 
 side of the rail by a sudden lurch- 
 ing of the car and was struck by 
 another car going in the opposite 
 direction ; Cline \ . Railway, 226 Pa. 
 586. 
 
 ^"Penna. Railroad v. MacKinney, 
 124 Pa. 462, 
 
 "'Trout V. Turnpike Road, 216 
 Pa. 119; Green v, Railway, 219 Pa. 
 241. 
 
 »2East End Oil Co. v. Torpedo 
 Co., rgo Pa. 350; Allen v. Coal Co., 
 
 212 Pa. 54; McCoy v. Gas Co., 213 
 Pa. 367; Grant v. Railroad, 215 
 Pa. 265 ; Rocap v. Tel. Co., 230 
 Pa. 597. The maxim has been ap- 
 plied where the driver of wagon in 
 the rear of a car was injured by 
 backing of the car caused by an- 
 other car ahead of it running back- 
 ward down hill after its pole had 
 slipped from the wire : Campbell v. 
 Traction Co., 201 Pa. 167; where 
 passenger was injured by starting 
 of the car alleged to have been due 
 to signal given by another pas- 
 senger : Cahill v. Transit Co., 52 
 Super. 561 ; where a pad was left 
 in the body of a patient following 
 an operation : Davis v. Kerr, 239 
 Pa. 351 ; to the explosion of an un- 
 derground gas pipe where defend- 
 ant did not turn off the flow of 
 gas while the pipe was being re- 
 paired by plaintiff: McCoy v. Gas 
 Co., 213 Pa. 367 ; to injury received 
 while using an electric light in the 
 ordinary way : Alexander v. Light 
 Co., 209 Pa. 571 ; Crowe v. Light 
 Co., 209 Pa. 580; to fire caused by 
 sparks from a fire pot used in re- 
 pairing a roof : Shafer v. Lacock, 
 168 Pa. 497; to the fall of an arti- 
 cle from a building on a person 
 passing along the street : Ahem v. 
 
PRESUMPTIONS. 
 
 36s 
 
 general trend of decisions under tliis class seems to require some 
 slight evidence of negligence in addition to the circumstances of 
 the accident itself or some contractual relation between plaintifif 
 and defendant, in order to warrant the inference of negligence.'' 
 
 The presumption arising in the cases above described is not 
 one of law but of fact only, and even though the defendant fails 
 to offer any evidence, the court cannot direct a verdict for the 
 plaintiff but must submit the case to the jury, whose province it 
 is to say whether they will infer or presume negligence from the 
 circumstances shown.'* But when a presumption has once been 
 drawn by them it stands until overcome by proof, and whether 
 it is overcome is exclusively for them to say.'^ In such case the 
 burden cast on the defendant is not to satisfactorily account for 
 the accident, but merely to show that he used due care.'" 
 
 No presumption of negligence arises from the happening of 
 an accident, as between an employer and employee." 
 
 Melvin, 21 Super. 462; or on one 
 lawfully on defendant's premises : 
 Booth V. Dorsey, 208 Pa. 276; but 
 compare Huey v. Gahlenback, 121 
 Pa. 238, where plaintifif could not 
 see what struck him ; and see the 
 language of the court in Zercher 
 V. Transit Co., 50 Super. 324, on 
 page 326. 
 
 The courts have refused to apply 
 the maxim to the fall of a trolley 
 pole from a car as it was passing 
 along the street : Zercher v. Transit 
 Co., so Super, 324; or where it is 
 merely shown that sparks from a 
 locomotive set fire to plaintiff's 
 property : Hancock Ice Co. v. Rail- 
 road, 224 Pa. 74 f or the fall of an 
 overhead wire : Aument v. Tele- 
 phone Co., 28 Super. 610; Patter- 
 son Coal Co. V. Railway, 37 Super. 
 212; Lanning v. Railroad, 229 Pa. 
 57S ; or to damages caused by 
 shooting an oil well: East End Oil 
 Co. V. Torpedo Co., 190 Pa. 350 ; or 
 to injuries caused by an axe which 
 fiew oflf its handle while being used 
 by a workman : Stearns v. Spin- 
 
 ning Co., 184 Pa. 519. Not decided 
 whether the maxim would apply 
 where the injury was caused by 
 electric shock received while using 
 a telephone in the usual manner : 
 Pocap V. Telephone Co., 230 Pa. 
 597- 
 
 33Kepner v. Traction Co., 183 Pa. 
 24; Zercher v. Transit Co., 50 
 Super. 324. 
 
 3*East End Oil Co. v. Torpedo 
 Co., 190 Pa. 350. 
 
 ^^Kane v. Phila., 196 Pa. 502; 
 Penna. Railroad v. Weiss, 87 Pa. 
 447 ; McCafferty v. Railroad, 193 
 
 Pa. 339- 
 "•^Stearns v. Spining Co., 184 Pa. 
 
 519- 
 
 ^'Wojciechowski v. Sugar Co., 
 177 Pa. 57; Hjggins v. Fanning Co., 
 195 Pa. 599; Price v. Railroad, 202 
 Pa. 176; Marsh v. Railroad, 206 
 Pa. 558; Leonard v. Cement Co., 
 49 Super. 535. But such presump- 
 tion was allowed in McCoy v. Gas 
 Co., 213 Pa. 367, where the distinc- 
 tion established by the earlier cases 
 was apparently overlooked. 
 
366 PENNSYLVANIA TRIAL EVIDENCi;. 
 
 § 401. Sanity. The law presumes every person to be of sound 
 mind until the contrary is shown by fairly preponderating evi- 
 dence.^' But when insanity has once been established, it is pre- 
 sumed to continue until proof to the contrary is given.'" 
 
 § 402, Wages of Servant — Payment Of. Wages for domestic 
 service are' presumed to be paid regularly at such intervals as 
 is customary for payment for such services in the community.*" 
 This presumption gathers strength as each period of payment 
 passes,*^ and is especially strong where no payment has been 
 made until the servant has left the employment.''^ In such case 
 it will be presumed either that the wages were paid or that the 
 services were rendered without expectation of payment." 
 
 It is the character of the services rendered and not the term 
 applied to the servant that determines whether or not a case is 
 within the rule relating to presumption of payment." A house- 
 keeper has been held within the rule/^ but not where her em- 
 ployer assumed intimate relations with her and indicated by 
 his conduct that he intended to marry her/° or where the claim is 
 by a married woman for services rendered a boarder while sick.*^ 
 
 s^Lynch v. Com., ' 77 Pa. 205; *°Carpenter v. Hays, 153 Pa. 432; 
 
 Com. V. Gerade, 145 Pa. 289; Coyle Taylor v. Beatty, 202 Pa. 120. 
 V Com., 100 Pa. 573; Com. v. ^^Gregory v. Com., 121 Pa. 611. 
 
 Heidler, 191 Pa. 375 ; Com v. ^^Carpenter v. Hays, 153 Pa. 432. 
 
 Earner, 199 Pa. 335 ; Com. v. Gear- "SMcConnell's Appeal, 79 Pa. 31 ; 
 
 hardt, 205 Pa. 387 ; Com. v. Kil- Houck v. Houck, 99 Pa. 552. 
 Patrick, 204 Pa. 218. For burden of **Taylor v. Beatty, 202 Pa. 120; 
 
 proof where insanity is set up as a Schrader v. Beatty, 206 Pa. 184. 
 defense in a criminal proceeding, ^sfayfor v. Beatty, '202 Pa. 120. 
 
 see § 420. Schrader v. Beatty, 206 Pa. 184. 
 
 2^See § 38s, notes 13 and 14. See Ranninger's Appeal, 118 Pa. 20. 
 
 *^L,ewis's Estate, 156 Pa. 337. 
 
PRIVILEGED COMMUNICATIONS. 367 
 
 CHAPTER XV. 
 
 PRIVILEGED COMMUNICATIONS. 
 
 § 403. General principles. 
 
 404. Arbitrators. 
 
 405. Attorneys. 
 
 406. Agent — Attorney acting as. 
 
 407. Collateral matters. 
 
 408. Law student. 
 
 409. Publicly disclosed matters. 
 
 410. Two or more clients. 
 
 411. Husband and wife. 
 
 412. Jurors. 
 
 413. Physicians. 
 
 414. State secrets. 
 
 415. Trade secrets. 
 
 § 403. General Principles. Privileged communications, from 
 the standpoint of evidence, are also frequently termed confidential 
 communications, and include communications between persons 
 occupying such confidential relation to each other that the law, 
 from considerations of public policy, does not require the re- 
 cipient to disclose the inforniation thus received. The rule ap- 
 plies most frequently to the subject matter concerning which the 
 witness is questioned, but sometimes operates to exclude the wit- 
 ness himself, as where a husband or wife is called to testify against 
 the other. There are certain other cases where the rule is ap- 
 plied to information obtained by certain persons by virtue of their 
 office or while acting in certain capacities, such as judges, arbi- 
 trators, jurors, and state officials. Such persons will not be com- 
 pelled to disclose matters which might be prejudicial to the pub- 
 lic welfare. 
 
 Where the competency of evidence is challenged on the ground 
 of privilege, the circumstance under which the communications 
 were made or the acts done should be shown by a preliminary 
 examination, so that the court may decide whether or not they 
 come within the rule of privilege.^ If it does not appear from 
 the offer or from the preliminary examination that the evidence 
 is incompetent, it will be admitted and if it subsequently appears to 
 
 ijeanes v. Fridenburg, 3 Clark 
 199- 
 
368 PENNSYLVANIA TRIAL EVIDENCE. 
 
 be privileged a motion should be made to strike it out. " The 
 court is not bound to do so on its own motion. - 
 
 § 404. Arbitrators. Arbitrators are not competent to give 
 evidence of their own misconduct.'' But they may testify to facts 
 that come under their notice during the progress of the hearing,"* 
 or that their proceedings were without authority and without 
 notice,^ or explain the award or show what was the actual ques- 
 tion in dispute before them." While it seems to be an open ques- 
 tion whether the witness may be compelled to testify in such 
 cases, if the witness himself makes no objection to being called, 
 the parties have no standing to complain.' 
 
 § 405. Attorneys. Confidential communications made by a 
 person to his attorney in, the course of the latter's professional 
 employment, may not be disclosed by the attorney, nor may the 
 client be compelled to disclose the same unless in either case the 
 privilege is waived by the client.'' 
 
 Prima facia, all professional communications are privileged 
 and the burden is on one who alleges a particular case is an ex- 
 ception to the general rule, to prove it." But it must first be 
 shown that the relation of attorney and client existed.^" It is not 
 necessary that there should be a judicial proceeding actually pend- 
 ing or even contemplated. It is enough that the matter may be- 
 come the subject of judicial inquiry," or that the attorney was 
 consulted professionally and acted or advised as such.^- And so 
 long as they relate to the matter about which the client has con- 
 
 -Brown v. Coal Co., 211 Pa. 579. t^on and its production cannot be 
 
 'Ellmaker v. Buckley, 16 S. & R. compelled by plaintiff under a bill 
 
 72. of discovery : Davenport Co. v. 
 
 *Graham v. Graham, g Pa. 254. Railroad, 166 Pa. 480; nor may an 
 
 ^Perit v. Cohen, 4 Whart. 81. attorney be compelled to disclose 
 
 "Roop v. Brubacker, i Rawie 304; whether a suit brought by his client 
 
 Converse v. Colton, 49 Pa. 346. was brought as trustee for another 
 
 ''Graham v. Graham. 9 Pa. 254. or for his own benefit : Miller v. 
 
 8Act May 23, 1887, P. L. 158. § ;2. Weeks, 22 Pa. 8g. Commimications 
 
 (d), § 5, (d), re-enacted April 27, between a sheriff and his counsel 
 
 1909, P. L. 180: Kaut \. Kessler, are within the rule: Paxton v. 
 
 114 Pa. 603. Steckel, 2 Pa. 93. 
 
 "Moore v. Bray, 10 Pa. 519. A i°Lyon v. Lyon, 197 Pa. 212. 
 
 report by defendant's agent of a "Moore v. Bray, 10 Pa. 519; 
 
 claim for damages, made after the Beltzhoover v. Blackstock, 3 Watts 
 
 claim was filed and for the purpose 20. 
 
 of being forwarded to the defend- '-Beltzhoover v. Blackstock, 3 
 
 ant's attorney through another Watts 20. 
 
 agent, is a privileged communica- 
 
PRIVILEGED COMMUNICATIONS. 369 
 
 suited the attorney, it is immaterial that the communications were 
 not actually necessary to the conduct of the client's business.^^ 
 
 The privilege applies only to communications made during the 
 continuance of the relation of attorney and client," and not to 
 those made prior to the actual engagement as counsel and w^hile 
 negotiations to that end were pending,'^" or after such relation 
 has ceased.'" Nor does it apply where the rights and interests of 
 the client cannot be injuriously affected by disclosure, as for in- 
 stance, where the client has no interest in the controversy. '' The 
 attorney may also be required to disclose the fact and character 
 of his employment by a certain person'* or the subject matter 
 and object of a suit.'" And if he is a party to a transaction as 
 to which he is asked to testify, communications made by his client 
 are not privileged.-" 
 
 The rule preventing disclosure of confidential communications 
 is not affected by any subsequent change in the relation between 
 counsel and client or by the death of the latter.-' But the right 
 to object to a disclosure thereof belongs to the client and cannot 
 be taken advantage of by third persons even though the client is 
 dead.^- The attorney may, of course, testify on behalf of his 
 client, even in a proceeding where he is engaged as counsel,^''' 
 though in such case the proper course is for the attorney to re- 
 linquish his duty as counsel in favor of another who is not called 
 to testify,-^ and there may be circumstances where the court 
 would prevent an attorney who has testified from addressing the 
 jury.-^ 
 
 § 406. Attorneys — Agent— Attorney Acting As. An attorney 
 who acts merely as agent does not come within the rule of privi- 
 lege.^" A conveyancer is not a legal advisor within the rule,^' 
 
 '^Moore v. Bray, 10 Pa. 519. -^Bowie's Estate, 135 Pa. 210; 
 
 '*Beeson v. Beeson, 9 Pa. 279. Padelford's Estate, igo Pa. 35. 
 
 '^Heaton v. Findlay, 12 Pa. 304. ^appear v. Drinker, 8 Pa. 520; 
 
 '"Turner's Estate, 167 Pa. 609. Bell v. Bell, 12 Pa. 235 ; McLough- 
 
 "Hamilton v. Neel, 7 Watts 517. lin v. Shields, 12 Pa. 283; Johns v. 
 
 '*Beeson v. Beeson, 9 Pa. 279; Bolton, 12 Pa. 339; Follansbee v. 
 
 Seip's Estate, 163 Pa. 423; Sar- Walker, 72 Pa. 228. 
 
 geant v. Johns, 206 Pa. 386. ^*Be\\ v. Bell, 12 Pa. 235 ; Mc- 
 
 "Parce v. Stetson, 2 W. N. C. Loughlin v. Shields, 12 Pa. 283. 
 
 no. 25 Johns V. Bolton, 12 Pa. 339. 
 
 -°Jeanes v. Fridenberg, 3 Clark -"Jeanes v. Fridenberg, 3 Clark 
 
 199. 199; Holmes v. Coniegys, i Dal. 
 
 ■2iHill's Estate, 9 Phila. 355; Ben- 439. 
 
 nett's Estate, 8 W. N. C. 287. "Matthews's Estate, i Phila. 292. 
 24 "^ 
 
37° PliNNSYLVANIA TRIAL EVIDENCE. 
 
 nor is an attorney who acts merely as a scrivener and not in an 
 advisory capacity.^^ 
 
 Communications to an attorney who acts merely as a friend 
 and not in a professional capacity are not privileged.^® 
 
 § 407. Attorneys — Collateral Matters. An attorney is an in- 
 competent witness only as to confidential communications and not 
 concerning other matters affecting his client or which came to his 
 knowledge from an independent source.^" Thus he may testify 
 to his client's mental condition,^' to facts occurring in his pres- 
 ence between his cHents,^^ to the fact of delivery of a document 
 to him by his client'^ and the condition of the document when re- 
 ceived," and to declarations made by the client to third persons.'^ 
 
 The fact that the witness acted as attorney for the party in an- 
 other transaction does not render him incompetent. '° 
 
 § 408. Attorneys — Law Student. Communications made to a 
 law student not yet admitted to practice, even though he was in 
 fact acting as attorney for the person, are not privileged.^' 
 
 § 409. Attorneys — Publicly Disclosed Matters. There can be 
 no claim of privilege as to facts which have already been publicly 
 disclosed by the client. Thus an attorney may be called to prove 
 the subject matter of a prior suit,'* or an agreement made in open 
 court,'" or communications made to public officers with the con- 
 sent of the client.*" 
 
 § 410. Attorneys — Two or More Clients. Where two or more 
 persons employ the same attorney in a controversy with third 
 persons, communications made in reference thereto are privileged 
 as against the common adversary but not as between the parties 
 themselves;" and if the attorney represents opposing parties to 
 
 28Goodwin Gas Stove Co.'s Ap- soSwayne v. Swayne, ig Super, 
 
 peal, 117 Pa. 514. 160. 
 
 ssBeeson v. Beeson, 9 Pa. 279. 37Schubkagel v. Dierstein, 131 Pa. 
 
 ^"Beeson v. Beeson, 9 Pa. 279; aQ 
 
 Levers v. Van Buskirk, 4 Pa. 309; 38Levers v Van Buskirk a Pa 
 Sargeant v. Johns, 206 Pa. 386; isuskirk, 4 Pa. 
 
 Jeanes v. Fridenberg, 3 Clark 199. 
 
 aiDaniel v. Daniel, 39 Pa. 191. '"^^'■"™" ^' ^'''^"' '^^ ^^- ""7- 
 
 '^Weaver's Estate, 28 W. N. C. "^'^'°" "■ ^'''^^^^' '^ ^^- 3°4- 
 
 95. ^iSwayne v. Swayne, ig Super. 
 
 ,,TT n J 1 i T3 '^°; McCune v. Scott, 18 Super. 
 
 asHayes v. Gudykunst, 11 Pa. 221. „,; c • . t^ , ^ ^"pci. 
 
 „,„ ' ' ^ ^ 263; Seip's Estate, 163 Pa. 423; 
 
 "^Turner v. Warren, 160 Pa. 336. Brown v. Coal Co., 211 Pa. 579. 
 ■i=Beidler v. Miller, i Wood. 222. 
 
PRIVILEGED COMMUNICATIONS. 37I 
 
 a controversy, communications made to him by one in tlie pres- 
 ence of the others are not privileged.*^ 
 
 § 411. Husband and Wife. Under the common law rule, re- 
 enacted by statutes in Pennsylvania, confidential communications 
 between husband and wife and facts which have come to their 
 knowledge through the marriage relation cannot be divulged by 
 one without the consent of the other. *^ The rule is based on public 
 policy and with a view to preserve the harmony and confidence of 
 the relationship between husband and wife. But in order to come 
 within the rule, it is essential that the communications should have 
 been made in confidence and with the intention that they should 
 not be divulged. Therefore whether a particular communication 
 is privileged depends upon its nature and character and the cir- 
 cumstances under which it was communicated. Boastful and in- 
 solent declarations of personal misconduct and of intent to per- 
 sist therein, made by a husband to his wife, are not such com- 
 munications as arise from confidence but rather from want of it, 
 and are not privileged.** Nor is the fact of marriage with or 
 without formal ceremony a confidential communication.*" 
 
 The Act of 1887 relates only to cases where the husband and 
 wife are alive and the marital relation continues to exist, and 
 makes no provision for after divorce or death of one of the 
 parties ; hence the situation is governed by the general common 
 law rule that the privilege does not cease upon the happening of 
 such contingency,*" although thereafter they may testify to in- 
 formation derived from other sources and not through the marital 
 
 *^Goodwin Gas Stove Co.'s Ap- trict attorney, are inadmissible 
 
 peal, 117 Pa. 514; Seip's Estate, 163 against him: Com. v. Fisher, 221 
 
 Pa. 423; Hummel v. Kistner, 182 Pa. 538. But information secured 
 
 Pa. 216; Mitchell v. Mitchell, 212 by competent witnesses will not be 
 
 Pa. 62. rejected merely because it was ac- 
 
 *3Hitner's Appeal, 54 Pa. no. quired indirectly through the de- 
 Act May 23, 1887, P. L. 158, § 2, f endant's wife : Com. v. Johnson, 
 (c), and § 5, (b), re-enacted April 213 Pa. 432. 
 27, 1909, P. L. 180. A wife is in- **Seitz v. Seitz, 170 Pa. 71. 
 competent to prove co-habitation ^'Shaak's Estate, 4 Brewst. 305. 
 after execution of separation agree- *^Cornell v. Van Artsdalen, 4 Pa. 
 ment by which she has waived all 364; Brock v. Brock, 116 Pa. 109; 
 interest in her husband's property: Hitner's Appeal, 54 Pa. no. In an 
 Hitner's Appeal, 54 Pa. no. Let- action for criminal conversation by 
 ters dictated by a defendant to a a divorced husband, he may testify 
 fellow prisoner, addressed to his defendant frequently visited his 
 wife and sent to her by mail and home before the divorce was pro- 
 presumably given by her to the dis- cured, but he cannot testify that he 
 
iT^ PENNSy^VANIA TRIAL EVIDENCl'% 
 
 relation."' The disqualification in such case is limited to com- 
 munications of a confidential nature and does not include ordinary 
 business transactions in which others have participated.''* 
 
 § 412. Jurors. Proceedings of a grand jury are privileged 
 on the ground of public policy and therefore they may not be 
 called upon to disclose what took place in the jury room in re- 
 gard to matters acted upon by them so as to impeach their find- 
 ings.*" But this policy of the law does not prevent the disclosure 
 of the name of the prosecutor, even though the indictment be ig- 
 nored,^" or the calling of a juror to prove the testimony of a wit- 
 ness before that body for the purpose of impeaching his credi- 
 bility .'^^ or the disclosure of the fact that a presentment was made 
 by the jury of their own motion on evidence obtained in another 
 case.°^ 
 
 Petit jurors may not give evidence tending to show misconduct 
 on their part or to impeach their verdict."" But they may testify 
 to improper acts of the parties tending to influence the verdict,'" 
 or to facts explanatory thereof, such as the omission of certain 
 items of damage,^" or the fact that it was not based on the merits 
 of the case, but upon a preliminary question of fact submitted 
 to them."" 
 
 The rule which forbids jurors testifying to matters tending to 
 
 remonstrated with his wife con- tency df husband and wife to tes- 
 
 cerning attentions of defendant : tif y generally against each other, 
 
 Ehrhart v. Bear, 51 Super. 39. see §§ 451 and 457. 
 
 ■•^Cornell v. Van Artsdalen, 4 Pa. *»Com. v. Twitchell, I Brewst. 
 
 364; Peiffer v. Lytle, 58 Pa. 386; SSi ; Zeigler v. Com., 22 W. N. C. 
 
 Stephens v. Cotterel, 99 Pa. 188; in; Gordon v. Com., 92 Pa. 216; 
 
 Adams v. Bleakley, 117 Pa. 283; Stull v. Stull, 197 Pa. 243; Com. v. 
 
 Strause v. Braunreuter, 4 Super. BergdoU, 5 Super. 186. 
 
 263; Hood V. Ins. Co., 22 Super. ""Huidekoper v. Cotton, 3 Watts 
 
 244. S6. 
 
 ^sRobb's Appeal, 98 Pa. 501; "'Gordon v. Com., 92 Pa. 216. 
 
 Dumbach v. Bishop, 183 Pa. 602; ^sCom. v. Green, 126 Pa. 531. 
 
 Hood V. Ins. Co., 22 Super. 244; "''Cluggage v. Swan, 4 Bin. 150; 
 
 Ehrhart v. Bear, 51 Super. 39. In White v. White, 5 Rawle 61; Smal- 
 
 distribution of deceased wife's es- Ky v. Morris, 157 Pa. 349; Stull v. 
 
 tate, the husband is competent to Stull, 197 Pa. 243. 
 
 show adultery of his wife so long "Ritchie v. Holbrooke, 7 S. & 
 
 as his testimony does not involve R. 458. 
 
 the disclosure of confidential com- iinHaak v. Breidenbach, 3 S. & R. 
 
 munications : Hayes's Estate, 23 204. 
 
 Super. S70. '"Follansbee v. Walker, 74 Pa. 
 
 For rules relating to the compe- 306. 
 
PRIVILEGED COMMUNICATIONS. 373 
 
 impeach their verdict, also applies to a jury of inquest. °' But it 
 is not applied so strictly in proceedings before viewers to assess 
 land damages, in which case the testimony of a juror may be 
 offered to show error in the basis of assessing damages."* 
 
 § 413. Physicians. At common law a physician was not dis- 
 qualified from testifying to information acquired while attending 
 patients in a professional capacity. This has been changed by 
 Act of June i8, 1895, P. L. 195, which provides that no person 
 authorized to practice physics or surgery shall, without the con- 
 sent of the patient, be allowed in a civil case to disclose informa- 
 tion tending to blacken the character of the patient, acquired in 
 attending him in a professional capacity and which was neces- 
 sary to enable the physician to act in that capacity. This act was 
 amended by the Act of June 7, 1907, P. L. 462, by excepting from 
 its operation the testimony of physicians in civil actions for dam- 
 ages for personal injuries. 
 
 Under the Act of 1895 a deposition of a physician, taken before 
 its passage, may be read in evidence at a trial subsequent to its 
 passage, though the physician, who had died in the meantime, 
 would not have been competent if alive.'''' 
 
 § 414. State Secrets. Neither the governor of the state nor 
 the heads of the various state departments can be compelled to 
 divulge information received by them in their official capacities, 
 if in their own judgment disclosure would, on the ground of pub- 
 lic policy, be inexpedient."" And if such official declines for this 
 reason to produce a document, secondary evidence of its contents 
 will not be received."^ This privilege does not extend to officers 
 of national banks. "- 
 
 § 415. Trade Secrets. A witness will not be compelled to dis- 
 close a trade secret unless it is directly relevant and material to 
 the issue and necessary to protect some right. Thus, in an action 
 for infringing trade marks used to advertise face powder, the 
 plaintiff need not state the composition of the powder."' But 
 on a question whether there was discrimination in the price of 
 coal, the price to other customers is relevant and material, and 
 disclosure thereof cannot be withheld."* 
 
 "Hutchinson v. Sandt, 4 Rawle "iGray v. Pentland, 2 S. & R. 23. 
 
 234; White V. White, 5 Rawle 61; "^gjris's Estate, 25 C. C. 377. 
 
 Snyder's Estate, Wilcox 190. "^fetlow v. Savournai, 11 W. N. 
 
 "'"Patten v. Railroad, i Pears. 48; C. loi. 
 Delaware Street, 3 Kulp 353. "•'Philadelphia v. McManes, 17 
 
 s^Wells V. Ins. Co., 187 Pa. 166. Fhila. 75. 
 
 60 
 
 Hartranft's Appeal, 85 Pa. 433- 
 
374 PENNSYLVANIA TRIAL KVIDENCE. 
 
 CHAPTER XVI. 
 
 TRIAL — MATTERS RELATING TO. 
 
 §416. 
 
 Court and jury— Province of. 
 
 417. 
 
 Harmless error. 
 
 418. 
 
 Objection to evidence. 
 
 419. 
 
 Form of. 
 
 
 Proof. 
 
 420. 
 
 Burden of. 
 
 421. 
 
 Offer of. 
 
 422. 
 
 Purpose of evidence. 
 
 
 Order of. 
 
 423. 
 
 Evidence in chief. 
 
 424. 
 
 Rebuttal. 
 
 425. 
 
 Sur rebuttal. 
 
 426, 
 
 Subsequent to close of case. 
 
 427. 
 
 Sending out with jury. 
 
 428. 
 
 Calculation by parties. 
 
 429. 
 
 Depositions. 
 
 430. 
 
 Pleadings. 
 
 431. 
 
 Testimony — Notes of. 
 
 432. 
 
 Striking out and withdrawing evidence. 
 
 § 416. Court and Jury — Province Of. The general rule is that 
 where there are no facts in dispute or where the party upon whom 
 lies the burden of proving facts in issue and necessary to his case 
 furnishes no evidence thereof, the case must be decided by the 
 court, otherwise it is exclusively for the jury. In applying this rule, 
 there are necessarily cases so near the border line that it becomes 
 a serious question whether or not it falls within the one class or 
 the other. The early English rule in such cases was that if there 
 was a scintilla of evidence the question must be submitted to the 
 jury. But this doctrine is no longer followed either in England 
 or America, the modern rule being that the court is called upon to 
 decide, as a preliminary question of law, whether there is suffi- 
 cient evidence to justify an inference of the disputed fact or to 
 warrant a finding by the jury in favor of the person on whom the 
 burden of proof lies. If there is such evidence, it should be sub- 
 mitted to the jury,^ and may not be withdrawn because the other 
 
 "When there is a question whether that no warning was heard is not 
 warning was given of the approach entitled to any weight as against 
 of a train, mere negative testimony positive testimony of credible wit- 
 
TRIAI, — MATTERS REIvATiNG TO. 
 
 375 
 
 party produces testimony which would warrant a finding in his 
 favor.^ But if the evidence is so weak that the court would be 
 obliged to set aside a verdict based thereon, the case should be 
 withdrawn from them.^ 
 
 § 417. Harmless Error. The appellate court will not reverse 
 for errors in the admission or rejection of evidence which could 
 not have affected the result of the trial and which did not harm 
 the party complaining.* As a general rule it is not sufficient to 
 show that an improper question was asked. An improper answer 
 must also appear.'' If evidence, though incompetent when re- 
 ceived, subsequently becomes competent, its admission is not 
 ground for reversal;" and erroneously permitting a witness to 
 testify to the existence of a writing is cured by subsequently of- 
 fering it in evidence.' If there is other evidence which clearly 
 establishes the facts which incompetent testimony was intended 
 
 nesses that warning was in fact 
 given : Haverstick v. Railroad, 171 
 Pa. loi. But where no positive tes- 
 timony is offered, negative testi- 
 mony is sufficient to take the case 
 to the jury for the purpose of re- 
 butting the presumption of due care 
 on the part of the engineer : Longe- 
 necker v. Railroad, 105 Pa. 328; 
 Haverstick v. Railroad, 171 Pa. loi ; 
 and testimony that the witness was 
 Hstening for signals and would 
 have heard them if given is more 
 than merely negative and cannot be 
 disregarded, notwithstanding posi- 
 tive evidence to the contrary : Quig- 
 ley V. Canal Co., 142 Pa. 388; 
 Unger v. Railroad, 217 Pa. 106; 
 Schwartz v. Railroad, 218 Pa. 187. 
 It is proper for the court to in- 
 struct the jury as to the difference 
 between the two kinds of evidence. 
 Rosevere v. Osceolo Mills, 169 Pa. 
 
 sss- 
 
 2Kelton V. Fifer, 26 Super. 608; 
 Warne v. Johnston, 48 Super. 98 
 If the verdict is against the mani- 
 fest weight of the evidence, the 
 court may grant a new trial, though 
 
 It could not have given binding in- 
 structions : Loucheim v. Henzey, 
 ^^ Pa. 305 ; Gibson v. Railroad, 164 
 Pa. 142. 
 
 ^Howard Express Co. v. Wile, 64 
 Pa. 201 ; Cunningham v. Smith, 70 
 Pa. 450; Hyatt v. Johnston, 91 Pa. 
 196; Longenecker v. Railroad, 105 
 Pa. 328; Brunner v. Telephone Co., 
 151 Pa. 447; Bellman v. Railroad, 
 31 Super. 389. See § 467. 
 
 *Irwin y. Trego, 22 Pa. 368 ; Gal- 
 braith v. Zimmerman, 100 Pa. 374; 
 Vulcanite Paving Co. v. Ruch, 147 
 Pa. 251; Steel v. Glass, 189 Pa. 
 283;' Vanderslice v. Donner, 26 
 Super. 319; Zugsmith v. Rosenblatt, 
 IS Super. 296; McKnight v. New- 
 ell, 207 Pa. 562; Dunham v. Mc- 
 Michael, 214 Pa. 485. 
 
 sPhelin v. Kenderdine, 20 Pa. 354 ; 
 Com. V. Craig, 19 Super. 81 ; Com. 
 v. Miller, 31 Super. 317; Kaylor v. 
 Railroad, 216 Pa. 134. 
 
 ^Taylor v. Com., 109 Pa. 262; 
 Ernest v. Wible, 10 Super. 576; 
 Com. V. Mellet, 27 Super. 41. 
 
 ^Van Horn v, Dick, 151 Pa. 341. 
 
376 PENNSYLVANIA TRIAL EVIDENCE. 
 
 to prove,* or if such facts are admitted," the error in its admission 
 is harmless. 
 
 Incompetent testimony which is promptly stricken out and not 
 further referred to, is not sufficient cause for reversal or for con- 
 tinuance"" unless the tendency of such evidence is to draw the 
 minds of the jurors from the point in issue or to excite, prejudice 
 or mislead them," in which case the mere fact that sufficient com- 
 petent evidence was given on the trial to sustain the verdict will 
 not cure the admission of the improper testimony, since the ap- 
 pellate court cannot determine how much effect was given the lat- 
 ter by the jury or whether the verdict was wholly based upon 
 it.^- 
 
 Improper exclusion of evidence is harmless where it was sub- 
 sequently offered and admitted,''^ or the facts which it was offered 
 to prove are admitted," or are clearly proved by other evidence,^" 
 or the evidence excluded was merely cumulative on an imma- 
 terial point."' And refusal to allow full cross-examination is 
 cured by the party subsequently calling the witness and examining 
 him in reference thereto. '' 
 
 An improper ruling on evidence may be cured by the action 
 of the court in directing a verdict,^* or instructing the jury,^' or by 
 the verdict of the jury.^° Error induced by the party complain- 
 ing is not ground for reversal. ^'^ 
 
 *Robbins v. Farwell, 193 Pa. 37. '^ Powell v. Derickson, 178 Pa. 
 
 "Keystone Cycle Co. v. Jones, 12 612; Ernest v. Wible, 10 Super. 
 
 Super. 134. 576. 
 
 I'Mitchell V. Edeburn, 37 Super. i" Allen v. Line, 11 Super. 517. 
 
 223, ^'Hastings v. Speer, 15 Super. 
 
 I'Rausch V. Miller, 68 Pa. 234; 115; Hicks v. Harbinson-Walker 
 
 Roland v. Eckman, 12 Super. 76; Co., 212 Pa. 437. 
 
 Colonial Trust Co. v. Getz, 28 i^Nachtman v. Hammer, 155 Pa. 
 
 Super. 619. 200. 
 
 i^Grier v. Boro., 6" Super. 542. i»Philadelphia and Reading Rail- 
 
 "Collins V. Houston, 138 Pa. road v. Anderson, 94 Pa. 351 ; 
 
 481 ; Nesbitt v. Turner, 155 Pa. Seeley v. Garey, 109 Pa. 301 ; 
 
 429; Cora. V. Bezek, 168 Pa. 603? Ernest v. Wible, 10 Super. 576; 
 
 Spotts V. Spotts, 4 Super. 448; Ja- Closser v. Twp., 11 Super. 112; 
 
 coby V. Ins. Co., 10 Super. 171; Beard v. Heck, 13 Super. 390; 
 
 Com. V. Little, 12 Super. 636; Fitz- Sheehan v. Rosen, 12 Super. 298; 
 
 Patrick v. Traction Co., 206 Pa. McGunnigle v. Railroad, 213 Pa. 
 
 335; Com. v, Danz, 211 Pa. 507; 383. 
 
 Laubaugh v. Railroad, 28 Super. ^"Bernstein v. Ernst, 194 Pa. 432, 
 
 247' -'Merriman v. McManus, 102 Pa. 
 
 '■•Moore v. Everitt, 20 Super. 13. 102; American Ice Co. v. McAden, 
 
TRIAL, — MATTERS REIvATING TO. 377 
 
 § 418. Objection to Evidence. Mere technical objections are 
 not favored by the courts. ^^ When proper, objections must be 
 made at the time the evidence is offered, and for reasons then 
 existing.-^ If a party has at the time no knowledge of facts ren- 
 dering the evidence incompetent, but subsequently discovers such 
 facts, he should move to strike out the evidence and in absence 
 of such motion its admission is not ground for reversal.^* But 
 the fact that a portion of irrelevant testimony has been admitted 
 without objection is, no reason for admitting the balance after ob- 
 jection is made.-^ 
 
 \\'hen relevant testimony is received, a subsequent objection 
 to informalities in presenting it will not be sustained;-" and if a 
 document containing an interlineation is admitted without objec- 
 tion, the appellate court will assume that the complaining party 
 had opportunity to examine it or was satisfied to admit it without 
 explanation.-^ But the mere fact that a paper was admitted at a 
 former trial without objection, does not render it admissible at a 
 second trial, if it is in fact incompetent.-* 
 
 A party will not be permitted to offer evidence to sustain his 
 objection. -'' 
 
 § 419. Objection to Evidence — Form Of. The party objecting 
 to evidence should state the reason therefor, and if he fails to 
 do so but objects generally, the admission of the evidence is not 
 ground for reversal, if it is relevant for any purpose whatever.^" 
 Likewise, if part of the testimony offered is admissible and part 
 inadmissible, a general objection to it as a whole will not be sus- 
 
 109 Pa. 399; Rees v. Schuylkill 29;y^Qore v. Pearson, 6 W. & S. 
 
 River Co., 13S Pa. 629; Perkiomen 51. 
 
 Brick Co. v. Dyer, 187 Pa. 470. ^o^iuikgn y g^rr, 7 Pa. 23; Fit- 
 
 --Jessup V. Loucks, 55 Pa. 351. ler v. Eyre, 14 Pa. 392; CuUum v. 
 
 23Jackson v. Gunton, 26 Super. Wagstaff, 48 Pa. 300; Garsed v. 
 
 203. Turner, 71 Pa. 56. This rule ap- 
 
 2*Lehigh Valley Coal Co. v. plies where two indictments are 
 
 Ward, 149 Pa. 119; Arons v. Smit, tried together and there is a gen- 
 
 173 Pa. 630; Sicilian Paving Co. v. eral objection to evidence admis- 
 
 Williamsport, 186 Pa. 2S6; Com. v. sible under one indictment but not 
 
 Spencer, 6 Super. 256; Com. v. under the other. The admission of 
 
 Tryon, 31 Super. 146. such evidence is not error, though 
 
 -"Taylor v. Twp., 30 Super. 305. the defendant was acquitted on the 
 
 -^Vanderslice v. Donner, 26 former and convicted on the latter 
 
 Super. 319. indictment: Com. v. Keene, 7 
 
 2^Sutton's Estate. 13 Super. 492. Super. 293. It also applies to evi- 
 
 28Cox v. Norton, i P. & W. dence admissible only as to one ol 
 
 412. two defendants : Long v. Maguire, 
 
378 PENNSYLVANIA TRIAI, EVIDENCE. 
 
 tained.^^ On the other hand, if the ground for objecting is spe- 
 cifically stated, all other reasons for exclusion will be considered 
 as waived,^^ even though the objection urged on appeal, though 
 not made on the trial of the case, w^as made on argument of a 
 motion for a new^ trial. '^ If after specific objections is made an 
 offer is withdrawn but subsequently repeated, a general objection 
 then made will be presumed to have been on the same ground as 
 the prior one.'* 
 
 § 420. Proof — Burden Of. The burden of proof is on the 
 party who affirms the existence or non-existence^° of facts upon 
 which his legal rights depend, and against whom judgment would 
 be given if no evidence were produced on either side. This bur- 
 den is generally on the plaintiff unless the defendant sets up an 
 affirmative defense, in which case the burden is on him. The term 
 is generally used in the sense of an obligation resting upon one 
 party or the other at various stages of the trial, to give evidence 
 to rebut that offered by the other party, and in absence of which 
 the latter is entitled to judgment. This obligation may shift 
 from side to side in the course of a trial, according to the vary- 
 ing stages of proof offered by the parties. But the burden of 
 proof, when confined in its meaning to the duty resting upon one 
 having the affirmative of an issue, never shifts but remains on him 
 throughout the trial and requires him to establish his case by a 
 preponderance of evidence.'" 
 
 22 Pa. 163; and to statements sent the rule: Hunt v. Todd, 18 Pa. 
 
 out with the jury and containing 316; Daley v. Iselin, 212 Pa. 279; 
 
 some items unsupported by evi- although if the subject matter in 
 
 dence: KUne v. Gundrum, 11 Pa. such case lies peculiarly within the 
 
 242; Terry v. Drabenstadt, 68 Pa. knowledge of the other party, full 
 
 400. proof is not required, but only such 
 
 siPeters v. Horbach, 4 Pa. 134; as renders the existence of the 
 
 Kline v. Gundrum, 11 Pa. 242; L,au- negative probable: Com. v. Bates, 
 
 bach v; Laubach, 73 Pa. 387; Terry : Super. 223. 
 
 V. Drabenstadt, 68 Pa. 400; Baus- 36^11 that is necessary in civil 
 
 bach V. Reiff, 237 Pa. 482. cases is that the evidence should be 
 
 32Lovett V. Mathews, 24 Pa. 330; sufficient to satisfy the mind and 
 
 Mesmore v. Morrison, 172 Pa. 300; conscience of a reasonable person 
 
 O'Toole V. Printing Co., 179 Pa. and so convince him that he would- 
 
 271; Gorman v. Bigler, 8 Super. venture to act on that conviction 
 
 440. in matters of highest importance to 
 
 ■•'■■'Danley v. Danley, 179 Pa. 170. his own interests: Young v. Ed- 
 
 s^Blackstock v. Leidy, 19 Pa. 335. wards, 72 Pa. 257. See Wood v. 
 
 ^isThe fact that this involves Donohue, 94 Pa. 128. 
 proof of a negative does not change 
 
TRIAL — MATTERS RELATING TO. 379 
 
 In criminal cases where the defense relates to the criminal 
 transaction, the burden remains on the commonwealth throughout 
 the trial to prove the defendant's guilt beyond a reasonable 
 doubt. "^ If the defense is matter not connected with the crime 
 itself, as where insanity, drunkenness, or an alibi is alleged, the 
 burden is on. the defendant to prove such defense to the satis- 
 faction of the jury or by a preponderance of evidence.^* It is 
 not necessary that it be established beyond a reasonable doubt. ^^ 
 But failure of the defendant to prove such defense does not re- 
 lieve the commonwealth of the burden of proving the commission 
 of the crime beyond a reasonable doubt." 
 
 § 421. Proof — Offer Of. The party producing a witness may 
 be called upon to state what he proposes to prove by him so that 
 if he is incompetent or his testimony inadmissible it may be ex- 
 cluded.*^ This right to call for an offer enables a party to keep 
 from the jury evidence which may not only be irrelevant but 
 highly improper and injurious. The reason for the rule does 
 not apply so strongly to writings, as the opposite party generally 
 has an opportunity to examine written documents before they 
 go to the jury. But if upon examination of the writing a state- 
 ment of its purpose is still deemed necessary, such statement may 
 be required, and its form and extent is within the discretion of 
 the court." The propriety of a refusal to permit counsel to make 
 a formal offer of testimony on the ground that a similar offer has 
 been made and declined, is also largely within the discretion of 
 the trial judge.*^ 
 
 An offer must state sufificient facts to enable the court to de- 
 termine whether or not the evidence is relevant and material to 
 the issue,** otherwise if it be rejected the appellate court has no 
 
 Cases on the subject of burden ^o^gygrs y. Com., 83 Pa. 131. 
 
 of proof in particular proceedings ^°Com. v. Gutshall, 22 Super. 269. 
 
 are omitted as they belong more ''iMcClelland v. Lindsay, I W. & 
 
 properly to diiiferent branches of S. 360; Morgan v. Browne, 71 Pa. 
 
 substantive law and to practice and 130. 
 
 procedure. *2;^lyei-s y Cg^l Co., 126 Pa. 582. 
 
 s^Turner v. Com., 86 Pa. 54; ^^Sprague v. Reilly, 34 Super. 
 
 Watson V. Com., 95 Pa. 418; Tif- 332. 
 
 fany v. Com., 121 Pa. 165. ^*Duncan v. Findlay, 6 S. & R. 
 
 38Rudy V. Com., 128 Pa. 500; 235 ; Long v. Ins. Co., 137 Pa. 335 ; 
 
 Cora. V. Gerade, 14S Pa. 289; Com. Hill v. Truby, 117 Pa. 320; Krum- 
 
 V. Kilpatrick, 204 Pa. 218; Com. v. rine v. Greenoble, 165 Pa. 98; 
 
 Gutshall, 22 Super. 269; Com. v. Hentzler v. Weniger, 32 Super. 164; 
 
 Sushinskie, 242 Pa. 406. ' 
 
380 ' PENNSYLVANIA TRIAL EVIDENCE. 
 
 means of determining whether any error was committed.'" On 
 the other hand, it would be inconvenient and burdensome to re- 
 quire every offer to be accompanied by a full statement of all 
 facts intended to be shown.'*" The matter is one which must be 
 left to the discretion of the trial judge. If the relevancy of an 
 ofifer depends upon facts not in evidence, it should be accom- 
 panied by an offer to prove such facts." The fact that they were 
 proved in another proceeding and are known to the trial judge 
 and the opposite party is insufficient.** Where there is a general 
 allegation of fraud and misrepresentation, the court may require 
 a party to specify the evidence on which he relies to establish 
 fraud.*" In considering the question whether or not evidence 
 should be admitted, the court will accept the offer as founded on 
 truth and capable of being proved.^" 
 
 When evidence offered is relevant in part only, the court is 
 not bound to separate the good from the bad, but may reject the 
 whole of it.^"^ But this rule should not be applied in a criminal 
 case where its enforcement would be prejudicial to a defendant 
 on trial for murder,'^- and in any case, if the offer is clearly com- 
 petent in substance and the incompetent part is small and unim- 
 portant, it may become the duty of the judge to point out, or 
 call upon the party objecting to specify, the particular part ob- 
 jected to.'*^ 
 
 If a party totally fails to sustain an offer by proof, the oppo- 
 site party has no reason to complain that it might have prejudiced 
 the jury against him, since the natural tendency is to arouse preju- 
 dice against the party making an unfounded offer.'*"' 
 
 § 422. Proof— Offer Of— Purpose of Evidence. Whenever the 
 relevancy of a question asked or evidence produced does not ap- 
 
 Kittaning Boro. v. Gas Co., 35 "Com. v, Brennerman, i Rawle 
 
 Super. 167; Kelly v. Kelly, 51 311. 
 
 Super. 603. '^"Rearich v. Swinehart, 11 Pa. 
 
 ■•^Duncan v. Findlay, 6 S. & R. 233. 
 
 235; Williams v. Williams, 34 Pa. ^iggnnett y Johnson, 9 Pa. 335; 
 
 312; Sweeter v. Atterbury, 100 Pa. Smith v. Bank, 104 Pa. 518; Evans 
 
 18; Cole V. High, 173 Pa. 590; \. Evans. 155 Pa. 572; Keeler v. 
 
 Kittaning Boro. v. Gas Co., 35 Schott, i Super. 458; Mease v. 
 
 Super. i'67. Traction Co., 208 Pa. 434; Jacoby 
 
 •"'Hall V. Patterson, 51 Pa. 289. v. Ins. Co., 10 Super. 171. 
 
 *^Com. V. Brown, 23 Super. 470; "'-Com. v. Bezek, 168 Pa. 603; 
 
 Geisenberger v. Geisenberger, 41 Com. v. Colandro, 231 Pa. 343. 
 
 Super. 235. .'''aMundis v. Emig, 171 Pa. 417. 
 
 ^«Com. V. Brown, 23 Super. 470. "Phila. \ . Reeder, 173 Pa. 281. 
 
TRIAL — MATTERS RELATING TO. 38 1 
 
 pear, the court or opposing counsel may call for a statement of 
 its purpose,^^ and if the party offering fails to comply with such 
 request and to show its relevancy its rejection is not ground for 
 reversal. °° When the purpose is given, the admission of the evi- 
 dence depends upon its competency for such purpose, and a subse- 
 quent contention that it would have been proper for another pur- 
 pose cannot be sustained,^' though the party is not precluded from 
 subsequently offering it for such other purpose.^* But if the pur- 
 pose is neither asked for nor stated and objection is made gen- 
 erally, admission of the evidence is not error if it was competent 
 for any purpose,^" unless the evidence is inadmissible for what 
 the party objecting assumes is the purpose of the offer, in 
 which case it is error to receive it for another purpose unless the 
 party offering it states he does not make the offer for such ob- 
 jectionable purpose.''" 
 
 The rule permitting one party to call upon the other to state 
 the purpose of an offer is intended to aid and not to obstruct the 
 proper trial of a case, and its enforcement depends largely upon 
 the circumstances and is necessarily within the discretion of the 
 trial judge. "^ 
 
 § 423. Proof— Order Of— Evidence in Chief. While a party 
 will be required to present his case in an orderly and proper man- 
 ner,^^ the exact order of proof is within the control of the trial 
 judge whose action will not be reversed except in case of gross 
 abuse of discretion.''^ Some latitude must necessarily be allowed 
 where the facts are complicated and witnesses numerous. A 
 party cannot give his evidence or prove his case all at once. He^ 
 must present it step by step, and ordinarily it is enough that the 
 
 ^sRichardson v. Steward, 4 Bin. ^i^Benner v. Hauser, II S. & R. 
 
 ig8; Kershner v. Kemmerling, 24 352; Moore v. Smith, 14 S. &. R. 
 
 Super. 181; Hall v. Patterson, 51 388; Richardson v. Stewart, 4 Bin. 
 
 Pa. 289; Lieb v. Painter, 42 Super. 198; King v. Faber, 51 Pa. 387; 
 
 399; Germantown Dairy Co. v. Pennsylvania Railroad v. Eby, 107 
 
 McCallum, 223 Pa. 554. Pa. 166. See also § 419. 
 
 ^^Harris v. Tyson, 24 Pa. 347; ""Burns v. Railroad, 213 Pa. 280. 
 
 Piper V. White, 56 Pa. 90; Pryor «iHill v. Canfield, 56 Pa. 454; 
 
 \. Morgan, 170 Pa. 568. Myers v. Coal Co., 126 Pa. 582. 
 
 "Benner v. Hauser, 11 S. & R. «2Irish v. Smith, 8 S. & R. 573; 
 
 352; Page V. Simpson, 172 Pa. 288; Columbia Bridge Co. v. Kline, 4 
 
 Beam v. Gardner, 18 Super. 245 ; Clarke 39. 
 
 Deitrich v. Kettering, 212 Pa. 356. "^Levers v. Van Buskirk, 4 Pa. 
 
 ssMoore v. Smith, 14 S. & R. 3Q9; Bowers v. Still, 49 Pa. 65; 
 
 388. Collins V. Freas, ^^ Pa 493; Bosch 
 
382 PENNSYLVANIA TRIAL EVIDENCli. 
 
 different facts composing the whole be offered in such man- 
 ner as will present to the minds of the jury the whole case, even 
 though there is some lack of logic in the method of presentation." 
 It is therefore no valid objection that particular evidence offered 
 does not tend to prove the party's whole case. If it constitutes a 
 link in a chain of evidence which goes to make up the whole, it 
 is competent, though standing alone it would be insufficient."' 
 This applies especially in cases of fraud where considerable lati- 
 tude is allowed in admitting evidence out of order, and if the 
 party offering it subsequently fails to make out a prima facie case 
 of fraud, the court should be requested to so instruct the jury."* 
 
 Evidence which is vital to the case should not be rejected 
 merely because offered out of time."^ If the court on a murder 
 trial consents that an absent witness for the defense may be called 
 the following day, and with this understanding the defendant 
 rests his case, it is error to refuse to permit the witness to be 
 called at the time stated. "* And where an offer is objected to on 
 two different grounds, one of which is that it is offered at an 
 improper time, the court, in sustaining the objection, should 
 specify on which ground the ruling is made, as a general refusal 
 of the evidence might prevent the party from offering it at a 
 proper time."^ 
 
 The appellate court will consider the real competency of the 
 evidence rather than the order in which it was received, and if in 
 view of the whole case it is relevant, the time of its introduction 
 is not ground for reversal.'" 
 
 V. Diem, 176 Pa. 603; Common- seen him under the influence of 
 wealth V. Eisenhower, 181 Pa. 470. liquor is admissible as a step to- 
 This applies to the admission in ward establishing a habit of intern- 
 chief of evidence which is of a perance though not in itself suffi- 
 rebutting character: Salmon v. cient for that purpose: United 
 Ranee, 3 S. & R. 311 ; Schnable v. Brethren v. O'Hara, 120 Pa. 256. 
 Doughty, 3 Pa. 392; Carey v. o^Leeds v. Com., 83 Pa. 453. 
 Bright, 58 Pa. 70; Wells v. Leek, "Devall v. Burbridge, 6 W. & S. 
 151 Pa. 431; Fisher v. Ruch, 12 529. 
 Super. 240. ssCom. v. Wilson, 186 Pa. i, 
 
 »*Bowers v. Still, 49 Pa. 65. ' ""Schuylkill Nav. Co. v. Farr, 4 
 
 e^Haughey v. Strickler, 2 W. & S. W. & S. 362. 
 
 411; Johnson v. Warden, 3 Watts '"Carroll v. Com., 84 Pa. 107. A 
 
 loi. Where the defense to an action case will not be reversed because 
 
 on a life insurance policy is that a deed was admitted in evidence be- 
 
 the insured was of intemperate fore proof of its execution was 
 
 habits, evidence that a witness had made: Garrigues v. Harris, 17 Pa. 
 
TRIAI, — MATTERS RELATING TO. 
 
 383 
 
 § 424. Proof — Order Of — Rebuttal. A party cannot, as a mat- 
 ter of right, offer in rebuttal evidence which is properly a part 
 of his case in chief, but will be confined to matters requiring ex- 
 planation and to answering new matter introduced by the op- 
 posite party .''^ But where the matter set up in defense conflicts 
 with the case in chief inferentially and no directly, such defense 
 usually cannot and need not be anticipated by the plaintiff, who 
 is then permitted to rebut it though evidence offered for that pur- 
 pose might have been admitted in chief. ^^ And while evidence 
 which is inconsistent with the party's case in chief may not be 
 given in rebuttal, yet such evidence may be, rendered admissible 
 by a previous shifting of position by the opposite party.'' When 
 evidence has been improperly rejected and subsequently de- 
 fendant offers evidence on the same subject, plaintiff may then 
 be permitted to produce the rejected evidence in rebuttal.'* 
 
 344; or before a prior deed to a 
 grantor had been offered: Lauchner 
 V. Rex, 20 Pa. 464; nor because a 
 note or judgment was admitted be- 
 fore title shown in the party offer- 
 ing it : Eisenhart v. Slaytnaker, 14 
 S. & R. 153; Smith V. Myler, 22 
 Pa. 36; or before proof of part- 
 nership was given where action was 
 on a note given by a firm : Haughey 
 V. Strickler, 2 W. & S. 411; John- 
 son V. Warden, 3 Watts loi. 
 
 '^Stetson V. Croskey, 52 Pa. 230; 
 Asay V. Hay, 89 Pa. 77; Arnold, v. 
 Pfoutz, 117 Pa. 103; Acklin v. Mc- 
 Calmont, 201 Pa. 257. In an action 
 on a written agreement, evidence of 
 a contemporaneous parol agree- 
 ment cannot be set up in rebuttal: 
 Dickson-Woods Co. v. Glass Co., 
 169 Pa. 167. But where in an ac- 
 tion on a note, the court admits the 
 note in evidence over the defend- 
 ant's objection that it is materially 
 altered, plaintiff may rest, and after 
 defendant has given evidence to 
 show alteration, admitting the gen- 
 uineness of the signature, he can- 
 not object to the plaintiff giving 
 evidence in rebuttal to sustain the 
 
 note, on the ground that such evi- 
 dence should have been given in 
 chief : Bunnell v. Kintner, 27 
 Super. 605; and where defendant 
 indicted for murder testifies there 
 was a struggle with the deceased 
 for the possession of a pistol, the 
 commonwealth may show in rebut- 
 tal that from the position of the 
 body of the deceased there could 
 not have been such a struggle: 
 Com. V. Conroy, 207 Pa. 212. 
 Where the defense in a murder 
 trial is intoxication at the time and 
 shortly before the crime was com- 
 mitted, the commonwealth may re- 
 but such evidence: Com. v. Mc- 
 Murray, 198 Pa. 51. And where 
 witnesses for the defendant deny 
 that a certain person in the court 
 room was the one seen at a par- 
 ticular time, such witness may be 
 called to testify in rebuttal : Kunz- 
 man v. Railway, 230 Pa. 364. 
 
 '^Stetson V. Croskey, 52 Pa. 230; 
 Acklin V. McCalmont Co., 201 Pa. 
 257. 
 
 '3 Sidle V. Walters, 5 Watts 389. 
 
 '*Dutton V. Railway, 32 Super. 
 630. 
 
384 
 
 PENNSYLVANIA TRIAL EVIDKNCF,. 
 
 Evidence is also admissible in rebuttal to contradict that offered 
 by the defendant, even though by so doing the plaintiff supplies 
 fatal defects in his case in chief.'" But immaterial and irrele- 
 vant testimony given on cross examination cannot be rebutted.'" 
 
 Evidence vt^hich is merely cumulative of matters which plaintif? 
 was bound to establish in chief," or which is in effect a mere 
 repetition of his evidence in chief* is not admissible in rebuttal. 
 But if the objection to a repetition of a question is purely tech- 
 nical, its admission is not ground for reversal.'" 
 
 The admission of evidence not strictly in rebuttal is largely 
 within the discretion of the trial court,*" and if relevant, the mere 
 fact that it was received in rebuttal when it should have been 
 offered in chief is not reversible error.*' 
 
 § 425. Proof — Order Of — Sur Rebuttal. The rule requiring a 
 plaintiff to present his entire case in chief applies equally to a 
 defendant, who must introduce his whole defense in his case in 
 chief, and may not reserve a part to give in answer to the plain- 
 tiff's rebutting evidence,*^ especially where the latter's witnesses 
 are discharged and no notice had been given him of the intention 
 of the defendant;*-'' nor may he give testimony inconsistent with 
 that previously given by him even though it tends to rebut certain 
 evidence given on behalf of the plaintiff.*^ Evidence in sur re- 
 buttal will usually be limited to explain matters requiring expla- 
 nation, and to answer new matter brought out by the plaintiff on 
 rebuttal and which the defendant could not have foreseen or 
 provided for in his direct defense.*' The matter is largely within 
 the discretion of the trial court.*" 
 
 § 426. Proof— Order Of— Subsequent to Close of Case. The 
 admission of evidence after the close of a case is within the dis- 
 
 'sCutbush V. Gilbert, 4 S. & R. Bt-ll, 166 Pa. 405; Rowland v. Eck- 
 
 SSi- man, 12 Super. 75. 
 
 '"Buck V. McKeesport, 227 Pa. sipjnjiay ^ Stewart, 56 Pa. 183; 
 
 10. See § 470. Brown \. Finney, 67 Pa. 214. 
 
 "Mowclay v. Moore, 133 Pa. 598; "^Young v, Edwards, 72 Pa. 257; 
 
 Acklin V. McCalmont, 201 Pa. 237; Arnold v. Pfoutz, 117 Pa. 103; 
 
 Muntz V. Land Co., 222 Pa. 621. Hyndman Water Co. v. Boro., 7 
 
 '^Knights of Pythias v. Lead- Super. 191. 
 
 beter, 2 Super. 461. s^Atlas Engine Works v. Wool- 
 
 "Holthouse V. Rynd, 155 Pa. 43. ford, 22 Super. 545. 
 
 *''Sample v. Robb, 16 Pa. 305 ; **Pearce v. Langfit, loi Pa. 507. 
 
 Gaines v. Com., 50 Pa. 319; Young "^^say v. Hay, 89 Pa. 77. 
 
 V. Edwards, 72 Pa. 257; Com. v. *"Kocnig v. Bauer. 57 Pa. 168; 
 
 Young V, Edwards. 72 Pa. 257, 
 
TRIAL — MATTERS RELATING TO. 
 
 385 
 
 cretion of the trial court. While the tendency of the earlier 
 cases was to hold that such discretion was not reviewable,*' the 
 rule of the later decisions is that it will be reviewed in a proper 
 case, but before the appellate court will reverse there must be 
 shown an extreme case of abuse of discretion.*'* Since rules 
 regulating the time and manner of introducing evidence are for 
 the orderly conduct of the court's business, the mere fact that no 
 objection is made to the admission of evidence after the close of 
 the case, does not give the party offering it a right to insist that 
 it be received.*" 
 
 It is not an improper exercise of discretion for the court to al- 
 low plaintiff to re-open his case where he had no knowledge of 
 the facts offered until after he had closed"" or had inadvertently 
 omitted to furnish material evidence, ""^ and there has been an 
 intimation that a non-suit would be directed on the evidence al- 
 ready offered."^ But he should not be permitted to start anew 
 and make out his entire case in chief ."^ 
 
 § 427. Sending Out with Jury. It is a general rule in both 
 civil and criminal cases that all books, papers, documents, or ex- 
 hibits regularly received in evidence may be sent out with the 
 jury."* The matter is within the discretion of the trial court"^ 
 
 srPredrick v. Gray, 10 S. & R. 
 182; Barnhart v. Pettit, 22 Pa. 13S; 
 Maloney v. Davis, 48 Pa. 512. 
 
 **Lauer.v. Yetzer, 3 Super 460; 
 Ulysses Butter Co. v. Ins. Co., 20 
 Super. 384; Class & Nachod Brew 
 Co. V. Rago, 240 Pa. 470. 
 
 a^Maloney v. Davis, 48 Pa. 512. 
 
 ""Com. V. Carey, 2 Brevifst. 404. 
 
 "iCom. V. Trexler, 2 Browne 247. 
 
 "^Buck V. McKeesport, 223 Pa. 
 
 2X1. 
 
 "3Buck V. McKeesport, 223 Pa. 
 211. 
 
 '^Alexander v. Jamseon, 5 Bin. 
 238; Hendel v. Turnpike, 16 S. & 
 R. 92; Mullen V. Morris, 2 Pa. 83; 
 Riddlesburg Coal Co. v. Rogers, 65 
 Pa) 416; Udderzook ' v. Com., 76 
 Pa. 340; Whitehall Mfg. Co. v. 
 Wise, 119 Pa. 484; Winans v. Bun- 
 nell, 13 Super. 445 ; Com. v. Stan- 
 ley, 19 Super. s8. But a party may 
 
 25 
 
 not send out irrelevant papers ad- 
 mitted on condition that they be 
 followed by other evidence to make 
 them relevant, which evidence was 
 not furnished: Stewart v. Bank, 11 
 vS. & R. 267; or a paper containing 
 memoranda favorable to the party 
 offering it and exonerating him 
 from liability : Kittanning Ins. Co. 
 V. O'Neill, no Pa. 548; or a map 
 which is incorrect : Com. v. Rail- 
 road, 23 Super. 235. But the mere 
 fact that writings ofifered are bound 
 together with irrelevant but harm- 
 less matter, will not prevent lliem 
 going out with the jurv, though tlie 
 court should instruct them to dis- 
 regard such irrelevant facts : Shomo 
 V. Zeigler, 31 Leg. Int. 205 ; Boyer 
 V. Boro., 16 C. C. 75. Proof of loss 
 furnished in accordance with re- 
 quirements of a fire insurance pol- 
 icy are not competent evidence of 
 
386 PENNSYLVANIA TRIAL EVIDENCE. 
 
 whose consent must be first obtamed,"" and before a case will be 
 reversed for refusal to allow papers to go out with the jury, the 
 appellant must show that some damage was done him.*" But it 
 is error for the trial judge to lead the jury to believe that it was 
 their duty to construe writings sent out with them."^ 
 
 § 428. Sending Out with Jury — Calculation by Parties. 
 Mathematical calculations or statements of accounts made by the 
 parties, setting forth a computation of the balance alleged to be 
 due and showing the steps by which the result was reached, often 
 afford great convenience to the jurors where there are compli- 
 cated calculations to be made, and are usually permitted to be 
 sent out with them."" This is also within the discretion of the 
 trial judge,^°° who should instruct the jury that such calculations 
 are not evidence but are to be used merely as an aid to their own 
 calculations of the balance which they may find due.^ A calcula- 
 tion containing an arbitrary estimate of a value which must be 
 fixed by the jury should not be permitted to go out with them.^ 
 
 If the paper offered contains items as to which there is no 
 evidence, it should be rejected.' But it is the duty of the party 
 objecting to specify what items are wrong, and if he makes only 
 a general objection the appellate court will not reverse.* 
 
 § 429. Sending Out with Jury — Depositions. Depositions, be- 
 ing merely the testimony of absent witnesses, should be given no 
 more weight than the testimony of other witnesses who testify 
 on the trial of the case, and therefore they should not be admit- 
 ted in the jury room, since to do so would give them a manifest 
 
 such loss and may not be submitted has been permitted in an action for 
 
 to the jury: Kittanning Ins. Co. v. trespass for personal injuries, but 
 
 O'Neill, no Pa. 548; Com. Ins. the court said the practice is not 
 
 Co. V. Sennett, 41 Pa. 161. to be commended: Rowand v 
 
 »BMcCully V. Barr, 17 S. & R. Clark, 34 I,. 1. 232. 
 
 445 ; Kittanning Ins. Co. v. O'Neill, i»°Anderson v. Snyder, 14 Super, 
 
 no Pa. 549 ; Cavanaugh v. Buehler, 424. 
 
 120 Pa. 441- iCom. v. Lebo, 13 S. & R. 133; 
 
 »6Gray v. Gray, 2 Yeates 273. Blight v. Ewing, 26 Pa. 135 ; Per- 
 
 »middlesburg Coal Co. v. Rogers, son v. Lipps, 219 Pa. 99. 
 
 6S Pa. 416. 2Hines v. Kiehl, 154 Pa. 190. 
 
 ssWinans v. Bunnell, 13 Super. sMorrison v. Moreland, 15 S. & 
 
 445- R. 61 ; Frazier v. Funk, 15 S. & R. 
 
 loCom. V. Lebo, 13 S. & R. 175; 26; Hall v. Rupley, 10 Pa 231- 
 
 Frazier v. Funk, 15 S. & R. 25; Tarry v. Drabenstadt, 68 Pa 400 
 
 Ege V. Kille, 84 Pa. 333; Pitts- ^Rline v. Gundrum, 11 Pa 242- 
 
 burgh V. Railway, 234 Pa. 223. This Terrv v. Drabenstadt, 68 Pa 400 ' 
 
' TRIAL — MATTERS RELATING TO. 387 
 
 advantage over oral testimony in the case.^ But a paper at- 
 tached to and proved by a deposition may be detached therefrom 
 and sent out with the jury." 
 
 Depositions taken before a register to prove a will do not stand 
 upon the same footing as other depositions, and may be taken 
 out with the jury/ though refusal to permit this to be done is 
 not cause for reversal.* In an action for malicious prosecution, 
 the information sworn to by the defendant which formed the 
 basis of an action for perjury against the plaintiff may be sent 
 out with the jury, as it is a part of the documentary evidence in 
 the case and not in the nature of a deposition." 
 
 § 430. Sending Out with Jury — Pleadings. If a statement of 
 claims contains an itemized calculation of the balance alleged to 
 be due, it is usually permitted to go out with the jury,^" though 
 the court should caution them that the statement is merely what 
 is claimed by the plaintiff and that they must not lose sight of the 
 defendant's evidence. ^'^ While a statement of claim which has 
 been withdrawn should not be sent to the jury, yet if it was in 
 substance the same as the one on which the case was tried, the 
 error is harmless. ^^ An affidavit and bill in equity filed in an- 
 other proceeding and offered in evidence as declarations against 
 interest, may be sent out with the jury.^^ 
 
 § 431. Sending Out with Jury — Testimony, Notes Of. Testi- 
 mony of witnesses taken on the trial of the case should never be 
 sent out with the jury even for the purpose of settling a dispute 
 as to what a particular witness said. In such case the jury should 
 apply to the court for further instructions either as to fact or 
 law." 
 
 § 432. Striking Out and Withdrawing Evidence. Where 
 
 sWhite V. Bisbing, I Yeates 400; "Seibert v. Price, S W. & S. 438- 
 
 Alexander v. Jameson, S Bin. 238; i»0(id Fellows Hall v. Masser, 24 
 
 Whitehall Mfg. Co. v. Wise, 119 Pa. 507; Phillips v. Stroup, i Mona. 
 
 Pa. 484. See also § 431 for rule ex- 517;- Whitehall Co. v. Wise, 119 
 
 eluding notes of testimony. Pa. 484. 
 
 "McKelvy v. DeWolf, 20 Pa. 374. "Person v. Lipps, 219 Pa. 99- 
 
 'ShoUy V. Diller, 2 Rawle 177. i^jjall v. Rupley, 10 Pa. 231. 
 
 In Shomo v. Zeigler, 31 L. I. 205, i^Kline v. National Bank, 15 
 
 it was held that depositions attach- Atl. 433. 
 
 ed to the record of bankruptcy pro- i*Com. v. Ware, 137 Pa. 46s See 
 
 ceedings could be sent out with also § 429 for rule excluding depo- 
 
 the record. sitions. 
 
 sSpence v. Spence, 4 Watts 165. 
 
388 PUNNSYI<VANIA TRIAL EVIDENCE. . 
 
 either party to a proceeding discovers at any time that improper 
 testimony has been inadvertently admitted, he may have the error 
 corrected by applying to the court at once to have the evidence 
 stricken out and asking that the jury be instructed to disregard 
 it.'^ As a rule, such motion will be allowed only in cases where 
 the ground of objection was unknown and could not have been 
 known with ordinary diligence, at the time the evidence was re- 
 ceived, ^^ and the motion should be made before the witness has 
 been cross-examined,^' or his testimony commented' on by the 
 party objecting, in his address to the jury.'* The matter is within 
 the discretion of the trial judge.'" 
 
 If the motion is allowed, the court should see that the evi- 
 dence is wholly withdrawn for every purpose and that the impres- 
 sion made by it is removed so far as possible, so that the party 
 against whom it was admitted is not prejudiced thereby.^" The 
 effect of the admission of improper evidence will not be cured by 
 merely directing the jury to disregard it, after the evidence has 
 been commented on by counsel in their argument.^' 
 
 Where evidence is competent as to part and incompetent as to 
 the remainder, a motion to strike out must specify the objection- 
 able parts. It will not be stricken out as a whole. ^^ If the evi- 
 dence has been received without objection and the'trial judge re- 
 fuses to strike it out, a request should then be made to instruct 
 
 "'Devling v. Williamson, 9 Watts i^Rees v. Livingston, 41 Pa. 113; 
 
 311; Unangst v. Kreemer, 8 W. & Mclnroy v. Dyer, 47 Pa. 118. 
 
 S. 391; Miller V. Miller, 4 Pa. 317; '"Montgomery v. Cunningham, 
 
 Franklin Ins. Co. v. Gruver, 100 Pa. 104 Pa. 349; Lowrey v. Robinson, 
 
 266; McGettigan v. Potts, 149 Pa. 141 Pa. 189; Duvall v. Darby, 38 
 
 155 ; Sydney School Furniture Co. Pa. 56. 
 
 V. School District, 158 Pa. 35. If -"Delaware & Hudson Canal Co. 
 
 evidence given in support of an v. Barnes, 31 Pa. 193; Ewing v. Al- 
 
 offer is insufficient to sustain it, corn, 40 Pa. 492, 
 
 such evidence may be withdrawn 21 Delaware & Hudson Canal Co. 
 
 from the jury: Stewart v. Hunt- v. Barnes, 31 Pa. 193; Pennsylva- 
 
 ingdon Bank, 11 S. & R. 267; Rear- nia Railroad v. Butler, 57 Pa. 335; 
 
 ick V. Rearick, 15 Pa. 66; Rider v. Huntingdon & B. T. M. Railroad v. 
 
 Maul, 70 Pa. IS; Com, v. Wilson, Decker, 82 Pa, 119; Erie Railway 
 
 186 Pa. I ; Com. v. Crossmire, 156 v. Smith, 125 Pa. 259. 
 
 Pa. 304. -^Miller v. Water Co., 148 Pa. 
 
 lORobinson v. Snyder, 25 Pa. 203. 429 ; Wilson v. Gas Co., 152 Pa. 
 
 "Warden v. Philadelphia, 167 566; Hamilton v. Railroad, 194 Pa. 
 
 Pa. 523 ; Hannum v. Pownall, 187 i ; Com. v. Razmus, 210 Pa. 609. 
 Fa. 292; Brown v. Kolb, 8 Super. 
 413; Com. v. Valsalka, 181 Pa. 17. 
 
TRIAt — MATTERS RELATING TO. 389 
 
 the jury to disregard it. If tiiis is refused, an exception may be 
 taken to such refusal.^' 
 
 Evidence which was competent when received will not be 
 stricken out merely because better evidence of the fact is subse- 
 quently produced.-'' Btit if such evidence subsequently becomes 
 incompetent, the court should be asked to instruct the jury to 
 disregard it.-" Where a question is unobjectionable but the an- 
 swer is incompetent and not responsive to the question, it will be 
 stricken out if motion to that effect is duly made.^" 
 
 Evidence received by agreement of counsel will not be stricken 
 out.-' If no objection to evidence has been made by either party, 
 the court should not of its own motion strike it out.^* 
 
 ^sRobinson v. Snyder, 25 Pa. 203 ; ^sfaylor v. Gitt, 10 Pa. 428 ; 
 
 Ashton V. Sproule, 35 Pa. 492 ; Os- Aitkin v. Young, 12 Pa. 15 ; War- 
 
 walcl V. Kennedy, 48 Pa. 9; U. S. ren v, Steer, 112 Pa. 634. 
 
 Telegraph Co. v. Wenger, SS Pa- ^Ggroadnax v. Railroad, 157 Pa. 
 
 262; Yeager v. Weaver, 64 Pa. 140; Com. v. Bell, 166 Pa. 405; 
 
 42s ; Gilmore v. Railroad, 104 Pa. Com. v. Howe, 35 Super. 554. 
 
 275. -'Long V. Girdwood, 150 Pa. 413. 
 
 2*Harvey v. Chester, 211 Pa. 563. ^^Lewars v. Weaver, 121 Pa. 268. 
 
390 PENNSYLVANIA TRIAL EVIDENCE. 
 
 CHAPTER XVII. 
 
 WITNESSES. 
 
 § 433- Competency. 
 
 434. Conviction or commission of crime. 
 
 435. Cross-examination — Calling for purpose of. 
 
 436. Effect of calling. 
 
 437. Practice. 
 
 438. Death or lunacy of party — Effect of. 
 
 439. Surviving or adverse party — Competency in general. 
 
 440. Competency resulting from calling third person in 
 
 whose presence transaction occurred. 
 
 441. Devolution, claim by. 
 
 442. Disclaimer by defendant in ejectment. 
 
 443. Interest must be adverse. 
 
 444. Partners or joint parties surviving deceased — Fro- 
 
 ceedings against. 
 
 445. Party of record — Rights of deceased passing to. 
 
 446. Release or extinguishment of interest. 
 
 447. Subsequent occurrences — Competency to testify to. 
 
 448. Testifying against interest. 
 Determination of question. 
 
 449. Preliminary examination. 
 
 450. Province of court and jury. 
 
 451. Husband and wife. 
 
 452. Adultery. 
 
 453. Bodily injury. 
 
 454- Character of wife — Rebutting attacks upon. 
 
 455. Desertion and maintenance. 
 
 456. Divorce. 
 
 457. Separate property — Recovery of. 
 
 458. Infants. 
 
 459. Intoxication. 
 
 460. Jurors, arbitrators and viewers. 
 
 461. Lunatics. 
 
 462. Oath or affirmation. 
 
 463. Objection to competency. 
 
 464. Religious belief. 
 
 465. Credibility. 
 
 466. Accomplices. 
 
 467. Court and jury — Province of. 
 
 468. False testimony. 
 Impeachment. 
 
 469- Contradictory declarations, acts or circumstances. 
 
 470. Evidence giv<!n on cross-examination. 
 
 471. Practice. 
 
WITNESSES. 391 
 
 472 
 
 Reputation for truth and veracity. 
 
 473 
 
 Cross-examination of impeaching witness. 
 
 474 
 
 Effect of impeachment. 
 
 47S 
 
 Practice. 
 
 476 
 
 Own witness. 
 
 477 
 
 Adverse or unwilling witness — Surprise. 
 
 478 
 
 Necessary witness. 
 
 479 
 
 Interest in suit. 
 
 480 
 
 Relationship to parties — Prejudice. 
 
 
 Examination of witnesses. 
 
 481 
 
 Direct examination. 
 
 ^8? 
 
 Cross-examination. 
 
 483 
 
 Credibility. 
 
 484 
 
 Defendant in criminal case. 
 
 48s 
 
 Defense — Introduction of. 
 
 486 
 
 Recalling for further cross-examination. 
 
 487 
 
 Written statements of witness — Introduction in evidence 
 
 488 
 
 Re-examination. 
 
 489 
 
 Number of witnesses. 
 
 490 
 
 Privilege against self-incrimination. 
 
 491 
 
 Refreshing memory. 
 
 § 433. Competency. Since the Act of April 15, 1869, P. L. 30, 
 was passed, all witnesses are prima facia comptent, and the bur- 
 den is on one objecting to the witness to make his incoApetency 
 affirmatively appear.^ The Act of 1869 was superseded by the Act 
 of May 23, 1887, P. ly. 158, which was a codification of existing 
 laws on the subject of competency of witnesses, and has and 
 should receive a liberal construction so as to effect its purpose.^ 
 It relates solely to the competency of interested as distinguished 
 from disinterested witnesses,^ and is an enabling, not a disquali^ 
 fying act, and does not render any person incompetent who was 
 competent before its passage.* In all cases, competency is the 
 rule and incompetency the exception.' 
 
 The provisions of the Act of 1887 extend to all proceedings 
 before any tribunal created by law to try causes of action be- 
 tween contesting parties,* and make all witnesses competent, both 
 in civil and criminal proceedings, with certain exceptions therein 
 
 'McClelland v. West, 70 Pa. 183. ^Sturgeon v. Stevens, 186 Pa. 
 
 2Smith V. Hay, 152 Pa. 317; Pas- 350; Paschall v. Fels, 207 Pa. 71. 
 
 chall V. Fels, 207 Pa. 71. 'Allen's Estate, 207 Pa. 325 ; Pat- 
 
 ^Tioga County v. Twp., 75 Pa. tison v. Cobb, 212 Pa. 572 ; Shadle's 
 
 433; Dickson v. McGraw, 151 Pa. Estate, 30 Super. 151; Norristown 
 
 98. Trust Co. V. Lentz, 30 Super. 408. 
 
 ^Crosetti's Estate, 211 Pa. 490. 
 
392 
 
 PENNSYLVANIA TRIAL IvVIDENCE. 
 
 specified and which will be hereafter considerfed." Neither lia- 
 bility of a party for costs," nor the right of an execvitor, admin- 
 istrator, guardian or other trustee to compensation, renders the 
 witness incompetent by reason of interest, even though he is a 
 party to the record;" but a personal interest in addition to such 
 right, will disqualify him from testifying adversely to the interest 
 of one deceased.^" 
 
 § 434. Competency — Conviction or Commission of Crime. Con- 
 viction of crime, even though punishable by death, ^^ does not 
 render a person incompetent as a witness except where the con- 
 viction is for perjury or subornation of perjury, in which case he 
 cannot testify even though his sentence has been fully complied 
 with, unless the judgment has been set aside or reversed or the 
 proceeding is one to punish or prevent injury or violence at- 
 tempted, done or threatened to his person or property.^^ One 
 
 'Section i, of the Act of 1887, 
 provides as follows : "Except upon 
 a preliminary hearing before a 
 magistrate for the purpose of de- 
 termining whether a person charg- 
 ed with a criminal offense triable 
 in the court of oyer and terminer 
 ought to be committed for trial, 
 and except also upon a hearing un- 
 der habeas corpus for the purpose 
 of determining whether bail ought 
 to be taken upon a commitment for 
 murder in the first degree, or for 
 the purpose of determining in any 
 case how much bail ought to be 
 required, or for the purpose of de- 
 termining in any case whether a 
 person committed for trial ought 
 to be further held, and except also 
 upon hearings before a grand jury, 
 in none of which cases shall evi- 
 dence for the defendant be heard, 
 and except also as provided in sec- 
 tion two of this act, all persons 
 shall be fully competent witnesses 
 in any criminal proceeding before 
 any tribunal." 
 
 Section 4, of the act provides : 
 "In any civil proceeding before any 
 tribunal of this commonwealth, or 
 
 conducted by virtue of its order or 
 direction, no liability merely for 
 costs nor the right to compensa- 
 tion possessed by an executor, ad- 
 ministrator or other trustee, nor an 
 interest merely in the question on 
 trial, nor any other interest, or pol- 
 icy of law, except as is provided 
 in section five of this act, shall 
 make any person incompetent as a 
 witness." 
 
 8Act of 1887. § 4; Palmer v. 
 Farrell, 129 Pa. 162; Parry v. Par- 
 ry, 130 Pa. 94. 
 
 "Act of 1887, § 4; note 7, above: 
 Cox V. McKean, 56 Pa. 243 ; Reich- 
 ter v. Cummings, 60 Pa. 441 ; For- 
 inger v. Sission, 14 Super. 266; 
 Sturgeon V. Stevens, 186 Pa. 350. 
 
 loQuldin V. Guldin, 97 Pa. 411; 
 Heydrick's Appeal, 109 Pa. 610; 
 Irvin's Estate, 160 Pa. 82; Broth- 
 ers V. Mitchell, 157 Pa. 484. See §§ 
 438 to 448. 
 
 "McHugh V. Schuylkill Co., 67 
 Pa. 391 ; Com. v. Clemmer, 190 Pa. 
 202. 
 
 i2The Act of May 23, 1887, P. L. 
 158, § 2, (a), re-enacted by Act 
 April 27, 1909, P. L. 180, relating 
 
WITNBSSUS. 
 
 393 
 
 found guilty of perjury is not incompetent however, until sen- 
 tence is passed.^^ 
 
 A pardon restores competency as completely as if the act was 
 never committed," and this effect of a pardon will not be denied 
 merely because of alleged technical irregularities in the practice 
 before the Board of Pardons.'" But the court may submit the 
 credibility of a pardoned witness to the jury.'° 
 
 The fact that a person has committed criminal or immoral 
 acts does not render him incompetent as a witness, though it may 
 affect his credibility." And one who joins others in committing 
 a crime for the purpose of exposing and bringing the offenders 
 to justice, is not to be treated as an infamous witness. ^^ 
 
 § 435. Competency — Cross-Examination — Calling for Purpose 
 Of. A party to a suit, or any person beneficially interested therein, 
 or an officer or director of a corporation which is a party to the 
 record, or any other person whose interest is adverse to the oppo- 
 site party, may be called by the latter as on cross examination.^' 
 
 to witnesses in criminal proceed- 
 ings, provides that "a person who 
 has been convicted in a court of 
 this commonwealth of perjury, 
 which term is hereby declared to 
 include subornation of perjury, 
 shall not be a competent witness 
 for any purpose, although his sen- 
 tence may have been fully complied 
 with, unless the judgment of con- 
 viction be judicially set aside or 
 reversed, or unless the proceedings 
 be one to punish or prevent injury 
 or violence attempted, done or 
 threatened to his person or prop- 
 erty, in which cases he shall be 
 competent to testify." 
 
 Section 5, (a), of the same act 
 excludes such witnesses in civil pro- 
 ceedings "unless the proceeding be 
 one to redress or prevent injury or 
 violence attempted, done of threat- 
 ened to his person or property." 
 
 isCom. V. Miller, 6 Super. 35. 
 
 "Hoffman v. Coster, 2 Whart. 
 453; Diehl v. Rodgers, 169 Pa. 316; 
 U. S. V. Hughes, 175 Fed. 238. 
 
 "^Hester v. Com., 85 Pa. 139; 
 Com. V. Railroald, I Grant 329. 
 
 "■•Diehl V. Rodgers, 169 Pa. 316. 
 
 ^'Langer v. Felton, i Rawle 140; 
 Davis V. Monroe, 187 Pa. 212; Sei- 
 bert's Estate, i C. C. 229. See §§ 
 483, 484. 
 
 isCampbell v. Com., 84 Pa. 187; 
 Com. V. HoUister, 157 Pa. 13. 
 
 '"The Act of March 30, 191 1, P. 
 L. 3S. amending § 7 of the Act of 
 May 23, 1887,- P. L. 158, provides as 
 follows : "In any civil proceeding, 
 whether or not it be brought or de- 
 fended by a person representing the 
 interests of a deceased or lunatic 
 assignor of any thing or contract in 
 action, a party fo the record, or a 
 person for whose immediate benefit 
 such proceeding is prosecuted or 
 defended, or any director or other 
 officer of a corporation or joint 
 stock or other association which is 
 a party to the record, or for the 
 immediate benefit of which such 
 proceeding is prosecuted or de- 
 fended, or any other person whose 
 interest is adverse to the party call- 
 
394 PENNSYLVANIA TRIAL EVIDENCE. 
 
 The adverse interest of a person called on cross-examination 
 must be involved in the question being tried and must be such as 
 would be promoted by the success of the adversary of the party 
 calling him. An execution defendant in a sheriff's interpleader 
 proceeding has no such adverse interest iri the controversy as is 
 contemplated by the act,^° and mere agents or servants who have 
 no such direct interest in the suit as would have prevented them 
 from testifying at common law, cannot be called for cross-ex- 
 amination. ^"^ A husband or wife may be called for cross-ex- 
 amination when competent to testify against each other," or where 
 one tranacted business as agent for the other.^' But in an action 
 by a husband and wife in the right of the wife to recover dam- 
 ages for personal injuries to her, the husband is only a formal 
 party to the suit and cannot be called by the defendant for cross- 
 examination.^* 
 
 § 436. Competency — Cross-Examination — Calling for Fuppose 
 Of — Effect of Calling. The effect of calling a person for cross- 
 examination is to make the witness so called, or his co-plaintiffs 
 or co-defendants or fellow directors or ofificers if a corporation is 
 a party, competent witnesses for themselves as to all relevant 
 matters though not touched upon in the cross-examination. ^° 
 
 tog him as a witness, may be com- ^*BurTe\\ Twp. v. Uncapher, 117 
 
 pelled by the adverse party to tes- Pa. 353. 
 
 tify as if under cross-examination, ^s^he Act of March 30, 1911, P. 
 
 subject to the rules of evidence ap- L. 35, amending § 7 of the Act 
 
 plicable to witnesses under cross- of May 23, 1887, P. I,. 158, provides 
 
 examination ..." as follows: "... and the ad- 
 
 A cashier of a bank is an officer verse party calling such witness 
 
 within the meaning of the above shall not be concluded by his testi- 
 
 act : Manor Nat. Bank v. Lowery, mony, but such person so cross-ex- 
 
 242 Pa. 559. amined shall become thereby a fully 
 
 ^oUnangst v. Goodyear Co., 141 competent witness for the other 
 
 Pa. 127; Cohen v. Salsberg, 17 party as to all relevant matters, 
 
 Super. 286. • whether or not these matters were 
 
 ^'Gantt V. Cox, 199 Pa. 208. A touched upon in his cross exami- 
 
 motorman of a car which injured nation, and also where one of the 
 
 plaintiff cannot be called by the lat- several plaintiffs or defendants or 
 
 ter on cross-examination: Callary the person for whose immediate 
 
 v. Transit Co., 185 Pa. 176. benefit such proceeding is prose- 
 
 "^Costello v. Costello, 191 Pa. cuted or defended, or such director 
 
 379' or officer, or such other person hav- 
 
 =8Callender v. Kelly, 190 Pa. 4SS ; ing an adverse interest, is cross ex- 
 
 Barnhart v. Grantham, 197 Pa. 502. amined under this section, his co- 
 plaintiffs or co-defendants, or fel- 
 
WITNESSES. 
 
 395 
 
 When a surviving party to a contract is called by the opposite 
 side for cross-examination on matters which occurred in the 
 lifetime of the deceased, he becomes a competent witness to all 
 relevant matters, whether touched upon in cross-examination or 
 not, and whether they occurred before or after the decedent's 
 death. ^^ This is in accordance with the common law rule that if 
 a party puts an incompetent witness on the stand, he makes him 
 fully competent for the other party.^' If the survivor testifies 
 on direct examination only concerning matters which occurred 
 since the decedent's death, but on cross-examination is questioned 
 on matters which occurred in his lifetime, he is thereby made a 
 competent witness as to all matters. ^^ But if he testifies in his 
 own behalf, under objection, with reference to matters occurring 
 before the death of the other party, the fact that he is then cross- 
 examined on such matter does not constitute a waiver of objec- 
 tion to his entire testimony.^" If one of several parties is called 
 on cross-examination, the right to examine him on any matter 
 concerning such cross-examination is not taken away by the fact 
 that he has become a competent witness and may be called on his 
 own behalf.^" 
 
 lew directors or officers, shall there- 
 by become fully competent- wit- 
 nesses on their own behalf, or on 
 behalf of the corporation or asso- 
 ciation of which they shall be di- 
 rectors or officers, as to all rele- 
 vant matters, whether or not these 
 matters were touched upon in such 
 cross examination." 
 
 2«Corson's Estate, 136 Pa. 160; 
 Boyd V. Conshohocken Mills, 149 
 Pa. 363; Watkins v. Hughes, 206 
 Pa. 526 ; Mothes's Estate, 29 Super. 
 462; Shadle's Estate, 30 Super. 151; 
 Yeager's Estate, 31 Super. 202. ' 
 
 Whether or not calling by the 
 adverse party and cross-examina- 
 tion only on matters occurring since 
 the death of a surviving party to 
 the transaction, renders the witness 
 competent- in his own behalf as to 
 matters occurring in the lifetime of 
 the decedent, has not been express- 
 ly decided. Under the broad lan- 
 
 guage of the statute (see note 25, 
 above) he is clearly competent for 
 that purpose, and in view of the 
 frequent judicial statements that 
 the act is to be liberally and literal- 
 ly construed so as to effect its pur- 
 pose, it would seem that he would 
 be held competent. See § 433, notes 
 2 and 5, and especially the opinion 
 of Rice, p. J., in Shadle's Estate, 
 30 Super. 151. 
 
 2'Turner v. Watterson, 4 W. & 
 S. 171 ; Floyd v. Bovard, 6 W. & S. 
 75; Seip v. Storch, 52 Pa. 210; 
 Forrester v. Torrence, 64 Pa. 29; 
 Shadle's Estate, 30 Super, iji. 
 
 28Hambleton's Estate, 166 Pa. 
 500; Watkins v. Hughes, 206 Pa. 
 526; Clad's Estate, 214 Pa. 141. 
 See note 26, above. 
 
 2'De Silver's Estate, 32 Super. 
 174- 
 
 ^'Scrantonian v. Brown, 36 Super. 
 170. 
 
396 PENNSYI^VANIA TRIAI, fi\IDKNCK. 
 
 Calling an opponent to testify makes him competent for him- 
 self in any subsequent trial of the same proceeding even though 
 he may not be again called in such trial," providing the issues 
 and the parties are the same.^- The rule applies also where 
 depositions of an opponent have been taken,^^ but not where he 
 was sworn and examined only on his voir dire.^* 
 
 If a married woman who is plaintiff in a suit against an estate, 
 is called for cross-examination by the defendant, she is compe- 
 tent to testify in her own behalf notwithstanding her husband, 
 as one of the executors of the estate, was a party defendant.'^ 
 But calling a widow for cross-examination in proceedings to 
 settle accounts does not enable her to testify to confidential com- 
 munications made during marriage.^" It has been held that call- 
 ing a husband or wife on cross-examination and consequent mak- 
 ing him or her a competent witness, renders the other also com- 
 petent, though not a party to the proceeding."^ 
 
 § 437. Competency — Cross-Examination — Calling for Purpose 
 Of — Practice. A witness called for cross-examination may be 
 treated by the party calling him in all respects as if he had origi- 
 nally testified in his own behalf. Leading questions may be put 
 to him and his evidence may be contradicted without giving him an 
 opportunity to explain."* But the defense may not be introduced 
 by examining a witness called by plaintiff for cross-examination, 
 on matters not touched upon by plaintiff."" The witness must be 
 recalled by the defendant at the proper time. If the defendant 
 takes depositions and calls a witness on cross-examination, but 
 refuses to allow plaintiff to examine him, the deposition cannot 
 be used.*" A party desiring to call an opponent for cross-ex- 
 amination must subpoena him or take his depositions if absent 
 from the state, in the same manner as other witnesses. He can- 
 not compel attendance by merely giving notice to appear for 
 
 siPorrester v. Torrence, 64 Pa. ^.^Qa^iley v. Danley, 179 Pa. 170. 
 
 29; Barr v. Frischkorn, 151 Pa. ' saXgyjor's Estate, 4 Dist. 691. 
 466. arwhite's Estate, 2 Dist. 808. See 
 
 ^^New York and Ontario Co. v. contra, Root's Estate, 11 Lane. 225. 
 Weidener, i6g Pa. 359. See §§ 309, "SBrubaker v. Taylor, 76 Pa. 83. 
 
 310. ""Corkery v. O'Neill, 9 Super. 
 
 33Stiles V. Bradford, 4 Rawle 335, 
 394; Bennett v. Williams, S7 Pa. "Gunnis v. Abbett, 17 W. N. C. 
 
 404. See § 177- 424- 
 
 "^Stockton V. Demuth, 7 Watts 
 39- 
 
WITNESSES. 
 
 397 
 
 cross-examination, and failure to appear in response to such no- 
 tice is not ground for continuance.*^ 
 
 § 438. Competency — Death or Lunacy of Party — Effect Of. 
 Whenever a party to a transaction is dead or has been adjudged 
 a lunatic,*- and his rights have passed to a party on the record 
 who represents his interest, no surviving party or other person 
 whose interest is adverse is competent to testify to matters occur- 
 ring before the death or lunacy of such person unless the pro- 
 ceeding is between surviving or remaining partners or joint 
 promisors of the deceased and the surviving party to the trans- 
 action or party whose inte|rest is adverse ; or unless the action is 
 ejectment and the party offered as a witness disclaims of record 
 and pays or gives security for costs to date, or the issue be de- 
 visavit vel non, or any action in regard to property of a deceased 
 owner and the controversy is between parties claiming by devolu- 
 tion, or unless the surviving party has been called to testify 
 against his interest or has released or extinguished such interest.*" 
 
 *'Grimsley v. Black, 54 Super. 
 413- 
 
 ^-It is not sufficient that a party 
 has been declared a weak-minded 
 person under Act June 25, 1895, P. 
 L. 300 : Sunderland's Estate, 14 
 Dist. 257. The Act of May 28, 
 1913, P. L. 358, provides that 
 ■"whenever, hereafter^ commission- 
 ers in lunacy shall declare a person 
 to have been a lunatic from a date 
 prior to such finding, then, in any 
 action affecting the title to land, 
 such finding and the record of any 
 proceedings of the commission shall 
 not be competent evidence, unless 
 the record affirmatively shows that 
 ten days' written notice of the time 
 and place of the meeting of the 
 commissioners was served on the 
 party or parties claiming title to 
 the land in question, at the time 
 of the issuing of the commission, 
 and unless such claim to title, ad- 
 verse to the lunatic, shall have 
 originated subsequent to the date 
 from which he or she is found to 
 have been a lunatic, and unless the 
 
 commissioners shall have found 
 that the person declared to be a 
 lunatic was a lunatic at the time 
 such adverse claim originated, suffi- 
 ciently identifying it." 
 
 *^Section S, clause (e) of the Act 
 of May 23, 1887, P. L. 158, provides 
 as follows : "Nor where any party 
 to a thing or contract in action is 
 dead, or has been adjudged a luna- 
 tic and his right thereto or therein 
 has passed, either by his own act 
 or by the act of the law, to a party 
 on the record, who represents his 
 interest in the subject in contro- 
 versy, shall any surviving or re- 
 maining, party to such thing or con- 
 tract, or any other person whose 
 interest shall be adverse to the said 
 right of such deceased or lunatic 
 party, be a competent witness to 
 any matter occurring before the 
 death of said party or the adjudica- 
 tion of his lunacy, unless the pro- 
 ceeding is by or against the surviv- 
 ing or remaining partners, joint 
 promisors or joint promisees, of 
 such deceased or lunatic party, and 
 
398 PENNSYLVANIA TRIAL EVIDENCE. 
 
 In order to disqualify a witness there must be some right of a 
 deceased party in dispute which may pass to a party on the record, 
 and the deceased must have been an actual party in interest. In- 
 terest in the question being tried but not in the immediate result 
 of the suit, is not sufficient." A surviving party to a transaction 
 is not incompetent if the action is brought, not in the right of 
 the deceased, but in the right of a living person. In such case no 
 right of the deceased passes to a party on the record.*' Like- 
 wise one who is merely an agent for a person or corporation in 
 transacting business for his principal, is not a party whose death 
 will render the other party to the contract incompetent ;*^ nor 
 will the death of the latter render the agent incompetent.*' 
 
 the matter occurred between such 
 surviving or remaining partners, 
 joint promisors or joint promisees 
 and the other party on the record, 
 or between such surviving or re- 
 maining partners, promisors or 
 promisees and the person having an 
 interest adverse to them, in which 
 case any person may testify to such 
 matters; or, unless the action be 
 ejectment against several defend- 
 ants, and one or more of said de- 
 fendants disclaims of record any 
 title, to the premises in controversy 
 at the time the suit was brought, 
 and also pays into court the costs 
 accrued at the time of his disclaim- 
 er, or gives security therefor, as the 
 court in its discretion may direct, 
 in which case such disclaiming de- 
 fendant shall be a fully competent 
 witness; or, unless the issue or" in- 
 quiry be devisavit vel non, or be 
 any other issue or inquiry respect- 
 ing the property of a deceased own- 
 er, and the controversy be between 
 parties respectively claiming such 
 property by devolution on the death 
 of such owner, in which case all 
 persons shall be fully competent 
 witnesses." 
 
 Clause (f) of section s pro- 
 vides : "But no person who is in- 
 competent under clauses (a), (b). 
 
 (c) and (d) of this section, shall 
 become competent by the general 
 language of clause (e)." 
 
 Section 6 of the act further pro- 
 vides : "Any person who is incom- 
 petent under clause (e) of section 
 five by reason of interest, may nev- 
 ertheless be called to testify against 
 his interest, and, in that event, he 
 shall become a fully competent wit- 
 ness for either party; and such 
 person shall also become fully com- 
 petent for either party, by a re- 
 lease or extinguishment, in good 
 faith, of his interest, upon which 
 good faith the trial judge shall de- 
 cide as a preliminary question." 
 
 ■•^Lancaster County Bank v. Hen- 
 ning, 171 Pa. 399; Strause v. 
 Braunreuter, 4 Super. 263. 
 
 "See § 445. 
 
 *8American Ins. Co. v. Shultz, 82 
 Pa. 46; Hostetter v. Schalk, 85 Pa. 
 220; Trexler v. Africa, 27 Super. 
 385 ; 232 Pa. 493. An executor or 
 trustee who contracts to sell land 
 of a decedent under a power of 
 sale : Rozelle v. Lewis, 37 Super. 
 563; or to whom a payment has 
 been made prior to his death : Nor- 
 ristown Trust Co. v. Lentz, 30 
 Super. 408, is merely an agent for 
 the estate and in case of his death 
 the other party to the contract is 
 
WITNESSES. 399 
 
 The Act cf 1887 makes no distinction between different classes 
 of civil actions, and the rule that where one party is dead an- 
 other cannot testify applies not only to actions of contract but 
 also to actions of trespass or tort, including those brought to re- 
 cover damages for personal injuries.*^ 
 
 § 439. Competency — Death or Lun&,ey of Party — Effect Of — 
 Surviving or Adverse Party — Competency in General. The death 
 of a party renders the survivor incompetent to testify even though 
 the decedent did not actively participate in the transaction. It 
 is the fact of occurrence in the life-time of the other and the pass- 
 ing of the right of the deceased to a party on the record who rep- 
 resents his interest, which excludes the witness.*' 
 
 A witness incompetent by reason of the death of a party to the 
 action, is not rendered competent on any principle of equality 
 upon the introduction of evidence on behalf of the deceased in re- 
 lation to the matter concerning which the witness cannot testify,'" 
 nor does the admission of testimony of the deceased taken at a 
 former trial render the survivor competent.'^ The fact that the 
 witness has testified at a former trial when the other party was 
 still living, does not make him competent at the second trial,'^ 
 though in such case his testimony in the prior trial, if available, 
 may be offered in evidence."^ 
 
 competent to testify. But a de holder : Comerer v. Ins. Co., 53 
 
 facto trustee sued in trespass for Super. 516. 
 
 forcibly taking possession of prop- soXoomey's Estate, 150 Pa. 535; 
 
 erty is a party whose death renders Smith v. Hay, 152 Pa. 377. 
 
 the other incompetent: Irwin v. ^^Evans v. Reed, 84 Pa. 254; La- 
 
 Nolde, 164 Pa. 205. cock v. Com., 99 Pa. 207. 
 
 ^'Sargeant v. Ins. Co., i8g Pa. s^pratt v. Patterson, 81 Pa. 114. 
 
 341. s^Evans v. Reed, 84 Pa. 254; 
 
 *8Irwin V. Nolde, 164 Pa. 205; Wells v. Ins. Co., 187 Pa. 166. 
 
 Lockard v. Vare, 230 Pa. 591. Where the defendant's attorney de- 
 
 *'SutherIand v. Ross, 140 Pa. clined to cross-examine the plain- 
 
 379; Rudolph V. Rudolph, 207 Pa. tiff because of the absence of his 
 
 339. A plaintiff in interpleader client, the plaintiff's testimony is 
 
 claiming title to goods by purchase not rendered inadmissible if the 
 
 from the defendant in the execu- client dies before the hearing, espe- 
 
 tion, is incompetent after the death daily when the plaintiff again pre- 
 
 of the defendant in the interplead- sented himself for cross-examina- 
 
 er : Smith v. Rishel, 164 Pa. 181. tion : Hays's Appeal, 91 Pa. 265. 
 
 A policy holder in a mutual insur- Testimony of a witness before an 
 
 ance company is incompetent to tes- auditor will not be stricken out 
 
 tify to matters which occurred in merely because in subsequent pro- 
 
 the lifetime of a deceased policy ceedings in lunacy the commission 
 
400 
 
 PENNSYLVANIA TRIAI, EVIDENCE. 
 
 Owing to the identity of interest of a husband and wife, if one 
 is rendered incompetent by reason of the death of a party to a 
 transaction, the other is also incompetent.^* 
 
 § 440. Competency — Death or Lunacy of Party — Effect Of — 
 Surviving or Adverse Party — Competency Eesulting from Calling 
 Third Persons in Whose Presence Transaction Occurred. If a trans- 
 action occurred between the deceased and a Hving witness or in the 
 presence and hearing of such witness who has been called to testify 
 against the survivor or person whose interest is adverse, the lat- 
 ter is thereby rendered competent to testify fully to matters 
 which happened before decedent's death. °^ The person in whose 
 presence the transaction took place must have been actually called 
 
 found that insanity existed prior to 
 the hearing before the auditor, and 
 the testimony is adverse to the 
 lunatic : Stone's Appeal, I Mona. 
 710. 
 
 «*Bitner v. Boone, 128 Pa. 567 ; 
 Sutherland v. Ross, 140 Pa. 379; 
 Walls V. Walls, 182 Pa. 226; Myers 
 V. Litt, 19s Pa. S9S; Berger ^. 
 Berger, 44 Super. 305 ; Burke v. 
 Burke, 240 Pa. 379. 
 
 5?Gold V. Scott, S Super, 262; 
 Krumrine v. Greenoble, 165 Pa. 98; 
 Kauss V. Rohner, 172 Pa. 481 ; 
 Brumbach v. McLean, 187 Pa. 602; 
 Proper v. Campbell, 1$ Super. 153; 
 Rudy V. Myton, 19 Super. 312; 
 Shannon v. Castner, 21 Super, 294. 
 , The Act of June 11, 1891, P. L. 
 287, provides as follows : "Hereafter 
 in any civil proceeding before any 
 tribunal of this commonwealth, or 
 conducted by virtue of its order or 
 direction, although a party to the 
 thing or contract in action may be 
 dead or may have been adjudged a 
 lunatic, and his right thereto or 
 therein may have passed, either by 
 his own act or by the act of the law, 
 to a party on the record who rep- 
 resents his interest in the subject 
 in controversy, nevertheless any 
 surviving or remaining party to 
 such thing or contract or any other 
 
 person whose interest is adverse 
 to the said right of such deceased 
 or lunatic party, shall be a compe- 
 tent witness to any relevant matter, 
 although it may have occurred be- 
 fore the death of said party or the 
 adjudication of his lunacy, if and 
 only if such relevant matter oc- 
 curred between himself and an- 
 other person who may be living at 
 the time of the trial and may be 
 competent to testify, and who does 
 so testify upon the trial and against 
 such surviving or remaining party 
 or against the person whose inter- 
 est may be thus adverse, or if 
 such relevant matter occurred in 
 the presence or hearing of such 
 other living or competent person." 
 Section 2 of the act provides: 
 "The testimony now made compe- 
 tent by the foregoing section may 
 also be taken by commission or 
 deposition, in accordance with the 
 laws of this commonwealth and the 
 •rules of the proper court, and, in 
 that event, the deposition thus taken 
 shall be competent evidence at the 
 trial or hearing, although the per- 
 son with whom or in whose pres- 
 ence or hearing such relevant mat- 
 ter occurred, may die or become 
 incompetent after the taking of 
 such deposition." 
 
WITNESSES. 401 
 
 to testify against the survivor before the latter is competent.^' 
 The fact that he is subsequently called does not render the prior 
 testimony of the survivor competent.'' He must also have been 
 called by and in the interest of, the party representing the de- 
 ceased'^ and adversely to the surviving party.'" Calling by the 
 latter for cross-examination and examination by his own side 
 concerning statements made on such cross-examination does not 
 make the adverse party competent."" But the party calling the 
 witness cannot deprive the other of the benefit of the Act of 1891 
 by refraining from asking who was present at the time the trans- 
 action occurred. If such matter is not disclosed, it may be 
 brought out on cross-examination."^ 
 
 The Act of 1891 was intended to apply only to relevant events 
 or conversations occurring in the presence of the third person, 
 and the survivor is made competent only as to those matters, and 
 cannot testify generally to contradict other matters testified to 
 by the witness."' The act applies though more than one witness 
 has been called on behalf of the decedent.®^ 
 
 The offer of the surviving or adverse witness should set forth 
 enough information to enable the court to determine whether he 
 is competent to testify under the provisions of the Act of 1891."* 
 
 § 441. Competency — Death or Lunacy of Party — ^Effect Of — 
 Surviving or Adverse Party — ^Devolution, Claim By. In an issue 
 devisavit vel non or any other issue or inquiry respecting the 
 
 '"Kauss V. Rohner, 172 Pa. 481 ; dent, the survivor is competent to 
 
 Montelius v. Montelius, 2og Pa. contradict such testimony: Morri- 
 
 541 ; Shoyer v. Smith, 204 Pa. son v. Curry, 43 Super. 648. li 
 
 310; Sunday v. Dietrich, 16 Super. both plaintiff and defendant in 
 
 640. ejectment claim through the same 
 
 ^'Roth's Estate, 150 Pa. 261. deceased grantor, both being there- 
 
 "Cake V. Cake, 162 Pa. 584; by incompetent, and plaintiff calls a 
 
 Patterson v. Hughes, 236 Pa. 315. witness who testifies to matters oc- 
 
 '"Robbins v. Farwell, 193 Pa. 37. curring before the grantor's death 
 
 ""Cake v. Cake, 162 Pa. 584. and in the presence of both parties, 
 
 •^Proper v. Campbell, 15 Super. defendant then becomes competent, 
 
 153. and after he has testified the plain- 
 
 «2Roth's Estate, 150 Pa. 261 
 Krumrine v. Greenoble, 165 Pa. 98 
 Thomas v. Miller, 165 Pa. 216 
 
 tiff is competent in his own behalf 
 as to the same matters : Rudolph v. 
 Rudolph, 207 Pa. 339. 
 
 Kauss v. Rohner, 172 Pa. 481. "^Smith v. Summerhill, 31 Super. 
 
 Where evidence of admissions of 235. 
 
 the surviving party has been given "^Krumrine v. Greenoble, 165 Pa. 
 
 in favor of the estate of the dece- 98. 
 
 26 
 
402 
 
 PENNSYLVANIA TRIAL EVIDENCE. 
 
 property of a deceased person where the controversy is between 
 persons claiming by devolution from such deceased owner, their 
 interests are not adverse to the deceased but only adverse to each 
 other, and all persons are competent to testify."' In such contro- 
 versy, one claiming as widow of the deceased is competent to 
 prove the fact of her marriage as against her husband's next of 
 kin,*"* and children of the testator are not rendered incompetent 
 because advancements were made to them by the deceased in his 
 lifetime, since such advancements formed no part of the testator's 
 estate, and he had no interest in them which could pass to a party 
 on the record."^ 
 
 This exception to the general rule applies only where both 
 parties to the controversy claim by devolution, and not where 
 one claims by devolution and the other ty devise under the dece- 
 dent's will*' or as grantee from the deceased. "^ For the same 
 
 65Act May 23, 1887, P. L. 158, 
 § S, clause (e). See § 438, note 43. 
 
 eeComly's Estate, 185 Pa. 208; 
 Miller's Estate, 34 Super. 385. 
 
 "'Allen's Estate, 207 Pa. 325. 
 
 o^Munson y. Crookston, 219 Pa. 
 419. In this case the defendant 
 claimed by right of curtesy and 
 plaintiffs as devisees under the will 
 of defendant's wife, and defendant 
 was held incompetent on the ground 
 that he claimed by devolution and 
 plaintiffs by purchase. In Hunt's 
 Appeal, 100 Pa. 59°, decided under 
 the Act of April 15, 1869, P. L. 30, 
 containing provisions similar to the 
 Act of 1887, a widow was held in- 
 competent in a controversy be- 
 tween her and her children, though 
 both claimed by devolution, the 
 former claiming her exemption and 
 dower rights and the latter as heirs, 
 where the sole question was whether 
 a contract between the widow and 
 her deceased hubsand existed by 
 which neither was to claim any share 
 in the estate of the other, the widow 
 in such case being in the position of 
 claiming against the contract which, 
 if established, gave the children the 
 
 property covered by her dower and 
 exemption, not by devolution but 
 by virtue of the contract. But in 
 Hayes's Estate, 23 Super. 570, it 
 was held that in a contest between 
 a husband claiming against the will 
 of his wife, and children claiming 
 under the will, the husband was a 
 competent witness. In this case the 
 Superior Court affirmed the opinion 
 of the auditing judge who professes 
 tfi follow Hunt's appeal, and quotes 
 what he says is the language of the 
 Supreme Court in the latter case. 
 However, instead of quoting the 
 language of the Supreme Court, he 
 quotes the language of the auditing 
 judge of the lower court, which 
 was reversed by the Supreme Court 
 on the point in question. The de- 
 cision is not only inconsistent with 
 the case it professes to follow, but 
 is in effect overruled by Munson v. 
 Crookston. 
 
 i'5>King v. Humphries, 138 Pa. 
 310; Crothers v. Crothers, 149 Pa. 
 201 ; Baldwin v. Stier, 191 Pa. 432 ; 
 Campbell v. Brown, 183 Pa. 112, 
 In proceedings between heirs claim- 
 ing title to property through their 
 
WITNESSES. 403 
 
 reason, a son who claims against his father's estate as creditor 
 and not as heir, is incompetent.'" 
 
 § 442. Competency — Death or Lunacy of Party — ^Effect Of — 
 Surviving or Adverse Party — Disclaimer by Defendant in Eject- 
 ment. Where one or more of several defendants in ejectment 
 disclaims of record any title to the premises in controversy at 
 the time suit was brought and pays or secures costs accrued, such 
 persons are competent witnesses even though they may have an 
 interest adverse to the right of the deceased.''^ The competency 
 of the witness in such case does not depend upon his interest in 
 the controversy but whether he has filed a disclaimer and paid or 
 secured costs. '^ The disclaimer may be filed on the trial of the 
 case." 
 
 § 443. Competency — Death or Lunacy of Party — Effect Of — 
 Surviving or Adverse Party — Interest Must Be Adverse. The dis- 
 qualification of a witness under Section 5, clause (e), of the Act 
 of 1887, depends not only on the fact of survivorship but also on 
 the fact of having an interest in the thing or contract in action 
 adverse to the deceased or lunatic,'* and it is this adverse inter- 
 est, which must exist at the time the witness is called,'^ and not 
 mere adverse testimony of the witness,"* that disqualifies. Mere 
 
 deceased father and mother respec- penter v. Ins. Co., 161 Pa. 9; Patti- 
 
 tively, one party claiming through son v. Cobb, 212 Pa. 572. 
 
 conveyance alleged to have been ^^pj^st National Bank v. Gerli, 
 
 made from the father to his wife in 225 Pa. 256. 
 
 their lifetime, neither plaintiff nor '^fjorne & Co. v. Petty, 192 Pa. 
 
 defendant is a competent witness : 32 ; First National Bank v. Gerli, 
 
 Parry v. Parry, 130 Pa. 94. 225 Pa. 256. A surviving partner 
 
 '"Fry's Estate, 229 Pa. 473. sued on a firm note may testify that 
 
 '^Section 5, clause (e), of Act the note was not in fact made by 
 
 May 23, 1887, P. L. 158. See § 438, the firm, even though this testi- 
 
 note 43. mony tends to make the deceased 
 
 '^Africa v. Trexler, 232 Pa. 493. partner hable in his individual ca- 
 
 Filing disclaimer without payment pacity. Such testimony is in the 
 
 or securing of costs does not ren- interest of both partners so far as 
 
 der a party competent : Burke v. the particular suit is concerned : 
 
 Burke, 240 Pa. 379. Lancaster Bank v. Henning, 171 Pa. 
 
 '^Myers v. Devens, i Del. Co. 399. In a boundary dispute, the 
 
 448. This case was decided undei owner of adjoining land who has 
 
 the Act of March 27, 1867, P. L. 47, no interest in the particular land in 
 
 v^hich contained a provision similar suit, is competent to testify, though 
 
 to the Act of 1887. he is interested in the question in- 
 
 '*Dixon v. McGraw, 151 Pa. 98; volved as affecting his own land: 
 
 Tarr v. Robinson, 158 Pa. 60; Car- Metcalf v. Buck, 36 Super. 58. So 
 
404 PKNNSYLVANIA TRIAL BVIDljNCi;. 
 
 interest in the question involved will affect his credibility, but not 
 
 also the former owner is competent 
 to show the location of the bound- 
 ary as pointed out to him by his 
 grantor prior to his decease, since 
 he does not claim adversely to the 
 grantor : Norris v. Dalrymple, 18 
 Super. 287. An interested person 
 may testify in favor of an estate: 
 Toomey's Estate, 150 Pa. 535; 
 Gerz V. Weber, 151 Pa. 396; Smith 
 V. Hay, 152 Pa. 377; Crosetti's Es- 
 tate, 211 Pa. 490. An executor is 
 also competent for that purpose: 
 Foringer v. Sisson, 14 Super. 266; 
 though he is joined individually as 
 defendant in the suit : Yeakel v. 
 McAtee, 156 Pa. 600. Relationship 
 to a party to a suit does not dis- 
 qualify: Fowler v. Smith, 153 Pa. 
 Pa. 639, A son of a deceased part- 
 ner is a competent witness for the 
 other partners in an action against 
 a debtor of the firin as to matters 
 occurring in his father's life-time : 
 Graff V. Callahan, 158 Pa. 380. A 
 husband may testify that he was 
 indebted to his wife's estate: Rine 
 V. Hall, 187 Pa. 264 ; and where the 
 defense to an action by a wife on 
 a fire insurance policy is that prop- 
 erty belonged to her husband, she 
 is a competent witness after the 
 death of husband, as he had no in- 
 terest in the proceeds of the policy : 
 Mix V. Ins. Co., 169 Pa. 639. The 
 defendant in an execution may tes- 
 tify in interpleader proceedings be- 
 tween a claimant of the property 
 and the executors of the deceased 
 execution plaintiff : Smith v. Rishel, 
 164 Pa. 181; McCartney v. Kipp, 
 171 Pa. 644. A guarantor, after be- 
 ing discharged in bankruptcy, is 
 competent in an action by an exec- 
 utor of the payee against the maker, 
 to prove payment in the life-time 
 of the payee : Pattison v. Cobb, 212 
 
 Pa. 572 ; and a surety for a loan to 
 a husband who in turn loaned the 
 money to his wife, is competent 
 after her death to" testify in support 
 of her husband's claim against her 
 estate: Spott's Estate, 156 Pa. 281. 
 The payee of a check given him to 
 be applied for the benefit of a third 
 person is competent in proceedings 
 to collect check from estate of 
 drawer : Taylor's Estate, 154 Pa. 
 183 ; and in a proceeding by a 
 grantor against a trustee to revoke 
 a trust deed after death of the 
 beneficiary, the trustee who claims 
 nothing adversely to anybody is a 
 competent witness for the grantor: 
 Sturgeon v. Stevens, 186 Pa. 350. 
 Where one son claims from the es- 
 tate of another a contribution for 
 their father's maintenance in pur- 
 suance of an agreement to that ef- 
 fect between the sons, the father 
 is not interested adversely to the 
 deceased son, and is a competent 
 witness : Compton's Estate, 30 
 Super. 605. 
 
 The maker or guarantor of a 
 note is not competent to testify to 
 matters tending to relieve himself 
 from liability to the payee where 
 the latter is dead : Foster v. Alls- 
 house, 222 Pa. 446; First National 
 Bank v. Gerli, 225 Pa. 256; Patti- 
 son V. Cobb, 26 Super. 72; and one 
 who signed a bond to indemnify a 
 sheriff has an interest adverse to 
 the deceased owner of goods: Kyte 
 v. Foran, 167 Pa. 252. In an action 
 by an assignee for creditors of a 
 bank against sureties on the bond 
 of the vice president, a directoi- 
 who had entered into an agreement 
 with the depositors to pay them in 
 full and take an assignment of their 
 claims, is not competent to testify 
 for the plaintiff : Gunster v. Jes- 
 
WITNKSSBS. 
 
 405 
 
 his competency. ^^ 
 
 § 444. Competency — Death or Lunacy of Party — Effect Of — 
 Surviving or Adverse Party — ^Partners or Joint Parties Surviv- 
 ing Deceased — Proceedings Against. If a proceeding is by or 
 against surviving or remaining partners, joint promisors or joint 
 promisees of a deceased or insane person, and the transaction 
 occurred between them and the other party on the record or one 
 virhose interest is adverse to them, all persons are competent to 
 testify thereto.'* But the testimony of the other party to the 
 record or adverse witness will be limited to matters occurring 
 between him and the surviving partners or joint parties. He 
 cannot testify generally to matters which occurred in the lifetime 
 
 sup, 196 Pa. S48; and one who 
 holds land by gift from a defend- 
 nnt. which land would be liable to 
 the lien of any judgment recovered 
 by an administrator of a deceased 
 creditor of the estate, is incompe- 
 tent to testify for the defendant : 
 Keener v. Zartman, 144 Pa. 179; 
 and in a contest between the estates 
 of a husband and wife, both de- 
 ceased, a child is incompetent to 
 testify in favor of either estate, as 
 such testimony would necessarily be 
 adverse to the other : Crosetti's 
 Estate, 211 Pa. 490. In a scire fa- 
 cias on a mortgage given to secure 
 payment of notes of the mortgagor 
 and third persons, who are not 
 parties to the mortgage, such per- 
 sons are not competent to testify 
 for the defendant as to matters 
 which occurred in the life-time of 
 the deceased mortgagee, since they 
 have an interest in the entry of 
 judgment on the mortgage : Boltz 
 V. Muehlhof, 37 Super. 375. Nor is 
 a brother of a mortgagor, whose 
 debt the mortgage was given to 
 secure, a competent witness for the 
 mortgagor in foreclosure proceed- 
 ings after death of the mortgagee: 
 Patterson v. Hughes, 236 Pa. 315; 
 nor may a terre-tenant, after death 
 of the mortgagor, testify he had 
 
 purchased the property prior to the 
 execution of the mortgage : Griggs 
 V. Vermilya, 151 Pa. 429. In an 
 action by the executors of a mort- 
 gagee for possession of premises 
 purchased under foreclosure pro- 
 ceedings, the mortgagor, to whom 
 a release of part of the premises 
 was given by the mortgagee, and 
 which release was delivered to the 
 vendee of such part but not re- 
 corded, is not a competent witness 
 for the vendee concerning matters 
 which occurred in the lifetime of 
 the mortgagee, since the mortgagor 
 is interested because liable on the 
 covenants in his deed : Barbour v. 
 Wiehle, 116 Pa. 308. 
 
 '^'McMurray's Appeal, loi Pa. 
 421 ; Lancaster Bank v. Henning, 
 171 Pa. 399; Metcalf v. Buck, 36 
 Super. 58. 
 
 'SAct May 23, 1887, P. L. 158, § S, 
 clause (e) ; § 438, note 43. This 
 provision is a re-enactment and ex- 
 tension of the Act of May 28, 1878, 
 P. L. 153, relating to transactions 
 v/ith surviving partners. The latter 
 act was liberally construed and was 
 held to include the case of any two 
 or more persons who had contract- 
 ed jointly, even though they were 
 not strictly partners : Ash v. Guie, 
 97 Pa. 493- 
 
4o6 
 
 PENNSYLVANIA TRIAL KVIDENCE. 
 
 of the deceased." He may, however, testify to transactions with 
 the deceased partner in the presence of a surviving partner, al- 
 though the latter be absent from the trial. ^'' The provisions of 
 the Act of 1887 do not apply where the proceedings are between 
 the surviving partners themselves.*^ 
 
 § 445. Competency — Death or Lunacy of Party — Effect Of — 
 Surviving or Adverse Party — Party of Record — Rights of Deceased 
 Passing To. A surviving or adverse party is not disqualified un- 
 less it appears that the deceased actually had some right in the 
 matter in controversy, which right has passed to a party on the 
 record who represents his interest. If the deceased, prior to his 
 death, had actually parted with his interest in the matter, there 
 is no reason for excluding the testimony of the survivor as it 
 could not be adverse in a legal sense to one who can no longer be 
 affected by the result of the suit. Therefore the mere fact that 
 one of the parties to a litigation has derived his right, title or 
 interest from one who has since died, is no ground for rejecting 
 him as a witness if the opposite party on the record does not rep- 
 resent the rights of the deceased and has derived no right or 
 claim through him.*^ Thus, if a controversy on the settlement 
 
 '"Lockard v. Vare, 230 Pa. 591. 
 A person suing a partnership for 
 damages is incompetent to testify 
 to the circumstances of the accident 
 where one of the partners died 
 after the accident and before the 
 trial: Id. 
 
 ^''Equitable Trust Co. v. Bowen, 
 201 Pa. 534. 
 
 '^Garretson v. Brown, 185 Pa. 
 447- 
 
 *-Davis V. Hawkins, 163 Pa. 228 ; 
 Royer v. Ephrata Boro., 171 Pa. 
 429; Shrader v. U. S. Glass Co., 
 179 Pa. 623; Strauss v. Braunreut- 
 er, 4 Super. 263; Broadrick v. 
 Broadrick, 25 Super. 225 ; Power v. 
 Grogan, 232 Pa. 387. Any other 
 rule would become burdensome and 
 virtually exclude all parties in some 
 cases, as for instance, where there 
 is a dispute over title to realty . 
 Duffield V. Hue, 129 Pa. 94. 
 
 A wife sued jointly with her hus- 
 
 band on a joint note may testify 
 she signed only as surety for her 
 husband who has died since the be- 
 ginning of the action, but whose 
 representatives have not been made 
 parties to the record. In such case 
 the estate of the deceased husband 
 would not be affected by the judg- 
 ment, and it is therefore interested 
 only in the general question and not 
 in the immediate result of the suit : 
 Strause v. Braunreuter, 4 Super. 
 263. For the same reason, a sur- 
 viving partner sued on a firm note 
 may testify it was not in fact made 
 by the firm even though such testi- 
 mony tends to make the deceased 
 partner liable individually : Lancas- 
 ter Bank v. Henning, 171 Pa. 399. 
 A wife who sues for damages for 
 the death of her husband sues in 
 her own right and not in a repre- 
 sentative capacity, and the defend- 
 ant is a competent witness : Mann 
 
WITNHISSES. 407 
 
 of a decedent's estate is whether a certain transfer of property 
 by the deceased during his lifetime to his son constituted a gift 
 or an advancement, it being conceded to have been one or the 
 other, the son would be a competent witness because the whole 
 interest of the father would have passed to him under either con- 
 struction, and the father had no right in the property which could 
 pass to a party on the record.*^ On the same principle, where 
 the certificate in a beneficial society is taken in the name of the 
 wife of a member, on the latter's death the wife claims in her 
 own right and not in the right of her husband, and other mem- 
 bers of the association are competent to testify in its behalf.** 
 But if the question in dispute is whether or not the deceased had 
 an interest, as in an action to enforce an alleged gift mortis causa 
 where the question is whether or not the gift had in fact been 
 made, there is then a right in the decedent which passes to the 
 party denying the gift and disqualifies the other as a witness.*' 
 
 § 446. Competency — Death or Lunacy of Party — Effect Of — 
 Surviving or Adverse Party — Eelease or Extinguishment of In- 
 terest. Surviving parties or other persons whose interest is ad- 
 verse to the deceased, may become competent witnesses by a re- 
 lease or extinguishment of their interest in good faith.*", The. 
 words "release or extinguish," used in the Act of 1887, if strictly 
 construed would require that the interest of the witness should 
 
 V. Weiand, 81* Pa. 243; and a hus- taches the interest of the assignor 
 band who joins in a deed of his of an estate is not such party to the 
 wife's property is not a party in a.ssignment whose death will ren- 
 interest whose death will render the der the assignor and assignee in- 
 grantee incompetent, his only right competent to testify that the assign- 
 being an inchoate right of curtesy ment was made in good faith : 
 which died with him and there was Kuhn's Estate, 163 Pa. 438. See 
 no right of his to pass to a party also Dutton's Estate, 181 Pa. 426. 
 on the record: Gold v. Scott, S See § 443, note 76. 
 Super. 262. An attorney sued by ^^AUen's Estate, 207 Pa. 325. 
 the agent of a decedent to recover 8*Hamill v. Royal Arcanum, 152 
 a fee paid him by mistake is com- Pa. 437. One claiming against the 
 petent to testify, since the client has beneficiary under a verbal agree- 
 no interest in the suit : Girard ment with the deceased to make the 
 Trust Co. V. Harrijigton, 23 Super, claimant the beneficiary, may also 
 615. The assignee" of a contract is testify in his own favor: Broad- 
 also a competent witness in a suit rick v. Broadrick, 25 Super. 225. 
 thereon, though the assignor may ^^LiSiVelle. v. Melley, 27 Super. 69. 
 be dead: Carpenter v. Ins. Co., 161 ssAct of May 23, 1887, P.L. 158, 
 Pa. 9; Ramble v. Coal Co., 47 § 6; see § 438, note 43: Walls v. 
 Super. 28; and a creditor who at- Walls, 182 Pa. 226. 
 
4o8 
 
 PrCNNSYLVANIA TRrAL EVIDENCF,. 
 
 be terminated not only as to himself but as to the party against 
 whom he proposes to testify. A mere assignment could not ac- 
 complish this result as the claim would he neither released nor 
 extinguished but would be in full force as to the party charged 
 by it. But if the legislature had contemplated a strict interpre- 
 tation of the words release or extinguish, there would have been 
 no need to add the requirement that it be made in good faith, 
 since that question would be immaterial to a release or ex- 
 tinguishment given an opponent. The language of the act there- 
 fore implies some latitude in construction, and a transfer of in- 
 terest by an assignment, conveyance or otherwise may be effective 
 providing it is shown to have been made in good faith and not 
 merely for the purpose of evading the law.*' 
 
 Whether an assignment has been made in good faith is a pre- 
 liminary question to be decided by the court,** and cannot after- 
 wards be submitted to the jury,*" although if the witness has 
 been examined as to his motive and good faith in making an as- 
 
 8'Darragh v. Stevenson, 183 Pa. 
 397. This is substantially the rule 
 of Post V. Avery, s W. & S. S09> to 
 the effect that an assignment which 
 i? merely colorable will not make a 
 party a competent witness. 
 
 An interested witness is rendered 
 competent by an assignment long 
 before suit brought and in the life- 
 time of the decedent : Miller v. 
 Withers, 188 Pa. 128; or by a con- 
 veyance by a quit-claim deed of all 
 interest in an estate after the be- 
 ginning of a suit: Parry y. Parry, 
 130 Pa. 94; Cobb V. Cobb, 4 Super. 
 273 ; or by assignment of cor- 
 porate stock in good faith pending 
 suit by a corporation against the 
 estate of a deceased debtor of the 
 corporation : Hartranf t's Estate, 8 
 Montg. 81; affirmed IS3 Pa. S3o; 
 or by a surrender of a mutual in- 
 surance policy and cancellation of 
 premium notes : Comerer v. Ins. 
 Co., S3 Super. 516; and it has been 
 held that an assignment direct to 
 minors without the interposition of 
 a guardian does not in itself im- 
 
 peach the good faith of the trans- 
 action : Ross's Estate, 43 P. L. J. 
 266. 
 
 But an assignment made just 
 prior to trial and for the purpose of 
 enabHng a witness to testify, is not 
 made in good faith within the 
 meaning of the statute : Verstine v. 
 Yeaney, 210 Pa. 109; Darragh v. 
 Stevenson, 183 Pa. 397; Matthews 
 V. Matthews, 11 Super. 380; Gun- 
 ster V. Jessup, 196 Pa. 548; Morgan 
 V. Coal Co., 215 Pa. 443; nor may a 
 married woman having a claim 
 against an estate, make herself and 
 husband competent by assigning 
 their interest for a nominal con- 
 sideration to their children : Dunn's 
 Estate, 19 Lane. 255. 
 
 ''Section 6, Act of 1887, § 438, 
 note 43 ; Semple v. Gallery, 184 Pa. 
 0.S ; Turner v. Warren, 160 Pa. 
 336; Morgan v. Coal Co., 215 Pa. 
 443 ; Comerer v. Ins. Co., 53 Super. 
 .S16. 
 
 *"Semple v. Callery, 184 Pa. 95; 
 Comerer v. Ins, Co., 53 Super. 516. 
 
WITNESSES. 409 
 
 signment, his credibility may be passed upon by the jury."" Per- 
 mitting a witness to be sworn is a determination by the court that 
 the transaction was made in good faith. "^ 
 
 Creditors of a decedent whose claims are allowed by the exec- 
 utor, are not thereby rendered competent to testify that the claim 
 was a proper one, on behalf of the administrator who is claiming 
 credit from the estate for such payments."^ But where the exec- 
 utor in good faith paid a claim by a widow against the decedent's 
 estate in the lifetime of a witness who could have proved the 
 claim, the widow is competent to prove such claim as a credit 
 for the executor's account."^ 
 
 § 447. Competency — Death or Lunacy of Party — Effect Of — 
 Surviving or Adverse Party — Subsequent Occurrences — Compe- 
 tency to Testify To. All persons may freely testify to existing facts 
 or conditions or matters occurring since the death of the other 
 party to a transaction, even though such testimony tends to prove 
 inferentially facts or conditions which existed prior thereto.'** 
 But if the testimony necessarily relates to or tends to establish 
 facts which existed or occurred in the decedent's lifetime, it is 
 incompetent."' Thus marriages and births occurring in the life- 
 time of the deceased, and questions of relationship to him,^* or 
 
 ""Cobb V. Cobb, 4 Super. 273; 320; or that she had seen a note 
 
 Turner v. Warren, 160 Pa. 336. which is the basis of an action 
 
 '^Turner v. Warren, 160 Pa. 336. shortly after the death of the maker 
 
 '^Fross's Appeal, 105 Pa. 258; and that it was then in the same 
 
 Burton's Estate, 3 Dist. 755. Com- condition as it appeared at the trial : 
 
 pare Gladfelter's Estate, 17 York Pennell v. PhilHps, 53 Super. 324. 
 
 171. "'Foster v. Collner, 107 Pa. 305 ; 
 
 "^Fulmer's Estate, 3 Dist. 457. Adams v. Edwards, 115 Pa. 211. If 
 
 ^*Weaver v. Roth, 105 Pa. 408; a negative answer to a question as 
 
 Adams v. Edwards, iiS Pa. 211; to the existence of certain facts 
 
 Krepps V. Carlisle, 157 Pa. 358; after the decedent's death would 
 
 Hoffer's Estate, 156 Pa. 473. An show that such state of facts were 
 
 interested witness may testify in existence prior to his death, tha 
 
 where and in whose possession question is incompetent : Shultz v. 
 
 property was found by executors : Boeh^e, i Mona. 245. "The dis- 
 
 Stephens v. Cotterell, 99 Pa. 188; tinction between the two classes of 
 
 Porter v. Nelson, 121 Pa. 628; cases is not a very broad one, and 
 
 Patterson v. Dushane. 137 Pa. 23; in the observance of it in practice, 
 
 or describe the condition of an ob- many cases must necessarily fall 
 
 ject subsequent to decedent's death: close to the border line." Per RicE, 
 
 Rothrock v. Gallagher, 91 Pa. 108; P. J., in Keating v. Nolan, 51 
 
 or testify to the date of decedent's Super. 320. 
 
 death: Keating v. Nolan, 51 Super. o" Adams v. Edwards, 115 Pa. 211. 
 
4IO PENNSYLVANIA TRIAL EVIDENCE. 
 
 whether the witness owed the deceased anything at the time of 
 his death," though existing facts, are facts which also existed 
 prior to the death of the other and cannot be shown by an inter- 
 ested witness. And if the plaintiff dies after judgment or decree 
 obtained, the defendant is not' competent, in proceedings to open 
 the judgment or set aside the decree, to testify to facts which 
 occurred before plaintiff's death."* 
 
 It has been held that a surviving party to a transaction who is 
 called to testify to matters which occurred after the decedent's 
 death cannot be cross-examined, against objection, on matters 
 which occurred before it."" The party desiring his testimony 
 should call him in his own case as on cross-examinaton.^"" 
 
 Whether a surviving or interested party may testify that the 
 signature to a paper which purports to have been executed in 
 the lifetime of the deceased, who was a party to it, is a forgery, 
 does not clearly appear from the decisions. In Foster v. Collner, 
 107 Pa. 305, it was held that such witness could not testify that 
 endorsements on a note were in pencil and not in ink, it being ad- 
 mitted that the note was in the same condition at the time of 
 trial as it was at the time of death of the other party, the court 
 saying that if competent to prove such fact there was no reason 
 why he was not competent to prove the signature a forgery and 
 thus destroy the note. In Sutherland v. Ross, 140 Pa. 379, it 
 was heH that a grantor in a deed was not competent, after the 
 death of the grantee, to testify that his signature was forged and 
 the acknowledgment untrue. This decision was put on the 
 ground that he was a surviving party to a transaction which oc- 
 curred before the death of the grantee and the question whether 
 the substance of the testimony would make it evidence of a fact 
 existing subsequent to the death of the other party was not dis- 
 cussed in the opinion of the court. The decision was reaffirmed, 
 on a second appeal of the case.^ But in Toomey's Estate, 150 
 Pa. 535, it was stated by the lower court in an opinion which 
 was affirmed on appeal, that an opinion as to handwriting, being 
 based on an inspection of a paper shown the witness at the time, 
 
 "^Lahey v. Heenan, 81 Pa. 185. Tintsman v. Croushore, 104 Pa. 
 
 "sWalsh V. Dillen, 2 Kulp S; 192. 
 
 Salsburg v. Kopcha, 10 Kulp 410; looSee Tintsman v. Croushore, 
 
 Fidelity Trust Co.'s Appeal, 93 Pa. 104 Pa. 192. See § 435. 
 
 242. 1160 Pa. 29. 
 
 i'»Bierly's Estate, &\* Pa. 419; 
 
WITNESSES. 41 1 
 
 was an expression of a fact existing after the death of the party, 
 and therefore competent. In this case, however, the witness 
 was competent on the ground that the testimony was not adverse 
 to the deceased but in favor of the estate, the instrument alleged 
 to be forged having been the basis of a claim against the estate. 
 The case is therefore not an authoritative decision on the ques- 
 tion in point. In Ilyus v. Buch, 34 Super. 43, judgment had 
 been entered by an executor against defendant on a bond given 
 to the deceased in his lifetime, and a rule was taken to open the 
 judgment on the ground that the signature thereon was a forgery. 
 The only testimony on the rule to open was that of defendant 
 and one other witness. The lower court discharged the rule, 
 which action was affirmed on appeal on the ground that no abuse 
 of discretion was shown Morrison, J., filed a dissenting opinion 
 saying he did not agree with the lower court in holding the de- 
 fendant incompetent to testify that her name was forged, and re- 
 ferred with approval to the reasoning of the lower court in 
 Toomey's estate. The learned judge further said : "Upon sound 
 legal principles and reason it must be that if A forges an in- 
 strument against B, purporting to show that the latter had bor- 
 rowed money and given the obligation therefore, and A puts the 
 writing in his safe and dies, and thereafter his legal representa- 
 tives attempt to collect it, B can look at the instrument and testify 
 that it is not his signature ; that it is a forgery. The very nature 
 of the transaction conclusively shows that A is not pretending 
 to testify to anything that happened between himself and the 
 decedent." \There is nothing in the opinion of the majority of 
 the court in this case to indicate whether they did or did not con- 
 sider the defendant a competent witness, the ground of the de- 
 cision being that no abuse of discretion in refusing to open the 
 judgment was shown. 
 
 It will be observed that none of the above cases can be con- 
 sidered as expressly deciding the question under discussion. 
 While there is much force in the reasoning of Toomey's Estate and 
 in the dissenting opinion in Ilyus v. Buch, yet a case of alleged 
 forgery of a paper to which the deceased is a party seems to fall 
 directly within the established rule that if the testimony as to 
 existing facts necessarily relates to or tends to establish facts 
 which existed or occurred in the decedent's lifetime, the surviving 
 witness is incompetent.- The reasoning of the dissenting judge 
 
 ^See cases note 95, above. 
 
412 PENNSYLVANIA TRIAL, UVIDENCF,. 
 
 in Ilyus v. Buch to the effect that the very nature of the trans- 
 action conclusively shows that the survivor in declaring a writing 
 to be a forgery is not pretending to testify to anything that hap- 
 pened between him and the decedent, loses sight of the fact that 
 the qualification of the witness is to be determined from a con- 
 sideration of the facts as they appear when he is offered and 
 not as they will appear if the allegation of forgery is finally estab- 
 lished, and until that is done the presumption is in favor of inno- 
 cence and that the instrument was rightly obtained, and to permit 
 the surviving party to attempt to overthrow such presumption in 
 the first instance by his own testimony is a plain violation of the 
 express statutory provision making him incompetent. While this 
 rule would appear to impose a hardship on the survivor if the 
 instrument were in fact forged, it would impose an equal hard- 
 ship and inequality on the estate of the deceased if in fact it be 
 genuine. Furthermore, the hardship on the survivor is no greater 
 than in many other cases where a party to the transaction is 
 dead. The adoption of a rule which would permit the party al- 
 leging forgery to testify only in corroboration of other evidence 
 tending to establish the truth of such allegation and rebut the 
 presumption of innocence, would seem to meet the objection 
 pointed out by Judge Henderson in Ilyus v. Buch, and to do sub- 
 stantial justice between the parties without violating the spirit of 
 the Act of 1887. 
 
 § 448, Competency — Death or Lunacy of Party — Effect Of — 
 Surviving or Adverse Party — Testifying Against Interest. A wit- 
 ness is always competent to testify against his own interest, re- 
 gardless of whether the other party to the transaction is dead or a 
 lunatic, and in that event he becomes a fully competent witness 
 for either party. ^ Thus in the distribiition of a decedent's estate, 
 parties interested therein are all competent to testify in favor of 
 the estate, though they could not testify against it.* But in an 
 action against partners on a note, if only one makes a defense 
 the other is not competent, after the death of the plaintiff, to 
 testify that the firm name was used without authority and that 
 the debt was his own individually, since such testimony is not 
 against but in favor of his interest in the particular suit, the ac- 
 tion being against the firm." 
 
 "Act May 23, 1887, P. L. 158, § 6; ^Crosetti's Estate, 211 Pa. 490. 
 
 sec S 438, note 43 : Trymby v. An- "Dick v. Williams, 130 Pa. 41. 
 
 dress, i/S Pa. 6. 
 
WITNESSES. 413 
 
 § 449. Competency — Determination of Question — Preliminary 
 Examination. Every person is presumed to be a competent wit- 
 ness until the contrary is shown by the person objecting to him." 
 This may be done by examining him on his voir dire, or by offer- 
 ing other evidence on the subject. The objecting party may choose 
 either of these methods, but he cannot adopt both. The adoption 
 of one excludes the other.' But if the witness states on his voir 
 dire that he does not know whether he is interested or not, other 
 evidence may then be resorted to to prove his incompetency.' 
 
 A witness who appears prima facie incompetent cannot render 
 himself competent by his own unsupported testimony on his voir 
 dire at the instance of the party calling him," nor may such party 
 offer him as a witness in support of his own competency after 
 the other has given evidence aliunde to show his incompetency.'^" 
 But if he proves his own competency in answer to questions on 
 cross-examination by the party objecting, the latter cannot corn- 
 plain.^^ And where he testifies on his voir dire to facts showing 
 interest and on examination by the party calling him states facts 
 showing that he had no interest, the contradictory statements 
 must be considered together, and the witness will be admitted.^- 
 
 A witness may not purposely disqualify himself to avoid testi- 
 fying," and therefore his declarations made prior to trial and 
 tending to show interest do not render him incompetent,^* but 
 merely affect his credibility.'^ But proof that the party calling 
 
 ^Perryville Produce Co. v. Thom- "Banks v. Clegg, 14 Pa. 390; 
 
 as, 20 Pa. 91 ; McClelland v. West, Miley v. Todd, 17 Pa. loi ; Pitts- 
 
 ;o Pa. 183; Shadle's Estate, 30 burgh Coal Co. v. Foster, 59 Pa. 
 
 Super. 151. 365. 
 
 'Mifflin V. Bingham, "i Dal. 272 ; i» Vincent v. Huff, 4 S. & R. 298 ; 
 
 Anderson v. Young, 21 Pa. 443; Gordon v. Bowers, 16 Pa. 226; 
 
 Gordon v. Bowers, 16 Pa. 226; Anderson v. Young, 21 Pa. 443; 
 
 Schnader v. Schnader, 26 Pa. 384. Peiflfer v. Lytle, 58 Pa. 386. 
 
 "Shannon v. Com., 8. S. & R. i^Haynes v. Hunsicker, 26 Pa. 58. 
 
 444; Galbraith v. Galbraith, 6 i^gia^kstock v. Leidy, 19 Pa. 
 
 Watts 112. The fact that a party 335. 
 
 had cross-examined a witness as ^^Long v. Bailie, 4 S. & R. 222. 
 
 to his interest under a rule to take i*Pollock v. Gillespie, 2 Yeates 
 
 depositions prior to trial, does not 129; Carmalt v. Piatt, 7 Watts 
 
 constitute an 'election between the 318; Walker v. Coursin, 19 Pa. 
 
 two methods, such cross-examina- 321 ; Erisman v. Walters, 26 Pa. 
 
 tion not being on the same footing 467. 
 
 as an examination on his voir dire : '^'Erisman v. Walters, 26 Pa. 
 
 Mifflin V. Bingham, i Dal. 272. 467. 
 
414 PJjNNSYIvVANIA TRIAL EVIDfiNCi;. 
 
 him had previously aci<nowledgecl him to be interested is suffi- 
 cient to exclude him unless such statements were merely the 
 opinion of the party founded on matters of law, and upon a full 
 disclosure of the facts the witness appears to have no interest.^° 
 
 The appellate court will not reverse for error in the preliminary 
 examination if the witness was properly admitted or excluded.^' 
 But rejecting a competent witness cannot be said to be harmless 
 merely because subsequent testimony of the other party tends to 
 show the witness was incompetent, since the truth of such testi- 
 mony is for the jury.^^ 
 
 § 450. Competency — Determination of Question — Province of 
 Court and Jury. Primarily, the question of competency of a 
 witness, both as to fact and law, is for the court. ^^ If from the 
 preliminary evidence submitted he clearly appears incompetent, 
 he will be rejected. But if the question is doubtful, depending 
 upon conflicting testimony, he may be allowed to testify and the 
 question of competency left to the jury with instructions to re- 
 ject his testimony entirely if they find he is incompetent.-" But 
 testimony of a witness on his voir dire is not before the jury and 
 cannot be submitted to them.^^ If the witness appears compe- 
 tent when offered, and it subsequently appears he is incompetent, 
 the proper practice is to move to strike out the testimony and 
 instruct the jury to disregard it.^^ 
 
 Under Section 6 of the Act of 1887, the question of good 
 faith in making a release of interest is solely for the court and 
 cannot afterwards be submitted to the jury.^^ 
 
 § 451. Competency — Husband and Wife. The common law 
 rule that a husband and wife are incompetent to testify against 
 each other has been incorporated in the Act of 1887, which pro- 
 vides not only that they shall be incompetent but that they shall 
 not be permitted to so testify.^* The parties to a suit and the 
 
 "Walker v. Coursin, 19 Pa. 321, Haynes v. Hunsicker, 26 Pa. 58; 
 
 "Brown v. Downing, 4 S. & R. Rees v. Livingston, 41 Pa. 113, 
 
 494; Quinn v. Crowell, 4 Whart. Dictator v. Heath, 56 Pa. 290. 
 
 334; Dunham v, McMichael, 214 ^ig^st Penna. Railroad v. Schol- 
 
 Pa. 485. lenberger, i Walk. 401. 
 
 i^Sayler v. Walter, 30 Super. 370. "^Dictator v. Heath, 56 Pa. 290; 
 
 i»Lyon V. Daniels, 14 Pa. 197 ; Sayler v. Walter, 30 Super. 370. 
 
 Semple v. Gallery, 184 Pa. 95- ^''Semple v. Gallery, 184 Pa. 95. 
 
 ^oHart V. Heilner, 3 Rawie 407; See § 438, note 43. 
 
 Cordon v. Bowers, 16 Pa. 226; "Section 2, (b), of the Act of 
 
 Blackstock v. Leidy, 19 Pa. 335 ; May 23, 1887, P. L. 158, relating to 
 
WITNgSSlJS. 
 
 415 
 
 trial judge as well, are bound to notice this prohibition, which 
 cannot be avoided either by connivance of the parties or in- 
 dulgence by the court.-° But if the improper admission of such 
 testimony has done no harm, it is not ground for reversal. ^° 
 
 The rule excluding husband and wife from testifying against 
 each other applies in all proceedings,-' and to all cases in which 
 the interests of the other are involved, whether directly or in- 
 directly and whether or not such other is a party to the proceed- 
 
 criminal proceedings, as amended 
 by Act of April 27, 1909, P. L. 179, 
 and Act of May 11, igii, P. L- 
 269, provides as follows : "Nor 
 shall husband and wife be compe- 
 tent or permitted to testify against 
 each other or in support of a crim- 
 inal charge of adultery alleged to 
 have been committed by or with the 
 other, except that in proceedings for 
 desertion and maintenance and in 
 any criminal proceeding against 
 cither for bodily injury or violence 
 attempted, done or threatened upon 
 the other, or upon the minor chil- 
 dren of said husband and wife or 
 the minor children of either of 
 them, or any minor child in their 
 care or custody, or in the care or 
 custody of either of them, each 
 shall be a competent witness against 
 the other; and except also that 
 either of them sliall be competent 
 merely to prove the fact of mar- 
 riage, in support of a criminal 
 charge of adultery or bigamy al- 
 leged to have been committtd by or 
 with the other.'' 
 
 Section s, (c), of the Act of 1887, 
 relating to civil proceedings, pro- 
 vides : "Nor shall husband and wife 
 be competent or permitted to tes- 
 tify against each other, except in 
 those proceedings for divorce in 
 which personal service of the sub- 
 poena or of a rule to take deposi- 
 tions has been made on the oppo- 
 site party, or in which the opposite 
 
 party appears and defends, in which 
 case either may testify fully against 
 the other, and except also that in 
 any proceedings for divorce either 
 party may be called merely to prove 
 the fact of marriage.'' 
 
 The Act of 1911 cites § 2, (b), of 
 the Act of 1887 for amendment, 
 overlooking the fact that the same 
 section had been previously amend- 
 ed by the Act of 1909. The only 
 change made by the Act of 191 1 is 
 the insertion of the charge ol 
 bigamy as one of the proceedings in 
 which the husband or wife was 
 made competent to prove the fact 
 of marriage. 
 
 25Canole v. Allen, 222 Pa. 156. 
 
 ^^Tucker v. McManamin, 48 
 Super. 553. The mere fact that an 
 offer was made to call a wife as a 
 witness, but overruled by the court, 
 is not ground for reversal : Com. v. 
 Weber, 167 Pa. 153. 
 
 ^''This includes proceedings be- 
 fore a committing magistrate or 
 grand jury: Com. v. Woodcraft, 
 I- C. C. 154; Com. V. Sees, 31 C. C. 
 
 507. 
 
 ^spieasanton v. Nutt, 115 Pa. 
 266; Cornelius v. Hambay, 150 Pa. 
 359. A husband is not competent 
 to prove a claim in favor of a third 
 person against an estate in which 
 his wife is interested as devisee un- 
 der the testator's will, even though 
 it does not appear that there were 
 insufficient funds to satisfy all debts 
 
4i6 
 
 PENNSYLVANIA TRIAL KVIDIiNCfi. 
 
 ing/* subject to certain exceptions hereafter to be noted.^" But 
 the mere fact that one |is a party on the record does not render 
 the other incompetent if the joinder is merely formal and no per- 
 sonal interest in the suit exists.'" 
 
 A wife is competent to prove the fact of marriage with her 
 deceased husband," and either is competent to testify to in- 
 dependent facts and circumstances affecting the marriage and 
 the legitimacy of children, such as the time of marriage and of 
 the birth of children, and the fact of access. But neither is com- 
 petent to prove non-access for the purpose of bastardizing their 
 children.'- However, if there is other evidence tending strongly 
 to prove non-access at the time of the conception of the child, 
 their acts and declarations at the time of its birth may be received 
 
 and legacies : Alcorn v. Cook, loi 
 Pa. 209. In replevin by a wife 
 against her husband's vendee, she 
 cannot testify that title was in her 
 under a gift from her husband 
 prior to the sale, nor may he testify 
 to his ownership of the goods : 
 Pleasanton v. Nutt, iiS Pa. 266; 
 and where the defendant in re- 
 plevin pleads property in plaintiflf's 
 wife, the plaintiff is not competent 
 to prove his own title : Johnson v. 
 Watson, 157 Pa. 454. But a wife 
 may prove her title to property 
 levied on as the property of her 
 husband, so long as he makes no 
 claim thereto, and disclaims owner- 
 sliip : Evans v. Evans, 15s Pa. 572 ; 
 Norbeck v. Davis, 157 Pa. 399 ; and 
 in an action by a husband for con- 
 version of his property, the mere 
 fact that he admits on his voir dire 
 that fhe property was claimed by 
 both himself and wife, does not 
 render him incompetent to testify 
 to his ownership, if there is noth- 
 ing in the pleadings or evidence tp 
 show the wife was in any way con- 
 nected with the transaction, or 
 would be affected by a verdict in 
 the particular case : Sayler v. Wal- 
 ter, 30 Super. 370. She is also 
 competent to prove her claim 
 against his assigned estate : Suth- 
 
 erland's Estate, 29 C. C. 267; or 
 against his estate in bankruptcy: 
 Domenig's Estate, 128 Fed. 146. 
 
 In ejectment by husband and wife 
 for land sold under a judgment 
 against the husband and claimed to 
 be owned by the wife, the latter is 
 a competent witness, as she testifies 
 in her own favor and not against 
 her husband who has no interest in 
 maintaining the title of the defend- 
 ant : Rowley v. McHugh, 66 Pa. 
 269. The same rule applies when 
 the proceedings are against a hus- 
 band and wife by the purchaser of 
 land at a sheriff's sale, if both the 
 defendants aver title. in the wife; 
 Young v. Senft, 153 Pa. 352; 
 Poundstone v. Jones, 187 Pa. 289. 
 
 2''See §§ 452 to 457. 
 
 ai'McGeary's Appeal, 72 Pa. 365. 
 In an action by a wife against an 
 estate of which the husband is exec- 
 utor, on a note of the deceased held 
 by the wife, the latter is not incom- 
 petent merely because her husband, 
 as executor, is a party defendant: 
 Danley v. Danley, 179 Pa. 170. 
 
 '^Greenawalt v. McEnelley, 85 
 Pa. 352; Drinkhouse's Estate, 151 
 Pa. 294; Luce's Estate, 3 Super. 
 289. 
 
 ^^Dennison v. Page, 29 Pa. 420; 
 Janes's Estate, 147 Pa. 527. 
 
WITNESSES. 417 
 
 in corroboration of such evidence. '' A husband who acts as 
 agent for his wife may be called to testify against her with refer- 
 ence to rhatters within the scope of his agency. ^■' 
 
 The identity of interest of husband and wife is such that if one 
 is incompetent under the Act of 1887, either as a surviving party 
 to a transaction or as having an interest adverse to the right of 
 a deceased person, the other is also incompetent.^^ The death 
 of the one having such interest doesi/.not render the other com- 
 petent^" nor does a release by the husband called as a witness 
 render him competent if his wife still retains her interest.^' A 
 release by both is necessary.^* 
 
 A husband and wife are fully competent to testify in favor of 
 each other/" and their testimony will be considered as that of two 
 witnesses within the rule requiring certain matters to be estab- 
 lished by such measure of proof.*" While the relation between 
 them may influence their testimony in some degree, that is a mat- 
 ter affecting their credibility and not their competency.*^ One 
 cannot be called on cross-examination by the adverse party to 
 testify against the other,*- but if offered as a witness in favor of 
 the other, parts of the testimony given cannot be objected to on 
 the ground that it is in fact unfavorable.*^ 
 
 § 452. Competency — Husband and Wife — Adultery. The rule 
 which excludes husband and wife from testifying against each 
 
 33Com. V. Shepherd, 6 Bin. 283; with creditors, alleged certain prop- 
 
 Dennison v. Page, 29 Pa. 420; erty belonged to his wife, she may 
 
 Janes's Estate, 147 Pa. 527. testify it did not belong to her but 
 
 3*Callendar v. Kelly, 190 Pa. 4SS ; to her husband : McGeary's Appeal, 
 
 Barnhart v. Grantham, 197 Pa. 502; 72 Pa. 365. On the trial of a hus- 
 
 Duncan v. Landis, 106 Fed. 839. band for murder, it appearing his 
 
 See § 81 as to competency of ad- wife was present when the crime 
 
 missions where one acts as agent of was committed, it is not improper 
 
 the other. for the district attorney to com- 
 
 ^^Bitner v. Boone, 128 Pa. 567 ; raent adversely on the failure of 
 Sutherland v. Ross, 140 Pa. 379; the defendant to call her as a wit- 
 Campbell V. Brown, 183 Pa. 112; ness : Com. v. Weber, 167 Pa. 153. 
 Meyers v. Litts, 195 Pa. 595 ; ■'"Guernsey v. Froude, 13 Super. 
 Paschall v. Fels, 207 Pa. 71 ; Min- 405 ; Italo French Produce Co. v. 
 ings V. Hearst, 17 Super. 314. Thomas, 28 Super. 293. 
 
 ssBoustead v. Cuyler, 116 Pa. ^^Chicago Organ Co. v. Mc- 
 
 551. Manigle, 8 Super. 632; Guernsey v. 
 
 3'^Mishler v. Merkel, 10 Pa. 509; Froude, 13 Super. 405. 
 
 Buchanan v. Buchanan, 46 Pa. 186. ^-Canole v. Allen, 222 Pa. 156. 
 
 3«Walls V. Walls, 182 Pa. 226. *3Ballentine v. White, yy Pa. 20; 
 
 ^''When a husband, in a contest Yeager v. Weaver, 64 Pa; 425. 
 27 
 
4l8 PENNSYLVANIA TRIAL EVIDUNCI;. 
 
 other, prevents one from giving any testimony vi^hich may be the 
 basis of indictment of the other/* and therefore the one cannot 
 testify to facts tending to show the adultery of the other in any 
 proceeding, even though not an indictment for that offense and 
 though the other is not a party to the proceeding.*' But either 
 may be called to prove the fact of marriage in a criminal charge 
 of adultery or bigamy alleged to have been committed by or with 
 the other,*" and may eveji be compelled to so testify thereto at 
 the instance of the commonwealth.*' But the husband is not 
 competent to prove the marriage of the wife's paramour.*^ 
 
 This rule does not prevent a husband from making the infor- 
 mation in a criminal action for fornication or adultery against his 
 wife's paramour, a distinction being made between competency 
 as a prosecutor and competency as a witness.*' And in a prose- 
 cution for adultery, the fact that the wife testified before the 
 grand jury is not ground for quashing the indictment where the 
 nature of her testimony does not appear, the presumption being 
 that she testified merely to the fact of marriage.^" 
 
 A wife may not testify in favor of one who is charged with 
 fornication with her at the suit of the husband, since the hus- 
 band's liability for costs on failure of the prosecution renders 
 him an interested party.^^ But she is competent to prove the act 
 of fornication with her on the indictment of her paramour.'^ 
 The wife of a bigamist may testify against her supposed husband 
 after proof of his prior marriage has been given,'^ and the libellant 
 
 **CorneIius v. Hambay, 150 Pa. ^oCqjj,. v. Hosier, 135 Pa. 221 ; 
 
 359- Com. V. Hildebrand, 22 York 102. 
 
 ^fiCornelius v. Hambay, 150 Pa. It has been held that the fact that 
 
 359; Com. v. Weber, 24 Lane. L. the wife testified before the grand 
 
 R. 36s; Com. V. Geary, 9 C. C. 60. jury without objection cannot be 
 
 ■'"Act of May 23, 1887, P. L. 158, taken advantage of after trial on 
 
 § 2, (b), as amended by Act of May the merits if she did not testify at 
 
 II, 1911, P. L. 269. See § 451, note the trial of the case: Com. v. Spat- 
 
 24. tenhover, 8 Luz. L. R. loi. Nor 
 
 *'Com, V. Fitzpatrick, 18 Super, may the fact that the name of the 
 
 529- wife of the prisoner was placed on 
 
 *8Com. V. Clamar, 16 Dist. 69. the bill of indictment as a witness, 
 
 ^"Com. V. Barr, 25 Super. 609. be made the ground of objection 
 
 And it has been held that one may after trial: Com. v. Snyder, i l,e- 
 
 make information directly against high 20. 
 
 the other charging adultery: Com. t^iCom. v. Beck, 7 Dist. 399. 
 
 V. Hildebrand, 22 York io2j Com. ''2Com y Shepherd. 6 Bin. 283. 
 
 V. Bamberger, 24 Lane 41. osCom. Mudgett, 174 Pa. 211. 
 
WITNESSES. 419 
 
 in a proceeding to annul a bigamous marriage is also competent.^* 
 In such cases the husband or wife does not testify against the 
 other, because no marriage in fact existed. 
 
 § 453. Husband and Wife — Bodily Injury. A husband and 
 wife are competent witnesses in criminal proceedings for bodily 
 injury or violence attempted, done or threatened by one upon the 
 other or upon their minor children, or the minor children of either 
 of them or minor children in the care or custody of them, or 
 either of them.'*' This rule applies to an attempt to unlawfully 
 imprison a wife in an insane asylum,'" or to an indictment for 
 abortion committed upon her,'' but not to an indictment for con- 
 spiracy to procure a divorce, there being no allegation of bodily 
 injury or attempt to commit the same.'^ 
 
 § 454. Competency — Husband and Wife — Character of Wife — 
 Rebutting Attacks Upon. Whenever a wife's character or con- 
 duct has been attacked on the trial of any civil action brought 
 by her husband, she is competent to testify in rebuttal in so far 
 as her character and conduct are concerned. '° She is also a com- 
 petent witness in rebuttal for the plaintiff in an action brought 
 against her husband to recover necessaries furnished to her, if 
 he makes a defense on the ground that she had left him without 
 justification or excuse before the necessaries were furnished, or 
 on any other ground which attacks her character or conduct,"" 
 
 '^Remann v. Remann, 34 C. C. generally competent in such actions, 
 
 495. but only in regard to the matter of 
 
 "Act May 23, 1887, P. L- is8, § 2, her character and conduct: Keath 
 
 (b), as amended by Act of April v.. Shiffer, 37 Super. 573. Nor does 
 
 27, 1909, P. L. 180, § 451, note 24, it permit the husband to testify to 
 
 above. matters relating to her character, 
 
 5i5Com. V. Spink, 137 Pa. 265. even to contradict her testimony. 
 
 ''Com. V. Kreuger, 17 C. C. 181. But he may contradict statements 
 
 See contra, Com. v. Paynter, 8 alleged by her to have been made 
 
 Phila. 609 ; Com. v. Reid, 8 Phila. by him in the presence of third per- 
 
 385. sons : Ehrhart v. Bear, 51 Super. 
 
 '^Com. v. McEwen, I Clark 140. 39. 
 
 "Tlie Act of May 8, 1907, P. L. ""The Act of April iij 1899, P. 
 184 provides : "In all civil actions L. 41, § i, provides : "In any civil 
 brought by the husband, the wife action brought against the husband 
 shall be a competent witness in- re- to recover necessaries furnished to 
 buttal, when her character or con- the wife, if the husband makes de- 
 duct has been attacked upon the fense at the trial upon the ground 
 trial thereof, but only in regard to that his wife had left him, without 
 the matter of her character or con- justification or excuse, before the 
 duct." This act does not make her necessaries were furnished, or upon 
 
420 PENNSYLVANIA TRIAL EVIDLNCK. 
 
 and in a criminal pi-oceeding against her husband, in which he 
 sets up a defense which attacl'cs her character or conduct, she may 
 testify in rebuttal on behalf of the commonwealth. °^ 
 
 § 455. Competency — Husband and Wife — Desertion and 
 Maintenance. In proceedings for desertion and maintenance"- 
 and in actions at law or in equity brought by a wife against hei 
 husband for maintenance, where he has deserted her,"' both hus- 
 band and wife are fully competent witnesses. 
 
 § 456. Competency — Husband and Wife — Divorce. In divorce 
 proceedings, either party is competent to prove the fact of mar- 
 riage, and they may also testify fully against each other in all 
 cases where the respondent appears and defends, and the libellant 
 may testify in absence of appearance and defense by the re- 
 spondent if the latter was personally served with the subpoena 
 or a rule to take depositions."* And even though there has been 
 no such service, and though the respondent be without the com- 
 monwealth and is served by publication only, if the cause of 
 divorce is desertion, the libellant is competent to prove the fact 
 of desertion and show the efforts, if any, made by him or her to 
 induce the other to return and resume marital relations. "^ 
 
 The appearance of an attorney for the respondent by filing 
 a warrant of attorney and attending the hearing, without having 
 filed an answer,"" does not make the libellant competent, nor is 
 the defect cured by the subsequent service of an alias subpoena."^ 
 In such case the proper practice would be to enter a rule to take 
 depositions and serve it on the respondent personally."' A letter 
 
 any other ground which attacks the "''Act May 23, 1887, P. L. 158, § 5, 
 wife's character or conduct, she (c) ; § 451, note 24, above. Corn- 
 shall be a competent witness in re- pliance with these requirements 
 buttal for the plaintiff." makes the libellant competent to 
 
 "iThe Act of April II, 1899, P. testify fully as to everything within 
 
 L. 41, § 2, provides: "In any crim- I'is or her knowledge: Seitz v. 
 
 iiial proceeding brought against the Seitz, 170 Pa. 71 ; Banks v. Banks, 
 
 husband, if he makes defense at the 189 Pa. 196. 
 
 trial upon any ground which at- ""Act June 8, 191 1, P. L. 720. 
 
 tacks the wife's character or con- ""Lyon v. Lyon, 30 C. C. 342; 
 
 duct, she shall be a competent wit- Everhart v. Everhart, 16 Dist. 791 ; 
 
 ness in rebuttal for the common- Kesel v. Kesel, 16 Dist. 979; Mc- 
 
 wealth.'' Avoy v. McAvoy, 9 Lack. Jur. 190 ; 
 
 «-Act May 2, 1887, P. L. 158, § 2, MacLean v. MacLean, 19 Dist. 98. 
 
 (b) ; § 451, note 24, above. .\ct "'Jones v. Jones, 34 C. C. 136. 
 
 March 13, 1903, P. L. 26, § 3. "^Brown v. Brown, 30 C. C. 291; 
 
 »3Act April 27, 1909, P. L. 182. Jones v. Jones, 34 C. C. 136. 
 
WITNESSES. 421 
 
 acknowledging the existence of the suit and acquiescing in the 
 prayer of the petition is not a substitute for service and will not 
 riiake the libellant competent."" If the respondent appears and 
 defends, either party may call the other as on cross-examina- 
 tion.'" 
 
 A notice of the time and place of taking testimony, signed by 
 the examiner, is not a rule to take depositions within the meaning 
 of the Act of 1887,'^ nor is service by registered letter of notice 
 of the final rule in divorce an effective substitute for personal 
 service of the subpoena or of a rule to take depositions. '- 
 
 Where the libellant has been improperly permitted to testify, 
 the divorce may still be granted if there is sufficient independent 
 testimony' to warrant a finding in his or her favor f^ but in ab- 
 sence of such evidence the divorce will be refused'* or the case 
 resubmitted to the master to take additional testimony and re- 
 port anew.'^ 
 
 § 457. Competency — Husbajid and Wife — Separate Property 
 — Recovery Of. In a proceeding by a husband or wife against 
 the other to protect or recover his or her separate property, 
 both are fully competent witnesses, except as to confidential com- 
 munications.'" This applies to suits in equity, as well as at law," 
 but not to those to which only one is a party and in which a 
 judgment entered would not be res adjudicata in a subsequent 
 controversy between them involving the same subject matter.'* 
 
 § 458. Competency — Infants. At common law, every person 
 
 ""Brown v. Brown, 30 C. C. 291. neither may testify to confidential 
 
 '"Costello V. Costello, 191 Pa. communications made by one or the 
 
 379. other, unless this privilege be waiv- 
 
 '^Sauer v. Sauer, 26 Lane. L,. R. ed upon the trial." 
 
 340. "Heckman v. Heckman, 215 Pa. 
 
 '^Penny v. Penny, 34 Super. 88. 203; Dorsett v. Dorsett, 226 Pa. 
 
 '■*Brown v. Brown, 30 C. C. 291. 334. 
 
 '''Penny v. Penny, 34 Super. -88. '^Sayler v. Walter, 30 Super. 370. 
 
 '^Everbard v. Everhard, 16 Dist. It was held in Heckman v. Heck- 
 
 791. man, 215 Pa. 203, that iieither was 
 
 ^"The Act of March 27, 1913, P. competent to testify in proceedings 
 
 L. 14, amending § 4 of the Act of by a wife against her husband to 
 
 June 8, 1893, P. L. 34S, provides : compel a reconveyance of her sepa- 
 
 "In any proceeding brought by rate' property, where there had been 
 
 either the husband or wife to pro- no desertion. This is remedied by 
 
 tect and recover the separate prop- the Act of 1913 (see note 76 above) 
 
 erty of either, both shall be fully which apphes to any proceeding, 
 competent witnesses, except that 
 
422 PENNSYLVANIA TRIAL EVIDENCE. 
 
 over the age of fourteen years is presumed to have sufficient 
 understanding of the nature and effect of an oath to qualify 
 him as a witness until the contrary is shown, while a child under 
 that age is prima facia incompetent and when called as a witness 
 it is necessary to inquire as to its degree of understanding, and 
 if the court thinks it capable of distinguishing between right and 
 wrong and that it possesses sufficient comprehension of the im- 
 portance of telling the truth and of the wickedness of falsehood, 
 it may be permitted to testify." If a full understanding of the 
 obligation to tell the truth is shown, the nature of the child's con- 
 ception of that obligation is immaterial.^" Since the competency 
 of children does not depend on age but on intelligence, the ques- 
 tion is largely one of discretion in the trial judge who has the 
 witness before him, and his action will not be reversed in ab- 
 sence of flagrant abuse of discretion." But permitting a child 
 to testify without being sworn, is ground for reversal.*^ 
 
 The testimony of an infant which is unshaken on cross-ex- 
 amination may be entitled to great weight.*^ 
 
 § 459. Competency — Intoxication. One who, at the time he 
 is called as a witness, is intoxicated to such extent as to render 
 him incapable of clearly recollecting and stating facts, should not 
 be permitted to testify. But a witness is not rendered generally 
 incompetent by a finding in statutory proceedings brought for 
 that purpose, that he is an habitual drunkard.^* Whether the 
 condition of the witness at the time he testifies is such as to dis- 
 qualify him, is a matter for the trial judge to determine.*^ 
 
 § 460. Competency — Juors, Arbitrators, and Viewers. Jurors, 
 arbitrators and viewers are competent witnesses concerning rele- 
 vant matters within their knowledge,*" and permitting them to 
 
 '"Com. V. Wilson, i86 Pa. i ; three years before, where he shows 
 
 Com. V. Furman, 211 Pa. S49; Com. no unusual signs of precocity: 
 
 V. Capero, 35 Super. 392. It is er- Cook v. Traction Co., 21 Lane. 161. 
 
 ror to exclude a seven-year-old ^oCom. v. Furman, 211 Pa. 549. 
 
 child without examination as to its ^^Com. v. Capero, 35 Super. 392. 
 
 qualifications : Piepke v. Railway, *-Com. v. Capero, 35 Super. 392. 
 
 242 Pa. 321. A child eight years ^^Com. v. Quinn, 2 Berks 184. 
 
 old is competent where it appears ^^Gebhart v. Shindle, 15 S. & R. 
 
 he clearly comprehends the differ- 235. 
 
 ence between truth and falsehood, ^^Gould v. Crawford, 2 Pa. 89. 
 
 and knows that it is his duty to tell ^^Perrysville Plank Road Co. v. 
 
 the truth. But the court may re- Thomas, 20 Pa. 91 ; Harper v. 
 
 fuse to permit a child of that age Kean, 11 S. & R. 280; Borland v. 
 
 to testify to events which happened Railroad, 46 Pa. 520; Stewart v. 
 
WITNESSES. 423 
 
 testify does not violate any constitutional right of the defendant 
 to be tried by an impartial jury and to be confronted by witnesses 
 against him.^' If a juror knows anything relating to the case 
 before him, it is his duty to disclose the same in open court be- 
 fore they retire to consider their verdict,** and if he communi- 
 cates to his fellow jurors in a criminal case material' facts which 
 he did not previously disclose, it is ground for a new trial.*^ But 
 a party who has reason to believe a juror has knowledge of ma- 
 terial facts should call him to testify thereto, and failure to do 
 so is a waiver of the right to attack the verdict on this ground."" 
 
 One who acts as an interpreter is not thereby disqualified from 
 testifying as a witness."^ 
 
 § 461. Competency — Lunatics. A lunatic may be permitted 
 to testify during lucid intervals."^ But admissions made by him 
 during the period covered by the findings of the inquisition must 
 be shown to have been made during lucid intervals before they 
 will be admitted."'' 
 
 § 462. Competency — Oath or Affirmation. If the witness so 
 desires, he may be affirmed instead of sworn."* An official in- 
 terpreter may administer the oath to each witness by virtue of his 
 general oath administered at the beginning of the trial. The 
 clerk need not repeat it to him before swearing each witness."^ 
 It would seem that the court may authorize any bystander to 
 administer the oath."* 
 
 It is error to permit a child to testify without being sworn."^ 
 
 Road Co., 3 Super. 86. See §§ 404 from illness affecting his mind will 
 and 412 as to when they are privi- not be rejected where his testimony 
 leged from disclosing matters with- is clear and in accord with other 
 in their knowledge. evidence in the case: Brown v. 
 *"Howser v. Com., 51 Pa. 332. Armstrong Co., 239 Pa. S49- 
 ssAct April 14, 1834, P. L. 369, § "'Hottle v. Weaver, 206 Pa. 87. 
 160, provides that "Every juror im- »*The Act of April 23, 1909, P. 
 paneled in any cause, who shall L. 140, § 4, provides that "Here- 
 know anything relative to the mat- after the affirmation may be admin- 
 ter in controversy in such cause, istered in any judicial proceeding 
 shall disclose the same in open instead of the oath, and shall have 
 court before the jury shall retire to the same effect and consequences, 
 consider their verdict." and any witness who desires to af- 
 8»Com. v. Kulp, S Dist. 468. firm shall be permitted to do so.'' 
 ""Com. v. Reber, 10 Dist. 683. "^Com. v. Jongrass, 181 Pa. 172. 
 *iCom. V. Delero, 24 Lane. 137. ^^Com. v. Jongrass, 181 Pa. 172. 
 "^Draper's Estate, 26 W. N. C. "''Com. v. Capero, 35 Super. 392. 
 218. One who frequently suffers 
 
424 PENNSYI^VANIA TRIAL UVIDKNCi:. 
 
 If the witness swears to tell the truth but refuses to swear to tell 
 the whole truth, his testimony will be disregarded altogether.'' 
 
 § 463. Competency — Objection To. A general objection to 
 the competency of a witness will not be sustained if the witness 
 is competent for any purpose whatever.'"' However, under a 
 general objection a party may take advantage of all grounds of 
 exception."" If the witness is admitted under a general objec- 
 tion, testimony offered by him may then be objected to specifically 
 as in other cases. ^ 
 
 An objection on the ground of incompetency of the witness 
 should be made before he is sworn.^ If he is permitted to testify 
 without objection and with full knowledge of the facts, his in- 
 competency is waived' and the question cannot subsequently be 
 raised, either on the trial or on appeal,* especially if no motion 
 to strike out or direct the jury to disregard the testimony was 
 made.^ The effect of such waiver is to remove entirely the legal 
 bar to his examination, but leaves the question of his credibility 
 for the jury." The admission of the testimony of an incompetent 
 witness is not a sufficient reason for permitting the other party 
 to offer an incompetent witness in rebuttal.' - 
 
 If the incompetency of a witness is not disclosed until during 
 the course of his examination, an objection should then be en- 
 tered and a request made that the testimony given be stricken 
 out and the jury be instructed to disregard it.' But in proceed- 
 ings before an auditor or examiner, a witness whose competency 
 is questioned should be permitted to testify and the question of 
 competency decided on exceptions to the auditor's report." 
 
 § 464. Competency — Religious Belief. The competency of a 
 person to testify cannot be affected by his opinion on matters of 
 religion, and he may not be questioned concerning his religious 
 beliefs nor may other evidence be heard on the subject.^" If the 
 
 »8Ginther v. Ginther, 1$ C. C. 130. sRothrock v. Rothrock, 195 Pa. 
 
 ^^Philadelphia Co. v. Leidy, 10 529. 
 
 Pa. 45 ; Robinson v. Buck, 71 Pa. "Patterson v. Wallace, 44 Pa. 88. 
 
 386; Zuvor V. Clark, 104 Pa. 222. ''Swank v. Phillips, 113 Pa. 482. 
 
 loojrwin v. Shumacker, 4 Pa. 199. "Pleasanton v. Nutt, US Pa. 266. 
 
 iRobinson v. Buck, 71 Pa. 386; "Snyder' .s Estate, 29 C. C. 10; 
 
 Hood V. Ins. Co., 22 Super. 244. Colwell's Estate, 18 Phila. 38. 
 
 =Howser v. Com., 51 Pa. 332. i^The Act of April 23, 1909, P. 
 
 sYoung V. Senft, 153 Pa. 3S2. L. 140, § 2, provides as follows : 
 
 ^Patterson v. Wallace, 44 Pa. 88; "Hereafter the capacity of any per- 
 
 Dean v. Warnock, 98 Pa. 565. son to testify in any judicial pro- 
 
WITNESSES. 425 
 
 witness states that the oath will be binding on his conscience, he 
 is qualified to be sworn, even though he does not believe in the 
 existence of a God." 
 
 § 465. Credibility of Witnesses. As a general rule, the ex- 
 istence of any fact or circumstance which might tend to preju- 
 dice or bias the mind of the witness, either for or agaiVist a 
 party, his interest in the proceeding, his appearance and manner 
 when testifying,^- the inherent probability or improbability of his 
 story or his want of recollection, are all proper matters "to be 
 considered by the jury in determining the weight to be given his 
 testimony.^^ But evidence concerning the religious belief of the 
 witness cannot be heard for the purpose of affecting his credi- 
 bility.'* 
 
 § 466. Credibility — Accomplices. The testimony of an ac- 
 complice in crime should be received with caution and consider- 
 able latitude allowed in cross-examining him,'^ and the jury 
 should be instructed to carefully scrutinize his testimony before 
 giving it much weight. But there is no rule of law forbidding a 
 conviction on such testimony without corroboration. If the man- 
 ner of the witness in testifying and his appearance on the stand 
 impress the jury with the truth of his statements beyond a rea- 
 sonable doubt, they may convict on such testimony alone and it 
 is then for the trial judge who also heard the witness testify and 
 thus had an opportunity to judge of his credibility, to say whether 
 he is satisfied with the verdict.'^ It is the usual practice how- 
 ever, owing to the corrupt source of such evidence, for the court 
 to advise the jury to acquit unless the testimony is corroborated 
 
 ceeding shall be in no wise affect- ous matters affecting the credibility 
 
 ed by his opinion on matters of re- of witnesses. 
 
 ligion." Section 3 of the same act i4Act April 23, 1909, P. L. 140, 
 
 provides r "No witness shall be § 3 See § 464, note 10, for copy of 
 
 questioned in any judicial proceed- gQt. 
 
 ing concerning his religious belief; isRilrow v. Com., 89 Pa. 480. 
 
 nor shall any evidence be heard icwatson v. Com., 9S Pa. 418; 
 
 upon the subject for the purpose of jj^^j^g^^ ^, ^^^^ ^g p^ .^^g. ^^^ 
 
 affecting either his competency or ^, (.^,^^ _ ^^^ p^ ^^. ^^^ ^ ^^^^^^ 
 
 credibihty." ^^ g^p^^. gj . ^^^^ ^ Sayars, 21 
 
 i^Com. V. Tresca, 45 Super. 619. Super. 75; Com. v. Lenhart, 40 
 
 i^Cox V. Com., 125 Pa. 94; High Super. 572; Com. v. Klein, 42 
 
 V. Berret, 148 Pa. 261. Super. 66; Com. v. DeMasi, 234 
 
 '^See the sections below for vari- Pa. 570. 
 
426 PENNSYLVANIA TRIAI, EVIDIiNCE. 
 
 to some extent," but it is not error to refuse to so charge if the 
 testimony of the accompHce is clear and convincing.^' 
 
 Corroboration, when required, need not extend to the whole oi 
 the testimony of the accomplice. If that were necessary it would 
 render his testimony almost useless and amount to a practical 
 exclusion of it. All that is necessary is that it be shown the wit- 
 ness spoke the truth in some material particular, and from this 
 the jury may infer that he has done so in others." But testi- 
 mony of another accomplice is not considered corroboration.^" 
 
 A woman on whom an abortion has been committed is not an 
 accomplice within the rules governing the testimony of such per- 
 sons,^^ nor is a detective who enters into a conspiracy in order 
 to discover and arrest the conspirators.^^ And in an indictment 
 for rape on a woman under the age of consent, the fact that she 
 consented does not make her testimony that of an accomplice.^^ 
 But the absence of corroborative evidence of rape may be ground 
 for doubting the truth of the complaint.-* 
 
 By the express provisions of Section 49 of the Act of March 
 31, i860, P. L. 385, a defendant may not be convicted of bribery 
 on the uncorroborated testimony of an accomplice. But this rule 
 does not apply to an indictment under the Act of May 23, 1874, 
 P. L. 230, § 8, relating to bribery of members of city councils.^' 
 
 § 467. Credibility — Court and Jury — ^Province Of. As a gen- 
 eral rule, whenever a question depends upon oral testimony the 
 credibility of the witnesses is for the jury,^" even though their 
 testimony is uncontradicted," since they are not entitled to have 
 it accepted as true for that reason alone. ^' But on the other 
 hand, when testimony is clear and free from 'doubt, and is in 
 
 "Carroll v. Com., 84 Pa. 107; 23Com. v. Feist, 50 Super. 152. 
 
 Watson V. Com., 95 Pa. 418; Com. 2*Com. v. Childs, 10 P. L. J. 209. 
 
 V. Craig, 19 Super. 81; Com. v. ^sCom. v. Klein, 42 Super. 66. 
 
 Simon, 44 Super. 538. ^eHarlow v. Boro., 194 ^a. 57; 
 
 isCom. V. Klein, 42 Super. 66. Bartlett v. Rothschild, 214 Pa. 421 ; 
 
 is>Kilrow V. Com., 89 Pa. 480; Second National Bank v. Hoffman, 
 
 Ettinger v. Com., 98 Pa. 338 ; Wat- 229 Pa. 429 ; Rice v. Twp., 40 
 
 son V. Com., 95 Pa. 418; Com. v. Super. 337. 
 
 Goldberg, 4 Super. 142; Com. v. "Madara v. Ebersole, 62 Pa. 160; 
 
 Greason, 204 Pa. 64. Lautner v. Kann, 184 Pa. 334 ; Lon- 
 
 ^"Com. V. Simon, 44 Super. 538. zer v. Railroad, 196 Pa. 610 ; Bren- 
 
 "Com. V. Bell, 4 Super. 187. nan v. Coal Co., 237 Pa. 29. 
 
 22Campbell v. Com., 84 Pa. 187; ss^onzer v. Railroad, 196 Pa. 
 
 Com. V. Hollister, IS7 Pa. 13; Com. 610; Troxell v. Malin, 9 Super. 
 
 V. Watson, 42 Super. 38. 483, 
 
WITNESSUS. 427 
 
 accord with all- proved or admitted facts in the case and with 
 ordinary experience and comes from witnesses whose credibility 
 there is no reason for doubting, the jury may not indulge in 
 a capricious disbelief of such testimony, and if they do the court 
 should set aside the verdict and grant a new trial,^" and may even 
 refuse to submit it at all but give binding instructions.^" 
 
 The weight of the evidence depends upon the credibility and 
 not the number of witnesses, ^^ and it is for the jury to decide 
 between contradictory evidence and ascertain who told the truth. ^- 
 Even though it has been shown that a witness testified differently 
 at a former trial, his testimony is not to be entirely rejected for 
 that reason, but it is still within the province of the jury to weigh 
 his testimony and his credibility.''^ 
 
 While a party who testifies in his own behalf may not be abso- 
 lutely concluded by his testimony, yet when he testifies in detail 
 to matters peculiarly within his own knowledge and which, if 
 true, would prevent recovery, his testimony is not to be disre- 
 garded upon the assumption that he was mistaken, especially if he 
 is not recalled to explain the statements,^* or if, on being given 
 an opportunity to explain, he makes a final statement which war- 
 rants binding instructions against him f' and he has no ground 
 to complain if the court accepts his story as true even though 
 the testimony of his witnesses tends to prove the contrary.^" But 
 if he makes out a prima facia case by his own testimony, contrary 
 statements by other witnesses called by him will not warrant the 
 court in taking the case from the jury,^^ unless such witnesses 
 are so numerous and their testimony so positive that the court 
 
 ^^Lonzer v. Railroad, ig6 Pa. Super. 128. A claimant of the pro- 
 
 610; Second National Bank v. ceeds of an insurance policy may 
 
 Hoffman, 229 Pa. 429; Walters v. contradict statements made in prior 
 
 Bridge Co., 234 Pa. 7. proofs of death filed by him, where 
 
 soLonzer v. Railroad, 196 Pa. 610. such statements were made on in- 
 
 See § 416. formation and belief based on what 
 
 ^^Allen V. Line, II Super. 517; he reasonably supposed to be re- 
 
 Loeb V. Mellinger, 12 Super. 592; liable information: Baldi v. Ins. 
 
 Braunchweiger v. Waits, 179 Pa; Co., 24 Super. 275. See § 468. 
 
 47. 343anfQi.(l V. Railway, 136 Pa. 84. 
 
 32FulIam V. Rose, 160 Pa. 47; ssBlack v. Transit Co., 239 Pa. 
 
 Com. V. Pearl, 29 Super. 307; 463. 
 
 Thomas v. Law, 25 Super. 19. ^^Kohler v. Railroad, 135 Pa. 
 
 ssMiller v. Stem, I2 Pa. 383; 346. 
 
 Platz V. McKean Twp., 178 Pa. ^TKohler v. Railroad, 135 Pa 346; 
 
 601 ; Alexander v. Buckwalter, 17 Jones v. Railroad, 202 Pa. 81. 
 
428 PENNSYLVANIA TRIAL EVIDENCE. 
 
 could not sustain a verdict in his favor.^' And if on one part 
 of the plaintiff's testimony he is entitled to go to the jury and on 
 another part he is not, or where different parts of his testimony 
 are inconsistent, it is for the jury to reconcile such conflicting 
 statements and say which shall prevail.'"' 
 
 The trial judge may comment on oral testimony, calling atten- 
 tion to its inherent probability or improbability and to matters 
 affecting the credibility of the witnesses where circumstances war- 
 rant it, and in some cases it may even be his duty to do so,^° so 
 long as he does not give binding instructions but fairly leaves the 
 question of credibility to the jury.*' 
 
 § 468. Credibility — False Testimony. The maxim f alsus in uno 
 falsus in omnibus, has been relaxed and restricted in its application 
 in modern cases, and goes no further than to say that if a witness 
 has testified falsely to any material fact, the jury may disregard 
 his testimony as a whole, not that they must disregard it.*^ It 
 is a rule of permission rather than a rnandatory one to be laid 
 down by the court as binding on the jury without regard to the 
 circumstances,*^ and conscious falsehood or intentional misstate- 
 ments on the part of the witness must be found before the jury 
 will be entitled to disregard his whole testimony." On the trial of 
 an indictment for rape on a woman under the age of consent, 
 her testimony may be considered by the jury though they do not 
 believe she told the truth in describing the resistance made.*' 
 
 The fact that a witness has at other times made contradictory 
 statements, affects his credibility but does not warrant binding in- 
 
 "^Kohler v. Raih-oad, 135 Pa. 346. self-contradictory and he is con- 
 
 ^siKohler v. Railroad, 135 Pa. 346; tradicted by every other witness in 
 
 Ely V. Railway, 158 Pa. 233 ; Glase the case, and by all the circum- 
 
 V. Philadelphia, 169 Pa. 488; stances of the accident, it is the 
 
 Danko v. Railway, 230 Pa. 295 ; duty of the court to call the jury's 
 
 Cronmuller v. Evening Telegraph, attention -to the pertinent facts af- 
 
 232 Pa. 14 ; McCoUum v. Railway^ f ecting his credibility : Fineberg v. 
 
 51 Super. 637. Railroad, 182 Pa. 97. 
 
 ^''Leibig V. Steiner, 94 Pa. 466; •'-Com. v, leradi, 216 Pa. 87; 
 
 McNeile v. Cridland, 6 Super. 428; Com. v. Sutton, 51 Super. 191 ; 
 
 Springer v. Stiver, 16 Super. 184; Blumenthal v. Green, 52 Super. 292. 
 
 Brinton v. Walker, 15 Super. 449; ^^Alexander v. Buckwalter, 17 
 
 Krider v. Philadelphia, 180 Pa. 78; Super. 128. 
 
 Enright v. Railroad, 204 Pa. S43. '■'Corrigan v. Traction Co., 225 
 
 *iCom. V. Orr, 138 Pa. 276. Pa. 560. 
 
 Where the only witness who testi- "Coni. v. Feist, 50 Super. 152. 
 fied on behalf of the plaintif? is 
 
WITNESSES. 
 
 429 
 
 structions or a direction to disregard his testimony/" nor would 
 the mere fact that his testimony is contradictory to that of two 
 other witnesses and to documentary evidence in the case, warrant 
 an instruction that he was guilty of wilful perjury.*' 
 
 § 469. Credibility — Impeachment — Contradictory Declarations, 
 Acts or Circumstances. The credibility of a witness may be im- 
 peached by showing that he has previously made statements in- 
 consistent with his present testimony** or that his conduct was 
 inconsistent with his present account of the transaction.*^ 
 
 His testimony given on direct examination may be contradicted, 
 even on immaterial points, for the purpose of affecting his credi- 
 bility.^" And where a party, in order to prevent the continuance 
 of a suit, admits that an absent witness for the other party would, 
 if present, testify to certain facts, the credibility of such absent _, 
 witness may nevertheless be attacked by showing he had made 
 contradictory statements. '^'^ 
 
 § 470. Credibility — Impeachment — Contradictory Declarations, 
 Acts or Circumstances — Evidence Given on Cross-Examination. 
 The answers of a witness on cross-examination as to matters ma- 
 terial to the issue may be contradicted by other witnesses.'^ 
 
 «PIatz V. Twp., 178 Pa. 601; 
 Danko v. Railway, 230 Pa. 295. 
 See § 469. 
 
 ■"Blumenthal v. Green, 52 Super. 
 292. 
 
 **Schlater v. Winpenny, 7$ Pa. 
 321 ; Wilson v. Wilson, 137 Pa. 
 269; Zebley v. Storey, 117 Pa. 478; 
 Wertz V. May, 21 Pa. 274; Stahle 
 v Spohn, 8 S. & R. 317- If a de- 
 fendant in testifying for himself in 
 a criminal case denies on cross-ex- 
 amination that he had committed 
 other crimes, evidence of his con- 
 fession of such crimes is admis- 
 sible: Com. V, Racco, 225 Pa. 113. 
 And if a witness testifies he saw 
 defendant commit the crime charg- 
 ed, his declarations made immedi- 
 ately after the occurrence and in- 
 consistent with such testimony, may 
 be shown : Com. v. Werntz, 161 Pa. 
 591. It is also competent to show that 
 a witness whose depositions have 
 
 been read, made declarations after 
 the depositions were taken to the 
 effect that he had made a mistake 
 in his testimony : Patterson v. Du- 
 shane, 137 Pa. 23. But a release of 
 damages for personal injuries exe- 
 cuted by a minor, is not admissible 
 to affect his credibility: HoUinger 
 v. Railway, 225 Pa. 419. 
 
 *^Masterson v. ^asterson, 121 
 Pa. 605. It may be shown that an 
 agreement, the existence of which 
 the witness denies, was in fact 
 made, even though it is invalid : 
 Kramer v. Kister, 187 Pa. 227. But 
 evidence of immoral conduct of a 
 woman prior to her alleged mar- 
 riage, is inadmissible to contradict 
 her testimony of the fact of mar- 
 riage : Conly's Estate, 185 Pa. 208. 
 
 s«Batdorff v. Bank, 61 Pa. 179. 
 
 ''Baldi v. Ins. Co., 18 Super. 599. 
 
 ^^Wertz v. May, 3j Pa. 274; 
 
43° PENNSYLVANIA TRIAL EVIDENCE. 
 
 But ground for contradicting the witness cannot be laid by cross- 
 examining him on irrelevant or collateral matters, and the party 
 so cross-examining is bound by his ansvi^ers and may not offer 
 evidence to disprove them,**^ otherwise the investigation might 
 branch out into any number of collateral issues on the mere ques- 
 tion of credibility.^* The test of materiality of a fact brought 
 out on cross-examination is whether the party cross-examining 
 would be entitled to prove it as a part of his own case,^° 
 
 § 471. Credibility — Impeachment — Contradictory Declarations, 
 Acts or Circumstances — Practice. Under the early decisions it 
 was generally held that in order to impeach the credibility of a 
 witness by proof of statements contradictory to his- present testi- 
 mony, it was necessary to first lay ground for impeachment by 
 calling his attention to the subject matter, time, place and person 
 involved and asking him whether he did not in fact make the 
 alleged contradictory statements, so as to give him an oppor- 
 tunity to explain.^^ This rule has been relaxed in the later cases, 
 however, and the question whether it shall be enforced in a par- 
 ticular instance is now left to the discretion of the trial judge.'^ 
 If the witness is present at the time and the contradiction tends 
 to seriously affect his credibility or reflect on his character, the 
 court should insist on giving him an opportunity to explain.'* 
 But failure to lay ground for impeachment is harmless if the 
 witness is subsequently recalled and given an opportunity to 
 reconcile afleged conflicting statements.'" 
 
 Impeaching evidence will not be excluded where an opportu- 
 
 Phelin v. Kenderdine, 20 Pa. 354; the witness : Logan v. McGinnis, 12 
 
 Gaines v. Com., 50 Pa. 319; Hilde- Pa. 27. 
 
 burn V. Curran, 65 Pa. S9; Hahn v. '^Griffith v. Eshelman, 4 Watts 
 
 Bealor, 132 Pa. 242; Blauvelt v. 51; Hildeburn v. Curran, 65 Pa. 59. 
 
 Railroad, 206 Pa. 141. ssfjildebum v. Curran, 65 Pa. 59. 
 
 ^^Gaines v. Com., 50 Pa. 319; '"McAteer v. McMullin, 2 Pa. 
 
 Erie Railway v. Decker, 78 Pa. 293 ; j2 ; Wright v. Cumsty, 41 Pa. 102. 
 
 Hester v. Com., 85 Pa. 139; Com. si^Walden v. Finch, 70 Pa. 460; 
 
 V. Craig, 19 Super. 81; Trussell v. Rothrock v. Gallaher, 91 Pa. 108; 
 
 Gas Co., 20 Super. 423; Com. v. Cronkrite v. Trexler, 187 Pa. 100; 
 
 Scouton, 20 Super. 503 ; Com. v. Com. v. Cowan, 4 Super. 579 ; 
 
 Grauman, 52 Super. 215. If a Shannon v. Castner, 21 Super. 294; 
 
 party is permitted without objec- Rabinowitz v. Silverman, 223 Pa. 
 
 lion to read only a portion of a 139. 
 
 deposition, the opposite party may "^Walden v. Finch, 70 Pa. 460. 
 
 not read the omitted portion for ^'Rabinowitz v. Silverman, 223 
 
 the mere purpose of contradicting Pa. 139. 
 
WITNESSES. 431 
 
 nity to comply with the rule requiring an opportunity to explain 
 was denied the party by reason of the improper exclusion of 
 questions asked for that purpose.''" And if an affidavit is pre- 
 sented that an absent witness would testify to certain facts and 
 the opposite party admits such testimony, he may still attack the 
 credibility of the witness and prove contradictory statements, not- 
 withstanding the witness had no opportunity to explain them."^ 
 
 Admissions made by a party at other times constitute inde- 
 pendent evidence, and they are admissible to contradict him with- 
 out his attention having first been called to them.*^ 
 
 The court may require questions asked for the purpose of im- 
 peaching credibility, to be put in writing and submitted for in- 
 spection so as to keep improper questions from the jury.*^ 
 
 § 472. Credibility — Impeacliinent— Reputation for Truth and 
 Veracity. The reputation of a witness for truth and veracity is 
 always in issue, and his credibility may be impeached by show- 
 ing that such reputation is bad. But the law presumes it to be 
 good, and therefore unless and until it is attacked by the other 
 side, evidence of good character is unnecessary and inadmissible 
 and should not be submitted to the jury.^* 
 
 Evidence of the bad reputation of a witness must be confined 
 to his general reputation for truth and veracity,*^ and may not 
 include his general bad reputation in all respects. There are few 
 persons of whom some one cannot be found who speaks evil, 
 ■ or who has not at some time committed an act which may not be 
 consistent with the highest standards of morality. Yet state- 
 ments or particular acts of such person may have been said or 
 done under the stress of special circumstances, and may for that 
 reason indicate a disposition far different from the real cITaracter 
 of the person. Moreover, a witness may be addicted to many 
 vices that tend to injure the reputation and yet be strictly truth- 
 ful, notwithstanding want of truthfulness frequenly accompanies 
 a generally evil or depraved character. Therefore the question 
 is not what others have said in reference to the character of the 
 person, or of what particular acts of misconduct he may have 
 
 ''"Miller v. Baker, 160 Pa. 172; "''Wertz v. May, 21 Pa. 274; 
 
 Thomas v. Butler, 16 Super.. 268. Turner v. Com., 86 Pa. 54. See § 
 
 "iBaldi V. Ins. Co., 18 Super. 599. 109 for general principles govern- 
 
 ^^Brubaker v. Taylor, 76 Pa. 83; ing admission of evidence of char- 
 
 Kreiter v. Bomberger, 82 Pa. 59; acter of parties. 
 
 Cronkrite v. Trexler, 187 Pa. 100. "^Wike v. Lightner, n S. & R. 
 
 ^^Buck V. Cora., 107 Pa. 486. 198; Com. v. Payne, 205 Pa. loi. 
 
432 PENNSYI^VANIA TRIAL EVIDENCE. 
 
 been guilty, but what people in general say concerning his general 
 character with reference to the matter under consideration, to 
 wit, his reputation for truthfulness. His reputation in all other 
 respects is immaterial and therefore irrelevant."" 
 
 The evidence must relate to the reputation of the witness at 
 and immediately preceding the time he is called to testify,"^ and 
 in the neighborhood in which he lives. The term "'neighborhood" 
 does not necessarily mean the immediate vicinity of his residence, 
 but is co-extensive with his intercourse among his fellowmen."* 
 Since attacks on the character of a witness are usually without 
 previous notice, a greater latitude is allowed in the support of 
 character than in attacking it, both as to time and place."" The 
 fact that witnesses who live in the same neighborhood as the im- 
 peached witness, or who knew him for several years, testify they 
 never heard of his character for truth being doubted, is competent 
 evidence.'" 
 
 The character of a witness is irrelevant where he was called 
 only to prove the incompetency of another witness who has been 
 permitted to testify.'^ 
 
 § 473. Credibility — Impeachment — Reputation for Truth and 
 Veracity — Cross-Examination of Impeaching Witness. A witness 
 who is offered to impeach the character of another may be cross- 
 examined concerning his means of knowledge and the grounds of 
 his opinion, and, it seems, as to his business and social relations 
 with the witness whose character he proposes to impeach, iri 
 order to show bias or prejudice.'^ If the impeaching witness 
 admits he is prejudiced, this does not render him incompetent 
 but merely affects his credibility.'^ Some latitude should be al- 
 
 6«Wike V. Lightner, il S. & R. "Smith v. Hine, 179 Pa. 203; 
 
 198; Com. V. Payne, 205 Pa. lOi ; Miller v. Miller, 187 Pa. 572. 
 
 Com. V. Howe, 35 Super. 554. The "schess v. Chess, i P. & W. 32; 
 
 general character of a witness for Morss v. Palmer, 15 Pa. 51. 
 
 intemperance: Brindle v. McII- i^^Com. v. Cornelly, 7 Super. yT, 
 
 vaine, 10 S. & R. 282; or chastity: Morss v. Palmer, 15 Pa. 51. 
 
 Gilchrist v. McKee, 4 Watts 380; '"Morss v. Palmer, 15 Pa. 51; 
 
 or particular instances of raiscon- Com. v. Cornelly, 7 Super. 77 ; Cor- 
 
 duct : Ramsay v. Johnson, 3 P. & rigan v. Traction Co., 225 Pa. 560. 
 
 W. 293, is inadmissible. Nor may See also § 109, note i. 
 
 a bad reputation be shown by proof 'iQuinn v. Crowell, 4 Whart. 
 
 of good reputation of an opposing 334. 
 
 witness who contradicts him : Com. '^fjep^ygrji, y Henshall, 153 Pa. 
 
 V. Hazlett, 14 Super. 352. 592. 
 
 '"Cook V. Miller, 6 Watts 507. 
 
WITNESSES. 433 
 
 lowed in cross-examination of such witness, but matters tending 
 to create collateral issues should be excluded/* The weight of 
 his testimony is for the jury, who should consider whether he 
 has sufficient knowledge of the reputation of the witness to be 
 able to testify accurately thereto/" 
 
 § 474. Credibility — Impeachment — Reputation for Truth and 
 Veracity — Effect of Impeachment. When the credibility of a wit- 
 ness has been impeached, the effect is to discredit his testimony,^* 
 and the court should properly instruct the jury with reference to 
 it, especially where the plaintiff's claim is based almost entireljj 
 on his own testimony which has been impeached.'^ But the ques- 
 tion must be left to the jury and cannot be made the basis of 
 binding instructions to disbelieve such testimony.'* If the credi- 
 bility of the defendant in an equity suit is impeached, it weakens 
 the effect of his answer which may then be overcome by the 
 testimony of one witness and such corroborating facts as will 
 give it greater weight than the answer.'" It has been held that 
 where a justice of the peace before whom a writing was ac- 
 knowledged, testified it was not voluntary, and his character i^ 
 then impeached, the effect of such impeachment is to destroy the 
 validity of the acknowledgment as well as his credibility.'" 
 
 § 475. Credibility — Impeachment — Reputation for Truth and 
 Veracity — Practice. Before a witness will be permitted to testify 
 to the bad reputation of another for truth and veracity he must 
 satisfy the court that he has adequate means of knowledge on 
 which to base his conclusion.'^ The proper procedure is to ask 
 the witness whether he is acquainted with the other and with his 
 general reputation for truth and veracity in the neighborhood in 
 which he resides, and if so, what that reputation is. If his 
 answer to the first is in the affirmative and in answer to the sec- 
 ond he states the reputation is bad, he may be then asked whether 
 from such knowledge of his reputation he would believe the wit- 
 
 '*Hepworth v. Henshall, 153 Pa. ^^East Mount Coal Co. v. 
 
 592. Schuyler, i Walk. 342. See § 476. 
 
 ^'Oberholtzer v. Heist, 2 Mona. '"Bixler v. Heilman, 44 Super. 
 
 396. 603- 
 
 '"Com. V. Burton, 5 Kulp 329; sogeam v. Hamilton, lo Lane. 
 
 Epier V. Metzger, 17 Super. 56. Bar 69. 
 
 "Herstine v. Railroad, 151 Pa. s^Lyman v. Philadelphia, 56 Pa. 
 
 244. 488; Com. V. Howe, 35 Super. 554. 
 
 28 
 
434 PljNNSYI^VANIA TRIAL KVIDENCE. 
 
 ness under oath.*- In supporting the character of the witness, 
 the same method should be pursued.*^ 
 
 The number of witnesses to be called on a question of character 
 is largely within the discretion of the court.** 
 
 § 476. Credibility — Impeachment — Own Witness. As a gen- 
 eral rule a party who produces a witness thereby holds him out 
 as being worthy of belief and cannot be permitted to impeach his 
 general character or show contradictory statements made by him 
 •on other occasions.*^ And even though the witness has been im- 
 peached by the opposite side, the party producing him is bound 
 by his testimony in so far as it may be against him.*" This rule 
 has not been so strictly enforced in recent decisions, however, 
 and when necessary to prevent injustice the tendency is to permit 
 parties to elicit the truth without strict regard to technicalities, 
 and contradiction may be permitted though the rule as to hostile 
 and adverse witnesses is not invoked and surprise is not pleaded.*' 
 
 The mere fact of calling a witness does not mean that the 
 party thereby admits as true everything the witness may say, and 
 he is not estopped from proving the facts to be otherwise by 
 other evidence.** He may also impeach a witness called as on 
 cross-examination and may disprove facts to which his witness 
 has testified when called by the opposite party,*' who is in turn 
 bound by his testimony and may not bring out in re-examination 
 anything tending to impeach his credibility."" The party calling 
 a witness may also prove he was intoxicated when the events to 
 which he testified occurred. Such evidence does not impeach the 
 credibility of the witness but shows his recollection was neces- 
 sarily confused."^ 
 
 A party is bound by the testimony of his witness only so far 
 
 s^Chess V. Chess, i P. & W. 32; "Grant v. Cox, 199 Pa. 208; 
 
 Boyle V. Kreitzer, 46 Pa. 465; Ly- Com. v. Dietrich, 221 Pa. 7. See 
 
 man v. Philadelphia, 56 Pa. 488. review of cases in Fisher v. Gross, 
 
 s^Chess V. Chess, i P. & W. 32. 16 Dist. 292. 
 
 8*Com. V. Hess, 18 C. C. 542. See ssSouthwark Ins. Co. v. Knight, 
 
 S 489- 6 Whart. 327; Stearns v. Bank, 53 
 
 s^Cowden v. Reynolsls, 12 S. & R. Pa. 490 ; McDermott v. Hofifraan, 
 
 280; Smith V. Price, 8 Watts 447; 70 Pa. 31; Penna. Railroad v. Fort- 
 
 Stearns v. Bank, 53 Pa. 490 ; Penna. ney, 90 Pa. 323 ; Com. v. Mediote, 
 
 Railroad v. Fortney, 90 Pa. 323; 38 Super. 194. 
 
 Roller V. Ins. Co., 41 Super. 48. MSee §§ 43S-437 ; Meredith v. 
 
 8«East Mount Coal Co. v. Thomas, 4 Kulp 505. 
 
 Schuyler, i Walk. 342. ""Mitchell v. Welch, 17 Pa. 339. 
 
 "'Duffy V. Com., 6 W. N. C. 311. 
 
WITNESSES. 
 
 435 
 
 as it is material to the issue"^ and affects the particular cause. 
 It cannot be used against him in a subsequent proceeding betweeq 
 other parties and relating to another controversy."" 
 
 § 477. Credibility — ^Impeachment — Own Witness — Adverse or 
 Unwilling Witness — Surprise. An exception to the rule that a 
 party calling a witness is not permitted to impeach him, is al- 
 lowed where the witness unexpectedly, testifies in a manner dif- 
 ferent from that which the party, from statements made by the 
 witness prior to trial, had been led to expect he would testify, 
 and the witness may then be cross-examined by the party calling 
 him, or other witnesses may be called, to show he had told a dif- 
 ferent story at another time."* The prior contradictory state- 
 ments are not received as substantive evidence in the case how- 
 ever, but only for the purpose of neutralizing the effect of the 
 present testimony given by the witness."' 
 
 The credibility of such a witness is for the jury and his contra- 
 dictory statements do not justify binding instructions against the 
 party calling him, especially where there is other testimony in 
 the case."" 
 
 "^Ayres v. Wattson, 57 Pa. 360. 
 
 ^''Ayres v. Wattson, 57 Pa. 360; 
 McDermott v. Hoffman, 70 Pa. 31. 
 
 "^Cowden v. Reynolds, 12 S. & R. 
 281 ; Northern Liberties Bank v. 
 Davis, 6 W. & S. 285; McNerney 
 V. Reading, 150 Pa. 611; Lewis v. 
 Baker, 162 Pa. 510; Com. v. Wick- 
 ett, 20 Super. 350; KoUer v. Ins. 
 Co., 41 Super. 48. The rule ap- 
 plies where the calling of the wit- 
 ness was induced by prior state- 
 ments made at a preliminary ex- 
 amination : Gray v. Hartman, 6 
 Super. 19s. While prior to the Act 
 of March 30, 1911, P. L. 35, officers 
 of a corporation which was a party 
 could not be called by the adverse 
 party for cross-examination, they 
 came within the rule relating to ad- 
 verse and unwiUing witnesses, and 
 it was held the court might permit 
 leading questions and even contra- 
 diction of their testimony by the 
 
 party calling them : Gantt v. Cox, 
 199 Pa. 208. 
 
 ^^Northern Liberties Bank v. 
 Davis, 6 W. & S. 285. The court 
 will not permit former statements 
 to be offered ostensibly to discredit 
 the witness but in fact to operate 
 as independent evidence : Smith v. 
 Price, 8 Watts 447. If the party 
 calling such witness knows, or has 
 good reason to believe, that the 
 witness will testify against him, he 
 cannot offer his testimony and then 
 treat the witness as adverse : Ern- 
 hart v. Hiller, 16 Lane. 51 ; Smith 
 V. Hagey, 14 Dist. 775. Where on 
 cross-examination a witness says he 
 informed the party calling him as 
 to certain facts, the latter may tes- 
 tify that no such information was 
 given : Craft v. Phihps, 4 Penny, 
 45- 
 
 "^Lewis V. Baker, 162 Pa. 510. 
 
43^ PENNSYLVANIA TRIAL EVIDENCE. 
 
 § 478. Credibility — Impeachment — Own Witness — Necessary 
 Witness. Another exception to the rule that a party may not im- 
 peach his own witness is where he is under the necessity of calling 
 the particular witness for the purpose of supplying some formal 
 proof which the law requires,"' as where it is necessary to account 
 for the non-production of a writing"* or prove its execution," or 
 to ofifer statements made by a physician in filling out preliminary 
 proofs of death required under a life insurance policy.'^"" 
 
 § 479. Credibility — Interest in Suit. While a witness is not 
 prevented from testifying merely because he is a party to the 
 proceeding or interested therein,^ his credibility because of such 
 interest is always for the jury,^ who may consider not only the 
 extent to which the witness's testimony is contradicted, but its 
 reasonableness and consistency with the established facts of the 
 case, and also the character of the contradictory testimony.^ But 
 it is improper to charge that the testimony of an interested party 
 may be discredited except so far as it is corroborated by other 
 testimony,* or that the testimony of a disinterested witness is en- 
 titled to more weight.^ 
 
 Liability to pecuniary loss or gain from the event of the suit 
 is a frequent ground of interest which may tend to influence a 
 witness, and which may therefore be considered by the jury in 
 determining his credibility.* The interest may also be indirect, 
 as in the case of an employee for whose alleged negligence the 
 master is sought to be held liable.' But the fact that a person con- 
 tributes money to employ counsel to carry on a criminal prose- 
 
 "^Stockton V. Demuth, 7 Watts ed in the will does not justify the 
 
 39. A plaintiff in a foreign attach- court in treating their testimony as 
 
 ment is not bound by the answers of little value, such witnesses being 
 
 of the garnishee : Adium v. Yard, I the only ones who have an oppor- 
 
 Rawle 163. tunity to acquire knowledge of the 
 
 98Morris v. Guffey, i88 Pa. 534. circumstances of the making of the 
 
 ""Cowden v. Reynolds, 12 S. & R. will : Miller's Estate, 179 Pa. 645. 
 
 281 ; Harden v. Hays, 9 Pa. 151 ; *Com. v. Pipes, 158 Pa. 25. 
 
 Hart v. Burns, 4 Clark 337. =Platz v. Twp., 178 Pa. 601. 
 
 looBaldi v. Ins. Co., 24 Super. 275. "Colonial Trust Co. v. Getz, 28 
 
 ^See § 433. Super. 619. The fact that a witness 
 
 ^Corn. V. Orr, 138 Pa. 276; Com. stated he could make money by tes- 
 
 V. McKwayne, 221 Pa. 449; Bren- tifying as he had done, is relevant 
 
 nan v. Railroad, 230 Pa. 228. on the question of credibility: 
 
 3Com. V. Breyesse, 160 Pa. 451. Com. v. Simon, 44 Super. 538. 
 
 In an issue devisavit vel non the 'Ellis v. Railroad, 138 Pa. 506. 
 fact that the witnesses are interest- 
 
WITNESSES. 437 
 
 cution, is not maintenance nor does it tend to impeach his credi- 
 bility if he does not appear to have acted from maUcious motives 
 or without probable cause.' 
 
 § 480. Credibility — Relationship to Parties — Prejudice. The 
 existence of any relationship between the witness and the party 
 for whom he testifies is a matter which may be considered by the 
 jury in determining his credibility;' but it should not be given 
 much weight where the testimony is otherwise positive and unim- 
 peached.^" The existence of a quarrel^'^ or of any other facts 
 tending to show bias or prejudice^^ between the witness and the 
 opposite party, is also relevant. 
 
 § 481. Examination of Witnesses — Direct Examination. The 
 general rule to be observed in direct examination is that leading 
 questions, that is, those which are put in such form as to suggest 
 the answer desired, are to be avoided,'^ although it is proper to 
 put a question in such manner as to lead the mind of the witness 
 to the subject of inquiry.^* The particular form of a question 
 depends usually upon a variety of circumstances, and is to a great 
 extent within the discretion of the trial judge."^^ 
 
 If the subject matter of inquiry is a certain conversation, the 
 witness should be asked what was said without directing his at- 
 tention to any particular matter.^^ But if called to contradict 
 another who has testified to certain things, he may be asked the 
 direct question whether such things were said or done.^'' If a 
 
 *Com. V. Dupuy, Brightly N. P. 25. A question in the following 
 
 44. form "Did you or did you not" do 
 
 "Chicago Organ Co. v. McMani- a certain thing, is proper: Selin 
 
 gal, 8 Super. 632 ; Guernsey v. v. Snyder, 7 S. & R. 166 ; Wilson 
 
 Froude, 13 Super. 405 ; Com. v. v. McCullough, 23 Pa. 440 ; com- 
 
 Gibson, 211 Pa. 546. pare Summers v. Wallace, 9 Watts 
 
 ii'Gangwere's Estate, 14 Pa. 417. 161. A witness may also be asked 
 
 I'^Com. V. Hartman, 31 Super. whether, from his knowledge of a 
 
 364. testator, he "considered him fit or 
 
 i^Com. V. Bunnell, 20 Super. 51. unfit to make a will" : Wogan v. 
 
 i^Snyder v. Snyder, 6 Bin. 483; Small, 11 S. & R. 141; and in a 
 
 Summers v. Wallace, 9 Watts 161 ; boundary dispute a witness may be 
 
 Susquehanna, etc. Railroad v. Quick, asked whether a certain surveyor 
 
 61 Pa. 328; Com. V. Rossi, 47 since deceased had told him where 
 
 Super. 297. a corner was : Kemmerer v. Edel- 
 
 i^Com. V. Rossi, 47 Super. 297. man, 23 Pa, 143. 
 
 i=Farmers' Mut. Ins, Co. v. Bair, "'Neely v. Bair, 157 Pa. 417. 
 
 87 Pa, 124; Neely v, Bair, 157 Pa. i^Farmers' Mut. Ins. Co. v. Bair, 
 
 417; Com. V. Ramsay, 42 Super. 87 Pa. 124. 
 
438 PENNSYLVANIA TRIAL EVIDljNCE. 
 
 witness has denied having any definite knowledge of certain 
 matters, it is improper to permit questions to be asked him con- 
 taining suggestions which the witness then immediately adopts in 
 his testimony/* The fact that one party has called a witness 
 does not give the opposite party, who subsequently calls him as 
 his own witness, the right to ask leading questions.^" 
 
 The rule forbidding leading questions is liberally construed 
 under modern practice, and if a witness by his manner shows a 
 reluctance to testify, or that he is hostile to the party calling him, 
 or is attempting to conceal the truth, the court will permit a larger 
 latitude in the form of questions.-" But before a party has a 
 right to treat his witness as hostile, he must show sufficient cause 
 for such action. It is not enough that the witness says he does 
 not remember certain facts.^"^ 
 
 Objection to a question as leading should be made at the time 
 it is asked, so that there will be opportunity to change the form 
 of it. It is too late to raise the question on appeal,^- or on the 
 trial of the case if the question was asked on the taking of depo- 
 sitions.^^ 
 
 The trial judge may question witnesses when necessary to en- 
 able him and the jury to better understand the case.^* 
 
 § 482. Examination of Witnesses — Cross-Examination. Lead- 
 ing questions are always permissible on cross-examination, which 
 must be confined to the matters testified to by the witness in 
 his examination in chief, ^° or circumstances clearly connected 
 with or which qualify or explain such direct testimony-" or de- 
 
 i^Buckman v. Railroad, 227 Pa. 71; Jackson v. Litcli, 62 Pa. 451; 
 
 277. Hughes V. Coal Co., 104 Pa. 207; 
 
 I'Floyd V. Bovard, 6 W. & S. 75. Boyd v. Conshohocken Mills, 149 
 
 ^oGantt V. Cox, 199 Pa. 208; Pa. 363; Berkley v. Mining Co., 229 
 
 Com. V. Ramsay, 42 Super. 25 ; Pa. 417. 
 
 Com. V. Rossi, 47 Super. 297. See ^ejackson v. Litch, 62 Pa. 451; 
 
 also §§ 476 to 478 as to impeach- Glenn v. Traction Co., 206 Pa. 135. 
 
 ment of a party's own witness. A witness called to prove the re- 
 
 2iFisher v. Hart, 149 Pa. 232. ceipt of money may be asked for 
 
 22Kemmerer v. Edelman, 23 Pa. what purpose it was received : 
 
 £43; Corkery v. O'Neil, 9 Super. Jackson v. Litch, 62 Pa. 461. One 
 
 335' who has testified in chief as to his 
 
 -"Sheeler v. Speer, 3 Bin. 130; place of residence may be asked on 
 
 Strickler v. Todd, 10 S. & R. 63 ; cross-examination whether he is a 
 
 McKini v. Somers, i P. & W. 297. citizen of the United States : Green- 
 
 S'tZeok v. Hertz, 11 Super. 512. wood v. Traction Co., 30 Super 
 
 2f'Ellmaker v. Buckley, 16 S. & R. 488; and a witness for a borough 
 
WITNESSES. 439 
 
 stroy its effect^^ or show the whole of the transaction or conversa- 
 
 who testifies to the condition of 
 streets and gutters and the effect 
 on the plaintiff's houses, may be 
 asked on cross-examination by 
 whom the gutters were construct- 
 ed : Bohan v. Boro., 154 Pa. 404. 
 A witness for defendant charged 
 with larceny, who testifies, for the 
 purpose of showing lack of motive, 
 that he had kept defendant supplied 
 with money, may be asked whether 
 the defendant did not in fact owe 
 pressing debts : Fulmer v. Com., 
 97 Pa. 503 ; and witnesses who tes- 
 tify they had been in the habit of 
 using a certain lane may be asked 
 whether they did not use it with 
 permission of the owner: Kyper v. 
 Sheaffer, 42 Super. 277. In tres- 
 pass for assault and battery by 
 shooting, where defendant offers in 
 mitigation of punitive damages the 
 record of his conviction and sen- 
 tence for the same crime under 
 which he was serving a term oi 
 imprisonment, he may be asked 
 whether, at the time he was sen- 
 tenced, the court did not state that 
 if within the term the civil suit was 
 settled a portion of the sentence 
 would be remitted : Wirsing v. 
 Smith, 222 Pa. 8. If a defendant 
 charged with embezzling public 
 funds alleges that certain repre- 
 sentations as to the amount ol 
 money on hand were not falsely but 
 mistakenly made, it may be shown 
 that he was receiving interest on 
 the money in question as tending 
 to rebut the theory of mistake : 
 Com. v. House, 6 Super. 92. In an 
 action by a widow for the death of 
 her husband, the defendant may 
 show on cross-examination that the 
 father of the deceased contributed 
 to their support, especially where 
 it appears on direct examination 
 
 tnat the earnings cf deceased were 
 very small : Abel v. Traction Co., 
 212 Pa. 329. Where defendant in 
 replevin is alleged to have secured 
 credit on false representations as to 
 financial condition, and has testified 
 she had certain funds on deposit, 
 she may be asked how she obtain- 
 ed the money : Van Sciver v. Mc- 
 Pherson, 199 Pa. 331. Where in- 
 sanity is the defense in a murder 
 trial and defendant testifies in his 
 own behalf, he may be asked on 
 cross-examination whether he claims 
 to be insane : Com. v. Van Horn, 
 188 Pa. 143. 
 
 Where land is alleged to have 
 been conveyed in fraud of credi- 
 tors, the question what the grantor 
 did with the money received or 
 where the grantee obtained it is ir- 
 relevant unless, in the latter case, 
 there is an offer to show it came 
 from the grantor: Littieri v. 
 Freda, 241 Pa. 21. A witness call- 
 ed to prove he had made a draft of 
 land described in a deed cannot be 
 asked on cross-examination whether 
 the land in controversy is a part of 
 the land described in the draft: 
 Wolf V. Wolf, 158 Pa. 621; and 
 refusal to permit cross-examination 
 concerning certain letters not men- 
 tioned in direct examination is not 
 error : Com. v. Greason, 204 Pa. 
 64. A witness called merely to 
 identify a paper may not be cross- 
 examined in regard to its contents : 
 Tiley V. Moyers, 43 Pa. 404. 
 
 2'A chauffeur of defendant called 
 by the plaintiff to identify a car 
 and to show he was in the employ 
 of defendant, may be cross-ex- 
 amined to show that at the time of 
 the accident he was not driving the 
 machine on the business of his mas- 
 ter : Quigley v. Thompson, 211 Pa. 
 
440 
 
 PENNSYLVANIA TRIAL EVIDENCE. 
 
 tion referred to therein,'* and to such matters as may tend to im- 
 peach the credibility of the v^fitness by showing bias, interest in 
 the proceedings, or relationship to the party calling him,-" or to 
 test his knowledge, recollection or accuracy of statement.'" If 
 the witness has knowledge of other facts material tp the case of 
 the party cross-examining him, he must be called by such party 
 as his own witness.'^ 
 
 When cross-examination relates to the subject matter of the 
 examination in chief and tends to elicit facts which should have 
 been brought out as a part of the plaintiff's case, it should be 
 allowed as being a development of part of the res gestae.^^ But 
 this rule does not permit a witness to be cross-examined con- 
 cerning matters which occurred after the transaction in question 
 
 107; and where in an action for 
 damages for death at a railroad 
 crossing the direct examination of 
 tlie plaintiff's witnesses tended to 
 show the situation of the crossing 
 and its dangers, it may be shown 
 on cross-examination that deceased 
 could have had a view of the track 
 -for half a mile, if he had stopped 
 and looked at a certain point: 
 Sullivan v. Railroad, 175 Pa. 361. 
 A witness who testifies a mistake 
 in a telegram was due to careless- 
 ness of the sender, may be cross- 
 examined to show the negligence 
 was in fact that of the operator in 
 transmitting it : Wolf v. Tele- 
 graph Co., 24 Super. 129. If a wit- 
 ness testifies that what purports to 
 be his signature was not written 
 by him, he may be asked to write 
 in order that his handwriting may 
 be compared with the disputed sig- 
 nature for the purpose of contra- 
 dicting him : Com. v. Craig, 19 
 Super. 81. 
 
 28West Branch Bank v. Donald- 
 son, 6 Pa. 179; Stevenson v. Hoy, 
 43 Pa. 191 ; Jackson \ , Litch, 62 
 Pa. 451 ; Glenn v. Traction Co., 206 
 Pa. 135. 
 
 2oHopkinson v. Leeds, 78 Pa. 396; 
 Hughes v. Coal Co., 104 Pa. 
 
 207; Sulhvan v. Railroad, 175 Pa. 
 361 ; Glenn v. Traction Co., 206 
 Pa. 13s ; see also next section ; 
 and see other sections under this 
 chapter aflfecting credibility of wit- 
 ness. 
 
 3»Glenn v. Traction Co., 206 Pa. 
 135. But one who has not testified 
 in chief as an expert cannot be 
 cross-examined as such : Olmsted 
 v. Gere, 100 Pa. 127. 
 
 "iployd v. Bovard, 6 W. vK' S. 75. 
 
 •''^Subscribing witnesses to a writ- 
 ing may be cross-examined in re- 
 gard to the circumstances attending 
 its execution : Marklev v. Swartz- 
 lander, 8 W. & S. 172; Bank v. 
 Fordyce, 9 Pa. 275 ; and the mental 
 condition of the testator at tnat 
 time if the writing in question is a 
 will : Egbert v. Egbert, 78 Pa. 326. 
 A witness who testifies that an ac- 
 cident was due to the removal of 
 sand boxes from trolley cars, may 
 be cross-examined to show that the 
 Ijoxes were substituted by another 
 system of sanding the tracks : 
 Smith v. Traction Co., 202 Pa. 54; 
 and one who testifies to the circum- 
 stances of an accident may be cross- 
 examined on all matters connected 
 with it within the res gestae rule : 
 McNeal v. Railway, 131 Pa. 184. 
 
WITNIJSSES. 
 
 441 
 
 was fully ended,'' nor concerning collateral matters for the pur- 
 pose of laying ground for contradicting the witness and affecting 
 his credibility.''* The rule for determining whether certain mat- 
 ters are collateral, is whether the cross-examining party would 
 be permitted to offer the evidence as part of his own case.'^ 
 
 The method and extent of cross-examination is a matter which 
 of necessity must be left largely to the discretion of the trial 
 judge, whose action will not be reversed in absence of abuse of 
 discretion,"" or unless actual injury has resulted to the other 
 party.'' 
 
 A party who calls his opponent on cross-examination may ask 
 him leading questions, and may treat him in every respect as if 
 he had already been examined in his own behalf.'^ 
 
 § 483. Examination of Witnesses — Cross-Examination — Credi- 
 bility. It is always permissible to cross-examine a witness con- 
 cerning matters which tend to impeach his credibilty, such as his 
 interest in the matter in controversy, whether direct or col- 
 lateral,'" or his favor, bias, or ill-feeling for or against one of the 
 parties to the suit,*" even though such questions may incidentally 
 
 An officer who testified to having 
 found an unusual sum of money 
 on a prisoner may be asked on 
 cross-examination what the prison- 
 er said at the time in explanation : 
 Rhodes v. Com., 48 Pa. 396. 
 
 33Com. V. Leyshon, 44 Super. 507. 
 A witness may be cross-examined 
 in regard to instructions given a 
 sheriff at the time of delivery of a 
 writ to him, but not as to matters 
 stated subsequently thereto : Hop- 
 kinson v. Leeds, 78 Pa. 396. 
 
 3*Jessop v. Ivory, 158 Pa. 71. 
 See §§ 470 and 483. 
 
 '^Hildeburn v. Curran, 6s Pa. 59. 
 
 3* Jackson v. Litch, 62 Pa. 451; 
 Ryder v. Jacobs, 196 Pa. 386; 
 Glenn v. Traction Co.. 206 Pa. 135; 
 Hunter v. Voigt, 8 Super. 484; 
 Yeager v. Cassidy, 12 Super. 232 ; 
 Sebring v. Weaver, 42 Super. 588. 
 
 ''Thomas v. Loose, 114 Pa. 35. 
 Allowance of improper cross-ex- 
 amination is harmless where bind- 
 
 ing instructions are given : Wil- 
 liams Typewriter Co. v. Cleaver, 38 
 Super. 376. 
 
 ssBrubaker v. Taylor, y(i Pa. 83. 
 See § 437. 
 
 '»Ott v. Houghton, 30 Pa. 451; 
 Com. V. Farrell, 187 Pa. 408; Lena- 
 han V. Coal Co., 221 Pa. 626. 
 
 ^oHopkinson v. Leeds, 78 Pa. 396 ; 
 Fulton V. Central Bank, 92 Pa. 112; 
 Com. V. Payne, 205 Pa. loi. A wit- 
 ness may be asked on cross-exami- 
 nation whether the party for whom 
 he testifies did not purchase realty 
 of the witness at his request to save 
 it from creditors : Cameron v. 
 Montgomery, 13 S. & R. 127; or 
 whether the witness did not give a 
 witness for the opposite side money 
 to go away and not testify : Fitz- 
 gerald V. Riley, 163 Pa. 65 ; or to 
 show that a witness attempted 
 blackmail in connection with the 
 case: Com. v. Bell, 4 Super. 187; 
 or had formerly made false accusa- 
 
442- 
 
 PENNSYLVANIA TRIAL EVIDENCE. 
 
 develop irrelevant facts prejudicial to the other party.*^ The 
 witness may also be questioned for the purpose of testing his 
 knovi^ledge and accuracy/^ or his honesty and fairness*'' or to 
 show motive."'' He may be asked whether he has not previously 
 
 lions of corruption against the op- 
 posite party : Pliiladelphia v. Reed- 
 er, 173 Pa. 281. An expert may be 
 cross-examined to show he was to 
 receive compensation above his reg- 
 ular witness fees : Shannon v. Cast- 
 ner, 21 Super. 294. 
 
 "'Lenahan v. Coal Co., 221 Pa. 
 626, 
 
 *2A witness who has testified to 
 the value of land may be asked 
 whether he does not know of par- 
 ticular sales of other property in 
 the vicinity at a less price : Lentz 
 V. Carnegie Co., 145 Pa. 612; Beck- 
 er V. Railroad, 177 Pa. 252; Henkel 
 V. Railroad, 213 Pa. 485. See also 
 § 329; but not if the purpose is to 
 have his answer go to the jury as 
 affirmative evidence of value: 
 Schonhardt v. Railroad, •216 Pa. 224. 
 One who testifies to depreciation in 
 value of a mill property due to the 
 diversion of water may be asked 
 concerning his knowledge of the 
 facts in general : Filbert v. Deckert, 
 22 Super, 363; and an engineer who 
 prepared a map and has testified to 
 the location of certain objects, may 
 be cross-examined on other points 
 to test the accuracy of his knowl- 
 edge : Derk v. Railroad, 164 Pa. 
 243. Where the location of a coal 
 bank is in question, a witness called 
 to prove the location may be asked 
 on cross-examination whether there 
 was not another coal bank located 
 on the same property : Hunter v. 
 Hunter, 37 Super. 311. A witness 
 who testified he did not think an 
 elevator shaft dangerous may be 
 asked whether other persons had 
 not been injured there before the 
 
 accident in question : Reid v. Linck, 
 206 Pa. 109. 
 
 ^^Witnesses at a second trial of 
 a case who estimate the value of 
 realty at the same amount as on 
 the first trial, which was reversed 
 because improper elements were in- 
 cluded in the measure of damages, 
 may be asked whether they did not 
 compute by a different method so 
 as to fix the total the same as be- 
 fore : Reading Railroad v. Bal- 
 thaser, 126 Pa. i. An agent for an 
 insurance company who testifies that 
 a policy was not in force but ad- 
 mits having received from the 
 plaintiff and held for two weeks a 
 check for premiums, may be asked 
 whether he would not have insisted 
 on payment of the check if the fire 
 had not occurred : Long v. Ins. 
 Co., 137 Pa. 335. A witness foi 
 plaintiff in an action for injuries to 
 his credit by the publication that a 
 judgment had been entered against 
 him when in fact there was only 
 a verdict and a motion for a new 
 trial was pending, may be asked on 
 cross-examination whether, if he 
 had known there was only a ver- 
 dict, his action would have been the 
 same : Hessel v. Bradstreet Co., 
 141 Pa. SOI. Improper attempts to 
 influence a juror in a former trial 
 may also be shown on cross-exami- 
 nation : Beck v. Hood, 185 Pa. 32. 
 **Com. v. Simon, 44 Super. 538. 
 But on a murder trial, a witness 
 for the commonwealth cannot be 
 cross-examined in regard to mat- 
 ters which do not affect his credi- 
 bility, to show motive for swearing 
 falsely against defendant, though 
 
WITNIISSUS. 
 
 443 
 
 acted' or made statements inconsistent with those made on his 
 direct examination,'*^ and may also be questioned concerning mat- 
 ters which tend to cast suspicion on the party's case/" or which 
 show the improbabihty of his testimony in chief. ''^ But he may 
 not be asked whether he has not committed or been convicted 
 of a particular crime/^ since if the object be to prove that his 
 reputation is bad, such purpose is not accomplished by proof of 
 specific acts,*^ and if the object be to contradict him if he denies 
 the crime, this would not be permitted since the inquiry is as 
 to a collateral fact.^" But a witness may sometimes, in the dis- 
 cretion of the trial court, be cross-examined on collateral matters 
 for the purpose of testing his recollecting or showing interest or 
 bias, though in such case the party cross-examining will be bound 
 by his answers and cannot contradict them.^^ 
 
 § 484. Examination — Cross-Examination — Defendant in Crimi- 
 nal Case. A greater latitude is allowed in the cross-examination 
 of a defendant in a criminal case than in cross-examination of an 
 ordinary witness. When he denies having committed the crime 
 charged, everything which tends to contradict his statement is a 
 
 the questions would have been 
 proper if the witness had himself 
 been on trial for the crime : Com. 
 V. Bubnis, 197 Pa. 542. 
 
 *°Jacoby v. Ins. Co., 10 Super. 
 366; Thomas v. Butler, 16 Super. 
 268; Philadelphia v. Dobbins, 24 
 Super. 136; Baker v. Moore, 29 
 Super. 301 ; Miller v. Baker, 160 
 Pa. 172 ; Mullen v. Ins. Co., 182 Pa. 
 ISO. An assessor who testifies to 
 land value, may be asked at what 
 price he has assessed the same 
 property: Krider v. Phila., 180 Pa. 
 78; and a physician who attended 
 plaintiff and who testified he was 
 not the defendant company's physi- 
 cian, may be asked whether he had 
 not been frequently employed by 
 defendant to attend injured em- 
 ployees : Guckavan v. Traction Co., 
 203 Pa. 521. A witness may also 
 be cross-examined concerning state- 
 ments inconsistent with his testi- 
 mony in chief, made in a letter 
 written by a third person at his re> 
 
 quest : Com. v. DeMasi, 234 Pa. 
 570. 
 
 *»Thomas v. Miller, 151 Pa. 482. 
 
 *^Com. V. Stanley, 19 Super. 58; 
 Shannon v. Castner, 21 Super. 
 294. 
 
 *8Gilchrist v. McKee, 4 Watts 
 380; Elliott v. Boyles, 31 Pa. 65; 
 Com. v. Payne, 205 Pa. loi ; Com. 
 V. Williams, 209 Pa. 529. But see 
 Com. V. Payne, 242 Pa. 394. The 
 prosecutrix in a fornication and 
 bastardy case may be asked on 
 cross-examination whether she had 
 connection with any other men at 
 the time the child was begotten : 
 Com. V. Fritz, 4 Clark 219. 
 
 *sSee § 472. 
 
 ''"See § 482, notes 34 and 35. 
 
 siQerman Fruit Co. v. Roberts, 8 
 Super. 500; Yeager v. Cassidy, 12 
 Super. 232; Trussell v. Gas Co., 
 20 Super. 423 ; Com. v. Scouton, 20 
 Super. 503 ; Com. v. Ezell, 212 Pa. 
 293; Sebring v. Weaver, 42 Super. 
 588. 
 
444 
 
 PENNSYLVANIA TRIAL EVIDENCE. 
 
 proper subject of cross-examination.^^ The ordinary witness 
 testifies under compulsion and is entitled to claim the protection 
 afforded him by the constitution and refuse to answer questions 
 which may tend to incriminate him. On the other hand a person 
 charged with crime cannot be compelled to testify, but if he does 
 take the stand he acts voluntarily and in doing so waives his 
 constitutional right to decline to answer self-incriminating ques- 
 tions.^^ For the purpose of affecting his credibility, he may be 
 asked concerning specific acts of wrong doing on his part, in- 
 cluding the question whether he has ever been accused or con- 
 victed of a criminal offense,^* and if he denies it he may be con- 
 tradicted.^^ The limits of cross-examination, as in other cases, 
 is largely within the discretion of the trial judge.^" 
 
 § 485. Examination of Witnesses — Cross-Examination — De- 
 fense — Introduction Of. A party will not be permitted to intro- 
 duce his defense by cross-examining plaintiff's witnesses concerning 
 matters not mentioned in their testimony in chief.^^ If a witness 
 
 "-Com. V. Fitzpatrick, i Super. 
 Si8. 
 
 s^Com. V. House, 6 Super. 92; 
 Com. V. Swartz, 40 Super. 370; 
 Com. V. Racco, 225 Pa. 113. 
 
 °*Com. V. Racco, 225 Pa. 113; 
 Com. V. Williams, 41 Super. 326. 
 But defendant cannot be asked 
 wliether tlie trial judge in another 
 proceeding had not referred to her 
 as an abandoned, depraved and 
 untruthful woman : Com. v. Wil- 
 liams, 41 Super. 326. 
 
 s^Cora. V. Racco, 225 Pa. 113. 
 
 is^Com. V. Williams, 41 Super. 
 326; Com. V. Racco, 225 Pa. 113. 
 
 "'Ellmaker v. Buckley, 16 S. & R. 
 72; Jackson v. Litch, 62 Pa. 451; 
 Hopkinson v. Leeds, 78 Pa. 394; 
 Fulton V. Bank, 92 Pa. 112; Boyd 
 V. Conshohocken Mills, 149 Pa. 
 363; Deniston v. Philadelphia, 161 
 Pa. 41 ; Field v. Schuster, 26 
 Super. 82. A witness called by the 
 plaintiff to prove execution of an 
 agreement cannot be cross-examin- 
 ed to show the transaction was il- 
 legal : Irvin V. Irvin, 142 Pa. 271; 
 
 nor may an engineer called by plain. 
 tiff merely to prove the speed of 
 the train, be cross-examined by de- 
 fendant to show the bell was rung 
 and whistle blown : Clarke v. B. & 
 O. Railroad, 27 Super. 251. A wit- 
 ness called by the commonwealth 
 to prove that a certain pocketbook 
 given to an officer in the presence 
 of the witness was the same book 
 she had received from her husband, 
 cannot be asked on cross-examina- 
 tion concerning its identity with 
 one produced in court : Com. v. 
 Nicely, 130 Pa. 261. But when an 
 examination in chief was in regard 
 to the situation of a railroad cross- 
 ing and its dangers, cross exami- 
 nation is proper which tends to 
 show the danger could have been 
 avoided if the person injured had 
 used reasonable precaution by stop- 
 ping to look and listen at the ap- 
 propriate place, even though the 
 defense of contributory negligence 
 is thereby shown : Sullivan v. RaiU 
 road, 17s Pa. 361 ; and where a 
 chauffeur is called by plaintiff to 
 
WITNESSES. 
 
 445 
 
 for plaintiff has knowledge of matters material to the defense, the 
 defendant should call him in his own case.^* This rule applies 
 with equal force where the plaintiff calls the defendant to testify 
 on cross-examination and the defendant's attorney then attempts 
 to introduce his defense by examining his own client,^'* or where 
 the plaintiff attempts to show matter in rebuttal by cross-examin- 
 ing a witness called by the defendant in regard to matters not 
 touched upon in his examination in chief."" But if cross-ex- 
 amination concerns matters testified to in direct examination, it 
 will not be excluded merely because it also tends to introduce 
 matters of defense.'^^ When evidence is excluded on the ground 
 that it is an attempt to offer the defense on cross-examination, 
 the reason for exclusion should be stated so that it may again 
 be offered at the proper time."^ 
 
 Testimony relating to matters of defense improperly allowed 
 to be brought out on cross-examination of plaintiff's witnesses, 
 cannot be made the basis of a compulsory non-suit, but should 
 be considered by the jury as if the witness had been testifying 
 for the defendant."^ If the admission of such testimony re- 
 sulted in injury to plaintiff's case, it is ground for reversal."* 
 
 show his employment by defendant 
 and to identify the car, defendant 
 may, on cross-examination, show he 
 was at the time of the accident 
 using the machine on his own busi- 
 ness and contrary to orders of de- 
 fendant : Quigley v. Thompson, 
 211 Pa. 107. Where plaintiff's agent 
 is offered to prove the execution of 
 a contract, he may be cross-ex- 
 amined as to his authority to exe- 
 cute such contract, but not as to his 
 general authority as agent : Amer- 
 ican Car Co. V. Water Co., 218 Pa. 
 542. 
 
 s'Schnable v. Doughty, 3 Pa. 
 392; Mitchell V. Welch, 17 Pa. 
 339; Olmsted v. Gere, 100 Pa. 127. 
 The fact that the .witness was not 
 in attendance when afterwards 
 called upon by the defendant is im- 
 material : Com. V. Fencez, 226 Pa. 
 114. 
 
 s^Corkery v. O'Neil, 9 Super. 
 
 335. 
 
 ^"Com. V. Hyde, 39 Super. 261. 
 
 "^Sullivan v. Railroad, 175 Pa. 
 361 ; Matteson v. Railroad, 218 Pa. 
 527. 
 
 "^Schuylkill Navigation Co. v. 
 Farr, 4 W. & S. 362. Even though 
 the court, in excluding certain 
 cross-examination, states the evi- 
 dence will also be excluded if of- 
 fered in chief, this does not ex- 
 cuse defendant from making a for- 
 mal offer at 'the proper time : In- 
 gram V. Harris, 9 Super. 301. 
 
 "'Hughes v. Coal Co., 104 Pa. 
 207; Longenecker v. Railroad, 105 
 Pa. 328; Sullivan v. Railroad, 175 
 Pa. 361 ; Quigley v. Thompson, 
 211 Pa. 107; Catanzaro v. Rail- 
 road, 230 Pa. 305; Keystone Brew- 
 ing Co. V. Varzaly, 39 Super. 155. 
 
 ^*Jackson v. Litch, 62 Pa. 451 ; 
 Thomas v. Loose, 114 Pa. 35. 
 
446 PENNSYLVANIA TRIAI, UVIDENCfi. 
 
 But if no harm was caused by the allowance of some latitude 
 in the cross-examination,*"^ as where the witness, when subse- 
 quently called by the adverse party, testified to the same things 
 which were brought out on cross-examination,^^ the appellate 
 court will not reverse. 
 
 § 486. Examination of Witnesses — Cross-Examination — Recall- 
 ing for Further Cross-Examination. The court may, in its discre- 
 tion, permit a witness to be recalled for further cross-examina- 
 tion," even though the other party has rested®* or has opened 
 his case in rebuttal."" 
 
 § 487. Examination of Witnesses — Cross-Examination — Writ- 
 ten Statements of Witness — Introduction in Evidence. When it 
 is desired to cross-examine a witness on the contents of a paper 
 or letter written by him, it is improper to first ask him whether 
 he wrote a paper or letter containing certain matters and to cross- 
 examine him thereon. The writing is the best evidence of its 
 contents and should be first shown to him and then he may be 
 asked whether he wrote it. If he answers in the affirmative and 
 counsel desires to use it in cross-examination, he should offer 
 it in evidence and, if admitted, he is then free to use it.'" But 
 if the court refuses to admit it in evidence at the time, counsel 
 may then offer it in regular order as part of his own case. 
 
 Memoranda used by a witness to refrsh his memory, but not 
 put in evidence, may not be exhibited to the jury by way of cross- 
 examination.''^ But if portions of a deposition have been offered 
 by the plaintiff, the defendant may read the remainder as part of 
 his cross-examination.'^ 
 
 § 488. Examination of Witnesses — Re-Examination. Re-ex- 
 amination will usually be confined strictly to the explanation and 
 rebuttal of new matter brought out on cross-examination,'^ and 
 therefore a party should be careful not to omit matters material 
 to his case when examining his witnesses in chief. Witnesses 
 
 •isjackson v. Litch, 62 Pa. 451; '•Newman v. Com., 7 Atl. 132. 
 
 ■ Osborne v. Walley, 8 Super. 193 ; ^^Qogdn^a^ y Transportation Co., 
 
 Bickel V. Wood Paving Co., 2 3 Super. 282. 
 
 Walk. ISO. ■'sAsay v. Hay, 89 Pa. ^^•, Rhodes 
 
 6»Sutch's Estate, 201 Pa. 305. v. Com., 48 Pa. 396; McElheny v. 
 
 s^Coyle V. Com. 104 Pa. 117. Railway, 147 Pa. i. The courts 
 
 "^Steel V. Wisner, 141 Pa. 63. have power to make and enforce 
 
 ""Com. V. Eisenhower, 181 Pa. rules to this eflfect : Com. v. Camp- 
 
 470. bell, 31 Super. 9, 
 '"Kann v., Bennett. 223 Pa. 36. 
 
WITNESSES. 447 
 
 cannot be questioned concerning irrelevant matters merely be- 
 cause they have been referred to on cross-examination.^* 
 
 The extent of re-examination is within the discretion of the 
 trial judge^^ who may permit a party to examine a witness on 
 new matter at any stage of the trial, so long as no unfair ad- 
 vantage is thereby given. '° Re-examination for the mere pur- 
 pose of obtaining a repetition of testimony given in chief, is also 
 within the control of the court.''^ 
 
 § 489. Number of Witnesses. There is no rule of law which 
 prevents a party from giving additional, confirmatory or cumu- 
 lative evidence of facts previously proved. But the extent of 
 its admissibility is a matter within the discretion of the court, 
 and after a reasonable number of witneses have been called, if 
 there appears to be no doubt as to the proof of the matters al- 
 leged, the court may refuse to hear other witnesses,'^ especially 
 where the facts sought to be proved have been admitted by the 
 other side or are not contradicted." 
 
 § 490. Privileg'e Against Self-incrimination. The fifth 
 amendment of the Constitution of the United States, and Article 
 I, Section g of the Constitution of Pennsylvania, both provide 
 that no person accused of crime shall be compelled to give evi- 
 dence against himself, and Section lo of the Act of May 23, 
 1887, P. L. 158, provides- that any competent witness may be 
 compelled to testify in any proceeding except defendants actu- 
 ally upon trial in a criminal court, whose refusal to testify may 
 not be treated as creating any presumption against him nor be 
 adversely referred to by court or counsel during the trial,^° and 
 
 '*Smith V. Dreer, 3 Whar.t. 154. on trial in a criminal court, any 
 
 '^Stern v. Stanton, 184 Pa. 468 
 Com. V. Smith. 4 Super. I. 
 
 '^Curren v. Connery, S Bin. 488 
 Brown v. Molliston, 3 Whart. 129. 
 
 7'Aiken v. Stewart, 63 Pa. 30 
 Yardley v. Cuthbertson, 108 Pa 
 39S; Stern v. Stanton, 184 Pa 
 468. 
 
 ^*Myre v. Ludwig, I Pa. 47 
 
 competent witness may be compell- 
 . ed to testify in any proceeding, civil 
 or criminal, but he may not be 
 compelled to answer any question 
 which, in the opinion of the trial 
 iudge, would tend to criminate 
 him ; nor may the neglect or re- 
 fusal of any defendant actually 
 upon trial in a criminal court, to 
 
 Com. V. Gibbons, 3 Super. 408. See offer himself as a witness, be treat- 
 
 § 47s, note 84. ed as creating any presumption 
 
 '^Harden v. Hayes, 14 Pa. 91. against him or be adversely, referred 
 
 See § 2. to by court or counsel during the 
 
 *°The section referred to provides trial." 
 
 that "Except defendants actually Where in the course of a crim- 
 
448 
 
 PENNSYLVANIA TRIAL EVIDENCE. 
 
 except that no witness may be compelled to answer any question 
 which, in the opinion of the court, would tend to incriminate 
 him. The oath of a witness to tell the whole truth is therefore 
 taken subject to these constitutional and statutory provisions. 
 
 Criminal proceedings in which a defendant may not be com- 
 pelled to testify, include desertion proceedings in the quarter ses- 
 sions,*^ attachment proceedings under the Act of March 17, 1869, 
 P. L. 8,*= and actions for statutory penalties,*^ but not proceedings 
 against members of a labor organization for contempt of court 
 in refusing to obey a decree enjoining a boycott.** 
 
 The rule that a witness may not be compelled to incriminate 
 himself has not been confined strictly to cases where his answer 
 would tend to make him liable to punishment, but it has been 
 held that if it would subject him to public contempt, shame, or 
 reproach he need not answer,*^ especially if the question relates 
 
 inal trial the district attorney an» 
 nounced that the commonwealth 
 rested, and counsel for defendant, 
 not having heard the remark, said, 
 "Qo ahead," and the district at- 
 torney then asked the latter whether 
 he was not going to offer a de- 
 fense, such incident cannot be con- 
 strued as a reflection on the pris- 
 oner for not testifying: Com v. 
 Fox, 46 Super. 171. It has been 
 held that where a witness for de- 
 fendant charged with fornication 
 and bastardy testified on direct ex- 
 amination that the prosecutrix had 
 improper relations with another 
 person at a particular time and 
 place, but refuses on cross-exami- 
 nation to state the name of such 
 person on the ground that it would 
 tend to incriminate him, his entire 
 testimony will be stricken out : 
 Boyce's Case, 26 P. L. J. 181. A 
 defendant cannot be compelled to 
 produce a check he is alleged to 
 have forged: Com. v. Meads, 11 
 Dist. 10; and an assignor for credi- 
 tors may object to the production 
 by his assignees of books for the 
 purpose of a criminal prosecution 
 
 against him : Hazlett's Estate, 8 
 Dist. 201. But an officer of a cor- 
 poration cannot object to the pro- 
 duction of corporation books by the 
 receiver for the purpose of fur- 
 nishing evidence against such offi- 
 cer : McElree v. Darlington, 187 
 Pa. 593. 
 
 siCom, v. Reed, S Dist. 57. By 
 Act of March 13, 1903, P. L. 26, 
 desertion is a misdemeanor. 
 
 82Brannan v. Ruddy, 8 C. C. 176; 
 Sullivan v. Wallace, 32 W. N. C. 
 440. 
 
 s^Logan v. Railroad, 132 Pa. 403 ; 
 Boyle V. Smithman, 146 Pa. 255. 
 Defendant will not be required to 
 file an affidavit of defense in an 
 action for a penalty : Osborn v. 
 Bank, 154 Pa. 134; nor can plain- 
 tiff take judgment for insufficiency 
 of affidavit: Bartoe v. Guckert, 158 
 Pa. 124. 
 
 8*Patterson v. Wyoming Valley 
 Council, 31 Super. 112. 
 
 s'Respublica v. Gibbs, 3 Yeates 
 429; Galbreath v. Eichelberger, 3 
 Yeates 515; Baird v. Cochran, 4 S. 
 & R- 397 ; Dorans's Case, 2 Pars. 
 467 ; McFadden v. Reynolds, 20 W. 
 
WITNESSES. 449 
 
 only to collateral matters.'" But no privilege may be claimed 
 merely because an answer would tend to subject the witness to 
 civil liability.*' Facts discovered by others acting on information 
 secured from a defendant will not be excluded.** 
 
 Article 3, Section 32, of the Constitution of Pennsylvania, 
 providing that a witness may be compelled to testify in any in- 
 vestigation or judicial proceedings against a person charged with 
 bribery, but that such testimony shall not thereafter be used 
 against him, does not grant to the witness immunity from prose- 
 cution for the offense, but only prevents his testimony from being 
 used against him.*'' The application of this provision is not con- 
 fined to proceedings against members of the general assembly 
 under sections 29 and 31, of Article 3, but extends to any case 
 of bribery whether at common law or under a statute.'" In 
 such proceedings a witness may even be compelled to say how 
 he voted where it is in the interests of justice.*^ But if the 
 investigation of a bribery charge is conducted by a judge of the 
 quarter sessions sitting as a committing magistrate, it is im- 
 proper to induce a suspected person, by means of threats, to 
 make admissions tending to incriminate himself."^ Article 8, 
 § 10, of the Constitution of Pennsylvania, providing that no per- 
 son may refuse to testify in a contested election case but that 
 his answers may not be used against him, does not conflict with 
 section 9 of the Bill of Rights."' 
 
 Statutes which compel a witness to answer in any particular 
 proceedings, notwithstanding the answer would tend to incrimi- 
 nate him, are unconstitutional unless they embody the further 
 provision that such answers shall not be used against him in 
 any other proceedings."* It has been decided In several lower 
 
 N. C. 312. Compare Corn. v. Rob-- ''Com. v. Cameron, 229 Pa. 592; 
 
 erts, Brightly N. P. 109. But tKe Com. v. Richardson, 229 Pa. 609. 
 
 mere fact that an answer would ""Com. v. Bell, 145 Pa. 374. 
 
 subject a witness to moral degrada- "iCom. v. Ryan, i Wilcox 147. 
 
 tion is no excuse for not answer- '^^om. v. Smith, 185 Pa. 553- 
 
 ing: Kelly's Election, 200 Pa. 430. '^Com. v. Gibbons, 9 Super. 537; 
 
 **Dorans's Case, 2 Pars. 467. affirmed, Kelly's Election Case, 200 
 
 *''Baird v. Cochran, 4 S. & R. Pa. 430. 
 397; Nass V. Van Swearingen, 7 S. "Horstman v. Kaufman, 97 Pa. 
 & R. 192 ; Ralph v. Brown, 3 W. & 147 ; Samler v. Meyers, 7 Dist. 147. 
 S. 395 ; Sheerer v. Lautzerheizer, 6 Under § 22 of Act July 12, 1842, P. 
 V/atts 543; Brewster v. Sterret, 32 L. 339, relating to fraudulent debt- 
 Pa. 115. ors, evidence given in proceedings 
 
 88Com. V. Johnson, 213 Pa. 432. under the act cannot be subse- 
 29 
 
450 PENNSYLVANIA TRIAL EVIDJjNCU. 
 
 court cases that the Act of July 9, 1897, P. L. 237, providing for 
 an inquiry into the validity of a confessed judgment, is uncon- 
 stitutional because the amnesty provided therein is not broad 
 enough to protect the witness."" 
 
 The mere fact that a witness is subpoenaed is not an infringe- 
 ment of his right to refuse to incriminate himself. He must ap- 
 pear and set up his privilege when called upon to testify."' The 
 right to refuse to testify to such matters is a personal privilege 
 and cannot be claimed by another on his behalf,"' nor even by 
 his own counsel."* The objection must come from the witness 
 himself, and in absence thereof the right will be waived."" 
 
 The witness may not decide for himself the question whether 
 or not his answer to a question will tend to incriminate him. 
 The matter is within the discretion of the trial judge"" who, 
 if he deems it proper, may direct the witness to answer with the 
 understanding that it shall not be subsequently used against him. 
 If the witness then refuses to answer, he is subject to punishment 
 for contempt of court. ^ Where, from the circumstances of the 
 case and the nature of the question asked, there is reasonable 
 ground to apprehend danger to the witness, he will not be or- 
 dered to answer, and if the fact of danger once appears, the 
 witness will be allowed considerable latitude in judging for him- 
 self the effect of any particular question.^ 
 
 quently used : Uhler v. Maulfair, 23 '^Ralph v. Brown, 3 W. & S. 395 ; 
 
 Pa. 481. See Page v. Suspender Com. v. DeMasi, 234 Pa. 570. 
 
 Co., 191 Pa. SI I. 98Lusk V. Gallery, 29 P. L. J. 261. 
 
 "'Miller v. Brown, 22 C. C. 109; "'Com. v. Cameron, 229 Pa. 592; 
 
 Hanbinger v. Friedman, 6 Dist. Com. v. Richardson, 229 Pa. 609. 
 
 693; Krug V. Bahringer, 6 Dist. ""Act May 23, 1887, P. L. 158, 
 
 770; Samler v. Meyers, 7 Dist. 147. § 10. See § 490, note 80. 
 
 See Page v. Suspender Co., 191 Pa. >Com. v. Bell, 145 Pa. 374; 
 
 SI I- Kelly's Election, 200 Pa. 430; Com. 
 
 ""Com. V. Bolger, 229 Pa. 597; v. Klein, 40 Super. 352. 
 
 Com. V. Richardson, 229 Pa. 609. ^Cora. v. Bolger, 229 Pa. 597. The 
 
 A witness summoned to testify be- privilege cannot be claimed merely 
 
 tore a committee of city councils because the answer of the witness 
 
 cannot refuse to be sworn on the would arouse a suspicion of guilt, 
 
 ground that he is under indictment He must wait until the question is 
 
 in connection with matters under such that the answer would amount 
 
 investigation and his testimony may to an actual confession of guilt: 
 
 prejudice him, but he must wait McFadden v. Reynolds, 20 W. N. 
 
 until a specific question is asked C. 312. 
 tending to incriminate him : Eck- 
 stein's Petition, 148 Pa. S09. 
 
WITNESSES. 451 
 
 § 491. Refreshing Memory. A witness may use a book or 
 memorandum for the purpose of refreshing his memory, even 
 though the writing itself would not be competent evidence,' and 
 even though aside from such memorandum he has no recollection 
 of the items, if he knows they were correctly entered at the time 
 of the transaction.* He may also testify to his belief that cer- 
 tain facts existed, based on such memoranda in his own hand- 
 writing.' It is the recollection of the witness however, and not 
 the memoranda, which constitutes the testimony," and if the wit- 
 ness is obliged to rely entirely on the notes and has no recollec- 
 tion of the circumstances when his memory is thus refreshed, his 
 testimony is inadmissible.' The use of a writing for refreshing 
 memory does not make it competent evidence if otherwise inad- 
 missible.** 
 
 A witness cannot be permitted to refresh his memory by notes 
 or memoranda made by another unless he saw the other make 
 them and knew they were correct, or unless he read them over 
 immediately after they were written and found them to be cor- 
 rect and he can clearly identify the paper on which they were 
 written,^ or unless the memoranda was made by others under the 
 
 'Babb V. Clemson, 12 S. & R. Velott v. Lewis, 102 Pa. 326; Reed 
 
 328; Selover v. Rexford, 52 Pa. v. Orton, 105 Pa. 294; unless in ex- 
 
 308; Gilraore v. Wilson, 53 Pa. ceptional cases where he has in the 
 
 194; First National Bank v. Bank, meantime lost his memory by rea- 
 
 114 Pa. i; Clark v. Traction Co., son of old age: Rothrock v. 
 
 210 Pa. 636; Powell V. Ins. Co., 2 Gallaher, 91 Pa. 108; or where the 
 
 Super. 151 ; Com. v. Klein, 42 parties agree that the former testi- 
 
 Super. 66. raony be so used : Bovard v. Wal- 
 
 ^Heart v. Hummel, 3 Pa. 414; '^'=«' 4 S. & R. 499- 
 
 Samuel v. Railroad, 45 Super. 395'. ^Oodge v. Bache, 57 Pa. 421. 
 
 Notes of the testimony of a witness *Com. v. Klein, 42 Super. 66. 
 
 since deceased may be given by the 'Lycoming Ins» Co. v. Schref- 
 
 attorney who made them, though fler, 44 Pa. 269. 
 
 he does not recollect the testimony sRobeson v. Navigation Co., 3 
 
 independently of the notes : Chess Grant 186. 
 
 V. Chess, 17 S. & R. 409; Rhine v. "Withers v. Atkinson, i Watts 
 
 Robinson, 27 Pa. 30. See also § 236; Samuel v. Railroad, 45 Super. 
 
 311. But the memory of a witness 395. The mere identification of the 
 
 may not be refreshed by reading handwriting of the third person is 
 
 to him the notes of his testimony not enough : Steel v. Wisner, 141 
 
 given in a former proceeding re- Pa. 63. 
 lating to the same subject matter: 
 
452 
 
 PENNSYLVANIA TRFAL EVIDENCE. 
 
 supervision, management and direction of the witness and veri- 
 fied by liim.'" 
 
 "'Wells V. Ins. Co., 209 Pa. 488; 
 Gibson V. Campbell, 242 Pa. 551. 
 A copy of a memoranda may be 
 used to refresh the memory of a 
 witness if it was read over by him 
 while the transaction was fresh in 
 his mind : Edwards v. Ginibel Bros., 
 202 Pa. 30. A written notice bear- 
 ing the signature of the witness, 
 though not in his handwriting, if 
 
 sent out by a clerk under his ixi- 
 siructions, is competent: Athens 
 Car Co. V. Elsbree, 19 Super. 618. 
 But a clerk cannot use a letter press 
 copy of bills and memoranda fur- 
 nished by others to refresh his 
 memory concerning sales and de- 
 liveries : Owen v. Rothermel, 21 
 Super. 561. 
 
INDEX. 
 
 [All references are to sections.] 
 
 Absence as basis of presumption of death, 386. 
 Effect of presumption, 387. 
 Motive for absence — Existence of, 388. 
 Proof of absence, 389. 
 Absence from state as reason for admitting depositions, 172. 
 Absence of entry as evidence, 94, 305. 
 
 Absent witness — Competency of testimony in prior proceeding, 307. 
 Accident — See Fraud, Accident or Mistake. 
 Accomplices — 
 
 Corroboration of testimony, 10. 
 Credibility as witnesses, 466. 
 Declarations of, 271. 
 Who are, 466. 
 Acknowledged instruments — Execution — Proof of, 208. 
 Acts as evidence of intent, 21-23. 
 Acts and declarations as admissions, 61. 
 
 Acts, declarations and circumstances as proof of execution of writing, 203. 
 Admissions — 
 
 Competency without opportunity to explain, 471. 
 Death of party making, 61. 
 Direct proof, 54. 
 
 Execution of writing proved by, 203. 
 Form and manner of making — 
 Acts and declarations, 61. 
 Book entries and accounts, 62, 106. 
 Compromise, 63. 
 
 Endorsements on notes or bonds, 64. 
 General rule, 60. 
 Judicial proceedings 
 
 Affidavit of defense, 3, 66. 
 Agreements for purpose of evidence, 67. 
 Case stated, 68. 
 Confession of judgment, 69. 
 General rule, 65. 
 Pleadings, 65. 
 Testimony, 65. 
 Omissions, 70. 
 Opinions, 71. 
 Payment on account, 72. 
 Recitals in writings, 73. 
 Silence, 74. 
 General principles 
 
 453 
 
454 iNDijx. 
 
 [All references are to sections.] 
 
 Admissions — Continued. 
 
 Admissibility in general, 54. 
 Estoppel by admissions, 55. 
 Primary evidence, 184. 
 Proof, 56. 
 
 Time of making, 57. 
 Weight as evidence, 58. 
 Whole of admission, 59. 
 Who may make — 
 Agents, 76. 
 
 Proof of agency, 77. 
 Attorneys, 67, 78. 
 Devisees and legatees, 79. 
 Executors, 80. 
 General rule, 75. 
 Guardians, 80. 
 Husband and wife, 81. 
 Joint tenants, 82. 
 Officers of corporations — 
 Municipal, 83. 
 Private, 84. 
 Parties in interest, 85. 
 Partners, 86. 
 
 Proof of existence of partnership, 87. 
 Predecessors in title — 
 Choses in action, 89. 
 Generally, 88. 
 Personalty, 90. 
 Realty, 91. 
 Principal and surety, 92. 
 Tenants in common, 82. 
 Trustees, 80. 
 Admitted facts — Evidence to support, 2. 
 
 Adultery — Competency of husband or wife to testify to, 432. 
 Adverse interest necessary to disqualify surviving party, 443. 
 Adverse party — 
 
 Cross examination — Calling for purpose Of, 435-437. 
 Document in possession of — Notice to produce, 194-196, 253. 
 Adverse witness — Right to impeach, 477. 
 
 Advice of counsel as evidence of due care and diligence, 21, n. 25. 
 Affidavit — Ex parte — Competency of, 285. 
 Affidavit of defense — 
 
 Admissions contained in, 66. 
 Must be offered as evidence, 66, n. 69. 
 Affidavit for rule to produce documents at trial, 256. 
 Affirmation or oath of witness, 462. 
 
 Against interest — Testimony of surviving or adverse party, 448. 
 Age — Determination of, by physical appearance, 268. 
 
INDEX. 455 
 
 [All references are to sections.] 
 
 Aged, infirm or going witnesses — Deposition of. See Depositions. 
 Agency — ;Proof of, preliminary to receiving admission, "j-}. 
 Agents — 
 
 Admissions of, in course of employment, 76. 
 
 Authority, proof of, TJ. 
 
 Declarations of, as to payment, 299. 
 Agreement for purpose of evidence — Admissions contained in, 67. 
 Altered or mutilated instruments — 
 
 Absence of alterations in copy filed of record, 216. 
 
 Blank spaces, 198. 
 
 Book entries, 96. 
 
 Depositions, 174. 
 
 Material alterations — effect of, 199. 
 
 Negotiable paper, 197. 
 
 Public records, 200. 
 
 Wills, 220. 
 Ambiguity — 
 
 Latent — Parol evidence to explain, 355, 379. 
 
 Patent — Parol evidence to explain, 380. 
 Ancient books — 
 
 Competency of, 232. 
 
 Books of corporation — Proof of, 94. 
 Ancient documents^ 
 
 Execution, p-foof of, 209. 
 
 Recitals in, 288. 
 Ancient will — Proof of execution -unnecessary, 2j8. 
 Animals as exhibits, 263. 
 Annuity tables — Competency of, 224. 
 Answer to petition for rule to produce document, 257. 
 Arbitrators — Competency as witnesses, 460. 
 
 Privilege of, 404. 
 Artifice in obtaining confession, 122. 
 Assessment books — 
 
 Competency and proof of, 230. 
 
 Evidence of title, 52. 
 Assignment of interest — Effect on competency of witness, 446. 
 Attorneys — 
 
 Admissions by, 78. 
 
 Privileged communications — 
 
 Agent — ^Attorney acting as, 406. 
 Collateral matters, 407. 
 General rule, 403. 
 
 Law student acting as attorney, 408. 
 Publicly disclosed matters, 409. 
 Two or more clients, 410. 
 Authority of agent — Proof of, 77. 
 Bawdy house — Reputation of, 290. 
 
45^ INDEX. 
 
 [All references are to sections.] 
 
 Belief in impending death, 282. 
 
 Best evidence rule. See Documentary Evidence — Best Evidence Rule. 
 Bias as affecting credibility, 480. 
 
 Bias or prejudice as ground for rejecting testimony, 328. 
 Bible — Entries in, as evidence of pedigree, 279. 
 Bill of discovery — When proper remedy, 253. 
 Bills of lading as affected by parol evidence rule, 371. 
 Births, marriages and deaths — Records of — Competency, 245. 
 "Blank spaces in writing — Authority to fill up, 198. 
 Bodily injury to wife — Competency of husband as witness, 453. 
 Bonds and mortgages as affected by parol evidence rule, 372. 
 Book entries — 
 
 Admissions contained in, 62. 
 
 Alterations and erasures, 96. 
 
 Amount provable by, 95. 
 
 Best evidence rule, 97. 
 
 Character of books, 98. 
 
 Copies, 97. 
 
 Corporation books, 93. 
 
 Course of business, 99. 
 
 Course of business or professional duty, 94. 
 
 Form of entries, 100. 
 
 General rule, 95. 
 
 Memorandum — Accounts copied from, loi. 
 
 Parol evidence rule as applied to, 373. 
 
 Parties against whom entries may be offered, 102. 
 
 Professional persons — Books of, 95. 
 
 Proof — Court and jury — Province of, 103. 
 
 Refreshing memory — Corroborative evidence, 104. 
 
 Reputation for accuracy, 105, in. 
 
 Subject of entries, 106. 
 
 Time of making entries, 107. 
 
 Whole of accounts, 108. 
 Books and papers — Production on taking of depositions, 180. 
 Boundaries — 
 
 Declarations as to, by persons since deceased, 276. 
 
 Location provable, by reputation, 291. 
 Breach of promise of marriage — Character — Competency of evidence of, 
 
 112. 
 Burden of proof. See Proof — Burden of. 
 Business methods — Expert testimony relating to, 337. 
 Calculations by parties — Sending out with jury, 428. 
 Carbon copy — 
 
 Competency of, 313. 
 
 Primary evidence, 186. 
 Case stated — 
 
 Admissions contained in, 68. 
 
 Effect of admissions, 68. 
 
INDEX. 457 
 
 [All references are to sections.] 
 
 Certificate of board of health — Competency of, 270, n. i. 
 Certificate of discharge from army — Competency of, 270, n. I. 
 Certified copies — 
 
 Official records — 
 Domestic, 248. 
 Foreign, 249. 
 
 Recorded instruments, 250. 
 Primary evidence, 185. 
 Public documents, 229. 
 Character — 
 
 Civil cases — 
 
 Book accounts — action on, 98, in. 
 Breach of promise of marriage, 112. 
 Competent in rebuttal only, no. 
 False imprisonment, 114. 
 Libel and slander, 113. 
 Malicious prosecution, 114. 
 Seduction, 115. 
 
 Wages of minor child — Action by mother, 116. 
 Criminal cases — 
 
 ^General rule, 117. 
 Mitigation of crime, 118. 
 Weight and effect as evidence, 119. 
 Definition and general principles, 109. 
 How proved, 109. 
 Rebutting attacks upon, 454. 
 Witnesses — Qualifications, 120, 454, 472. 
 Charitable gift — Proof of execution of will containing, 219. 
 Check stubs as book of original entries, 98. 
 
 Competency to refresh memory, 104. 
 Choses in action — Admission by prior owner of, 89. 
 Church registry — Competency of, 270, n. i. 
 Circumstances as evidence of intent, 21-23. 
 Circumstantial evidence, 7. 
 
 Fraud — Proof of, 16. 
 Collateral agreements as affected by parol evidence rule, 348. 
 Collateral benefit as inducement to confession, 127. 
 Collateral matters^ 
 
 Communications between attorney and client, 407. 
 Cross-examination as to — Effect, 470. 
 'Proof of, 8, 19. 
 Collateral transactions not provable by book entries, 106. 
 Collateral writings — 
 
 Best evidence rule, 182. 
 Execution, proof of, 210. 
 Parol evidence rule, 349. 
 Comment on testimony by trial judge, 467. , 
 
4S8 INDEX. 
 
 [All references are to sections.] 
 
 Commission- 
 Execution of — 
 
 Counsel — Presence of, 148. 
 Generally, 147. 
 
 Witnesses — Examination of, 149. 
 Issuance of — 
 Form — 
 
 Name and address of commissioner, 141. 
 Names of witnesses, 142. . 
 Residence of commissioner, 143. 
 Generally, 140. 
 Interrogatories — 
 Cross, 14s. 
 Direct, 144. 
 Notice — Service of, 146. 
 When may be taken, 139. 
 Return — 
 
 Filing, 151. 
 
 Form and manner of making, 150. 
 Commission from other states, 152. 
 
 Common knowledge — Opinion of experts as to matters of, 338. 
 'Comparison of copy — Manner of making, 190. 
 Comparison of handwriting — Standard for purpose of, 340. 
 Competency of witnesses — See Witnesses — Competency. 
 Compromise — Offer of, as admission, S9, 63- 
 Concealment of evidence — Presumption arising from, 390. 
 Condition at different places, 31. 
 Condition at different times, 32. 
 Condition producing similar results, 33. 
 Confessions— 
 
 Admissibility in general, 121. 
 
 Artifice in obtaining, 122. 
 
 Competency — Determination of question, 124, 129, 
 
 Competent only against party making it, 121. 
 
 Corpus delicti — Proof of, in murder case, 123. 
 
 Court and jury — Province of, 124, 
 
 Distinguished from admissions, 121. 
 
 Evidence acquired through incompetent confession, 125. 
 
 Form and manner of making, 126. 
 
 Inducement, 127. 
 
 Joint defendants — Confession by one, 128. 
 
 Must relate to particular crime charged, 121. 
 
 Must be voluntary, 121. 
 
 Offer in evidence — preliminary proof required, 124. 
 
 Subsequent confession after one improperly obtained, 129. 
 
 Testimony of defendant, 130. 
 
 Weight as evidence, 131. 
 
 Whole of confession, 132. 
 
iNDBx. 459 
 
 [All references are to sections.] 
 
 Confession of judgment — 
 
 Admissions contained in, 69. 
 
 Effect as admission, 69. 
 
 Parol evidence rule as applied to, 375. 
 Confession of other crimes as evidence to impeach credibility, 30, 469. 
 Confidential communications. See Privheged Communications. 
 Conflicting presumptions, 392. 
 Consideration — 
 
 Parol evidence to show failure of, 351. 
 
 Parol evidence to show, where none is mentioned, 352. 
 - Parol evidence to vary, 350. 
 Consonant declarations, 11. 
 Conspiracy — 
 
 Continuance of conspiracy, 272. 
 
 Preliminary proof, 273. 
 
 Proof of, as evidence of commission of act, 36. 
 Conspirators — Competency of, 271. 
 
 Construction of writing — Parol evidence to affect. See Paroi, Evidence. 
 Contemporaneous parol agreement^-Parol evidence of, 361. 
 Continuance of existing facts — Presumption of, 385, 392, 396. 
 Contradiction — 
 
 Evidence for purpose of, 9, 469-478. 
 
 Irrelevant or collateral matters, 9, 482. 
 Contradiction of writing by parol — 
 
 Contemporaneous parol agreement — Use of writing in violation of, 
 361. 
 
 Fraud, accident or mistake, 360. 
 
 General principles, 359. 
 Contradiction of witness by former testimony, 308. 
 Conviction of crime as affecting competency, 434. 
 Copies — 
 
 Proof of, by comparison, 190. 
 
 Proof by, where document is not produced on notice, 253. 
 
 Secondary evidence, 189, 190. 
 Corporate seal — Proof of, 217. 
 Corporation accounts — Proof of, 231. 
 Corporation books — Entries in, 93. 
 
 Corpus delicti — Proof of, necessary to admit confession, 123. 
 Corroboration — 
 
 Book entries for purpose of, 104. 
 
 Consonant declarations for purpose of, 11. 
 
 Evidence for purpose of, 10. 
 
 Testimony of accomplice, 10, 466. 
 
 Testimony of woman seduced, 10. 
 Counsel. See Attorneys. 
 
 Advise of, as evidence of care and diligence, 21, n. 25. 
 
 Presence at execution of commission, 148. 
 
460 INDEX. 
 
 [All references are to sections.] 
 
 Course of business or professional duty — 
 
 Accounts kept in, 94, 99. 
 
 Declarations made in, 277. 
 
 Evidence that act was done, 34. 
 
 Memoranda made in, 94. 
 Course of conduct as evidence of act, 35. 
 Course of dealing as evidence of construction of contract, 34. 
 Court and jury — Province of — 
 
 Competency of witness — Determination of, 450. 
 
 Credibility of witness — Determination of, 467. 
 
 Fraud, 15. 
 
 General rule, 416. 
 
 When confession is offered, 124. 
 Court records — Execution— Proof of, 214, 216. 
 Credibility of witnesses. See Witnesses — Credibility. 
 Crime — Commission of, as affecting competency, 434. 
 Criminal cases — 
 
 Character, evidence of, 117-119. 
 
 Depositions in, 139. 
 
 Rules of evidence applicable to, 12. 
 Cross-examination. See Witnesses — Examination. 
 Custom — 
 
 Contracts — Construction of, 34, 135. 
 
 Definition, 133. 
 
 Evidence of performance of act, 34. 
 
 Foreign custom — Proof of, 243. 
 
 Fraud not sanctioned by, 136. 
 
 Legal principles — Violation of, 136. 
 
 Morals — Violation of, 137. 
 
 Pleadings and proof, 138. 
 
 Proof, 138, 243. 
 
 Requirements of valid custom, 134. 
 Damages — Evidence of character in mitigation of, 112, 113, 114. 
 Date of writing — Variation by parol, 362. 
 Day book as book of original entries, 98. 
 Death arising from absence — Presumption of — 
 
 Effect of, 387. 
 
 General rule, 386. 
 
 Motive for absence — Existence of, 388. 
 
 Proof of absence, 389. 
 Deaths, births and marriages — Records of — Competency, 245. 
 Death or lunacy of party — 
 
 Effect of, on competency of other to testify, 438. 
 
 Surviving or adverse party — 
 Competency in general, 439. 
 Competency resulting from calling third person in whose presence 
 
 transaction occurred, 440. 
 Devolution — Property claimed by, 441. 
 
INDEX. 461 
 
 [All references are to sections.] 
 
 Death or lunacy of party — Continued. 
 
 Disclaimer in ejectment — Effect of, 442. 
 Interest must be adverse, 443. 
 Partners or joint parties surviving deceased, 444. 
 Party of record — Rights of deceased passing to, 445. 
 Release or extinguishment of interest, 446. 
 Subsequent occurrences — Competency to testify to, 447. 
 Testimony against interest, 448. 
 Deceased persons — Declarations of. See Hbarsay — Deceased Persons. 
 Declarations — 
 
 Agent as proof of authority, yy. 
 Deceased persons — 
 
 Against interest, 275. 
 Boundaries, declarations as to, 276. 
 Course of business or professional duty, 277. 
 Execution and contents of will, 278. 
 General principles, 274. 
 Pedigree, 279. 
 
 Public and general rights, 280. 
 Hearsay rule, 27b, n. i. 
 Intention to do act — Evidence of, 21-23. 
 Mental condition, 24. 
 Partners as proof of partnership, 87. 
 Testator- 
 Execution and contents of will, 278. 
 Loss or destruction of will, 221. 
 
 Undue influence in procuring execution of will, 26, 278. 
 Third persons where question is whether will was lost or destroyed, 
 221. 
 Decree pro confesso — Effect as admission of partnership, 69. 
 Deeds — 
 
 Ancient deeds — Recitals in, 288. 
 Competency as evidence, 201. 
 Execution — Proof of, 211. 
 Fraud in execution of, 22". 
 Parol evidence rule, 374. 
 Defendant in criminal case — Cross-examination of, 130, 484. 
 Defense — Introduction of, on cross-examination, 485. 
 Dehvery of lost document — Proof of, 192. 
 Delivery of mail — Presumption, 395. 
 Demurrer as admission, 65. 
 Depositions — 
 
 Construction of, 178. 
 Ex-parte — Competency of, 285. 
 Execution of — 
 
 Time and place of taking, 161. 
 Transcribing testimony, 162. 
 Witnesses — 
 
462 INDfcX. 
 
 [All references are to sections.] 
 
 Depositions — Continued. 
 
 Attendance and oath, 163. 
 Examination, 164. 
 Generally, 139. 
 Issuance of — 
 
 Application for rule, 153. 
 Criminal cases, 139. 
 Form — 
 
 Name of commissioner, 154. 
 Names of witnesses, 155. 
 Notice — 
 
 Generally, 156. 
 Place of taking, 157. 
 Time of taking, 158. 
 Service of, 159. 
 Second deposition, 160. 
 Modes of taking, 139. 
 Nonresident witness, 167. 
 Objections — 
 
 Manner of making, 169. 
 Time of making, 170. 
 Waiver of, 171. 
 Offer in evidence — 
 Alterations, 174. 
 
 Attendance of witness — Proof of inability to attend, 172. 
 Competency of witness as affected by subsequent events, 173. 
 Erasures, 174. 
 Exhibits, 175. 
 Lost depositions, 176. 
 
 Other proceedings — Depositions taken in, 177. 
 Reading — Whole of depositions, 178. 
 Parties — Depositions of, 179. 
 Proceedings in which admissible, 177. 
 Production of books and papers, 180. 
 Return of — 
 Filing, 166. 
 
 Form and manner of making, 165. 
 Secondary evidence, 172. 
 Sending out with jury, 429. 
 When may be taken, 139. 
 
 Nonresident witnesses, 167. 
 Depositions from other states, 152. 
 
 Desertion — Competency of declarations as to cause of, 295. 
 Desertion and maintenance — Competency of parties to testify, 455. 
 Devisees and legatees — Admissions by, 79. 
 
 Devolution — Competency of witness where property claimed by, 441. 
 Diagrams — Use of, by witness, 264. 
 Direct examination — Leading questions, 481. 
 
INDEX. 463 
 
 [All references are to sections.] 
 
 Direct proof — Admissions in nature of, 54. 
 
 Disclaimer in ejectment — Effect on competency to testify, 442. 
 
 Distance — Opinion as to, 319. 
 
 Divorce — Competency of parties to testify, 456. 
 
 Docket entries — Competency of, 233. 
 
 Justice's court, 236. 
 Document in possession of adverse party — Notice to produce, 194. 
 Effect of production, 196. 
 Time of giving and sufficiency of, 195. 
 Documents — Production before examiner or notary, 261. 
 Documentary evidence — 
 Best evidence rule — 
 Book entries, 97. 
 Exceptions to rule, 182. 
 General principles, 181. 
 Primary evidence, 183. 
 Admissions, 184. 
 
 Certified copies under acts of assembly, 185. 
 Duplicate papers, 186. 
 Secondary evidence, 187. 
 
 Grades of secondary evidence, 188. 
 Kinds of secondary evidence, 189. 
 Proof- 
 Copies, 190. 
 Oral testimony, 191. 
 Preliminary — 
 
 Lost documents — 
 
 Existence, execution and delivery of originals, 
 
 192. 
 Loss and search — Proof of, 193. 
 Originals in possession of adverse party — 
 N'otice to produce, 194. 
 
 Effect of production, 196. 
 Time of giving and sufficiency of notice, 195. 
 Private documents — 
 
 Altered or mutilated instruments, 197. 
 Blank spaces, 198. 
 
 Material alterations — Effect of, 199. 
 Public records, 200. 
 Deeds, 201. 
 Execution, Proof of — 
 
 General principles relating to proof, 202. 
 
 Acts, declarations and circumstances, 203. 
 Handwriting of witnesses, 204. 
 Handwriting of parties, 205. 
 Subscribing witnesses, 206. 
 Sufficiency of proof, 207. 
 Acknowledgment of instrument for recording, 208. 
 
464 INDEX. 
 
 [All references are to sections.] 
 
 Documentary Evidence — Continued. 
 Ancient documents, 209. 
 Collateral writings, 210. 
 Deeds, 211. 
 Letters, 212. 
 Notes and bills, 213. 
 Papers filed in court, 214. 
 Receipts, 215. 
 
 Rule of court dispensing with proof, 216. 
 Sealed instruments, 217. 
 Wills, 218. 
 
 Charitable gifts, 219. 
 Erasures and interlineations, 220. 
 Lost wills, 221. 
 Mark as signature, 222. 
 Maps and plans, 223. 
 Mortality and annuity tables, 224. 
 Photographs, 225. 
 Receipts, 226. 
 Time tables, 227. 
 Unstamped writings, 228. 
 Production of documents — 
 Generally, 253. 
 Rule to produce — 
 
 Production prior to trial in aid of pleadings, 254. 
 Production at trial under Act of 1798, 255. 
 Affidavit, 256. 
 Answer, 257. 
 
 Nonproduction — Effect of, 258. 
 Notice of rule, 259. 
 Practice, 260. 
 
 Time and place of production, 261. 
 Subpoena duces tecum, 262. 
 Public documents — 
 
 Generally — Modes of proof, 229. 
 
 Assessment books, 230. 
 
 Corporation accounts, 231. 
 
 Historical and geographical books relating to public matters, 232. 
 
 Judicial records — 
 
 Domestic — Docket entries, 233. 
 Foreign states, 234. 
 Foreign countries, 235. 
 Justices' courts, 236. 
 United States courts, 237. 
 Whole of record, 238. 
 Law — 
 
 Domestic — 239. 
 Foreign, 240. 
 
INDEX. 465 
 
 [All references are to sections.] 
 
 Documentary Evidence — Continued. 
 Federal question, 241. 
 Statutory or written law, 242. 
 Unwritten or common law, 243. 
 Maps, plans and surveys, 244. 
 Marriages, births and deaths — Records of, 245. 
 Municipal ordinances, 246. 
 Notarial acts, 247. 
 Official records and papers — 
 Domestic, 248. 
 Foreign, 249. 
 Recorded instruments, 250. 
 Weather bureau reports, 251. 
 Whole of record, 252. 
 Domicil — Presumption of continuance of, '385. 
 Due care of deceased — Presumption of, 398. 
 Due course of mail — Presumption of delivery, 395. 
 Duplicate papers as primary evidence, 186. 
 Dying declarations — ■ 
 
 Belief in impending death, 282. 
 General rules, 281. 
 
 Ground of admission— Necessity, 281. 
 Proceedings in which declarations are admissible, 281. 
 Proof, 283. 
 
 Whole of declaration, 284. 
 Employee — Credibility of, 479. 
 
 Endorsements on note as admission of payment, 64. 
 Entries in books. See Book Entries. 
 
 Entries made in course of business or professional duty, 94. 
 Erasures and interlineations. See Ai,teeed or Mutilated Instruments. 
 Escape as evidence of guilt, 49. 
 Estoppel — 
 
 Admissions, 55. 
 Expression of opinion, 55. 
 Opened judgment, 69. 
 Pleadings in other case, 65, n. 6. 
 Recitals in writings, 73. 
 Examination of witnesses. See Witnesses^Examination. 
 Examined copies of public documents, 229. 
 Execution — Proof of — 
 
 Acknowledged instruments, 208. 
 
 Admissions of parties, 203, 206, n. 92. 
 
 Ancient documents, 209. 
 
 Collateral writings, 210. 
 
 Deeds, 211. 
 
 Document produced on notice, 202. 
 
 General modes of proof — 
 
 Acts, declarations and circumstances, 203. 
 
 30 
 
466 INDEX. 
 
 [All references are to sections.] 
 
 Execution — Proof oi-^Continued. 
 
 Handwriting of witnesses, 204. 
 
 Handwriting of parties, 205. 
 
 Subscribing witnesses, 206. 
 
 Sufficiency of proof, 207. 
 Letters, 212. 
 Lost documents, 192. 
 Necessity for, 202. 
 Notes and bills, 213. 
 Papers filed in court, 214. 
 Public documents, 229. 
 Receipts, 215. 
 
 Rule of court dispensing with proof, 216. 
 Sealed instruments, 217. 
 Waiver of, 202. 
 
 Effect of waiver, 217. 
 Wills- 
 Charitable gifts, 2ig. 
 
 Erasures and interlineations, 220. 
 
 Lost wills, 221. 
 
 Mark as signature, 222. 
 Executors and administrators — Admissions by, 80. 
 Exemplifications of public documents, 229. 
 Exhibits — 
 
 Accompanying depositions, 175. 
 Animals, 263. 
 
 Diagrams-^Ref erring to objects in court room, 264. 
 Experiments, 265. 
 Models, 266. 
 Patented articles, 267. 
 Personal examination, 268. 
 View of premises by jury, 269. 
 Ex parte affidavits and depositions, 285. 
 Ex parte commission — Notice of taking, 146. 
 
 Expectancy of life — Opinion of witness based on personal knowledge, 326. 
 Experiments for purpose of illustration, 265. 
 Experts — 
 
 Basis of opinion — 
 
 Facts in evidence, 333. 
 
 Hypothetical question, 334. 
 Business methods — Opinion as to, 337. 
 Common knowledge — Matters of, 338. 
 Cross-examination to determine qualifications, 335. 
 Definition of, 332. 
 Foreign laws — Proof of, 243. 
 General principles, 332. 
 , Handwriting — Proof of, 339-340. 
 Mechanical engineering or scientific question, 341. 
 
INDBX. 467 
 
 [All references are to sections.] 
 
 Experts — Continued. 
 
 Mental conditions, 342. 
 
 Negligence, 343. 
 
 Physical condition, 344. 
 
 Professional skill, 345. 
 
 Qualifications of, 335. 
 
 Trade custom — Opinion as to, 337. 
 
 Value — Opinion as to, 346., 
 
 Weight as testimony, 336. 
 
 What constitutes, 332. 
 Extinguishment of interest of witness — Effect on competency, 446. 
 Fabrication of recent date — Allegation of, admitting consonant declara- 
 tions, II. 
 False imprisonment — Character — Competency of evidence of, 114. 
 Falsus in uno, falsus in omnibus, 468. 
 False testimony — 
 
 Effect on credibility of witness, 468. 
 
 Evidence of guilt, 126. 
 Federal question arising under foreign law — Effect of, 241. 
 Filing commission, 151. 
 Filing depositions, 166. 
 
 Financial condition — Competency of evidence of, 2, n. 20, 13, 25. 
 Flight as evidence of guilt, 49. 
 
 Foreign judicial records — Competency and proof of, 234-235. 
 Foreign law — Proof of, 240. 
 
 Federal question, 241. 
 
 Statutory or written law, 242. 
 
 Unwritten or common law, 243. 
 Foreign notarial acts — Competency and effect of, 247. 
 Foreign records — Proof of, 249. 
 
 Forgery — Competency of surviving party to testify to, 447. 
 Form and manner of making admissions. See Admissions — Form and 
 
 Manner op Making. 
 Form of book entries, 100. 
 Form of commission, 141-143. 
 Form of depositions, 154-160. 
 Form of making confession, 126. 
 Form of objection to evidence, 419. 
 Fraud — 
 
 Competency of evidence to prove, 14. 
 
 Determination of question — Court and jury, 15. 
 
 Presumption of, 16. 
 
 Proof of— 
 
 Acts and declarations of beneficiaries, 79. 
 Declarations of vendor after conveyance, 90-91. 
 Necessity of, 16. 
 Offer of, 17. 
 Other acts, 36. 
 
468 INDEX. 
 
 [All references are to sections.] 
 
 Fraud — Continued. 
 
 Reliance on misrepresentation, 18. 
 Sufficiency of, 19. 
 Fraud, accident or mistake in writing — Proof of, by parol, 359-361. 
 Fraud and undue influence in making will — Parol evidence to show, 381. 
 Geographical books — Competency of, 232. 
 General objection — Effect of, 419. 
 Going witnesses — Who are, 153. 
 Good faith — 
 
 Assignment of interest, 446. 
 Release of interest — Question for court, 450. 
 Grades of secondary evidence, 188. 
 Grant — Presumption of, 391. 
 Grantor — Admissions of, against grantee, 91. 
 Guardians — Admissions of, 80. 
 Handwriting — 
 
 Comparison by experts, 340. 
 Execution of writing — Proof of, 204, 205, 218. 
 Opinion of experts, 339. 
 Opinion of nonexperts, 320. 
 Qualification of witness, 320, 321. 
 Harmless error, 417. 
 
 Irrelevant evidence, admission of, i. 
 Preliminary examination of witness, 449. 
 Hearsay — 
 
 Certificate of board of health — Statements in, 270, n. i. 
 Certificate of discharge from army — Statements in, 270, n. i. 
 Charge of court in former proceeding, 270, n. I. 
 Conspirators — Declarations of, 271. 
 Continuance of conspiracy, 272. 
 Preliminary proof, 273. 
 Deceased persons — Declarations of, 274. 
 Against interest, 275. 
 Boundaries, 276. 
 
 Course of business or professional duty, 277. 
 Execution and contents of will, 278. 
 Pedigree, 279. 
 
 Public and general rights, 280. 
 Declarations of third persons, 270, n. i. 
 Dying declarations, 281. 
 
 Belief as to impending death, 282. 
 Proof, 283. 
 
 Whole of declaration, 284. 
 Ex parte depositions and affidavits, 285. 
 General principles, 270. 
 Memoranda in church records, 270, n. i. 
 Paternity of child — Declarations as to, 286. 
 Personal identity, 20. 
 
INDEX. 469 
 
 [All references are to sections.] 
 
 Hearsay — Continued. 
 
 Physical condition and feeling — Declarations as to, 287. 
 Pleadings — Statements contained in, 270, n. i. 
 Receipts signed by third persons, 270, n. i. 
 Recitals in ancient deeds, maps and surveys, 288. 
 Reputation, 289. 
 
 Bawdy houses, 290. 
 Boundaries, 291. 
 Insanity, 292. 
 Legitimacy, 293. • 
 
 Marriage, 293. 
 Pedigree, 293. 
 Res gestae — 
 
 Desertion — Cause of, 295. 
 General principles, 294. 
 Homicide, 296. 
 Intent, 297. 
 Motive, 297. 
 Negligence, 298. 
 
 Payment — Declarations accompanying, 299. 
 Possession of realty — Declarations and acts accompanying, 300. 
 Purpose, 297. 
 Rape, 300a. 
 
 Sale and transfer of property — Declarations accompanying, 301. 
 Self-serving declarations — 
 General principles, 302. 
 Letters — Statements contained in, 303, 
 Marriage^Proof of acceptance of offer of, 304. 
 Memoranda and accounts, 305. 
 Testimony given in former proceedings, 306. 
 Absence or disability of witnesses, 307. 
 Contradiction of witness, 308. 
 General rule, 306. 
 Parties — Identity of, 309. 
 Proceedings — Nature of, 310. 
 Proof- 
 Memorandum of testimony, 311. 
 Recollection of witness, 312. 
 Stenographer's notes, 313. 
 Subject matter — Identity of, 314. 
 Whole of testimony, 315. 
 Writings between third persons, 270, n. i. 
 Historical books — Competency of, 232. 
 History of transaction — Evidence competent to show, 2. 
 Homicide — Declarations as part of res gestae, 296. 
 Husband and wife — 
 
 Admissions of, as evidence against each other, 81. 
 Admissions as to title to property, 90-91. 
 
470 INDEX. 
 
 [All references are to sections.] 
 
 Husband and wife — Continued. 
 
 Book entries admissible against, 102. 
 
 Calling for purpose of cross-examination, 43s, 436. 
 
 Competency to testify — 
 
 Adultery — Prosecution for, 452. 
 Agency — Existence of, 451. 
 Bodily injury — Actions for, 453. 
 Cross-examination — Calling by opposite side, 45 1. 
 Character of wife — Attacks upon, 454. 
 Death of other party to record — Effect of, 439, 451. 
 Desertion and maintenance — Proceedings for, 455. 
 Divorce proceedings, 456. 
 Favor of each other, 451. 
 General rules, 451. 
 
 Information — Competency to make, 452. 
 Legitimacy of children, 451. 
 Marriage, 4SI, 4S2, 4S6. 
 Non-access, 451. 
 Marriage of, presumed from cohabitation and reputation, 396. 
 Privileged communications of, 411. 
 Separate witnesses within two witness rule, 368, n. 8. 
 Hypothetical question — 
 
 Basis of opinion of expert, 334. 
 Basis of opinion of non-experts, 318. 
 Identity — Proof of, 20. 
 Identity of name — Effect as evidence, 20. 
 Identity of name as evidence of identity of person, 20. 
 Identity of parties to admit prior testimony, 309. 
 Illustrations — Use of, by witness, 264. 
 Impeachment of witness — 
 
 Contradictory declarations, acts and circumstances, 469. 
 Evidence given on cross-examination, 470. 
 
 Practice on offering impeaching evidence — Opportunity to ex- 
 plain, 471. 
 Effect of, 474. 
 Own witness — 
 
 Adverse or unwilling witness — Surprise, 477. 
 General rule, 476. 
 Necessary witness, 478. 
 Reputation for truth and veracity — 
 Competency in general, 472. 
 Competency of impeaching witness, 473. 
 Effect of impeachment, 474. 
 Practice, 475. 
 Improbable matters — Proof of, 2. 
 
 Incortipetent confession — Facts discovered through, 125. 
 Incompetency of witness as reason for admitting depositions, 173. 
 Incomplete writings — Parol evidence to supply, 363. 
 
INDEX. 471 
 
 [All references are to sections.] 
 
 Inconvenience — Arguments from, i. 
 Iticorporation by reference, 223. 
 Inducement — 
 
 Confession obtained by, 124, 127. 
 Improperly obtained confession, 129. 
 Parol agreement contrary to terms of writing, 361. 
 Infants — 
 
 Competency as witnesses, 458. 
 Weight of testimony of, 458. 
 Inferences — 
 
 Rebuttal of, 28. 
 Rebuttal by parol, 364. 
 Information — Competency of husband or wife to make, 452. 
 Innocence — Presumption of, 392. 
 Insanity — 
 
 Affecting competency of witness, 461. 
 Continuance of presumption of, 385. 
 Proof by reputation, 292. 
 ilnspection of writing — Order for, 253, 254. 
 Insurance as affecting measure of damages, 13. 
 Intent — 
 
 Declarations of, to corroborate evidence that it was done, 21-23. 
 Other acts as evidence of, 27. 
 Proof of, 21-23. 
 Proof of, by parol, 380, 382. 
 Undisclosed intent, 21. 
 
 Unexpressed, as evidence of inducement to contract, 21, 361. 
 Interest in will — Disqualification to prove execution, 219. 
 Interest of subscribing witness, 304. 
 Interested witness — 
 
 Competency as ■affected by death of party, 438-448. 
 Effect on credibility, 479. 
 Effect of calling for cross-examination, 436. 
 Interpretation of language of writing — Parol evidence to show, 354. 
 Interrogatories in commission — 
 Cross, 145. 
 Direct, 144. 
 
 Failure to answer, 149. 
 Intoxication — Effect on competency of witness, 459. 
 Irrelevant matter competent when accompanying admissions, 59. 
 Issue and pleadings — Proof must be confined to, 3. 
 Issue — Possibility of — Presumption of, 393. 
 Joint commission, 141. 
 Execution of, 147. 
 Joint debtors — Admissions of, against each other, 85. 
 Joint defendants — Confession by one, 128. 
 
472 INDEX. 
 
 [All references are to sections.] 
 
 Joint parties — 
 
 Proceedings by or against — Competency of survivors, 444. 
 Separate witnesses within two witness rule, 368. 
 Joint tenants — Admissions against each other, 82. 
 Journal as book of original entries, 98. 
 Judgment — " 
 
 Competency as evidence, 233. 
 
 Confession of — Effect as admission, 69. 
 
 Confession of, as effected by parol evidence rule, 375. 
 Judicial notice — 
 
 Common knowledge — Matters of, 316. 
 
 Domestic laws, 239. 
 
 Geographical facts, 316. 
 
 Historical facts, 316. 
 
 Laws, 316. 
 
 Municipalities — Existence and boundaries, 316. 
 
 Official acts of departments of government, 316. 
 
 Photography, 316. 
 
 Public officers — Character of, 316. 
 
 Scientific facts, 316. 
 
 Speed of trains, 316. 
 Judicial records — Competency and proof. 
 
 Domestic — Docket entries, 233. 
 
 Foreign states, 234. 
 
 Foreign countries, 235. 
 
 Justice's courts, 236. 
 
 United States courts, 237. 
 
 Whole of record, 238. 
 Judicial proceedings — 
 
 Admissions made in, 65. 
 
 Affidavit of defense, 66. 
 
 Agreements for purpose of evidence, 67. 
 
 Case stated, 68. 
 
 Confession of judgment, 69. 
 Jurors — 
 
 Competency as witnesses, 460. 
 
 Privileged communications, 412. 
 Justice's courts — Competency of records of, 236. 
 Kinds of secondary evidence, 189. 
 Knowledge of particular act proved by other acts, 38. 
 Latent ambiguity — 
 
 Wills, 379. 
 
 Writings in general, 355. 
 Law — Proof of — 
 
 Domestic, 239. 
 
 Foreign, 240-243. 
 Law student acting as attorney — Privileged communications, 408. 
 
INDEX. 473 
 
 [All references are to sections.] 
 
 Leading questions — 
 
 Cross-examination — 
 
 Party called for purpose of, 437. 
 Witnesses, 482. 
 
 Direct examination, 481. 
 Ledger as book of original entries, 98. 
 Legal principles — Custom in violation of, 136. 
 Legitimacy — 
 
 Presumption of, 394. 
 
 Proof by reputation, 293. 
 Letters — 
 
 Presumption of delivery of, 395. 
 
 Self-serving statements contained in, 303. 
 
 Signature — Proof of, 212. 
 Letters rogatory — 
 
 Issuance and execution — Practice, 168. 
 
 When may be issued, 139. 
 Libel — Character — Competency of evidence of, 113, 117. 
 Loss and search for writing — Proof of, 193. 
 Loss of memory as reason for admitting depositions, 172. 
 Lost depositions, 176. 
 Lost documents — 
 
 Proof of execution, if ancient, 209. 
 
 Proof of existence, execution, and delivery of originals, 192, 221. 
 
 Proof of. loss and search, 193. 
 Lumping charges in book account, 100. 
 Lunatics — Competency as witnesses, 461. 
 Malice — 
 
 Offer of compromise as evidence of, 63. 
 
 Other acts as evidence of, 39. 
 
 Resistance to arrest as evidence of, 49. 
 
 Threats as evidence of, 22. 
 Malicious prosecution — Character — Competency of evidence of, 114. 
 Manufacture or suppression of evidence — Presumption arising from, 
 
 51, 390. 
 Maps and plans — 
 
 Ancient — Recitals in, 288. 
 
 Competency and proof of, 223, 244. 
 Mark — Signature by, 205, 222. 
 Marriage — 
 
 Admission of, 61. 
 
 Weight as evidence, 58. 
 
 Denial of — Weight as evidence, 58. 
 
 Presumption of, 396. 
 
 Proof of acceptance of offer by self-serving declarations, 304. 
 
 Proof of, by parties, 45 1. 4S2, 456. 
 
 Proof of, by reputation, 293. 
 Marriage, births and deaths — Records of — Competency, 245. 
 
474 iND^x. 
 
 [All references are to sections.] 
 
 .Material alteration of writing — 
 
 Effect of, 199. 
 
 What constitutes, 199. 
 Materiality of evidence, 2. 
 
 Mechanical questions — Opinions of experts, 341. 
 Memoranda — Accounts copied from, loi. 
 Memoranda and accounts as self-serving declarations, 305. 
 Memorandum of testimony — Proof by, 311. 
 . Mental condition, 24. 
 
 Competency of attorney to testify to mental condition of client, 407. 
 
 Declarations as evidence of, 22. 
 
 Declarations subsequent to grant, 91. 
 
 Opinion of experts as to, 342. 
 
 Opinion of non-experts as to, 322. 
 Misrepresentation — Proof of reliance on, 18. 
 Mistake — Proof of, by parol, 359-361. 
 Mistake in will — Parol evidence to show, 383. 
 Minutes of meetings as affected by parol evidence rule, 377. 
 Mitigation of crime — Evidence of disposition and reputation, 118. 
 Mitigation of damages — Evidence of character, 112-114. 
 Models for purpose of illustration, 266. 
 Morals — Custom in violation of, 137. 
 Mortality tables — 
 
 Competency of, 224. 
 
 Proof of, 224. 
 Mortgages as affected by parol evidence rule, 372. 
 Motive for absence as affecting presumption of death, 388. 
 Motive for doing act — 
 
 Financial gain, 25. 
 
 Jealousy, 25. 
 
 Prejudice, 25. 
 
 Proof of, by evidence of other acts, 40. 
 
 Quarrel, existence of, 25. 
 Municipal ordinance — 
 
 Parol evidence rule as applied to, 377. 
 
 Proof of, 246. 
 Mutual construction of writing, 34. 
 
 Parol evidence tO' show, 356. 
 Names of commissioners, 141, 154. 
 Names of witnesses, 142, 155. 
 Necessary witness — Right to impeach, 478. 
 Negative testimony, 416, n. I. 
 Negligence — Admissions of, by agent or servant, 76. 
 
 Declarations accompanying res gestae of transaction, 298. 
 
 Opinions of witnesses as to, 324, 343, 345. 
 
 Other conditions producing similar results, 33. 
 
 Precautions after accident as evidence of, 50. 
 
 Presumption of — 
 
INDEX. 475 
 
 [All references are to sections.] 
 
 Negligence — Continued. 
 
 Due care by deceased, 398. 
 Habit of intoxication in conductor, 38. 
 Happening of accident, 400. 
 Proof of— 
 
 Other negligent acts, 41-42. 
 Reputation, 41, 117. 
 Repairs after accident as evidence of, 50. 
 Reputation as evidence of, 117. 
 Nolo contendere — Plea of, as admission in other suit, 65. 
 Nonproduction of document in obedience to rule — Effect of, 258, 
 Nonresident witnesses — Commission to take testimony of, 140. 
 Notarial acts — Proof and effect of, 247. 
 Notarial certificate and seal — Proof of, 208. 
 Notaries public — Power to take depositions, 154. 
 Notes and bills — Execution — Proof of, 213. 
 Notes of testimony — 
 
 Loss of, or death of stenographer before transcribing — Proof, 193. 
 Sending out with jury, 431. 
 Notice — 
 
 Commission — Issuing of — Service, 146. 
 Deposition — Issuing of — Service, 156-159. 
 Depositions under commission — Service, 146. 
 Depositions under rule, 156. 
 Filing of, 166. 
 Place of taking, 157. 
 Service of, 159. 
 Time of taking, 158. 
 Waiver of, 161, 171. 
 Notice to produce — 
 
 Document in possession of adverse party, 194, 253. 
 Effect of production, 196, 202. 
 Proof of, by copy as primary evidence, 186, 194. 
 Rule to produce document, 259. 
 Time and sufficiency of notice, 195. 
 Number of witnesses, 489. 
 Oath before examiner to take depositions, 163. 
 Oath or affirmation, 462. 
 
 Object of devise — Parol evidence to determine, 379. 
 Objections — 
 
 ■ Commission to take testimony — 
 Form of question, 144. 
 Relevancy, 144. 
 Competency of witnesses, 463. 
 Depositions — 
 
 Manner of making, 169. 
 Time for making, 170. 
 Waiver of, 161, 171. 
 
476 INDEX. 
 
 [All references are to sections.] 
 
 Obj ections — Continued. 
 Form of, 419. 
 
 General rule governing objections to evidence, 418, 419. 
 Leading questions — Time of making, 481. 
 Offer- 
 Depositions — Preliminary proof, 17.2. 
 Parol evidence to contradict writing, 366. 
 Proof of fraud, 17. 
 Purpose of, 422. 
 Requirements of, 421. 
 Officers of corporations — Admissions of, 83, 84. 
 Official records and papers — 
 Domestic, 248. 
 Foreign, 249. 
 Omissions — 
 
 Correction of, in commission, 149, 150. 
 Effect as admissions, 70. 
 Parol evidence to supply, 363. 
 Opinions — 
 Experts — 
 
 Basis of — 
 
 Facts in evidence, 333. 
 Hypothetical question, 334. 
 Business methods, 337. 
 Common knowledge — Matters of, 338. 
 General principles, 332. 
 Handwriting, 339. 
 
 Comparison, 340. 
 Mechanical, engineering or scientific questions, 341. 
 Mental condition, 342. 
 Negligence, 343. 
 Physical condition, 344. 
 Professional skill, 345. 
 Qualifications of witness, 335. 
 Value, 346. 
 
 Weight of testimony, 336. 
 Non-experts and witnesses in general — 
 Basis of — Hypothetical question, 318. 
 Distance, 319. 
 
 Estoppel by expression of, 55. 
 Expression of — Effect as admission, 86, 7I, 91. 
 General rule, 317. 
 Handwriting — 
 Generally, 320. 
 Preliminary proof, 321. 
 Identity, 317, n. 3. 
 Intoxication, 317, n. 9. 
 Mental condition, 24, 322. 
 
INDEX. 477 
 
 [All references are to sections.] 
 
 Opinions — Continued. 
 
 Physical condition — 
 Persons, 323. 
 Places or objects, 324. 
 Skill, 317, n. 3. 
 Speed, 325. 
 Value and damages — 
 Generally, 326. 
 Realty, 327. 
 
 Qualifications of witness, 328. 
 Cross-examination, 329. 
 Preliminary question for court, 330. 
 Weather conditions, 331. 
 Opportunity for doing act, 26. 
 Oral testimony as secondary evidence, 189, 191. 
 Order book as book of original entries, 98. 
 Order of proof — 
 
 Evidence in chief, 423. 
 Rebuttal, 424. 
 Sur-rebuttal, 425. 
 Subsequent to close of case, 426. 
 Original entries. See Book Entries. 
 Other acts — Evidence of, to prove particular act. See Similar Facts, 
 
 Conditions or Conduct. 
 Own witness — Impeachment of, 476. 
 Adverse or unwilling witness, 477. 
 Necessary witness, 478. 
 Surprise, 477. 
 Pardon — Effect of, on competency of witness, 434. 
 Parol evidence — 
 Bills, 371. 
 Bonds, 372. 
 Book entries, 373. 
 Collateral agreements, 348. 
 Collateral writings, 349. 
 Consideration — 
 
 Additional or different, 3S0. 
 Failure of, 351. 
 
 Proof of, where none mentioned, 352. 
 Construction of writing — 
 Generally, 353. 
 
 Language — Interpretation of, 354. 
 Latent ambiguity, 355. 
 Mutual construction by parties, 356. 
 Subject matter — Explanation and identification of, 357. 
 Technical or trade terms, 358. 
 Contradiction of writing — 
 
47^ INDEX. 
 
 [All references are to sections.] 
 
 Parole evidence — Continued. 
 
 Contemporaneous parol agreement — use of writing in violation of, 
 
 361. 
 Fraud, accident or mistake, 360. 
 General rule, 359. 
 
 Court records, 377. 
 
 Date of writing, 362. 
 
 Deeds, 374. 
 
 General rule, 347. 
 
 Incomplete writings, 363. 
 
 Judgments, confession of, 375. 
 
 Minutes of meeting, 377. 
 
 Mortgages, 372. 
 
 Omissions, 363. 
 
 Ordinances, 377. 
 
 Presumptions or inferences — Rebuttal of, 364. 
 
 Promissory notes, 376. 
 
 Proof- 
 Court and jury — Question for, 365. 
 Offer of, 366. 
 Standard of, 367. 
 Sufficiency of — Two witness rule, 368. 
 
 Public records, 377. 
 
 Receipts, 378. 
 
 Resulting trust — Rebuttal of, 382. 
 
 Sheriff's return, 377. 
 
 Subsequent agreements and declarations, 369. 
 
 Third persons — Rights of, 370. 
 
 Wills- 
 Ambiguity — Latent, 379. 
 Ambiguity — Patent, 380. 
 Fraud and undue influence, 381. 
 Intent of testator, 382. 
 Mistake, 383. 
 Particular acts — Proof of, as evidence of character, 109, 113, 115, 117. 
 Parties — 
 
 Cross-examination — Calling for purpose of, 435-437. 
 
 Depositions of, 179. 
 
 Identity of, to admit prior testimony, 309. 
 Parties in interest — Admissions of, against each other, 85. 
 Partners — 
 
 ^Admissions of, against each other, 86. 
 
 Proceedings by or against — Competency of survivors, 444. 
 
 Separate witnesses within two witness rule, 368, n. 8. 
 Partnership — 
 
 Book entries as evidence of, 102. 
 
 Proof of existence of, before offering admissions, 87. 
 Party of record— Rights of deceased passing to, 445. 
 
INDEX 479 
 
 [All references are to sections.] 
 
 Pass book as book of original entries, 98. 
 
 Patent ambiguity — Parol evidence to explain, 355, 380. 
 
 Patented articles — Production of, 267. 
 
 Paternity of child — Declarations as to, 286. 
 
 Payment — 
 
 Admission by payment on account, 72. 
 
 Declarations accompanying, as part of res gestae, 299. 
 
 Effect of, by one of joint debtors, 85. 
 
 Offer of, as an admission, 63. 
 
 Plea of, as admission of contract, 65. 
 
 Presumption of, from lapse of time, 397. 
 
 Receipt as proof of, 226. 
 Pedigree — 
 
 Declarations as to, by person since deceased, 279. 
 
 Definition of, 279. 
 
 Proof of, by reputation, 293. 
 Pencil entries, 100. 
 
 Pencil signature for purpose of comparison, 340. 
 Performance of duty — Presumption of, 398. 
 Personal examination in action for injuries, 268. 
 Photographs — 
 
 Competency and proof of, 225. 
 
 Identification by means of, 20. 
 Physical appearance as basis for estimating age or length of life, 268. 
 Physical condition — 
 
 Persons — 
 
 Declarations as to, 287. 
 Opinions of experts as to, 344. 
 Opinions of non-experts as to, 323. 
 
 Places or objects — 
 
 Opmions of non-experts as to, 324. 
 Physical disability as reason for admitting depositions, 172. 
 Physical disability as reason for admitting notes of testimony, 307. 
 Physical examination in action for personal injuries, 268. 
 Physical peculiarities as evidence of identity, 20. 
 Physicians — 
 
 Opinions of. See Opinions — Experts. 
 
 Privileged communications, 413. 
 Plans, maps and surveys — 
 
 Ancient — Recitals in, 288. 
 
 Competency and proof of, 223, 244. 
 Pleadings — 
 
 Admissions contained in, 65, 66. 
 
 Customs, 138. 
 
 Proof must be confined to, 3. 
 
 Sending out with jury, 430. 
 
 Statements contained in, as hearsay, 270, n. i. 
 Possession as evidence of title, 52. 
 
480 INDEX. 
 
 [All references are to sections.] 
 
 Possessions of goods — Retention of, as evidence of fraud, 90. 
 Possession of realty — Declarations and acts accompanying, 300. 
 Possibility of issue — Presumption of, 393. 
 Practice — 
 
 Calling of witness for cross examination, 437. 
 
 Impeaching witness, 471. 
 
 Introduction of writings on cross examination, 487. 
 
 Qualifications of impeaching witness, 47S. 
 
 Rule to produce document under Act of 1798, 260. 
 Precautions after accident as evidence of negligence, 50. 
 Predecessors in title — Admissions by, 88-91. 
 Prejudice as affecting credibility, 480. 
 Preliminary examination — 
 
 Competency of confession, 124, 129. 
 
 Competency of witness, 328, 33s, 447, 449. 
 Preliminary proof of conspiracy, 273. 
 
 Preliminary proof to introduction of secondary evidence, 192-196. 
 Preliminary question — Qualification of witness — Value of land, 330. 
 Preparation for doing act, 27. 
 Presumption — 
 
 Book entries — Regularity of entries, 103. 
 ■ Books will be found where they ought to be, 193. 
 
 Competency of witness, 449. 
 
 Conflicting presumptions, 392. 
 
 Continuance of existing facts, 385. 
 
 Correction of error in public document, 399. 
 
 Custom — Knowledge of, 133. 
 
 Death arising from absence, 386. 
 Effect of presumption, 387. 
 Motive for absence — Existence of, 388. 
 Proof of absence, 389. 
 
 Death of witnesses to ancient writing, 209. 
 
 Definition of, 384. 
 
 Doraicil — Continuance of, 385. 
 
 Due care, 398. 
 
 Erasures and interlineations in will, 220. 
 
 Evidence — Failure to produce — Concealment or manufacture of, 51, 
 390. 
 
 Existence from lapse of time, 229. 
 
 Foreign law, 240. 
 
 Fraud, 16. 
 
 General principles, 384. 
 
 Good character, no. 
 
 Grant necessary to perfect title, 391. 
 
 Guilt frorri fact of flight, escape or resistance to arrest, 49. 
 
 Innocence — 
 
 Alteration of writing, 197. 
 Conflicting presumptions, 392. 
 
INDBX. 481 
 
 [All references are to sections.] 
 
 Presumption — Continued. 
 
 Insanity — Continuance of, 385. 
 Issue — Possibility of, 393. 
 Legitimacy, 394. 
 
 Letters — Delivery to addressee in due course of mail, 395. 
 Marriage, 396. 
 Negligence, 398, 400. 
 
 Negligence from habit of intoxication in conductor, 38. 
 Ownership — Continuance of, 385. 
 Payment — Presumption of, from lapse of time, 397. 
 Performance of duty — Due care, 398. 
 Rebuttal by parol evidence, 364. 
 
 Regularity of proceedings, records and documents, 399. 
 Res ipsa loquitur, 400. 
 Sanity, 401. 
 
 Suppression or manufacture of evidence, 51, 390. 
 Wages of servant — Payment of, 402. 
 Wills — Destruction of, 221. 
 Primary evidence — 
 Admissions, 184. 
 Best evidence of fact, 183. 
 Carbon copy, 186. 
 Certified copies, 185. 
 Duplicates, 186. 
 Principal — Admission of, against surety, 92. 
 Prior declarations — 
 
 Intent — Evidence of, 22. 
 Mental condition — Evidence of, 24. 
 Prior owner of property — Admissions by, 88-91. 
 Privilege against self-incrimination, 490. 
 
 Proceedings in United States courts, 65, n. 57. 
 Waiver, 130. 
 
 Waiver — Cross examination of witness, 484. 
 Privileged communications — 
 General principles, 403. 
 Arbitrators, 404. 
 Attorneys, 405. 
 
 Agent — Attorney acting as, 406. 
 Collateral matters, 407. 
 
 Law student — Attorney acting as friend, 408. 
 Publicly disclosed matters, 409. 
 Two or more clients, 410. 
 Husband and wife, 411. 
 Jurors, 412. 
 Physicians, 4I3- 
 State secrets, 4i4- 
 Trade secrets, 415. 
 
 31 
 
482 INDEX. 
 
 [AH references are to sections.] 
 
 Probable cause — 
 
 Offer of compromise as evidence of, 63. 
 Rebuttal of, by evidence of character, 114. 
 Probate of will — Effect of, as dispensing with proof of execution, 218. 
 Production of documents — 
 
 At taking of depositions, 180. 
 Before examiner or notary, 261. 
 Generally, 253. 
 On notice — Effect of, 196. 
 Rule to produce — ' 
 
 Before trial in aid of pleadings, 254. 
 On trial, under Act of 1798 — 
 Affidavit or petition, 256. 
 Answer, 257. 
 Generally, 255. 
 
 Nonproduction — Effect of, 258. 
 Notice of rule, 259. 
 Practice, 260. 
 
 Time and place of production, 261. 
 Production of evidence — 
 
 Order to permit examination, 268. 
 Presumption arising from failure of, 51, 390. 
 Professional skill — Opinions of experts as to, 345. 
 Promise as inducement to confession, 127. 
 Promissory notes as affected h/ parol evidence rule, 376. 
 Proof- 
 Absence of witness — Offer of deposition, 172. 
 Admissions — How made, 56. 
 Agency, "jy. 
 
 Books of original entries, 103. 
 Burden of — 
 
 Condition — Similarity of, 33. 
 Fraud, 19. 
 Generally, 420. 
 Conspiracy — Existence of, 273. 
 
 Court and jury — Question for — Parol evidence, 365. 
 Customs, 138. 
 Dying declarations, 283. 
 Necessity of, in case of fraud, 16. 
 Offer of— 
 
 Contradiction of writing, 366. 
 Fraud, 17. 
 General rule, 421. 
 Purpose of offer, 422. 
 Order of — 
 
 Evidence in chief, 423. 
 Rebuttal, 424. 
 
 Subsequent to close of case, 426. 
 Sur-rebuttal, 425. 
 
INDEX. 483 
 
 [All references are to sections.] 
 
 Proof — Continued. 
 
 Partnership — Existence of, 87. 
 
 Preliminary to introduction of secondary evidence, 192-196. 
 ' Title in grantor, 201. 
 
 Secondary evidence — 
 
 Copies, 190. 
 
 Oral testimony, . 
 
 Standard of, to contradict writing by parol, 367. 
 Sufficiency of in case of fraud, 19. 
 Sufficiency of — 
 
 Fraud, 19. 
 
 Parol contradiction of writing, 365, 368. 
 Testimony given in former proceeding — 
 
 Memorandum, 311. 
 
 Recollection of witness, 312. 
 
 Stenographer's notes, 313. 
 Public and general rights — Declarations as to, by person since deceased, 
 
 280. 
 Public documents and records- 
 Alterations in, 200. 
 Assessment books, 230. 
 Births — Records of, 245. 
 Corporation accounts, 231. 
 Deaths — Records of, 245. 
 
 Historical and geographical books relating to public matters, 232. 
 Judicial records — 
 
 Domestic — Docket entries, 233. 
 
 Foreign states, 234. 
 
 Foreign countries, 235. 
 
 Justices' courts, 236. 
 
 United States courts, 237. 
 
 Whole of record, 238. 
 Law — 
 
 Domestic, 239. 
 
 Foreign, 240. 
 
 Federal questions, 241. 
 Statutory or written law, 242. 
 Unwritten or common law, 243. 
 Loss of, 193. 
 Maps, 244. 
 
 Marriages, records of, 245. 
 Municipal ordinances, 246. 
 Notarial acts, 247. 
 Official records and papers — 
 
 Domestic, 248. 
 
 Foreign, 249. 
 Parol evidence rule in rfelation to, 377. 
 
484 INDEX. 
 
 [All references are to sections.] 
 
 Public documents and records — Continued. 
 
 Presumption of regularity of, 399. 
 
 Proof of— 
 
 Ancient documents, 209. 
 Generally, 229. 
 
 Recorded instruments, 250. 
 
 Weather bureau reports, 251. 
 
 Whole of record, 252. 
 Purpose of evidence — Statement of, 422. 
 Qualification of witnesses — 
 
 Character witnesses, 120. 
 
 Experts, 33S. 
 
 Generally. See Witnesses — Computbncy. 
 
 Realty — Value of, 328-330. 
 Quarrel as affecting credibility of witness, 480. 
 Rape — Res gestae of transactions, 300a. 
 Realty- 
 Admissions by prior owner of, 91. 
 
 Possession of — Declarations and acts accompanying, 300. 
 
 Value of, 46. 
 
 Qualification of witness, 328-330. 
 Rebuttal- 
 Character admissible in civil cases, no. 
 
 Proof, 424. 
 Rebutting inferences, 28. 
 Recalling for further cross examination, 486. 
 Receipt book as book of original entries, 98. 
 Receipts — 
 
 Accompanying records, 238, 377. 
 
 Parol evidence rule, 377-378. 
 
 Payment — Evidence of, 226. 
 
 Proof of execution of, 215. 
 
 Weight as evidence, 226. 
 Recitals — 
 
 Admissions in, 73. 
 
 Ancient deeds, maps and surveys, 288. 
 Recorded instruments — Proof of, 250. 
 Records. See Public Records. 
 Re-examination — Extent of, 488. 
 Refreshing memory — 
 
 Book accounts for purpose of, 104. 
 
 Book entries, 97. 
 
 Depositions — Taking of, 164. 
 
 Generally, 491. 
 
 Incompetent writing, 491. 
 
 Memoranda made by third person, 491. 
 Regularity of proceedings — Presumption of, 399. 
 
INDBX. 485 
 
 [All references are to sections.] 
 
 Release or extinguishment of interest — Effect of, 446. 
 Relevancy — 
 
 Circumstantial evidence, 7. 
 Collateral matters, 8. 
 Contradiction, 9. 
 Corroboration — 
 
 Acts and circumstances, 10. 
 
 Consonant declarations, 11. 
 Criminal cases, 12. 
 Financial condition of parties, 13. 
 Fraud — 
 
 Competency of evidence — Rebutting evidence, 14. 
 
 Determination of question — Court and jury, 15. 
 
 Proof- 
 Necessity of, 16. 
 Offer of, 17. 
 
 Reliance on misrepresentations, 18. 
 Sufficiency of, 19. 
 General principles, I. 
 
 Admitted facts, 2. 
 
 Contradictory evidence, 5. 
 
 Determination of question, i. 
 
 Issue — Must tend to sustain, 2. 
 
 Issue and pleadings — Scope of, 3. 
 
 Materiality of evidence, 2. 
 
 Relevancy must be shown, 6. 
 
 Theory of case, 2. 
 
 Whole case — Proof of, 4. 
 Identity, 20. 
 Intent — 
 
 Declarations, acts and circumstances, 21. 
 
 Declarations prior to act, 22. 
 
 Declarations subsequent to act, 23. 
 
 Threats, 22. 
 Mental condition, 24. 
 Motive, 25. 
 
 Opportunity for doing act, 26. 
 Prejudice, 25. 
 
 Preparation for doing act, 27, 
 Quarrel, 25. 
 
 Rebutting inferences, 28. 
 Remoteness, 29. 
 Res gestae. See Rfis Gest^. 
 Similar facts and occurrences- 
 Condition at different places, 31. 
 
 Condition at different times, 32. 
 
 Condition producing similar results, 33. 
 
 Course of business, 34. 
 
486 INDEX. 
 
 [All references are to sections.] 
 
 Relevancy — Continued. 
 
 Course of conduct, 35. 
 Criminal cases, 30. 
 Custom, 34. 
 Fraud, 36. 
 General rule, 30. 
 Intent, 37. 
 Knowledge, 38. 
 Malice, 39. 
 ~ Motive, 40. 
 
 Negligence cases — 
 General rule, 41. 
 Sparks from locomotives, 42. 
 Res gestffi, 43. 
 System, 44. 
 Value — 
 
 Personalty — ^Valuc at different times, 45. 
 Realty — Value of other property, 46. 
 Services — Cost of similar services, 47. 
 Subsequent conduct — 
 
 Construction of contract, 48. 
 Escape from custody, 49. 
 Flight, 49. 
 General rule, 48. 
 
 Precautions or repairs after accident, 50. 
 Resisting arrest, 49. 
 Suppression or manufacture of evidence, 51. 
 Title— Question of, 52. 
 Whole of transaction, 53. 
 Religious belief as affecting competency of witness, 464. 
 Remoteness — 
 
 Book entries, 107. 
 Condition at different times, 32. 
 Kmittitig sparks from the locomotive, 42, n. 78. 
 General rule, 29. 
 Repairs after accident as evidence of negligence, 50. 
 Reputation. See also Character. 
 Bawdy house, 290. 
 Book-keepers — Accuracy of, 105. 
 Books of account — Accuracy, 105. 
 Boundaries, 291. 
 Competency of evidence of, 289. 
 Definition of, 109, 115. 
 
 Impeachment of, 469-478. See Witnesses— Credibhity— Impeach- 
 ment. 
 Insanity, 292. 
 lyegitimacy, 293. 
 Marriage, 293. 
 
INDEX. 487 
 
 [All references are to sections.] 
 
 Reputation. See also Character — Continued. 
 
 Negligence, 41, 117. 
 
 Particular acts to prove, 105, 109. 
 
 Pedigree, 293. 
 Res gestae — 
 
 Admission by agent in course of employment, 76. 
 
 Boundaries — Declarations as to, 276. 
 
 Definition of, 294. 
 
 Desertion — Cause of, 295. 
 
 Entries made in course of business, 94. 
 
 General principles, 294. 
 
 Homicide cases, 296. 
 
 Intent, 297, 
 
 Motive, 297. 
 
 Negligence cases, 298. 
 
 Payment — Declarations accompanying, 299. 
 
 Purpose, 297. 
 
 Possession of realty — Declarations and acts accompanying, 300. 
 
 Rape, 300a, 
 
 Sale and transfer of property — Declarations and acts accompanying, 
 301. 
 Residence — Proof of, by acts and declarations showing intent, 21, n. 25. 
 Residence of commissioner, 143. 
 Resisting arrest as evidence of guilt, 49. 
 Res ipsa loquitur, 400. 
 Resulting trust — Rebuttal of, by parol, 382. 
 Return of commission — 
 
 Filing, 151. 
 
 Form and manner of making, 150. 
 Return of depositions — 
 
 Filing, 166. 
 
 Form and manner of making, 165. 
 Rule to produce documents at trial — 
 
 Affidavit, 256. 
 
 Answer, 257. 
 
 Generally, 255. 
 
 Nonproduction — Effect of, 258. 
 
 Notice of rule, 259. 
 
 Practice, 260. 
 
 Time and place of production, 261. 
 Rule to produce document prior to trial in aid of pleadings, 254. 
 Sale of property — Declarations and acts accompanying, 301. 
 Sanity — Presumption of, 401. 
 
 Scientific principles — Proof of, to shown relevancy, 6. 
 Scientific questions — Opinions of experts on, 341. 
 Sealed instruments— Proof of execution of, 217. 
 Search for lost document — Proof of, 193. 
 Second confession after one improperly obtained, 129. 
 
488 IND5X. 
 
 [All references are to sections.] 
 
 Second deposition — Right to take, 160. 
 Secondary evidence — 
 
 Competency after nonproduction on notice, 253. 
 Depositions, 172. 
 
 General rules as to admissibility, 187. 
 Grades of, 188. 
 Kinds of, 189. 
 Principles governing, 181. 
 Proof- 
 Copies, 190. 
 Oral testimony, 191. 
 Preliminary — 
 
 Lost documents — 
 
 Existence, execution and delivery of originals, 192. 
 Loss and search — Proof of, 193. 
 , Lost wills, 221. 
 Originals in possession of adverse party — 
 Notice to produce, 194. 
 
 Time of giving and sufficiency of, 195. 
 Effect of production, 196. 
 Seduction — 
 
 Character — Competency of evidence of, 115. 
 Corroboration of woman's testimony in action for, 10. 
 Self-incrimination — 
 
 Privilege against, 490. 
 Waiver of privilege, 130, 484. 
 Self-serving declarations — 
 
 Admissions — Declarations accompanying, S9- 
 General rule, 302. 
 
 Letters — Statements' contained in, 303. 
 Marriage — Proof of acceptance of offer of, 304. 
 Memoranda and accounts, 305. 
 Sending out with jury — 
 
 Calculations by parties, 428. 
 Depositions, 429. 
 General rule, 427. 
 Pleadings, 430. 
 Testimony — Notes of, 431. 
 Separate property — Proceedings to recover — Competency of husband and 
 
 wife to testify, 457. 
 Service — 
 
 Notice of issuing commission, 146. 
 Notice of taking depositions, 159. 
 Services — Value of, proved by cost of similar services, 47. 
 Set-off — Admission by failure to deny, 66. 
 Shop books — See Book Entries. 
 Silence as admission, 74. 
 Silence as confession, 126. 
 
INDBX. 48g 
 
 [All references are to sections.l 
 
 Similar facts, conditions or conduct — 
 
 Condition at different places, 31. 
 
 Condition at different times, 32. 
 
 Condition producing similar results, 33. 
 
 Corroboration of testimony, 10, n. 56. 
 
 Course of business, 34. 
 
 Course of conduct, 35. 
 
 Criminal cases, 30. 
 
 Custom, 34. 
 
 Fraud, 36. 
 
 General rule as to competency, 30. 
 
 Intent, 37. 
 
 Knowledge, 38. 
 
 Malice, 39. 
 
 Motive, 40. 
 
 Negligence — 
 
 Generally, 41. 
 
 Sparks from locomotive, 42. 
 
 Res gestae of principal transaction, 43. 
 
 System, 44. 
 
 Value — 
 
 Personalty — Value at different times, 45. 
 Realty — Value of other properties, 46. 
 Services^ — Cost of similar services, 47. 
 Slander — Evidence of character in action for, 113. 
 Sparks from locomotive as evidence of negligence, 42. 
 Special transactions not provable by book entries, 106. 
 Speed — Opinion as to, 325. 
 Spiritual hope as inducement to confession, 127. 
 Slate memoranda as book of original entries, 98. 
 State secrets — Privileged communications, 414. 
 
 Statement of claim — Failure to deny allegations — Effect as admission, 66. 
 Statutory foreign law — Proof of, 242. 
 Stenographer's notes of testimony — -Proof by, 313. 
 Stranger — Effect of admission by, 75. 
 Striking out evidence, 432. 
 
 Subject matter of contract — Explanation or identification of, by parol, 357. 
 Subject matter of suit — Identity of, 314. 
 Subject of book entries, 106. 
 
 Subject of devise — Parol evidence to determine, 379. 
 Subornation of perjury as evidence of guilt, 126. 
 Subpoena duces tecum — When issues — Practice, 253, 262. 
 Subscribing witnesses — 
 
 Number necessary to call, 206. 
 
 Opinion of, as to mental condition, 322. 
 
 Proof of execution by, 206. 
 
 Qualifications of, 206. 
 Subsequent agreements and declarations — Parol evidence to show, 369. 
 
490 INDEX. 
 
 [All references are to sections.] 
 
 Subsequent conduct as evidence of doing of act — 
 Escape, 49. 
 Flight, 49. 
 General rule, 48. 
 Possession of stolen goods, 48. 
 }'ossession of goods of murdered person, 48. 
 Precautions after accident, 50. 
 Repairs after accident, 50. 
 Resisting arrest, 49. 
 Subsequent declarations — 
 
 Fraud in sale of property, 90, 91. 
 Intent — Evidence of, 23. 
 Mental condition — Evidence of, 24. 
 Subsequent occurrences — Competency of survivor to testify to, 447. 
 Suppression or manufacture of evidence, 51. 
 Surprise — Effect of, on right to impeach own witness, 477. 
 Sur-rebuttal, 425. 
 Surveys — 
 
 Ancient — Recitals in, 288. 
 Competency and proof of, 244. 
 Surviving or adverse party — Competency of. See Witnesses — Compe- 
 tency — Death or Lunacy op Party — Surviving Party. 
 System — Proof of facts showing, as evidence of act, 44. 
 Tax receipts as evidence of title, 52. 
 Technical terms — 
 
 Explanation of, by parol, 358. 
 Explanation of, by experts, 332. 
 Telephone conversation — Identity by means of, 20. 
 Tenants in common — Admissions against each other, 82. 
 Testator — Declarations of, where will is lost, cancelled or destroyed, 221. 
 Testimony — Notes of — Sending out with jury, 431. 
 Testimony given in former proceedings — Competency of — 
 Absence or disability of witness, 307. 
 Contradiction of witness, 308. 
 General principles, 306. 
 Parties — Identity of, 309. 
 Proceedings — Nature of, 310. 
 Proof- 
 Memorandum of testimony, 311. 
 Recollection of witness, 312. 
 Stenographer's notes, 313. 
 Subject matter — Identity of, 314. 
 Whole of testimony, 315. 
 Theory of case — Right to support, 2. 
 Third persons — Parol evidence rule as affecting, 370. 
 Threats as evidence of intent, 22. 
 Threats as inducement for confession, 127. 
 
INDEX. 491 
 
 [All references are to sections.] 
 
 Time- 
 Admissions — Time of making, 57. 
 Book entries, 107. 
 Objections to evidence, 418. 
 Objection to depositions, 17a. 
 Production under rule to produce, 261. 
 Taking depositions, 161. 
 Time book as book of original entries, 98. 
 Time tables — Competency of, 227. 
 Title — Competency of evidence relating to, 52, 
 Trade secrets— Privileged communications, 415. 
 Trade terms — Explanation of, by parol, 358. 
 Transcribing testimony at taking of deposition, 162. 
 Transcript of justice's court — Competency of, 236. 
 Trial — Matters relating to — 
 
 Court and jury — Province of, 416. 
 Harmless error, 417. 
 Objection to evidence, 418. 
 
 Form of, 419. 
 Proof- 
 Burden of, 420. 
 Offer of, 421. 
 
 Purpose of offer, 422. 
 Order of — 
 
 Evidence in chief, 423. 
 Rebuttal, 424. 
 
 Subsequent to close of case, 426. 
 Sur-rebuttal, 425. 
 Sending out with jury, 427. 
 Calculation by parties, 428. 
 Depositions, 429. 
 Pleadings, 430. 
 Testimony — Notes of, 431. 
 Striking out and withdrawing evidence, 431. 
 Trial before court — Application of rules of evidence, i. 
 Trustees — Admissions of, 80. 
 Two witness rule — 
 
 Application to parties having common interest, 368. 
 Incomplete writings, 363. 
 Parol evidence to vary writing, 368. 
 Understanding of parties to writing — Parol evidence to show, 356. 
 Undisclosed intent, 18, 21. 
 Undue influence — Declarations of testator to show opportunity for fraud, 
 
 26. 
 United States court records — Proof of, 237. 
 Unstamped writings — Competency of, 22S. 
 Unwilling witness — Right to impeach, 477. 
 Unwritten foreign law — Proof of, 243. 
 
492 INDlJX. 
 
 [All references are to sections.] 
 
 Usage. See Custom. 
 
 Definition of, 133. 
 Value — 
 
 Declarations as to, by owner, 61. 
 
 Determination of — 
 
 Value at different place, 45. 
 Value of other property, 46. 
 Value or cost of other services, 47. 
 
 Opinion as to — 
 
 Generally, 326, 346. 
 Realty, 327. 
 
 Qualifications of witness, 328. 
 Cross examination, 329. 
 Preliminary question, 330. 
 Vendor — Admissions of, against vendee, 91. 
 View by jury, 269. 
 
 Viewers — Competency as witnesses, 460. 
 Voice as means of identification, 20. 
 Wages of minor child — Competency of evidence of character in action 
 
 for, 116. 
 Wages of servant — Presumption of regular payment of, 402. 
 Waiver — 
 
 Notice of taking commission, 146. 
 
 Notice of taking depositions, 156. 
 
 Objection to depositions, 161, 171. 
 
 Objections to evidence, 418, 419. 
 
 Self-incrimination — Right to refuse, 484. 
 Weather bureau records — Competency of, 251. 
 Weather conditions^ — Opinion as to, 331. 
 Weight of evidence — 
 
 Admissions, 58. 
 
 Character in criminal case, 119. 
 
 Confessions, 131. 
 
 Experts — Opinion of, 336, 342. 
 Whole of admission — Necessity of offering, 59. 
 Whole of book entries, 108. 
 Whole of confession, 132. 
 Whole of deposition, 178. 
 Whole of dying declarations, 284. 
 Whole of record — 
 
 Judicial records, 238. 
 
 Public records, 252. 
 Whole of testimony taken in prior proceedings, 315. 
 Whole of transaction — 
 
 Competency of, 53. 
 
 Parol evidence to show, 363. 
 Whole of writing — Necessity of offering, 53. 
 
INDEX. 493 
 
 [All references are to sections.] 
 
 Wills- 
 Execution and contents of — Declarations as to, 278. 
 Execution — Proof of 
 
 Charitable gifts, 219. 
 
 Erasures and interlineations, 220. 
 
 Generally, 218. 
 
 Lost wills, 221. 
 
 Mark as signature, 222. 
 Fraud — Declarations of intention, 22. 
 Parol evidence rule — 
 
 Ambiguity — Latent, 379. 
 
 Ambiguity — Patent, 380. 
 
 Fraud and undue influence, 381. 
 
 Intent of testator, 382. 
 
 Mistake, 383. 
 Probate — Effect as dispensing with proof of execution, 218. 
 Withdrawing evidence, 432. 
 Witnesses — 
 
 Absence — Proof of, prior to offer of depositions, 172. 
 
 Absence — Proof of, prior to offer of testimony tajten on former trial, 
 
 307. 
 Attendance before commissioner from other state, 152. 
 Attendance before examiner to take depositions, 163. 
 Competency, 433. , 
 
 Arbitrators, 460. 
 
 Conviction or commission of crime, 434. 
 Cross-examination — Calling for purpose of, 435. 
 Effect of calling, 436. 
 Practice, 437. 
 Death or lunacy of party — Effect of, 438. 
 Surviving or adverse party — 
 Competency in general, 439. 
 Competency resulting from calling third person in whose 
 
 presence transaction occurred, 440. 
 Devolution — Claim by, 441. 
 Disclaimer by defendant in ejection, 442. 
 Interest must be adverse, 443. 
 Partners or joint parties surviving deceased — Proceedings 
 
 against, 444. 
 Party of record — Rights of deceased passing to, 445. 
 Release or extinguishment of interest, 446. 
 Subsequent occurrences — Competency of survivor to tes- 
 tify to, 447- 
 Testifying against interest, 448. 
 Determination of question — 
 
 Preliminary examination, 449. 
 Province of court and jury, 450. 
 Husband and wife, 451. 
 
494 INDEX. 
 
 [All references are to sections.] 
 
 Witnesses — Continued. 
 
 Adultery, 452. 
 Bodily injury, 453. 
 
 Character of wife — Rebutting attacks upon, 454. 
 Desertion and maintenance, 455. 
 Divorce, 456. 
 
 Separate property— Recovery of, 457. 
 Infants, 458. 
 Intoxication, 459. 
 Jurors, 460. 
 Lunatics, 461. 
 
 Oath or affirmation, 163, 462. 
 Objection to competency, 463. 
 Preliminary examination as to, 449. 
 Religious belief, 464. 
 Viewers, 460. 
 
 Wills — Proof of execution of, 218, 219. 
 Writings — Proof of contents, 191. 
 Credibility, 465. 
 
 Accomplices, 466. 
 
 Court and jury — Province of, 467. 
 False testimony, 468. 
 Impeachment — 
 
 Confession of other crime, 30. 
 
 Contradictory declarations, acts or circumstances, 469. 
 Evidence given on cross examination, 470. 
 Practice, 471. 
 Own witness, 476. 
 
 Adverse or unwilling witness, 477. 
 Necessary witness, 478. 
 Surprise, 477. 
 Reputation for truth and veracity, 472. 
 
 Cross examination of impeaching witness, 473. 
 Effect of impeachment, 474. 
 Practice, 475. 
 Interest in suit, 479. 
 Prejudice, 480. 
 Relationship to parties, 480. 
 Examination — 
 
 Direct examination, 481. 
 
 Leading questions, 481. 
 Cross examination — 
 
 Accuracy of witness — Value of other property, 327, 329. 
 Calling for purpose of — 
 Divorce proceedings, 456. 
 Effect of calling, 436. 
 General principles governing, 435. 
 Practice, 437. 
 
iNDBx. 495 
 
 [All references are to sections.] 
 
 Witnesses — Continued. 
 
 Who may be called, 435. 
 Collateral matters — 
 
 Contradiction, 470, 482. 
 
 Testing credibility, recollection, interest or bias, 483. 
 Credibility of witness, 483. 
 Defendant in criminal case, 130, 484. 
 Defense — Introduction of, 485. 
 General rules governing, 482. 
 Impeaching witness, 473. 
 Leading questions, 482. 
 Opportunity for, as criterion for admitting testimony taken in 
 
 former proceedings, 306, 310. , 
 
 Preliminary, to determine competency of confession, 124, 129. 
 Proceedings to take depositions, 164. 
 Qualification of witness — Value of land, 329. 
 Recalling for further cross examination, 486. 
 Writings — Introducing in evidence on cross examination, 487. 
 Cross interrogatories in commission, 145. 
 Re-examination, 488. 
 Examination on taking depositions, 164. 
 Examination before commissioner from other state, 152. 
 Examination under commission, 149. 
 Names of, for taking depositions, 155. 
 Naming in commission, 142. 
 Number of witnesses, 489. 
 Number of, to impeach character, 475. 
 Privilege against self-incrimination, 490. 
 Qualification of — 
 Character, 120. 
 Experts, 335. 
 
 Generally. See Witnesses — Competency. 
 Value of realty, 328-330. 
 Refreshing memory, 491. 
 Writings — Introduction of, on cross examination, 487. 
 See documentary evidence.