s 
 

 (5nrn?U IGam i>rl|nnl Hibtary 
 
3 1924 051 686 131 
 
Cornell University 
 Library 
 
 The original of tliis book is in 
 the Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31 924051 6861 31 
 
A DIGEST 
 
 OF THE V 
 
 Law of Evidence 
 
 AS ESTABLISHED IN THE UNITED STATES. 
 
 Adapted from the English Work of 
 
 SIR JAMES FITZJAMES STgPHEN. K.C.S.I., 
 
 Judge of Her Majesty's High Court of Justice. 
 JVi£^ References to Decisions of the Federal and State Courts. 
 
 By WILLIAM REYNOLDS, 
 
 OP THE Baltimore Bar. 
 
 CHICAGO, ILL.: 
 
 PUBLISHED BY CALLAGHAN & COMPANY. 
 1879. '* 
 
 .ilod4 
 
Entered according to the Act of Congress, in the year 1879, by 
 
 CALLAGHAN & COMPANY, 
 
 In the oface of the Librarian of Congress, at Washington. 
 
 Stereotyped and Printed at the 
 Detroit Free Press Printing House. 
 
American Editor's Preface. 
 
 Sir James Fitzjames Stephen, in his Digest of the 
 Law of JEmdence, has attempted to express, in the 
 form of a statute, the existing English law of 
 evidence. The value of such a work is obvious, for 
 evidence is pre-eminently the one branch of jurispru- 
 dence which every lawyer who aspires to any success 
 at nisi prizes practice must always have ready, so to 
 speak, at his fingers' ends. Scarcely a case is tried 
 but during its progress some question of evidence is 
 suddenly raised which counsel, on one side at least, 
 could not possibly have anticipated, and must there- 
 fore be ready to discuss at the moment and without 
 preparation, for courts cannot afford to wait for them 
 to look up the point in Greenleaf, Taylor or Wharton. 
 To be able at once to state with clearness and pre- 
 cision the rule of evidence applicable to any point 
 that may be made in the course of a trial, would be 
 a matter of no small difficulty to one whose sole 
 acquaintance with the law of evidence had been 
 derived from the voluminous treatises upon that sub- 
 ject now generally recognized as the standard 
 authorities, but it might be done much more easily 
 by a person who had spent, in the careful ' study of a 
 small book like that of Sir James Stephen, the same 
 
AMERICAN EDITORS PREFACE. 
 
 time lie would have been occupied in even once read- 
 ing through any of the larger works. 
 
 The advantages to be expected from such a work 
 as Sir James Stephen has prepared may be briefly 
 stated as follows: 1. It furnishes the student with 
 a manual from which he can get in a short time an 
 accurate knowledge of the general results of the 
 various decisions and statutes, and a thorough 
 acquaintance with the rules of evidence by which the 
 courts he is about to practice in now govern their 
 mode of procedure. 2. It gives the practicing 
 lawyer a much needed vade meGum for the trial 
 table, so small that he can soon become sufficiently 
 familiar with it to be able at a moment's notice to 
 find a clear and authoritative statement of the prem- 
 ises upon which to base his argument on any of the 
 various points that unexpectedly arise at nisi prlus. 
 3. It serves as a basis and a valuable preparation 
 for that most difficult and much needed work, a com- 
 plete codification of the law of evidence. 
 
 But does Sir James Stephen's digest fulfill these 
 expectations ? It appears to do so in England, but 
 certainly cannot in this country, for the very sufficient 
 reason that the English law of evidence diifers 
 materially in many respects from that prevailing in 
 the United States, and Sir James only undertakes to 
 state the existing English law. A little more than a 
 century ago, the law of evidence in the two countries 
 was identical, but since then many changes have been 
 produced by different forms of government, and the 
 different social relations under which the two peoples 
 
AMERICAN EDIT on' 8 PBEFAOE. 
 
 have lived, to say nothing of the conflicting decisions 
 of many courts, and the diverse legislation of more 
 than a century. In England alone some thirty-nine 
 statutes bearing upon the law of evidence have been 
 enacted, most of them within the last forty or fifty 
 years, and parts, at least, of about twenty-four of 
 them have been incorporated by Sir James Stephen 
 in his digest. Under these circumstances the latter 
 work cannot, as it stands, be sS,fely relied on as an 
 authority upon the existing law of evidence in this 
 country, and it can hardly, therefore, be of much 
 practical value on this side of the Atlantic, excepting 
 to those who have learned from other sources the parti- 
 culars wherein the English law differs from their own. 
 The object of the present publication is to provide 
 the bar of the United States with a work bearing 
 precisely the same relation to the law of evidence 
 under which we practice, that Sir James Stephen's 
 digest does to the English law of evidence, and the 
 plan adopted has been to carefully compare each 
 article of that work with the law as laid down by 
 the American authorities, and wherever they are in 
 harmony to leave the text unchanged, citing a few 
 American cases to support it; but where the rule 
 established by the American differs from that given 
 in the text, to alter the text so as to make it express 
 the American rule. There could be no better illus- 
 tration of the extent of the difference between the 
 American and the English law, as now established, 
 than the fact that although I have always endeavored 
 to preserve, as far as possible, the English text 
 
vi AMERICAN EDITOR'S PREFACE. 
 
 unaltered, I have been obliged to entirely re-write 
 TWBNTT-THBEB of the One hundred and forty-three 
 articles into which the work is divided, and to make 
 alterations in foktt-seven more. 
 
 I have not attempted to cite all the adjudged cases 
 on any point, but have adhered to the author's 
 original plan of merely stating the rules that have 
 the weight of the best authorities in their favor, and 
 where there are many conflicting decisions of any 
 considerable weight, I have generally called attention 
 to the fact in the foot notes, and referred to some 
 standard authority in which the cases are all collected. 
 In selecting cases for citation, I have sought to give 
 preference to those in which the judges have most 
 fully discussed the question under consideration, and 
 which have been decided either by the Supreme 
 Court of the United States or such other tribunals 
 as are most generally esteemed high authorities 
 beyond the limits of their own jurisdiction. The 
 English cases in support of the text of the original 
 work I have retained, except in a few cases where 
 alterations in the text rendered them inapplicable. I 
 have also retained the Illustrations, but have been 
 obliged to slightly alter one or two, and have also 
 added several additional ones. No attempt has been 
 made to give the statutes of the various states modi- 
 fying the common law rules, as to do so would have 
 materially increased the size of the book and have 
 added but little, if any, to its value. I have in this 
 particular followed the example of Mr. Wharton in 
 his late valuable treatise on the law of evidence, by 
 
AMEBIOAN EDITOR'S PBBFACB. 
 
 merely indicating -which of the common law rules 
 have been most frequently modified by statutes, and 
 also what the general tenor of those statutes is. 
 
 My only excuse for altering the text of another 
 writer is, that I could think of no other way to accom- 
 plish nearly so well the end I have in view. To have 
 the law stated one way in the text, and then on 
 almost every other page to have it contradicted or 
 modified by foot notes, would obviously be in direct 
 variance with the whole purpose of this work, which 
 is to express as nearly as possible in the form of a 
 statute the existing American Law of Evidence. If, 
 on the other hand, I had undertaken to re-write the 
 entire book, I am modest enough to believe that the 
 result of my labors would not have been nearly so 
 valuable as that attained by the course adopted, and 
 I therefore claim the same right to incorporate the 
 greater part of Sir James Stephen's work into my 
 own, which Mr. Justice Taylor had to adopt whole 
 sections from Professor Greenleaf's treatise as a part 
 of his. As, however, I have no wish either to appear 
 as claiming any of the credit due Sir James Stephen 
 for his work, or to make him seem in any way respon- 
 sible for whatever errors or misstatements I may have 
 made, I have inclosed in brackets all my additions to 
 the text. 
 
 The articles in which the English text remains 
 unaltered are Numbers 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 12, 
 13, 14, 15, 16, 19, 22, 23, 24, 26, 27, 29, 31, 39, 40, 
 41, 43, 44, 45, 46, 50, 51, 54, 59, 60, 61, 62, 63, 64, 65, 
 68, 70, 72, 73, 74, 78, 85, 86, 87, 88, 90, 91, 92, 93, 95, 
 
AMERIOAN EDITOR'S PREFACE. 
 
 96, 97, 98, 99, 101, 102, 103, 104, 106, 116, 134, 136, 
 137, 138 and 139. The alterations in 30, 31, 34, 100 
 and 115 are merely verbal, in no manner altering the 
 sense, being the substitution of equivalent virords, 
 such as "state "for "crown," "counsel "for "bar- 
 rister," and the like. The alterations made in articles 
 11, 18, 56, 79, 105, 131 and 143 consist in the omis- 
 sion of paragraphs based upon recent English stat- 
 utes inapplicable to this country, and in article 75 
 the words, " except in peerage cases," are only 
 omitted. The articles entirely re- written are Nos. 
 20, 36, 37, 38, 52, 58, 69, 76, 80, 81, 82, 83, 84, 109, 
 110, 111, 112, 113, 119, 122, 123, 124 and 125. Arti- 
 cles Nos. 140, 141 and 142, on depositions, are 
 omitted as inapplicable to the practice in this coun- 
 try, which, being regulated by the statutes of the 
 United States and of the several states, is, in this 
 particular, too much diversified to be included in the 
 present work. 
 
 As this volume is intended largely for use at the 
 trial table, I have always in citing cases (except 
 when they are very short), given both the page of 
 the volume of reports on which is the syllabus of the 
 case, and also that containing the particular part of 
 the opinion referred to. I have also added, in an 
 appendix, the fourth and seventeenth sections of the 
 statute of frauds, which it is often convenient to have 
 at hand when discussing questions of evidence. 
 
 Sir James Stephen's original Introduction, his Pre- 
 face to his third edition, and his Appendix of Notes, 
 have been retained, excepting note xxvi, which is 
 
AMEBIC AN MDITOB'S PBEFAOE. 
 
 explanatory of an article entirely re-written, and the 
 latter half of note xli, -which refers only to the 
 intei"pretation and effect of certain English statutes 
 in no respect applicable to this country. 
 
 W. E. 
 1 St. Patjl St., Baltimore, 
 June leth, 1879. 
 
Sir James Fitzjames Stephen's 
 Introduction. 
 
 In the years 1870-1871 I drew what afterwards 
 became the Indian evidence act (act 1 of 1872). 
 This act began by repealing (with a few exceptions) 
 the whole of the law of evidence then in force iu 
 India, and proceeded to re-enact it in the form of 
 a code of 167 sections, which has been in operation 
 in India since September, 1872. I am informed that 
 it is generally understood, and has required little 
 judicial commentary or exposition. 
 
 In the autumn of 1872, Lord Coleridge (then attor- 
 ney-general) employed me to draw a similar code for 
 England. I did so in the course of the winter, and 
 we settled it in frequent consultations. It was ready 
 to be introduced early in the session of 1873. Lord 
 Coleridge made various attempts to bring it forward, 
 but he could not succeed till the very last day of the 
 session. He said a few words on the subject on the 
 5th August, 1873, just before Parliament wat pro- 
 rogued. The bill was thus never made pi blic, 
 though I believe it was ordered to be printed. 
 
 It was drawn on the model of the Indian evidence 
 act, and contained a complete system of law upon the 
 subject of evidence. 
 
STEPUtlN'S INTRODUCTION. 
 
 In the latter part of 1873 Lord Coleridge was 
 raised to his present position, and the bill has not 
 been proceeded with by his successors. 
 
 It is perhaps scarcely necessary to say that I ob- 
 tained Lord Coleridge's consent (which was most 
 heartily and readily given) before I published this 
 work. 
 
 The present work is founded upon this bill, though 
 it differs from it in various respects. Lord Cole- 
 ridge's bill proposed a variety of amendments of the 
 existing law. These are omitted in the present work, 
 which is intended to represent the existing law ex- 
 actly as it stands. The bill, of course, was in the 
 ordinary form of an act of Parliament. In the book 
 I have allowed myself more freedom of expression, 
 though I have spared no pains to make my state- 
 ments as precise and complete in substance as if they 
 were intended to be submitted to the Legislature. 
 
 The bill contained a certain number of illustra- 
 tions, and Lord Coleridge's personal opinion was in 
 their favor, though he had doubts as to the possi- 
 bility of making them acceptable to Parliament. 
 In the book I have much increased the number 
 of the illustrations, and I have, in nearly every 
 instance, taken cases actually decided by the courts 
 for the purpose. In a few instances I have in- 
 vented illustrations to suit my own purposes, but I 
 have done so only in cases in which the practice of 
 the courts is too well ascertained to be questioned. 
 I think that illustrations might be used with advan- 
 tage in acts of Parliament, though I am aware that 
 
STEPHEN'S mTROBXJGTION. 
 
 others take a different view; but, be this as it may, 
 their use in a treatise cannot be disputed, as they not 
 only bring into clear light the meaning of abstract 
 generalities, but are, in many cases, themselves the 
 authorities from whioh rules and principles must be 
 deduced. 
 
 These explanations show, amongst other things, 
 that I cannot honestly claim Lord Coleridge's author- 
 ity for more than a general approval of this work. 
 An act of Parliament which makes the law, and a 
 treatise which states it, differ widely, and my work 
 may, of course, be open to numerous objections, 
 which would have been easily answered if they had 
 been urged against Lord Coleridge's bill. 
 
 The novelty of the form and objects of the work 
 may justify some explanations respecting it. In 
 December, 1875, at the request of the council of legal 
 education, I undertook the duties of professor of com- 
 mon law, at the inns of court, and I chose the law 
 of evidence for the subject of my first course of lec- 
 tures. It appeared to me that the draft bill which I 
 had prepared for Lord Coleridge supplied the mate- 
 rials for such a statement of the law as would enable 
 students to obtain a precise and systfematic acquaint- 
 ance with it in a moderate space of time, and without 
 a degree of labor disproportionate to its importance 
 in relation to other branches of the law. No such 
 work, so far as I know, exists; for all the existing 
 books on the law of evidence are written on the usual 
 model of English law books, which, as a general rule, 
 aim at being collections more or less complete of all 
 
aTEPHEN's introduction: 
 
 the authorities upon a given subject, to which a judge 
 would listen in an argument in court. Such works 
 often become, sometimes under the hands of succes- 
 sive editors, the repositories of an extraordinary 
 amount of research, but they seem to me to have 
 the effect of making the attainment by direct study 
 of a real knowledge of the law, or of any branch of 
 it as a whole, almost impossible. The enormous mass 
 of detail and illustration which they contain, and the 
 habit into which their writers naturally fall, of intro- 
 ducing into them everything which has any sort of 
 connection, however remote, with the main subject, 
 make these books useless for purposes of study, 
 though they may increase their utility as works of 
 reference. The last edition of Mr. Taylor's work on 
 evidence contains 1,797 royal 8vo pages. To judge 
 from the table of cases, it must refer to about 9,000 
 judicial decisions, and it cites nearly 750 acts of Par- 
 liament. The last edition of " Roscoe's Digest of 
 the Law of Evidence on the trial of Actions at Nisi 
 Prius," contains 1,556 closely printed pages. The 
 table of cases cited consists of seventy-seven pages, 
 one of which contains the names of 152 cases, which 
 would give a total of 11,704 cases referred to. There 
 is, besides, a list of references to statutes which fills 
 twenty-one pages more. " Best's Principles of the 
 Law of Evidence," which disclaims the intention of 
 adding to the number of practical works on the sub- 
 ject, and is said to be intended to examine the prin- 
 ciples on which the rules of evidence are founded, 
 contains 908 pages, and refers to about 1,400 cases. 
 
STEPHEN'S INTBODUOTION. 
 
 When we remember tliat the law of evidence forms 
 only one branch of the law of procedure, and that 
 the substantive law which regulates rights and duties 
 ought to be treated independently of it, it becomes 
 obvious that if a lawyer is to have anything better 
 than a familiarity with indexes, he must gain his 
 knowledge in some other way than from existing 
 books on the subject. No doubt such knowledge is 
 to be gained. Experience gives by degrees, in favor- 
 able cases, comprehensive acquaintance with the prin- 
 ciples of the law with which a practitioner is conver- 
 sant. He gets to see that it is shorter and simpler 
 than it looks, and to understand that the innumer- 
 able cases which at first sight appear to constitute 
 the law, are really no more than illustrations of a 
 comparatively small number of principles; but those 
 who have gained knowledge of this kind have usu- 
 ally no opportunity to impart it to others. More- 
 over, they acquire it very slowly, and with needless 
 labor themselves, and though knowledge so acquired 
 is often specially vivid and well remembered, it is 
 often fragmentary, and the possession of it not unfre- 
 quently renders those who have it skeptical as to the 
 possibility, and even as to the expediency, of produc- 
 ing anything more systematic and complete. 
 
 Circumstances already mentioned have led me to 
 put into a systematic form such knowledge of the 
 subject as I had acquired, and my connection with 
 the scheme of education established by the inns of 
 court seems to impose upon me the duty of doing 
 
 what I can to assist in their studies those who attend 
 ii 
 
STEPHEN'S INTRODUCTION. 
 
 my lectures. This -work is the result. The labor 
 bestowed upon it has, I may say, been in an inverse 
 ratio to its size. 
 
 My object in it has been to separate the subject of 
 evidence from other branches of the law with which 
 it has commonly been mixed up; to reduce it into a . 
 compact systematic form, distributed according to the 
 natural division of the subject matter; and to com- 
 press into precise definite rules, illustrated, when 
 necessary, by examples, such cases and statutes as 
 properly relate to the subject matter so limited and 
 arranged. I have attempted, in short, to make a 
 digest of the law, which, if it were thought desirable, 
 might be used in the preparation of a code, and which, 
 at all events, will, I hope, be useful, not only to pro- 
 fessional students, but to every one who takes an 
 intelligent interest in a part of the law of his country 
 bearing directly on every kind of investigation into 
 questions of fact, as well as on every branch of liti- 
 gation. 
 
 The law of evidence is composed of two elements, 
 namely: first, an enormous number of cases, almost 
 all of which have been decided in the course of the 
 last 100 or 150 years, and which have already been 
 collected and classified in various ways by a succes- 
 sion of text writers, the most recent of whom I have 
 already named; secondly, a comparatively small num- 
 ber of acts of Parliament which have been passed in 
 the course of the last thirty or forty years, and have 
 effected a highly beneficial revolution in the law as it 
 was when it attracted the denunciations of Bentham. 
 
BTBPHEN'S INTRODUCTION. 
 
 Writers on the law of evidence usually refer to 
 statutes by the hundred, but the acts of parliament 
 which I'eally relate to the subject are but few. A 
 detailed account of this matter will be found at the 
 end of the volume, in note xlix. 
 
 The arrangement of the book is the same as that of 
 the Indian evidence act, and is based upon the dis- 
 tinction between relevancy and proof, that is, between 
 the question. What facts may be proved ? and the 
 question. How must a fact be proved assuming that 
 proof of it may be given ? The neglect of this dis- 
 tinction, which is concealed by the ambiguity of the 
 word evidence (a word which sometimes means testi- 
 mony and at other times relevancy), has thrown the 
 whole subject into confusion, and has made what was 
 really plain enough appear almost incomprehensible. 
 
 In my " Introduction to the Indian evidence act," 
 published in 1872, and in speeches made in the Indian 
 legislative council, I entered fully upon this matter, 
 and I need not return to it here. I may, however, 
 give a short outline of the contents of this work, in 
 order to show the nature of the solution of the prob- 
 lem stated above at which I have arrived. 
 
 All law may be divided into substantive law, by 
 which rights, duties, and liabilities are defined, and 
 the law of procedure, by which the substantive law is 
 applied to particular cases. 
 
 The law of evidence is that part of the law of pro- 
 cedure which, with a view to ascertain individual 
 rights and liabilities in particular cases, decides: 
 
STEPHEN'S INTRODUCTION. 
 
 I. What facts may, and what may not, be proved 
 in such cases; 
 
 II. What sort of evidence must be given of a fact 
 which may be proved; 
 
 m. By whom and in what manner the evidence 
 must be produced by which any fact is to be proved. 
 
 I. The facts which may be proved are facts in issue, 
 or facts relevant to the issue. 
 
 Facts in issue are those facts upon the existence of 
 which the right or liability to be ascertained in the 
 proceeding depends. 
 
 Facts relevant to the issue are facts from the exis- 
 tence of which inferences as to the existence of the 
 facts in issue may be drawn. 
 
 A fact is relevant to another fact when the exis- 
 tence of the one can be shown to be the cause or one 
 of the causes, or the effect or one of the effects, of the 
 existence of the other, or when the existence of the 
 one, either alone or together with other facts, renders 
 the existence of the other highly probable, or improb- 
 able, according to the common course of events. 
 
 Four classes of facts, which in common life would 
 usually be regarded as falling within this definition 
 of relevancy, are excluded from it by the law of evi- 
 dence except in certain cases: 
 
 1. Facts similar to, but not specifically connected 
 with, each other. (B,es inter alios actce.) 
 
 2. The fact that a person not called as a witness 
 has asserted the existence of any fact. {Searsay.) 
 
 3. The fact that any person is of opinion that a fact 
 exists. ( Opinion.) 
 
STBPnEN'S INTRODUCTION. 
 
 4. The fact that a person's character is such as to 
 render conduct imputed to him probable or improb- 
 able. {Character.) 
 
 To each of these four exclusive rules there are, 
 however, important exceptions, which are defined by 
 the law of evidence. 
 
 II. As to the manner in which a fact in issue or 
 relevant fact must be proved. 
 
 Some facts need not be proved at all, because the 
 court will take judicial notice of them, if they are 
 relevant to the issue. 
 
 Every fact which requires proof must be proved 
 either by oral or by documentary evidence. 
 
 Every fact, except (speaking generally) the con- 
 tents of a document, must be proved by oral evidence. 
 Oral evidence must in every case be direct, that is to 
 say, it must consist of an assertion by the person who 
 gives it that he directly perceived the fact to the 
 existence of which he testifies. 
 
 Documentary evidence is either primary or second- 
 ary. Primary evidence is the document itself produced 
 in court for inspection. 
 
 Secondary evidence varies according to the nature 
 of the document. In the case of private documents a 
 copy of the document, or an oral account of its con- 
 tents, is secondary evidence. In the case of some 
 public documents, examined or certified copies, or 
 exemplifications, must or may be produced in the 
 absence of the documents themselves. 
 
 Whenever any public or private transaction has 
 been reduced to a documentary form, the document 
 
STEPHEN'S INTBODUOTION. 
 
 in which it is recorded becomes exclusive evidence of 
 that transaction, and its contents cannot, except in 
 certain cases expressly defined, be varied by oral evi- 
 dence, though secondary evidence may be given of 
 the contents of the document. 
 
 III. As to the person by whom, and the manner in 
 which the proof of a particular fact must be made. 
 
 When a fact is to be proved, evidence must be 
 given of it by the person upon whom, the burden of 
 proving it is imposed, either by the nature of the 
 issue or by any legal presumption, unless the fact is 
 one which the party is estopped from proving by his 
 own representations, or by his conduct, or by his 
 relation to the opposite party. 
 
 The witnesses by whom a fact is to be proved must 
 be competent. With very few exceptions, every one 
 is now a competent witness in all cases. Competent 
 witnesses, however, are not in all cases compelled 
 or even permitted to testify. 
 
 The evidence must be given upon oath, or in cer- 
 tain excepted cases without oath. The witnesses 
 must be first examined in chief, then cross-examine,d, 
 and then re-examined. Their credit may be tested in 
 certain ways, and the answers which they give to 
 questions affecting their credit may be contradicted 
 in certain oases and not in others. 
 
 This brief statement will show what I regard as 
 constituting the law of evidence properly so called. 
 My view of it excludes many things which are often 
 regarded as forming part of it. The principal sub- 
 jects thus omitted are as follows: 
 
STEPHEN'S INTBODUGTION. 
 
 I regard the question, " What may be proved under 
 particular issues ? " (which many writers treat as part 
 of the law of evidence) as belonging partly to the 
 subject of pleading, and partly to each of the different 
 branches into which the substantive law may be 
 divided. 
 
 A is indicted for murder and pleads not guilty. 
 This plea puts in issue, among other things, the 
 presence of any state of mind describable as malice 
 aforethought, and all matters of justification or ex- 
 tenuation. 
 
 Starkie and Roscoe treat these subjects at full 
 length, as supplying answers to the question, " What 
 can be proved under an issue of not guilty on an 
 indictment for murder ? " Mr. Taylor does not go so 
 far as this; but a great part of his book is based upon 
 a similar principle of classification. Thus Chapters 
 I and II of Part II are rather a treatise on pleading 
 than a treatise on evidence. 
 
 Again, I have dealt very shortly with the whole 
 subject of presumptions. My reason is that they 
 also appear to me to belong to different branches of 
 the substantive law, and to be unintelligible, except 
 in connection with them. Take for instance the pre- 
 sumption that every one knows the law. The real 
 meaning of this is that, speaking generally, ignorance 
 of the law is not taken as an excuse for breaking it. 
 This rule cannot be properly appreciated if it is 
 treated as a part of the law of evidence. It belongs 
 to the criminal law. In the same way numerous 
 presumptions as to rights of property (in particular 
 
STEPHEN'S INTRODUCTION. 
 
 easements and incorporeal hereditaments) belong not 
 to the law of evidence but to the law of real property. 
 The only presumptions which, in my opinion, ought 
 to find a place in the law of evidence, are those which 
 relate to facts merely as facts, and apart from the 
 particular rights which they constitute. Thus the 
 rule that a man not heard of for seven years is pre- 
 sumed to be dead, might be equally applicable to a 
 dispute as to the validity of a marriage, an action of 
 ejectment by a reversioner against a tenant ^wr auter 
 vie, the admissibility of a declaration against interest, 
 and many other subjects. After careful considera- 
 tion, I have put a few presumptions of this kind into 
 a chapter on the subject, and have passed over the 
 rest as belonging to different branches of the sub- 
 stantive law. 
 
 Practice, again, appears to me to differ in kind 
 from the law of evidence. The rules which point 
 out the manner in which the attendance of witnesses 
 is to be procured, evidence is to be taken on commis- 
 sion, depositions are to be authenticated and for- 
 warded to the proper officers, interrogatories are to 
 be administered, etc., have little to do with the gen- 
 eral principles which regulate the relevancy and proof 
 of matters of fact. Their proper place would be 
 found in codes of civil and criminal procedure. 
 
 A similar remark applies to a great mass of pro- 
 visions as to the proof of certain particulars. Under 
 the head of " Public Documents," Mr. Taylor gives 
 amongst other things a list of all, or most, of the 
 
STEPHEN'S INTBODUCTION. 
 
 statutory provisions which render certificates or cer- 
 tified copies admissible in particular cases. 
 
 To take an illustration at random, section 1458 
 begins thus : " The registration of medical prac- 
 titioners under the medical act of 1858, may be 
 proved by a copy of the ' Medical Register,' for the 
 time being, purporting," etc. I do not wish for a 
 moment to undervalue the practical utility of such 
 information, or the industry displayed in collecting 
 it ; but such a provision as this appears to me to 
 belong not to the law of evidence, but to the law 
 relating to medical men. It is matter rather for an 
 index or schedule than for a legal treatise, intended 
 to be studied, understood, and borne in m.ind in 
 practice. 
 
 On several other points the distinction between the 
 law of evidence and other branches of the law is 
 more difficult to trace. For instance, the law of 
 estoppel, and the law relating to the interpretation of 
 written instrum.ents, both run into the law of evi- 
 dence. I have tried to draw the line by dealing in 
 the case of estoppels with estoppels in pais only, to 
 the exclusion of estoppels by deed and by matter of 
 record, which must be pleaded as such; and in regard 
 to the law of written instruments by stating those 
 rules only which seemed to me to bear directly on the 
 question whether a document can be supplemented or 
 explained by oral evidence. 
 
 The result is no doubt to make the statement of 
 the law much shorter than is usual. I hope, however, 
 that competent judges will find that, as far as it goes. 
 
STEPHEN'S INTRODUCTION. 
 
 the statement is both full and correct. As to brevity, 
 I may say, in the words of Lord Mansfield: "The 
 law does not consist of particular cases, but of gen- 
 eral principles which are illustrated and explained by 
 those cases."* 
 
 Every one will express somewhat differently the 
 principles which he draws from a number of illustra- 
 tions, and this is one source of that quality of our 
 law which those who dislike it describe as vagueness 
 and uncertainty, and those who like it as elasticity. 
 I dislike the quality in question, and I used to think 
 that it would be an improvement if the law were 
 once for all enacted in a distinct form by the Legis- 
 lature, and were definitely altered from time to time 
 as occasion required. For many years I did my 
 utmost to get others to take the same view of the 
 subject, but I am now convinced by experience that 
 the unwillingness of the Legislature to undertake 
 such an operation proceeds from a want of confidence 
 in its power to deal with such subjects, which is 
 neither unnatural nor unfounded. It would be as 
 impossible to get in Parliament a really satisfactory 
 discussion of a bill codifying the law of evidence as 
 to get a committee of the House to paint a picture. 
 It would, I am equally well satisfied, be quite as dif- 
 ficult at present to get Parliament to delegate its 
 powers to persons capable of exercising them prop- 
 erly. In the meanwhile the courts can decide only 
 upon cases as they actually occur, and generations 
 
 'J?. V. Bembridrje, 3 Doug., 332 
 
STEPHEN'S INTRODUCTION. 
 
 may pass befoi-e a doubt is set at rest by a judicial 
 decision expressly in point. Hence, if anything con- 
 siderable is to be done towards the reduction of the 
 law to a system, it must, at present at least, be done 
 by private writers. 
 
 Legislation proper is under favorable conditions 
 the best way of making the law, but if that is not to 
 be had, indirect legislation, the influence on the law 
 of judges and legal writers who deduce, from a mass 
 of precedents, such principles and rules as appear to 
 them to be suggested by the great bulk of the author- 
 ities, and to be in themselves rational and convenient, 
 is very much better than none at all. It has, indeed, 
 special advantages, which this is not the place to 
 insist upon. I do not think the law can be in a less 
 creditable condition than that of an enormous mass 
 of isolated decisions, and statutes assuming unstated 
 principles; cases and statutes alike being accessible 
 only by elaborate indexes. I insist upon this because 
 I am well aware of the prejudice which exists against 
 all attempts to state the law simply, and of the rooted 
 belief which exists in the minds of many lawyers that 
 all general propositions of law must be misleading, 
 and delusive, and that law books are useless except 
 as indexes. An ancient maxim says, " Omnis definitio 
 injure periculosa." Lord Coke wrote, "It is ever 
 good to rely upon the books at large; for many times 
 compendia sunt dispendia, and Melius est petere fontes 
 quam seotari rivulos." Mr. Smith chose this expres- 
 sion as the motto of his " Leading Cases," and the 
 sentiment which it embodies has exercised immense 
 
STSPHMN'S INTRODUCTION. 
 
 influence over oui- law. It has not perhaps been suf- 
 ficiently observed that when Coke wrote, the " books 
 at large," namely, the " Year Books " and a very few 
 more modern reports, contained probably about as 
 much matter as two, or at most three, years of the 
 reports published by the Council of Law Reporting; 
 and the compendia (such books, say, as Fitzherbert's 
 "Abridgment ") were merely abridgments of the cases 
 in the " Year Books " classified in the roughest possible 
 manner, and much inferior both in extent and arrange- 
 ment to such a book as Fisher's " Digest." * 
 
 In our own days it appears to me that the true 
 fontes are not to be found in reported cases, but in 
 the rules and principles which such cases imply, and 
 that the cases themselves are the rivuli, the following 
 of which is a dispendium. My attempt in this work 
 has been emphatically petere fontes, to reduce an 
 important branch of the law to the form of a con- 
 nected system of intelligible rules and principles. 
 
 Should the undertaking be favorably received by 
 the profession and the public, I hope to apply the 
 same process to some other branches of the law; for 
 the more I study and practice it, the more firmly am 
 I convinced of the excellence of its substance and the 
 defects of its form. Our earlier writers, from Coke 
 
 * Since the beginning of 1865 the Council has published 
 eighty-six volumes of Reports. The Tear Books from 1307- 
 1535, 338 years, would fill not more than twenty-five such 
 volumes. There are also ten volumes of the Statutes since 
 1865 (May, 1876). There -are now (Feb., 1877) at least ninety- 
 three volumes of Reports and eleven volumes of Statutes. 
 
STEPHEN'S INTBOBUOTION. 
 
 to Blackstone, fell into the error of asserting the 
 excellence of its substance in a fulsome and exagger- 
 ated strain, -whilst they showed a total insensibility 
 to defects, both of substance and form, -which in their 
 time -were grievous and glaring. Bentham seems to 
 me in many points to have fallen into the converse 
 error. He -was too keen and bitter a critic to recog- 
 nize the substantial merits of the system -which he 
 attacked; and it is obvious to me that he had not that 
 mastery of the law itself -which is unattainable by 
 mere theoretical study, even if the student is, as Ben- 
 tham certainly -was, a man of talent, approaching 
 closely to genius. 
 
 During the last twenty-five years Bentham's influ- 
 ence has to some extent declined, partly because some 
 of his books are like exploded shells, buried under 
 the ruins -which they have made, and partly because 
 under the influence of some of the ablest and most 
 distinguished of living authors, great attention has 
 been directed to legal history, and in particular to 
 the study of Roman la-w. It -would be difficult to 
 exaggerate the value of these studies, but their nature 
 and use is liable to be misunderstood. The history 
 of the Roman law no doubt throws great light on 
 the history of our own law; and the comparison of 
 the two great bodies of law, under one or the other of 
 which the laws of the civilized world may be classi- 
 fied, cannot fail to be in every way most instructive; 
 but the history of by-gone institutions is valuable 
 mainly because it enables us to understand, and so to 
 improve existing institutions. It would be a com- 
 
STEPHEN'S INTRODUCTION. 
 
 plete mistake to suppose either that the Roman Law- 
 is in substance wiser than our own, or that in point 
 of arrangement and method the Institutes and the 
 Digest are anything but warnings. The pseudo- 
 philosophy of the Institutes, and the confusion of the 
 Digest, are, to my mind, infinitely more objectionable 
 than the absence of arrangement and of all general 
 theories, good or bad, which distinguish the law of 
 England. 
 
 However this may be, I trust the present work will 
 show that the law of England on the subject to which 
 it refers is full of sagacity and practical experience, 
 and is capable of being thrown into a form at once 
 plain, short, and systematic. 
 
 I wish, in conclusion, to direct attention to the 
 manner in which I have dealt with such parts of the 
 statute law as are embodied in this work. I have 
 given, not the very words of the enactments referred 
 to, but what I understand to be their effect, though 
 in doing so I have deviated as little as possible from 
 the actual words employed. I have done this in 
 order to make it easier to study the subject as a 
 whole. Every act of Parliament which relates to the 
 law of evidence assumes the existence of the unwrit- 
 ten law. It cannot, therefore, be fully understood, 
 nor can its relation to other parts of the law be appre- 
 ciated till the unwritten law has been written down 
 BO that the provisions of particular statutes may take 
 their places as parts of it. When this is done, the 
 statute law itself admits of, and even requires, very 
 great abridgment. In many cases the result of a 
 
STBPHEN'S INTRODUCTION. 
 
 number of separate enactments may be stated in a 
 line or two. For instance, the old common law as 
 to the incompetency of certain classes of witnesses 
 was removed by parts of six different acts of Parlia- 
 ment — the net result of which is given in five short 
 articles (106-110). 
 
 So, too, the doctrine of incompetency for peculiar 
 or defective religious belief has been removed by 
 many different enactments the effect of which is 
 shown in one article (123). 
 
 The various enactments relating to documentary 
 evidence (see Chapter X) appear to me to become easy 
 to follow and to appreciate when they are put in 
 their proper places in a general scheme of the law, 
 and arranged according to their subject matter. By 
 rejecting every part of an act of Parliament except 
 the actual operative words which constitute its addi- 
 tion to the law, and by setting it (so to speak) in a 
 definite statement of the unwritten law of which it 
 assumes the existence, it is possible to combine brev- 
 ity with substantial accuracy and fullness of state- 
 ment to an extent which would surprise those who 
 are acquainted with acts of Parliament only as they 
 stand in the Statute Book.* At the same time I 
 should warn any one who may use this book for the 
 purposes of actual practice in or out of court, that he 
 would do well to refer to the very words of the 
 statutes embodied in it. It is very possible that, in 
 
 * Twenty articles of this work represent all that is material 
 in the ten acts of Parliament, containing sixty-six sections, 
 which have been passed on the subject to which it refers. 
 For the detailed proof of this, see note xlviii. 
 
STEPHEN'S INTRODUOTION. 
 
 stating their effect instead of their actual words, I 
 may have given in some particulars a mistaken view 
 of their meaning. 
 
 Such are the means by which I have endeavored to 
 make a statement of the law of evidence which will 
 enable not only students of law, but I hope any intel- 
 ligent person who cares enough about the subject to 
 study attentively what I have written, to obtain from 
 it a knowledge of that subject at once comprehensive 
 and exact — a knowledge which would enable him to 
 follow in an intelligent manner the proceedings of 
 courts of justice, and which would enable him to 
 study cases and use text-books of the common kind 
 with readiness and ease. I do not say more than this. 
 I have not attempted to follow the matter out into its 
 minute ramifications, and I have avoided reference to 
 what after all are little more than matters of curi- 
 osity. I think, however, that any one who makes 
 himself thoroughly acquainted with the contents of 
 this book, will know fully and accurately all the lead- 
 ing principles and rules of evidence which occur in 
 actual practice. 
 
 If I am entitled to generalize at all from my own 
 
 experience, I think that even those who are already 
 
 well acquainted with the subject will find that they 
 
 understand the relations of its different parts, and 
 
 therefore the parts themselves more completely than 
 
 they otherwise would, by being enabled to take them 
 
 in at one view, and to consider them in their relation 
 
 to each other. J P S 
 
 4 Paper Bdildings, Ixmsvb, 
 May, 1876. 
 
Sir James Fitzjames Stephen's Preface 
 TO His Third Edition. 
 
 The first edition of this work sold so quickly that 
 it was necessary to publish a second edition before it 
 was possible to make any substantial alterations in 
 the first, and indeed before I had had time to study 
 and consider the criticisms made upon it. 
 
 The second edition has been disposed of as quickly 
 as the first, and it has been exceedingly difiicult in 
 the midst of many other engagements to give as 
 much attention to the revision and correction of the 
 book as I could have wished. I have, however, done 
 my best. 
 
 I have very carefully considered the different criti- 
 cisms which have been made upon my book. The 
 most important of these were contained in an article 
 in the Fortnightly Review for September, by Mr. 
 Frederick Pollock, and in a careful and elaborate 
 series of articles entitled "An English Evidence 
 Code," published in the Solicitor's Journal in Sep- 
 tember and October. I wish to acknowledge my 
 obligations to each of these critics. They have 
 detected and enabled me to correct a considerable 
 
 number of blemishes; and I am surprised and grati- 
 iii 
 
STEPHEN'S PREFACE. 
 
 fied to find that they do not allege that they have 
 discovered any serious error or unintentional omission. 
 I have adopted some, though not all, of their sugges- 
 tions. I may mention the most important. 
 
 The blemishes detected by them are, I think, 
 reducible to one principle. They are all cases in 
 Vi'hich I failed to draw as precisely as I should have 
 drawn it the line between the theory on which the 
 rules of evidence depend and the rules of evidence 
 themselves. It is more difficult to do so than might 
 be imagined by a person who had not had to go 
 through the process of first deducing the theory from 
 the rules, and then adjusting the rules to the theory. 
 In performing this double operation it is hardly 
 possible not to attribute to particular matters a degree 
 of importance and prominence proportioned rather to 
 the impression which they made on one's own mind 
 when they first occurred to it than to the impression 
 which they are likely to make on other minds in 
 studying the subject. The criticisms I have men- 
 tioned have enabled me to perceive, and I hope to 
 remedy, some of the defects due to this cause. In 
 particular I have omitted some of the definitions 
 inserted in the first edition, and modified others; 
 and I have introduced several changes in the way of 
 treating the subject of relevancy which I think bring 
 out not only my meaning, but the actual character 
 and construction of the law more clearly than before. 
 The chief object of these alterations has been to mark 
 as clearly as possible the distinction between the 
 theory of relevancy, which is really a branch of logic. 
 
TO HIS THIRD EDITION. 
 
 and the particular rules founded upon it which form 
 the law of evidence. This is effected by two altera- 
 tions. First, by changing the position of the definition 
 of relevancy, and dividing the part of it which is 
 required for practical purposes from the part which 
 expresses the logical theory on which the practice 
 proceeds. Secondly, by changing throughout the 
 whole of Part I the phrase "is relevant," or " is not 
 relevant," into "is deemed to be relevant," or " to be 
 irrelevant." the object of this change is to mark a 
 distinction best explained by illustrations. Both 
 evidence of an aiibi and evidence of the good charac- 
 ter of a prisoner would be admitted on a trial, say for 
 murder; whereas a dying declaration of some deceased 
 person, that he and not the prisoner had committed 
 the murder, would be rejected. On examining the 
 articles contained in Part I it will be found that 
 evidence of an alibi would be admissible only under 
 Articles 1 and 2, which provide in general terms that 
 facts relevant to the issue may be proved, and define 
 relevant facts as including, among others, facts show- 
 ing that a given fact could not have happened. The 
 alihi therefore may be proved, because it actually is 
 relevant to the fact in issue, i. e., the alleged murder. 
 The previous good character (which in strictness 
 means reputation) of the accused can hardly be said 
 to be actually relevant to his guilt. The possession 
 of a good reputation does not in the common course 
 of events prove that a man cannot have committed a 
 crime, or that it is in any appreciable degree improb- 
 able that he did so. Still the prisoner is allowed, if 
 
STEPHEN'S PREFACE 
 
 ke likes, to prove the fact for what it is worth. In 
 other words, the fact that a man has a good character 
 is treated by the law as a matter which either has or 
 may have something to do with the question of guilt 
 or innocence. In other words, it is deemed to he 
 relevant, though it may not actually be relevant. On 
 the other hand, a dying confession of murder made 
 by a third person is deemed to be irrelevant, though 
 it is actually relevant. Such a confession can hardly 
 be false except under extraordinary circumstances. 
 It can hardly be caused by anything except a con- 
 sciousness of guilt, and it is impossible to doubt that 
 any one who was guided by common sense alone 
 would wish to know the fact that it had been made 
 when he had to determine upon the guilt of another. 
 Rightly or wrongly, however, evidence of such a 
 confession is by our law excluded. The fact that it 
 was made is kept from the judge and jury. It is 
 thus treated as being or is deemed to be irrelevant.* 
 
 It has been suggested with great plausibility that 
 the simplest way of stating the law of evidence 
 would be to omit all reference to the relevancy of 
 
 *As a curious and instructive instance of the way in wbicli 
 mles of evidence vary in their effect, I may mention tlie fol- 
 lowing circumstance: A Punjab district offlcer.lately told me 
 that it had come to be commonly known in the Peshawur 
 division that a dying declaration as to the clause of the declar- 
 ant's death is admitted in proof of the matter stated. The 
 tfEect of this was, that whenever a man was inortally 
 wounded, and found himself dying .(a very common incident 
 in that part of the world), he took the opportunity of making 
 a dying declaration calculated to pay off as many old scores 
 
TO HIS THIRD EDITION. 
 
 facts, and to lay down a series of rules as to the 
 classes of facts of which proof is or is not admissible. 
 Such a way of treating the subject might perhaps be 
 more convenient in an act of Parliament than the 
 arrangement which I have adopted; but I do not 
 think it would state the matter with equal point and 
 vigor, nor do I think it would represent the actual 
 state of the law with equal accuracy. 
 
 My study of the subject, both practically and in 
 books, has convinced me that the doctrine that all 
 facts in issue and relevant to the issue, and no others, 
 may be proved, is the unexpressed principle which 
 forms the center of and gives unity to all the express 
 negative rules which form the great mass of the law. 
 To me these rules always appeared to form a hope- 
 less mass of confusion, which might be remembered 
 by a great effort, but could not be understood as a 
 whole, or reduced to system, until I had meditated 
 for months upon the question. What is this evidence 
 which you tell me hearsay is not ? The expression 
 " hearsay is not evidence " seemed to assume that I 
 knew by the light of nature what evidence was, but 
 I perceived at last that that was just what I did not 
 know. I found that I was in the position of a person 
 
 of vengeance as possible. The supposed ground of the Eng- 
 lish rule is, that the solemn thoughts connected with ap- 
 proaching death are equivalent to the sanction of an oath. 
 This is very far indeed from being the way in which a dying 
 Punjabee looks at the subject. His reflection on such an 
 occasion is, "This is my last chance of doing so-and-so, my 
 old family enemy, a bad turn, and I will on no account 
 miss it." 
 
STEPHEN'S PREFACE 
 
 who, having never seen a cat, is instructed about them 
 in this fashion: " Lions are not cats in our sense of 
 the word, nor are tigers nor leopards, though you 
 might be inclined to think they were." Show me a 
 cat to begin with, and I at once understand both 
 what is meant by saying that a lion is not a cat, and 
 why it is possible to call him one. Tell me what evi- 
 dence is, and I shall be able to understand why you 
 say that this and that class of facts are not evidence. 
 
 The question " What is evidence ? " constantly 
 asked, gradually disclosed the ambiguity of the word. 
 To describe a matter of fact as " evidence " in the 
 sense of testimony is obviously nonsense. No one 
 wants to be told that hearsay, whatever else it is, is 
 not testimony. What then does the word mean ? 
 The only possible answer is: It means that the one 
 fact either is or else is not considered by the person 
 using the expression to furnish a premise or part of a 
 premise from which the existence of the other is a 
 necessary or probable inference — in other words, that 
 the one fact is or is not relevant to the other. When 
 the inquiry is pushed further, and the nature of rele- 
 vancy has to be considered in itself, and apart from 
 legal rules about it, we are led to inductive logic, 
 which shows that judicial evidence is only one case 
 of the general problem of science — namely, inferring 
 the unknown from the known. As far as the logical 
 theory of the matter is concerned, this is an ultimate 
 answer. 
 
 If now we turn from the logical to the legal theory, 
 the case is altered. The logical theory was cleared 
 
TO HIS THIRD EDITION. 
 
 up by Mr. Mill. Bentham and some other* writers 
 had more or less discussed the connection of logic 
 with the rules of evidence. But I am not aware 
 that it occurred to any one before I published my 
 " Introduction to the Indian evidence act " to point 
 out in detail the very close resemblance which exists 
 between Mr. Mill's theory and the existing state of 
 the law. 
 
 The law, as distinguished from the theory of judi- 
 cial evidence, is the work of many generations of 
 judges, who have by degrees worked it out with a 
 more or less indistinct and partial perception of the 
 theory on which it ought to be founded. 
 
 Patient study of the subject seemed to me to show 
 that, making allowance for some defects and some 
 excesses, the cases thus decided collectively occupied 
 very nearly the same area as would be occupied by 
 the logical application of the simple principle just 
 stated — that facts in issue and facts relevant to that 
 issue may be proved, and no others. 
 
 These cases might be compared to the astronomical 
 observations which showed what in fact had been the 
 positions of the planets for a long series of years; the 
 theory (the ludicrous disproportion of the comparison 
 affords the only excuse for making it) to the discov- 
 ery that these positions may be shortly described by 
 
 *See, 6. g., that able and interesting book " An Essay on 
 Circumstantial Evidence," by the late Mr. Wills, father of 
 Mr. Alfred Wills, Q. 0. Chief Baron Gilbert's work on the 
 law of evidence is founded on Locke's "Essay," as much as 
 my work is founded on Mill's "Logic." 
 
STEPHEN'S PMEFAOE 
 
 saying that the planets move round the sun in ellipses, 
 overstepping the line at some points and receding 
 from it at others. Facts actually relevant correspond 
 to the points on the elliptical part of the orbit; facts 
 deemed to be relevant, though they are not, to the 
 points outside the ellipse but touched by the orbit; 
 facts deemed to be irrelevant, though really relevant, 
 correspond to the points upon the ellipse from which 
 the orbit recedes; but the statement that the orbit is 
 (exceptions excepted) elliptical gives unity and co- 
 herency to the whole subject. 
 
 I have made one or two additions to the contents of 
 my first edition. The effect of the bankers' books 
 evidence act, 1876 (39 and 40 Vict., c. 48), is given in 
 Articles 36, 37, 38, Vl (/) and 118. This is the only 
 statute passed in the last session which affects the 
 law of evidence. I have also added references to a 
 few cases, some of which I had overlooked in my first 
 edition, and others of which have been decided since 
 it was published. 
 
 In the first edition I omitted all reference to affi- 
 davits, because I did not see clearly how to deal with 
 them. This omission has been pointed out by several 
 critics. Upon further consideration, I have added to 
 the title of Chapter XVI (" Of the Examination of 
 Witnesses ") the words " Of Taking Evidence,'' and 
 I have inserted articles relating to taking evidence by 
 affidavit and under commissions. I have also removed 
 to a separate chapter the articles relating to deposi- 
 tions, which in the first edition came in rather awk- 
 
TO EIS THIRD EDITION. 
 
 wardly under the head of hearsay evidence, though 
 not, I think, incorrectly. 
 
 With respect to the arrangement of certain parts 
 of the book, it has been suggested that the articles in 
 Chapter I are arranged at random and on no principle. 
 They are, in fact, arranged on the principle of taking 
 the facts actually in issue as a starting-point, and 
 referring to other classes of facts in the order of their 
 proximity to the facts in issue. The nearest are 
 those which form part of the same transaction. Acts 
 done by conspirators in execution of their common 
 purpose are not indeed part of the conspiracy or 
 agreement, which is supposed to be actually in issue, 
 but in all common cases are the facts from which the 
 conspiracy has to be inferred. They thus stand in a 
 very close relation to the actual facts in issue. The 
 same is true of the facts admitted in the proof of a 
 title or a custom. The fact that A conveyed to B 
 the land which was conveyed by B to C, or that on 
 a particular occasion the custom of Borough English 
 was observed in a particular manor, are not directly 
 in issue when C's title or the existence of the custom 
 of Borough English are* in question; but they are 
 
 * In strictness, title and custom are rather inferences from 
 facts than facts; but it is convenient, and is in accordance 
 with common usage, to speak of them as facts. I have been 
 led to modify the definition of ' ' fact " by an acute remark 
 made on this subject in the " Solicitors' Journal." The real 
 object of the definition was to show that I used the word/ac< 
 so as to include states of mind. It is very common to say, 
 " This is not mere opinion, this is a matter of fact;" or " This 
 is not a fact, it is only a statement." That A holds a particu- 
 
xl STEPHEW'B PREFACE 
 
 parts of a complex whole, which is denoted by each 
 of the words custom and title. Motive, preparation, 
 subsequent conduct lead up to or away from the facts 
 in issue, when such facts are parts of human conduct. 
 Explanatory and introductory facts stand a step 
 farther off. 
 
 This explanation I see is required, because its 
 absence has puzzled an acute critic. 
 
 One other point of the same kind I may mention. 
 Why, it is asked, put judicial notice under the gen- 
 eral head of proof ? Is not this a strange heading: 
 " Part II. Of Proof.— Chapter I. — Facts which need 
 not be Proved ? " There is an apparent verbal oppo- 
 sition, no doubt, which I have removed by a change 
 in the title of the chapter, but the opposition is only 
 apparent and verbal. I believe the arrangement to 
 be logically correct, and I have accordingly main- 
 tained it. By proof I mean the means used of 
 making the court aware of the existence of a given 
 fact, and surely the simplest possible way of doing 
 so is to remind the court that it knows it already. It 
 is like proving that it is raining by telling the judge 
 to look out of the window. It has been said that 
 judicial notice should come under the head of Burden 
 of Proof, but surely this is not so. The rules as to 
 burden of proof show which side ought to call upon 
 the court to take judicial notice of a particular fact, 
 but the act of taking judicial notice, of consciously 
 recalling to the mind a fact known, but not for the 
 
 lar opinion or says certain words is just as muoli a fact as tliat 
 he strikes a blow. 
 
TO HIS THIRD EDITION. xli 
 
 moment adverted to, is an act of precisely the same 
 kind as listening to the evidence of a witness or read- 
 ing a document — that is, it belongs to the general 
 head of Proof. 
 
 The only other alteration connected -with the 
 arrangement of the book which I need notice relates 
 to the arrangement of the chapter on Hearsay. It is 
 said to be contrary to the common use of language to 
 treat the rules as to the admissibility of judgments 
 and depositions as exceptions from the rule excluding 
 hearsay. No doubt there is some weight in this 
 remark, especially as regards depositions. It does 
 sound odd to say that the statements in a judgment 
 or decree are hearsay, but the fault lies with the word 
 hearsay, which is so well established that its exist- 
 ence cannot practically be overlooked in any state- 
 ment of. the law as it is. Define the exclusive rule a 
 little more widely and the propriety of treating the 
 admissibility of judgments as exceptions from it be- 
 comes apparent. The rule I think ought to be 
 framed in two branches — one excluding hearsay in 
 the popular sense of the word, the other excluding 
 matter recorded in documents for public information 
 or otherwise. A little thought will show that the 
 contents of the Times newspaper, or of a parlia- 
 mentary blue-book, or of the report of a royal com- 
 mission are excluded on the same principle as state- 
 ments made in conversation by a private person. 
 The object is perhaps hardly so much to prevent 
 inaccuracy as to compel the production before the 
 court of the evidence on which their conclusion must 
 
xlii STEPHEN'S PREFACE 
 
 ultimately be iDased. The rule wliich admits the con- 
 tents of a judgment is as much an exception to one 
 branch of the rule as the rule which admits a dying 
 declaration is an exception to the other. In the pres- 
 ent edition I have accordingly remodeled the exclu- 
 sive rule, so as to include both branches. I have also 
 divided the chapter into two sections, containing 
 respectively the exceptions to the first and the excep- 
 tions to the second branch of the exclusive rule as 
 remodeled. 
 
 The principal importance of this work lies in its 
 bearing on the great question of codification. It is 
 not for me to say how far my book can be regarded 
 as affording a practical proof of the possibility of 
 that process as giving a distinct, complete and sys- 
 tematic statement of the branch of the law which is 
 its subject, but the experience gained by writing it 
 and by considering the criticisms made upon it, as 
 well as by attempts which I have made and am still 
 engaged upon to apply the same process to other 
 branches of the law, lead me to feel very serious 
 doubts whether it would be desirable to take the law 
 of evidence as the first subject on which to try the 
 experiment of codification. I doubt whether any 
 branch of the law is so diiScult to arrange in a com- 
 pletely satisfactory manner. Probably none depends 
 so directly on questions lying outside of law. A 
 code not based on the principles of logic would in my 
 opinion be mischievous, but the attempt to impose a 
 particular logical theory either upon the judges and 
 the legal profession by act of Parliament would be 
 
TO ma THIRD EDITION. xliii 
 
 hazardous. If that way of treating the subject 
 which has been adopted in this book is the right one, 
 it will be gradually recognized and adopted as such 
 by the profession, and might ultimately form the 
 basis of a code. I must in candor add that, since I 
 drew the Indian evidence act in 1870, I have learned 
 so much from both hostile and friendly critics as to 
 the way of treating the subject, that I should be 
 sorry to see any theory about it finally adopted until 
 it had been recognized as the true one by the best of 
 all possible tests, its influence on and acceptance by 
 the profession, whose cordial support is absolutely 
 essential to the success of any attempt to codify the 
 law, either by legislation or by private enterprise. 
 
 I would, however, suggest that this book might be 
 made subservient to legislation in a way which, if 
 not so ambitious as codification, would at all events be 
 exceedingly useful. On looking through it, it is easy 
 to see two things. First, the statute law relating to 
 evidence might be consolidated into a single act with 
 great advantage. Next, a variety of detailed amend- 
 ments in the law might and ought to be made which 
 would very greatly improve the system and prepare 
 the way for a code of the law of evidence if either 
 my theory on the subject or any other should be 
 tacitly adopted by the profession as the proper way 
 of stating the law. I beg to offer to the public the 
 following notes, which might with very little trouble 
 be reduced into the form of heads of a bill to con- 
 solidate and amend the law of evidence. 
 
xliv STEPHEN'S PBEFAGE 
 
 The notes follow the order of the articles in my 
 book to which they apply. 
 
 Abticle 2. Note II. — -Mr. Taylor adopts from 
 Professor Greenleaf the statement, that " the law 
 excludes, on public grounds, evidence which is offen- 
 sive or indecent to public morals or to the feelings of 
 third persons." For the reasons given in the note, I 
 fear this statement of the law is not correct. But if 
 it is not the law, ought not the judges to have some 
 such power ? If it is thought impracticable to sur- 
 round such a power by the necessary safeguards 
 against its abuse, this is an additional reason for 
 guarding against the abuse of cross-examination to 
 credit. 
 
 Article 8. Note V. — Should not the whole of a 
 complaint be given in evidence ? 
 
 Article 42. — As a general rule, statements con- 
 tained in judgments as to matters of fact are not 
 evidence of the matter stated as between strangers 
 to the judgment except in the case of judgments of 
 the court of admiralty condemning a ship as prize 
 {Geyer v. Aguilar, 1 T. R., 681). In the case 
 quoted the rule worked gross injustice, and it is 
 opposed to all analogy, and probably based on a mis- 
 take, as Lord Eldon points out in Lothian v. Sender- 
 son, 3 B. and P., 545. Why should not such judg- 
 ments be put on the same footing as others ? 
 
 Article 57. — In R. v. Rowton, 1 L. and C, 520, 
 it was held that evidence of character in a criminal 
 trial must be confined to evidence of reputation as 
 distinguished from disposition. The monstrous conse- 
 
TO HIS THIRD EDITION. xlv 
 
 quences of this rule, and the fact that it is habitually 
 and indeed unavoidably set at naught, are pointed 
 out in note xxv. Why not enact that in such 
 cases evidence may be given of the prisoner's general 
 disposition, as well as of his reputation, but not of 
 particular facts by which either is shown ? 
 
 Abticle 64. — As the law stands an admission of 
 the contents of a document is primary evidence as 
 against the person who makes it (^Slatterie v. Pooley, 
 6 M. and W., 664), and the contents of a document 
 may thus be proved against a person without his 
 having had notice to produce it. The impolicy of 
 this rule has often been remarked upon. The case 
 in which it was affirmed, and others which preceded it, 
 seem to show that it was established in part at least, 
 in order to find a way of proving documents which 
 were excluded by the operation of the stamp laws. 
 As the law as to the effect of the want of a proper 
 stamp has been altered, this reason for the rule no 
 longer exists. The only effect of removing it would 
 be that notice to produce would be (as it surely ought 
 to be) required before the contents of a document 
 can be provedby an admission. 
 
 Aetiole 89. — The rule that an alteration made in 
 a deed by a stranger, while the document is in the 
 custody of the person who produces it, but without 
 his knowledge or consent, prevents him from claim- 
 ing under it {Davidson v. Cooper, 11 M. and W., 
 '778; 13 M. and W., 343, and see Aldous v. Cornwell, 
 L. R., 3 Q. B., 573), seems to be a relic of a time 
 when almost idolatrous respect was paid to deeds. If 
 
xlvi STEPHEN'S PREFACE 
 
 a man can sue on a deed which has been destroyed, 
 why not on one which has been altered ? 
 
 Article 91. Clauses 1 and 8. — As to the cases in 
 which a testator's statements as to the meaning of 
 his will are admitted and rejected in construing the 
 will, see note xxxiii. Several judges of the high- 
 est eminence have expressed an opinion adverse to the 
 present rule. Why should it not be permissible to 
 give the same evidence for the purpose of reforming 
 a mistake in a will as for the purpose of reforming a 
 mistake in an agreement in writing ? There is no 
 real fear that the court would not be sufficiently 
 jealous on the subject. 
 
 Articles 114, 115. — The doubts as to the compe- 
 tency of a grand juror to testify as to what passes 
 between him and his fellows, and as to the privilege 
 of special pleaders and licensed conveyancers, might 
 perhaps be worth setting at rest. 
 
 Article 117. — Surely communications made in 
 professional confidence to clergymen of all denomi- 
 nations ought to be privileged. A clergyman asked 
 to disclose what has been said to him in confession is 
 sure to refuse to answer. If he does so, he has public 
 sympathy with him, and the administration of justice 
 is so far discredited. The improbability that any 
 advantage comparable to this disadvantage will ever 
 be obtained from the existing law (to say nothing of 
 its doubtfulness) is very great indeed. 
 
 Article 129 and Note XLVI. — This article and 
 note refer to the law as to cross-examination to credit. 
 I have nothing to add to what is said in the note. 
 
TO SIS TEIJRD EDITION. xlvii 
 
 except that recent notorious abuses of the power of 
 cross-examining to credit appear to me to place in a 
 strong light the importance of the suggestion there 
 made. 
 
 These amendments, slight and few in number as 
 they are, are the only ones ■which I should feel dis- 
 posed to suggest in the common law on the subject 
 of evidence. The statute law might, I think, be 
 recast with very great advantage. A detailed state- 
 ment of its present condition will be found in note 
 xlviii. On reference to that note and to the articles 
 of this work therein referred to, it will be found that 
 by proper management the greater part of ten acts of 
 Parliament might be repealed, and re-enacted in a 
 single act of twenty sections arranged upon an intel- 
 ligible system. This process would afford a natural 
 opportunity for removing a number of minor blem- 
 ishes in the law, of which I will notice a few. 
 
 Articles 106-109. — These articles give the result 
 of an odd amalgam of common and statute law, the 
 component parts of which are described in notes 
 xxxix, xl, xli. The last paragraph of xli points out 
 a flaw worth removing, and the same may be said of 
 the note to Article 110, which gives the effect of 16 
 and \1 Vict., c. 83, s. 3. 
 
 The enactment of these four articles would super- 
 sede expressly common law principles which have 
 been eaten away bit by bit by five or six acts of Par- 
 liament containing at least two notable flaws. 
 
 In the same way Articles 123, 124 are the short 
 iv 
 
xlviii STEPHEN'S PREFACE 
 
 equivalents of a very complicated set of enactments 
 as to oaths. 
 
 Articles 131 and 132 are meant to represent 17 and 
 18 Vict., c. 125, sees. 22-3, as to which see note xlvii. 
 Of the twenty-second section the Lord Chief Justice 
 of England said, with obvious truth, "There has 
 been a great blunder in the drawing of it and on the 
 part of those who adopted it." 
 
 I need say nothing as to the importance of bring- 
 ing into one act arranged in a consecutive manner 
 not only the material parts of ten acts which deal 
 with the subject, but a large number of enactments 
 scattered all over the statute book. 
 
 It would be a great convenience to the profession 
 to re-enact the different sections relating to taking 
 the depositions of witnesses in a better form than 
 their present one. The existing statutes are wander- 
 ing, diffuse, and incoherent to the last degree, and 
 many questions have been raised on their meaning. 
 On this subject see Articles 140, 141, 142. 
 
 The law as to commissions to take evidence is in a 
 most confused state. See Article 125 and the foot- 
 note. 
 
 It is difficult to imagine an odder arrangement than 
 one which sends a person wishing to know the law as 
 to the issue of commissions to take evidence to an act 
 for the government of India, the main purpose of 
 which was the establishment of a governor-general in 
 council. 
 
 Surely, too, it is a great omission in our law that 
 there should be no provision for taking evidence 
 
TO HIS THIRD EDITION. xlix 
 
 under a commission in criminal cases, except in one 
 rare class of misdemeanors. 
 
 Lastly, might it not be wise to authorize the 
 superior courts to give a certificate, if they thought 
 proper to do so, of the existence of any matter of fact 
 which had been duly established before them in a 
 suit bona fide contested, on the application of the 
 successful party, such certificate to be evidence of 
 the matters stated in it, and raising a presumption of 
 their truth whenever they are brought into question 
 iu any subsequent proceedings ? It seems monstrous 
 that, when Orton had been prosecuted to conviction 
 for perjury, the fact that he was Orton and not Tich- 
 borne, and the fact that Tichborne was dead, should 
 have been, as far as the law went, open to future dis- 
 pute, and that it should have been necessary to pro- 
 cure a private act of Parliament to furnish satisfac- 
 tory proof of these facts for future use. 
 
 My friend Mr. J. C. Lawrance, of the Midland Cir- 
 cuit, has been good enough to prepare the new index 
 added to this edition. It will, I hope, very greatly 
 facilitate reference, and so add to the utility of the 
 book for purposes of actual practice. 
 
 J. F. S. 
 
 Temple, Jan. S7, 1877. 
 
Table of Britispi Cases Cited. 
 
 [the riGURES REFER TO THE ARTICLE OR NOTES IN APPENDIX, AND THE 
 ROMAN NUMERALS TO THE PAGES OF INTEODDOTION.] 
 
 Adie V. Clarke .... 91 
 A. Q. 1). Bowman ... 85 
 A. G. «. Hitchcock . . 130 
 Aldous V. Oornwell . xlv, 89 
 Alivon V. Furnival . 71 
 
 Allen v. Dundas ... 40 
 Allen !). Prink .... 90 
 AUgood V. Blake . . n. 33 
 Alner -o. George . . a. 10 
 Anderson «. Weston . . 85 
 Angel «. Duke. . . 90 
 Annesley b. Anglesea . 115 
 Appleton v. Braybrooke n. 31 
 Armoury v. Delamire . 95 
 Avesons). Lord Kinnaird 3, 11 
 
 B. 
 
 Bacon v. Chesney ... 17 
 Bailey v. Bidwell ... 67 
 Bank of Hindustan, Alli- 
 son's Case .... 41 
 Baron de Bode's Case . 49 
 Barnett «. Brandao . . 58 
 Barrett v. Long ... 11 
 Barrs v. Jackson . . 41 
 Barton v. Dawes . . 90 
 
 Bateman v. Bailey . . 8 
 Bauerman i). Radenius, n. 10 
 Bayliss ». A. G. ... 91 
 Beeston's Case ... 32 
 Bedford (Duke of) v. Lopes 5 
 Berkeley Peerage Case . 31 
 n. 20, 21 
 Biddle v. Bond . . .105 
 Birt «. Barlow .... 58 
 Blackett v. Royal Ex- 
 change 91 
 
 Bonelli, Goods of ... 49 
 Boysc V. Rossborough . 9 
 Brain «. Preece ... 27 
 Brassington «. Brassing- 
 
 ton 118 
 
 Breton ». Cope . . 68 
 Bristow V. Segueville . 49 
 Brittain v. Kinnaird . . 45 
 Broad v. Pitt ... n. 44 
 Brough s. Lord Scars- 
 dale 5 
 
 Brown v. Foster . . .115 
 Bruce u Nicolopulo . . 7 
 Butler V. Moore . . n. 44 
 
 Caddy v. Barlow 
 
 40 
 
Ill 
 
 TABLE OF BRITISH GASES CITED. 
 
 Caermarthen Railway Co. 
 «. Manchester Railway 
 
 Co 17 
 
 Call ». Dunning . . 66 
 Calvert ». Flower . 138 
 Calypso, The .... 44 
 Carr «. L. & K "W. Rail- 
 way n. 38 
 
 Carter v. Boehm ... 49 
 Cartwright v. Green . . 130 
 Castrique v. Imrie, 43, 44, 47, 
 49, n. 33 
 Catherwood ». Caslon . 53 
 Chambers «. Bernasconi, 27 
 Charlton v. Coombs . . 115 
 Charter v. Charter . n. 33 
 Chasemore v. Richards . 100 
 Clay V. Langslow . n. 13 
 Clayton v. Lord Nugent, 91 
 Cliiiord ». Burton . . 17 
 Closmadeuc «. Carrel . 86 
 Collins «. Bayntum . . 67 
 Coole «. Braham ... 18 
 Cooper ». Tamswell . . 67 
 Cope V. Cope .... 98 
 Cory «. Bretton ... SO 
 Crease ii. Barret ... 30 
 Cronk «. Frith .... 66 
 Crossley v. Dixon . . . 105 
 
 D. 
 
 Da Costa «. Jones . . 33 
 Daniel®. Pitt .... 19 
 Darthmouth (Lady) v. 
 
 Roberts .... n. 30 
 Davidson v. Cooper, xlv, 89 
 Davies v. Lowndes, 31, n. 31 
 Da Thoren v. A. G. . 53 
 
 Di Sora v. Phillips 
 Dixon V. Hammond 
 Doe "0. Barton . 
 Doe 11. Baytup . 
 Doe «. Beaviss . 
 Doe V. Brydges 
 Doe ». Coulthred 
 Doe V. Date 
 Doe V. Derby 
 Doe d. Devine v. 
 
 49 
 
 105 
 
 103 
 
 103 
 
 28 
 
 43 
 
 95 
 
 118 
 
 32 
 
 Wilson, 100 
 
 Hammond «. 
 .... 101 
 91, n, 33 
 1S9 
 . . 4 
 91, n. 33 
 
 Doe d. 
 
 Cooke .... 
 Doe V. Hiscocks . 
 Doe V. Hodgson 
 Doe v. Kemp 
 Doe i>. Needs . . 
 Doe V. Oliver - . 42, 43, 44 
 Doe ». Pegg . . .102 
 
 Doe V. Pulman ... 5 
 
 Doe V. Ross 75 
 
 Doe V. Sackermore . 51 
 Doe V. Smyth .... 103 
 Doe D. Tatham, 32, n. 5, 8, 24 
 Doe V. Turford ... 27 
 Doe ». Voules .... 28 
 Doe.t). Wilson .... 100 
 Doncaster (Mayor of) v. 
 
 Day 32 
 
 Dover «. Child ... 41 
 Dunn's Case .... 11 
 Du Barre v. Livette . n. 44 
 Dwyer v. Collins . 73, n. 29 
 
 E. 
 
 Blkin ». Janson ... 96 
 Entick ». Carrington . . 71 
 Evans v. Bcattie ... 17 
 Evans d. Rees . . n. 20 
 
TABLE OF BRITI8E CASES CITED. 
 
 liii 
 
 F. 
 
 FairlieB. Hastings 
 Fenwick ». Thornton 
 Feversham v. Emerson 
 Flitters s. AUfrey . . 
 FoUett «. Jefferyes . 
 Foote V. Hayne . . 
 Foulkes V. Cliadd . . 
 Freeman «. Cooke, 103, n. 38 
 Fry v. Wood .... 33 
 
 n. 11 
 
 16 
 43 
 41 
 115 
 115 
 50 
 
 G. 
 
 Garland s. Jacomb . . 104 
 Gerish v. Chartier . . 11 
 Gery v. Redman ... 7 
 Geyer vi. Aguilar, xliv, 40, 43 
 Gibson*. Hunter ... 11 
 Gillies V. Smitlier ... 66 
 Gleadow ». Atkin . 38, n. 19 
 Godard v. Gray 47, n. 33 
 Goodtitle «. Baldwin . 100 
 Gorrissen B. Perrin . . 91 
 Gosling B. Birnie . . .105 
 Goss a Lord Kugent, 90, n. 33 
 
 Gray's Case 36 
 
 Green v. New River Co. 
 
 40,44 
 Greenough «. Eccles . n. 47 
 Greenough «. Gaskell, n. 43 
 Guy 11. West .... 95 
 
 H. 
 
 Halifax Guardians «. 
 
 Wheelwright . . n. 38 
 Hall «. Bainbridge . . 87 
 Hall V. Hill 91 
 
 Hammond v. Bradstreet, 
 Hardman «. Wilcock 
 Harratt v. Wise 
 Helyear b. Hawke 
 Hetherington v. Kemp 
 Higham «. Ridgway, 38, 
 Hiscocks 0. Hiacocks, 
 Hockin ». Cook . . 
 Holcombe v. Hewson 
 Holt J). Squire . . 
 Hope ». Liddell . 
 Hopewell «. De Pinna 
 Houlston ®. Smith 
 How V. Hall . . 
 Howard v. Hudson 
 Hunter v. Atkins . 
 Hunter v. Leathley 
 Hurst B. Leach 
 Hutchinson v. Bernard 
 
 I. 
 
 30 
 . 105 
 . 11 
 
 . 17 
 
 . 13 
 
 n. 19 
 
 n. 33 
 
 58 
 
 10 
 
 17 
 
 118 
 
 99 
 
 85 
 
 7i 
 
 102 
 
 95 
 
 118 
 
 91 
 
 125 
 
 Ireland (Bank of) v. 
 Evans n. 38 
 
 J. 
 
 Jaggers v. Binning . . 17 
 
 Jarrett B. Leonard . • 18 
 
 Johnson b. Kershaw . . 71 
 
 Jones B. Stevens ... 51 
 
 Jones B. Williams . . 8 
 
 K. 
 
 Kemp B. King .... 118 
 
 Kempland B. Macaulay, 18 
 
 Kingston (Duchess of) 
 
 Case, 43, 43, 44, 47, 117 
 
 n. 33 
 
liv 
 
 TABLE OF BRITISH CASES CITED. 
 
 Kirkstall Brewery Co. i 
 
 . 
 
 Morris V. Miller 
 
 53 
 
 Furness Railway Co. 
 
 . 17 
 
 Mortimer ». MeCallan 
 
 . 71 
 
 Knights 11. Wiflen . 
 
 . 103 
 
 Muggleton v. Barnett 
 
 . 6 
 
 Koster v. Reed . . . 
 
 . 95 
 
 Munn i>. Godbold 
 
 70,71 
 
 L. 
 
 
 N. 
 
 
 Lady Ivy's Case . . 
 
 . 9 
 
 Needham «. Bremnor 
 
 . 40 
 
 Langhorn «. AUnutt . 
 
 . 17 
 
 Neil V. Jakle 
 
 8 
 
 Leconfield v. Lonsdale, 
 
 100 
 
 Nepean v. Doe . . 
 
 O') 
 
 Lee K. Pain .... 
 
 91 
 
 Nepean «. Knight 
 
 03 
 
 Leeds ». Cook . . . 
 
 73 
 
 Newcastle (Duke of) 
 
 B. 
 
 Leggatt V. Tollervey . 
 
 40 
 
 Broxtowe . . . 
 
 30 
 
 Legge 1). Edmonds . 
 
 98 
 
 Newton ■». Chaplin . 
 
 72 
 
 Ley «. Barlow . 
 
 118 
 
 Noble V. Ward 
 
 n. 32 
 
 Lindley o. Laoey . . 
 
 90 
 
 Noden b. Murray 
 
 64 
 
 Lotliiau«. Henderson, xliv, 43 
 
 
 
 Lucas «. De la Cour . 
 
 17 
 
 0. 
 
 
 M. 
 
 
 Ochsenbein «. Papelier 
 
 46 
 
 
 
 Omichund «. Barker, 107, 123 
 
 V. Moor . . . 
 
 57 
 
 
 124 
 
 MacdougaU ». Parrier 
 
 101 
 
 
 
 McMahon v. McElroy 
 
 99 
 
 P. 
 
 
 Malcolmson i>. O'Dea . 
 
 n. 4 
 
 
 Mann v. Langton . . 
 
 n. 3 
 
 Paddock v. Forester . 
 
 . 20 
 
 Marine Investment Co 
 
 
 Palmer ». Trower 
 
 130 
 
 v. Haveside . . . 
 
 86 
 
 Papendick d. Bridgewater, 38 
 
 Marston v. Downes 
 
 71 
 
 Pearce v. Hooper 
 
 67 
 
 Matthews, In re . . 
 
 6 
 
 Pearse ». Pearse . 
 
 116 
 
 Meyer v. Sefton . . 
 
 71 
 
 Petch D. Lyon . . 
 
 . 17 
 
 Miles 1). Oddy . . . 
 
 71 
 
 Petrie v. Nuttall . . 
 
 . 44 
 
 Miller «. Travers . . 
 
 91 
 
 Phene's Trust, re . . 
 
 . 99 
 
 Mills V. Barber . . . 
 
 95 
 
 Philips c. Bury 
 
 . 40 
 
 Minet v. Morgan . . 
 
 116 
 
 Pickard v. Sears 103, 
 
 n.33 
 
 Morgan ®. Griffiths . 
 
 90 
 
 Picton's Case . . . 
 
 . 49 
 
 Moriarty u L, C. & D 
 
 
 Piers V. Piers . . 
 
 53 
 
 Railway Co. 7, 16, 
 
 Q. 10 
 
 Pigott's Case . . . 
 
 89 
 
 Morris v. Davies . 
 
 98 
 
 Pim 1). Curell 
 
 . 30 
 
TABLE OF BRITISH CASES CITED. 
 
 It 
 
 Pipe ». Fulcber . 
 
 . . 80 
 
 R. V. Clewes . . . 
 
 7,32 
 
 Plaxton ». Dare . 
 
 . . 30 
 
 R. V. Cliviger . . . 
 
 120 
 
 Plumer v. Biisco . 
 
 . . 67 
 
 R V. Cole . . . 
 
 10 
 
 Pocock V. Billing 
 
 . . 16 
 
 R. ». Cooper . . . 
 
 11 
 
 Poole V. "Warren . 
 
 . . 67 
 
 R. «. Cresswell . . 
 
 101 
 
 Powell, Ex paHe. 
 
 In re 
 
 R. ■». Donellan . . 
 
 9 
 
 Matthews . . 
 
 6 
 
 R. u Dove .... 
 
 49 
 
 Preston's Case 
 
 . . 11 
 
 R. v. Drummond . . 
 
 135 
 
 Price V. Torrington 
 
 , 35, 37, 37 
 
 R. «. Dunn . . . 
 
 11 
 
 
 n. 18 
 
 R. J). Edmunds . . 
 
 8 
 
 Pritt V. Fairclough 
 
 . . 37 
 
 R. ». Eriswell . . 
 
 33 
 
 Pym«. Campbell 
 
 . . 90 
 
 R. ■». Exeter . . . 
 
 38 
 
 
 
 R. B. Forster . . . 
 
 11 
 
 Q. 
 
 
 R. «. Foster . . . 
 
 3 
 
 
 R. ■!). Foulkes . . . 
 
 3 
 
 Queen's Case, The 
 
 n. 3, 47 
 
 R. v. Francis . . . 
 
 11 
 
 
 
 R. 0. Francklin . . 
 
 33 
 
 R 
 
 
 R. V. Garbett . . . 
 
 33 
 
 
 R. 11. Garner . . 13 
 
 n. 6 
 
 T> .. 
 
 . n. 2 
 
 R. n. Geering . . . 
 
 13 
 
 
 
 R. -0. Adamson 
 
 . . 93 
 
 R. V. Gilham . . . 
 
 33 
 
 R. V. All Saints, Worces- 
 
 R. v. Gould . . . 
 
 33 
 
 ter .. . 
 
 . . 130 
 
 R. V. Gray ... 13 
 
 n. 6 
 
 R. V. Baker 
 
 n. 17 
 
 R. v. Griffin . . 
 
 n. 44 
 
 R. v. Baldry 
 
 . n. 15 
 
 R. V. Halliday . . 
 
 130 
 
 R. V. Barnard . 
 
 9 
 
 R. «. Harborne . . 
 
 99 
 
 R. 11. Bathwick 
 
 . . 130 
 
 R. n. Harday . . . 
 
 4 
 
 R. n. Bembridge 
 
 . xxiv 
 
 R. v. Harringworth, 66, 
 
 n. 38 
 
 R. V. Blake 
 
 . . 4 
 
 R. V. Hartington Middl 
 
 
 R. t). Bliss . . 
 
 . . 80 
 
 Quarter . . 
 
 . 41 
 
 R. v. Boswell . 
 
 . . 33 
 
 R. v. Haworth . . 
 
 71 
 
 R. i>. Boyes 
 
 . 130 
 
 R. 11. Heyford 
 
 . 28 
 
 R. «. Butler 
 
 95 
 
 R. v. Hind . . . 
 
 . 36 
 
 R. ». Canning . 
 
 . . 13 
 
 R. v. Hogg . . . 
 
 33 
 
 R. v. Castleton 
 
 71 
 
 R. «. Holmes . . . 
 
 . 134 
 
 R. V. Cheadle . 
 
 93, n. 34 
 
 R. V. Holt . . 
 
 . 11 
 
 R. V. Chidley & Cu 
 
 mmins, 33 
 
 R. n. Home Tooke 
 
 51 
 
 R. «. Clapham 
 
 37 
 
 R. «. Hull 
 
 90 
 
 R. V. Clarke . 
 
 . . 134 
 
 R. ». Hutchinson 
 
 . 26 
 
Ivi 
 
 TABLE OF BRITISH CASES CITED. 
 
 E. V. Jarvis . . 
 
 . . 90 
 
 Eearden v. Minter, . . 
 
 67 
 
 E. t>. Jenkins . . 
 
 . . 26 
 
 Eeeve -c. Wood . . . 
 
 108 
 
 E. «. Llanfaethly . 
 
 . . 72 
 
 Eeffel V. EefEel . . . 
 
 90 
 
 E. V. LIo3'd . . 
 
 . . 22 
 
 Eoberts v. Doxen . . . 
 
 71 
 
 E. «. Lord George Gordon, 9 
 
 Eobinson v. Yarrow . . 
 
 104 
 
 E. 4). Lord Thanet 
 
 . n. 42 
 
 Eoe d. West v. Davis . 
 
 64 
 
 E. ■». LufEe . . 
 
 . . 98 
 
 Eogers «. Allen . . . 
 
 5 
 
 E. «. Lumley . . 
 
 . . 99 
 
 Eowley t. L. & N. W. 
 
 
 E. V. Mainwaring . 
 
 . . 53 
 
 Eailway 
 
 49 
 
 B. i>. Mansfield 
 
 . . 98 
 
 Eyall ®. Hannam . . . 
 
 91 
 
 E. V. Martin . . 
 
 • . 134 
 
 
 
 E. «. Moore . . 
 
 . . 32 
 
 s. 
 
 
 E. «. Mosley . . 
 
 . . 26 
 
 
 E. J). Orton . . . 
 
 35, n. 9 
 
 Sanderson ». Coleman . 
 
 104 
 
 E. v. Palmer . 7, 
 
 11, 49, 50 
 
 Sandilands, re ... 
 
 87 
 
 E. i>. Parbliudas&o 
 
 thers, n. 1 
 
 Sheen «. Bumpstead . . 
 
 11 
 
 E. c. Patch . . 
 
 . . 7 
 
 Sheridan v. New Quay . 
 
 105 
 
 E. ®. Payne . . 
 
 . . 108 
 
 Shields d. Boucher . i 
 
 1.31 
 
 E. 7). Pike . . . 
 
 . . 135 
 
 Shore i>. Wilson . . . 
 
 91 
 
 E. V. Eichardson . 
 
 . . 12 
 
 Short V. Lee . . . n 
 
 . 19 
 
 E. V. Eowton, xliv, 
 
 56, n. 25 
 
 Shrewsbury Peerage Case 
 
 , 31 
 
 E. V. Scaife . . 
 
 . . 32 
 
 Sinclair v. Baggallay 
 
 85 
 
 E. V. Scott . . 
 
 . . 23 
 
 Skilbeck v. Garbett . . 
 
 13 
 
 E. v. Sparkes . . 
 
 . n. 44 
 
 Slatterie v. Pooley, xlv. 
 
 C4 
 
 E. v. Stone . . 
 
 . . 96 
 
 Smith v. Blakey . . . 
 
 27 
 
 E. «. Sutton . . 
 
 . . 33 
 
 Smith s. Morgan . . . 
 
 16 
 
 E. V. Thompson . 
 
 . . 108 
 
 Smith t). Whippingham, 
 
 17 
 
 E. v. Thornhill . 
 
 . . 60 
 
 Smith ». Wilson . . . 
 
 91 
 
 E. ■0. Turner . . 
 
 . . 44 
 
 Spargo V. Brown . . r 
 
 1.10 
 
 E. ». Twyning 
 
 . . 94 
 
 Stead V. Heaton . . . 
 
 28 
 
 E. i>. Walker . . 
 
 . 8, n. 5 
 
 Stoate V. Stoate . . . 
 
 41 
 
 E. «. Warwickshall 
 
 . . 22 
 
 Stobart ii. Dryden . . 
 
 14 
 
 B. n. Watson . . 
 
 . 64, 71 
 
 Stookfleth V. De Tastet . 
 
 20 
 
 E. V. Whitehead . 
 
 . . 126 
 
 Stowe «. Querner . . 
 
 71 
 
 E. «. Widdop . . 
 
 . . 23 
 
 Stringer «. Gardiner, 91, n. 38 
 
 E. 0. Woodcock . 
 
 . . 26 
 
 Sugden ». St. Leonards . 
 
 29 
 
 EadclifEe ®. Fursma 
 
 n . 116 
 
 Sussex Peerage Case, 28, 
 
 136 
 
 Eandall i>. Lynch 
 
 . . 66 
 
 Swan V. British and Aus- 
 
 
 Eawson ». Haigh 
 
 . . 8 
 
 tralasian Co. . 103, I 
 
 .38 
 
TABLE OF BBITISE CASES CITED. 
 
 Ivii 
 
 T. 
 
 
 Weston ®. Eames ... 93 
 
 Talbot V. Hodson 
 Tatham u. Wright . 
 Taylor v. Foster . . 
 Thurtell v. Beaumont 
 Ticheborne v. Lnshingtc 
 Trelawney v. Coleman 
 Turquand v. Knight 
 
 . 67 
 
 . 48 
 . 117 
 . 94 
 )n, 48 
 . 11 
 . 115 
 
 Wharam v. Eoutledge . 138 
 Wheeler ®. Alderson . 48 
 Whitaker v. Izod . . 118 
 Whitaker v. Jackson . . 43 
 Whitcomb v. Whitting . 17 
 Whittuck B. Walters . 31 
 Whyman «. Garth 66, n. 28 
 Wiggleston ». Dallison, 90 
 n. 32 
 
 U. 
 
 
 Williams ». Bridges . 18 
 
 U. S. 11. Wagner . . 
 
 . 38 
 
 Williams ii. East India Co. 94 
 Williams v. Graves . . 28 
 Wilson 11. Anderton . . 105 
 
 V. 
 
 
 Wilson B. Rastall . . 115 
 
 Vooght ». Winch 
 
 . 43 
 
 Wing V. Angrave . 99 
 Woodcock?). Houldsworth,13 
 Wright ®. Doe d. Tatham, 8 
 
 W. 
 
 
 48 
 
 Wallis ft Littell . . 
 
 . 90 
 
 Y. 
 
 Warren v. Warren . 
 
 . 31 
 
 Webb «. Bird . . . 
 
 . 100 
 
 Young 11. Clare Hall, n. 19 
 
 Weeks s. Sparke 30, 
 
 n. 20 
 
 Young «. Grote . 102, n. 38 
 
Table of American Cases Cited. 
 
 [the figckes refer to the abtioles.] 
 
 A. 
 
 Aaron?). State . . 23 
 Adams u. Lawson ■ 57 
 Adams v. Seitzinger . 38 
 Allegheny Co. v. Nelson, 38 
 Allen «. Killinger . 19 
 AUman ». Owen . 58 
 Alter V. Berghaus . . 35 
 American Fur. Co. ». U. S., 4 
 Armstrong «. U. S. . 33, 58 
 Arnold v. Arnold . . 44 
 Atkinson's Lessee «. Cum- 
 mins 91 
 
 Austin V. Thompson 138 
 Ayers v. Hewitt . . 67 
 
 B. 
 
 Bacio V. People . . 8 
 
 Bailey v. R. R. Co. . . 90 
 Bailey v. Taylor . . 89 
 
 Baker v. Staokpoole . 17 
 Baltimore v. State 58 
 
 Bank v. Kennedy . 8, 9 
 Bank of Augusta v. Earle, 58 
 Bank of Salin «. Henry, 130 
 Bank of U. S. -o. Dan- 
 dridge 13, 90, 101 
 
 Bank of U. S. v. Dunn, 90, 91 
 Bank of IT. S. v. Lyman, 17 
 Bank of Utica ». Merser- 
 
 eau 115 
 
 Barnard v. Campbell . 102 
 Barney «. Schmeider . 71 
 Barnum v. Baruum . 58 
 Barr ». Gratz . . 40, 88 
 Barreda v. Silsbee 92 
 
 Barrows. Downs . 49 
 
 Bates V. Barber . .133 
 
 Beatty v. Davis . . 16 
 
 BedellB. Com. Ins.Co. . 19 
 Bell V. Morrison ... 17 
 Beloit V. Morgan . . 41 
 
 Bennett v. Tennessee . 58 
 Bergen v People . 21 
 
 Bigelow V. Poss . 16 
 
 Bigler v. Reyher . . . 116 
 Bird V. State . . 140 
 Black V. Woodrow . 33 
 
 Blackburn ii. Crawford . 53 
 Blair v. Perpetual Ins. 
 
 Co. . . 17 
 
 Bliven v. N. E. Screw Co. , 90 
 Booker ii. Bowles . 68 
 
 Boothby v. Stanley . 89 
 
 Boston & "W. R. R. Corp. 
 «. Dana . 71 
 
Ix 
 
 TABLE OF AMERICAN CASES CITED. 
 
 Bottomly i>. U. S. 
 
 11, 12 
 
 Carroll s. State . . 
 
 34 
 
 Boulemet v. State 
 
 . 58 
 
 Case «. Case . . . 
 
 9 
 
 Bowen n. Reed . 
 
 . 58 
 
 Case V. Reeve . . . 
 
 41 
 
 Bowman v. Sanborn 
 
 . 71 
 
 Castle 11. Bullard 
 
 11 
 
 Bradford v. Barclay 
 
 -•131 
 
 Chaffee & Co. v. IT. S. 
 
 37 
 
 Brand v. Brand . 
 
 115 
 
 Chamberlain v. People 
 
 98 
 
 Brandt v. Klein, 71, 
 
 73, 119 
 
 Chapman v. Chapman 
 
 19 
 
 Brewster ji. Doane 
 
 . 25 
 
 Chapman ». Rose 
 
 103 
 
 Brogy?). Commonwealtli, 33 
 
 Chapman v. Twitohell 
 
 19 
 
 Brooke «. Townsend 
 
 . 48 
 
 Charlotte v. Chouteau, 3 
 
 5,49 
 
 Brown v. Piper . 
 
 . 58 
 
 Chelmsford Co. v. Demai 
 
 
 Brush ». 'Williins 
 
 . 49 
 
 est 
 
 17 
 
 Bryan v. Beckley 
 
 . 58 
 
 Cheney «. Arnold 
 
 138 
 
 Bryan v. Forsyth 
 
 . 33 
 
 Chillicothe R. R. Co. » 
 
 
 Bryan v. "Walton . 
 
 . 131 
 
 Jameson 
 
 115 
 
 Bull J). Loveland, 73, 
 
 118, 120 
 
 Chirac ». Reinicker . 31 
 
 , 115 
 
 Bullard v. Pearsall 
 
 131, 133 
 
 Christmas v. Russell, 46, 47 
 
 BuUen ii. Arnold . 
 
 . 79 
 
 Church ». Hubbart, 49, 58, 84 
 
 Burr B. Insurance Co 
 
 . 91 
 
 Citizens' Bank «. Steam 
 
 
 Burr's Trial . . 
 
 . 113 
 
 boat Co. ... 
 
 66 
 
 Burghart v. Turner 
 
 . 67 
 
 City of Ripon v. Bittel 
 
 50 
 
 Burlen v. Shannon 
 
 . 40 
 
 Clapper, ex parte . . 
 
 45 
 
 Burton ji. Driggs . 
 
 . 71 
 
 Clarke v. Fletcher . 
 
 138 
 
 Bussard u LcTering 
 
 . 13 
 
 Clarke v. People . . 
 
 140 
 
 Butler v. Maples . 
 
 . 71 
 
 Clarke's Executor «. Van 
 
 Butler «. Watkins 
 
 8, 11 
 
 Reimsdyk . . . 
 
 121 
 
 Buttrick f. Allen 
 
 . 84 
 
 Clary c. Clary . . 
 
 48 
 
 Byers v. Horner . 
 
 . 131 
 
 Clements v. Hunt 
 
 81 
 
 
 
 Clements o. Moore . 
 
 96 
 
 C. 
 
 
 Cleveland R. R. e. Per 
 
 
 
 kins 
 
 64 
 
 Callahan v. Shaw 
 
 . 132 
 
 Cliquot's Champagne 
 
 17 
 
 Calvert v. Cox 
 
 . 33 
 
 Cluggage «. Swan 
 
 114 
 
 Campbell v. Day . 
 
 . 16 
 
 Coffin V. Vincent. 
 
 136 
 
 Canal Co. ■». B. & C 
 
 R. 
 
 Cofleld v. McClelland 
 
 101 
 
 E. Co. . . . 
 
 . 58 
 
 Cole V. Commonwealth 
 
 10 
 
 Cantey «. Piatt . 
 
 . 52 
 
 Com. V. Casey. . . 
 
 26 
 
 Carnes v. Platte . 
 
 . 116 
 
 Com. «. Chabbock . 
 
 23 
 
 Carroll v. Peake . 
 
 . 64 
 
 Com. V. Connelly 
 
 98 
 
TABLE OF AMERICAN OASES CITED. 
 
 Ixi 
 
 Com. V. Cooper . 
 Com. «. Costley . 
 Com. «. Drake 
 Com. V. Eberle . 
 Com. B. Emery . 
 Com. V. Haley 
 Com. «. Hanlon . 
 Com. 1). Hill . . 
 Com. V. Howe 
 Com. !). Ingraham. 
 Com. «. Knapp . 
 Com. 1). Kneeland 
 Com. «. Lyden 
 Com. 1). McPike . 
 Com. «. Mead . . 
 Com. a. Mooney . 
 Com. 1). Morey 
 Com. V. Morgan . 
 Com. V. Mosler . 
 Com. J). Sackett . 
 Com. a Shepherd 
 Com. V. Stuvtevant 
 Com. V. TuckeriDan 
 Com. v. Webster . 
 Confederate Note Case 
 Connor v. People 
 Conrad ». Griffey, 
 Cook V. Brown 
 Cornett v. Williams . 
 Oostigan ». Gould 
 Costigan v. R. R. Co. 
 Coujolle V. Ferrie. . 
 Coy «, Leach . . . 
 Craig ». Carleton 
 Cramer «. Shriner 
 Crauford ii. Blackburn 
 Cremer's Estate . . 
 Crichton ». Smith . 
 Crosby ». Berger . . 
 
 . 36 
 
 . 3 
 
 Z2, 117 
 
 . 140 
 
 . 72 
 
 . 137 
 
 . 24 
 
 . 114 
 
 22,24 
 
 . 133 
 
 . 22 
 
 . 58 
 
 . 129 
 
 . 8 
 
 . 114 
 
 . 131 
 
 . 22 
 
 . 120 
 
 . 24 
 
 . 129 
 
 98 
 
 . 48 
 
 . 22 
 
 . 57 
 
 . 91 
 
 . . 120 
 
 131, 135 
 
 . . 131 
 
 . . 71 
 
 85 
 
 93 
 
 31 
 
 99 
 
 44 
 
 . 90 
 
 31 
 
 28 
 
 64 
 
 115 
 
 Croudson v. Leonard . 58 
 
 Crowninshield's Case 4 
 
 Curtis «. Belknap . . 67 
 
 Curtis V. Knox . . .130 
 
 D. 
 
 Daggett V. Shaw ... 16 
 Daily v. State .... 58 
 Dan V. Brown . . 17 
 
 Dana v. Conant ... 73 
 Davis's Appeal . . 49 
 
 Davis 1). Spooner . 67 
 
 ■ Deakins v. Hollis . . 90 
 Delafield i). Hand . 58, 84 
 Delaware & Ches. Steam 
 
 T. Co. e. Starrs . . 49 
 Den ». Vreelandt . . 58 
 
 De Phue v. State . . .140 
 He Witt «. Barley . . 48 
 Dietsch «. Wiggins . . 3, 9 
 Dillon V. Chouteau 16 
 
 Drayton ®. Wells . . 32 
 
 Donnelly v. State ... 26 
 Doou V. Donaher . 139 
 
 Drummond i>. Prestman, 17 
 Duffy B. People . . 33 
 
 Dugan V. Mahony . . 136 
 Dukeo. CahawbaK Co., 36 
 Durkee v. I.eland . . 119 
 Dutton V. Woodman . . 90 
 
 E. 
 
 Eagle Bank ». Chapin 73 
 
 Eckhert v. McAllister 131 
 
 Ellicott V. Nichols . . 17 
 
 Ellicott u. Pearl . . 30, 31 
 
 Elliott V. Picrsol . 81, 46 
 
Ixii 
 
 TABLE OF AMERICAN CASES CITED. 
 
 Ellis V. Buzzell . . . 
 
 94 
 
 Gass V. Stinson 
 
 . 126 
 
 Ellis B. Park . . . 
 
 58 
 
 Gates V. People 
 
 . 33 
 
 Ellis V. People . . . 
 
 52 
 
 Gerrish d. Sweetser 
 
 . 20 
 
 Elms v. Cbevis . . . 
 
 25 
 
 Gilbert ». Moline 
 
 . 58 
 
 Emeison v. Thompson 
 
 16 
 
 Gillam v. Sigman 
 
 . 8 
 
 Emig V. Diehl . . . 
 
 32 
 
 Gilland v. Sellers 
 
 . 58 
 
 Ennis i;. Smith, 40, 42, 4£ 
 
 ,84 
 
 Gilman v. Lowell 
 
 . 57 
 
 Eskridge v. State . . 
 
 24 
 
 Glass V. Beach 
 
 . 32 
 
 Evans v Eaton . . . 
 
 126 
 
 Glynn ». George . 
 
 . 104 
 
 
 
 Goldsborough i>. Baker . 16 
 
 F. 
 
 
 Goodwin v. Appleton . 58 
 
 
 
 Gordon d. Holliday 
 Graham v. People 
 
 . 58 
 
 Fairfax s. Fairfax . . 
 
 67 
 
 115 
 
 Faucett v. Nichols . 
 
 12 
 
 Gratz V. Beates . 
 
 . 16 
 
 Feemster d. Ringo 
 
 58 
 
 Graves v. Spedden 
 
 . 91 
 
 Fetherly v. Waggoner . 
 
 16 
 
 Gray i>. Pentland 
 
 . 112 
 
 Fife v. Commonwealth . 
 
 22 
 
 Great Western R. R 
 
 . V. 
 
 Finn's Case . . . 
 
 32 
 
 Bacon 
 
 . 9fi 
 
 First Nat. Bank v. Mc- 
 Manigle . ... 
 
 13 
 
 Great Western Turnpike 
 Co. V. Loomis . . .129 
 
 Flinn v. Coffee . . . 
 
 99 
 
 Green v. Gould . 
 
 16 
 
 Floyd V. Johnson. . . 
 Follausbee v. Walker . 
 
 58 
 114 
 
 Gregg V. Forsyth 
 Griffith v. Turner 
 
 . 33 
 
 . 17 
 
 Foss V. Hildreth 
 
 20 
 
 Guild's Case, 
 
 21, 23 
 
 Fowler v. jEtna Ins. Co., 
 Fox V. Reil 
 
 55 
 66 
 
 Gurney v. Howe 
 Guy V. Hall . . 
 
 . 34 
 . 16 
 
 Frear t. Evertson 
 
 16 
 
 
 
 Friend v. Hamill . . 8, 12 
 
 
 
 Fritz V. Brandon . . . 
 
 100 
 
 H. 
 
 
 Fuller V. Fuller . . . 
 
 134 
 
 
 
 Furnas v. Durgin . . . 
 
 7 
 
 Hager v. Cleveland & Bas- 
 
 Fusting V. Sullivan . . 
 
 90 
 
 sett . . . 
 
 . 36 
 
 
 
 Hall V. Phelps . 
 
 . 68 
 
 G. 
 
 
 HaU V. Ray . . 
 
 . 137 
 
 
 
 Ham V. Ham . . 
 
 . 58 
 
 Gaffney v. People . 
 
 132 
 
 Hamilton v. People 
 
 . 133 
 
 Gaines v. New Orleans . 
 
 31 
 
 Hancock v. Insuranc 
 
 e Co. 99 
 
 Galpin v. Page . . . 
 
 46 
 
 Hannum v. Belchertc 
 
 )wn, 114 
 
 Garber v. State . . . 
 
 7 
 
 Hanson, v. Eustace's 
 
 Les- 
 
 Gardner v. Collector 
 
 58 
 
 see .... 
 
 . . 71 
 
TABLE OF AMEBIC AN GASES CITED. Ixiii 
 
 Harding «. Brooks 
 Hardy v. Merrill 
 Harriman v. Brown 
 Harris ». Whitcomb 
 Hart V. Stevenson 
 Hartford Bridge Co, 
 
 Granger . . 
 Harvey B. State . 
 Haws V. Shaw 
 Hays V. Riddle . 
 Hauberger v. Rost 
 Heclihart v. Haine 
 Hedge «. Clapp . 
 Hemenway v. Smith 
 Henderson ®. Cargill 
 Henry s. Bishop 
 Herring v. Goodson 
 Heyward's Case 
 Higgins 11. Carlton & 
 
 57 
 48 
 35 
 73 
 18 
 
 136 
 
 103 
 
 73 
 
 17 
 
 66 
 
 131 
 
 116 
 
 81 
 
 111 
 
 48 
 
 Hildeburn ®. Curran . 130 
 Hill V. Mendenhall . . 46 
 Hill V. State . . .136 
 Hizer v. State ... 58 
 Holbrook v. Gay . . 35 
 Holderness v. Baker . 17 
 Holmes v. Anderson . 131 
 Home Ins. Co. v. Bait. 
 
 Warehouse Co. . . 30 
 Hotchkiss D. Artisans' 
 
 Bank, 6 
 
 Houghton V. Jones . 69. 137 
 Howard n. Hayward 36 
 
 Hubbard v. Briggs 131, 135 
 Huckins v. Insurance Co. 138 
 Hughes V. "Wilkinson . 131 
 Huiflekoper v. Cotton . 114 
 Hummel v. Brown . 31 
 
 Hutchins v. Hibbard . 9 
 
 I. 
 
 Iglehart e. State, use Mac- 
 
 kubin 17 
 
 Indianapolis R. R. Co. v. 
 
 Stephen ... 68 
 
 Ingraham v. State . 58 
 
 Inhabitants of Woburn 
 
 V. Henshaw . .116 
 
 Insurance Co. •». Rodel . 48 
 Insurance Co. s. Weides, 136 
 
 Jackson v. Bailey . . 33 
 Jackson v. Blanshaw . 88 
 Jackson o. Brooks . . 53 
 Jackson v. Browne . . 31 
 Jackson n. French . . 115 
 Jackson d. Halstead . . 67 
 Jackson v. Humphrey . Ill 
 Jackson v. Kingsley . 67 
 Jackson v. Lawson . . 33 
 Jackson v. McVey . . 119 
 Jefferds «. People . . 34 
 Jewell V. Jewel] . 7, 31, 53 
 Johnson v. Daverne . . 51 
 Johnson ». State ... 8 
 Jones V. Gales' Exr. . . 58 
 Jones V. Hays ... 58 
 Jones V. Jones . . 81, 94 
 Jones «. Maffit ... 49 
 Jordan v. Wilkins . . 138 
 
 Kane ». Insurance Co. . 94 
 Keator 8. Dimmlck . .110 
 Keene v. Mead ... 90 
 
Ixiv TABLE OF AMERICAN GASES CITED. 
 
 Keith c. Lathrop 
 
 . 51 
 
 Low's Case 
 
 114 
 
 Kellenberger v. Sturte- 
 
 Lucas V. Brooks, 3, IK 
 
 ,140 
 
 vant . . 
 
 . 44 
 
 Lund B. Tyngsborough 
 
 8 
 
 Kelsey v, Hanmer 
 
 . 67 
 
 Lycoming Mutual Lis 
 
 
 Kendall, Admr., ». F.eld 
 
 Co. V. Sailer . . 
 
 91 
 
 etal. . . . 
 
 . 38 
 
 Lynde «. Judd . . 
 
 119 
 
 Key «. Dent 
 
 . 40 
 
 Lynes v. State . . 
 
 140 
 
 Keyser v. Coe 
 
 . 58 
 
 
 
 Kilpatrick v. Common- 
 
 M. 
 
 
 wealth . 
 
 . 36 
 
 
 King V. Chase 
 
 40,44 
 
 Mailler v. Prolfeller Co. 
 
 10 
 
 King V. Richards 
 
 . 105 
 
 Mandeville v. Welch 16, 46 
 
 Kinsman v. Parkhurst . 104 
 
 Marbury v. Madison 
 
 112 
 
 Knode v. Williamson 
 
 . 133 
 
 Martindale v. Follett 
 
 89 
 
 Knowles v. Dow 
 
 . 6 
 
 Maryland e. B. & 0. R. 
 
 
 Knowles u. Gas Co. 
 
 . 46 
 
 R. Co. . . . 
 
 91 
 
 Knox V. Saioway 
 
 . 67 
 
 Mason ». Poulson, Adm 
 
 -. 16 
 
 Kolb V. Whiteley 
 
 7 
 
 Maybee v. Avery 
 
 44 
 
 Kyburg u Perkins 
 
 . 34 
 
 Mayfield «. Kilgore . 
 
 125 
 
 
 
 McCoy 11. Curtice . 13, 90 
 
 L. 
 
 
 McDermott v. Hoffman 
 
 . 17 
 
 
 McDowell V. Goldsmith 
 
 . 8 
 
 Lampton v. Haggard 
 
 . 58 
 
 McParlan v. Triton Ins 
 
 
 Langlois v. Crawford 
 
 . 91 
 
 Co 
 
 36 
 
 Land «. Patterson 
 
 . 58 
 
 McGarry v. People . 
 
 120 
 
 Lander v. Seaver 
 
 . 55 
 
 McGregor v. Wait . 
 
 67 
 
 Lawrence v. Vernon 
 
 . 41 
 
 McKee v. Nelson 
 
 48 
 
 Lazier v. Westcott 
 
 . 47 
 
 McKee u People 
 
 7 
 
 Le Beau v. People 
 
 . 129 
 
 McLellan «. Longfellow 
 
 115 
 
 Lincoln v. Claflui 
 
 4,11 
 
 McLellan ji. Richardson 
 
 114 
 
 Lindenherger v. Bell 
 
 . 13 
 
 McNight 0. McNight 
 
 16 
 
 T;iTidsey c. Atty.-Qen 
 
 . . 58 
 
 McPherson v. Rathbone 
 
 72 
 
 Lindsey v. Williams 
 
 . 58 
 
 
 119 
 
 Livingston i). Arnoui 
 
 z . 38 
 
 Mercer v. Patterson . 
 
 . 110 
 
 Loomis V. Loomis 
 
 . 17 
 
 Merrimac, The . . 
 
 124 
 
 Loomis V. Wadliam 
 
 16, 64 
 
 Miller ®. Long . . 
 
 . 103 
 
 Lord V. Chadbourne 
 
 . 43 
 
 Miller v. Russell . . 
 
 . 33 
 
 Loring u Steineman 
 
 . 99 
 
 Milwaukee, etc., R. R 
 
 
 Lower ». Winters 
 
 . 133 
 
 Co. «. Kellogg . . 
 
 . 49 
 
TABLE OF AMEBIOAN OASES CITED. 
 
 Ixv 
 
 Mima Queen «. Hepburn, 14 
 Mims a Sturtevant . . 83 
 Minor v. Tillotson . . 73 
 Mitcliell V. Mitchell . .136 
 Mitchum v. State . 7 
 
 Mocljring v. Mitchell . 99 
 Modawell v. Holmes . 58 
 Monroe v. Perkins . . 90 
 Moody V. Rowell . 138 
 Moore «. Andrews &Bros. 35 
 Moore v. U. States . 52 
 
 Moran v. Prather 90, 91 
 
 Morris i>. Harmer . . 35 
 Morrows. Commonwealth, 73 
 Morss V. Moras . . Ill 
 Mosely a Mastia 58 
 
 Mossman v. Forrest . . 58 
 Mimson «. Wickwire . 17 
 Murray v. Coster . . 30 
 Mutual Ins. Co. v. Tisdale,43 
 
 N. 
 
 Newcomb «. Griswold . 139 
 132 
 Newell e. Newton . . 58 
 Newhall v. Jenkins . . 30 
 Newton i>. Harris . . 131 
 Nicholls V. Webb . 27, 58 
 Nichols V. Johnson . . 89 
 Noble a McClintock . 32 
 Norfolk V. Gaylord . . 120 
 North Brookfielda War- 
 ren . . . . 71 
 Nudd V. Burrows . . 4 
 
 0. 
 
 Ohio Life & Trust Co. v. 
 DeBoIt . . 58 
 
 Oliver ». Pate . . 
 
 113 
 
 Oppenheim «. LeWolf 
 
 58 
 
 Orra Lacy . . . 
 
 58 
 
 Owings V, Hull . . 
 
 58 
 
 Owings V. Low . . 
 
 16 
 
 Owings «. Speed . . 
 
 36 
 
 P. 
 
 
 Packard v. Hill . . . 
 
 84 
 
 Padgett V. Lawrence 
 
 16 
 
 Page V. Page . . . 
 
 71 
 
 Page B. Parker . . . 
 
 49 
 
 Paine ®. Parr . . . 
 
 3 
 
 Parker v. Merrill . . . 
 
 17 
 
 Parsons ®. Copland . . 
 
 44 
 
 Partridge v. Insurance Co. 90 
 
 Patterson v. Gaines . . 
 
 44 
 
 Patterson «. McCausland 
 
 , 58 
 
 Patterson v. Winn . . 
 
 71 
 
 Peace v. Jenkins 
 
 28 
 
 Peisch V. Dickson . 
 
 91 
 
 Pelamourges v. Clarke 
 
 49 
 
 People ». Benner . . 
 
 134 
 
 People ®. Blakely . . 
 
 115 
 
 People V. Bodine . . 
 
 57 
 
 People V. Calder . . 
 
 49 
 
 People «. Davis . . . 
 
 133 
 
 People V. Eastwood . . 
 
 48 
 
 People D. Gonzales . . 
 
 140 
 
 People V. Green . . . 
 
 36 
 
 People V. Hennessy . 
 
 31 
 
 People V. Hurlbut . . 
 
 114 
 
 People D. Jackson . . 
 
 134 
 
 People V. Miller . . 
 
 111 
 
 People V. Shea . . . 
 
 8 
 
 People ». Rector . . . 
 
 129 
 
 People V. Ward . . . 
 
 32 
 
 People V. White . 
 
 57 
 
Ixvi TABLE OF AMEBIOAN CASES CITED. 
 
 Perkins v. Walker . . 43 
 PeyrouxB. Howard . 58 
 
 Phila. & Trenton R. R. v. 
 
 Stimpson . . . 127 
 
 Pierson ®. Hoag . . . 136 
 Pike V. Pay .... 90 
 Pike o. Wiggin ... 16 
 Pindar e. Resolute Ins. 
 
 Co 91 
 
 Pingry v. Watkins . . 91 
 Plank R. Co. «. Wetsel, 89 
 Porters. Seller ... 56 
 Powell D. Waters . . 32 
 Pratt V. Andrews . . 56 
 Price o. State .... 24 
 Puseys. Wright ... 93 
 Putnam ». Sullivan . . 102 
 
 R. 
 
 RadclifEu United Ins. Co., 83 
 Rail R. Co. V. Bank of 
 
 Ashland 58 
 
 Rail R. Co. ». Gladmon, 95 
 Raymond v. Longworth, 71 
 Real V. People . . .129 
 Reed ®. Insurance Co. . 91 
 Rees 7}. Jackson . . 86 
 
 Rees V. Overbaugh . . 89 
 Renner v. Bank of Col- 
 umbia . . . 71 
 Reynolds, Adm'r, v. Man- 
 ning . ... 20, 25 
 Reynolds «. Ins. Co. . 91 
 Rhoads v. Selin . 72, 119 
 Ricard v. Williams . . 100 
 Rice V. Barrett . . 102 
 Richardson ». Williams, 58 
 Richie ». Holbrook . . 114 
 
 Riggs V. Tayloe 
 Rio Grande, The 
 Ripon V. Bittel . 
 
 71 
 
 43 
 
 50, 186 
 
 Robbins v. Robbins 121 
 
 Robinson v. Hutchinson, 131 
 Roddy V. Finnegan . 130 
 Rogers «. Bitter . . 51 
 Rogers «. Weir . . .105 
 Romero v. U. States . 59 
 Romayne t>. Duane . 57 
 Rose V. Himely ... 58 
 Roseboom v. Billington, 28 
 Ross t. Read . . 79 
 Runyan n. Price . 131, 135 
 Rusk t>. Sowerwine . 71, 72 
 Russell t>. Barry . 90 
 
 Ryerss «. Wheeler . . 91 
 
 Sample v. Wynn . . 
 
 57 
 
 Samuels u Griffith . . 
 
 131 
 
 Santissima Trinidad, The 
 
 58 
 
 Sasscer b. Farmers' Bank 
 
 58 
 
 Saunders v. McCarthy . 
 
 17 
 
 Scanlon v. Wright . 
 
 67 
 
 Schuchardt ii. Aliens 
 
 3,9 
 
 Scotia, The 
 
 58 
 
 Scott V. Insurance Co. . 
 
 94 
 
 Secrist v. Green . . . 
 
 31 
 
 Sheppard o. Giddings . 
 
 71 
 
 ShifEtel's Case . . . 
 
 33 
 
 Shroyer v. Miller . . 
 
 57 
 
 Shughart v. Moore . . 
 
 90 
 
 Sibley ®. Waffle . . . 
 
 115 
 
 Simon e. Gratz . . . 
 
 116 
 
 Simpson v. Davis . . 
 
 89 
 
 Skinner*. Judd . . . 
 
 118 
 
 Smith e. Cook . . . 
 
 125 
 
TABLE OF AMERICAN CASES CITED. Ixvii 
 
 Smith J). Knowlton . 
 
 . 99 
 
 Smith V. Palmer . . 
 
 16,64 
 
 Smith V. Porter . . 
 
 . 85 
 
 Smith V. Speed . . 
 
 . 58 
 
 Smith V. U. States . 
 
 71,89 
 
 Smith V. "Walton . . 
 
 51 
 
 Snell ». Allen . . 
 
 17 
 
 Snyder u. Wations 
 
 107 
 
 Spalding ». Hallenbec 
 
 k 16 
 
 Spalding v. Vincent 
 
 . 84 
 
 Spear v. Eichardson 
 
 49 
 
 Spiers v. Willison 
 
 . 90 
 
 Sprague «. Cadwell 
 
 131 
 
 Starks u People . 
 
 . 133 
 
 State V. Beehe 
 
 . 114 
 
 State ». Benner 
 
 114, 128 
 
 State «. Berg . . 
 
 . 89 
 
 State V. Carr . . 
 
 . 23 
 
 State ». De Wolf . 
 
 . 107 
 
 State V. Fassett . 
 
 . 114 
 
 State V. Garrett . 
 
 . 129 
 
 State «. Oilman . 
 
 . . 33 
 
 State «. Jackson . 
 
 . 58 
 
 State ». Knapp 
 
 . . 8 
 
 State V. Lull . . 
 
 . . 136 
 
 State «. March 
 
 . . 139 
 
 State V. McLeod . 
 
 . . 114 
 
 State B. Mitchell . 
 
 . . 24 
 
 State V. Ober . . 
 
 . . 120 
 
 State «. Pettaway 
 
 . . 98 
 
 State -0. Potter 
 
 . . 23 
 
 State v. Powers . 
 
 . . 58 
 
 State V. Staples 
 
 . . 82 
 
 State 0. Tozier 
 
 . . 57 
 
 State ». Upham . 
 
 . . 57 
 
 State V. Whitten . 
 
 . . 107 
 
 State ®. Williams . 
 
 58 
 
 State Bank «. Curran 
 
 . 58 
 
 Stegall V. Stegall . 98 
 
 Stein ». Bowman . 31, 84 
 Stephen «. State ... 58 
 Sterrett ». Bull . . 25 
 
 Stetson v. City Bank of 
 
 N. O. . . 17 
 
 Still V. Huidekopers . . 93 
 Stoops V. Smith ... 91 
 Story V. Lovett ... 66 
 Stovall «. Banks ... 17 
 Strang «. People . . . 134 
 Strickler v. Todd . . 135 
 Stringfellow v. State . 21 
 Strother v. Lucas . 53 
 
 Studley v. Hall . . .114 
 Sullivan «. Kelly . . 98 
 
 Summons «. State 
 Swearingen v. Harris 38 
 
 Sydlemau «. Beokwith . , 48 
 
 Stm. N. Co. V. Dandridge, 8, 9 
 
 Talbot V. Seeman . . 
 Tappan v. Beardsley 
 Tayloe ». Riggs . . 71, 
 Taylor v. Gould . 
 Taylor «. Peck 
 Teachout u People . 
 Teese ». Huntingdon 
 Texas v. Chiles 
 Thomas v. Sternheimei' 
 Thompson i>. Riggs . 
 Thompson v. Whitman 
 Thorington v. Smith 
 Tilley «. Dawson 
 Tilton «. Emery . 
 Tioga Co. v. So. Creek 
 Township 
 
 83 
 
 43 
 
 , 72 
 
 28 
 
 64 
 
 23 
 
 133 
 
 107 
 
 17 
 
 90 
 
 46 
 
 91 
 
 30 
 
 16 
 
Ixviii TABLE OF AMERICAN CASES CITED. 
 
 Tome V. Parkersburg 
 
 
 United States ii. Pumph 
 
 
 Branch R E. Co. 
 
 53 
 
 rays 
 
 32 
 
 Totten V. TJ. States 
 
 113 
 
 United States i>. Eeynes, 
 
 58 
 
 Treadway v. S. C. & St. 
 
 
 United States v. Eodman 
 
 84 
 
 P. E. Co 
 
 17 
 
 United States ». Spalding, 89 
 
 Truby v. Seybert . 
 
 
 17 
 
 United States v. Tesch 
 
 
 Tucker v. Mass. Cent 
 
 E. 
 
 
 maker 
 
 59 
 
 E. . 
 
 
 49 
 
 United States v. Turner, 
 
 58 
 
 Tucker ». State . 
 
 
 58 
 
 United States v. Veitch . 
 
 36 
 
 Tucker v. Welsh . 
 
 
 131 
 
 United States «. White 
 
 31 
 
 Turner v. Green . 
 
 
 66 
 
 United States v. Wiggins 
 
 84 
 
 Turner v. Yates, 19, 60, 71 
 
 ,73 
 
 United States b. Winches 
 
 
 Turney ii. Evans . 
 
 16 
 
 ter 
 
 72 
 
 
 
 United States c. Wood . 
 
 122 
 
 TJ. 
 
 
 United States ». Woods, 
 
 36 
 
 Union Bank v. Knapp . 
 
 35 
 
 Y. 
 
 
 Union Mutual Ins. Co. v. 
 
 
 
 
 Wilkinson . 
 
 90 
 
 Vanderwerker «. People, 
 
 58 
 
 Union Savings Co. v. 
 
 
 Van Eeimsdyk v. Kane . 
 
 17 
 
 Edwards 
 
 17 
 
 Van Wyck v. Mcintosh, 
 
 52 
 
 United States v. Babcock, 
 
 13 
 
 Vose 1). Dolan . . . 
 
 89 
 
 United States v. Brig 
 
 
 
 
 Burdett 
 
 17 
 
 W. 
 
 
 United States v. Brown, 
 
 130 
 
 
 United States v. Burns 
 
 58 
 
 Walden i>. Canfield 
 
 58 
 
 United States v. Douglas, 
 
 31 
 
 Walker v. Eogers 
 
 49 
 
 United States v. Hay ward 
 
 96 
 
 Ward V. Lewis 
 
 87 
 
 United States v. Hunter, 
 
 32 
 
 Ware v. Ware 
 
 131 
 
 United States v. Knott . 
 
 33 
 
 Watkins v. Holmau . 
 
 33 
 
 United States i). Kurtz . 
 
 33 
 
 Watson v. Walker . 58, 84 
 
 United States ii. La Ven- 
 
 
 Weaver u MoElhenon 
 
 58 
 
 geance 
 
 58 
 
 Weber v. Kingsland . 
 
 6 
 
 United States v. McComb, 
 
 38 
 
 Weed V. Kellogg 
 
 17 
 
 United States v. McMahon 
 
 , 31 
 
 Weeks ». Half 
 
 133 
 
 United States «. Miller . 
 
 31 
 
 Welcome «. Batchelor 
 
 111 
 
 United States v. Moses . 
 
 113 
 
 Welsh V. Barrett . 
 
 37 
 
 United States v. O'Meara, 
 
 8 
 
 Western Md. E. E. Co 
 
 
 United States «. Pahi 
 
 ler. 
 
 58 
 
 V. Manro 
 
 28 
 
TABLE OF AMERICAN OASES CITED. Ixix 
 
 "Westfield «. Warren . . 
 
 31 
 
 Wood V. United States . 
 
 13 
 
 Whalin v. White . . 
 
 103 
 
 Woodruff V. Taylor . . 
 
 43 
 
 Wheeler v. Walker 
 
 33 
 
 Woods V. Banks . . . 
 
 85 
 
 Whitaker v. Salisbury . 
 
 68 
 
 Woods i>. Fitz . . . 
 
 58 
 
 White V. Choutteau . . 
 
 28 
 
 Woolery v. Woolery 
 
 91 
 
 Whitehouse v. Beckford, 
 
 75 
 
 Worthington v. Scribner, 
 
 113 
 
 Whiting v. Barney . . 
 
 115 
 
 
 113 
 
 Whitney v. Gauche . . 
 
 58 
 
 Wright V. Cumsty 
 
 33 
 
 Wilbur «. Selden . . 
 
 32 
 
 Wright V. Phillips . . 
 
 98 
 
 Wilde V. Armsby . . 
 
 89 
 
 Wright ». Schrocder . 
 
 57 
 
 Wilkins v. Stidger 
 
 17 
 
 Wyeth V. Walzl . . . 
 
 140 
 
 Williams v. Common- 
 
 
 
 
 wealth 
 
 33 
 
 
 
 Williams v. Drexel . 
 
 52 
 
 T. 
 
 
 Williams «. State 
 
 33 
 
 
 
 Williamson v. Carroll 
 
 123 
 
 Young V. Edwards . . 
 York River R. R. Co. v. 
 
 94 
 
 Wilson V. Spring . 
 
 17 
 
 
 
 Winn V. Patterson . . 
 
 88 
 
 Williams . . . . 
 
 58 
 
 Winnipiseogee Lake Co. 
 
 
 
 
 V. Young . . . . 
 
 58 
 
 Z. 
 
 
 Withee v. Rowe . . 
 
 49 
 
 
 
 Withers v. Gillespy . . 
 
 138 
 
 Zuchtman v. Roberts 
 
 103 
 
List of Abbreviations. 
 
 A. and E. 
 Atk. . . 
 
 B. and A. 
 B. and Ad. 
 B. and B. 
 B. and C. 
 Beav. . 
 Bell 0. C. 
 Best . . 
 B. and S. 
 Bing. . . 
 Bing. N. C. 
 Bos. and Pul 
 
 B. N. P. 
 Br. P. C. 
 BuUer, N. P 
 
 Cam. . . . 
 Car. and Kir. 
 
 C. B. . . 
 
 
 
 C. B. (N. S.) 
 C. CO.. . 
 
 
 
 Cox Cr. Ca. 
 C. and F. . 
 C. M. and E. 
 C. and Marsh 
 Cowp. . 
 0. and P. . 
 C. and J. 
 
 
 
 BNOLISn AND ISISK 
 
 Adolphus and EUis's Eeports. 
 Atkyns's Reports. 
 
 Barnewall and Alderson's Eeports. 
 
 Barnewall and Adolphus's Eeports. 
 
 Broderip and Bingham's Reports. 
 
 Barnewall and Cresswell's Eeports. 
 
 Beavan's Reports. 
 
 Bell's Crown Cases. 
 
 Best on Evidence, 6th ed. 
 
 Best and Smith's Reports. 
 
 Bingham's Reports. 
 
 Bingham's New Cases. 
 
 Bosanquet and Puller's Reports C. P. 
 
 BuUer's Nisi Prius. 
 
 Brown's Parliamentary Cases. 
 
 Buller's Nisi Prius. 
 
 Campbell's Reports. 
 
 Carrington and Kirwin's Eeports. 
 
 Common Bench Reports. 
 
 Common Bench Reports. New Series. 
 
 Cox's Crown Cases. 
 
 :! 
 
 Clark and Finnelly's Reports. 
 Crompton, Meeson and Roscoe's Reports 
 Carrington and Marshman's Reports 
 Cowper's Reports. 
 Carrington and Paine's Reports. 
 Crompton and Jervis's Reports. 
 
Izxii 
 
 LIST OF ABBREVIATIONS. 
 
 D. and B. . . 
 Dear., or . . 
 Dearsley and P. 
 De Ge. and J. . 
 De G. M. and G. 
 De G. and S. . 
 Den. CO. . . 
 Doug. . . . 
 Dru. and War. 
 
 Dearsley and Bell's Crown Cases. 
 \ Dearsley's Crown Cases. 
 
 De Gex and Jones's Reports 
 
 De Gex, Macnaughten and Gordon. 
 
 De G. and Smale's Reports. 
 
 Denlson's Crown Cases. 
 
 Douglas's Reports. 
 
 Drury and Warren's Reports. 
 
 Ea East's Reports. 
 
 East P. C. . . . East's Pleas of the Crown. 
 
 E. and B. . . . Ellis and Blackburn's Reports. 
 
 Esp Espinasse's Reports. 
 
 Ex Exchequer Reports. 
 
 F. and P. 
 
 Poster and Pinlason's Reports. 
 
 Gen. View Or. Law Stephen's General View of the Criminal 
 Law. 
 
 Hagg. Eccl. R. 
 
 . Haggard's Ecclesiastical Reports. 
 
 Hale P. C. . 
 
 . . Hale's Pleas of the Crown. 
 
 Hare . . . 
 
 . . Hare's Reports. 
 
 H. Bl. . . 
 
 . . H. Blackstone's Reports. 
 
 H. and C. . 
 
 . . Hurlston and Coltman's Reports. 
 
 H. and N. . 
 
 . . Hurlston and Norman's Reports. 
 
 H. L. C. . . 
 
 . . House of Lords Cases. 
 
 Ir. Cir. Rep. 
 
 . . Irish Circuit Reports. 
 
 Ir. Rep. Eq. 
 
 . . Irish Equity Reports. 
 
 Jac. and Wal. 
 
 . . Jacob and Walker's Reports. 
 
 Jehb C. C. . 
 
 . . Jebb's Criminal Cases (Ireland). 
 
 Keen . . . 
 
 . . Keen's Reports, Chancery. 
 
 L. and C. . 
 
 . . Leigh and Cave's Crown Cases. 
 
 Leach . . 
 
 . . Leach's Crown Cases. 
 
 L. J. Ch. . 
 
 . . Law Journal, Chancery. 
 
 L. J. Eq. . 
 
 . . Law Journal, Equity. 
 
ENGLISH AND IRISH 
 
 Ixxiii 
 
 L. J. M. 0. 
 
 . Law Journal, Magistrates' Cases. 
 
 L. J. N. S. . 
 
 . . Law Journal, New Series. 
 
 L. R. Ch. Ap. 
 
 . . Law Reports, Chancery Appeals. 
 
 L. R. C. C. . 
 
 . . Law Reports, Crown Cases Reserved. 
 
 L. R. C. P. . 
 
 . . Law Reports, Common Pleas. 
 
 L. R. Ex. . 
 
 . . Law Reports, Exchequer. 
 
 L. R. Q. B. . 
 
 . Law Reports, Queen's Bench. 
 
 Madd. 
 
 . Maddock's Reports. 
 
 Man. and R. 
 
 . Manning and Ryland's Reports. 
 
 McNally Bv. 
 
 . McNally's Rules of Evidence. 
 
 Moo. C. 0. . 
 
 Moody's Crown Cases. 
 
 M. and G-. . 
 
 Manning and Granger's Reports. 
 
 M. and K. . 
 
 . . Mylne and Keen's Reports. 
 
 M. and M. . 
 
 . . Moody and Malkin's Reports. 
 
 Moo. P. C. 
 
 . . Moore's Privy Council Reports. 
 
 Mo. and Ro. 
 
 . Moody and Robinson's Reports. 
 
 M. and S. . 
 
 . Maule and Selwyn's Reports. 
 
 M. and W. . 
 
 . Meeson and Welsby's Reports. 
 
 Pea. R. . . 
 
 . Peake's Reports. 
 
 PhiU. . . . 
 
 . Phillips's Reports. 
 
 Phi. Ev. . . 
 
 . Phillips on Evidence, 10th ed. 
 
 Price . . . 
 
 . Price's Reports. 
 
 Q.B. . . 
 
 . Queen's Bench Reports. 
 
 R. N. P. 
 
 . Roscoe's Nisi Prius, 13th ed. 
 
 R. and R. . 
 
 . Russell and Ryan's Crown Cases. 
 
 Russ. on Crimes 
 
 . Russell on Crimes, 4th ed. 
 
 Russ. and Myl. 
 
 Russell and Mylne's Reports, 
 
 Selw. N. P. 
 
 . Selwyn's Nisi Prius. 
 
 Simon . . 
 
 . Simon's Reports. 
 
 Simon (N. S.) 
 
 . Simon's Reports. New Series. 
 
 Sim. and Stu. 
 
 . Simon and Stuart's Reports. 
 
 S. L. C, or 
 Smith L. C. 
 
 ■ 'r Smith's Leading Cases, 7th ed. 
 
 Star. . . . 
 
 . • Starkie's Reports. 
 
 Starkie . . 
 
 . Starkie on Evidence, 4th ed. 
 
Ixxiv LIST OF ABBREVIATIONS. 
 
 S. and T. . , . Swabey and Tristram's Reports. 
 
 S. T., or St. Tri. . State Trials. 
 
 Swab. Ad. . . . Swabey's Admiralty Reports. 
 
 T. E Term Reports. 
 
 T. E Taylor on Evidence, 6th ed. 
 
 Tau Taunton's Reports. 
 
 Ve Vesey's Reports. 
 
 Wigram, or . . i "wigram on Extrinsic Evidence. 
 
 Wig. Ext. Ev. . ) 
 
 Wills's Circ. Ev. . "Wills on Circumstantial Evidence. 
 
 AMEBICAW. 
 
 Ala Alabama Reports. 
 
 Allen Allen's Massachusetts Reports. 
 
 Ang. and A. Corp. Angell and Ames on Corporations. 
 
 Ark Arkansas Reports. 
 
 Barb Barbour's Supreme Court of New York 
 
 Reports. 
 Barb. Ch. . . . Barbour's New York Chancery Reports. 
 
 Ben Benedict's U. States Dist. N. Y. Reports. 
 
 Binn Binney's Pennsylvania Reports. 
 
 Blackf Blackford's Indiana Reports. 
 
 Bland .... Bland's Maryland Chaocery Reports. 
 Blatch Blatchford's U. States 2d Circuit Ct. 
 
 Reports. 
 
 Bosw Bosworth's New York Reports. 
 
 Brock Brockenbrough's U. States 4th Circuit 
 
 Ct. Reports. 
 
 Brews Brewster's Pennsylvania Reports. 
 
 Browne .... Browne's Pennsylvania Reports. 
 Busbee .... Busbee's North Carolina Law Reports. 
 
AMERICAN. 
 
 Ixxv 
 
 Cal California Reports. 
 
 Coldw Coldwell's Tennessee Reports. 
 
 Conn Connecticut Reports. 
 
 Cowen .... Cowen's New York Reports. 
 
 Cranch .... Cranch's United States Supreme Court 
 
 Reports. 
 
 Or. C. C. . . . Cranch'aU. States Circuit Court Reports. 
 
 Curtis .... Curtis's U. States 1st Circuit Ct. Reports. 
 
 Cush Cushing's Massachusetts Reports. 
 
 Dall Dallas's United States Supreme Court 
 
 Reports. 
 
 Day Day's Connecticut Reports. 
 
 Denio Denio's New York Reports. 
 
 Dillon .... Dillon's U. S. 8tli Circuit Court Reports. 
 
 Dutclier .... Dutcher's New Jersey Reports. 
 
 E. D. Smith 
 
 Fairfield 
 
 Foster 
 
 Ga. . . 
 Gall. . . 
 Gill . . 
 G. and J. 
 Grat. . . 
 Gray . . 
 Greene 
 Greenleat 
 Gr. Ev. . 
 
 Halst. 
 H. and J. 
 Hawks . 
 Hill . . 
 How. . . 
 
 
 
 How. Pr. 
 
 E. D. Smith's New York Common Pleas 
 Reports. 
 
 Fairfield's Maine Reports. 
 Foster's New Hampshire Reports. 
 
 Georgia Reports. 
 
 Gallison's U. S. 1st Circuit Court Reports. 
 
 Gill's Maryland Reports. 
 
 Gill and Johnson's Maryland Reports. 
 
 Grattan's Virginia Reports. 
 
 Gray's Massachusetts Reports. 
 
 Greene's Iowa Reports. 
 
 Greenleaf's Maine Reports. 
 
 Greenleaf on Evidence. 
 
 Halstead's New Jersey Reports. 
 Harris and Johnson's Maryland Reports. 
 Hawks's North Carolina Reports. 
 Hill's New York Reports. 
 Howard's Supreme Court United States 
 
 Reports. 
 Howard's New York Practice Reports. 
 
Ixxvi 
 
 LIBT OP ABBREVIATIONS. 
 
 Ill 
 
 . Illinois Reports. 
 
 Ind. . . . 
 
 . Indiana Reports. 
 
 Iowa . . . . 
 
 . Iowa Reports. 
 
 Ired 
 
 . Iredell's North Carolina Law Reports. 
 
 Johns. 
 
 . Johnson's New York Reports. 
 
 Johns. Ch. . . 
 
 . Johnson's New York Chancery Reports. 
 
 Jones . . 
 
 . Jones's North Carolina Law Reports. 
 
 Lansing . . 
 
 . Lansing's New York Reports. 
 
 Leigh . . . 
 
 . Leigh's Virgiaua Reports. 
 
 Litt. . . . 
 
 . Littell's Kentucky Reports. 
 
 La. Ann. . . 
 
 . Louisiana Annual Reports. 
 
 Me. ... 
 
 . Maine Reports. 
 
 Martin . . 
 
 . Martin's Louisiana Reports. 
 
 Mart, and Yerg 
 
 . Martin and Yerger's Tennessee Reports. 
 
 Mason . . 
 
 . Mason's U. B. 1st Cir. Court Reports. 
 
 Mass. . . 
 
 . Massachusetts Reports. 
 
 Md. ... 
 
 . Maryland Reports. 
 
 McCord . . 
 
 . McCord's South Carolina Law Reports. 
 
 McLean . . 
 
 . McLean's TJ. States 7th Circuit Court 
 
 
 Reports. 
 
 Metcalf . . 
 
 . . Metcalf s Massachusetts Reports. 
 
 Mich. . . . 
 
 . Michigan Reports. 
 
 Minn. . . 
 
 . Minnesota Reports. 
 
 Minor . . 
 
 . Minor's Alabama Reports 
 
 Miss. . . . 
 
 . Mississippi Reports. 
 
 Mo. ... 
 
 . Missouri Reports. 
 
 Monr. . . 
 
 . Monroe's (T. B.) Kentucky Reports. 
 
 Murph. . . 
 
 . Murphy's North Carolina Reports. 
 
 N. 0. 
 
 . North Corolina Reports. 
 
 N. H. . . 
 
 . New Hampshire Reports. 
 
 N. J. L. . . . 
 
 . New Jersey Law Reports. 
 
 N. Y. 
 
 . New York Court of Appeals Reports. 
 
 N. Y. Sup. Ct. 
 
 . New York Superior Court Reports. 
 
 Nott and McC. 
 
 . Nott and McCord's S. Carolina Reports. 
 
 Ohio . . . 
 
 . Ohio Reports. 
 
 Ohio St. . . 
 
 . Ohio State Reports. 
 

 AMERICAN. Ixxvii 
 
 Paige . . 
 
 . . Paige's New York Chancery Reports. 
 
 Parker's 0. E. 
 
 . . Parker's New York Criminal Reports. 
 
 Para. Bills an 
 
 i N. Parsons on Bills and Notes. 
 
 Pa. St. . . 
 
 . . Pennsylvania State Reports. 
 
 Penn. . . 
 
 . . Penrose and Watts's Pennsylvania 
 
 
 Reports. 
 
 Peters . . 
 
 . . Peters's United States Supreme Court 
 
 
 Reports. 
 
 Pick. . . . 
 
 . . Pickering's Massachusetts Reports. 
 
 Phill. . . . 
 
 . . Phillips's North Carolina Law Reports. 
 
 Phill. Ev. . 
 
 . . Phillips on Evidence, 4th American ed., 
 
 
 Hill and Cowen's Notes. 
 
 Porter . . 
 
 . . Porter's Indiana Reports. 
 
 Rand. . . 
 
 . . Randolph's Virginia Reports. 
 
 Redf. Wills 
 
 . . Redfield on Wills. 
 
 Rev. Stat. U. I 
 
 3. . Revised Statutes of the United States, 
 
 
 1875. 
 
 R. I. 
 
 . . Rhode Island Reports. 
 
 Rob. La. 
 
 . . Robinson's Louisiana Reports. 
 
 Sandf. . . 
 
 . . Sandford's New York Reports. 
 
 Sandf. Cli. . 
 
 . . Sandford's Vice Chancery New York 
 
 
 Reports. 
 
 Sawyer . . 
 
 . . Sawyer's U. States 9th Circuit Court 
 
 
 Reports. 
 
 Seld. . . . 
 
 . . Selden's New York Reports. 
 
 S. and R. . 
 
 . . Sergeant and Rawle's Pennsylvania 
 
 
 Reports. 
 
 Sliepl. 
 
 . . Shepley's Maine Reports. 
 
 Sm. Lea. Cas. 
 
 Smith's Leading Cases, 7th American 
 
 
 ed.. Hare and Wallace's Notes. 
 
 Story . . . 
 
 . , Story's U. S. 1st Circuit Court Reports. 
 
 Story's Bq. Jvi 
 
 r. . Story on Equity Jurisprudence. 
 
 Sumn. . . 
 
 . . Sumner's U. S. 1st Circuit Court Reports 
 
 Swan . . . 
 
 . . Swan's Tennessee Reports. 
 
 Texas 
 
 . . Texas Reports. 
 
 U. S. . . . 
 
 . . United States Reports, Supreme Court 
 
 
 (Otto). 
 
Ixxviii 
 
 LIST OF ABBREVIATIONS. 
 
 Vt. 
 
 Vermont Reports. 
 
 Wall. . . . Wallace's United States Supreme Court 
 
 Keports. 
 Wash. 0. 0. . Washington's XJ. S. 3d Circuit Court 
 
 Reports. 
 Watts .... Watts's Pennsylvania Reports. 
 Watts and S. . . Watts and Sergeant's Pennsylvania 
 
 Reports. 
 
 Wend Wendell's New York Reports. 
 
 W. Va West Virginia Reports. 
 
 Wharton . . . Wharton's Pennsylvania Reports. 
 
 Whar. Ev. . . . Wharton on Evidence. 
 
 Whar. Crim. L. . Wharton on Criminal Law. 
 
 Wheat Wheaton's Reports Supreme Court U. 
 
 States. 
 Wise Wisconsin Reports. 
 
CONTENTS. 
 
 PART I. 
 
 RELEVANCY. 
 
 Chaptbr I. — Pkeliminabt. 
 Art. 1. Definition of Terms . . Page 3-5 
 
 Chapter II. — Of Facts isr issue and Relevant to thb 
 
 ISSUE. 
 
 Art. 3. Facts in issue and Facts relevant to the issue may 
 be proved — 3. Relevancy of Facts forming part of the 
 same transaction as Facts in issue — 4. Acts of Conspira- 
 tors — 5. Title — 6. Customs — 7. Motive, preparation, 
 subsequent conduct — 8. Statements accompanying acts, 
 complaints, statements in presence of a person — 9. Facts 
 necessary to explain or introduce relevant Facts . 6-17 
 
 Chapter III. — Occurrences similar to but unconnected 
 WITH THE Facts est isstrB, Irrelevant except in 
 certain cases. 
 
 Art. 10. Similar but unconnected Facts — 11. Acts showing 
 intention, good faith, etc. — 12. Facts showing system — 
 13. Existence of course of business when deemed to be 
 relevant 18-25 
 
Ixxx CONTENTS. 
 
 Chapter IV. — Heaksat Iekbletant except in ceetain 
 
 CASES. 
 
 Abt. 14. Hearsay and the contents of documents irrelevant. 
 
 Page 26 
 
 Section I. — Hearsay when Relevant. 
 
 Art. 15. Admissions defined — 16. Who may make admis- 
 sions on behalf of others, and when — 17. Admissions by 
 agents and persons jointly interested with parties — 18. 
 Admission by strangers — 19. Admission by person referred 
 to by party — 20. Admissions made without prejudice, or 
 under duress — 21. Confessions defined — 22. Confession 
 caused by inducement, threat, or promise, when irrelevant 
 in Criminal Proceeding — 23. Confessions made upon oath, 
 etc. — 24. Confession made under a promise of secrecy — 
 25. Statements by deceased, insane, or absent persons when 
 deemed to be relevant — 36. Dying declaration as to cause 
 of death — 37. Declarations made in the course of business 
 or professional duty — 28. Declarations against interest — 
 29. Declarations by testators as to contents of will — 30. 
 Declarations as to public and general rights — 31. Declara- 
 tions as to pedigree — 32. Evidence given in former pro- 
 ceeding when relevant . . . 27-57 
 
 Section 11. — Statements in Books, Documents and Records, when 
 relevant. 
 
 Art. 33. Recitals of public facts in statutes and proclama- 
 tions — 34. Relevancy of entry in public record made in 
 performance of duty — 35. Relevancy of statements in 
 works of history, maps, charts and plans — 36. Entries in 
 books of corporations — 37. Entries by party in his own 
 books — 38. Entries made in his own books by a party since 
 deceased, or insane — 39. "Judgment" — 40. All judg- 
 ments conclusive proof of their legal effect — 41. Judgments 
 conclusive as between parties and privies of facts forming 
 ground of judgment — 43. Statements in judgments irrele- 
 vant as between strangers, except in Admiralty and other 
 
CONTENTS. Ixxxi 
 
 cases in rem — 43. Effect of judgment not pleaded as an 
 estoppel — 44. Judgments generally deemed to be irrelevant 
 as between strangers — 45. Judgments conclusive in favor 
 of Judge — 46. Fraud, collusion, or want of jurisdiction 
 may be proved — 47. Judgments of sister states and foreign 
 judgments Page 58-74 
 
 Chapter V. — Opinions, when Relevant and when not. 
 
 Aet. 48. Opinion generally irrelevant — 49. Opinions of 
 experts on points of science or art — 50. Facts bearing 
 upon opinions of experts — 51. Opinion as to handwriting, 
 when deemed to be relevant — 52. Comparison of hand- 
 writings— 53. Opinion as to existence of marriage, when 
 relevant — 54. Grounds of opinion, when deemed to be 
 relevant . . . . 75-83 
 
 Chapter VI. — Character, when deemed to be Relevant 
 
 AND WHEN not. 
 
 Art. 55. Character generally irrelevant in Civil Cases — 56. 
 Evidence of character in Criminal Cases — 57. Character as 
 affecting damages . . . 84r-86 
 
Ixxxii CONTENTS. 
 
 PART II. 
 ON PROOF. 
 
 Ohaptkk VII. — Facts pkoted othbkwisb than by eti- 
 
 DB NCB — JUDIC lAL NOTICE. 
 
 Abt. 58. Of what Facts the court takes judicial notice — 
 59. As to proof of such Facts — 60. Evidence need not be 
 given of Facts admitted . . . Page 87-93 
 
 Chaptbk VIII. —Of Okal Evidkncb. 
 
 Art. 61. Proof of Facts by oral evidence — 63. Oral evidence 
 must be direct 94^95 
 
 Chaptbb IX. — Of DoctmBNTART EviDBNCE — Pbimaby and 
 Sbookdart, AifD Attested Docitmbnts. 
 
 Art. 63. Proof of contents of documents — 64. Primary 
 evidence — 65. Proof of documents by primary evidence — 
 66. Proof of execution of attested documents — 67. Cases 
 in which attesting witness need not be called — 68. Proof 
 when attesting witness denies the execution — 69. Proof of 
 attested document acknowledged under statute — 70. Second- 
 ary evidence — 71. Cases in which secondary evidence relat- 
 ing to documents may be given — 72. Rules as to notice to 
 produce . . . . . 96-107 
 
 Chapter X. — Proof of Public Documents. 
 
 Art. 73. Proof of public documents — 74. Production of 
 document itself — 75. Examined copies — 76. General 
 records of the nation — 77. Exemplifications — 78. Copies 
 equivalent to exemplifications — 79. Certified copies — 80. 
 Little and Brown's edition of U. S. Laws — 81. Legislative 
 acts of states and territories — 82. Records and judicial 
 proceedings of state courts, etc. — 88. Public records of 
 state, etc., not judicial — 84. Foreign acts of state, judg- 
 ments, etc. . ... 108-115 
 
CONTENTS. Ixxxiii 
 
 Chaptbk XI. — Pkesujiptions as to Doctjments. 
 
 Ajit. 85. Presumption as to date of a document — 86. Pre- 
 sumption as to stamp of a document — 87. Presumption as 
 to sealing and delivery of deeds — 88. Presumption as to 
 documents thirty years old — 89. Presumption as to 
 alterations . . . . Page 116-120 
 
 Chapter XII. — Of the ExcLrsioN of Oral by Document- 
 art Evidence, and of the Modification and Inter- 
 pretation OF DOCDMBNTABY BY OrAL EVIDENCE. 
 
 Art. 90. Evidence of terms of contracts, grants and other 
 dispositions of property reduced to a documentary form — 
 91. "What evidence may be given for the interpretation of 
 documents — 92. Cases to which articles 90 and 91 do not 
 apply 121-133 
 
Ixxxiv CONTENTS. 
 
 PART III. 
 
 PKODUCTIOlSr AISTD EFFECT OF 
 EVIDENCE. 
 
 ChAPTBB XIII. — BUBDKN OF PbOOF. 
 
 Akt. 93. He who afBrms must prove — 94 Presumption of 
 innocence — 95. On whom the general burden of proof 
 lies — 96. Burden of proof as to particular Fact — 97. Bur- 
 den of proving Fact to be proved to make evidence 
 admissible Page 134^139 
 
 Chapter XIV. — On Pbesumptions aito Estoppels. 
 
 Abt. 98. Presumption of legitimacy — 99. Presumption of 
 death from seven years' absence — 100. Presumption of 
 lost grant — 101. Presumption of regularity and of deeds 
 to complete title — 102. Estoppel by conduct — 103. Estop- 
 pel of tenant and licensee — 104. Estoppel of acceptor of 
 bill of exchange — 105. Estoppel of bailee, agent and 
 licensee 140-149 
 
 Chaptbb XV. — Of the Competency of Witnesses. 
 
 Abt. 106. Who may testify — 107. What witnesses are 
 incompetent — 108. Competency in Criminal Cases — 109. 
 Husband and wife — 110. Communications during mar- 
 riage — 111. Judges, their competency and privileges — 
 113. Evidence as to afEairs of state — 113. Information as 
 to commission of offenses — 114. Competency of jurors — 
 115. Professional communications — 116. Confidential com- 
 munications with legal advisers — 117. Clergymen and 
 medical men — 118. Production of documents by witness 
 not a party — 119. Production of documents in the posses- 
 sion of attorneys or solicitors — 130. Witness not to be 
 compelled to criminate himself — 131. Corroboration, when 
 required — 133. Number of witnesses 150-166 
 
CONTENTS. Ixxxv 
 
 Chapter XVI — Of taking Okal Evidence, and op the 
 Examination of Witnesses. 
 
 Akt. 123. Evidence to be upon oath, except in certain cases 
 — 124. Fonn of oatlis — 135. How oral evidence may be 
 taken — 126. Examination in chief , cross-examination and 
 re-examination — 127. To what matters cross-examination 
 and re-examination must be directed — 128. Leading ques- 
 tions — 139. Questions lawful in cross-examination — 130. 
 Exclusion of evidence to contradict answers to questions 
 testing veracity — 131. Statements Inconsistent with pres- 
 ent testimony may be proved — 132. Cross-examination as 
 to previous statements in writing — 133. Impeaching credit 
 of witness — 184. Offenses against women — 135. What 
 matters may be proved in reference to declarations relevant 
 under articles 25-32 — 136. Refreshing memory — 137. 
 Eight of adverse party as to writing used to refresh mem- 
 ory — 138. Giving, as evidence, document called for and 
 produced on notice — 139. Using, as evidence, a document, 
 production of which was refused on notice, Page 167-183 
 
 Chaptbb XVII. — Of Improper Admission and Rejection 
 OF Evidence. 
 
 Art. 140 . . 184 
 
 Appendix A. 
 Fourth and seventeenth sections of Statute of Frauds, 185-186 
 
 Sir James F. Stephen's Appendix of Notes . 187 
 
 Index . ... 249 
 
A DIGEST 
 
 LAW OF EVIDENCE 
 
 EstaMshed in tlie United States. 
 
A DIGEST 
 
 OF THE 
 
 Law of Evidence 
 
 AS ESTABLISHED IN THE UNITED STATES. 
 
 PART I. 
 
 RELEVANCY. 
 
 CHAPTEE I. 
 
 PRELIMINARY. 
 
 Aeticlb 1.* 
 definition of teems. 
 
 In this book the following words and expressions 
 are used in the following senses unless a different 
 intention appears from the context. 
 
 " Judge " includes all persons authorized to take 
 evidence, either by law or by the consent of the 
 parties. 
 
 " Fact " includes the fact that any mental condi- 
 tion of which any person is conscious exists. 
 
 "Document" means any substance having any 
 
 * See Note I. 
 
4 A DIGEST OF THE [Part I. 
 
 matter expressed or described upon it by marks 
 capable of being read. 
 "Evidence" means — 
 
 (1) Statements made by witnesses in court under 
 a legal sanction, in relation to matters of fact under 
 inquiry; 
 
 such statements are called oral evidence ; 
 
 (2) Documents produced for the inspection of 
 the court or judge ; 
 
 such documents are called documentary evidence ; 
 
 " Conclusive proof " means evidence upon the 
 production of vt^hich, or a fact upon the proof of 
 which, the judge is bound by law to regard some 
 fact as proved, and to exclude evidence intended to 
 disprove it. 
 
 " A Presumption " means a rule of law that courts 
 and judges shall draw a particular inference from a 
 particular fact, or from particular evidence, unless 
 aiUd until the truth of such inference is disproved. 
 
 The expression "facts in issue" means — 
 
 (1) All facts which, by the form of the pleadings 
 in any action, are affirmed on one side and denied 
 on the other ; 
 
 (2) In actions in which there are no pleadings or 
 in which the form of the pleadings is such that dis- 
 tinct issues are not joined between the parties, aJA^ 
 facts from the establishment of which the existence, 
 non-existence, nature, or extent of any right, liabil- i 
 
Chap. I] LAW OF ETIDENCB. 5 
 
 ity, or disability asserted or denied in any such case 
 would by law follow. 
 
 The word " relevant " means that any two facts 
 to which it is applied are so related to each other 
 that according to the common course of events one 
 either taken by itself or in connection with other 
 facts proves or renders probable the past, present, 
 or future existence or non-existence of the other. 
 
A DIGEST OP THE [Pabt I. 
 
 CHAPTER II. 
 
 OF FACTS IN ISSUE AND RELEVANT TO THE ISSUE. 
 
 Aeticle 2.* 
 
 facts in issue and facts kelevajitt to the 
 issue mat be peoved. 
 
 Evidence may be given in any proceeding of any 
 fact in issue, 
 
 and of any fact relevant to any fact in issne unless 
 it is hereinafter declared to be deemed to be irrele- 
 vant, 
 
 and of any fact hereinafter declared to be deemed 
 to be relevant to the issue whether it is or is not 
 relevant thereto. 
 
 Provided that the judge may exclude evidence 
 of facts which, though relevant or deemed to be 
 relevant to the issue, appear to him too remote to be 
 material under aU the circumstances of the case, [a] 
 
 Illustration. 
 
 {a) A is indicted for the murder of B, and pleads not guilty. 
 
 The following facts may be in issue : The fact that A killed 
 B ; the fact that at the time when A killed B he was prevented 
 by disease from knowing right from wrong; the fact that A 
 
 * See Note II. 
 
 [a] Lucas v. Brooks, 18 Wall., 436, 454. 
 
Chap. II.] LA W Off EVIDENCE. J 
 
 had received from B such provocation as would reduce his 
 offense to manslaughter. 
 
 The fact that A was at a distant place at the time of the 
 murder would be relevant to the issue; the fact that A had a 
 good character would be deemed to be relevant; the fact that 
 C on his deathbed declared that C and not A mm-dered B 
 would be deemed not to be relevant. 
 
 Aeticle 3. 
 
 eelevanot of facts forming paet of the same 
 teansaction as facts in issue. 
 
 Facts which, though not in issue, are so connected 
 with a fact in issue as to form part of the same 
 transaction or subject-matter, are deemed to be 
 relevant to the fact with which they ai-e so con- 
 nected, [a] 
 
 JUustraiions. 
 
 (a) The question is, whether A murdered B by shooting 
 him. 
 
 The fact that a witness in the room with B, just before he 
 was shot, saw a man with a gun in his hand pass a window 
 opening into the room in which B was shot, and thereupon 
 exclaimed, "That's the butcher!" (a name by which A was 
 known), is deemed to be relevant.' 
 
 (b) The question is, whether A committed manslaughter on 
 B by carelessly driving over him. 
 
 A statement made by B as to the cause of the accident, as 
 
 1 ij. D. Foulkes, per Campbell, C. J., Leicester Spring 
 Assizes, 1856. Ex relatione O'Brien, Serjt. 
 
 [a] Behucliardiv. Aliens, 1 Wall., 359, 367; Steam jS'iiv. Co. v. 
 Dandridge, 8 G. & J., 348, 315; ButUr v. Watkins, 13 Wall., 
 457, 464; Dietsch v. Wiggins, 15 Wall., 540, 546; Paine v. Farr, 
 118 Mass., 74; Com. v. Costley, 118 Mass., 1. 
 
8 A DIGEST OF THE [Pabt I. 
 
 soon as he was picked up, is deemed to be relevant, though it 
 may not be a dying declaration within article 36.' 
 
 (fl) The question is, whether A, the owner of one side of the 
 river, owns the entire bed of it, or only half the bed, at a par- 
 ticular spot. The fact that he owns the entire bed lower 
 down is deemed to be relevant.2 
 
 (d) The question is, whether a slip of land by the roadside 
 belongs to the lord of the manor or to the owner of the adja- 
 cent land. The fact that the lord of the manor owned other 
 parts of the slip of land by the side of the same road Is 
 deemed to be relevant. ' 
 
 Article i* 
 
 ACTS OF OONSPIEATOES. 
 
 When two or more persons conspire together to 
 commit any ofEense or actionable wrong, everything 
 said, done, or written by any one of them in the 
 execution or furtherance of their common purpose, 
 is deemed to be so said, done or written by every 
 one, and is deemed to be a relevant fact as against 
 each of them ; but statements as to measures taken 
 in the execution or furtherance of any such common 
 purpose are not deemed to be relevant as such as 
 against any conspirators, except those by whom or 
 in whose presence such statements are made. Evi- 
 dence of acts or statements deemed to be relevant 
 
 * See Note ILL 
 
 > B. V. Foster, 6 C. & P., 325. The judges (Park, J., Gur- 
 ney, B., and Patteson, J.) who decided this case referred to 
 Aveson ». Lord Kinnaird, 6 Ea., 193. See article 11, Illustra- 
 tion (m). 
 
 2 Jonea v. Williams, 2 M. & W., 336. 
 
 3 Doe V. Kemp, 7 Bing., 333 ; 2 Bing. N. C, 103, 
 
Chap. II.] LAW OF EVIDENCE. 9 
 
 under this article may not be given until the judge 
 is satisfied that, apart from them, there are prim4 
 facie grounds for believing in the existence of the 
 conspiracy to which they relate. [aJ 
 
 Illust/rations. 
 
 (a) The question is, whether A and B conspired together to 
 cause certain imported goods to be passed through the custom 
 house on payment of too small an amount of duty. 
 
 The fact that A made in a book a false entry, necessary to 
 be made in that book in order to carry out the fraud, is 
 deemed to be a relevant fact as against B. 
 
 The fact that A made an entry on the counterfoil of his 
 cheque book showing that he had shared the proceeds of the 
 fraud with B, is deemed not to be a relevant fact as against B. ' 
 
 (*) The question is, whether A committed high treason by 
 imagining the king's death ; the overt act charged is that he 
 presided over an organized political agitation calculated to 
 produce a rebellion, and directed by a central committee 
 through local committees. 
 
 The facts that meetings were held, speeches delivered, and 
 papers circulated in different parts of the country, in a man- 
 ner likely to produce rebellion by and by the direction of per- 
 sons shown to have acted in concert with A, are deemed to 
 be relevant facts as against A, though he was not present at 
 those transactions, and took no part in them personally. 
 
 An account given by one of the conspirators in a letter to a 
 friend, of his own proceedings in the matter, not intended to 
 further the common object, and not brought to A's notice, is 
 deemed not to be relevant as against A. 2 
 
 1 S. «. Slake, 6 Q. B., 137-40. 
 
 2 a. V. Hardy, 24 S. T. , passim, but see particularly 451-3. 
 
 [a] American Fur Co. v. U. S.,2 Peters, 358, 365 ; Orownin- 
 shield's Case, 10 Pick., 497 ; Lincoln «. Claflin, 7 Wall., 133, 
 139 ; Nudd v. Burrows, 91 U. S., 426, 438. 
 
10 A DIGEST OF THE [Part I. 
 
 Article 5.* 
 
 TITLE. 
 
 When the existence of any right of property, or 
 of any right over property is in question, every fact 
 wliich constitutes the title of the person claiming 
 the right, or which shows that he, or any person 
 through whom he claims, was in possession of the 
 property, and every fact which constitutes an exer- 
 cise of the right, or which sLows that its exercise 
 was disputed, or which is inconsistent with its exis- 
 tence or renders its existence improbable, is deemed 
 to be relevant, [a] 
 
 IllustratioTis. 
 
 (a) The question is, whetlier A has a right of fishery ia a 
 river. 
 
 An ancient inqwisitio post mortem finding the existence of a 
 right of fishery in A's ancestors, licenses to fish granted by his 
 ancestors, and the fact that the licensees fished under them, 
 are deemed to be relevant.' 
 
 (b) The question is, whether A owns land. 
 
 The fact that A's ancestors granted leases of it is deemed to 
 be relevant. 2 
 
 * See Note 17. 
 
 1 Rogers v. Allen, 1 Camp., 309. 
 
 2 Doe V. Pulman, 3 Q. B., 632, 633, 626 (citing Duke of Bed- 
 ford V. Lopes). The document produced to show the lease 
 was a counterpart signed by the lessee. See post, art. 64. 
 
 [a] 2 Gr. Ev., sections 303 to 335 and 553 to 558, both 
 Inclusive, with American cases cited in notes; 2 Whar. Ev., 
 section 1331, etc. 
 
Chap. II.] LAW OF EVIDENCE. H 
 
 (c) The question is, wlietlier there is a public right of way 
 over A's land. 
 
 The facts that persons were in the habit of using the way, 
 that they were turned back, that the road was stopped up, 
 that the road was repaired at the public expense, and A's title 
 deeds showing that for a length of time, reaching beyond the 
 time when the road was said to have been used, no one had 
 power to dedicate it to the public, are all deemed to be rele- 
 vant.' 
 
 Aeticle 6. 
 
 CUSTOMS. 
 
 "When the existence of any custom is in question, 
 every fact is deemed to be relevant which shows 
 how, in particular instances, the custom was under- 
 stood and acted upon by the parties then inter- 
 ested, [a] 
 
 Illustrations. 
 
 (a) The question is, whether, by the custom of borough- 
 English as prevailing in the manor of 0, A is heir to B. 
 
 The fact that other persons, being tenants of the manor. 
 Inherited from ancestors standing in the same or similar rela- 
 tions to them as that in which A stood to B, is deemed to be 
 relevant. 2 
 
 ■ Common practice. As to the title deeds, Brough v. Lord 
 Scarsdale, Derby Summer Assizes, 1865. 
 
 2 Muggletgn v. Barnett, 1 H. & N. , 283. For a late case of 
 evidence of a custom of trade, see Ex parte Powell, in re 
 Matthews, L. R. 1 Ch. D., 501. 
 
 [a] Knowles v. Bow, 22 N. H. (2 Fost.), 403 ; Hotclikiss v. 
 Artisans' Bank, 42 Barb., 517 ; Weber ». Kingsland, 8 Bosw. 
 (N. Y.), 415. 
 
12 A DIGEST OF THE [Paet I. 
 
 Aeticle 7. 
 motive, peepaeation, subsequent conduct. 
 When there is a question whether any act was 
 done by any person, the following facts are deemed 
 to be relevant, that is to say — 
 
 any fact which supplies a motive for such an act, 
 or which constitutes preparation for it ;' [a] 
 
 any subsequent condnct of such person appar- 
 ently influenced by the doing of the act, and any 
 act done in consequence of it or by the authority of 
 that person." [b] 
 
 lUustraUoTis. 
 
 (a) The question is, whether A murdered B. 
 
 The facts that, at the instigation of A, B murdered 
 twenty-five years before B's murder, and that A at or before 
 that time used expressions showing malice against C, are 
 deemed to be relevant as showing a motive on A's part to 
 murder B.^ 
 
 {b) The question is, whether A committed a crime. 
 
 The fact that A procured the instruments with which the 
 crime was committed is deemed to be relevant.* 
 
 (c) A is accused of a crime. 
 
 The facts that, either before or at the the time of, or after 
 the alleged crime, A caused circumstances to exist tending to 
 give to the facts of the case an appearance favorable to him- 
 self, or that he destroyed or concealed things or papers, or 
 
 1 Illustrations (a) and (J). 3 S. v. Olewes, 4 C. & P., 221. 
 
 2 Illustrations (c) (d) and (e). * B. v. Pawner (passim). 
 
 [a] McKee v. People, 36 N. Y., 113 ; KoW «. WMUley, 3 G. 
 & J., 188, 195 ; Oarber s. State, 4 Caldw. (Tenn.), 161, 165. 
 
 [b] JeweU V. Jewell, 1 How., 219, 232; Mitchum v. State 11 
 Ga., 615, 631; Furnas ®. Burgin, 119 Mass., 500. 
 
Chap. II.] LAW OF EVIDENCE. 13 
 
 prevented the presence or procured the absence of persons 
 who might have been witnesses, or suborned persons to give 
 false evidence, are deemed to be relevant.' 
 
 (i) The question is, whether A committed a crime. 
 
 The facts that, after the commission of the alleged crime, 
 he absconded, or was in possession of property or the pro- 
 ceeds of property acquired by the crime, or attempted to 
 conceal things which were or might have been used in com- 
 mitting it, and the manner in which he conducted himself 
 when statements on the subject were made in his presence 
 and hearing, are deemed to be relevant. ' 
 
 («) The question is, whether A suffered damage in a railway 
 accident. 
 
 The fact that A conspired with B, C and D to suborn false 
 witnesses in support of his case is deemed to be relevant,' 
 as conduct subsequent to a fact in issue tending to show that 
 it had not happened. 
 
 Article 8.* 
 statements accomp anting acts, complaints, state- 
 ments in presence of a person. 
 
 Whenever any act may be proved, statements 
 accompanying and explaining that act made by or 
 to the person doing it may be proved if they are 
 necessary to understand it.* [a] 
 
 *See Note V. 
 ' B. V. Patch, Wills Circ. Ev., 330; B. v. Palmer, ub. mp. 
 (passim,.) 
 
 2 Common practice. 
 
 3 Mm-iarty v. London, Ohatham, & Dover By. Co., L. R., 5 
 Q. B., 314; compare Qery v. Bedman, L. R. 1 Q. B. D., 161. 
 
 * Illustrations (a) and (S). Other statements made by such 
 persons are relevant or not according to the rules as to state- 
 ments hereinafter contained. Seech, iv, post. 
 
 [a] Banlc v. Kennedy, 17 Wall., 19, 34; Imnd i>. Tyngs- 
 borouc/n, 9 Cush., 36, 41; XT. 8. v. O'Meara, 1 Cr. 0. C, 165; 
 McDowell, V. Goldsmith, 6 Md., 319, 338. 
 
14 A DIGEST OF THE [Past L 
 
 In criminal cases the conduct of the person 
 against whom the offense is said to have been com- 
 mitted, and in particular the fact that he made a 
 complaint soon after the ofEense to persons to whom 
 he would naturally complain, are deemed to be 
 relevant; but the terms of the complaint itself 
 seem to be deemed to be irrelevant." [a] 
 
 "When a person's conduct is in issue or is deemed 
 to be relevant to the issue, statements made in his 
 presence and hearing by which his conduct is likely 
 to have been affected, are deemed to be relevant 
 facts.' [b] 
 
 IlMuibrattoiM. 
 
 (a) The question is, whether A committed an act of bank- 
 ruptcy, by departing the realm with intent to defraud his 
 creditors. 
 
 Letters written during his absence from the realm, indicat- 
 ing such an intention, are deemed to be relevant facts.* 
 
 (J) The question is, whether A was sane. 
 
 The fact that he acted upon a letter received by him is part 
 of the facts in issue. The contents of the letter so acted 
 
 > Illustration (c). 
 
 2 jB. v. Edmunds, 6 C. and P., 164; Neil v. Jakk, 3 0. and 
 K., 709. 
 
 3 Bmoson v. Saigh, 3 Bing., 99; Bateman v. Bailey, 5 T. 
 R., 513. 
 
 [a] Bacio V. People, 41 N. T. (3 Hand), 365; State v. Knapp, 
 45 N. H., 148, 165; Johnson v. State, 17 Ohio, 593; Com. v. 
 MoPike, 3 Cush., 181, 184. 
 
 [b] QUlain v. Sigman, 39 Cal., 637, 641; People v. Shea, 
 8 Cal., 588; Friend, v. Eamill, 84 Md., 398, 808; Knowlton v. 
 Clark, 35 Ind., 891. 
 
Chap. II.] LAW OF EVIBENOB. 15 
 
 upon are deemed to be relevant, as statements accompanying 
 and explaining such conduct.' 
 
 (c) The question is, whether A was ravished. 
 
 The fact that, shortly after the alleged rape, she made a 
 complaint relating to the crime, and the circumstances under 
 which it was made, are deemed to be relevant, but not (it 
 seems) the terms of the complaint itself.^ 
 
 The fact that, without making a complaint, she said that 
 she had been ravished, is not deemed to be relevant as con- 
 duct under this article, though it might be deemed to be 
 relevant {«. g.) as a dying declaration under article 26. 
 
 Article 9. 
 
 facts necessary to explain or introduce rele- 
 vant facts. ■ 
 
 Facts necessary to be known to explain or intro- 
 duce a fact in issue or relevant or deemed to be 
 relevant to the issue, or which support or rebut an 
 inference suggested by any such fact, or which 
 establish the identity of any thing or person whose 
 identity is in issue, or is or is deemed to be rele- 
 vant to the issue, or which fix the time or place 
 at which any such fact happened, or which show 
 that any document produced is genuine or other- 
 wise, or which show the relation of the parties by 
 whom any such fact was transacted, or which 
 afforded an opportunity for its occurrence or trans- 
 action, or which are necessary to be known in order 
 to show the relevancy of other facts, are deemed 
 
 ' Wright «. Doe d. Tafham, 7 A. and E., 334-5 (per Denman, 
 C. J.) 
 2 R. V. Walker, 3 M. and B., 312. See Note V. 
 
16 A DIGEST OF TEE [Paet I. 
 
 to be relevant in so far as they are necessary for 
 those purposes respectively, [a] 
 
 IVMstratiom. 
 
 (a) The question is, whetlier a writing published by A of 
 B is libelous or not. 
 
 The position and relations of the parties at the time when 
 the libel was published may be deemed to be relevant facts as 
 introductory to the facts in issue. 
 
 The particulars of a dispute between A and B about a 
 matter unconnected with the alleged libel are not deemed to 
 be relevant under this article, though the fact that there was a 
 dispute may be deemed to be relevant If it afEected the rela- 
 tions between A and B. ' 
 
 (J) The question is, whether A wrote an anonymous letter, 
 threatening B, and requiring B to meet the writer at a certain 
 time and place to satisfy his demands. 
 
 The fact that A met B at that time and place is deemed to 
 be relevant, as conduct subsequent to and afEected by a fact 
 in issue. 
 
 The fact that A had a reason, unconnected with the letter, 
 for being at that time at that place, is deemed to be relevant, 
 as rebutting the inference suggested by his presence. * 
 
 (c) A is tried for a riot, and is proved to have marched at 
 the head of a mob. The cries of the mob are deemed to be 
 relevant, as explanatory of the nature of the transaction.^ 
 
 {d) The question is, whether a deed was forged. It pur- 
 ports to be made in the reign of Philip and Mary, and 
 enumerates king Philip's titles. 
 
 The fact that at the alleged date of the deed. Acts of State 
 
 1 Common practice. 
 
 s E. V. BariMTd, 19 St. Tri., 815, etc. 
 
 3 B. 1). Lord George Gordon, 31 St. Tri., 520. 
 
 [a] Steam Wav. Co. v. Dandridge, 8 6. and J., 248, 315; 
 SchucTiardt i>. Aliens, 1 Wall., 359, 367; Bank v. Kennedy, 17 
 Wall., 19, 24; Dieischv. Wiggins, 15 Wall., 540, 546. 
 
CiiAP. II.] LAW OF EVIDENCE. 17 
 
 and other records were drawn with a different set of titles, is 
 deemed to be relevant.' 
 
 («) The question is, whetiier A poisoned B. Habits of B 
 known to A, whicli would afford A an opportunity to admin- 
 ister the poison, are deemed to be relevant faots.^ 
 
 (/) The question is, whether A made a will under undue 
 influence. His way of life and relations with the persons said 
 to have influenced him unduly, are deemed to be relevant 
 facts. 3 
 
 ' L(idy Ivy's Case, 10 St. Tri., 615. 
 
 2 R. v. Vonellan, Wills Ciro. Ev., 192, and see my " General 
 View of the Criminal Law," p. 338, etc. 
 ' Boyse V. Bossborough, 6 H. L. C, 43-53. 
 
 2 
 
18 A DIGEST OF TEE [Part I. 
 
 CHAPTEE III. 
 
 OCCURRENCES SIMILAR TO BUT UNCONNECTED 
 WITH THE FACTS IN ISSUE, IRRELEVANT EX- 
 CEPT IN CERTAIN CASES. 
 
 Article 10.* 
 
 bimilak but tjnconnectbd facts. 
 
 A fact which renders the existence or non-exist- 
 ence of any fact in issue probable by reason of its 
 general resemblance thereto, and not by reason of 
 its being connected therewith in any of the ways 
 specified in articles 3-10, both inclusive, is deemed 
 not to be relevant to such fact except in the cases 
 specially excepted in this chapter, [a] 
 
 Illustrations. 
 
 (fl) The question is, wliether A committed a crime. 
 
 The fact that he formerly committed another crime of the 
 same sort, and had a tendency to commit such crimes, is irrele- 
 vant.' 
 
 * See Note VI. 
 ■jB. v. Cole, 1 Phi. Ev., 508 (said to have been decided by 
 all the judges in Mich. Term, 1810) 
 
 [a] Mailler v. Propeller Co., 61 N. Y., 313; CoU v. Com., 5 
 Grat., 696. See, also, 1 Gr. Ev., sec. 53, and 1 "Whar. Ev., 
 sec. 29. 
 
CHAr. III.] LAW OF EVIDENCE. 19 
 
 (J) The question is, whether A, a brewer, sold good beer to 
 B, a publican. The fact that A sold good beer to C, D and 
 E, other publicans, is irrelevant ' (unless it is shown that the 
 beer sold to all is of the same brewing).^ 
 
 Aeticlb 11.* 
 
 acts showing intbntion, good faith, etc. 
 
 When there is a question whether a person said 
 or did something, the fact that he said or did some- 
 thing of the same sort on a different occasion may 
 be proved if it shows the existence on the occasion 
 in question of any intention, knowledge, good or 
 bad faith, malice, or other state of mind, or of any 
 state of body or bodily feeling, the existence of 
 which is in issue, or is, or is deemed to be relevant 
 to the issue; but such acts or words may not be 
 proved merely in order to show that the person so 
 acting or speaking was likely, on the occasion in 
 question, to act in a similar manner. [aJ 
 
 Illustrations. 
 
 (a) A is charged with receiving two pieces of silk from B, 
 knowing them to have been stolen by him from C. 
 
 The facts that A received from B many other articles stolen 
 by him from C in the course of several months, and that A 
 
 * See Note VI. 
 
 ^Holcomie v. Eewson, 2 Camp,, 391. 
 2 See illustrations to article 3. 
 
 [a] Bottomly v. U. S., 1 Story K., 185, 143; Cnstle v. Bul- 
 Imd, 23 How., 173, 186; Lincoln v. Olaflin, 7 "Wall., 132, 138; 
 Butler V. Waildns, 13 Wall., 457, 464. 
 
20 A DIGE8T OF TEE [Part I. 
 
 pledged all of tlieni, are deemed to be relevant to the fact 
 that A knew that the two pieces of silk were stolen by B 
 from C.i 
 
 (6) A is charged with uttering, on the 12th December, 1854, 
 a counterfeit crown piece, knowing it to be counterfeit. 
 
 The facts that A uttered another counterfeit crown piece on 
 the 11th December, 1854, and a counterfeit shilling on the 4th 
 January, 1855, are deemed to be relevant to show A's knowl- 
 edge that the crown piece uttered on the 12th was counter- 
 feit. « 
 
 (c) A is charged with attempting to obtain money by false 
 pretenses, by trying to pledge to B a worthless ring as a dia- 
 mond ring. 
 
 The facts that two days before A tried, on two separate 
 occasions, to obtain money from and D respectively, by a 
 similar assertion as to the same or a similar ring, and tliat on 
 another occasion on the same day he obtained a sum of money 
 from E,by pledging as a gold chain a chain which was only 
 gilt, are deemed to be relevant, as showing his knowledge of 
 the quality of the ring.' 
 
 (d) A is charged with obtaining money from B by falsely 
 pretending th;it Z had authorized him to do so. 
 
 The fact that on a different occasion A obtained money 
 from C by a similar false pretense, is deemed to be irrelevant,* 
 as A's knowledge that he had no authority from Z on the 
 second occasion liad no connection with his knowledge that 
 he had no authority from Z on the first occasion. 
 
 {f) A sues B for damage done by a dog of B's, which B 
 knew to be ferocious. 
 
 The facts that the dog had previously bitten X, Y and Z, 
 
 1 Dunn's Case, 1 llao. C. C, 146. 
 
 2 E. i>. Foraier, Dear., 456. 
 
 3 U. 1). Francis, L. R., 2 C. C. R., 128. The case of R. v. 
 Cooper, L. R.,. 1 Q. B. D. (C. C. R.), 19, is similar to M. v. 
 Francis, and perhaps stronger. 
 
 iR. D. Holt, Bell C. C, 280. And see R. «. Francis, ub. 
 sup., p. 130. 
 
CuAP. III.] LAW OF EVIDENCE. 21 
 
 and that tliey had made complaints to B, are deemed to be 
 relevant.' 
 
 (/) The question is, whether A, the acceptor of a bill of 
 exchange, knew that the name of the payee was fictitious. 
 
 The fact that A had accepted other bills drawn in the same 
 manner before -they could have been transmitted to him by 
 the payee, if the payee had been a real person, is deemed to 
 be relevant, as showing that A knew that the payee was a 
 fictitious person. 2 
 
 (jj) A sues B for a malicious libel. Defamatory statements 
 made by B regarding A, for ten years before those in respect 
 of which the action is brought are deemed to be relevant to 
 show malice.' 
 
 (A) A is sued by B for fraudulently representing to B that 
 C was solvent, whereby B, being induced to trust C, who was 
 insolvent, suffered loss. 
 
 The fact that, at the time when A represented C to be sol- 
 vent, C was, to A's knowledge, supposed to be solvent by his 
 neighbors and by persons dealing with him, is deemed to be 
 relevant, as showing that A made the representation in good 
 faith. 4 
 
 (i) A is sued by B for the price of work done by B, by the 
 order of C, a contractor, upon a house, of which A is owner. 
 
 A's defense is that B's contract was with C. 
 
 The fact that A paid C for the work in question is deemed 
 to be relevant, as proving that A did, in good faith, make 
 over to C the management of the work in question, so that 
 was in a position to contract with B on O's own account, and 
 not as agent for A.^ 
 
 (J) A is accused of stealing property which he had found, 
 and the question is, whether he meant to steal it when he took 
 possession of it. 
 
 The fact that public notice of the loss of the property had 
 
 ' See cases collected in Roscoe's Nisi Prius, 739. 
 
 i Gibson «. Hunter, 3 H. Bl., 288. 
 
 3 Barrett V. Long, 3 H. L. C, 395, 414. 
 
 ' Sheen v. Bumpstead, 3 H. and C. , 193. 
 
 ^Oerish v. Chartier, 1 C. B., 13. 
 
22 A DIGEST OF TEE [Part 1. 
 
 been given in the place where A was, and in such a manner 
 that A knew or probably might have known of it, is deemed 
 to be relevant, as showing that A did not, when he took pos- 
 session of it, in good faith believe that the real owner of the 
 property could not be found.' 
 
 (Jc) The question is, whether A is entitled to damages from 
 B, the seducer of A's wife. 
 
 The fact that A's wife wrote affectionate letters to A before 
 the adultery was committed, is deemed to be relevant, as 
 showing the terms on which they lived and the damage which 
 A sustained. 2 
 
 (J) The question is, whether A's death was caused by 
 poison. 
 
 Statements made by A before his illness as to his state of 
 health, and during his illness as to his symptoms, are deemed 
 to be relevant facts.' 
 
 (m) The question is, what was the state of A's health at the 
 time when an insurance on her life was effected by B. 
 
 Statements made by A as to the state of her health at or 
 near the time in question are deemed to be relevant facts.* 
 
 (n) The question is, whether A, the captain of a ship, knew 
 tliat a port was blockaded. 
 
 The fact that the blockade was notified in the Gazette is 
 deemed to be relevant." 
 
 ' This illustration is adapted from Preston's Case, 2 Den. 
 C. C, 353; but the misdirection given in that case is set right. 
 As to the relevancy of the fact, see in particular Lord Camp- 
 bell's remark on p. 339. 
 
 2 Trelawney v. Coleman, 1 B. and A. , 90. 
 
 3jB. v. Palmer. See my "Gen. View of Crim. Law," p. 
 363, 377 (evidence of Dr. Savage and Mr. Stephens). 
 
 iAmsonii. Lord Kinnaird, 6 Ea., 18ci. 
 
 5 Harratt v. Wise, 9 B. and C, 713. 
 
Chap. Ill] LAW OF EVIDENCE. 23 
 
 Aeticle 12.* 
 facts showing system. 
 Wlien there is a question whether an act was 
 accidental or intentional, the fact that such act 
 formed part of a series of similar occurrences, in 
 each of which the person doing the act was con- 
 cerned, is deemed to be relevant, [a] 
 
 IllustratioTis. 
 
 (a) A is accused of setting fire to his house In order to 
 ohtain money for which it is insured. 
 
 The facts that A had previously lived in two other houses 
 successively, each of which he insured, in each of which a 
 flre occurred, and that after each of those fires A received 
 payment from a different insurance ofiice, are deemed to be 
 relevant, as tending to show that the fires were not acci- 
 dental.' 
 
 (J) A is employed to pay the wages of B's laborers, and it is 
 A's duty to make entries in a book showing the amounts paid 
 by him. He makes an entry showing that on a particular 
 occasion he paid more than he really did pay. 
 
 The question is, whether this false entry was accidental or 
 intentional. 
 
 The fact that for a period of two years A made other simi- 
 lar false entries in the same book, the false entry being in 
 each case in favor of A, is deemed to be relevant. 2 
 
 *SeeNote VI. 
 
 1 B. v. Gray, 4 F. and F., 1103. 
 
 2 iJ. V. Eicharciaon, 2 F. and F., 343. 
 
 [a] Wood V. U. S., 16 Peters, 342, 360- Bottoialy v. U. S., 
 1 Story R., 135, 143: Faucett v. NiclwU, 04 N. Y., 383; FricTid 
 V. Hamill, 34 Md., 398, 306. 
 
24 A DIGEST OF THE [Pakt [. 
 
 (c) The question is, whether the administration of poison to 
 A, by Z, liis wife, in September, 1848, was accidental or in- 
 tentional. 
 
 The facts that B, C and D (A's three sons), had the same 
 poison administered to them in December, 18'i8, March, 1849, 
 and April, 1849, and that the meals of all four were prepared 
 by Z, are deemed to be relevant, though Z was indicted separ- 
 ately for murdering A, B and C, and attempting to mur- 
 der D.i 
 
 Article 13.* 
 
 existence of cottrsb of business when deemed 
 to be eelevant. 
 
 When there is a question whether a particular 
 act was done, the existence of any course of office 
 or business, according to which it naturally would 
 have been done, is a relevant fact. [aJ 
 
 When there is a question whether a particular 
 person held a particular public office, the fact that 
 he acted in that office is deemed to be relevant.' [b] 
 
 IllustrationJi. 
 
 (a) The '{uestion is, whether a letter was sent on a, given 
 day. 
 
 * See Note VII. 
 
 liJ. V. Oeering, 18 L. J. M. C, 315; cf. R. v. Garner. 3 F. 
 andF., 681. 
 
 « 1 Ph. Ev., 449; R. N. P., 40; T. E., s. 139. 
 
 [a] Bussard v. Levering, 6 Wheat., 102; Lindenburger «. 
 Bell, lb., 104; XT. S. ii. Babcock, 3 Dillon C. C, 571; Ut Nat. 
 Bk. 1!. MaManigle, 09 Pa. St., 156; 1 Gr. Ev., sees. 38, 40; 
 1 WharEv., sees. 1320, 1330. 
 
 [b] Bank U. S. a. Dandridge, 12 Wheat., 64, 70; McCoy ii. 
 Curtice, 9 Wend., 17. 
 
(^HAP. Ill] LAW OF EVIDENCE. 25 
 
 The post-mark upon it is deemed to be a relevant fact.' 
 
 (i) Tlie question is, whetlier a particular letter was 
 dispatched. 
 
 The facts that all letters put in a certain place were, in the 
 common course of business, carried to tlie post, and that that 
 particular letter was put in that place, are deemed to be 
 relevant.* 
 
 (c) The question is, whether a particular letter reached A. 
 
 The facts that it was posted in due course proiierly 
 addressed, and was not returned through the dead letter 
 offlce, are deemed to be relevant.^ 
 
 ' R. V. Canning, 19 S. T., 370. 
 
 ^ Hethenngton d. Kemp, 4 Camp., 193, and see SMlbeck v. 
 Garbeit. 7 Q. B, , 840. 
 
 3 Wavren a. Wurren, 1 C. M. and E., 250; Woodcock ■». 
 HouldswoHh, 16 M. and W , 134. Many cases on this subject 
 are collected in Roscoe's Nisi Prius, pp. 374-5. 
 
26 A DIGEST OF THE [Paet I. 
 
 CHAPTER IV. 
 
 HEARSAY IRBELEVANT EXCEPT IN CERTAIN 
 
 CASES. 
 
 Article 14.* 
 heaesat and the contents of documents 
 
 lEKELEVANT. 
 
 (a) The fact that a statement was made by a per- 
 son not called as a witness, and, 
 
 (5) the fact that a statement is contained or 
 recorded in any book, document or record what- 
 ever, proof of which is not admissible -on other 
 grounds, 
 
 are respectively deemed to be irrelevant to the 
 truth of the matter stated, except (as regards (a) ) 
 in the cases contained in the first section of this 
 chapter, ' 
 
 and except (as regards (h) ) in the cases contained 
 in the second section of this chapter, [a] 
 
 * See Note VIII. 
 
 • It is important to observe the distinction between the 
 principles which regulate the admissibility of the statements 
 contained in a document and those wliich regulate the manner 
 in which they must be proved. On this subject see the whole 
 of Part II. 
 
 [a] Mina Queen v. Hepburn, 7 (Jranch, 2il0, 395 
 
Chap. IV.] LAW OF EVIDENCE. 27 
 
 Illustrations. 
 
 (a) A declaration by a deceased attesting^ witness to a deed 
 that he had forged it, is deemed to he irrelevant to the ques- 
 tion of its validity.' 
 
 (5) The question is, whether A committed murder by caus- 
 ing B to be executed by martial law. The finding of a com- 
 mission of inquiry into the facts of the case would be deemed 
 to be irrelevant even if the commission had power by statute 
 to take evidence on oath.2 
 
 SECTIOISr I. 
 HEARSAY WHEN BE LEVANT. 
 
 Aetiole 15.* 
 ADMISSIONS DEFINED. 
 
 An admission is a statement, oral or written, sug- 
 gesting any inference as to any fact in issue, or 
 relevant or deemed to be relevant to any sncli faet, 
 made by or on behalf of any party to any proceed- 
 ing. Every admission is (subject to the rules here- 
 inafter stated) deemed to be a relevant fact as 
 against the person by or on whose behalf it is made, 
 but not in his favor unless it is or is deemed to be 
 relevant for some other reason. 
 
 * See Note IX. 
 
 • Stola/rt V. Dryden, 1 M. and W., 615. 
 
 2 Suggested by the proceedings against Mr. Eyre In 1867. 
 I suppose, if the case had gone to trial, no one would have 
 even thought of tendering the report of the Jamaica comuiis- 
 sion in evidence. 
 
A DIGEST OF THE [Part I. 
 
 Article 16.* 
 who mat make admissions on behalf of others, 
 
 AND WHEN. 
 
 Admissions may be made on behalf of the real 
 party to any proceeding — 
 
 By any nominal party to that proceeding ; [a] 
 
 By any person who, though not a party to the 
 proceeding, has a substantial interest in the 
 event; [b] 
 
 By any one who is privy in law, [o] in blood [d] 
 or in estate [e] to any party to the proceeding on 
 behalf of that party. 
 
 A statement made by a party to a proceeding 
 may be an admission whenever it is made, [f] 
 
 * See Note X. 
 
 [a] Turney v. Emm, 14 N. H., 343; Beatiy i). Davis, 9 GUI., 
 311; Smith v. Palmer, 6 Cush., 513; Loomis v. Wadharm, 8 
 Gray, 557. 
 
 [b] Pike V. Wiggin, 8 N. H., 356; Bigelow v. Foss, 59 
 Me., 162. 
 
 [c] Emerson -o. Thompson, 16 Mass., 429; McNight v. 
 McNight, 20 Wis., 446. 
 
 [d] TUton V. Emery, 17 N. H., 536; Fetherly v. Waggoner, 
 11 Wend., 599; Spalding v. Hallenbeck, 35 N. Y., 204. 
 
 [b] Daggett v. Sluiw, 5 Mete. , 223 ; ©rate ». Beates, 45 Pa. 
 St., 495; Ouy v. Sail, 3 Murpli. (N. C), 150. 
 
 [f] Ooldsborough v. Baker, 3 Cranch 0. C, 48; Green v. 
 Gould, 3 Allen, 465; Dillon v. Ghouteaa, 7 Mo., 386; Campbell 
 V. Day, 16 Vt., 588. 
 
Chap. IV.] LAW OF EVIBENOE. 29 
 
 unless it is made by a person suing or sued ia a 
 representative character only, in which case (it 
 seems) it must be made whilst the person making 
 it sustains that character, [a] 
 
 A statement made by a person interested in a 
 proceeding, or by a privy to any party thereto, is 
 not an admission unless it is made during the con- 
 tinuance of the interest which entitles him to 
 make it. [b] 
 
 Illustrations. 
 
 (a) The assignee of a bond sues the obligor in the name of 
 the obligee. 
 
 An admission on the part of the obligee that the money 
 due has been paid is deemed to be relevant on behalf of the 
 defendant.! 
 
 (b) An admission by the assignee of the bond in the last 
 illustration would also be deemed to be relevant on behalf of 
 the defendant. 
 
 (c) A statement made by a person before he becomes the 
 assignee of a bankrupt is not deemed to be relevant as an 
 admission by him in a proceeding by liim as such assignee.^ 
 
 (d) Statements made by a person as to a bill of which he 
 had been the holder are deemed not to be relevant as against 
 the holder, if they are made after he has negotiated the bill. 3 
 
 1 Sqe Mo-riarty v. L. C. & D. Co., L. R., 5 Q. B., 320. 
 
 2 Fenwick v. Thornton, M. and M., 51 (by Lord Tenderden). 
 In Smith V. Mofgan, 3 M. and R., 257, Tindal, C. J., decided 
 exactly the reverse. 
 
 3 Pocock V. Billing, 3 Ring., 209. 
 
 [a.] Mason v. Poulson, Admr., 40 Md., 355, 365; Beatty v. 
 Davis, 9 Gill., 311. \ 
 
 [b] Mandeville v. Welch, 5 Wheat. , 377, 283 ; Ozbings i:. Low, 
 5 G. and J., 134, 145; Padgett v. Lawrence, 10 Paige, 170, 180; 
 Frea/r V. Evertson, 30 Johns., 143. 
 
30 A DIGEST OF THE [Part I. 
 
 Aeticlb 17.* 
 
 admissions by agents and persons jointly intee- 
 ested with pauties. 
 
 Admissions may be made by agents authorized 
 to make them either expressly or by the conduct 
 of their principals ; but a statement made by an 
 agent is not an admission merely because if made 
 by the principal himself it would have been one ; 
 [to bind the latter it must be made in reference to 
 the business in which the agent is at the time 
 employed and within the scope of his authority.] [a] 
 
 Partners and joint contractors are each other's 
 agents for the purpose of making admissions against 
 each other in relation to partnership transactions or 
 joint contracts, [b] 
 
 *See Note XI. 
 
 [a] Gliquot's Ghampagne, 3 Wall., 114, 140; U. 8. «. Srig 
 Burdett, 9 Peters, 683, 689; Thomas v. Stsrnlieimer, 29 Md., 
 268, 271. 
 
 [b] Weed v. Kellogg, 6 McLean, 44; Bank U. 8. v. Lyman, 
 30 Vt., 666, 670; Mumon 1>. Wickwire, 31 Conn., 513; 2 Sm. 
 Lea. Ca. , *387. According to the weight of American author- 
 ity, admissions made by a partner after the dissolution of a 
 partnership relating to acts done during its existence are inad- 
 missible against the other partners. Baker v. 8tackpoole, 9 Cow. 
 420, 423, and other cases cited in note to 2 Whar. Ev. , sec. 
 1196. But a contrary doctrine has been held by some of the 
 courts. Parker v. Merrill, 6 Greeul. , 41 ; Van, Meimsdyk «. 
 Kane, 1 Gall., 631, G35; Loomis v. Loomis, 36 Vt., 198, 203, and 
 see 1 Gr. Ev., sec. 112. 
 
Chap. IV.] LAW OF EVIDENCE. 31 
 
 [Counsel and attorneys of record] are the agents 
 of their clients for the purpose of making admissions 
 whilst engaged in the actual management of the 
 cause^ either in court or in correspondence relating 
 thereto ; but statements made by [attorneys or coun- 
 sel] on other occasions are not admissions merely 
 because they would be admissions if made by the 
 cUent himself, [a] 
 
 The fact that two persons have a common inter- 
 est in the same subject matter does not entitle them 
 to make admissions respecting it as against each 
 other, [b] 
 
 In cases in which actions founded on a contract 
 have been barred by the Statutes of Limitations no 
 joint contractor or his personal representative loses 
 the beneiit of such statute, by reason only of any 
 acknowledgment, or promise, or payment of any 
 principal, interest, or other money, by any other or 
 others of them, [c] 
 
 [a] Treadway v. S. O. & St. P. R. Co., 40 Iowa, 586; Wilson 
 V. Spring, 64 111., 18; McDermot v. Hoffman, 70 Pa. St., 32, 
 explaining Truby «. Seybert, 13 Pa. St., 101; Holderness v. 
 Baker, 44 N. H., 414; Wilklm «. Stidger, 23 Cal., 331; SauDr 
 ders 1). McCarthy, 8 Allen, 43. 
 
 [b] Dan 1). Brown, 4 Cowan, 483, 493; Hauberger v. Soot, 6 
 "Watts and S., 431. 
 
 [c] Eolicot V. NicholU, 7 Gill., 85, 96; Bell v. Morrison, 1 Pet. 
 351, 367. This paragraph is somewhat altered by the omis- 
 sion of several words from the corresponding one in Stephen 
 which conforms to the language of British statutes not in 
 force in this country. But see 1 Gr. Ev., sec. 113, n. 3, for 
 conflicting decisions. 
 
32 A DIGEST OF THE [Part I. 
 
 A principal, as such, is not the agent of his surety 
 for tlie purpose of making admissions as to the 
 matters for which the surety gives security ; [but 
 declarations or admissions of the principal made 
 during the transaction of the business for which the 
 surety is bound are deemed relevant facts as against 
 the latter.] [a] 
 
 lUustraiions. 
 
 (a) The question Is, whether a parcel, for the loss of which 
 a railway company is sued, was stolen by one of their ser- 
 vants. Statements made by the station-master to a police- 
 otiicer, suggesting that the parcel had been stolen by a porter, 
 arc deemed to be relevant, as against the railway, as admis- 
 sions by an agent.' 
 
 (J) A allows his wife to carry on the business of his shop in 
 his absence. A statement by her that he owes money for 
 goods supplied to the shop is deemed to be relevant against 
 him as an admission by an agent. 2 
 
 (e) A sends his servant, B, to sell a horse. What B says at 
 the time of the sale, and as part of the contract of sale, is 
 deemed to be a relevant fact as against A, but what B says 
 upon t)ie subject at some difEerent time is not deemed to be 
 
 1 Kirksttdl Brewery i\ Fitriiexx R//., L. R. 9 Q. B., 468. 
 ■■' C'/ifortl V. Burton, 1 Bing., 199. 
 
 [a.] GlieJiiiaford Go. v. JJemttrest, 7 Graj'', 1 ; Stelsnn r. City 
 Bard: of 3'. 0., 3 Ohio St., 167, ITrj; Bh/ir v. Perpetual Ins. 
 Co., 10 Mo., 559; Union 8iiviiii/.s Co. v. Edwards, 47 Mo., 445; 
 tiiifU 1: A/k'ii, 1 Swan (Tenn.), 208: Orijfith v. Turner, 4 Gill., 
 111. As to case of judgment confessed by principal being 
 deemed a relevant fact as against surety, see Druminund v. 
 Prcstmaii. 12 Wheat., 519; Stovall 11. Banks, 10 Wall., 583, 
 588; Igtiliari r. State, use Mackubin, 3 G. and J., 335, 345; see 
 also 1 Gr. Ev., sec. 187. 
 
Chap. IV.] LAW OF EVIDENCE. 33 
 
 relevant q,s against A' (though it might have been deemed to 
 he relevant if said by A himself.) 
 
 {d) The question is, whether a ship remained at a port for 
 an unreasonable time. Letters from the plaintiff's agent to 
 the plaintiff containing statements which would have been 
 admissions if made by the plaintiff himself are deemed to be 
 irrelevant as against him. 2 
 
 (e) A, B, and C sue D as partners upon an alleged contract 
 respecting the shipment of bark. An admission by A that 
 the bark was his exclusive property and not the property of 
 the firm is deemed to be relevant as against B and C.^ 
 
 (/) A, B, C and D make a joint and several promissory 
 note. Either can make admissions about it as against the 
 rest.* 
 
 (g) The question is whether A accepted a bill of exchange. 
 A notice to produce the bill signed by A's solicitor and de- 
 scribing the bill as having been accepted by A is deemed to be 
 a relevant fact, s 
 
 (h) The question is, whether a debt to A, the plaintiff, was 
 due from B, the defendant,- or from C. A statement made by 
 A's solicitor to B's solicitor in common conversation that the 
 debt was due from C is deemed not to be relevant as 
 against A.' 
 
 {i) One co-part-TOwner of a ship cannot, as such, make admis- 
 sions against another as to the part of the ship in which they 
 have a common interest, even if he is co-partner with that 
 other as to other parts of the ship.' 
 
 (j) A is surety for B, a clerk. B being dismissed makes 
 statements as to sums of money which he has received and 
 not accounted for. These statements are not deemed to be 
 
 ' Helyear ». Hmrke, 5 Esp., 72. 
 
 2 Langhjrn v. Allnut, 4 Tau., 511. 
 
 3 Lucas V. De La Cour, 1 M. & S., 249. 
 
 * Wh/tcomb 1). WJdtting, 1 S. L. C, 644. 
 
 5 Eoit V. Squire, Ky. & Mo., 283. 
 
 6 Fetch 1). Lyon, 9 Q. B., 147. 
 
 ' Jaggcn v. Binning, 1 Star., 64. 
 
34 A DIGEST OF TEE [Pakt I. 
 
 relevant as against A, as admissions,' [but sucli statements of 
 B, if made before his dismissal, are deemed relevant facts as 
 against A. See note [a] on page 32.] 
 
 Aeticle 18.* 
 admissions by stkangees. 
 Statements by strangers to a proceeding are not 
 relevant as against the parties'* except in actions 
 against sherifEs for not executing process against 
 debtors, in which statements of the debtor admitting 
 his debt to be due to the execution creditor are 
 deemed to be relevant as against the sheriff.' [a] 
 
 Aeticle 19.f 
 
 ADMISSION BY PEESON EBFEEEED TO BT PAETT. 
 
 When a party to any proceeding expressly refers 
 to any other person for information in reference to 
 a matter in dispute, the statements of that other 
 person may be admissions as against the person who 
 refers to him. [b] 
 
 * See Note XII. f See Kote XIII. 
 
 1 Bmiih v. WMppingam, 6 C. & P., 78. See also Bvans v, 
 Beattie, 5 Esp., 36; Baaon v. Ohesney, 1 Star., 193; Gaermarthen 
 B. 0. V. MancJmter B. C, L. E. 8 0. P., 685. 
 
 2 Coole V. Bralum, 3 Ex., 183. 
 
 ^Kenvplandv. Maeaulay, Peake, 95; Williams i>. Bridges, 3 
 Star., 43. 
 
 [a] Hart 1). Stevenson, 25 Conn., 499, 506; 1 Gr. Ev., sec. 181. 
 
 [b] Allen 1). MUinger, 8 Wall., 480; Turner i>. Tates, 15 
 How., 14, 38; Chapman v. TwiteJieU, 37 Me., 59; Bedell v. Com- 
 mercial Ins. Co., 3 Bosw. (N. Y.), 147, 154. 
 
Chap. IV.] LAW OF BVIDENCE. 35 
 
 Illustration. 
 
 The question is, whether A delivered goods to B. B says 
 "if C" (the carman) "will say that he delivered the goods, I 
 will pay for them." C's answer may as against B be an 
 admission,! 
 
 Aeticle 20.* 
 admissions made ■withottt pbejudioe oe ttndee 
 
 DUEESS. 
 
 fN^o ofEer made by either party by way of compro- 
 mise or to buy peace is deemed to be a relevant 
 admission in any civil action, if it is made either 
 upon an express condition that evidence of it is not 
 to be given," or under circumstances from which the 
 judge infers that the parties agreed together that 
 evidence of it should not be given ;' [a] but admis- 
 sions of any independent facts are deemed to be 
 relevant, though made during a treaty of compro- 
 mise, [b] Admissions made under duress are not 
 deemed i-elevant,* but in civil actions no legal com- 
 
 * See Note XIV, 
 
 1 Daniel v. Pitt, 1 Camp., 366, n. 
 
 2 Oury V. Bretton, 4 C. & P., 463. 
 
 3 Paddock v. Forrester, 5 M. & G., 918. 
 
 < Stoekfleth v. Be Tastet, pei- EUenhorough, 0. J., 4 Cam., 11. 
 
 [a] Home Ins. Oo. v. Salt. Warehouse Oo. , 93 XJ. S., 527, 548; 
 B^ynolda, Adrni., v. Manning, 15 Md., 510, 536; see also 1 Phil. 
 Ev. , 4 American ed. , p. 147, note. 
 
 [b] Sartford Bridge Co. v. Ch'anger, 4 Conn. , 142, 148 ; Oer- 
 rishv. Sweetser, 4 Pick., 374, 377; Murray v. Coster, 4 Cow., 
 618, 635. 
 
36 A DIGEST OF TEE [Part I. 
 
 pulsion is held to be such duress as will exclude 
 them.J [aJ 
 
 Aetiole 21. 
 confessions defined. 
 A confession is an admission made at any time by 
 a person charged with a crime, stating or suggest- 
 ing the inference that he committed that crime. 
 Confessions, if voluntary, are deemed to be relevant 
 facts as against the persons who make them only, [b] 
 [Coiifessions are divided into two classes, namely : 
 judicial confessions or those made before the magis- 
 trate, or in court, in the due course of legal proceed- 
 ings, which are themselves sufficient to found a 
 conviction upon, and extra-judicial confessions or 
 those made elsewhere than before a magistrate or in 
 court. These latter, although admissible in evi- 
 dence, have, in the United States, been held insuf- 
 ficient to found a conviction upon, unless corrobo- 
 rated by other proof of the corpus delicti.'] [c] 
 
 [a] Tilley v. Dawson, 11 Cush., 247; Foss n. Sildreih, 10 
 Allen, 76, 80; Newliall v. Jenkins, 3 Gray, 562; see 1 Gr. Ev., 
 sec. 193. 
 
 [b] U. S. v. Douglas, 3 Blatchf., 207; U. 8. i>. White, 5 
 Cranch C. C, 38; K S. i). Miller, 4 Cranch 0. C, 104; U. S. 
 V. McMalwn, lb. , 573. 
 
 [c] Guild's Case, 5 Halst.,, 163, 185; Stringfellow v. State, 36 
 Miss. , 157, 163 ; Bergen v. People, 17 111. , 426 ; People v. Hennessy, 
 15 Wend., 147. 
 
Chap. IV.] LAW OF EVIDENCE. 37 
 
 Aeticle 22.* 
 
 confession caused bt inducement, theeat, oe 
 peomise, when ikeelevant in oeiminal peo- 
 
 CEEDING. 
 
 No confession is deemed to be voluntary if it 
 appears to the judge to have been caused by any 
 inducement, threat, or promise, proceeding from a 
 person in authority, and having reference to the 
 charge against the accused person, whether ad- 
 dressed to him directly or brought to his knowl- 
 edge indirectly ; [a] 
 
 and if (in the opinion of the judge) such induce- 
 ment, threat, or promise, gave the accused person 
 reasonable grounds for supposing that by making a 
 confession he would gain some advantage or avoid 
 some evil in reference to the proceedings against 
 him. [b] 
 
 But a confession is not involuntary, only because 
 it appears to have been caused by the exhortations 
 of a person in authority to make it as a matter of 
 religious duty, or by an inducement collateral to 
 
 * See Note XV. 
 
 [a] U. 8. V. PumpTureya, 1 Crancli C. C, 74; TI. 8. v. Hun- 
 ter, lb., 317; People v. Ward, 15 Wend., 331; Com. v. Olwh- 
 hock, 1 Mass., 144; State v. Phelps, 11 Vt., 116, 131. 
 
 [b] JJ. 8. V. Knott, 1 McLean, 499; Com. «. Kn^pp, 9 Pick., 
 496. 
 
88 A DIGEST OF THE [Part I. 
 
 the proceeding, or by inducements held out by a 
 person not in authority, [a] 
 
 The prosecutor, officers of justice having the 
 prisoner in custody, magistrates, and other persons 
 in similar positions, are persons in authority. The 
 master of the prisoner is not as such a person in 
 authority if the crime of which the person making 
 the confession is accused was not committed against 
 him. [b] 
 
 A confession is deemed to be voluntary if (in 
 the opinion of the judge) it is shown to have been 
 made after the complete removal of the impression 
 produced by any inducement, threat, or promise 
 which would otherwise render it involuntary, [o] 
 
 Facts discovered in consequence of confessions 
 improperly obtained, and so much of such confes- 
 sions as distinctly relate to such facts, may be 
 
 proved, [d] 
 
 Illustrations, 
 (a) The question is, whether A murdered B. 
 A handbill issued by the secretary of state, promising a 
 
 [a] Oom. V. Drake, 15 Mass., 161; Com. v. Morey, 1 Gray, 
 461; Gom. v. Tuckerman, 10 Gray, 173; Aaron v. Slate, 37 
 Ala., 106; State V. PotUr, 18 Conn., 166. 
 
 [b] Com. V. Howe, 2 Allen, 153; SAifftel's Case, 14 Gratt., 
 653. 
 
 [c] U. S. V. Kurtz, 4 Cranch C. C, 166; Fife 1). Com., 29 Pa. 
 St., 439; State i). Carr, 37 Vt., 191; Guild's Case, 5 Halst, 
 163, 180. 
 
 [d] Gom. V. Knapp, 9 Pick., 496; IT. S. v. Hunter, 1 Cranch 
 C. C, 317; Gates v. People, 14 111., 483; Dufy ii. People, 26 
 N. Y., 588. 
 
Chap. IV.] LAW OP EVIDENCE. 39 
 
 reward and pardon to any accomplice who would confess, is 
 brought to the knowledge of A, who, under the influence of 
 the hope of pardon, makes a confession. This confession is 
 not voluntary.' 
 
 (b) A being charged with the murder of B, the chaplain of 
 tlie jail reads the Commination Service to A, and exhorts him 
 upon religious grounds to confess his sins. A, in conse- 
 quence, makes a confession. Tliis confession is voluntary.^ 
 
 (c) The jailer promises to allow A, who is accused of a 
 crime, to see his wife, if he will tell where the property is. 
 A does so. This is a voluntary confession. 3 
 
 {d) A is accused of child murder. Her mistress holds out 
 an inducement to her to confess, and she makes a confession. 
 This is a voluntary confession, because the mistress is not a 
 person in authority.'' 
 
 (e) A is accused of the murder of B. O, a magistrate, tries 
 to induce A to confess by promising to try to get him a par- 
 don if be does so. The secretary of state informs C that no 
 pardon can be granted, and this is communicated to A. 
 After that A makes a statement. This is a voluntary confes- 
 sion. 5 
 
 (/) A, accused of burglary, makes a confession to a police- 
 man under an inducement which prevents it from being vol- 
 
 1 R. V. BosweU, C. and Marsh., 584. 
 
 2i?. V. Gilham, 1 Moo. C. C, 186. In this case the exhorta- 
 tion was that the accused man should confess "to God," but 
 it seems from parts of the case that be was urged also to con- 
 fess to man "to repair any injury done to the laws of his 
 country. " According to the practice at that time, no reasons 
 are given for the judgment. The principle seems to be that 
 a man is not likely to tell a falsehood in such oases, from reli- 
 gious motives. The case is sometimes cited as an authority 
 for the proposition that a clergyman may be compelled to re- 
 veal confessions made to him professionally. It has nothing 
 to do with the subject. 
 
 3i?. V. Lloyd, 6 C. and P., 393. 
 
 'iJ. ». Moore, 2 Den. C. C, 523. 
 
 siJ. V. Glewes, 4 C. and P., 321. 
 
40 A DIGEST OF THE [Paet I. 
 
 untary. Part of it is that A had thrown a lantern into a cer- 
 tain pond. The fact that he said so, and that the lantern was 
 found in the pond in consequence, may be proved. ' 
 
 Article 23.* 
 
 contessions made upon oath, etc. 
 
 Evidence amounting to a confession may be used 
 as such against the person who gives it, although it 
 was given upon oath, and although the proceeding 
 in which it was given had reference to the same 
 subject matter as the proceeding in which it is to 
 be proved, and although the witness might have re- 
 fused to answer the questions put to him ; but if, 
 after refusing to answer any such question, the wit- 
 ness is improperly compelled to answer it, his an- 
 swer is not a voluntary confession.* [a] 
 
 Illustrations. 
 
 (a) The answers given by a bankrupt in his examination 
 may be used against him in a prosecution for offenses against 
 the law of bankruptcy. ^ 
 
 (b) A is charged with maliciously wounding B. 
 
 Before the magistrates A appeared as a witness for C, who 
 
 *See Note XVI. 
 
 1 R. V. Qinild, 9 C. and P., 364. This is not consistent, so 
 far as the proof of the words goes, with M. ». Warwickshall, 1 
 Leach, 203. 
 
 ■^li. v. Oarbett, 1 Den., 236. 
 
 3iJ. -D. Scott, 1 D. and B., 47; B. v. Widdop, L. R. 2 C. C, 5. 
 
 [a] State v. Q-ilman, 51 Me., 309; Teachout v. People, 41 
 N. Y., 7; WillMma v. Com., 29 Pa. St., 103. 
 
Chap. IV.] LAW OF EVIDENCE. 41 
 
 was charged with the same offense. A's deposition may he 
 used against him on his own trial.' 
 
 Aeticle 24r. 
 
 CONFESSION MADE tHSTDEE A PEOMISB OF SECEECT. 
 
 If a confession is otherwise relevant, it does not 
 become irrelevant merely because it was made under 
 a promise of secrecy, [a] or in consequence of a 
 deception practiced on the accused person for the 
 purpose of obtaining it, [b] or when he was drunk, 
 [c] or because it was made in answer to questions 
 which he need not have answered, whatever may 
 have been the form of those questions, [d] or be- 
 cause he was not warned that he was not bound to 
 make such confession, and that evidence of it might 
 be given against him.' 
 
 1 B. V. OhicOey & Cummins, 8 C. C. R., 365. 
 
 2 Cases collected and referred to in 1 Ph. Ev., 430, and T. E., 
 s. 804. See, too, Joy, sections iii, iv, v. 
 
 [a] Statet. Mitchell, 1 Phill. (N. C.) L., 447. 
 
 [b] Price «. State, 18 Ohio St., 418; Com. v. Hanlon, 3 Brew- 
 ster, 461, 498. 
 
 [o] Com. 1). Howe, 9 Gray, 110; Eslcridge i). State, 35 Ala., 30; 
 Jefferds i). People, 5 ParKer C. U., 522, 561. 
 
 [d] Carroll v. Slate, 2(5 Ala., 28; Com. ■». Mosler, 4 Pa. St., 
 204. 
 
42 ^ BIO EST OF THE [Part 1. 
 
 Article 25. 
 
 statements by deceased, insane, ok absent per- 
 sons when deemed to be relevant. 
 
 Statements, written or verbal, of facts in issue or 
 relevant or deemed to be relevant to the issue, are 
 deemed to be relevant, if the person who made the 
 statement is dead, in the cases, and on the condi- 
 tions, specified in articles 26-31, both inclusive. 
 In each of those articles the word " declaration " 
 means such a statement as is herein mentioned, and 
 the word " declarant " means a dead person by 
 whom such a statement was made in his life time. 
 
 [Insanity, [aJ and, in some cases, permanent 
 absence from the state, has been held to have the 
 same effect as death, in rendering the declarations 
 of such insane or absent person admissible, but 
 upon the admissibility of declarations of absent 
 witnesses, the decisions of the courts of different 
 states are conflicting.] [b] 
 
 [a] Union Bh. v. Enapp, 3 Pick. , 96, 109 ; Holbrook v. Gay, 
 6 Gush., 215, app'd Reynolds v. Manning, 15 Md., 510, 533. 
 
 [b] In Maryland departure of a person beyond the seas, 
 without having been heard of for ten years, held suflBcient 
 ground for admitting statements made by him, in the c<5ursn 
 of his employment, in evidence: Reynolds v. Mannviy, 15 3Id., 
 510, 533. 
 
 In Pennsylvania absence from state equivalent to death, for 
 purpose of admitting declarations of absentee: Alter v. Berg- 
 haus, 8 Watts, 77; Sterrell v. Bull, 1 Binney, 3:!4, 337. 
 
 So in South Carolina, Elms v. GJiemn, 3 McCord, 329. 
 
Chap. IV.] LAW OF EVIBENGB. 43 
 
 Article 26.* 
 dying declaration as to cause oe death. 
 
 A declaration made by the declarant as to the 
 cause of his death, or as to any of the circumstances 
 of the transaction which resulted in his death, is 
 deemed to be relevant 
 
 only in trials for the murder or manslaughter of 
 the declarant ; 
 
 and only when the declarant is shown, to the 
 satisfaction of the judge, to have been in actual 
 danger of death, and to have given up all hope of 
 recovery at the time when his declaration was 
 made. 
 
 Such a declaration is not irrelevant merely be- 
 cause it was intended to be made as a deposition 
 before a magistrate, but is irregular, [a] 
 
 * See Note XVII. 
 
 But contra in New York, Brewster v. Boane, 3 Hill, 537, 
 and also in Alabama, Moore v. Andrews & Bros., 5 Porter, 
 107. 
 
 In Virginia the declarations against his own interest, of one 
 who cannot be compelled to testify, are received as if he were 
 dead: Ha/rriman v. Brown, 8 Leigh, 697. 
 
 See, also. Am. note to Price «. Torrington, 1 Sm. Lea. Cas., 
 397. 
 
 [a] Oominonwenlth ®. Oasey, 11 Cush., 417; Com. v. Cooper, 
 5 Allen, 495; U. S. v. Veiich, 1 Cnmch C. C, 115; U. S. v. 
 Woods, 4 Cranch C. C, 484; Kilpairick v. Commonioealih, 31 
 Pa. St., 198, 215; People v. Green, 1 Park. C. R, 11, and 1 
 Denio, 614; Bondly v. State, 2 DiUcher, 403, 497. 
 
44 A DIGEST OF THE [Faet I. 
 
 Illustrations. 
 
 (a) The question is, wlietlier A lias murdered B. 
 
 B malses a statement to the effect that A murdered him. 
 
 B, at the time of making the statement has no hope of re- 
 covery, though his doctor had such hopes, and B lives ten 
 days after mailing the statement. The statement is deemed 
 to he relevant' 
 
 B, at the time of making the statement (which is written 
 down), says something, which is taken down thus: "I make 
 ihe above statement with the fear of death before me, and 
 with no hope of recovery.'' B, on the statement being read 
 over, corrects this to " with no hope at present of my re- 
 covery." B dies thirteen hours afterwards. The statement 
 is deemed to be irrelevant. 2 
 
 (i) The question is, whether A administered drugs to a 
 woman with intent to procure abortion. The woman makes 
 a statement which would have been admissible had A been 
 on his trial for murder. The statement is deemed to be irrele- 
 vant. ^ 
 
 (c) The question is, whether A murdered B. A dying 
 declaration by that he (C) murdered B, is deemed to be 
 irrelevant.' 
 
 (d) The question is, whether A murdered B. 
 
 B makes a statement before a magistrate, on oath, and 
 makes her mark to it, and the magistrate signs it, but not in 
 the presence of A, so that her statement was not a deposition 
 within the statute then in force. B, at the time when the 
 statement was made, was in a dying state, and had no hope 
 of recovery. Tlie statement is deemed to be relevant.^ 
 
 1 B. 1). Mosley, 1 Moo., 97. 
 
 2i?. D. Jenkiiin, L. K., 1 C. C. R, 187. 
 
 ^B. n. Siiid, Bell, 353, following R. v. IlatcMnson, 2 B. and 
 C, 608, n., quoted in a note to E. -o. Mead. 
 
 ■> G-ray's Case, Ir. Cir. Rep., 76. 
 
 s R. v. Woodcock, 1 East P. C. , 356. In this case. Eyre, C. 
 B., is said to have left to the jury the question, whether the 
 deceased was not in fact under the apprehension of death? 
 1 Leach, 504. The case was decided in 1789. It is now set- 
 tled tliat the question is for the judge. 
 
Chap. IV.] LAW OF EVIDENCE. 45 
 
 Aeticle 27.* 
 
 deolaeations made in the 0oue8e of business 
 ob peofessional duty. 
 
 A declaration is deemed to be relevant when it 
 ■was made by the declarant in the ordinary course 
 of business, or in the discharge of professional 
 duty, at or near the time when the matter stated 
 occurred,' and of his own knowledge. 
 
 Such declarations are deemed to be irrelevant 
 except so far as they relate to tjie matter which the 
 declarant stated in 'the ordinary course of his busi- 
 ness or duty, [a] 
 
 Illustrations. 
 
 (a) The question is, whether A delivered certain heer to B. 
 
 The fact that a deceased drayman of A's on the evening of 
 the delivery, made an entry to that effect in a book kept for 
 the purpose, in the ordinary course of business, is deemed to 
 be relevant. 2 
 
 (J) The question is, what were the contents of a letter not 
 produced after notice. 
 
 A copy entered immediately after the letter was written, in 
 a book kept for that purpose, by a deceased clerk, is deemed 
 to be relevant. 3 
 
 * See Note XVIII. 
 
 I Doe V. Turford, 3 B. and Ad., 898. 
 
 aPi-ice V. Torrington, 1 S. L. C, 328, 7th ed. 
 
 ^ Pritt v. FairclougTi, 8 Camp., 305. 
 
 [a] Wehhi). Barrett, 15 Mass., 880, 383; NicTwUs ». Webb, 8 
 Wheat., 326, 334. See, also, cases cited in Am. note, 1 Sm. 
 Lea. Cas., *394. 
 
46 4 DIGEST OF THE [Pabt L 
 
 (c) The question is, whether A was arrested at Paddington, 
 or in South Molton street. 
 
 A certificate annexed to the writ by a deceased sheriff's 
 officer, and returned by him to the sheriff, is deemed to be 
 relevant so far as it relates to the fact of the arrest ; but irrele- 
 vant so far as it relates to the place where the arrest took 
 place.' 
 
 {d) The course of business was for A, a workman in a coal- 
 pit, to tell B, the foreman, what coals were sold, and for B 
 (who could not write) to get C to make entries in a book 
 accordingly. 
 
 The entries (A and B being dead) are deemed to be irrele- 
 vant, because B, for whom they were made, did not know 
 them to be true." 
 
 (e) The question is, what is A's age. A statement by the 
 incumbent in a register of baptisms that he was baptised on a 
 given day is deemed to be relevant. A statement in the 
 same register that he was born on a given day is deemed 
 to be irrelevant, because it was not the incumbent's duty to 
 make it. 2 
 
 Aeticle 28.* 
 
 declarations against inteeest. 
 
 A declaration is deemed to be relevant if the 
 declarant had peculiar means of knowing the mat- 
 ter stated, if he had no interest to misrepresent it, 
 and if it was opposed to his pecuniary or proprie- 
 
 * See Note XIX. 
 
 1 Ohamiers b. Bernaaconi, 1 0. M. and R., 347. See, too. 
 Smith 1). Blakey, L. R. 2 Q. B., 336. 
 
 2 Brain i>. Preeae, 11 M. and W. , 773. 
 3iJ. V. Claplmm, 4 C. and P., 39. 
 
Chap. IV.J LAW OF EVIDENCE. 47 
 
 tary interest.' [aJ The whole of any such declar- 
 ation, and of any other statement referred to in it, 
 is deemed to be relevant, although matters may be 
 stated which were not against the pecuniary or pro- 
 prietary interest of the declarant; but statements, 
 not referred to in, or necessary to explain such 
 declarations, are not deemed to be relevant merely 
 because they were made at the same time or re- 
 corded in the same place.'' 
 
 A declaration may be against the pecuniary in- 
 terest of the person who makes it, if part of it 
 charges him with a liability, though other parts of 
 the book or document in which it occurs may dis- 
 charge him from such liability in whole or in part, 
 and (it seems) though there may be no proof other 
 than the statement itself either of such liability or 
 of its discharge in whole or in part.^ 
 
 A statement made by a declarant holding a 
 limited interest in any property and opposed to 
 such interest is deemed to be relevant only as 
 
 ■ These are almost the exact words of Bayley, J., ia Gleadow 
 V. Atkin, 1 C. and M. , 423. 
 
 2 Illustrations (a) (b) and (c). 
 
 3 Illustrations (d) and (e). 
 
 [a] White v. O/ioutteau, 1 E. D. Smith, 493, 497; Limngston 
 V. Arnoux, 56 N. Y., 507, 509; Peace v. Jenkins, 10 Ired. (N. 
 C.) L., a55; Taylor v. Gould, 57 Pa. St., 153, 156; Am. note to 
 Higham v. Bidgeway, 3 Sm. Lea. Cas., *345. 
 
48 A DIGEST OF THE [Paet I. 
 
 against those wlio claim under him, and not as 
 against the reversioner. ' 
 
 An endorsement or memorandum of a payment 
 made upon any promissory note, bill of exchange, 
 or other writing, by or on behalf of the party to 
 whom such payment was made, is not sufficient 
 proof of such payment to take the case out of the 
 operation of the Statutes of Limitation, [unless it be 
 satisfactorily shown that it was thus made before 
 the statutory period had elapsed, in which case it] is 
 regarded as a declaration against the proprietary 
 interest of the declarant for the purpose above men- 
 tioned [a.]; but it is uncertain whether the date of 
 such endorsement or memorandum may be pre- 
 sumed to be correct without independent evidence.' 
 
 Statements of relevant facts opposed to any other 
 than the pecuniary or proprietary interest of the 
 declarant are not deemed to be relevant as snch.^ [b] 
 
 1 IllustratloQ ig). See Lord Campbell's judgment in case 
 quoted, p. 177. 
 
 2 See the question discussed in 1 Ph. Ev., 302-5, and T. E., 
 sees. 635-9; [also in 1 Gr. Ev., sees. 131-122, and 2 Whar. 
 Ev., sec. 1135] and see Article 85. ^ illustration (A). 
 
 [a] Adams v. Seitzinger, 1 Watts and S., 343: Oremer's Est., 
 5 Watts and S., 381; Allegheny Go. v. Nelson, 35 Pa. St., 333, 
 334; lioseboom v. BilUngi^n, 17 Johns., 182. This paragraph 
 is altered from Stephen by consolidating two paragraphs, 
 portions of each being omitted, and inserting the words in 
 brackets. The alteration was made because he follows the 
 language of English statutes not in force in the United States. 
 
 [b] W. Md. R. Co. v. Manro, 33 Md., 280, 383. 
 
Chap. IV. 1 LAW OB' EVIDENCE. 49 
 
 lUustrationa. 
 
 (a) The question is, wliether a person was born on a par- 
 ticular day. 
 
 An entry in the book of a deceased man-midwife in these 
 words is deemed to be relevant:' 
 
 "W. Fowden, Junr.'s wife, 
 Filius circa hor. 3 post merid. natus H. 
 W. Fowden, Junr., 
 Ap. 33, filius natus, 
 
 "Wife, £1 6s. Id. 
 Pd. 25 Oct., 1768." 
 
 (6) The question is, whether a certain custom exists in a 
 part of a parish. 
 
 The following entries in the parish books, signed by 
 deceased churchwardens, are deemed to be relevant — 
 
 "It is our ancient custom thus to proportion church-lay. 
 The chapelry of Haworth pay one-fifth, etc." 
 
 Followed by — 
 
 "Received of Haworth, who this year disputed this our 
 ancient custom, but after we had sued him, paid it accord- 
 ingly — £8, and £1 for costs." 2 
 
 (c) The question is, whether a gate on certain land, the 
 property of which is in dispute, was repaired by A. 
 
 An account by a deceased steward, in which he charges A 
 with the expense of repairing the gate is deemed to be irrele- 
 vant, though it would have been deemed to be relevant if it 
 had appeared that A admitted the charge.^ 
 
 (tZ) The question is, whether A received rent for certain 
 land. 
 
 A deceased steward's account, charging himself with the 
 receipt of such rent for A, is deemed to be relevant, although 
 the balance of the whole account is in favor of the steward.* 
 
 ' Higham v. Ridgeway, 2 Smith, L. C, 318, 7th ed. 
 s Stead 1). Heaton, 4 T. R., 669. 
 
 3 Doe ». Beviss, 7 C. B., 456. 
 
 4 Williams v. Graves, 8 C. and P., 593. 
 
 4 
 
50 A DIGEST OF THE [Past I. 
 
 (e) The question is, whether certain repairs were done at 
 A's expense. 
 A bill for doing them, receipted by a deceased carpenter, is 
 
 deemed to be \ [^fw^nta f ^^^'^^ being no other evidence 
 either that the repairs were done or that the money was paid. 
 
 (/) The question is, whether A (deceased) gained a settle- 
 ment in the parish of B by renting a tenement. 
 
 A statement made by A, whilst in possession of a house, 
 that he liad paid rent for it, is deemed to be relevant, because 
 it reduces the interest which would otherwise be inferred 
 from the fact of A's possession.' 
 
 (ff) The question is, whether there is a right of common 
 over a certain field. 
 
 A statement by A, a deceased tenant for a term of the land 
 in question, that he had no such right, is deemed to be rele- 
 vant as against his successors in the term, but not as against 
 the owner of the field.* 
 
 (k) The question is, whether A was lawfully married to B. 
 
 A statement by a deceased clergyman that he performed 
 the marriage under circumstances which would have rendered 
 him liable to a criminal prosecution, is not deemed to be rele- 
 vant as a statement against interest.' 
 
 Aeticlb 29. 
 
 declaeations by testators as to contents of will. 
 
 When there is a question as to the contents of a 
 lost will, the declarations of the deceased testator as 
 to its contents are deemed to be relevant, whether 
 
 1 B. V. Heyford, note to Higham ». Bidgewa/y, 3 S. L. C, 333, 
 7th ed. 
 s Doe V. Vowles, 1 Mo. and Ro. , 361 . 
 3 B. V. Exeter, L. R., 4 Q. B., 341. 
 » Papendiok v. Bridgewaier, 5 E. and B., 166. 
 5 Sussex Peerage Case, 11 C. and F., 108. 
 
Chap. IV.] LAW OF EVIDENCE. 51 
 
 they were made before or after the loss of the 
 will.' [a] 
 
 Aetiole 30.* 
 declajjati0n8 as to ptjblio aotd geneeal eights. 
 
 Declarations are deemed to be relevant (subject 
 to the third condition mentioned in the next article) 
 when they relate to the existence of any public or 
 general right or custom or matter of public or gen- 
 eral interest. But declarations as to particular facts 
 from which the existence of any such public or 
 general right or custom or matter of public or 
 general interest may be inferred, are deemed to be 
 irrelevant. 
 
 A right is public if it is common to all [citizens 
 of the state], and declarations as to public rights are 
 relevant whoever made them. 
 
 A right or custom is general if it is common to 
 any considerable number of persons, as the inhabi- 
 tants of a parish, or the tenants of a manor. 
 
 Declarations as to general rights are deemed to 
 
 * See Note XX. Also see Weeks i>. Sparke, 1 M. and S., 
 679 ; Crease v. Ba/rrett, 1 0. M. and R., 917. 
 
 I Sugden v. St. Leonards, L. R. 1 P. D. (C. A.), 154. In 
 questions between the heir and the legatee or devisee such 
 statements would probably be relevant as admissions by a 
 privy in law, estate, or blood. 
 
 [a] 1 "Whar. Ev., sec. 139. See also 3 Redf. Wills, p. 15, 
 and 1 Redf. Wills, p. 348, n. 
 
52 4 DIGEST OF THE [Paet I. 
 
 be relevant only when they were made by persons 
 who are shown, to the satisfaction of the judge, or 
 who appear from the circumstances of their state- 
 ment, to have had competent means of knowledge. 
 Such declarations may be made in any form and 
 manner, [a] 
 
 Illusiraticms. 
 
 (fl) The question is, whether a road is public. 
 
 A statement by A (deceased) that it is public is deemed to 
 be relevant. 1 
 
 A statement by A (deceased) that he planted a willow (still 
 standing) to show where the boundary of the road had been 
 when he was a boy is deemed to be irrelevant.^ 
 
 (J) The following are instances of the manner in which 
 declarations as to matters of public and general interest may 
 be made : They may be made in 
 
 Maps prepared by or by the direction of persons interested 
 in the matter ;3 
 
 Copies of Court Eolls;* 
 
 Deeds and leases between private persons;' 
 
 Verdicts, judgments, decrees and orders of courts, and 
 similar bodies « if final.' 
 
 1 Crease v. Bcerrett, per Parke, B., 1 C. M. and R., 929. 
 
 2 R. V. Bliss, 7 A. and E., 550. 
 
 3 Implied in Hammond v. Bradstreit, 10 Ex. , 390, and Pipe 
 V. Fulcher, 1 E. and E., 111. In each of these cases the map 
 was rejected as not properly qualified. 
 
 4 Grease v. Barrett, 1 C. M. and R., 938. 
 
 5 Plaxion v. Dare, 10 B. and C, 17. 
 
 6 Dnlce of Newcastle v. Broxtowe, 4 B. and Ad., 273. 
 ' Pim «. CureU, 6 M. and W., 334, 266. 
 
 [a] 1 Gr. Ev., sec. 13S. See also ElUcott v. Pearl. 10 Pet., 
 413, and 1 Whar. Ev., sec. 185, et seq. 
 
Chap. IV.] LAW OF EVIDENCE. 53 
 
 Article 31.* 
 declarations as to pedigeee. 
 
 A declaration is deemed to be relevant (subject 
 to the conditions hereinafter mentioned) if it 
 relates to the existence of any relationship between 
 persons, whether living or dead, or to the birth, 
 marriage or death of any person, by which such 
 relationship was constituted, or to the time or place 
 at which any such fact occurred, or to any fact 
 immediately connected with its occurrence.' [aJ 
 
 Such declarations may express either the per- 
 sonal knowledge of the declarant, or information 
 given to him by other persons qualified to be 
 declarants, but not information collected by him 
 from persons not qualified to be declarants. ° They 
 may be made in any form and in any document or 
 upon any thing in which statements as to relation- 
 ship are commonly made.' [b] 
 
 * See Note XXI. 
 
 1 Illustration (a). 
 
 2 Dmiiea ii. Lowndes, 6 M. and Gt., 537. 
 
 3 Illustration (c). 
 
 [a] Stein v. Bowman, 13 Peters, 209, 330; EUieoii v. Pea/rl, 
 10 Peters, 413, 434; Jones o. Jones, 36 Md., 447. 
 
 [b] EUieoii v. Piersoll, 1 Peters, 328, 337; Olements'e. Euni, 
 IJones (N. C.) L., 400; OUrae ». Reinicker, 3 Peters, 618, 
 630; Secrist v. Green, 3 Wall., 744; G'lines v. JSf. Organs, 6 
 Wall., 642, 699; Grauford ». Slac/dmrn, 17 Md., 49, 54. 
 
64 A DIGEST OF THE [Part I. 
 
 The conditions above referred to are as follows : 
 
 (1) Such declarations are deemed to be relevant 
 only in cases in which the pedigree to which they 
 relate is in issue, and not to cases in which it is 
 only relevant to the issue. ' [a] 
 
 (2) They must be made by a declarant shown to 
 be legitimately related by blood to the person to 
 whom they relate ; or by the husband or wife of 
 such a person. ° [b] 
 
 (3) They must be made before the question in 
 relation to which they are to be proved has arisen ; 
 but they do not cease to be deemed to be relevant 
 because they were made for the purpose of prevent- 
 ing the question from arising.^ [c] 
 
 This condition applies also to statements as to 
 public and general rights or customs and matters of 
 public and general interest. 
 
 Illustrations, 
 {a) The question is, which of the three sons (Fortunatus, 
 Stephanus and Achaicus) born at a birth is the eldest. 
 
 ' Illustration (J). 
 
 2 Shrewsbury Peerage Case, 7 H. L. C. , 26. 
 
 3 Berkeley Peerage Case, 4 Cam., 401-417. 
 
 [a] WestficMv. Warren, 8 N. J. L. (3 Halst.), 249; Hummel 
 V. Brown, 24 Pa. St., 310. 
 
 [b] Jaclcion «. Browne, 18 Johns. (N. Y.), 37; Chapman v. 
 Chapman, 2 Conn., 347; Slein v. Bowman, 13 Peters, 209, 
 220; BlUeott v. P:arl, 10 Peters, 412, 434; JetoeU v. Jewell, 1 
 How., 219, 331; Henderson v. Gargill, 31 Miss., 367, 394. 
 
 [c] Coujollev. Ferrie, 26 Barb., 177, 187; Stein i>. Bowman, 
 13 Peters, 209, 220; Ellicoti i). Pearl, 10 Peters, 413, 434. 
 
Chap. IV.] LAW OF EVIDENCE. 55 
 
 The fact that the father said Achaicus was the youngest, 
 and he took their names from St. Paul's Epistles (see 1 Cor. 
 xvi, 17), and the fact that a relation present at the birth said 
 that she tied a string round the second child's arm to distin- 
 guish it, are relevant.' 
 
 (J) The question is, whether one of the cestuu que vie In a 
 lease for lives Is living. 
 
 The fact that he was believed In his family to be dead is 
 deemed to be Irrelevant, as the question Is not one of 
 pedigree. 2 
 
 (c) The following are instances of the ways in which state- 
 ments as to pedigree may be made: By family conduct or 
 correspondence; In books used as family registers ; in deeds 
 and wills ; in inscriptions on tombstones, or portraits ; in pedi- 
 grees, so far as they state the relationship of living persons 
 known to the compiler. ^ 
 
 Article 32.* 
 
 evroence given in foemee peoceeding when 
 eelevant. 
 
 Evidence given by a witness in a previous action 
 is relevant for the purpose of proving the matter 
 stated in a subsequent proceeding, or in a later 
 stage of the same proceeding, when the witness is 
 
 * See Note XXII. 
 
 ' Vin. Abr., tit. Evidence, T. b., 91. The report calls the 
 son Achicus. 
 
 "WMttuck V. Walters, 4 C. and P., 375. 
 
 3 In 1 Ph. Ev., 203-15, and T. E., ss. 583-7, these and 
 many other forms of statement of the same sort are men- 
 tioned, and see Davies v. Lowndes, 6 M. and G., 527. 
 
56 A DIGEST OF THE [Paet I. 
 
 dead,' [a] or is [mentally incapable of testify- 
 ing],^ [b] or so ill that he will probably never be 
 able to travel,^ [c] or is kept out of the way by 
 the adverse party,* [d] or in civil, but not, it seems, 
 in criminal cases, is out of the jurisdiction of the 
 court,' [b] or, perhaps, in civil, but not in criminal 
 cases when he cannot be found.' [f] 
 
 Provided in all cases : 
 
 (1) That the person against whom the evidence 
 is to be given had the right and opportunity to 
 
 ' Mayor of Doncaiter v. Day, 3 Tau., 263. 
 
 2 B. V. EHswell, 3 T. E., 720. 
 
 3 B. V. Bogg, 6 C. and P. , 176. 
 
 * B. V. Scaife, 17 Q. B., 338, 343. 
 
 5 Fry V. Wood, 1 Atk., 444; B. v. Scaife, 17 Q. B., 243. 
 
 « Godbolt, p. 326, case 418; B. ». Scaife, 17 Q. B., 243. 
 
 [a] U. S. v. MeOond), 5 McLean, 287; QJass v. Beach, 5 
 Verm., 173; LigUiwr i). Wike, 4 S. and R., 203; Otihrri v. 
 Cox, 1 Gill., 95. 
 
 [b] ' ' Mentally incapable of testifying " substituted for 
 "mad," in Stephen, in order to include senile imbecility, 
 etc. See Emig v. Diehl, 76 Pa. St., 373; Drayton v. Wells, 1 
 Nott and McC, 409. 
 
 [c] Miller V. Bussell, 7 Martin, 366, N. S. ; Emig v. Diehl, 
 76 Pa. St., 373. 
 
 [d] Drayton v. Wells, 1 Nott and McC, 409; Williams v. 
 State, 19 Ga., 403. 
 
 [b] Noble V. MeClintock, 6 Watts and S., 58, 61; Mims v. 
 Sturtevant, 36 Ala., 636; Mnn'a Case, 5 Band., 701; Brogy i). 
 Commonw., 10 Gratt., 722. Authorities conflicting on this 
 point. 
 
 [p] Wilbur «. Selden, 6 Cowen, 162; State v. Staples, 47 
 N. H., 113. 
 
Chap. IV.] LAW OF EVIDENCE. 57 
 
 cross-examine the declarant when he was examined 
 as a witness.' [a] 
 
 (2) That the questions in issue were substantially 
 the same in the first as in the second proceeding. ' [a] 
 
 Provided also : 
 
 (3) That the proceeding, if civil, was between 
 the same parties or their representatives in 
 interest.' [a] 
 
 (4) That, in criminal cases, the same person is 
 accused upon the same facts.* [b] 
 
 If evidence is reduced to the form of a deposi- 
 tion, the provisions of article 90 apply to the proof 
 of the fact that it was given. 
 
 ' Doe V. Tatham, 1 A. and E., 319; Doe v. Derby, 1 A. and 
 E., 783, 785, 789. 
 2 Beeston's Case, Dears., 405. 
 
 [a] Wheeler ii. Walker, 13 Vt. , 437; Jackson v. Bailey, 2 
 Johns., 17; Jackson i>. Lawson, 15 Johns., 544; Powell v. Waters, 
 17 Johns., 176; Black ». Woodrow, 39 Md., 194; Wright v. 
 C'umsty, 41 Pa. St., 103, 111. 
 
 [b] U. 8. V. McCorrib, 5 McLean, 287; Summons v. State, 5 
 Ohio St., 335, 840. 
 
58 A DIGEST OF THE [Paet I. 
 
 SECTION 11. 
 
 STATEMENTS IN BOOKS, DOCUMENTS AND 
 RECORDS, WHEN RELEVANT. 
 
 Article 33. 
 
 becitals of public facts in statutes and 
 proclamations. 
 
 When any act of state or any fact of a public 
 nature is in issue or is or is deemed to be relevant 
 to the issue, any statement of it made in a recital 
 contained in any public [statute], or in any [public] 
 proclamation or [any message of the Executive to 
 the Legislature], or in any [legislative resolutions], 
 is deemed to be a relevant fact,' [and the recital of 
 the acts of any foreign governments and function- 
 aries in state papers published by authority of 
 Congress, and in diplomatic correspondence com- 
 municated by the President to Congress, is deemed 
 to be a relevant fact to prove such acts], [a] 
 
 J-JJ. V. Francklin, 17 S. T., 636; R. t>. Sutton, 4 M. and 
 a, 533. 
 
 [a] Gr. Ev., sec. 491; Armstrong v. U. S., 13 Wall., 154; Rad- 
 cliff v. United Ins. Co., 7 Johns., 51; Talbot ». Seeman, 1 
 Cranch, 1, 37, 38; Brynnr. Forsyth, 19 How., 334, 338; Wat- 
 kins V. Ilolman, 16 Peters, 25, 55, 56; Gregg v. Forsyth, 24 
 How., 179. 
 
Chap. IV.] LAW OF EVIDENCE. 59 
 
 Aetiole 34. 
 eelevalfot of entet iit public eeooed made in 
 
 PEKFOEMAlirOE OF D0TT. 
 
 An entry in any record, official book, or register 
 kept in any [state or territory of the Union or the 
 District of Columbia], or at sea, or in any foreign 
 country, stating a fact in issue or relevant or deemed 
 to be relerant thereto, and made in proper time by 
 any person in the discharge of any duty imposed 
 upon him by the law of the place in which such 
 record, book or register is kept, is itself deemed to 
 be a relevant fact.' [a] 
 
 Aetiole 35. 
 
 eelevanct of statements in w0ek8 of hi8t0et, 
 maps, ohaets, and plans. 
 
 Statements as to matters of general public history 
 made in accredited historical books [by authors 
 deceased or out of reach of process of the court,] are 
 deemed to be relevant when the occurrence of any 
 such matter is in issue or is or is deemed to be rele- 
 vant to the issue ; but statements in such works as 
 
 1 T. E. (from Greenleaf), ss. 1439, 1432. 
 
 [a] 1 Gr. Ev., sees. 483, 484, 485, 493, 494, 495; Gurney v. 
 Mowe, 9 Gray, 404; Kyburg v. Perkins, 6 Cal., 674. 
 
60 A DIQE8T OF THE [Paet I. 
 
 to private rights or customs are deemed to be irrele- 
 vant.' [a] 
 
 iSvl)7nitted.'] Statements of facts in issue or rele- 
 vant or deemed to be relevant to the issue made in 
 published maps or charts generally offered for pub- 
 lic sale as to matters of public notoriety, such as the 
 relative position of towns and countries, and such 
 as are usually represented or stated in such maps or 
 charts, are themselves deemed to be relevant facts ;' 
 but such statements are irrelevant if they relate to 
 matters of private concern, or matters not likely to 
 be accurately stated in such docunients. 
 
 Aeticle 36. 
 
 [bNTEIES m BOOKS OF COKPOEATIONS.] 
 
 [Entries in the books of a corporation, when the 
 acts recorded are of a public nature and such entries 
 have been made by the proper officer, are deemed 
 to be relevant facts in proving the organization and 
 existence of the corporation and the regularity and 
 legality of the corporate proceedings, and for this 
 
 1 See cases in 2 Ph. Ev., 155-6. 
 
 2 In R. V. Orion, maps of Australia were given in evidence 
 to show the situation of various places at which the defendant 
 said he had lived. 
 
 [a] 1 Gr. Ev., sec. 497; Morris v. Harmer, 7 Peters, 554; 
 Charlotte v. Chouteau, 33 Mo., 194; Woods v. Banks, 14 N. H., 
 101. 
 
Chap, i V.J LAW OF EVIDENCE. 61 
 
 purpose are admissible in evidence either for or 
 against the corporation, but when such entries 
 relate to the private transactions of the company 
 they are not deemed to be relevant except in actions 
 between the members.] [a] 
 
 Article 37. 
 
 [entries by party in his own BOOKS.] 
 
 [In some of the United States entries made by a 
 party in his own books are deemed to be relevant 
 facts in proof of work done and goods delivered by 
 said party when it appears to the court, after in- 
 spection thereof, that said books are a register of 
 the daily business of the party, honestly and fairly 
 kept, without alterations or erasures in a material 
 part, save such as are satisfactorily explained, and 
 where the party himself makes oath in open court 
 that they are the books in which the accounts of his 
 ordinary business transactions are usually kept, that 
 the articles therein charged were actually delivered 
 and the labor and services actually performed ; that 
 the entries were made at or about the time of the 
 transactions, and are the original entries thereof; 
 
 [a] Owings v. Speed, 5 Wheat., 430; Howa/rd ». JSayward, 5 
 Mete, 408; Duke ii. Oahawba Nav. Oo., 10 Ala., 82; McFarlan 
 V. Triton Ins. Co., 4 Denio, 393, 399; Hager v. Cleveland & 
 Basseit, 36 Md., 476, 494; Angell and Ames on Corp., sees. 
 679, 681. 
 
62 ^ DIGEST OF THE [Paet I. 
 
 and that the sums charged and claimed have not 
 been paid.] [a] 
 
 Article 38. 
 
 entries made in his own books by a party singe 
 deceased or insane. 
 
 In cases where the entries made in his own books 
 by a party, who has since died or become insane, 
 would have been evidence in his own behalf before 
 his death or insanity, such entries are also deemed 
 to be relevant facts in an action brought by his 
 executor, administrator or guardian for work done 
 
 [a] 1 Gr. Ev., sees. 118, 119; Chaffee & Co. v. Wniied Slates, 
 18 Wall. , 516, 541. The practice upon this point varies greatly 
 in the different states, and a full statement of the law prevail- 
 ing in most of them will be found in the American note to 
 Price 11. Earl of Torrington, 1 Sm. Lea. Cas. , p. 553, 7 Am. ed. 
 Previous to the adoption of the statutes rendering parties 
 competent witnesses, their books were held admissible under 
 the circumstances stated in the text in the states of Massachu- 
 setts, New Hampshire, Maine, Pennsylvania, South Carolina, 
 Connecticut and Delaware; and also in the states of New 
 York, Illinois, New Jei-sey, Georgia and Ohio, except that in 
 these latter the suppletory oath of the party himself was 
 neither required nor admitted. In Maryland, North Carolina, 
 Tennessee, Alabama and Vermont, the entries of a party in 
 his own books are not admissible in evidence except where 
 supported by his own oath in open court, and this could not 
 be received (until recently) but for small amounts regulated 
 by statute. In Indiana, Mississippi, Virginia and Kentucky 
 the common law rule prevails. Of course the statutes 
 making parties competent witnesses enable them to use their 
 books to refresh their memory in testifying. See article 136. 
 
Chap. IV.] LAW OF EVIDENCE. 63 
 
 or goods delivered by said deceased or insane party, 
 provided said books comply with the requirements 
 of article 37, and the executor, administrator or 
 guardian makes oath in open court that they came 
 to his hands as the genuine and only books of 
 account of said deceased or insane party ; that to 
 the best of his knowledge and belief the entries are 
 original and contemporaneous with the fact, and the 
 debt unpaid ; and also furnishes proof that the 
 entries are in the handwriting of said deceased or 
 insane party.] [a] 
 
 Article 39.* 
 " judgment." 
 
 The word " judgment " in articles 40-47 means 
 any final judgment, order or decree of any court. 
 
 The provisions of articles 40-45, both inclusive, 
 are all subject to the provisions of article 46. 
 
 Article 40. 
 all judgments conclusive peooe of theie legal 
 
 EFFECT. 
 
 All judgments whatever are conclusive proof as 
 against all persons of the existence of that state of 
 things which they actually effect when the existence 
 
 * See Note XXIII. 
 
 [a] 1 Gr. Ev., sec. 118; Kendall, Adm., v. Field ei al, 14 
 Maine, 30; Swearingen a. Harris, 1 "Watts and S., 359. 
 
64 A DIGEST OF THE [Part I. 
 
 of the state of things so effected is a fact in issue or 
 is or is deemed to be relevant to the issue. The 
 existence of the judgment effecting it may be 
 proved in the manner prescribed in Part II. [a] 
 
 Illustrations. 
 
 {a) The question is, whether A has been damaged by the 
 negligence of his servant B in injuring C's horse. 
 
 A judgment in an action, in which C recovered damages 
 against A, is conclusive proof as against B, that C did recover 
 damages against A in that action.' 
 
 (S) The question is, whether A, a shipowner, is entitled to 
 recover as for a loss by capture against B, an underwriter. 
 
 A judgment of a competent French prize court condemning 
 the ship and cargo as prize, is conclusive proof that the ship 
 and cargo were lost to A by capture.^ 
 
 (c) The question is, whether A can recover damages from 
 B for a malicious prosecution. 
 
 The judgment of a court, by which A was acquitted, is con- 
 clusive proof that A was acquitted by that court. ^ 
 
 (d) A, as executor to B, sues for a debt due from C to B. 
 The grant of probate to A is conclusive proof as against C, 
 
 that A is B's executor.* 
 
 («) A is deprived of his living by the sentence of an ecclesi- 
 astical court. 
 
 1 Oreen v. New Rimr Company, 4 T. R., 590. See article 
 44, Illustration (a). 
 
 2 Involved in Oeyer v. Aguilar, 7 T. R., 681. 
 
 ^Lecjgatt v. ToUermy, 14 Ex., 301. And see CaMy i}. Ba/r- 
 low, 1 Man. and Ry., 277. 
 
 * Allen V. Dundas, 37 R., 125-130. In this case the will to 
 which probate had been obtained was forged. 
 
 [a] King «. Chase, 15 N. H., 9; Key i). Dent, 14 Md., 86, 98; 
 Burlen v. Shannon, 3 Gray, 387, 889; Ennis v. Smith, 14 How., 
 400, 430; Barr i>. Oratz, 4 Wheat., 313, 230. 
 
Chap. IV.] LAW OF EVIDENCE. 66 
 
 The sentence is conclusive proof of the fact of deprivation 
 in all cases.' 
 
 (/) A and B are divorced a rnnciUo matrimonii by a sen- 
 tence of the divorce court. 
 , The sentence is conclusive proof of the divorce in all cases. ^ 
 
 Aeticle 41 
 
 judgments conclusive as between parties and 
 peivies of facts forming ground of judct- 
 
 MENT. 
 
 Every judgment is conclusive proof as against 
 parties and privies of facts directly in issue in the 
 case, actually decided by the court, and appearing 
 from the judgment itself to be the ground on 
 which it was based ; unless evidence was admitted 
 in the action in which the judgment was delivered 
 which is excluded in the action in which that judg- 
 ment is intended to be proved, [a] 
 
 lUuatraUons. 
 
 (a) The question is, whether 0, a pauper, is settled in parish 
 A or parish B. 
 
 D is the mother and E the father of C. D, E, and several 
 of their children were removed from A to B before the ques- 
 tion as to C's settlement arose, by an order unappealed against, 
 which order described D as the wife of E. 
 
 •Judgment of Lord Holt in Pldlips v. B^iry.Z T. R., 346, 
 351. 
 " Assumed in Needham v. Bremner, L. K. 1 0. P. , 583. 
 
 [a] Beloitv. Morgan, 7 Wall., 619, 623; Lawrence v. Vernon, 
 1 Sumuer, 20; Case v. Eeeve, 14 Johns., 81. 
 
66 A DIGEST OF THE [Pabt I. 
 
 The statement in the order that D was the wife of E is con- 
 clusive as between A and B.' 
 
 (J) A and B each claim administration to the goods of C, 
 deceased. 
 
 Administration is granted to B, the judgment declaring 
 that, as far as appears by the evidence, B has proved himself 
 next of kin. 
 
 Afterwards there is a suit between A and B for the distri- 
 bution of the effects of C. The declaration in the first suit is 
 in the second suit conclusive proof as against A that B is 
 nearer of kin to C than K.^ 
 
 (c) A company sues A for unpaid premium and calls. A 
 special case being stated in the court of common pleas, A 
 obtains judgment on the ground that he never was a share- 
 holder. 
 
 The company being wound up in the court of chancery, A 
 applies for the repayment of the sum he had paid for pre- 
 mium and calls. The decision that he never was a share- 
 holder is conclusive as between him and the company that he 
 never was a shareholder, and he is, therefore, entitled to re- 
 cover the sums he paid.^ 
 
 (d) A obtains a decree of judicial separation from her hus- 
 band B, on the ground of cruelty and desertion, proved by 
 her own evidence. 
 
 Afterwards B sues A for dissolution of marriage, on the 
 ground of adultery, in which suit neither B nor A can give 
 evidence. A charges B with cruelty and desertion. The 
 decree in the first suit is deemed to be irrelevant in the 
 second.* 
 
 1 B. V. Sartington Middle Quarter, 4 B. and B., 780; and see 
 Flitters V. Allfrey, L. R. 10 C. P., 29; and contrast Dover v. 
 Child, L. R. 1 Ex. Div., 173. 
 
 iBarrsv. Jac/eson, 1 Phill., 582, 587, 588. 
 
 ^ Bank of Sindusian, etc., Allison's Case, L. R. 9 Ch. App. 34. 
 
 *'Stoate V. Stoate, 3 Swa. and Tri., 323. 
 
Chap. IV.] LAW OF EVIDENCE. 67 
 
 Aeticle 42. 
 
 statements in jt3dgments leeelevant as between 
 steangees, except in admiralty and othee 
 cases in eem. 
 
 Statements contained in judgments as to the facts 
 upon which the judgment is based are deemed to 
 be irrelevant as between strangers, or as between a 
 party or privy, and a stranger, except' in the case 
 of judgments of courts of admiralty condemning a 
 ship as prize [and other judgments in rem by courts 
 exercising a rightful jurisdiction over the subject 
 matter]. In such cases the judgment is conclusive 
 proof as against all persons of the fact on which it 
 proceeded, where such fact is plainly stated upon 
 the face of the sentence, [a] [but is deemed irrele- 
 vant to establish any fact not appearing from the 
 proceedings to have been directly in issue before 
 and expressly decided by the court, even though 
 
 1 This exception is treated by Lord Eldon as an objection- 
 able anomaly in Lothian v. Henderson, 3 B. and P., 545. See, 
 too, Gastrigue v. Imrie, L. R. 4 E. and I. App. , 434^5. 
 
 [a] Woodruff V. Taylor, 20 Vt, 65; Lord v. Chadbourne, 43 
 Me., 429; Bio Grande, 23 "Wall., 458; Tappan v. Bmrdnley, 10 
 Wall., 427, 433; Ennis v. Smith, 14 How., 400, 430, 2 Sm. 
 Lea. Cas. ; Doe v. Oliver and Dueheas Kingston's Case, Am. 
 note, 7th ed., p. *689. 
 
68 ^ DIGEST OF THE [/Part I. 
 
 such fact must liave been necessarily assumed by 
 the court in rendering its judgment.] [a] 
 
 Illustrations. 
 
 (a) The question between A and B is, whetlier certain lands 
 in Kent had been disgaveled. A special verdict on a feigned 
 issue between C and D (strangers to A and B) finding that in 
 the 2d Edw. VI. a disgaveling act was passed in words set 
 out in the verdict is deemed to be irrelevant.' 
 
 (b) The question is, whether A committed bigamy by mar- 
 rying B during the life time of her former husband C. 
 
 A decree in a suit of jactitation of marriage, forbidding 
 to claim to be the husband of A, on the ground that he was 
 not her husband, is deemed to be irrelevant. 2 
 
 (c) The question is, whether A, a shipowner, has brolien a 
 warranty to B, an underwriter, that the cargo of the ship 
 whose freight was insured by A was neutral property. 
 
 The sentence of a French prize court condemning ship and 
 cargo, on the ground that the cargo was enemy's property, is 
 conclusive proof in favor of B that the cargo was enemy's 
 property (though on the facts the court thought it was not).' 
 
 [{d) A and B are divorced a mneiUo matrimonii by a sen- 
 tence of a court having jurisdiction. The sentence is conclu- 
 sive proof as against all persons, that they are no longer man 
 and wife. 
 
 {e) Letters of administration granted to A upon B's estate 
 by the proper probate court are inadmissible as evidence of 
 B's death, in an action against a life insurance company upon 
 a policy payable at the death of B; but such letters are con- 
 clusive proof against all persons of A's right to administer 
 upon B's estate, [a] 
 
 1 Doe v. Brydges, 6 M. and Qc., 282. 
 ^Ducliess of Kingston's Case, 2 S. L. C, 760. 
 3 Oeyer ii. Aguilar, 7 T. R., 681. 
 
 [a] Mutual Ins. Co. v. TisdaU, 91 U. S., 238, 241. 
 
Chap. IV.] LAW OF E7IDEN0E. 69 
 
 (/) A certificate of naturalization issues from a court of 
 record when there has been the proper proof made of a resi- 
 dence of five years, and that the applicant is of the age of 
 twenty-one years, and of good moral character. This certifi- 
 cate is, against all the world, a conclusive judgment of his 
 citizenship and all the rights resulting therefrom, but it can- 
 not, in a, distinct proceeding, be introduced as evidence of 
 the residence or age at any particular time or place, or of the 
 good character of the applicant.] 
 
 Aexiole 43. 
 effect of judgment not pleaded as as e8t0ppel. 
 
 If a judgment is not pleaded by way of estoppel 
 it is, as between parties and privies, deemed to be a 
 relevant fact, whenever any matter which was or 
 might have been decided in the action in which it 
 was given is in issue, or is or is deemed to be rele- 
 vant to the issue in any subsequent proceeding. 
 
 Such a judgment is conclusive proof of the facts 
 which it decides, or miglit have decided, if the party 
 who gives evidence of it had no opportunity of 
 pleading it as an estoppel, [a] 
 
 Illiistraiions. 
 (as) A sues B for deepening the channel of a stream, whereby 
 the fiow of water to A's mill was diminished. 
 
 [a] Perkins v. Walker, 19 Vt., 144. The American deci- 
 sions are conflicting as to the conclusiveness of evidence of a 
 former adjudication given under the general issue where it 
 might have been pleaded as an estoppel, but the weight of 
 authority is in favor of its conclusiveness. See 1 Gr. Ev. , 
 sees. 531, 531a, and cases there cited also. 3 Sm. Lea. Cas., 
 Doe 11. Oliver, and Duchess Kingston's Case, Am. note, p. *851, 
 7th Am. ed. 
 
70 A DIGEST OF THE. [Part I. 
 
 A verdict recovered by B in a previous action for substan- 
 tially the same cause, and which might have been pleaded as 
 an estoppel, is deemed to be relevant, but not conclusive in 
 B's favor. ' 
 
 (S) A sues B for breaking and entering A's land, and build- 
 ing thereon a wall and a cornice. B pleads that the land was 
 his, and obtains a verdict in his favor on that plea. 
 
 Afterwards B's devisee sues A's wife (who, on the trial, ad- 
 mitted that she claimed through A) for pulling down the wall 
 and cornice. As the first judgment could not be pleaded as 
 an estoppel (the wife's right not appearing on the pleadings), 
 it is conclusive in B's favor that the land was his.» 
 
 Aeticle 44. 
 
 judgments geneeallt deemed to be leeelevajst 
 as between steangees. 
 
 Judgments are not deemed to be relevant as ren- 
 dering probable facts whicli may be inferred from 
 their existence, but which they neither state nor 
 decide — 
 
 as between strangers ; 
 
 as between parties and privies in suits where the 
 issue is different even though they relate to the 
 same occurrence or subject matter ; [a] 
 
 or in favor of strangers against parties or privies. 
 
 ' VoogM V. Winch, 2 B. and A. , 663 ; and see Feversliam v. 
 Emerson, 11 Ex. , 391. 
 
 ^Whiiaker v. Jackson, 2 H. and C, 936. This had pre- 
 viously been doubted. See 2 Ph. Ev., 24, n. 4. 
 
 [a] Arnold v. Arnold, 17 Pick., 7, 14; King v. Chase, 15 
 N. H., 9; 2 Sm. Lead. Cas. ; Doe i). Oliver and Duchess Kings- 
 ton Case, Am. note, p. *668, 7th Am. ed., and cases there 
 cited. 
 
Chap. IV.] LAW OF EVIDENCE. 71 
 
 But a judgment is deemed to be relevant as 
 between strangers : 
 
 (1) if it is an admission, [a] or 
 
 (2) if it relates to a matter of public or general 
 interest, so as to be a statement under article 30. [b] 
 
 IV/uitrationa. 
 
 (a) The question is, whether A has sustained loss by the 
 negligence of B his servant, who has injured O's horse. 
 
 A judgment recovered by C against A for the injury, 
 though conclusive as against B, as to the fact that C recov- 
 ered a sum of money from A, is deemed to be Irrelevant to 
 the question, whether this was caused by B's negligence. • 
 
 (b) The question whether a bill of exchange is forged arises 
 in an action on the bill. The fact that A was convicted of 
 forging the bill is deemed to be irrelevant. 2 
 
 (c) A collision takes place between two ships A and B, each 
 of which is damaged by the other. 
 
 The owner of A sues the owner of B, and recovers dam- 
 ages on the ground that the collision was the fault of B's 
 captain. This judgment is not conclusive in an action by the 
 owner of B against the owner of A, for the damage done to 
 B.3 [Senible, it is deemed to be irrelevant.] * 
 
 ' Chreen v. New River Com/pany, 4 T. R., 589. 
 
 2 Per Blackburn, J., in Oastrique v. Imrie, L. R., 4 E. and 
 I., App., 434. 
 
 3 T7ie Calypso, 1 Swab. Ad., 38. 
 
 < On the general principle in Duchess of Kingston's Case, 2 
 S. L. C, 813. 
 
 [a] Parsons v. Copland, 38 Me., 370; Craig v. Carleton, 8 
 Shepl., 493; Kellenberger v. Sturtevant, 7 Gush., 4G5. 
 
 [b] Patterson ». Gaines, 6 How., 550, 599; Maybee ». Avery, 
 18 Johns., 353. 
 
72 A DIGEST OF THE [Paet I. 
 
 {d) A is prosecuted and convicted as a principal felon. 
 
 B is afterwards prosecuted as an accessory to the felony 
 committed by A. 
 
 The judgment against A is deemed to be irrelevant as 
 against B, though A's guilt must be proved as against B.' 
 
 (e) A sues B, a carrier, for goods delivered by A to B. 
 
 A judgment recovered by B against a person to whom he 
 had delivered the goods, is deemed to be relevant as an admis- 
 sion by B that he had them. 2 
 
 (/) A sues B for trespass on land. 
 
 A judgment, convicting A for a nuisance by obstructing a 
 highway on the place said to have been trespassed on is [at 
 least] deemed to be relevant to the question, whether the 
 place was a public highway [and is possibly conclusive].' 
 
 Article 45. 
 
 judgments c0n0lu8itb dst eavob of judge. 
 
 When any action is broTight against any person 
 for anything done by him in a judicial capacity, the 
 judgment delivered, and the proceedings antecedent 
 thereto, are conclusive proof of the facts therein 
 stated, whether they are or are not necessary to give 
 the defendant jurisdiction, if, assuming them to be 
 true, they show that he had jurisdiction, [a] 
 
 1 Semhle from R. v. Turner, 1 Moo. C. C, 347. 
 
 2 Buller N. P. 343, b. 
 
 3 Petrie i\ Nuttatt, 11 Ex., 569. 
 
 [a] 2 Whar. Bv. , sec. 813, but see ex parte Olapper, .S Hill 
 K. Y., p. 438. 
 
Chap. IV.] LAW OF EVIDBNOE. 73 
 
 lUusl/raUons. 
 
 A sues B (a justice of the peace) for taking from him a ves- 
 sel and 500 lbs. of gunpowder thereon. B produces a convic- 
 tion before himself of A for having gunpowder in a boat on 
 the Thames (against 3 Geo. III., c. 28). 
 
 The conviction is conclusive proof for B, that the thing 
 called a boat was a boat.' 
 
 Article 46. 
 fraud, collusion, or want of jurisdiction mat be 
 
 PROTED. 
 
 Whenever any judgment is offered as evidence 
 under any of the articles hereinbefore contained, 
 the party against whom it is so offered may prove 
 that the court which gave it had no jurisdiction, or 
 that it has been reversed, or, if he is a stranger to 
 it, that it was obtained by any fraud or collusion, 
 to which neither he nor any person to whom he is 
 privy was a party.' [a] 
 
 ' Brittain v. Kinnaird, 1 B. and B. , 432. 
 2 Cases collected in T. E., ss. 1534-1525, s. 1530. See, too, 
 2 Ph. Ev., 35, and Ochsenbein v. Papeller, L. R., 8 Ch., 695. 
 
 [a] Elliott 1). Piersol. 1 Pet., 328, 340; Galpin i). Page, 18 
 Wall., 350; Thompson i>. Whitman, 18 "Wall., 457; Knowles v. 
 Gas Co., 19 Wall., 58; Hill ». Mendenhall, 31 Wall., 453, as to 
 jurisdiction; Mandeville v. Welch, 1 Wheat., 333; Ohrisimas 
 V. Russell, 5 Wall., 390, 304; Hill o. Mendenhall, 31 Wall., 
 453; 3 Whar. Ev., sec. 797, as to fraud. 
 
74 A DIGEST OF THE [Paet I. 
 
 Article 47. 
 
 [jtJDGMEKTS OF SISTEE STATES AITD] FOEEIGK 
 
 JUDGMENTS. 
 
 The provisions of articles 40-46 apply [to judg- 
 ments of the courts of sister states of the Union 
 and] to such of the judgments of courts of foreign 
 countries as can by law be enforced in this country, 
 and so far as they can be so enforced. ' [a] 
 
 1 The cases on this subject are collected in the note on the 
 Duchess of Kingston's Case, 3 S. L. C, 81S-845. A list of the 
 cases will be found in R. N. P., 231-3. The last leading cases 
 on the subject are Goda/rd v. Gray, L. R., 6 Q. B., 139, and 
 Castrique «. Imrie, L. R., 4 B. and I., App., 414. 
 
 [a] Christmas ji. Bussell, 5 "Wall., 390, 304; Lazier ii. West- 
 cott, 36 K Y., 146, 150; 3 "Whar. Ev., g 803. 
 
Chap, v.] LAW OF EYIBENCE. 75 
 
 CHAPTEE Y.* 
 OPINIONB, WHEN RELEVANT AND WHEN NOT. 
 
 Aetiole 48. 
 
 opinion geneeallt lebelevant. 
 
 [The opinions of witnesses derived from personal 
 observation are admissible in evidence, when, from 
 the nature of the subject under investigation, it 
 cannot be stated or described in such language as 
 will enable persons not eye-witnesses to form an 
 accurate judgment in regard to it, and no better 
 evidence than such opinions can be obtained ; [a] 
 but otherwise], the fact that any person is of 
 opinion that a fact in issue, or relevant or deemed 
 to be relevant to the issue, does or does not exist is 
 deemed to be irrelevant to the existence of such 
 fact, except in the cases specified in this chapter. 
 
 Illustrations. 
 
 [(a) The question is, wliether the claimant, in an action of 
 ejectment, is identical with R. T. who, if living, would be 
 
 * See Note XXIV. 
 
 [a] Bardy v. Merrill, 56 N. H. , 327, 341 ; Dewiit v. Barley, 
 17 N. Y., .340; Sydleman 1>. Beekmth, 43 Conn., 9, 11; Gom- 
 mmwealth ii. Sturtemnt, 117 Mass,, 133, 133; 1 "Whar. Ev., 
 sees. 508 to 513; 1 Rcdf. Wills, sees. 180, 141. 
 
76 A DIGEST OF THE [Pakt I. 
 
 owner of the premises sued for. The opinions of witnesses 
 who were formerly well acquainted with E. T. as to his 
 identity with the claimaint, are relevant, [a] 
 
 (J) The question is, whether A was drunk at a certain time, 
 the opinion of a witness who saw him at that time is 
 relevant, [b] 
 
 (c) In an action for breach of promise of marriage, any 
 person who has been in a position to observe the mutual 
 deportment of the parties, may give in evidence his opinion 
 whether or not they were attached to each other, [c] 
 
 (d) The question is, whether a testator was sane when lie 
 made his will. Witnesses who have had opportunities of 
 knowing and observing his conversation, conduct and man- 
 ners, may depose not only to particular facts, but also to 
 their opinion or belief as to the sanity of said testator, formed 
 from such observation.] [d} 
 
 (e) The opinions of testator's friends as to his sanity, in 
 illustration (d), as expressed by the letters they addressed to 
 him in his life time, are not deemed to be relevant, [b] 
 
 [a] Tiehebome v. I/u^hington, passim. 
 
 [b] People 11. Eastwood, 14 N. T., Ct. App., 562. 
 
 [c] McKee ®. NeUon, 4 Cow. , 355. 
 
 [d] Insurance Oo. u. Bodel, 95 U. S., 332, 239; Olary v. Glary, 
 2 Ired. R., 78; Sa/rdy v. Merrill, 56 N. H., 227; Brooke v. 
 Townsend, 7 Gill., 37; W Meier v. Alderson, 3 Hagg. Eccl. R., 
 574, 604, 605; Tatham v. Wright, 2 Russ. and Mylne, 1, 19. 
 
 [b] Wright ». Doe d. Tatham, 7 A. and E., 313; Waters «. 
 Waters, 35 Md., 513, 543; Higgins et al. v. Oo/rlton and Scaggs, 
 28 Md., 115, 137. 
 
Chap, v.] LAW OF EVIDENCE. 77 
 
 AUTIOLE 49. 
 OPINIONS OF EXPERTS ON POINTS OF SOIENOE OH AET. 
 
 When there is a question as to any point of 
 science or art, the opinions upon that point of per- 
 sons specially skilled in any such matter are deemed 
 to be relevant facts, [a] 
 
 Such persons are hereinafter called experts. 
 
 The words " science or art " include all subjects 
 on which a course of special study or experience is 
 necessary to the formation of an opinion/ and 
 amongst others the examination of handwriting, [b] 
 
 When there is a question as to a foreign law, 
 [authenticated copies of the written law or] the opin- 
 ions of experts who in their profession are acquaint- 
 ed with such law are the only admissible evidence 
 thereof, though such experts may produce to the 
 court books which they declare to be works of 
 authority upon the foreign law in question, which 
 books the court, having received all necessary 
 
 1 1 S. L. C, 555, 7th ed. (note to Ca/rter v. Boehm), 38 Vict., 
 c. 18, s. 18. 
 
 [a] Milwamkee, etc., BaiVway Co. v. Kellogg, 94 U. S., 469, 473; 
 Pagev. Pwrher, 40 N. H., 47, 58; Pelamumrgeg v. Clwrke, 9 
 Iowa, 1, 13. 
 
 [b] Withee v. Bowe, 45 Me., 571, 589; Davit Appeal, 38 
 Md., 15, 37. 
 
78 A DIGEST OF THE [Paet I. 
 
 explanations from the expert, may construe for 
 itself.' [a] 
 
 It is the duty of the judge to decide, subject to 
 the opinion of the court above, whether the skill of 
 any person in the matter on which evidence of his 
 opinion is offered is sufficient to entitle him to be 
 considered as an expert.'' [b] 
 
 The opinion of an expert as to the existence of 
 the facts on which his opinion is to be given is 
 irrelevant, unless he perceived them himself.' [o] 
 
 Illustrations. 
 
 (a) The question is, whettier the death of A was caused by 
 poison. 
 The opinions of experts as to the symptoms produced by 
 
 > Baron deBode's Case, 8 Q. B., 250-267; i?4 Sora v. PMUipps, 
 10 H. L., 634; Oastrique v. Imrie, L. R., 4 E. and I. App., 424; 
 see, too, Picton's Oase, 20 S. T., 510, 511. 
 
 2 Bristow D. SequemUe 6 Ex. , 275 ; Rowley v. L. <& N. W. 
 Bailway, L. R. 8 Ex., 231. In, the Goods of Bonelli, L. R. 1 P. 
 D., 69. 
 
 3 1 Ph., 507; T. E., s. 1278. 
 
 [a] Ohurchv. Siibbart, 2 Cranch, 187, 237; Enrm v. Smith, 
 14 How., 400, 436; OhoA-lotte v. Clwuteau, 33 Mo., 194, 200; 
 Ba/rrows «. Downs, 9 R. I., 447; Brush v. WilMns, 4 Johns. 
 Oh. (N. T.), 506, 520; Jones t. Maffit, 5 S. andR., 533, 531; 
 People V. Oalder, 30 Mich., 87. 
 
 [b] Tucker v. Mass. Cent. B. B., 118 Mass., 547; Dekir- 
 wa/re & Ohesapeake Steam, Towboai Oo. -o. Starrs, 69 Pa. 
 St., 41. 
 
 [c] Walker v. Rogers, Ex.r., 24 Md., 389, 243; Spewr v Rich- 
 ardson, 37 N. H, 23., 34. 
 
Chap, v.] LAW OF EVIDENCE. 79 
 
 the poison by wluch A is supposed to have died, are deemed 
 to be relevant.' 
 
 (b) The question is, whether A, at the time of doing a cer- 
 tain act, was, by reason of unsoundness of mind, incapable of 
 knowing the nature of the act, or that he was doing what was 
 either wrong or contrary to law. 
 
 The opinions of experts upon the question whether the 
 symptoms exhibited by A commonly show unsoundness of 
 mind, and whether such unsoundness of mind usually renders 
 persons incapable of knowing the nature of the acts which 
 they do, or of knowing that what they do is either wrong or 
 contrary to law, are deemed to be relevant. ^ 
 
 (tf) The question is, whether a certain document was written 
 by A. Another document is produced which is proved or 
 admitted to have been written by A. 
 
 The opinions of experts on the question whether the two 
 documents were written by the same person or by different 
 persons, are deemed to be relevant. ^ 
 
 {d) The opinions of experts on the questions, whether in 
 illustration (as) A's death was in fact attended by certain 
 symptoms; whether in illustration (S) the symptoms from 
 which they infer that A was of unsound mind existed; 
 whether in illustration (c) either or both of the documents 
 were written by A, are deemed to be irrelevant. 
 
 Aeticlb 50. 
 facts bbaeing upoit opinions of bxpeets. 
 
 Facts, not otherwise relevant, are deemed to be 
 relevant if they support or are inconsistent with the 
 opinions of experts, when such opinions are deemed 
 to be relevant, [a] 
 
 > R. 1). Palmer, passim. See my Gen. View of Crim. Law, 357. 
 
 2 R. v. Dove, passim. Gen. View of Grim. Law, 391. 
 
 3 38 Vic, c. 18, s, 8 [but see article 52, poat]. 
 
 [a] City ofBipon v. Bittel, 80 Wis., 614, 619. 
 
80 A DIGEST OF THE [Pakt I. 
 
 Illustraiiona. 
 
 (a) The question is, whetlier A was poisoned by a certain 
 poison. 
 
 The fact that other persons, who were poisoned by that 
 poison, exhibited certain symptoms which experts affirm or 
 deny to be the symptoms of that poison, is deemed to be rele- 
 vant.' 
 
 (6) The question is, whether an obstruction to a harbor is 
 caused by a certain bank. An expert gives his opinion that 
 it is not. 
 
 The fact that other harbors similarly situated in other 
 respects, but where there were no such banks,^ began to be 
 obstructed at about the same time, is deemed to be relevant. 
 
 Article 51. 
 
 opinion as to handweiting, "when deemed to be 
 eelevant. 
 
 "When there is a question as to the person by 
 whom any document was written or signed, the 
 opinion of any person acquainted with the hand- 
 writing of the supposed writer that it was or was 
 not written or signed by him, is deemed to be a 
 relevant fact. 
 
 A person is deemed to be acquainted with the 
 liandwriting of another person when he has at any 
 time seen that person write, or when he has received 
 
 ' B. V. Palmer, printed trial, p. 134, etc. In this case (tried 
 in 1856) evidence was given of the symptoms attending the 
 deaths of Agnes Senet, poisoned by strychnine in 1845, Mrs. 
 Serjeantson Smith, similarly poisoned in 1848, and Mrs Dove, 
 murdered by the same poison subsequently to the death of 
 Cook, for whose murder Palmer was tried. 
 
 2 FouUces V. Ohadd, 3 Doug., 157. 
 
Chap. Y.] LAW OF EVIDENCE. 81 
 
 documents purporting to be written by that person 
 in answer to documents written by himself or under 
 his authority and addressed to that person, or when, 
 in the ordinary course of business, documents pur- 
 porting to be written by that person have been 
 habitually submitted to him.' [a] 
 
 Ilhistralvma. 
 
 The question is, whether a given letter is in the handwriting 
 of A, a merchant in Calcutta. 
 
 B is a merchant in London, who has written letters ad- 
 dressed to A, and received in answer letters purporting to be 
 written by him. is B's clerk, whose duty is was to examine 
 and file B's correspondence. D is B's broker, to whom B 
 habitually submitted the letters purporting to be written by 
 A for the purpose of advising with him thereon. 
 
 The opinions of B, and B on the question whether the 
 letter is in the handwriting of A are relevant, though neither 
 B, 0, nor D ever saw A write.2 
 
 The opinion of 0, who saw A write once twenty years ago, 
 is also relevant. 3 
 
 Article 52. 
 
 COMPAEISON OF HAlTDWEimSTG. 
 
 Where a paper admitted or clearly proved to be 
 genuine is already in evidence for some other jinr- 
 
 ' See Illustrations. 
 
 ^ Doe 11. Saekermore, 5 A. and E., 705 (Coleridge, J.); 730 
 (Patterson, J.); 739-40 (Denman, C. J.) 
 3 B. V. Home Tooke, 25 S. T., 71-3. 
 
 [a] Rogers v. Bitter, 12 Wall., 817, 830; Keith o. Lathrop, 10 
 Cush., 453; Johnson v. Daverne, 19 Johns., 134; Smith ii. Wal- 
 ton, 8 Gill., 77, 81. 
 6 
 
82 A DIGEST OF THE [Paet I. 
 
 pose in a cause, and another paper, pertinent to the 
 issue and alleged to be in the same handwriting, is 
 offered in evidence, the jury may compare the latter 
 with the former; [a] and where a writing to be 
 proved is of such antiquity that living witnesses 
 cannot be had, and yet is not old enough to prove 
 itself, experts may compare it with other documents 
 admitted to be genuine or proved to have been 
 respected, treated and acted upon as such by aU 
 parties, and may give their opinion concerning the 
 genuineness of the writing in question, [b] 
 
 Article 53. 
 
 opinion as to existence of mabeiagb, when 
 
 relevant. 
 When there is a question whether two persons 
 are or are not married, the facts that they cohabited 
 
 [a] Moore v. United States, 91 U. S., 270; EUis v. People, 21 
 How. Pr. (N. Y.), 356; Van WycJc v. Mcintosh, 14 N. Y., 439, 
 442; Williams -o. Drexel, 14 Md., 566, 572. Upon tlie ques- 
 tions as to whether papers not otherwise in the case may be 
 received and proved for the purpose of comparison, and 
 whether, where such comparison is allowable by the jury, the 
 testimony of experts in regard to it is admissible, there is 
 much conflict in the decisions of the courts in the different 
 states, but the weight of American authority appears to be in 
 the negative upon the first point, and in the affirmative on the 
 second. The cases will be found cited in 1 Gr. Ev. , sec. 581, 
 and 1 Whar. Ev., sec. 712, et seq., and the question is fully dis- 
 cussed in Tome v. Parkersburg Branch R. B. Co., 39 Md., 36. 
 
 [e] Strother v. Lucas, 6 Peters, 763, 767; Jackson v. Brooks, 
 8 Wend., 626, 631; Ganteyo. Piatt, 2 McCord (S. C), 260; 1 
 Gr. Ev., sec. 578. 
 
Chap, v.] - LAW OF EVIDENaE. 83 
 
 and were treated by others as man and wife are 
 deemed to be relevant facts, and [are competent evi- 
 dence] to raise a presumption that they were law- 
 fully married, and that any act necessary to the 
 validity of any form of marriage which may have 
 passed between them was done ; but such facts are 
 not sufficient to prove a marriage in a prosecution 
 for bigamy or in proceedings for a divorce, or in a 
 petition for damages against an adulterer.' [a] 
 
 Aeticle 54. 
 geounds of opinion, when deemed to be eblk- 
 
 VANT. 
 
 Whenever the opinion of any living person is 
 deemed to be relevant, the grounds on which such 
 opinion is based are also deemed to be relevant. 
 
 Illustration. 
 
 An expert may give an account of experiments performed 
 by him for the purpose of forming his opinion. 
 
 1 Morris v. Miller, 2 Burr., 2057; Birt v. Barlow, 1 Doug., 
 170; and see Oatherwood v. Oaslon, 13 Mow., 361. Compare 
 B. V. Mainwaring, Dear, and B. , 132. See, too, De Thoren v. 
 A. <?., L. R., 1 App. Cas., 686; Biers v. Piers, 2 H. andC, 
 331. Some of the references in the report of Be Thoren «. A. 
 O. are incorrect. This article was not expressed strongly 
 enough in the former editions. 
 
 [a] Jewell v. Jewell, 1 How., 219, 332; Blackburn n. Chaw- 
 ford, 3 "Wall., 175, 191 ; Ban-rmm t>. Barnum, 43, Md., 251, 297. 
 
84 ^ DIGEST OF THE [Paet I. 
 
 CHAPTER YI* 
 
 OHABACTEB, WHEN' DEEMED TO BE BELEVANT 
 AND WHEN NOT. 
 
 Article 55. 
 
 evtdenoe of ohaeactee gbneeallt leeelbvant 
 [in civil cases.] 
 
 The fact that a person is of a particular charac- 
 ter is deemed to be irrelevant to any inquiry re- 
 specting his conduct [in civil cases, unless the na- 
 ture of the action puts the general character of the 
 party directly in issue], [a] 
 
 Aetiole 56. 
 evidbnoe of ohaeactee ik obtwtttai. oases. 
 In criminal proceedings, the fact that the person 
 accused has a good character, is deemed to be rele- 
 vant ; but the fact that he has a bad character is 
 deemed to be irrelevant, unless it is itself a fact in 
 
 * See Note XXV. 
 
 [a] Attorney-Oeneral v. Bowman, 3 Bos. and Put, 532; 
 Fowler V. JEtna Ins. Co., 6 Cow., 673, 675; Pratt ». Andrews, 
 4 2Sr. T., 493; Lander v. Seaver, 33 Vt., 114, 124; Porter v. 
 Seller, 33 Pa. St., 434, 430. 
 
Chap. VI.] LAW OF MVIDENOE. 85 
 
 issue, or unless evidence has been given that he has 
 a good character, in which case evidence that he 
 has a bad character is admissible. 
 
 In this article the word " character " means repu- 
 tation as distinguished from disposition, and evi- 
 dence may be given only of general reputation, and 
 not of particular acts by which reputation or dispo- 
 sition is shown.' [a] 
 
 Aetiole 57. 
 
 chaeactee as affecting damages. 
 
 In civil cases, the fact that the character of any 
 party to the action is such as to affect the amount 
 of damages which he ought to receive, is generally 
 deemed to be irrelevant,' [unless such party's 
 
 1 B. V. Bowton, 1 L. and C, 520. 
 
 2 In 1 Ph. Ev. , 504, etc. , and T. E. , s. 333, all the cases are re- 
 ferred to. The most important are «. Moor, 1 M. and S., 
 
 384, which treats the evidence as admissible, though, perhaps, 
 it does not absolutely affirm the proposition that it is so; and 
 Jones V. Stevens, 11 Price, 335, see especially pp. 365, 368, 
 which decides that it is not. The question is now rendered 
 comparatively unimportant, as the object for which such evi- 
 dence used to be tendered can always be obtained by cross- 
 examining the plaintiff to his credit. 
 
 [a] Oommonwealfh v. Webster, 5 Cash., 395, 334; People v. 
 White, 14 Wend., Ill; State «. Tozier, 49 Me., 404; State v. 
 Upham, 88 Me., 361; People v. Bodine, 1 Denlo, 381. 
 
86 A DIGEST OF THE [Part I. 
 
 character is put in issue by the defense to the 
 action]. [aJ 
 
 [a] GKlman v. Lowed, 8 Wend., 673, 678. There ia no ques- 
 tion about the right of defendant in actions of slander, libel, 
 and the like, to show the bad character of the plaintiff in 
 mitigation of damages, see cases cited in note to this case 
 1 Sm. Lea. Cas., 5th ed., *186, but as to plaintiff's right to 
 prove his good character to aggravate damages, before de- 
 fendant has put in evidence attacking it, the authorities are 
 conaictlng. Such evidence was admitted in Bomayne v. 
 J>uam, 3 Wash. C. C, 246; SampU v. Wynn, Busbee (N. C), 
 319; Harding v. Brooks, 5 Pick., 244; Adams v. Lawson, 17 
 Gratt., 250; Shroyer i>. Miller, 3 W. Va., 158; contra, Wright 
 V. Schroeder, 2 Curtis, 551, and cases cited; 1 Sm. Lea. Cas., 
 5th ed., p. *199. 
 
Chap. VII.] LAW OF EVIDENCE. 87 
 
 PART II. 
 
 ON PROOF. 
 
 CHAPTER VII. 
 
 FAGXa PROVED OTBERWISE THAN BT 
 EVIDENCE— JUDICIAL NOTICE. 
 
 Aeticlb 58. 
 
 of what facts the oo0et takes judicial notice. 
 
 [Courts take judicial notice of the following facts : 
 The existence and titles of all the sovereign pow- 
 ers in the civilized world which are recognized by 
 the government of the United States, their respec- 
 tive flags and seals of State ; [a] 
 
 The law of nations ; [b] the general usages and 
 customs of merchants; [o] treaties made by the 
 United States with foreign governments, and the 
 public acts and proclamations of those governments 
 
 [a] U. S. v. Palmer, 7 Wheat., 610, 634; Church d. Hub- 
 bard, 2 Crancli, 187, 238; The Santissima Trinidad, 7 Wheat., 
 273, 335; 1 Gr. Ev., sec. 4; U.S. v. Wagner, L. R, 2 Chy. App., 
 585; Watson V. Walker, 23 N. H., 471, 496. 
 
 [b] The Scotia, 14 Wall., 170, 188. 
 
 [c] Brown i>. Piper, 91 U. S., 87, 42; Ba/met v. Brandao, 6 
 M. and Gr., 630. 
 
88 A DIGEST OF THE [Part II. 
 
 and their public authorized agents in carrying such 
 treaties into effect ; [a] 
 
 Foreign admiralty and maritime courts, [b] and 
 notaries public [c] and their respective seals j 
 
 The constitution, public statutes, and general 
 laws and customs of the Union, and also of their 
 own particular state or territory ; [d] and the courts 
 of the United States take judicial notice of the laws 
 of the several states applicable to causes depending 
 before them ; [b] 
 
 The accession of the chief executive of the na- 
 tion, and of their own state or territory ; his power 
 and privileges, [f] and the genuineness of his signa- 
 ture ; [g] the heads of departments and principal 
 officers of state [h] and the public seals; [i] the 
 election or resignation of a senator of the United 
 
 [a] U. States v. Beynes, 9 How., 137, 147. 
 
 [b] Groudson v. Leonard, 4 Oranch, 434; Hose i>. Himely, 4 
 Cranoh, 393. 
 
 [c] NielwUs 1). Webb, 8 Wheat., 336, 838; Orr v. Laoey, 4 
 McLean, 343. 
 
 [d] GanaZ Co. v. B. S 0. B. B. Co., 4 Or. and J., 1, 63; U. S. 
 B. Turner, 11 How., 663, 668. 
 
 [b] Omrigs «. HuU, 9 Pet., 607, 635; B. B. Co. v. Bank Ash^ 
 land, 13 Wall., 336; Jones v. Hays, 4 McLean, 531. 
 
 [f] Hisir V. State, 13 Ind., 330; Lindsey v. Attorney-General, 
 33 Miss., 508; State v. Williams, 5 Wis., 308. 
 
 [g] Jones V. Gales, Exr., 4 Martin, 635. 
 
 [h] Y<yrk, etc., B. B. Go. v. Williams, 17 How., 30, 41; 
 Brown v. Piper, 91 U. S., 37, 43; Bennett v. Tennessee, Mart, 
 and Yerg., 138. 
 
 [i] Belafield a. Hand, 3 Johns., 310, 314; Ben v. Vreelandt, 
 3 Halst., 553, 555. 
 
Chap. VII.] LAW OF EVIDENCE. 89 
 
 States; the appointment of a cabinet or foreign 
 minister ; [a] marshals and sheriffs, [b] and the gen- 
 uineness of their signatures; [o] but not their 
 deputies; [d] courts of general jurisdiction, their 
 judges, [e] their seals, regular terms, rules and 
 maxims in the administration of justice and course 
 of proceeding ; [f] 
 
 Public proclamations of war and peace, and of 
 days of special public fasts and thanksgiving ; stated 
 days of general political elections, the sittings of 
 congress, and also of their own state or territorial 
 legislatures, and their established and usual course 
 of proceeding, the privileges of the members, but 
 not the transactions on the journals ; [g] 
 
 The territorial extent of the jurisdiction and 
 sovereignty exercised defaoto by their own govern- 
 ment, [h] and the local political divisions of their 
 own state into counties, cities, townships and the 
 
 [a] Brown v. Piper, 91 U. S., 37, 43; WaUen v. Canfield, 2 
 Rob. La. R., 466, 469. 
 
 [b] Ingraham v. State, 37 Ala. , 17, 30. 
 
 [c] Woods V. Mtz, 10 Mart., 196, 1 Whar. Ev., sec. 333. 
 
 [d] State Bank v. Ourran, 10 Ark., 143; Land v. Paiieson, 
 Minor (Ala.), 14. 
 
 [b] miandv. Sellers, 3 Ohio St., 333, 336. 
 
 [r] Newell v. Newton, 10 Pick. , 470, 473 ; Lindsay v. Williams, 
 17 Ala., 339, 331; Tiieker v. State, 11 Md., 333, 839. 
 
 [g] Armstrong v. U. S., 13 Wall., 154, 156; Gardner v. Col- 
 lector, 6 "Wall., 4; U. 8. v. Beynes, 9 How., 137, 147; 1 6r. 
 Ev., sec. 6, and English cases there cited. 
 
 [h] Gilbert v. Moline, 19 Iowa, 319. 
 
90 A DIGEST OF THE [Part II. 
 
 like, [a] and their relative positions, but not their 
 precise boundaries further than described in public 
 statutes; [b] 
 
 The general geographical features of their own 
 country, state and judicial district as to the exist- 
 ence and location of its principal mountains, rivers 
 and cities, [o] and also the geographical position 
 and distances of foreign countries and cities in so 
 far as the same may be fairly presumed to be within 
 the general knowledge of most persons of ordinary 
 intelligence and education within the state or dis- 
 trict where the court is held, [d] and the courts of 
 the United States especially take judicial notice of 
 the ports and waters of the United States in which 
 the tide ebbs and flows, and of the boundaries of 
 the several states and judicial districts ; [e] 
 
 All things which must have happened according 
 to the ordinary course of nature ; as the ordinary 
 
 [a] Winnipiseogee Lake Oo. «. Young, 40 N. H., 420, 439; 
 Goodwin v. Appleton, 23 Me., 453, 459; State v. Powers, 25 
 Conn., 48. 
 
 [b] Vanderwerker t. People, 5 "Wend., 530; Ham v. Ham, 
 39 Me., 263, 266; State v. Jackson, 89 Me., 291; WrigM v. 
 Phillips, 2 Green (Iowa), 191; Indianapolis R. B. Oo. v. 
 Stephen, 38 Ind., 439. 
 
 [c] Mossman v. Forrest, 37 Ind., 233, 236; Winnipiseogee 
 Lake Go. ■». Toung, 40 N. H., 420, 429. 
 
 [d] Whitney n. Gauche, 11 La. An., 483; Richardson v. Will- 
 iams, 2 Porter (Ala.), 289, 243; Brown, v. Piper, 91 U. 
 S.,37, 42. 
 
 [b] U. S. v. La Vengeance, 3 Ball. , 397 ; Pcyroitx v. Howard, 
 7 Pet., 334, 343; Brown v. Piper, 91 U. 8., 87, 43. 
 
Chap. VTL] LAW OF E7IDEN0E. 91 
 
 limitation of human life as to age, the course of 
 time and of the heavenly bodies, the mutations of 
 the seasons and their general relations to the 
 maturity of crops ; [a] 
 
 The ordinary public fasts and festivals ; [b] the 
 coincidence of days of the week with days of the 
 month ; [o] the meaning of words in the vernacular 
 language; but not of catch-words, technical, local 
 or slang expressions ; [d] 
 
 Such ordinary abbreviations as by common use 
 may be regarded as universally understood, as 
 abbreviations of Christian names, and the like, [e] 
 but not those which are in any degree doubtful or 
 difficult of interpretation, [f] The legal weights, 
 measures [g] and coins; [h] the character of the 
 general circulating medium, and the public lan- 
 guage in reference to it ; [i] but not the current 
 
 [a] Patterson v. McGausland, 3 Bland., 69; Floyd v. John' 
 son, 3 Litt. (Ky.), 109, 113; Bryan v. BecMey, 6 Litt. (Ky.), 91, 
 95; Bowen «. Beed, 103 Mass., 46, 48; Brown v. Piper, 91 U. 
 8., 87, 43. 
 
 [b] Sasscer v. FoA-mers' Bk., 4 Md., 409, 430. 
 
 [c] Allman v. Owen, 81 Ala., 167, 171. 
 
 [d] Commonwealth v. Kneeland, 20 Pick., 206, 316; Balio. 
 e. State, 15 Md., 376, 484. 
 
 [b] Brown v. Piper, 91 V. S., 37, 43; Stephen v. State, 11 
 Geo., 225, 240; Moseley v. Mastin, 37 Ala., 316; Gordon v. Holli- 
 Oay, 1 "Wash. C. C, 385, 289; Weaver v. McFlhenon, 18 Mo., 89. 
 
 [f] FUis V. Park, 8 Texas, 205. 
 
 [g] ilockin V. Cooke, 4 T. R, 314. 
 
 [h] U. Slates v. Burns, 5 McLean, 23, 30 ; Daily i>. State, 10 
 Ind., 536. 
 
 [i] Lampton «. Haggard, 3 Monr. , 149. 
 
92 A DIQEST OF TEE [Pabt II. 
 
 value of the notes of a bank at any particular 
 time; [a] 
 
 Any matters of public history affecting the whole 
 people, and also public matters affecting the govern- 
 ment of the nation, or of their own particular state 
 or district ; [b] 
 
 And finally all matters which may be considered 
 as within the common experience or knowledge of 
 all men, [o] or which they are directed by any 
 statute or notice.] 
 
 Aetiole 59. 
 
 as to peoof of such facts. 
 
 ISo evidence of any fact of which the court will 
 take judicial notice need be given by the party 
 alleging its existence; but the judge, upon being 
 called upon to take judicial notice thereof, may, if 
 he is unacquainted with such fact, refer to any per- 
 son or to any document or book of reference for 
 his satisfaction in relation thereto, or may refuse to 
 take judicial notice thereof unless and until the 
 
 [a] Feemster i>. Singo, 5 Monr., 336; Modawell v. Holmes, 
 40 Ala., 391. 
 
 [b] Bank of Augusta v. Ea/rU, 13 Peters, 519, 590; Ohio Life 
 & T. Go. V. DeBolt, 16 How., 416, 435; Brown v. Piper, 91 U. 
 S., 37, 43; Keym- v. Coe, 37 Conn., 597; Smiih v. Speed, 50 
 Ala., 276, 379; 1 Whar. Ev., sec. 338. 
 
 [c] Brown v. Piper, 91 U. S., 37, 43; OppenJiein i>. Le Wolf, 
 3 Sandf. Ch., 571, 575; Boullemet t). State, 38 Ala., 83, 88. 
 
Chap. VII.] LAW OF EVIDENCE. 93 
 
 party calling upon him to take such notice produces 
 any such document or book of reference. ' [a] 
 
 Aetiole 60. 
 
 evidenob need not be given of facts admitted. 
 
 No fact need be proved in any proceeding which 
 the parties thereto or their agents agree to admit at 
 the hearing, or which they have admitted before 
 the hearing and with reference thereto, or by their 
 pleadings.' Provided that in a trial for felony the 
 prisoner can make no admissions so as to dispense 
 with proof, though a confession may be proved as 
 against him, subject to the rules stated in articles 
 21-24.^ [b] 
 
 1 T. E. (from Q-reenleaf), s. 30. E. g., a, judge will refer in 
 case of need to an almanac, or to a printed copy of the 
 statutes, or write to the foreign office, to know whether a 
 state had been recognized. 
 
 s See schedule to judicature act of 1875, order xxxii. 
 
 3 1 Ph. Bv., 391, n. 6. In M. v. Thornhill, 8 0. & P., Lord 
 Abinger acted upon this rule in a trial for perjury. 
 
 [a] Brown v. Piper, 91 U. S., 37, 43; Bomero t>. U. 8., \ 
 Wall., 731; U. S. ». Teschmaker, 33 How., 393, 405. 
 
 [b] Turner v. Yates, 10 How., 14, 33; 1 Gr. Ev., sec. 37. 
 
94 A DIGEST OF THE [Pabt II. 
 
 CHAPTER YIIL 
 
 OF ORAL EVIDBNOE. 
 
 Article 61. 
 
 peoof of facts bt oeal bvidencb. 
 
 All facts may be proved by oral evidence subject 
 to the provisions as to the proof of documents con- 
 tained in chapters ix, x, xi and xii. 
 
 Aetiole 62.* 
 oeal evidence must be dieeot. 
 
 Oral evidence must in all cases whatever be 
 direct ; that is to say — 
 
 If it refers to a fact alleged to have been seen, it 
 must be the evidence of a witness who says he 
 saw it; 
 
 If it refers to a fact alleged to have been heard, 
 it must be the evidence of a witness who says he 
 heard it ; 
 
 If it refers to a fact alleged to have been per- 
 ceived by any other sense or in any other manner, 
 it must be the evidence of a witness who says he 
 perceived it by that sense or in that manner ; 
 
 * See Note XX7II. 
 
Chap. VIIL] LAW OF EVIDENCE. 95 
 
 If it refers to an opinion, or to the grounds on 
 which that opinion is held, it must be the evidence 
 of the person who holds that opinion on those 
 grounds. 
 
96 A DIGEST OF THE [Part H 
 
 CHAPTER IX.* 
 
 OF DOOUMENTARY EVIDENOE — PRIMARY AND 
 SMOOJWARY, AND ATTESTED DOCUMENTS. 
 
 Article 63. 
 peoof of contents of documents. 
 The contents of documents may be proved either 
 by primary or by secondary evidence. 
 
 Article 64. 
 
 PRIMART evidence. 
 
 Primary evidence means the document itself pro- 
 duced for the inspection of the court, accompanied 
 by the production of an attesting witness in cases in 
 which an attesting witness must be called under the 
 provisions of articles 66 and 67 ; or an admission of 
 its contents proved to have been made by a per- 
 son whose admissions are relevant under articles 
 15-20.' [a] 
 
 * The articles in tliis chapter have been re-arranged so as to 
 make those relating to attested documents form part of the 
 articles on primary evidence. This is clearly the proper order, 
 as was pointed out by a critic to whom I am much indebted. 
 
 1 Slatterie v. Pooley, 6 M. & "W., 664. 
 
 [a] 3 Whar. Ev., sees. 1091, 1093; Smiih v. Palmer, 6 Cush., 
 513, 580; Loomis i>. Wadluims, 8 Gray, 557, 563; GricMon v. 
 Smith, 34 Md., 43, 47; Taylor v. Peck, 31 Gratt., 11, 30. 
 
Chap. IX.] LAW OF EVIDENCE. 97 
 
 "Where a document is executed in several parts, 
 each part is primary evidence of the document ; 
 
 "Where a document is executed in counterpart, 
 each counterpart being executed by one or some of 
 the parties only, each counterpart is primary evi- 
 dence as against the parties executing it. ■ [a] 
 
 "Where a number of documents are all made by 
 printing, lithography, or photography, or any other 
 process of such a nature as in itself to secure uni- 
 formity in the copies, each is primary evidence of 
 the contents of the rest;' but vfhere they are all 
 copies of a common original, no one of them is pri- 
 mary evidence of the contents of the original.' [b] 
 
 Aeticlb 65. 
 
 peoof of documents by peimaet evidence. 
 
 The contents of documents must, except in the 
 
 cases mentioned in article 71, be proved by primary 
 
 evidence ; and in the cases mentioned in article 66 
 
 by calling an attesting witness. 
 
 1 Boe d. West v. Davis, 7 Ea., 363. 
 
 2 iJ. ». Watson, 2 Star., 129. This case was decided lon^ 
 before the invention of photography, but the judgments de- 
 livered by the court (Ellenborough, C. J., and Abbott, Bay- 
 ley and Holroyd, JJ.), establish the principle stated in the 
 text. 
 
 3 Noden n. Murray, 3 Camp. , 224. 
 
 [a] GarroU v. Peake, 1 Peters, 18, 32; Cleveland B. B. v. 
 Perkins, 17 Mich., 296, 399. 
 [ij] 1 Whar. Ev., sec. 92. 
 
 7 
 
98 A DIGM8T OF THE [Part II. 
 
 Article 66.* 
 pboof of execution of attested documents. 
 
 If a document is attested, it may not be used as 
 evidence (except in the cases mentioned or referred 
 to in the next article) if there be an attesting wit- 
 ness alive, sane, and subject to the process of the 
 court, until one attesting witness at least has been 
 called for the purpose of proving its execution. 
 
 If it is shown that no such attesting witness is 
 alive or can be found, it must be proved that the 
 attestation of one attesting witness at least is in his 
 handwriting, and that the signature of the person 
 executing the document is in the handwriting of 
 that person, [a] 
 
 The rule extends to cases in which — 
 
 the document has been burnt ' or canceled ;" 
 
 the subscribing witness is blind ;' 
 
 the person by whom the document was executed 
 is prepared to testify to his own execution of it ;* [b] 
 
 *See Note XXVIII. 
 
 ' GhHies v. Smither, 3 Star. R, 538. 
 
 2 Breton v. Cope, Pea. R. , 43. 
 
 3 Cronk i>. Frith, 9 C. and P., 197. 
 
 * iJ. V. Harringworth, 4 M. and S. , 353. 
 
 [a] Heckhartv. Baine, 6 Bin., 16; Citizens' Bank v. Steam- 
 boat Co., 3 Story, 16, 41; 1 Wh. Ev., sec. 733, and cases there 
 cited. 
 
 [b] Story «. Zowtt, 1 E. D. Smith, 153. 
 
Chap. IX.] LAW OF BVIDENCE. 99 
 
 the person seeMug to prove the document is pre- 
 pared to prove an admission of its execution by the 
 person who executed it, even if he is a party to the 
 cause,' unless such admission be made for the pur- 
 pose of, or has reference to, the cause, [a] 
 
 Article 67.* 
 cases in which attesting witness need not be 
 
 CALLED. 
 
 In the following cases, and in the case mentioned 
 in article 88, but in no others, a person seeking to 
 prove the execution of an attested document, is not 
 bound to call for that purpose either the party who 
 executed the deed or any attesting witness, or to 
 prove the handwriting of any such party or attest- 
 ing witness — 
 
 (1) "When he is entitled to give secondary evi- 
 dence of the contents of the document under article 
 
 (2) When his opponent produces it when called 
 
 * See Note XXVIII. 
 
 > Call v. Dunning, 4Ea., 53. See, too, Whyman v. Oarth, 
 8 Ex., 803; BandaMv. Lynch, 3 Camp., 357. 
 
 2 Cooper V. TamMoell, 8 Tau., 450; Poole v. Wa/rren, 8 A. and 
 E., 588. 
 
 [a] Fox B. BeU, 8 Johns., 477; Eemry v. Bishop, 3 Wend., 
 575, 576; Turner v. Green, 3 Crancli 0. C, 303. 
 
 [b] La/vis V. Spooner, 8 Pick., 384. 
 
100 A DIGEST OF THE [Part II. 
 
 upon and claims an interest under it in reference to 
 the subject matter of the suit ; ' [a] 
 
 (3) "When the person against whom the document 
 is sought to be proved is a public officer bound by 
 law to procure its due execution, and who has dealt 
 with it as a document duly executed ; '' 
 
 [(4) When it is a document required by law to be 
 registered, and a certified copy would be admissible 
 in evidence ; [b] 
 
 (5) When the instrument is not directly in issue 
 but comes incidentally in question in the course of 
 the trial ; [o] 
 
 ' Pearce v. Hooper, 3 Tau. , 60 ; Bearden v. Minter, 5 M. and 
 G., 304. As to the sort of interest necessary to bring a case 
 within this exception, see Collins v. Bayntim, 1 Q. B. , 118. 
 
 2 Plumer v. Brisco, 11 Q. B. , 46. Bailey v. Bidwell, 13 M. 
 and W., 73, would perhaps justify a slight enlargement of the 
 exception, but the circumstances of the case were very 
 peculiar. Mr. Taylor (ss. 1650-1) considers it doubtful 
 whether the rule extends to instruments executed by corpora- 
 tions, or to deeds enrolled under the provisions of any act of 
 parliament, but his authorities hardly seem to support his 
 view; at all events, as to deeds by corporations. 
 
 [a] Jackson «. Kingaley, 17 Johns., 158; Jackson ». HaUtead, 
 5 Cow., 216, 318; McGregor v. Wait, 10 Gray, 73. 
 
 [b] Knox v. Silloway, 1 Fairfield (Me.), 201, 316; Kehey %. 
 Hfinmer, 18 Conn., 311, 318; Burghari «. Turner, 12 Pick., 
 534, 538; Scanlon «. Wright, 13 Pick., 523, 537; 1 Gr. Ev., 571, 
 note 3. 
 
 [c] Ourtisv. Belknai), 31 Vt., 433, 436; Fairfrnv. Fairfax, 
 2 Cranch C. 0., 35 ; Ayers v. Hewitt, 19 Me., 381, 285; 1 Gr. 
 Ev., sec. 573, b (Redf. ed.) 
 
Chap. IX.] LAW OF EVIDENCE. 101 
 
 (6) In oases where the common law rule has been 
 modified by statute, as has been done in many of 
 the states.] 
 
 Article 68. 
 
 peoof when attesting witness denies the 
 execution. 
 
 If the attesting witness denies or does not recol- 
 lect the execution of the document, its execution 
 may be proved by other evidence. ' [a] 
 
 Aeticlb 69. 
 
 PEOOF OF attested DOCUMENT ACKNOWLEDGED 
 UNDEE STATUTE. 
 
 [Whenever a statute authorizes the acknowledg- 
 ing of an instrument, providing at the same time 
 that such instrument shall be admissible in evidence 
 on proof of its acknowledgment, then if the condi- 
 tions required by the statute as prerequisites of the 
 acknowledging appear from the record to have been 
 observed, it is not necessary to call the attesting 
 witnesses, but such instrument may be put in evi- 
 dence after the acknowledgment required by the 
 
 • " Where an attesting witness has denied all knowledge of 
 the matter, the case stands as if there were no attesting wit- 
 ness:" Talbot 'D. Hodson, 7 Tau., 251, 254. 
 
 [a] WMtaker v. Salisbury, 15 Pick., 53i, 544; Hall v. Plielpa, 
 2 Johns., 451; Booker v. Bowles, 2 Blackf., 90. 
 
102 ^ DIGEST OF THE [Part II. 
 
 statutes, either by force of the statutes or at com- 
 mon law, by proving the execution.] [a] 
 
 Aeticle 70. 
 
 SECONDAEY EVroENGE. 
 
 Secondary evidence means : 
 
 (1) Examined copies, exemplifications, office 
 copies, and certified copies;' 
 
 (2) Other copies made from the original and 
 proved to be correct; 
 
 (3) Counterparts of documents as against the 
 parties who did not execute them f 
 
 (4) Oral accounts of the contents of a document 
 given by some person who has himself seen it. 
 
 Article 71. 
 
 oases in which secondaet evidence eelating to 
 documents mat be given. 
 
 Secondary evidence may be. given of the contents 
 of a document in the following cases : 
 
 (a) When the original is shown or appears to be 
 in the possession or power of the adverse party, 
 
 ' See chapter x. 
 
 ^Munn V. Godbold, 3 Bing., 293. 
 
 [a] Houghton v. Jones, 1 Wall., 703, 706; also 1 Whar. Ev., 
 sec. 740, and cases there cited. 
 
Chap. IX.] LAW OB' EVIDENOE. 103 
 
 and when, after the notice mentioned in article 
 72, he does not produce it ;' [aJ 
 
 (5) When the original is shown or appears to be 
 in the possession or power of a stranger not legally 
 bound to produce it, and who refuses to produce it 
 after being served with a subposna duces tecum, or 
 after having been sworn as a witness and asked for 
 the document and having admitted that it is in 
 court; " [b] 
 
 (c) "When the original has been destroyed or lost, 
 and proper search has been made for it ;^ [o] 
 
 id) When the original is of such a nature as not 
 to be easily movable,* [d] or is in [the possession of 
 
 1 iJ. 1!. Watson, ST. R., 301. Entiak «. Carrington, 19 8. T., 
 1073, is cited by Mr. Phillips as an authority for this proposi- 
 tion. I do not think it supports it, but it shows the necessity 
 for the rule, as at conamon law no power existed to compel 
 the production of documents. 
 
 '^ Miles V. OMy, 6 C. and P., 733; Ma/rston v. Dowries, 1 A. 
 andE., 81. 
 
 n Ph. Bv., s. 453; 3 Ph. Ev., 281; T. E. (from Greenleaf), 
 s. 399. The loss may be proved by an admission of the party 
 or his attorney; R. v. Haworth, 4 C. and P., 354. 
 
 * Mortimer v. McGallan, 6 M. and W., 67, 68 (this was the 
 case of a libel written on a wall); Bruce v. Nicolopulo, 11 Ex., 
 133 (the case of a placard posted on a wall). 
 
 [a] Turner v. Tales, 16 How., 14, 26; Haiuon v. Eustace's 
 Lessee, 3 How., 653, 708; Biggs v. Tayloe, 9 Wheat., 483, 486. 
 
 [b] Brandt v. Klein, 17 Johns., 335; Busk v. Sower wine, 
 8 H. and J., 97. 
 
 [c] Tayloe v. Biggs, 1 Peters, 591, 596; Patterson v. Winn, 
 5 Peters, 238, 240, 343; Biggs v. Tayloe, 9 Wheat, 483, 486; 
 Benner v. Bk. OolumUa, 9 Wheat., 581, 596. 
 
 [d] N. Brookfield v. Warren, 16 Gray, 171, 174. 
 
104 -'t DIGEST OF THE [Part II. 
 
 a person living beyond the jurisdiction of the 
 court ;'] [a] 
 
 (e) "When the original is a public document ; * 
 
 (/■) When the document is required or author- 
 ized by law to be registered, and a certified copy 
 from the registry is made evidence by statute ; [b] 
 
 ig) "When the original is a document for the proof 
 of which special provision is made by statute or any 
 law in force for the time being ; ^ [o] or 
 
 (A) When the originals consist of numerous docu- 
 ments which cannot conveniently be examined in 
 court, and the fact to be proved is the general re- 
 sult of the whole collection; provided that that 
 result is capable of being ascertained by calcula- 
 tion.* [d] 
 
 Subject to the provisions hereinafter contained, 
 
 1 Aliwn V. Purnival, 1 0. M. and R, 277, 291-3. 
 
 s See chapter x. 
 
 3 Ibid. 
 
 * Roberts v. Doxen, Peake, 116; Meyer v. Sefton, 2 Star., 
 276. The hooks, etc., should, in such a case be ready to be 
 produced il required: Johnson «. Kerslwm, 1 De G. and S., 
 264. 
 
 [a] Burton v. Driggs, 20 Wall., 135, 134; 8heppa/rdv. Oid- 
 dings, 22 Conn., 383; Bowman v. Sanborn, 5 Foster, 87, 113. 
 
 [b] Patterson v. Winn, 5 Peters, 333, 41; Smith v. U. S.,5 
 Peters, 293, 299. 
 
 [c] Barney v. Sehmeider, 9 Wall., 348, 253; Raymond v. 
 Longworih, 4 McLean, 481, 483. 
 
 [d] Boston & W. R. R. Corp. v. Dana, 1 Gray, 83, 104; Bur- 
 ton V. Diigga, 30 Wall., 135, 136. 
 
Chap. IX.] LAW OF EVIDENCE. IQo 
 
 any secondary evidence of a document is admis- 
 sible.' [a] 
 
 [In cases {f) and {g) proof must be made by copies 
 duly authenticated by the proper officer, and in the 
 manner prescribed by statute.] 
 
 In case (A) evidence may be given as to the gen- 
 eral result of the documents by any person who has 
 examined them, and who is skilled in the examina- 
 tion of such documents. 
 
 Questions as to the existence of facts rendering 
 secondary evidence of the contents of documents 
 admissible are to be decided by the judge,^ [b] un- 
 less, in deciding such a question, the judge would, 
 in effect, decide the matter in issue. 
 
 Aeticle 72.* 
 
 eules as to notice to peoduce. 
 
 Secondary evidence of the-contents of the docu- 
 ments referred to in article 71 {a), may not be given 
 
 * See Note XXIX. 
 
 • If a counterpart is known to exist, it is the safest course to 
 produce or account for it: Munn «. Oodbold, 3 Bing., 397; 
 Ji. v. Casileton, 7 T. R., 336. 
 
 2 Stowe V. Querner, L. R. 5 Excli. , 155. 
 
 [a] Butler v. Ma/plea, 9 "Wall., 766, 778; Page v. Page, 16 
 Pick., 368; 1 "Whar. Ev., sec. 141, and cases there cited; but 
 see, also, Cornett v. Williams, 30 Wall., 336, 346. 
 
 [b] Tayloev. Rigga, 1 Peters, 591, 597; Minor v. Tillotson, 7 
 
 Ffiurs, 99. 
 
106 A DIGEST OF THE [Pabt IT. 
 
 unless the party proposing to give such secondary 
 evidence has, 
 
 if the original is in the possession or under the 
 control of the adverse party, given him such notice 
 to produce it as the court regards as reasonably suf- 
 ficient to enable it to be procured ;' [a] or has 
 
 if the original is in the possession of a stranger to 
 the action, served him with a subpoena duces tecum 
 requiring its production ;* [b] 
 
 if a stranger so served does not produce the docu- 
 ment, and has no lawful justification for refusing or 
 omitting to do so, his omission does not entitle the 
 party who served him with the subpoena to give 
 secondary evidence of the contents of the docu- 
 ment.' [o] 
 
 Such notice is not required in order to render 
 secondary evidence admissible in any of the follow- 
 ing cases — 
 
 (1) When the document to be proved is itself a 
 notice ; [d] 
 
 1 Dwyer ii. Collim, 7 Ex., 648. 
 ^Newlon v. OliapKn, 10 C. B., 56-G9. 
 ^B. V. Llanfaeildy, 3 E. and B., 940. 
 
 [a] Turner v. Yates, 16 How., 14, 26; U.S. v. Winc7iester, 3 
 McLean, 135, 138; Oommonw. v. Emery, 2 Gray, 80; Harris v. 
 Whitcomb, 4 Gray, 483, 435. 
 
 [b] Rusk V. Sowermne, 3 H. and J., 97; Brandt v. Klein, 17 
 Johns., 335; 1 Wh. Ev., sec. 150. 
 
 [c] BuUv. Lowland, 10 Pick., 9, 14. 
 
 [d] Eagle Bank v. Ohapin, 3 Pick., 180, 182; Morrow v. 
 Cmnmonwealth, 48 Pa. St., 305, 308. 
 
Chap. IX.] LAW OF EVIDENCE. 107 
 
 (2) When the action is founded upon the assump- 
 tion that the document is in the possession or power 
 of the adverse party and requires its production ;' [a] 
 
 (3) When it appears or is proved that the adverse 
 pai'ty has obtained possession of the original from 
 a person subpoenaed to produce it f 
 
 (4) When the adverse party or his agent has the 
 original in court.' [b] 
 
 ' How V. Hall, 14 Ea., 347. In an action on a bond, no no- 
 tice to produce the bond is required. See other illustrations 
 in 3 Ph. Ev., 373; T. E., s. 433. 
 
 2 Leeds v. Cook, 4 Esp., 356. 
 
 ' Formerly doubted, see 3 Ph. Bv., 378, but so held in Dwyer 
 t. CoUins, 7 Ex., 639. 
 
 [a] Hays v. Middle, 1 Sandl, 248, 251; Dana v. Conant, 30 
 Vt, 346, 357; McLean v. Hertzog, 6 S. and R., 154. 
 
 [b] McPherson v. Baihbone, 7 "Wend., 216, 219; Bhoads v. 
 Selin, 4 Wash. C. C, 715, 718. 
 
108 A DIGEST OF THE [Paet II. 
 
 CHAPTEE X 
 PROOF OF PUBLIO D0GUMENT8. 
 
 Article 73. 
 
 pkoof of public documents. 
 
 When a statement made in any public document, 
 register or record, judicial or otherwise, or in any- 
 pleading or deposition kept therewith is in issue, 
 or is relevant to the issue in any proceeding, the 
 fact that that statement is contained in that docu- 
 ment may be proved in any of the ways mentioned 
 in this chapter.' 
 
 Aeticjle 74. 
 
 peoducnon of document itself. 
 
 The contents of any public document whatever 
 may be proved by producing the document itself 
 for inspection from proper custody, and identifying 
 it as being what it professes to be. 
 
 ' See articles 36 and 90. 
 
Chap. X.] LAW OF EVIDENGE, 109 
 
 Article 75.* 
 
 ESAMINED COPrBS. 
 
 The contents of any public document whatever 
 may in all cases be proved by an examined copy. 
 
 An examined copy is a copy proved by oral evi- 
 dence to have been examined with the original and 
 to correspond therewith. The examination may be 
 made either by one person reading both the original 
 and the copy, or by two persons, one reading the 
 original and the other the copy, and it is not neces- 
 sary that each should alternately read both.' [a] 
 
 Aetiole 76. 
 
 [geneeal eecoeds of the NATIOIS'.] 
 
 [Copies of any books, records, papers or docu- 
 ments in any of the executive departments or 
 public offices of the Federal government, authenti- 
 cated under the seals of such departments or offices 
 respectively, and certified by the officer at the head 
 of such office for the time being, shall be admitted 
 in evidence equally with the originals thereof.] [b] 
 
 * See Note XXX, also Doe v. Boss, 7 M. and W., 106. 
 1 3 Ph. Ev., 300, 331; T. E., ss. 1379, 1389; E. N. P., 113. 
 
 [a] WMtehouse v. Beckford, 9 Foster, 471, 480; 1 Gr. Ev., 
 sees. 91, 508; 1 Whar. Ev., sec. 94. 
 
 [b] Rev. Stat. TJ. S., sees. 883 to 898 inclusive. 
 
110 A DIGEST OF TEE [Pakt II. 
 
 Abtiole 77.* 
 exemplifications. 
 
 An exemplification is a copy of a record set out 
 either under the great seal or under the seal of a 
 court. 
 
 A copy made by an officer of the court, bound 
 by law to make it, is equivalent [in courts of the 
 same state] to an exemplification, though it is some- 
 times called an office copy. 
 
 An exemplification is equivalent to the original 
 document exemplified, [a] 
 
 Aeticle 78.* 
 copies equivalent to exemplifioations. 
 
 A copy made by an officer of the court, who is 
 authorized to make it by a rule of court, but not 
 required by law to make it, is regarded as equiva- 
 lent to an exemplification in the same cause and 
 court, but in other causes or courts it is not admis- 
 sible unless it can be proved as an examined 
 copy, [b] 
 
 * See Note XXXI. 
 
 [a] 1 Whar. Ev., sees. 107, 104. 
 
 [b] 1 Whar. Ev., sec. 104. 
 
Chap. X.] I'AW OF EVIDENOE. m 
 
 Aetiole 79. 
 oeetified copies. 
 
 It is provided by many statutes that various cer- 
 tificates, official and public documents, documents 
 and proceedings of corporations, and of joint stock 
 and other companies, and certified copies of docu- 
 ments, by-laws, entries in registers and other books, 
 shall be receivable in evidence of certain particulars 
 in courts of justice, provided they are respectively 
 authenticated in the manner prescribed by such 
 statutes. ' 
 
 Whenever, by virtue of any such provision, any 
 such certificate or certified copy as aforesaid is 
 receivable in proof of any particular in any court 
 of justice, it is admissible as evidence if it purports 
 to be authenticated in the manner prescribed by 
 law without proof of any stamp, seal or signature 
 required for its authentication or of the official 
 character of the person who appears to have 
 signed it.' [a] 
 
 ■ 8 and 9 Vic, c. 113, preamble. Many such statutes are spe- 
 cified in T. E., s. 1440, and following sections. See, too, E. N. 
 P., 114^. 
 
 ^ IMd., s. 1. I believe tlie above to be the effect of the 
 provision, but the language is greatly condensed. Some 
 
 [a] -See anU, art. 58; 3 Whar. Ev., sees. 1313, 1314; 1 Gr. 
 Ev., sec. 200; BuUen v. Arnold, 31 Me., 583; Boss v. Bead, 
 1 Wheat., 483. 
 
112 A DIGEST OF THE [Paet 11. 
 
 Article 80. 
 
 [little & brown's edition of XJ. 8. LAWS.J 
 
 [The edition of the laws and treaties of the 
 United States published by Little & Brown, are 
 competent evidence of the several public and 
 private acts of congress, and of the several treaties 
 therein contained, in all the courts of law and 
 equity and of maritime jurisdiction and in all the 
 tribunals and public offices of the United States 
 and of the several states, without any further proof 
 or authentication thereof.] [a] 
 
 Article 81. 
 
 [legislative acts of states Airo teeeitoeies.J 
 
 [The Revised Statutes of the United States pro- 
 vide that the acts of the Legislature of any state 
 or territory, or of any country subject to the juris- 
 diction of the United States, shall be authenticated 
 
 words at the end of the section are regarded as unmeaning by 
 several text writers. See, e.g., K. N. P., 116; 3 Ph. Ev., 341; 
 T. E., s. 7, note 1. Mr. Taylor says that the concluding 
 words of the section were introduced into the act while pass- 
 ing through the house of commons. He adds, they appear to 
 have been copied from 1 and 2 Vict., c. 94, s. 13 (see art. 76) 
 "by some honorable member who did not know distinctly 
 what he was about." They certainly add nothing to the 
 sense. 
 
 [a] Rev. Stat. tJ. S., sec. 908. 
 
Chap. X.] LAW OF EVIDENCE. 113 
 
 by having the seals of such state, territory or coun- 
 try affixed thereto, but this provision does not 
 exclude any other method of proof allowed by the 
 state lav?, or admitted by the court where the same 
 may be offered in evidence.] [a] 
 
 Aetiole 82. 
 
 [eeooeds and judicial peoceedings of state 
 couets, etc.] 
 
 [The Revised Statutes of the United States pro- 
 vide that the records and judicial proceedings of the 
 courts of any state or territory, or of any country 
 subject to the jurisdiction of the United States, 
 shall be proved or admitted in any other court 
 within the United States, by the attestation of the 
 clerk, and the seal of the court annexed, if there 
 be a seal, together with the certificate of the judge, 
 chief justice or presiding magistrate, that the said 
 attestation is in due form. And the said records 
 and judicial proceedings so authenticated, shall 
 have such faith and credit given to them in every 
 court within the United States as they have by law 
 or usage in the courts of the state from which they 
 are taken, but this provision does not exclude any 
 other method of proof allowed by the state law, or 
 admitted by the court where the same may be 
 offered in evidence.] [b] 
 
 [a] Rev. Stat. U. S., sec. 905. 
 
 [b] Rev, Stat. U. S., sec. 905. 
 
114 A DIGEST OF THE [Part IL 
 
 Aeticle 83. 
 
 [public eecoeds or state, etc., not .tddicial.] 
 
 [The Kevised Statutes of the United States pro- 
 vide that all records and exemplifications of books 
 which may be kept in any public office of any state 
 or territory, or of any country subject to the juris- 
 diction of the United States, not appertaining to a 
 court, shall be proved or admitted in any court or 
 ofiice in any other state or territory, or in any such 
 country, by the attestation of the keeper of said 
 records or books, and the seal of his office annexed, 
 if there be a seal, together with a certificate of the 
 presiding justice of the court of the county, parish 
 or district in which such office may be kept, or of 
 the governor 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 prothono- 
 tary of said court, who shall certify, under his 
 hand and the seal of his office, that the said presid- 
 ing 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, territory or country aforesaid in 
 which it is made. And the said records and exem- 
 
Chap. X.] LAW OF EVIDENCE. 115 
 
 plifications so authenticated shall have such faith 
 and credit given to them in every court and office 
 within the United States as they have by law or 
 usage in the courts and offices of the state, territory 
 or country as aforesaid from which they are taken, 
 but this provision does not exclude any other 
 method of proof allowed by the state law, or 
 admitted by the court where the same may be 
 offered in evidence ] [a] 
 
 Aetici/E 84. 
 
 [fOEEIGN acts of state, JtTDGMENTS, ETO.J 
 
 [Foreign laws, acts of state, and judgments may be 
 authenticated by an exemplification of a copy under 
 the great seal of the state, or by a copy proved to be a 
 true copy by a witness who has examined and com- 
 pared it with the original, or by a certificate of an 
 officer properly authorized by law to give the copy, 
 which certificate must itself also be authenti- 
 cated.] [b] 
 
 [a] Rev. Stat. U. S., sec. 906. 
 
 \b\ Ennis v. Smith, 14 How, 400, 486; Church v. Huhbart, 
 2 Cranch, 187, 337; U. 8. v. Wiggins, 14 Peters, 3.34, 346; U. 
 S. V. Hodman, 15 Peters, 130, 137; Stein v. Bowman, 13 Peters, 
 209, 218; WaUon v. Walker, 23 N. H., 471, 496; Buttrick v. 
 Allen, 8 Mass., 273; Spalding v. Vincent, 24 Yt., 501, 504; 
 Delafield v. Sand, 8 Johns., 310, 313; Packard v. Hill, 7 
 Cowen, 434, 443. 
 
116 A DIGEST OF THE [Part II. 
 
 CHAPTER XI. 
 PBESUMPTIONS AS TO DOCUMENTS. 
 
 Article 85. 
 
 pebsumption as to date of a document. 
 
 When any document bearing a date has been 
 proved, it is presumed to have been made on the 
 day on vrhich it bears date, and if more documents 
 than one bear date on the same day, they are pre- 
 sumed to have been executed in the order necessary 
 to efEect the object for which they were executed, 
 but independent proof of the correctness of the 
 date will be required if the circumstances are such 
 that collusion as to the date might be practiced, and 
 would, if practiced, injure any person, or defeat the 
 objects of any law.' [a] 
 
 lUustratioTis. 
 
 (a) An instrument admitting a debt, and dated before tbe 
 act of banliruptcy, is produced by a bankrupt's assignees, to 
 prove the petitioning creditor's debt. Purtlier evidence of 
 tlie date of the transaction is required In order to guard 
 against collusion between the assignees and the bankrupt, to 
 
 1 1 Ph. Ev., 483-3; T. R, s. 137; Best, s. 403. 
 
 [a] Smith !). Porter, 10 Gray, 66, 68; Costigan i>. Oould, 5 
 Denio, 390, 293; 3 Wh. Ev., sees. 977, 988, 1313. 
 
CHiiP. XL] LAW OF EVIDENCE. 117 
 
 the prejudice of creditors wliose claims date from the interval 
 hetween the act of bankruptcy and the adjudication." 
 
 (J) In a petition for damages on the ground of adultery 
 letters are produced between the husband and wife, dated 
 before the alleged adultery, and showing that they were then 
 on affectionate terms. Further evidence of the date is 
 required to prevent collusion, to the prejudice of the person 
 petitioned against.' 
 
 Article 86. 
 
 presumption as to stamp of a document. 
 
 When any document is not produced after dne 
 notice to produce, and after being called for, it is 
 presumed to have been duly stamped,' unless it be 
 shown to have remained unstamped for some time 
 after its execution.* [a] 
 
 Article 87. 
 
 presumption as to sealing and delivery of deeds. 
 
 When any document purporting to be and 
 stamped as a deed, appears or is proved to be or to 
 have been signed and duly attested, it is presumed 
 
 ^ Anderson n. Weston, 6 Bing. N. C, 303; Sindair v. Bag- 
 galiay, M. and W., 318. 
 
 3 Houlston V. Smith, 2 0. and P., 24 
 
 ' Closmadeue v. Owrrel, 18 0. B., 44 In this case the growth 
 of the rule is traced, and other cases are referred to, in the 
 judgment of CresweU, J. 
 
 « Mcmne Investment Oompany v. Haviside, L. R. 5 E. and I. 
 App., 634 
 
 [a] As to presumption regarding cancellation of stamp, see 
 Rees V. Jackson, 64 Pa. St., 486, 493. 
 
118 A DIGEST OF THE [Part II. 
 
 to have been sealed and delivered, altliough no 
 impression of a seal appears thereon. ' [a] 
 
 Aetiole 88. 
 peestimption as to documents thertt tears old. 
 
 "Where any document purporting or proved to be 
 thirty years old is produced from any custody which 
 the judge in the particular case considers proper, it 
 is presumed that the signature and every other part 
 of such document which purports to be in the 
 handwriting of any particular person is in that per- 
 son's handwriting, and, in the case of a document 
 executed or attested, that it was duly executed and 
 attested by the persons by whom it pui-ports to be 
 executed and attested ; and the attestation or execu- 
 tion need not be proved, even if the attesting wit- 
 ness is alive and in court. 
 
 Documents are said to be in proper custody if 
 they are in the place in which, and under the care 
 of the person with whom, they would naturally be ; 
 but no custody is improper if it is proved to have 
 had a legitimate origin, or if the circumstances of 
 
 1 Hall 1). Bainhndge, 13 Q. B., 699-710; Be Sandilands, L. 
 R. 6 C. P., 411. 
 
 [a] Ward v. Lewis, 4 Pick., 518, 530; 2 Whar. Bv., section 
 1314. 
 
Chap. XL] LAW OF BVIDENCE. 119 
 
 the particular case are such as to render such an 
 origin probable.' [a] 
 
 Article 89. 
 peesumption as to alterations. 
 
 No person producing any document which upon 
 its face appears to have been altered in a material 
 part can claim under it the enforcement of any 
 right created by it, unless the alteration was made 
 before the completion of the document or with the 
 consent of the party to be charged under it or his 
 representative in interest, [b] 
 
 [In the United States] this rule [does not, as in 
 England,] extend to cases in which the alteration was 
 made by a stranger, whilst the document was in the 
 custody of the person producing it, but without his 
 knowledge or leave.'' [c] 
 
 1 2 Ph. Et., 345-8; Slarkie, 521-6; T. E., sec. 74 and sees. 
 593-601; Best, sec. 220. 
 
 spigot's Case, 11 Rep., 47; DuriUon v. Cooper, 11 M. and 
 W., 778; 13 M. and W., 343; Aldous v. Cnrnwell, L. R. 3 Q. B. 
 573. This qualifies one of the resolutions in Pigoi's Case. 
 The judgment reviews a great number of authorities on the 
 subject. 
 
 [a] Jackmn v. Blanshaw, 3 Johns. , 292, 395 ; Barr v. Oratz, 
 4 Wheat., 213, 331; Winn v. Patterson, 9 Peters, 663, 674; see, 
 also, 1 Whar. Ev., sections 194 to 199, and 703 and 733. 
 
 [b] MartindaU r. FolUtt, 1 N. H., 95; Smith o. U. S., 2 
 WAll., 319, 333; Vose ii. Dolan, 108 Mass., 153; Plank li. Co. 
 ■e. Wetse', 31 Barb., 56; 1 "Whar. Ev., sections 633, 633, 634. 
 
 [c] U. S. 11. ffprilding, 3 Mason, 478, 483; Bees v. Orerbavgh, 
 6 Cowen, 746, 750; Nic/ioh v. Johmon, 10 Conn., 193, 196; State 
 ». Berg, 50 Ind., 496, 505. 
 
120 -4 DIGEST OF THE [Paet II. 
 
 [Alterations and interlineations appearing on the 
 face of a document will, generally speaking, be pre- 
 sumed to have been made contemporaneously with 
 the execution of the instrument, but if any ground 
 of suspicion is apparent upon the face of the instru- 
 ment the law presumes nothing, but leaves the 
 question of the time when it was done, as well as 
 that of the person by whom, and the intent with 
 which the alteration was made, as matter of fact to 
 be ultimately found by the jury upon proofs to be 
 adduced by the party offering the instrument in 
 eTidence.J [a] 
 
 An alteration is said to be material when, if it 
 had been made with the consent of the party 
 charged, it would have affected his interest or 
 varied his obligations in any way whatever. 
 
 An alteration which in no way affects the rights 
 of the parties or the legal effect of the instrument, 
 is immaterial.' [b] 
 
 1 This appears to be the result of many cases referred to in 
 T. E., ss. 1619-30; see also judgments in Davidson v. Cooper, 
 and Aldoua v. Oornwell, referred to above. 
 
 [a] 1 Gr. Ev., sec. 564; Wilde d. Armaby, 6 Gush., 314, 318; 
 Simpson v. Dams, 119 Mass., 269, 270; BoofKby o. Stanley, 34 
 Me., 515, 516; Ba'Oey 11. Taylor, 11 Conn., 531, 541. 
 
 [b] State V. Berg, 50 Ind., 496, 503. 
 
Chap. XII.] LAW OF EVIDENCE. 121 
 
 CHAPTEE XII. 
 
 OF THE EXCLUSION OF ORAL BT DOCUMENTARY 
 EVIDENCE, AND OF THE MODIFICATION AND 
 INTERPRETATION OF DOCUMENTARY BY ORAL 
 EVIDENCE. 
 
 Aeticle 90.* 
 evidencb op terms of oontbaots, grants, and 
 
 OTHER DISPOSITIONS OF PROPERTY REDUCED TO 
 A DOCUMENTARY FORM. 
 
 When any judgment of any court or any other 
 judicial or official proceeding, or any contract or 
 grant, or any other disposition of property, has 
 been reduced to the form of a document or series 
 of documents, no evidence may be given of such 
 judgment or proceeding, or of the terms of such 
 contract, grant, or other disposition of property, 
 except the document itself, or secondary evidence 
 of its contents in cases in which secondary evidence 
 is admissible under the provisions hereinbefore con- 
 tained.' ISTor may the contents of any such docu- 
 ment be contradicted, altered, added to, or varied 
 by oral evidence, [a] 
 
 *See Note XXXII. ' Illustrations (a) and (b). 
 
 [a] Partridge v. Ins. Co., 15 Wall., 573, 579; Bailey v. R. R. 
 Co., 17 Wall., 96, 105. 
 
122 A DIGEST OF TEE [Part II. 
 
 Provided that any of the following matters may 
 be proved : 
 
 (1) Fraud, intimidation, illegality, want of due 
 execution, want of capacity in any contracting 
 party, the fact that it is wrongly dated,' want or 
 failure of consideration, or mistake in fact or law, 
 or any other matter which, if proved, would pro- 
 duce any effect upon the validity of any document, 
 or of any part of it, or which would entitle any per- 
 son to any judgment, decree, or order relating 
 thereto.* [a] 
 
 (2) The existence of any separate oral agreement 
 as to any matter on which a document is silent, and 
 which is not inconsistent with its terms, if from 
 the circumstances of the case the court infers that 
 the parties did not intend the document to be a 
 complete and final statement of the whole of the 
 transaction between them.' [b] 
 
 (3) The existence of any separate oral agreement, 
 constituting a condition precedent to the attaching 
 
 1 Reffell V. Seffell, L. R. 1 P. and D., 139. Mr. Starkie ex- 
 tends this to mistakes in some other formal particulars. 3 
 Star. Ev., 787-8. 
 
 2 Tl lustration (c). ' Illustrations {d) and (e). 
 
 [a] JJniim Mutual Ins. Co. ii. Wilkinson, 13 Wall., 232, 231; 
 Bk. IT. S. 1). Dunn, 6 Peters, 51, 57; 3 Whar. Ev., sees. 980 to 
 935, 977. As to date, see Deakins v. Hollis, Adtnr. , 7 G. and 
 J., 811, 816. 
 
 [b] Fustinff 0. Sullivan, 41 Md., 163, 169; Huf chins v. Hib- 
 bard, 34 N. Y., 24, 26. 
 
Chap. XII.] LAW OF EVIDENOE. 123 
 
 of auy obligation under any such contract, grant or 
 disposition of property. ' [a] 
 
 (4) The existence of any distinct subsequent oral 
 agreement to rescind or modify any such contract, 
 grant, or disposition of property, provided that such 
 agreement is not invalid under the statute of frauds, 
 or otherwise.'' [b] 
 
 (5) Any usage or custom by which incidents not 
 expressly mentioned in any contract are annexed to 
 contracts of that description; unless the annexing 
 of such incident to such contract would be repug- 
 nant to or inconsistent with the express terms of 
 the contract.' [o] 
 
 Oral evidence of a transaction is not excluded by 
 the fact that a documentary memorandum of it was 
 made, if such memorandum was not intended to 
 have legal effect as a contract, or other disposition 
 of property.^ [d] 
 
 ' Illustrations (/) and (g). 
 
 2 Illustration Qi). 
 
 8 Wigglesworfh v. DalMson, and note thereto, S. L. C, 598-638. 
 
 * Illustration (i). 
 
 [a] BhugMrt v. Moore, 78 Pa. St., 469, 473; Pike v. Fay, 
 101 Mass., 134, 136. 
 
 [b] Monroe v. Perkins, 9 Pick., 298, 303; RusseU v. Barry, 
 115 Mass., 300, 303. 
 
 [c] BUmn V. JST. E. Screw Co., 33 How., 430, 431; Tlwmp- 
 sonv. Biggs, 5 Wall., 663, 679; Mm-an v. Pratlier, 33 Wall., 
 493, 503. 
 
 [d] Keene v. Meade, 3 Peters, 1, 7; Cramer v. Shriner, 18 
 Md., 147; 1 Whar. Ev., sec. 77. 
 
124 -^ DIGEST OF fSE [Paet II. 
 
 Oral evidence of the existence of a legal relation 
 is not excluded by the fact that it has been created 
 by a document, when the fact to be proved is the 
 existence of the relationship itself, and not the 
 terms on which it was established or is carried 
 on.' [a] 
 
 The fact that a person holds a public office need 
 not be proved by the production of his written or 
 sealed appointment thereto, if he is shown to have 
 acted in it.' [b] 
 
 lUustrationg. 
 
 (a) A policy of insurance is effected on goods "in ships 
 from Surinam to London." The goods are shipped in a par- 
 ticular ship, which is lost. 
 
 The fact that that particular ship was orally excepted from 
 the policy cannot be proved. ^ 
 
 (J) An estate called Q-otton Farm is conveyed by a deed 
 which describes it as consisting of the particulars described 
 in the first division of a schedule and delineated in a plan on 
 the margin of the schedule. 
 
 Evidence cannot be given to show that a close not mea- 
 tioned ia the schedule or deliueated in the plan was always 
 treated as part of Gotton Farm, and was intended to be con- 
 veyed by the deed. * 
 
 ' Illustration {k). 
 
 2 See authorities collected in 1 Ph. Ev., 419-50; T. E., s. 
 139. 
 
 3 Weston 11. Eames, 1 Tau., 115. 
 
 4 Barton v. Dawes, 10 0. B. , 261-265. 
 
 [a] Dutton V. Woodman, 9 Cush., 255, 263; Spiers v. Willi- 
 son, 4 Cranoh, 398; 1 Whar. Ev., sees. 78 and 1315-18. 
 
 [b] Sank U. S. v. Dandridge, 12 Wheat., 64, 70; McQiy v. 
 Curtice, 9 Wend., 17. 
 
Chap. XII.] LAW OF EVIDENOE. 125 
 
 (c) A institutes a suit against B for the specific performance 
 of a contract, and also prays that the contract may be re- 
 formed as to one of its provisions, as that provision was 
 inserted in it by miatalce. 
 
 A may prove that such a mistake was made as would entitle 
 him to have the contract reformed. ' 
 
 (d) A lets land to B, and they agree that a lease shall be 
 given by A to B. 
 
 Before the lease is given, B tells A that he will not sign it 
 unless A promises to destroy the rabbits. A does promise. 
 The lease is afterwards granted, and reserves sporting rights 
 to A, but does not mention the destruction of the rabbits. B 
 may prove A's verbal agreement as to the rabbits. 2 
 
 (e) A and B agree verbally that B shall take up an accept- 
 ance of A'a, and that thereupon A and B shall make a written 
 agreement for the sale of certain furniture by A to B. B does 
 not take up the acceptance. A may prove the verbal agree- 
 ment that he should do so.' 
 
 (/) A and B enter into a written agreement for the sale of 
 an interest in a patent, and at the same time agree verbally 
 that the agreement shall not come into force unless C 
 approves of it. does not approve. The party interested 
 may show this.* 
 
 {g) A, a farmer, agrees in writing to transfer to B, another 
 farmer, a farm which A holds of C. It is verbally agreed 
 that the agreement is to be conditional on O's consent. B 
 sues A for not transferring the farm. A may prove the con- 
 dition as to C's consent, and the fact that he does not con- 
 sent. = 
 
 (h) A agrees in writing to sell B fourteen lots of freehold 
 land, and make a good title to each of them. Afterwards B 
 
 1 Story's Equity .Jurisprudence, chap, v, ss. 153-162. 
 ^Morgan ». Oriffitlis, L. E. 6 Ex., 70. And see Angell v. 
 Duke',1,. R. lOQ. B., 174. 
 3 Lindtey 11. Lacey, 17 C. B. (N. S.), 578. 
 * Pym V. Gampbell, 6 E. and B. , 870. 
 » WallU V. LitieU, 11 C. B. (N. S.), 369. 
 
126 A DIGEST OF THE [Pabt II. 
 
 consents to take one lot, though the title is bad. Apart from 
 the statute of frauds this agreement might be proved. ' 
 
 (j) A sells B a horse, and verbally warrants him quiet in 
 harness. A also gives B a paper in these words: "Bought 
 of A a horse for 71. Ss. 6d." 
 
 B may prove the verbal warranty. 2 
 
 (J) The question is, whether A gained a settlement by occu- 
 pying and paying rent for a tenement. The facts of occupa- 
 tion and payment of rent may be proved by oral evidence, 
 although the contract is in writing. ' 
 
 Aetiole 91.* 
 
 what evidence mat be given foe the inteepke- 
 tation of documents. 
 
 (1) Putting a construction upon a document 
 means ascertaining the meaning of the signs or 
 words made upon it, and their relation to facts. 
 
 (2) In order to ascertain the meaning of the 
 signs and words made upon a document, oral evi- 
 dence may be given of the meaning of illegible or 
 not commonly intelligible characters, of foreign, 
 obsolete, technical and provincial expressions, of 
 abbreviations and of common words which, from 
 the context, appear to have been used in a peculiar 
 sense ;* [a] but evidence may not be given to show 
 
 * See Note XXXIII. 
 ' Ooss V. Lord Nugent, 5 B. and Ad., 58, 65. 
 
 2 AUen V. PH-nk, 4 M. and "W., 140. 
 
 3 R V. Hull, 7 B. and C, 611. * Illustrations (a) (J) (c). 
 
 [a] Stoops V. Smith, 100 Mass., 63, 66: Bk. U. S. v. Sunn, 
 6 Peters, 51; Thoringion v. Smith, 8 Wall., 1, 13; 2 Whar. 
 Ev., sees. 939, 940. 
 
Chap. XII.] LAW OF EVIDENCE. 127 
 
 that common words, the meaning of which is plain, 
 and which do not appear from the context to have 
 been used in a peculiar sense, were in fact so 
 used.' [a] 
 
 (3) If the words of a document are so defective 
 or ambiguous as to be unmeaning, no evidence can 
 be given to show what the author of the document 
 intended to saj.' [b] 
 
 (4) In order to ascertain the relation of the words 
 of a document to facts, every fact may be proved 
 to which it refers, or may probably have been 
 intended to refer, ° or which identifies an3' person 
 or thing mentioned in it.' Such facts are herein- 
 after called the circumstances of the case.' [o] 
 
 (5) If the words of a document have a proper 
 legal meaning, and also a less proper meaning, they 
 must be deemed to have their proper legal mean- 
 ing, unless such a construction would be unmeaning 
 in reference to the circumstances of the case, in 
 
 1 Illustration (d). ^ gge all the Illustrations. 
 
 2 Illustrations («) and (/). - Illustration (g). 
 
 5 As to proving facts showing the knowledge of the writer, 
 and for an instance of a document which is not admissible 
 for that purpose, aeeAdiei). Olark, L. R., 3, Ch. Div., 134, 142. 
 
 [a] Moran v. Pmther, 33 "Wall., 493, 501. 
 
 [b] Peisch D. Dickson, 1 Mason, 9; Pingry v. Wathins, 17 
 Vt., 379. 
 
 [c] Seed v. Ins. *Go., 95 TJ. S., 23, 30; Md. «. B. & 0. B. R 
 Co., 33 Wall., 105, 113. 
 
128 A DIGEST OF THE [Part II. 
 
 which case they may be interpreted according to 
 their less proper meaning. ' [a] 
 
 (6) If the document has one. distinct meaning in 
 reference to the circumstances of the case, it must 
 be construed accordingly, and evidence to show 
 that the author intended to express some other 
 meaning is not admissible." [b] 
 
 (7) If the document applies in part but not with 
 accuracy to the circumstances of the case, the court 
 may draw inferences from those circumstances as 
 to the meaning of the document, whether there is 
 more than one, or only one thing or person to 
 whom or to which the inaccurate description may 
 apply. In such cases no evidence can be given of 
 statements made by the author of the document as 
 to his intentions in reference to the matter to which 
 the document relates, though evidence may be 
 given as to his circumstances, and as to his habitual 
 use of language or names for particular persons or 
 things.' [o] 
 
 • Illustration (Ji). 
 
 2 Illustration («). 
 
 3 Illustrations (k) © (m). 
 
 [a] Reynolds v. Ins. Co., 47 N. T., 597, 605; The OonfeiUrate 
 Note Case, 19 Wall, 548, 559. 
 
 [b] Pindar «. Resolute Ins. Co., 47 N. T., 115, 117; Reynolds 
 V. Ins. Co., 47 N. Y., 597, 605. 
 
 [c] Atkinson's Lessee v. Cummins, 9 How., 479, 486; Reed v. 
 Im. Co., 95 U. S., 28, 30; Langlois v. Crawford, 59 Mo., 
 456, 466. 
 
Chap. XII.] LAW OF BYIDENOE. 129 
 
 (8) If the language of the document, though 
 plain in itself, applies equally well to more objects 
 than one, evidence may be given both of the cir- 
 cumstances of the case and of statements made by 
 any party to the document as to his intentions in 
 reference to the matter to which the document 
 relates.' [a] 
 
 (9) If the document is of such a nature that the 
 court will presume that it was executed with any 
 other than its apparent intention, evidence may be 
 given to show that it was in fact executed with its 
 apparent intention." [b] 
 
 lUustrations. 
 
 (a) A lease contains a covenant as to " ten thousand " rab- 
 bits. Oral evidence to show that a thousand meant, in relation 
 to rabbits, 1300, is admissible. ^ 
 
 (J) A sells to B " 1170 bales of gambler." Oral evidence is 
 admissible to show that a "bale" of gambler Is a package 
 compressed, and weighing 3 cwt.< 
 
 (c) A, a sculptor, leaves to B "all the marble in the yard, the 
 tools in the shop, bankers, mod tools for carving." Evidence 
 to show whether " mod " meant models, moulds or modeling- 
 tools, and to show what bankers are, may be given. 
 
 ' Illustration (ra). 
 
 2 Illustration (o) 
 
 3 Smith v. Wilson, 3 B. and Ad., 738. 
 
 < Oorrissen v. Perrin, 3 0. B. (N. S.), 681. 
 
 [a] Lycoming Mut. Lm. Co. v. Sailer, 67 Pa. St., 108, 113; 
 Ej/erss v. Wheeler, 33 "Wend., 148, 150; Burr v. Ins. Co., 16 
 N. Y., 367. 
 
 [b] Cfraves v. Spedden, 46 Md., 537, 533; Woolery ®. Woolery, 
 39Ind., 349, 353. 
 
 9 
 
130 A DIGEST OF THE [Part II. 
 
 (d) Evidence may not lie given to show that the word 
 "boats," ia a policy of insurance, means "boats not slung on 
 the outside of the ship on the quarter."' 
 
 (e) A leaves an estate to K, L, M, etc. , by a will dated before 
 1838. Eight years afterwards A declares that by these letters 
 he meant particular persons. Evidence of this declaration is 
 not admissible. Proof that A was in the habit of calling a 
 particular person M would have been admissible.' 
 
 (/) A leaves a legacy to . Evidence to show how the 
 
 blank was intended to be filled is not admissible.^ 
 
 (g) Property was conveyed in trust in 1704 for the support 
 of "Godly preachers of Christ's holy Gospel." Evidence 
 may be given to show what class of ministers were at the 
 time known by that name.* 
 
 (A) A leaves property to his "children." If he has both 
 legitimate and illegitimate children the whole of the property 
 will go to the legitimate children. If he has only illegitimate 
 children, the property may go to them.s 
 
 (i) A testator leaves all his estates in the county of Limerick 
 and city of Limerick to A. He had no estates in the county 
 of Limerick, but he had estates in the county of Clare, of 
 which the wiU did not dispose. Evidence cannot be given to 
 show that the words "of Clare" had been erased from the 
 draft by mistake, and so omitted from the will as executed.' 
 
 (J) A leaves a legacy to "Mrs. and Miss Bowden." No 
 such persons were living at the time when the legacy was 
 made, but Mrs. Washburne, whose maiden name had been 
 Bowden, was living, and had a daughter, and the testatrix 
 used to call them Bowden. Evidence of these facts was 
 admitted.' 
 
 (k) A devises land to John Hisoocks, the eldest son of John 
 
 • Blackett v. BoyaZ Bxchange Oo., 3 C. and J., 244. 
 
 2 Clayton v. Lord Nugent, 13 M. and W., 300, see 305-6. 
 
 -' Baylis v. A. G.,2 Atk., 239. 
 
 4 STwre v. Wilson, 9 0. and F., 365, 565-6. 
 
 5 Wig. Ext. Ev., pp. 18 and 19, and note of cases. 
 , 6 Miller v. Travers, 8 Bing., 244. 
 
 ' Lee V. Pain, 4 Hare, 251-3. 
 
Chap. XII.] LAW OF E7IDEMCE. 131 
 
 Hiscocks. John Hiscocks had two sons, Simon, his eldest, 
 and John, his second son, who, however, was the eldest son 
 by a second marriage. The circumstances of the family, but 
 not the testator's declarations of intention, may be proved in 
 order to show which of the two was intended.' 
 
 (V) A devises property to Elizabeth, the natural daughter 
 of B. B has a natural sou John, and a legitimate daughter 
 Elizabeth. The court may infer from the circumstances 
 under which the natural child was born, and from the testa- 
 tor's relationship to the putative father, that he meant to pro- 
 vide for John. 2 
 
 (m) A leaves a legacy to his niece, Elizabeth Stringer. At 
 the date of the will he had no such niece, but he had a great- 
 great-niece named Elizabeth Jane Stringer. The court may 
 infer from these circumstances that Elizabeth Jane Stringer 
 was intended; but they may not refer to instructions given 
 by the testator to his solicitor, showing that the legacy was 
 meant for a niece, Elizabeth Stringer, who had died before 
 the date of the will, and that it was put into the will by a 
 mistake on the part of the solicitor.' 
 
 (n) A devises one house to George Gord, the son of George 
 Gord, another to George Gord, the son of John Gord, and a 
 third to George Gord the son of Gord. Evidence both of 
 circumstances and of the testator's statements of intention 
 may be given to show which of the two George Gords he 
 meant. < 
 
 (o) A leaves two legacies of the same amount to B, assign- 
 ing the same motive for each legacy, one being given in his 
 will, the other in a codicil. The court presumes that they 
 are not meant to be cumulative, but the legatee may show, 
 either by proof of surrounding circumstances, or of declara- 
 tions by the testator, that they were.s 
 
 > Doe V. Hiscocks, 6 M. and W., 363. 
 
 2 JRyall 1). Hannam, 10 Beav., 536. 
 
 3 Stringer v. Qm-diner, 37 Beav., 35; 4 De G. and J., 468. 
 i Doe V. Needs, 3 M. and W., 139. 
 
 5 Per Leach, V. C, in Hurst «. Leach, 5 Madd., 351, 360-1. 
 The rule in this case was vindicated, and a number of other 
 
132 ^ DIGEST OF THE [Part II. 
 
 Aeticle 92.* 
 cases to which articles 90 and 91 do not apply. 
 Articles 90 and 91 apply only to parties to docu- 
 ments, and to their representatives in interest, and 
 only to cases in which some civil right or civil lia- 
 bility dependent upon the terms of a document is 
 in question. Any person other than a party to a 
 document or his representative in interest may, not- 
 withstanding the existence of any document, prove 
 any fact which he is otherwise entitled to prove ; 
 and any party to any document or any representa- 
 tive in interest of any such party may prove any 
 such fact for any purpose other than that of vary- 
 ing or altering any right or liability depending 
 upon the terms of the document, [a] 
 
 [Uusl/ralioni. 
 
 (a) The question is, wliether A, a pauper, is settled in the 
 parish of Cheadle. A deed of conveyance to 'which A was a 
 party is produced, purporting to convey land to A for a valu- 
 able consideration. The parish appealing against the order 
 was allowed to call A as a witness to prove that no considera- 
 tion passed. 1 
 
 * See Note XXXIV. 
 
 cases both before and after it were elaborately considered by 
 Lord St. Leonards, when chancellor of Ireland, in Hail v. 
 Hill, 1 Dru. and War., 94, 111-133. 
 1 E. V. Cheadle, 3 B. and Ad., 833. 
 
 [a] Barreda v. Silsbee, 21 How., 146, 16&; Still v. Hiidekopers, 
 17 Wall., 884, 397; also cases cited in 3 Whar. Ev., sec. 933. 
 
Chap. XII.] LAW OF EVIDENCE. 133 
 
 (6) The question is, whether A obtained money from B 
 under false pretenses. The money was obtained as a pre- 
 mium for executing a deed of partnership, which deed stated 
 a consideration other than the one which constituted the false 
 pretense. B may give evidence of the false pretense although 
 he executed the deed misstating the consideration for the 
 premium.! 
 
 • B. V. Adamaon, 3 Moody, 286. 
 
134 A DIGEST OF THE [Part III. 
 
 PART III. 
 
 PRODUCTION AND EFFECT 
 OF EVIDENCE. 
 
 CHAPTEE XIII.* 
 BURDEN OF PROOF. 
 Aeticle 93.f 
 
 HE WHO APFIEMS MUST PEOVE. 
 
 Whoever desires any court to give judgment as 
 to any legal right or liability dependent on the exis- 
 tence or non-existence of facts which he asserts or 
 denies to exist, must prove that those facts do or do 
 not exist. ' [a] 
 
 Article Qi.f 
 
 PEESUMPTION OF INNOCENCE. 
 
 If the commission of a crime is directly in issue, 
 it must [in criminal cases] be proved beyond reason- 
 
 * See Note XXXV. tSee Note XXXVI. 
 
 1 1 Ph. Ev., 552; T. E. (from Greenleaf), s. 337; Best, ss. 
 365-6; Starkie, 585-6. 
 
 [a] 1 Gr. Ev., sec. 74; 1 Whar. Ev.. sees. 353-856; Costigan 
 V. B. R. Co., 3 Denio, 609, 616; Pusey v. Wright, 31 Pa. St., 
 387, 394. 
 
Chap. XIII. ] LAW OF EVIDENOE. 135 
 
 able doubt [but in civil cases it is determined by 
 the preponderance of the evidence], [a] 
 
 The burden of proving that any person has been 
 guilty of a crime or wrongful act is on the person 
 who asserts it, whether the commission of such act 
 is or is not directly in issue in the action, [b] 
 
 lUuairations. 
 
 {a) A sues B on a policy of fire insurance. B pleads that 
 A burnt down the house insured. [If the preponderance of 
 the evidence sustains this plea, the verdict should be for the 
 defendant; but if A is afterwards indicted and tried for arson 
 of the same house, he cannot be convicted unless his guilt be 
 proved beyond a reasonable doubt. J [c] 
 
 (6) A sues B for damage done to A's ship by inflammable 
 matter loaded thereon by B without notice to A's captain. A 
 must prove the absence of notice.' 
 
 (e) The question in 1819 is, whether A is settled in the 
 parish of a man to whom she was married in 1813. It is 
 proved that in 1812 she was married to another person, who 
 ealisted soon afterwards, went abroad on service, and had 
 
 ^Williams v. East India Go., 3 Ea., 103, 198-9. 
 
 [a] There is some conflict of authority as to the quantity of 
 evidence necessary to prove in a civil action the commission of 
 a crime. But the weight of the American decisions is in sup- 
 port of the rule laid down in the text. See Scott v. Ins. Co., 
 1 Dillon 0. C, 105, 107; Ellis v. Bussell, 60 Me., 309, 311; 
 Young V. Edwards, 73 Penn! St., 257, 367; also, 3 Whar. Ev., 
 sec. 1346, and cases there cited. For the English rule that 
 the crime must be proved beyond a reasonable doubt even in 
 civil cases, see Thurtell v. Beaumont, 1 Bing., 339, and 
 Kane v. Ins. Co., 38 N. J. L., 441, 446. 
 
 [b] 1 Gr. Ev., sees. 34, 35. 
 
 [c] See authorities cited under note [a]. 
 
136 A DIGEST OF THE [Part HI. 
 
 not been heard of afterwards. The burden of proving that 
 the first husband was alive at the time of the second marriage 
 is on the person who asserts it. ' [a] 
 
 Aeticle 95. 
 
 on whom the general bitrden of peoof lies. 
 
 The burden of proof in any proceeding lies at 
 first on that party against whom the judgment of 
 the court would be given if no evidence at all were 
 produced on either side, regard being had to any 
 presumption which may appear upon the pleadings. 
 As the proceeding goes on, the burden of proof 
 may be shifted from the party on whom it rested at 
 first by his proving facts which raise a presumption 
 in his favor." [b] 
 
 IlhiMraUons. 
 
 (a) It appears upon the pleadings that A is indorsee of a 
 bill of exchange. The presumption is that the indorsement 
 was for value, and the party Interested in denying this must 
 prove it. 3 
 
 (b) A, a married woman, is accused of theft and pleads not 
 guilty. The burden of proof is on the prosecution. She is 
 shown to have been in possession of the stolen goods soon 
 after the theft. The burden of proof is shifted to A She 
 
 1 B. 11. Twyning, 2 B and A., 386. 
 
 2 1 Ph. Ev., 553; T. E., ss. 338-9; Starkie, 586-7 and 748; 
 Best, s. 368. 
 
 3 MUls 1). Barber, 1 M. and W., 435. 
 
 [a] Jones v. Jones, 45 Md., 144, 157; Case v. Case, 17 Cal., 
 598, 600. 
 
 [b] B. B. Co. v. Gladmon, 15 Wall., 401, 406. See, also, 
 authorities cited under article 93. 
 
Chap. XIII.] LAW OF EVIDENCE. 137 
 
 shows that she stole them in the presence of her husband. 
 The burden of proving that she was not coerced by him is 
 shifted on the prosecutor. 1 
 
 (fl) A is indicted for bigamy. On proof by the prosecution 
 of the first marriage, A proves that at the time he was a 
 minor. This throws on the prosecution the burden of prov- 
 ing the consent of A's parents. 2 
 
 (d) A deed of gift is shown to have been made by a client 
 to his solicitor. The burden of proving that the transaction 
 was in good faith is on the solicitor. 3 
 
 (e) It is shown that a hedge stands on A's land. The bur- 
 den of proving that the ditch adjacent to it is not A's also is 
 on the person who denies that the ditch belongs to A.* 
 
 (/) A proves that he received the rent of land. The pre- 
 sumption is, that he is owner in fee simple, and the burden 
 of proof is on the person who denies it.s 
 
 {g) A finds a jewel mounted in a socket, and gives it to B 
 to look at. B keeps it, and refuses to produce it on notice, 
 but returns the socket. The burden of proving that it is not 
 as valuable a stone of the kind as would go into the socket is 
 onB.6 
 
 (h) A sues B on a policy of insurance, and shows that the 
 vessel insured went to sea, and that after a reasonable time no 
 tidings of her have been received, but that her loss had been 
 rumored. The burden of proving that she has not foundered 
 is on B.' 
 
 'IRuss. Cri., 33; and 3, 337. 
 2 B. V. Sutler, 1 R. and R., 61. 
 
 5 1 Story Eq. Juris., s. 310, n. 1; quoting Hunter v. Atkins, 3 
 M. and K., 113. 
 
 - Gfuyv. West, Selw. K. P., 1397. 
 
 - Doe V. CouUhred, 7 A. and E., 335. 
 
 8 Armmiry 1). Delamirie, 1 S. L. C, 357. 
 7 KosUr V. Beed, 6 B. and C, 19. 
 
138 A DIGEST OF THE [Part III. 
 
 Aeticle 96. 
 
 btteden of peoof as to paetioitlab fact. 
 
 The burden of proof as to any particular fact lies 
 on that person who wishes the court to believe in 
 its existence, unless it is provided by any law that 
 the burden of proving that fact shall lie on any par- 
 ticular person;' but the burden may in the course 
 of a case be shifted from one side to the other, and 
 in considering the amount of evidence necessary to 
 shift the burden of proof the court has regard to , 
 the opportunities of knowledge with respect to the 
 fact to be proved which may be possessed by the 
 parties respectively, [a] 
 
 lUustratioTis. 
 
 (fl) A prosecutes B for theft, and wishes the court to believe 
 that B admitted the theft to C. A must prove the admission. 
 
 B wishes the court to believe that, at the time in question, ' 
 he was elsewhere. He must prove it. 
 
 (i) A, a shipowner, sues B, an underwriter, on a policy of 
 insurance on a ship. B alleges that A knew of and concealed 
 from B material facts. B must give enough evidence to 
 throw upon A the burden of disproving his knowledge; but 
 slight evidence will suffice for this purpose. 2 
 
 (c) In actions for penalties under the old game laws, though 
 
 ' For instances of such provisions see T. E., ss. 3-15-6. 
 ^Elkinv. Janstm, 13 M. and W., 655. See, especially, the 
 judgment of Alderson, B. , 663-6. 
 
 [a] Olemenis v. Moore, 6 Wall. , 299, 315 ; U. S. i\ Eayward, 
 2 Gall., 485, 497; Greca West. B. B. 11. Bacon, 30 111., 347, ;-S02. 
 
Chap. XIII. ] LAW OF EVIDENCE. 139 
 
 the plaintiflE had to aver that the defendant was not duly- 
 qualified, and was obliged to give general evidence that he 
 was not, the burden of proving any definite qualification was 
 on the defendant.' 
 
 Aetiole 97. 
 
 btiedbn as peoving fact to be peoved to make 
 evidence admissible. 
 
 The burden of proving any fact necessary to be 
 proved in order to enable any person to give evi- 
 dence of any other fact is on the person who wishes 
 to give such evidence. 
 
 Illustrations. 
 
 (a) A wishes to prove a dying declaration by B. 
 
 A must prove B's death, and the fact that he had given up 
 all hope of life when he made the statement. 
 
 (b) A wishes to prove, by secondary evidence, the contents 
 of a lost document. 
 
 A must prove that the document has been lost. 
 
 ' 1 Ph. Ev. , 556, and cases there quoted. The illustration 
 is founded more particularly on M. i). Jarvis, in a note to 
 a. «. Shne, 1 Ea. , 639, where Lord Mansfield's language 
 appears to imply what is stated above. 
 
140 A DIGEST OF TEE [Paet III. 
 
 CHAPTER XIV. 
 
 ON PRESUMPTIONS AND ESTOPPELS* 
 
 Article 98. 
 peesumption of le&itimaoy. 
 
 Tlie fact that any person was born during tlie 
 continuance of a valid marriage between his mother 
 and any man, or within such a time after the disso- 
 lution thereof and before the celebration of another 
 valid marriage, that his mother's husband could 
 have been his father, is conclusive proof that he is 
 the legitimate child of his mother's husband, unless 
 it can be shown, 
 
 either that his mother and her husband had no 
 access to each other at any time when he could 
 have been begotten, regard being had both to the 
 date of the birth and to the physical condition of 
 the husband, 
 
 or that the circumstances of their access (if any) 
 were such as to render it highly improbable that 
 sexual intercourse took place between them when it 
 occurred, [a] 
 
 * See Note XXXV. 
 
 [a] StegaUv. Siegall, 2 Brock., 256, 263-69. 
 Sullivan v. Kelly, 3 Allen, 148, 150; Hwring v. Qoodson, 43 
 Miss., 393, 396; Gom. v. Shepherd, 6 Binn., 283, 286. 
 
Chap. XIV.] LAW OF EVIDENCE. 141 
 
 JSTeither the mother nor the husband is a compe- 
 tent witness as to the fact of their having or not 
 having had sexual intercourse with each other, nor 
 are any declarations by them upon that subject 
 deemed to be relevant facts when the legitimacy 
 of the woman's child is in question, whether the 
 mother or her husband can be called as a witness or 
 not, [a] provided that in applica,tious for affiliation 
 orders when proof has been given of the non-access 
 of the husband at any time when his wife's child 
 could have been begotten, the wife may give evi- 
 dence as to the person by whom it was begotten. ' [b] 
 
 ■ B. V. Luffe, 8 Ea., 307; Cope v. Cope, 1 Mo. and Ro., 373-t; 
 Legge v. Edmonds, 35 L. J. Eq., 135, see p. 135; B. v. Mans- 
 field, 1 Q. B., 444; Morris v. Dames, 3 C. and P., 215. I am 
 not aware of any decision as to the paternity of a child born 
 say six months after the death of one husband, and three 
 months after the mother's marriage to another. Amongst 
 common soldiers in India such a question might easily arise. 
 The rule in European regiments is that a widow not remar- 
 ried within the year (it used to be six months) must leave the 
 regiment; the result was, and is, that widowhoods are usu- 
 ally very short. 
 
 [a] Tioga Oa. v. S. Creek Township, 75 Pa. St., 433, 436; 
 Cliamberlain v. People, 33 N. Y., 85, 88. 
 
 [b] Com. V. Connelly, 1 BrOwn (Pa.), 384; Com. v. Shepherd, 
 6 Binn., 383, 386; StaU v. Pettaway, 3 Hawks., 633, 635. 
 
142 A DIGEST Off THE [Past III. 
 
 Abticle 99. 
 peesttmption of death feom seven teaes' 
 
 ABSENCE. 
 
 A person shown not to have been heard of for 
 seven years by those (if any) who, if he had been 
 alive, would naturally have heard of him, is pre- 
 sumed to be dead, unless the circumstances of the 
 case are such as to account for his not being heard 
 of without assuming his death ; [a] but there is no 
 presumption as to the time when he died, and the 
 burden of proving his death at any particular time 
 is upon the person who asserts it. ' [b] 
 
 There is no presumption as to the age at which 
 a person died who is shown to have been alive at a 
 given time, or as to the order in which two or more 
 
 1 McMahon v. McElroy, 5 Ir. Eep. Eq., 1; Hopewell v. Be 
 Pinna, 3 Camp., 113; Nepeau v. Doe, 3 S. L. C, 563, 681; 
 Nepeau i}. KnigM, 3 M. and W., 894, 913; B. v. Lumley, L. R. 
 1 C. C. R., 196; and see the caution of Lord Denman in jB. -d. 
 Harborne, 2 A. and E., 544. All the cases are collected and 
 considered in In re PJiene's Trust, L. R. 5 Ch. App. , 139. 
 
 [a] Iioring -0. Steineman, 1 Mete, 304, 311; FUnnv. Coffee, 
 13 Allen, 133; SJieldon v. Ferris, 45 Barb., 134, 138. 
 
 [b] HaneoeJe Ins. Co., 63 Mo., 36, 30; Smith v. Knowlton, 11 
 JSr. H., 191, 196. 
 
Chap. XIV.] LAW OF EVIDENCE. 143 
 
 persons died who are shown to have died in the 
 same accident, shipwreck or battle. ' [a] 
 
 Aetiole 100. 
 
 presumption of lost grant. 
 
 When it has been shown that any person has, for 
 a long period of time, exercised any proprietary 
 right which might have had a lawful origin by 
 grant or license from the [state,] or from a private 
 person, and the exercise of which might and natur- 
 ally would have been prevented by the persons 
 interested if it had not had a lawful origin, there is 
 a presumption that such right had a lawful origin, 
 and that it was created by a proper instrument 
 which has been lost, [b] 
 
 Illustrations. 
 
 (a) The question is, whether B is entitled to recover from A 
 the possession of lands which A's fatlier and mother succes- 
 sively occupied from 1754 to 1792 or 1793, and which B had 
 occupied (without title) from 1793 to 1809. The lands formed 
 originally an encroachment ou the Forest of Dean. 
 
 1 WiTig ». Angrcme, 8 H. L. C, 183, 198; and see authorities 
 in last note. 
 
 [a] Coy V. Leach, 8 Mete, 871,, 372; Moakring v. 
 1 Barb. Chy., 264, 270. 
 
 [b] Pi-ilzv. Brandon, 78 Pa. St., 342, 355; Bicard v. Will- 
 iams, 7 Wheat., 59, 109. 
 
144 A DIGEST OF THE [Part III. 
 
 The undisturbed occupation for thirty-nine years raises a 
 presumption of a grant from the crown to A's father, i 
 
 (J) A fishing mill-dam was erected more than 110 years be- 
 fore 1861, in the River Derwent, in Cumberland (not being 
 navigable at that place), and was used for more than sixty 
 years before 1861, in the manner in which it was used in 1861. 
 This raises a presumption, that all the upper proprietors whose 
 rights were injuriously affected by the dam, had granted a 
 right to erect it. 2 
 
 (c) A builds a windmill near B's land in 1839, and enjoys a 
 free current of air to it over B's land as of right, and without 
 interruption till 1860. This enjoyment raises no presumption 
 of a grant by B of a right to such a current of air, as it would 
 not be natural for B to interrupt it.' 
 
 (d) No length of enjoyment (by means of a deep well) of 
 water, percolating through underground undefined passages, 
 raises a presumption of a grant from the owners of the grovmd 
 under which the water so percolates of a right to the water.* 
 
 Aetiole 101.* 
 
 pee8umpti0n of eeg-ulaeitt and of deeds to 
 complete title. 
 
 "When any judicial or official act is shown to have 
 been done in a manner substantially regular, it is 
 
 * See Note XXXVII, and Macdougall v. Purrier, 3 Bligh, 
 N. C, 433. M. V. Oresawell, L. R. 1 Q. B. D. (O. 0. R.), 446, 
 is a recent illustration of the effect of this presumption. 
 
 1 OoodtitU V. Baldwin, 11 Ea., 488. The presumption was 
 rebutted in this case by an express provision of 30 Ch. II., c. 
 3, avoiding grants of the Forest of Dean. See, also, Doe d. 
 Demne v. Wilson, 10 Moo. P. C, 503. 
 
 2 Leeonfield v. Lonsdale, L. R. 5 0. P., 657. 
 ' Webb ®. Bird, 13 C. B. (N. S.), 841. 
 
 ' Chasemore v. Richards, 7 H. L. C. , 349. 
 
Chap. XIV.] LAW OF EVIDENCE. 145 
 
 presumed that formal requisites for its validity 
 were complied with, [a] 
 
 "When a person in possession of any property is 
 shown to be entitled to the beneficial ownership 
 thereof, there is a presumption that every instru- 
 ment has been executed which it was the legal duty 
 of his trustees to execute in order to perfect his 
 title.' 
 
 Article 102.* 
 estoppel by conduct. 
 
 When one person by anything which he does or 
 says, or abstains from doing or saying, intentionally 
 causes or permits another person to believe a thing 
 to be true, and to act upon such belief otherwise 
 than but for that belief he would have acted, neither 
 the person first mentioned nor his representative in 
 interest is allowed, in any suit or proceeding 
 between himself and such person or his representa- 
 tive in interest, to deny the truth of that thing, [b] 
 
 When any person under a legal duty to any other 
 person to conduct himself with reasonable caution 
 in the transaction of any business neglects that duty, 
 
 * See Note XXXVIIL 
 ' Doe d. Hammond •». Gooke, 6 Bing., 174, 179. 
 
 [a] Bank U. S. v. Dandndge, 12 Wheat., 64, 69; Cofield v. 
 McClelland, 16 Wall., 331, 334. 
 
 [b] Barnard u. Campbell, 55 N. Y., 456, 462; Rice i>. Barrett, 
 116 Mass., 312; Zuchiman v. Boberts, 109 Mass., 53, 54. 
 
 10 
 
146 A DIGEST OF THE [Part III. 
 
 and when the person to "whom the duty is owing 
 alters his position for the worse because he is mis- 
 led as to the conduct of the negligent person by a 
 fraud, of which such neglect is in the natural course 
 of things the proximate cause, the negligent person 
 is not permitted to deny that he acted in the man- 
 ner in which the other person was led by such 
 fraud to believe him to act. [a] 
 
 lUustrationa. 
 
 (a) A, the owner of machinery in B's possession, -which is 
 taken in execution by C, abstains from claiming it for some 
 months, and converses with C's attorney without referring to 
 his claim, and by these means impresses C with the belief 
 that the machinery is B's. C sells the machinery. A is 
 ■ estopped from denying that it is B's.' 
 
 (J) A, a retiring partner of B, gives no notice to the custom- 
 ers of the firm that he is no longer B's partner. In an action 
 by a customer, he cannot deny that he is B's partner. 2 
 
 (c) A sues B for a wrongful imprisonment. The imprison- 
 ment was wrongful, if B had a certain original warrant; 
 rightful, if he had only a copy. B had in fact a copy. He 
 led A to believe that he had the original, though not with the 
 intention that A should act otherwise than he actually did, 
 nor did A so act. B may show that he had only a copy and 
 not the original. 3 
 
 (d) A sells eighty quarters of barley to B, but does not 
 specifically appropriate to B any quarters. B sells sixty of 
 
 ' Pickard v. Sears, 6 A. and E., 469, 474. 
 
 2 (Per Parke, B.) Freeman v. Cooke, 2 Ex., 661. 
 
 3 Howard v. Hudson, 3 E. and B., 1. 
 
 [a] GJiapman v. Rose, 56 N. Y., 137, 140; Putnain v. Sulli- 
 van, 4 ^la'is. , 45, 5.3. 
 
Chap. XIV.] LAW OF EVIDENCE. I47 
 
 the eighty quarters to C. C informs A, who assents to the 
 transfer. being satisfied with this, says nothing further to 
 B as to delivery. B becomes bankrupt. A cannot, in an 
 action by to recover the barley, deny that he holds for C 
 on the ground that, for want of specific appropriation, no 
 property passed to B.' 
 
 («) A signs blank cheques and gives them to his wife to fill 
 up as she wants money. A's wife fills up a cheque for £50 
 2s. so carelessly that room if left for the insertion of figures 
 before the 50 and for the insertion of words before the "fifty. " 
 She then gives it to a clerk of A's to get it cashed. He writes 
 3 before 50 and "three hundred and" before "fifty.'' A's 
 banker pays the cheque so altered in good faith. A cannot 
 recover against the banker. * 
 
 (/) A carelessly leaves his door unlocked, whereby his 
 goods are stolen. He is not estopped from denying the title 
 of an innocent purchaser from the thief.' 
 
 Aeticle 103. 
 estoppel of tenant and licensee. 
 ISTo tenant and no person claiming through any 
 tenant of any land or hereditament of which he has 
 been let into possession, or for which he has paid 
 rent, is, till he has given up possession, permitted 
 to deny that the landlord had, at the time when the 
 tenant was let into possession or paid the rent, a 
 title to such land or hereditament ;* [a] and no per- 
 
 1 Knights v. Wiffen, L. E. 5 Q. B., 660. 
 
 s Young v. Chote, 4 Blng., 253. 
 
 ' Per Blackburn, J., in Swan «. N. B. Australasian Co., 3 
 H. and C, 181. 
 
 4 Doe B. Barton, 11 A. and E., 307; Doe v. Smyth, 4 M. and 
 S., 347; Doe v. Pegg, 1 T. R., 760 (note). 
 
 [a] MUler 1). Long, 99 Mass., 13; Haies «. Shaw, 100 Mass., 
 187, lS9i Whalin v. White, 25 N. Y., 463, 468. 
 
148 ^ DIGEST OF THE [Paet III. 
 
 son who came upon any land by the license of the 
 person in possession thereof is, whilst he remains on 
 it, permitted to deny that such person had a title to 
 such possession at the time when such license was 
 given.' [a] 
 
 Article 104. 
 
 estoppel of accbptoe of bill of exchange. 
 
 No acceptor of a bill of exchange is permitted to 
 deny the signature of the drawer or his capacity to 
 draw, or if the bill is payable to the order of the 
 drawer, his capacity to endorse the bill, thougli he 
 may deny the fact of the endorsement f nor if the 
 bill be drawn by procuration, the authority of the 
 agent, by whom it purports to be drawn, to draw in 
 the name of the principal,' though he may deny his 
 authority to endorse it.* [b] 
 
 Aeticle 105. 
 
 estoppel of bailee, agent, and licensee. 
 
 No bailee, agent or licensee is permitted to deny 
 that the bailor, principal, or licensor, by whom any 
 
 ' Doe 11. Bay tup, '6 A. aad E., 188. 
 
 2 Garland v. Jacomb, L. R. 8 Ex. , 216. 
 
 3 Sanderson v. Coleman, 4 M. and Q-. , 209. 
 * Robinson v. Yarrow, 1 Tau., 455. 
 
 [a] Kinsman i). Parkhurst, 18 How., 289, 393; Glynn v. 
 George, 20 N. H., 114. 
 
 [b] 1 Par3ou3 on Notes and Bills, chap, ix, sec. 5, p. 320. 
 
Chap. XIV.] LAW OF EVIDENCB. 149 
 
 goods were entrusted to any of them respectively 
 was entitled to those goods at the time when they 
 were so entrusted. 
 
 Provided that any such bailee, agent, or licensee, 
 may show, that he was compelled to deliver up any 
 such goods to some person who had a right to them 
 as against his bailor, principal, or licensor, or that 
 his bailor, principal, or licensor, wrongfully and 
 without notice to the bailee, agent, or licensee, 
 obtained the goods from a third person who 
 has claimed them from such bailee, agent or 
 licensee.' [a] 
 
 ' Dixon V. Hammond, 3 B. and A., 313; Crossley v. Dixon, 10 
 H. L. 0., 293; Gosling v. Birme, 7 Bing., 339; Hardman v. 
 Wilcock, 9 Bing., 882; Diddle i>. Dond, 34 L. J. Q. B., 137; 
 WUson «. Anderton, 1 B. and Ad., 450. As to carriers, see 
 Sheridan v. Neio Quay, 4 C. B. (N. S.), 618. 
 
 [a] Bogers v. Weir, 34 N. Y., 463; King v. Bichards, 6 "Whar., 
 418, 421. 
 
150 A BIQEST OF THE [Pabt III. 
 
 CHAPTEE XY. 
 
 OF THE COMPETENOT OF WITNESSES* 
 
 Article 106. 
 
 "who mat testify. 
 
 All persons are competent to testify in all cases 
 except as hereinafter excepted. 
 
 Article lOT.f 
 
 WHAT WITNESSES ABB INCOMPETENT. 
 
 A witness is incompetent if, in the opinion of 
 the judge, he is prevented by extreme youth, dis- 
 ease affecting his mind, or any other cause of the 
 same kind, from recollecting the matter on which 
 he is to testify, from understanding the questions 
 put to him, from giving rational answers to those 
 questions, or from knowing that he ought to speak 
 the truth, [a] 
 
 A witness unable to speak or hear is not incom- 
 petent, but may give his evidence by writing or by 
 signs, or in any other manner in which he can make 
 
 * See Note XXXIX. f See Note XL. 
 
 [a] State 11. Whitten, 21 Me., 341, 347; 1 Gr. Ev., sees. 365, 
 367; 1 Whar. Ev., sees. 898-403. 
 
Chap. XV.] LAW OF EVIDENCE. 151 
 
 it intelligible; but such writing must be written, 
 and such signs made in open court. Evidence so 
 given is deemed to be oral evidence, [a] 
 
 [At common law all persons who were parties to 
 the record, or had a pecuniary interest in the result 
 of the suit, were incompetent to testify, but by the 
 Revised Statutes of the United States, section 858, 
 it is provided that in the courts of the United States 
 no witness shall be excluded " in any civil action 
 because he is a party to, or interested in, the issue 
 tried : Provided, That in actions by or against 
 executors, administrators or guardians, in which 
 judgments may be rendered for or against them, 
 neither party shall be allowed to testify against the 
 other as to any transaction with or statement by the 
 testator or ward, unless called to testify thereto by 
 the opposite party, or required to testify thereto by 
 tlie court." The result of this statute is to put the 
 parties to a suit (except those named in the proviso) 
 upon an equality with other witnesses — that is to 
 say, to make all admissible to testify for themselves 
 and all compellable to testify for others, [b] 
 
 Statutes to the same general effect and purpose, 
 although differing in their terms, have been enacted 
 in all the states of the Union excepting Delaware, 
 and all the territories excepting ISTew Mexico, [c] 
 
 [a] State 11. Be Wolf, 8 Conn., 93, 97; Snyder ». Natwns, 
 5 Black! , 295. 
 
 [b] Texas v. Chiles, 31 "Wall., 488. 
 
 [c] 1 Whar. Ev., sees. 464^77. 
 
152 A DIQEST OF THE [Paet III. 
 
 Witnesses not believing in the existence of a God 
 who dispenses retribution either in this world or 
 in the next are, at common law, incompetent to tes- 
 tify ; [a] but this rule has been modiiied by con- 
 stitutional provisions or statutes in several of the 
 states. 
 
 Witnesses convicted of crimes rendering them in- 
 famous (which comprehend treason, felony, and 
 the crimen falsi) [b] are excluded from giving 
 testimony in the courts of the state or country in 
 which they were convicted, unless the disability is 
 removed by a reversal of the judgment or by a par- 
 don. In most of the states the disqualification of 
 infamy has been removed by constitutional provi- 
 sion or by statute, but a conviction may be proved 
 to affect the credibility of the witness.] [o] 
 
 [a] OmichuTid v. Barker, 1 Sm. Lea. Cas., 7 Am. ed., *535, 
 *.54,'5. 
 
 [b] Prof. Greenleaf defines the crimen falsi of the com- 
 mon law as an offense "which not only Involves the charge 
 of falsehood, but also is one which may injuriously affect the 
 administration of justice by the introduction of falsehood and 
 fraud:" 1 Gr. Ev., sec. 373. 
 
 [c] 1 Gr. Ev., sees. 373-377; 1 Whar. Ev., sec. 897, and 
 cases there cited. 
 
Chap. XV.] LAW OF EVIDENCE. 153 
 
 Aetiole 108.* 
 
 COMPETENCY Ilf CEIMmAL CASES. 
 
 In criminal cases the accused person and his or 
 her wife or husband, and every person and the wife 
 or husband of every person jointly indicted with 
 him is incompetent to testify.' 
 
 Provided that in any criminal proceedings against 
 a husband or wife for any bodily injury or violence 
 inflicted upon his or her wife or husband, such wife 
 or husband is competent to testify.' 
 
 [In many of the states, however, it has been pro- 
 vided by statute that in criminal cases the accused 
 and their wives or husbands shall be competent, 
 but not compellable to testify.] PH 3- 2 Oa^f^./i' f /• 
 
 Article 109. 
 [husband and wife.] 
 [At common law husband and wife are incompe- 
 tent to testify for or against each other, except that 
 in all cases of personal injuries committed by the 
 one against the other, the injured party is an admis- 
 sible witness against the other, [a] 
 
 * See Note XLI. 
 
 1 -B. ». Payne, L. R. 1 C. C. B., 349; and B. «. Thompson, 
 lb., 377. 
 
 2 Reem ». Wood, 5 B. and S. , 364. Treason has been also 
 supposed to form an exemption. See T. E., s. 1387. 
 
 [a] 1 Gr. Ev., sec. 343. 
 
154 A DIGEST OF THE [Paet m. 
 
 To this rule the act of congress making parties to 
 suits competent witnesses has no application, [a] but 
 in most of the states the disqualification has, to a 
 greater or less extent, been removed by statute. 
 Generally, under these statutes, liusl)and and wife 
 are not compellable to testify against each other in 
 criminal proceedings, and in some of them are not 
 competent witnesses in actions for divorce.] 
 
 Aetiole 110. 
 
 commtjnications during maeeiage. 
 
 No husband is [permitted] to disclose any [confi- 
 dential] communication made to him by his wife 
 during the marriage, and no wife is [permitted] to 
 disclose any [confidential] communication made to 
 her by her husband during the marriage. [This 
 privilege does not extend to communications made 
 in the presence or hearing of third persons capable 
 of understanding them. It is not terminated by 
 the death of one of the parties, or by a dissolution 
 of the marriage. It is independent of the common 
 law disability of husband and wife to testify for or 
 against each other, and is therefore not affected by 
 the statutes removing such disability.] [b] 
 
 [a] Lucas V. Brooks, 18 Wall., 436, 452. 
 
 [b] Mercer i). Patterson, 41 Ind. , pp. 440, 442 ; Keator v. Dim- 
 niick, 46 Barb., 158, 163. See, also, 1 Gr. Ev., sees. 354, 336, 
 337, 388; 1 Whar. Ev., sec. 427, and cases there cited. 
 
Chap. XV.] LAW OF EVIBENOE. 155 
 
 Aetiole 111. 
 
 [jtjdgbs — theeb competen0t altd pervileges.j 
 
 [A presiding jiidge may not be sworn as a witness 
 in a cause before him. [a] Judges and justices of 
 the peace cannot be asked to disclose anything that 
 transpired at their consultations, but may be exam- 
 ined as to what took place at a former trial, in 
 order to identify a case or establish facts which do 
 not appear from the record, or to prove the testi- 
 mony of a witness.] [b] 
 
 Aetiole 112. 
 evidejroe as to aefaies of state. 
 
 No person can be compelled to give evidence re- 
 lating to any aiiairs of state, or [to communications 
 with public officers about matters pertaining to 
 their official duties, in so far as such examination 
 would, in the opinion of the court, make disclosures 
 injurious to the public interests. The executive of 
 the nation, or of a state, and cabinet officers, are 
 entitled, in the exercise of their discretion, to deter- 
 
 [a] People 11. Miller, 2 Park. C. E., 197, 200; Moras v. Morss, 
 11 Barb., 510; 1 Whar. Ev., 600. 
 
 [b] Iley ward's Case, 1 Sandf., 701, 704; Jackson v. Hum- 
 plirey, 1 Johns., 498; Welcome i>. Batclielor. 23 Me., 85, 88. 
 
156 A DIGEST OF THE [Past III. 
 
 mine how far in a judicial inquiry they will produce 
 papers or answer questions as to public affairs, [a] 
 ITor can any one be compelled] to give evidence 
 of what took place in either house of [the Legisla- 
 ture], without the leave of the house, though he may 
 state that a particular person acted as speaker. ' 
 
 Article 113. 
 estfoematioir as to commission of offenses. 
 [All communications in regard to the commission 
 of offenses made to public officers, with a view to 
 the prosecution or detection of suspected offenders, 
 are privileged, and neither the communications 
 themselves, nor the name of the person who made 
 them, may be divulged without the consent of said 
 
 person.] [b] 
 
 Article 114. 
 
 competency of jtteoes. 
 
 A petty juror may not," [c] and it is doubtful 
 
 ' Ohubb V. Salomons, 3 Car. and Kir., 77; PVwnkett v. Odbbett, 
 5 Esp., 136. 
 
 2 Vaise v. Delaval, IT. R, 11; Burgess v. Langley, 6 M. and 
 G., 723. 
 
 [a] Totten v. U. 3., 92 U. S., 105; Burr's Trial, 186; Mar- 
 bury V. Madison, 1 Cranch, 137, 144; Gray v. PenUand, 2 8. and 
 n., 23; Worthington v. Saribner, 109 Mass., 487, 488. 
 
 [b] Oliver v. Pate, 41 Ind., 133, 141 ; Z7. S. v. Moses, 4 Wash. 
 C. C, 726; Worthington V. Saribner, 109 Mass., 487, 488. 
 
 [c] Studley v. Sail, 22 Me., 198, 201; Oluggage v. Swan, 4 
 Binn., l.iO, 155; Eannumv. Belchertown, 19 Pick., 311, 313. 
 
Chap. XV.] LAW OF EVLDEWCE. 157 
 
 whether a grand juror may,' [a] give evidence 
 as to what passed between the jurymen in the 
 discharge of their duties; [but both grand [b] 
 and petty jurors [c] are competent witnesses to 
 prove what issues were actually passed on by the 
 jury, when it becomes a material question in any 
 subsequent proceedings. Grand jurors may also 
 give evidence as to what was the testimony of par- 
 ticular witnesses before them, whenever the pur- 
 poses of public justice or the establishment of pri- 
 vate rights require it.J [d] 
 
 Article 115.* 
 
 peofessional communtoatiolsrs. 
 
 No legal adviser is permitted, whether during or 
 after the termination of his employment as such, 
 
 * See Note XLIII. 1 1 Ph. Ev., 140; T. E., s. 803. 
 
 [a] As to whether it may be proved by members of the 
 grand jury, that twelve of them did not concur in finding the 
 indictment, tlie authorities are conflicting. Although the 
 majority of decisions are against admitting the testimony, 
 those in favor of it seem to be more coiTect upon principle. 
 See McLellan v. Ricliardson, 1 Shepl. ,82, 86 ; State v. Fasseit, 
 16 Conn., 457, 466; State v. Beebe, 17 Minn., 341, 343; StaU i>. 
 MoLeod, 1 Hawks., 344; Contra, Low's Case, 4 Me., 439, 444; 
 Richie v. Ilolbrook, 7 S. and R., 458. See, also, Buidekoper s. 
 Cotton, 3 Watts., 56; People ». Eurlbut, 4 Denio, 133, 135. 
 
 [bJ Com. V. Hill, 11 Cush., 137, 140; 01m. i). Mead, 13 Gray, 
 167, 170. 
 ■ [c] FoUansbee v. Walker, 74 Penn. St., 306, 310. 
 
 [b] State V. Benner, 64 Me., 367, 383. See, also, 1 Whar. 
 Ev., sec. 601. 
 
158 A DIGEST OF THE [Paet III. 
 
 unless with his client's express consent, to disclose 
 any communication, oral or documentary, made to 
 him as such legal adviser, by or on behalf of his 
 client, during, in the course, and for the purpose of 
 his employment, whether in reference to any mat- 
 ter as to which a dispute has arisen or otherwise, 
 or to disclose any advice given by him to his chent 
 during, in the course, and for the purpose of such 
 employment. It is immaterial whether the client 
 is or is not a party to tlie action in which the ques- 
 tion is put to the legal adviser, [a] 
 This article does not extend to — 
 
 (1) Any such communication as aforesaid made 
 in furtherance of any criminal purpose.' [b] 
 
 (2) Any fact observed by any legal adviser, in 
 the course of his employment as such, showing that 
 any crime or fraud has been committed since the 
 commencement of his employment, whether his 
 
 1 FolleUi). Jeff&ryes, 1 Sim. (N. S.), 17; GhaA-ltowo. Ooombea, 
 33 L. J. Ch., 284. These cases put the rule on the principle, 
 that the furtherance of a criminal purpose can never be part 
 of a legal adviser's business. As soon as a legal adviser takes 
 part in preparing for a crime, he ceases to act as a lawyer and 
 becomes a criminal — a conspirator or accessory as the case 
 may be. 
 
 [a] Chirac v. Beinecker, 11 Wheat., 380, 294; Qtrahaim n. 
 People, 63 Barb., 468, 483; Whiting v. Barney, 38 Barb., 393, 
 396; McLellan v. LongfellmD, 33 Me., 494. 
 
 [b] People V. Blakely, 4 Parlier C. R., 176, 180; Bk. of Utiea 
 V. ilersereau, 4 Barb. Ch., 528, 598. 
 
Chap. XV.] LAW OF EVIDENCE. 159 
 
 attention was directed to such fact by or on behalf 
 of his client or not. 
 
 (3) Any fact with which such legal adviser became 
 acquainted otherwise than in his character as 
 such, [a] The expression "legal adviser" includes 
 [counsel] and [attorneys],' their clerks' and inter- 
 preters between them and their clients, [b] 
 
 IllusiratioTis. 
 
 (a) A, being charged with embezzlement, retains B, a bar- 
 rister, to defend him. In the course of the proceedings, B 
 observes that an entry has been made in A's account book, 
 charging A. with the sum said to have been embezzled, which 
 entry was not in the book at the commencement of B's 
 employment. 
 
 This being a fact observed by B in the course of his employ- 
 ment, showing that a fraud has been committed since the 
 commencement of the proceedings, is not protected from 
 disclosure in a subsequent action by A against the prosecutor 
 in the original case for malicious prosecution.^ 
 
 ' Wilson V. linsiaU, 4T. R., 753. As to interpreters, lb., 756. 
 
 2 Taylor v. Foster, 2 C. and P., 195; Foote v. Hayne, 1 C. 
 and P., 545. 
 
 Quaere, whether licensed conveyancers are within the rule? 
 Parke, B., in Turquand v. Knight, 7 il. and W., 100, thought 
 not. Special pleaders wonld seem to be on the same footing. 
 
 3 Brown ii. Foster, 1 H. and N. , 736. 
 
 [a] Chirac v. Beinecker, 11 Wheat., 380, 294; CUllicotheR. 
 B. V. Jamison, 48 111., 281, 283; Crosby ». Berger, 11 Paige, 
 377, 378. 
 
 [b] Jackson v. F-ench, 3 Wend. , 337, 339 ; Brand v. Brand, 
 S9 How. Pr., 198, 260; Sibley 1>. Waffle, 16 N. Y., 180, 183. 
 
160 A mo EST OF THE [Part III. 
 
 (J) A retains B, an attorney, to prosecute C (whose property 
 he had fraudulently acquired) for murder, and says, "It is 
 not proper for me to appear in the prosecution for fear of its 
 hurting me in the cause coming on between myself and him; 
 but I do not care if I give £10,000 to get him hanged, for 
 then I shall be easy in my title and estate." This communi- 
 cation is not privileged. ' 
 
 Aetiole 116. 
 
 CONFIDENTIAL COMMUNICATIONS WITH LEGAL 
 ADVISEES. 
 
 No one can be compelled to disclose to the court 
 any communication between himself and his legal 
 adviser, which his legal adviser could not disclose 
 without his permission, although it may have been 
 made before any dispute arose as to the matter 
 referred to." [a] 
 
 1 Ammley v. Anglesea, 17 S. T., 1333-4. 
 
 2 Minet «. Morgam, L. K., 8 Ch. App., 361, reviewing all the 
 cases, and adopting the explanation given in Pea/rse v. Pea/rse, 
 1 De Gr. and S., 18-31, of Badclife v. Fursman, 2 Br. P. 
 C, 514. 
 
 [a] Hemenway v. Smith, 28 Vt., 701, 707; Games i>. Platte, 
 36 N. Y., Sup. Ct., 361, 365; BigUr v. Beyher, 48 Ind., 112; 
 but see contra. Inhabitants of Wdburn «. Henshaw, 101 Mass., 
 193, 300. 
 
CiiAP. XV.] LAW OF EVIDENCE. 161 
 
 Aeticle 117.* 
 
 clergymen aito medical men. 
 
 Medical men' and (probably) clergymen [a] may 
 be compelled to disclose communications made to 
 them in professional confidence. [But in many of 
 the states such communications are privileged by 
 statute.] 
 
 Aeticle 118. 
 
 PRODUCTION OF [DOCUMENTS BY] WITNESS NOT A 
 PARTY. 
 
 No witness who is not a party to a suit can be 
 compelled to produce [any document unless the 
 same appears to be relevant to the issue, or to some 
 fact deemed to be relevant to the issue], or any 
 document the production of which might tend to 
 criminate him, or expose him to any penalty or for- 
 feiture ;' but a witness is not entitled to refuse to 
 produce a document in his possession only because 
 
 * See Note XLIV. 
 
 1 Duchess of Kingston's Case, 20 S. T., 572-3. As to clergy- 
 men, see Note XLIV. 
 
 2 Whitaker v. Izod, 2 Tau., 115. 
 
 [a] Com. V. Brake, 15 Mass., 161; Simon -e. Oratz, 2 Penn. 
 R., 412. 
 
 11 
 
162 -^ DIGEST OF THE [Part III. 
 
 its production may expose him to a civil action/ or 
 because he has a lien upon it." [a] 
 
 [In all cases it is for the court and not the wit- 
 ness to judge of the lawfulness of the excuse for 
 the non-production of the document called for, and 
 it is the duty of the witness who has been served 
 with a subpoena dnices teoitm, to bring the document 
 with him into court, [b] 
 
 Article 119. 
 
 peoduction of documents [in the possession of 
 attoeneys oe solicitoes.j 
 
 [No attorney or solicitor can be compelled to pro- 
 duce any documents intrusted to him as such by 
 his clients, or to give oral evidence of their con- 
 
 1 Doe 1). Date, 3 Q. B., 609, 618. 
 
 2 Sojie V. Lidddl, 7 De G. M. and G., 331; Bhinier v. Leafh- 
 ley, 10 B. and C, 858; Brasaington v. Brassingion, 1 Si. and 
 Stu., 455. It has been doubted whether production may not 
 be refused on the ground of a lien as against the party requir- 
 ing the production. This is suggested in Brassington v. Bras- 
 sington, and was acted upon by Lord Deuman in Kemp ii. 
 King, 2 Mo. and Ro., 437; but it seems to be opposed to 
 Hunter v. Leaihley, in which a broker who had a lien on a 
 policy for premiums advanced was compelled to produce it 
 in an action against the underwriter by the assured who had 
 created the lien. See Ley ■b. Barlow (judgt. of Parke, B.), 1 
 E.X., 801. 
 
 [a] BuU v. Lovelaiid, 10 Pick., 9, 14; Skinner ». Judd,& 
 Conn., 528, 533; 1 Whar. Ev., sec. 754. 
 
 [b] BuU v. Looeliiid, 10 Pick., 9, 14. 
 
Chap. XV.] LAW OF EVIDENCE. 163 
 
 tents, but he may be required to testify as to the 
 existence of such documents, and whether they are 
 in his possession, so as to enable the other party to 
 give secondary evidence of their contents.] [a] 
 
 Aetiole 120. 
 witness not to be compelled to criminate himself. 
 No one is bound to answer any question if the 
 answer thereto would, in the opinion of the judge, 
 have a tendency to expose the witness (or the wife 
 or husband of the witness) to any criminal charge, 
 or to any penalty or forfeiture which the judge 
 regards as reasonably likely to be preferred or sued 
 for ; ' [b] but no one is excused from answering any 
 
 ' B. ». Boyes, 1 B. and S. , 430. As to husbands and wives, 
 see 1 Hale, P. C, 301; iJ. v. GlMger, 3 T. R., 263; Cartwright 
 V. Green, 8 Ve., 405; B. i>. Bathwvik, 2 B. and Ad., 639; B. v. 
 All Saints, Worcester, 6 M. and S., 194. These cases show 
 that even under the old law which made the parties and their 
 husbands and wives Incompetent witnesses, a wife was not 
 incompetent to prove matter which might tend to criminate 
 her husband. B. v. Giimger assumes that she was, and was 
 to that extent overruled. As to the later law, see B. i>. Halli- 
 day, Bell, 257. The cases, however, do not decide that if the 
 wife claimed the privilege of not answering she would be 
 compelled to do so, and to some extent they suggest that she 
 would not. 
 
 [a] Brandt v. Klein, 17 Johns., 335, 339; Jackson v. McVey, 
 18 Johns., 330, 333; MePJwrsm v. BatMom, 7 Wend., 216, 
 318; BIwads v. Belin, 4 "Wash. 0. C, 715, 718; Durkee v. 
 Ldand, 4 Vt., 613, 614; Lynde v. Judd, 8 Day, 499. 
 
 [b] Bk. Salin v. Eenry, 3 Denio, 155, 158; Gurtis i). Knox, 
 2 Denio, 341, 343; U. 8. v. Brown, 1 Sawyer, 531, 536. 
 
164 A DI&EST OF THE [Part III. 
 
 question only because the answer may establish or 
 tend to establish that he owes a debt, or is other- 
 wise liable to any civil suit, either at the instance 
 of the [state] or of any other person.' [a] 
 
 [The privilege, however, may be waived by a wit- 
 ness voluntarily testifying to any matter which 
 might expose him to a criminal prosecution, in 
 which case he is bound to give all the details of the 
 transaction if required. Parties to the cause testi- 
 fying on their own offer are considered as thereby 
 waiving their privilege as to the subject matter of 
 their testimony in chief, and must submit to a full 
 cross-examination thereon, notwithstanding the an- 
 swers tend to criminate or disgrace them.] [b] 
 
 Article 121. 
 coeeoboeation, when eequieed. 
 ISo order against any person alleged to be the 
 father of a bastard child can be made by any jus- 
 tices, or confirmed on appeal by any court, unless 
 the evidence of the mother of the said bastard child 
 is corroborated in some material particular to the 
 
 ' 46 Geo. III., c. 37. 
 
 [a] Bull V. Loveland, 10 Pick., 9, 13. 
 
 [b] State v. Ohm; 52 N. H., 459, 63; Com. ». Morgan, 107 
 Mass., 199, 305; McGarry v. People, 3 Lansing, 337, 233; Con- 
 nor V. People, 50 N. Y., 240, 243; Boddy v Pinnegan, 43 Md., 
 490, 502; Norfolk v. Qaylord, 28 Conn., 309. See 1 Gr. Bv., 
 451, 451 a. 
 
Chap. XV.] LAW OF EVIDENCE. 165 
 
 satisfaction of the said justices (^r court respec- 
 tively.' [a] 
 
 When the only proof against a person charged 
 with a criminal offense is the evidence of an accom- 
 plice, uncorroborated in any material particular, it 
 is the duty of the judge to warn the jury that it is 
 unsafe to convict any person upon such evidence, 
 though they have a legal right to do so." [b] 
 
 [Courts will not grant divorces upon the testimony 
 of the parties alone without some corroborative 
 proof whenever the nature of the case admits of 
 it. [o] 
 
 The general rule in equity is, that either two wit- 
 nesses, or one witness with probable circumstances, 
 will be required to outweigh an answer asserting a 
 fact responsively to a bill, but cases sometimes 
 occur when the evidence arising from circumstances 
 is of itself strong enough for this purpose.] [d] 
 
 Article 122. 
 
 numbee of witnesses. 
 
 [It is provided by article 3 section 3 of the Con- 
 stitution of the United States that no person shall 
 
 ' 8 and 9 Vict., c. 10, s. 6; 35 and 36 Vict., c. 6, s. 4. 
 
 2 1 Pli. Ev., 93-101; T. E., ss. 887-91; 3 Russ. Cri., 600-611. 
 
 [a] 1 Whar. Ev., sec. 414. 
 
 [b] 1 6r. Et., sec. 380. 
 
 [c] Bobbins -0. Bobbins, 100 Mass., 150. 
 
 [d] Clarke's Exr. v. Van Biemsdyk, 9 Cranch, 153, 160. 
 
166 A DIGEST OF TEE [Paet III. 
 
 be convicted of treason against the United States, 
 unless on the testimony of two witnesses to the 
 same overt act, or on confession in open court. But 
 a person may be convicted of treason against a state 
 (where there is no express law to the contrary) by 
 the testimony of two witnesses, one of them to one, 
 and another to another overt act of the same 
 treason, or both of them to a voluntary confession 
 out of court.] [a] 
 
 If, upon a trial for perjury, the only evidence 
 against the defendant is the oath of one witness 
 contradicting the oath on which perjury is assigned, 
 and if no circumstances are proved which corrobo- 
 rate snch witness, the defendant is entitled to be 
 acquitted, [b] 
 
 [a] 1 Gr. Ev. , sec. 335. 
 
 [b] 1 Gr. Ev., sec. 337; U. 8. v. Wood, 14 Peters, 430,440. 
 
Chap. XVI.] LAW OF EVIDENCE. 167 
 
 CHAPTEE XVI. 
 
 OF TAKING ORAL EVIDENCE, AND OF TEE 
 EXAMINATION OF WITNESSES. 
 
 Aetiole 123. 
 bvidenoe to be upon oath, except in cektain 
 
 CASES. 
 
 All oral evidence given in any proceeding must be 
 given upon oath, but if any person called as a wit- 
 ness refuses or is unwilling to be sworn from 
 alleged conscientious motives, [he will be allowed to 
 make a solemn religious affirmation involving a like 
 appeal to God for the truth of his testimony in any 
 mode which he shall declare to be binding on his 
 conscience ; and any person who, having made such 
 affirmation, willfully and corruptly gives false evi- 
 dence is punishable as for perjury.] [a] 
 
 Aetiole 124. 
 
 poem of oaths. 
 
 [AU witnesses are to be sworn according to the 
 peculiar ceremonies of their own religion, or in 
 such manner as they may deem binding on their 
 
 [a] 1 Gr. Ev., sec. 371; Omichund v. Barker, 1 Sm. Lea. 
 Ca., 7 Am. ed., *535, *545; Williamson v. Carroll. 16 N. J. L., 
 217. 
 
168 A DIGEST OF THE [Paet HI. 
 
 own consciences, and if the witness be not of the 
 Christian religion, the court will inquire as to the 
 form in which an oath is administered in his own 
 country, or among those of his own faith, and will 
 impose it in that form. In ascertaining what form 
 of oath is binding upon the conscience of the wit- 
 ness, the court may inquire of the witness himself, 
 and the proper time for making this inquiry is 
 before he is sworn.] [a] 
 
 Article 125. 
 how oeal evidence mat be taken. 
 
 Oral evidence may be taken — - 
 
 In open court according to the rules contained in 
 this chapter relating to the examination of wit- 
 nesses. 
 
 Or out of court for future use in court — 
 
 [{a) Under a commission in the manner prescribed 
 by the terms of said commission, or by the rules of 
 court or by the statute regulating the mode of 
 executing the same. 
 
 (J) By deposition before any officer of the court 
 or other person or persons appointed for that pur- 
 pose, either by agreement of the parties or under 
 the provisions of any statute or rule of court gov- 
 erning the tribunal in which said evidence is to be 
 
 [a] 1 Gr. Ev., sec. 371; 1 Whar. Ev., sec. 387; Omichund v. 
 Barker, 1 Sm. Lea. Ca., 7 Am. ed., *535, *545; The Merrimac, 
 1 Ben., 490; Puller v. Fuller, 17 Cal., 605, 613. 
 
Chap. XVI.] LAW OF EVIDENCE. 169 
 
 used ; such depositions are to be taken only in the 
 manner and under the circumstances prescribed, 
 and to be used only for the purposes and upon the 
 contingencies expressly provided by the terms of 
 such agreement or statute or rule of court.] 
 
 ' When a deposition or the return of a commission 
 is used in any court as evidence of the matter 
 stated therein, the party against whom it is read 
 may object to the reading of anything therein con- 
 tained on any ground lapon which he might have 
 objected to its being stated by a witness examined 
 in open court, [a] provided that no one is entitled 
 to object to the reading of any answer to any ques- 
 tion asked by his own representative [excepting 
 upon the ground of said answer being irresponsive 
 to such question, [b] and provided, further, that no 
 question may be objected to as leading unless excep- 
 tion was taken thereto before it was answered, in 
 cases where the party objecting or his representa- 
 tive had the opportunity of so excepting.] [o] 
 
 ' T. E., 491. Sutchinson v. Bernard, 2 Moo. and Rob., 1. 
 
 [a] Saaggs v. B. & 0. B. B., 10 Md., 268, 381. 
 
 [b] Mayjieldv. Kilgore, 31 Md., 240, 243. 
 
 [o] Siriclder v. Todd, 10 S. and R., 63, 73; Smith v. Cooke, 81 
 Md., 174, 179. 
 
170 4 DIGEST OF THE [Part III. 
 
 Aeticle 126.* 
 EXAMUfATioir m chief, cross-examination, and 
 
 RE- EXAMINATION. 
 
 Witnesses examined in open court must be first 
 examined in chief, then cross-examined, and then 
 re-examined. 
 
 Wlienever any witness has been examined in 
 chief, the opposite party has a right to cross-examine 
 him. After the cross-examination is concluded, the 
 party who called the witness has a right to re- 
 examine him. 
 
 The court may in all cases permit a witness to be 
 recalled either for further examination in chief or 
 for further cross-examination, and if it does so, the 
 parties have the right of further cross-examination 
 and further re-examination respectively. 
 
 If a witness dies, or becomes incapable of being 
 further examined [before an opportunity for his 
 cross-examination has been afforded to the party 
 against whom his evidence is to be used, the testi- 
 mony already given must be excluded.] [a] 
 
 If in the course of a trial a witness who was sup- 
 posed to be competent appears to be incompetent, 
 
 * See Note XLV. 
 
 [a] Kinsamv. Forrest, 25 Wend., 651; but see 6a3S v. San- 
 son, 3 Sumn., 98, 104-108. 
 
Chap. XVL] LAW OF EVIDENCE. 171 
 
 his evidence may be withdrawn from the jury, and 
 the case may be left to their decision independently 
 of it.' [a] 
 
 Aetiole 127. 
 
 to what mattees 0eos8-bxamination and ee- 
 examtnation must be dieected. 
 
 The examination [in chief] must relate to facts in 
 issue or relevant or deemed to be relevant thereto, 
 [and the cross-examination of a witness must be con- 
 fined to the facts and circumstances connected with 
 the matters stated in his direct examination (except 
 as provided in article 129) ; if the party cross- 
 examining desires his testimony as to other matters 
 he must make the witness his own by calling liim 
 .as such in the subsequent progress of the cause.] [b] 
 
 The re-examination must be directed to the ex- 
 planation of matters referred to in cross-examina- 
 
 1 R. V. Whitehead, L. R. 1 C. C. R., 33. 
 
 [a] Evans v. Eaton, 1 Peters C. C, 823, 388; Mitchell v. 
 Mitchell, 11 G. and J., 388, 394. 
 
 [b] 1 Gtv. Ev. , sec. 445 ; Phila. & Trenton B. B. v. Stimpson, 
 14 Peters, 448, 461 ; Houghton v. Jones, 1 Wall., 703, 706. The 
 rule as above stated prevails in moat of the jurisdictions in 
 this country, but this limitation of the range of cross-exami- 
 nation is not applied in several of the states, as Massachusetts, 
 New York, Ohio, Alabama, Mississippi, Missouri, and Michi- 
 gan. The cases are all collected in 1 Whar. Ev., sec. 539, 
 note. 
 
172 A DIGEST OF TEE [Paet III. 
 
 tion ; and if new matter is, by permission of the 
 court, introduced in re-examination, the adverse 
 party may further cross-examine upon that matter. 
 
 Article 128. 
 leabing questions. 
 Questions suggesting the answer which the per- 
 son putting the question wishes or expects to 
 receive, or suggesting disputed facts as to which the 
 witness is to testify, must not, if objected to by the 
 adverse party, be asked in an examination in chief, 
 or a re-examination, except with the permission of 
 the court, [which may be given where the witness is 
 evidently hostile to the party calling him, or reluct- 
 ant to give evidence, or when omissions in his testi- 
 mony are evidently caused by want of recoUection 
 which a suggestion may assist], but such questions 
 may be asked in cross-examination, [a] 
 
 Article 129.* 
 
 qtjestioirs lawful in ceoss-examination. 
 
 When a witness is cross-examined, he may, in 
 addition to the questions hereinbefore referred to, 
 be asked any questions which tend — 
 
 * See Note XLVI. 
 
 [a] 1 Gr. Bv., sec. 435; Moody «. SmoeU, 17 Kck., 498; 
 Huclcim V. Im. Co., 31 N. H., 338, 347; Cheney v. Arnold, 18 
 Barb., 434, 439; State «. JBenner, 64 Me., 367, 379. 
 
Chap. XVI.] LAW OF EVIDENCE. 173 
 
 (1) To test his accuracy, veracity, or credibility ; 
 or 
 
 (2) To shake his credit, by injuring his char- 
 acter, [a] 
 
 {Provided, that if objection be made, he cannot 
 be asked wliether he has previously been convicted 
 of any crime or misdemeanor, as the adverse party 
 has the right to insist that this shall only be shown 
 by a record of the judgment.] [b] 
 
 He may be compelled to answer any such ques- 
 tion, however irrelevant it may be to the facts in 
 issue, and however disgraceful the answer may be 
 to himself, except in the case provided for in article 
 
 . 120, if in the opinion of the judge such question be 
 material to afEect the credibility of the witness's 
 
 V testimony, [c] The latitude allowed in this par- 
 ticular on cross-examination rests at all times in the 
 discretion of the judge before whom the case is 
 tried, who should not compel a witness to answer 
 vexatious or degrading questions, unless the ends of 
 justice seem plainly to require it ; and the exercise 
 
 [a] 1 Gr. Ev., sees. 451 to 460 inclusive; 1 Whar. Ev., sees. 
 529 to 548 inclusive. 
 
 [b] Newmmh v. Griswold, 24 N. Y., 398; 1 Gr. Ev., sec. 457; 
 Contra, State D. March, 1 Jones (N. C.) L., 526, and State «. 
 Oarrett, Busb. (N. C.) L., 337. A witness, liowever, may be 
 asked whether he has ever been in jail or in the penitentiary, 
 and how long he has been there : Beal i>. People, 42 N. Y. , 
 270, 280. 
 
 [c] See Illustrations {a) (J), also 1 Gr. Ev., sec. 459; 2 Tay. 
 Ev., sees. 1314, 1315; also People v. Hector, 19 "Wend., 570, 581. 
 
174 A DIGEST OF THE [Part III. 
 
 of sucli discretion is not subject to review on 
 appeal, [a] 
 
 IlVmtrations. 
 
 (a) The question is, whether A committed perjury in swear- 
 ing that he was E. T. B deposes that he made tattoo marks 
 on the arm of B. T. , which at the time of the trial were not 
 and never had been on the arm of A. B may be asked and 
 compelled to answer the question whether, many years after 
 the alleged tattooing, and many years before the occasion on 
 which he was examined, he committed adultery with the wife 
 of one of his friends. ^ 
 
 [(J) Upon the trial of A for poisoning B, the wife of the 
 latter, who had an illicit connection with A, being a witness 
 for the state, may not be compelled to say on cross-examina- 
 tion whether she was in the habit of having sexual intercourse 
 with other men than her husband before she had it with 
 A.] [B] 
 
 Aettole 130. 
 
 exclusion of evidence to conteadict answees to 
 questions testing vekacitt. 
 
 When a witness under cross-examination has been . 
 asked and has answered any question which is rele- 
 vant to the inquiry only in so far as it tends to 
 shake his credit by injuring his character, no evi- 
 
 ' B. c. Orion. See summing up of Cockburn, C. J., vol. ii, 
 p. 719, etc. 
 
 [a] Cheat Western Turnpike Co. v. Loorrds, 32 N. T., 137, 
 133; Crni. «. Sackett, 33 Pick., 394; Cmn. v. Lyden, etc., 113 
 Mass., 453. 
 
 [b] Le Beau t. People, 34 N. Y., 323, 330. 
 
Chap. XVI.] LAW OF EVIDENCE. 175 
 
 dence can be given to contradict him' [a] except 
 that — 
 
 If a witness is aeked any question tending to 
 show that he is not impartial, and answers it by 
 denying the facts suggested, he may be contra- 
 dicted." [b] 
 
 Aetiole 131.* 
 
 statements inconsistent with pebsent te8tim0nt 
 mat be pkoved. 
 
 Every witness under cross-examination in any 
 proceeding, civil or criminal, may be asked whether 
 he has made any former statement relative to the 
 subject matter of the action and inconsistent with 
 his present testimony, the circumstances of the sup- 
 posed statement being referred to suflEiciently to 
 designate the particular occasion, and if he does not 
 
 * See Note XLVII. 
 
 ' A. G. V. Hitchcock, 1 Ex., 91, 99-105. See, too, Palmer v. 
 Trowe/r, 8 Ex., 247. 
 ^A. Q. v. mtchoock, 1 Ex., 91, pp. 100, 105. 
 
 [a] 1 Wliar. Et. , sec. 559. The test of whether the denial 
 of a fact inquired of in cross-examination may be contradict- 
 ed is this, would the cross-examining party be entitled to 
 prove such fact as part of his case, tending to establish his 
 plea ? See Sildeburn v. Gurran, 65 Pa. St., 59, 63. 
 
 [b] Newton v. Harria, 3 Seld., 345; Byers v. Horner, 47 Md., 
 33, 33. 
 
176 A DIGEST OF THE [Part III. 
 
 distinctly admit that he has made such a statement, 
 proof may be given that he did in fact make it. [a] 
 
 [But the statements which it is intended to contra- 
 dict must involve facts in evidence. If confined to 
 opinion, when opinion is not in issue, or to other 
 irrelevant matters, the cross-examining party is 
 bound by the answer, [b] 
 
 A party examining a witness in chief, if taken by 
 surprise by unexpected testimony, may interrogate 
 him in respect to his own previous declarations 
 inconsistent with his evidence, but may not contra- 
 
 [a] Conrad v. Griffey, 16 How., 38, 46; iSpraguev. Cadwdl, 
 13 Barb., 516. 
 
 In some of the states it is not necessary to ask the witness 
 if he has made such contradictory statements before proving 
 them; see Tucker v. Welsh, 17 Mass., 160, 166; Hedge v. Clapp, 
 S2 Conn., 362, 365; Robinson t. Hutcldnson, 31 Vt., 448, 449; 
 Gook V. Brown, 84 N. H. , 460, 471 ; Ware v. Ware, 8 Greenleaf, 
 43, 53; but in most jurisdictions the rule that the witness must 
 be first asked about them is rigidly enforced, and the deposi- 
 tion of a witness, when offered in evidence, has not been suf- 
 fered to be impeached by proof of any previous or subsequent 
 contradictory statements, whether verbal or written, unless 
 the witness had first been specially interrogated regarding 
 them: Conrad v. Griffey, supra; Hubbard t). Brigga, 31 N. Y., 
 518, 536; Banyan ii. Price, 15 Ohio St., 1, 11. 
 
 Generally, however, this rule has been held not to extend 
 to contradictory depositions of the same witness taken in the 
 same cause, which may be introduced to impeach him, with- 
 out calling his attention to them beforehand: Eekert v. McAl- 
 lister, AS Md., 290, 304; Bryan v. Walton, 14 Ga., 185, 195; 
 Hugliesv. Wilkinson, 85 Ala., 453; but see contra, Bradford v. 
 Barclay, 39 Ala., 38; SamueU v. Griffith, 18 Iowa, 103. 
 
 [b] Mohnea v. Anderson, 18 Barb. , 430 ; Com. v. Mooney, 110 
 Mass., 99, 101; 1 Gr. Ev, sec. 449; 1 Whar. Ev., sec. 5.5L 
 
Chap. XVI.] LAW OF EVIDBNOE. 177 
 
 diet his answers in regard to having made such 
 declarations, [a] 
 
 Aetiolb 132. 
 
 ce088 -examination as to pbevious statements in 
 
 WRITING. 
 
 A witness under cross-examination (or a witness 
 examined under the provisions of article 131, by the 
 party who called him as to previous statements in- 
 consistent with his present testimony) may [not] be 
 questioned as to previous statements made by him 
 in writing, or reduced into writing, relative to the 
 subject matter of the cause, without such writing 
 being shown to him [or its non-production satisfac- 
 torily accounted for, and notice being given him of 
 the contents.] [b] 
 
 Aeticle 133. 
 
 IMPEACHING credit OF WITNESS. 
 
 The credit of any witness may be impeached by 
 the adverse party, by the evidence of persons who 
 swear that they, from the knowledge of the wit- 
 ness's general reputation for truth and veracity in 
 the community in which he has lived, believe him 
 
 [a] Bullardv. Pearsall, 53 N. Y., 230; 1 Gr. Ev., sec. 444, 
 444 a. 
 
 [b] Qaffney v. People, 50 K Y., 416, 423; Newcomb v. Gris- 
 wold, 24 N. Y., 298, 301; Uallahan v. Shaw, 24 Iowa, 441. 
 
 12 
 
178 A DIG EST OF THB [Paet III. 
 
 to be unworthy of credit upon his oath, [a] Such 
 persons may not, upon their examination in chief, 
 give reasons for their belief, but they may be asked 
 their reasons in cross-examination, and their answers 
 cannot be contradicted.' [b] 
 
 No such evidence may be given by the party by 
 whom any witness is called; [c] but when such 
 evidence is given by the adverse party, the party 
 who called the witness may give evidence in reply 
 to show that the witness is worthy of credit,' [d] 
 [and the credibility of the impeaching witness him- 
 self may be attacked and sustained in like man- 
 ner, [e] 
 
 The record of the conviction of a witness of any 
 crime may, by the laws of most of the states, be 
 put in evidence to impeach his credibility, whether 
 the witness has previously been interrogated about 
 it or not. J [f] 
 
 > 3 Ph. Ev., 503-4; T. B., ss. 1324^5. 2 Ph. Bv., 504. 
 
 [a] Teeae i>. Huntingdon, 23 How., 3, 11; Knode v. William- 
 son, 17 Wall., 586, 588; Hamilton v. People, 39 Mich., 178, , 
 185; cited 1 "Whar. Ev., sec. 565, note. 
 
 [b] Bates v. Ba/rher, 4 Cush., 107, 109; Lower v. Winters, 
 7 Cow., 363, 365; Weeks v. Hall, 19 Conn., 376, 379. 
 
 [c] BuUardv. Pea/i-sall, 53 N. Y., 330. 
 
 [d] Com. V. Ingraham, 7 Gray, 46, 48; People v. Davis, 31 
 Wend., 309, 815. 
 
 [b] Storks 11. People, 5 Denio, 106, 109; 1 Whar. Et., sec. 
 568. 
 
 [f] See 1 Whar. Ev., sees. 567 and 397, and cases there 
 cited. 
 
Chap. XVI.] LAW OF EVIDENaE. 179 
 
 Aeticle 134. 
 
 OFFENSES A&AIlfST WOMEN. 
 
 When a man is prosecuted for rape or an attempt 
 to ravish, it may be shown that the woman against 
 whom the ofEense was committed was of a gener- 
 ally immoral character, although she is not cross- 
 examined on the subject.' The woman may, in 
 such a case, be asked whether she has had connec- 
 tion with other men, but her answer cannot be con- 
 tradicted.'' She may also be asked whether she has 
 had connection on other occasions with the pris- 
 oner, and if she denies it she (probably) may be 
 contradicted.' [a] 
 
 liJ. «. aiarke, 2 Star., 341. 
 s R. V. Holmes, L. R. 1 C. 0. R., 334 
 ^ R. v. Martin, 6 C. and P., 562, and remarks in R. -o. 
 Holmes, p. 337, per Kelly, C. B. 
 
 [a] The American authorities on this point are very con- 
 flicting; in New York, Vermont, North Carolina, and other 
 states the modern English rule, as stated in the text prevails. 
 See People «. Jackson; 8 Parker C. R. , 391 ; while in Massa- 
 chusetts, New Hampshire, Indiana, Missouri and Ohio, the 
 evidence is confined to the general character of the woman, 
 who cannot be interrogated about her intercourse with others 
 than the defendant. In Michigan she may not only be ques- 
 tioned on the subject, but, if she denies it, the parties them- 
 selves may be put upon the stand to prove such intercourse 
 with her, though circumstances tending to render it probable 
 may not be testified to: Strang v. People, 24 Mich., 1, 6. In 
 California, when the prosecutrix is the only witness to the 
 act, her lewdness with third parties may be proved, whether 
 
180 A DIGEST OF THE [Part III. 
 
 Aetiole 135. 
 
 what matters mat be peoved in eefeeencb to 
 dbclaeati0n8 eblbvant undee aetiolbs 35-32. 
 
 Whenever any declaration or statement made by 
 a deceased person, relevant or deemed to be rele- 
 vant under articles 25-32, both inclusive, is proved, 
 all matters may be proved in order to contradict it, 
 or in order to impeach or confirm the credit of the 
 person by whom it was made, which might have 
 been proved if that person had been called as a wit- 
 ness, and had denied, upon cross-examination, the 
 truth of the matter suggested.' [a] 
 
 ' B. v. Drummond, 1 Lea., 308; R. «. Pike, 3 C. and P., 
 598. In these cases dying declarations were excluded, be- 
 cause the persons by whom they were made would have been 
 incompetent as witnesses, but the principle would obviously 
 apply to all the cases in question. 
 
 she has been questioned on the subject or not: People i>. Bn- 
 ner, 6 Cal., 221. See 2 "Whar. Crim. Law, sees. 1151, 1153, 
 where the cases are collected. 
 
 [a] Although Sir James Stephen makes this article also 
 applicable to depositions, directly the contrary has been 
 decided in Conrad v. Qriffin, 16 How., 38, 46; Hiibbmd v. 
 Bi-iggs, 31 K. Y., 518, 536; Runyan ■». Pries, 15 Ohio State, 
 1, 11. 
 
Chap. XVI.] LAW OF EVIDENCE. 181 
 
 Article 136. 
 eefeeshing memoet. 
 
 A witness may, while under examination, refresh 
 his memory by referring to any writing made by 
 himself at the time of the transaction concerning 
 which he is questioned, or so soon afterwards that 
 the judge considers it likely that the transaction 
 was at that time fresh in his memory, [a] 
 
 The witness may also refer to any such writing 
 made by any yther person, and read by the witness 
 within the time aforesaid, if, when he read it, he 
 knew it to be correct. ' [b] 
 
 An expert may refresh his memory by reference 
 to professional treatises.' [c] 
 
 1 3 Ph. Bv., 480, etc. ; T. E., ss. 1364-70; R. N. P., 194-5. 
 ■e, lie. andF., 114-17. 
 
 [a] Im. Co. t). Weides, 14 Wall., 375, 380; Sugan v. Maho- 
 ney, 11 Allen, 573. 
 
 [b] Coffin V. Vincent, 13 Cush., 98, 100; State v. Lull, 37 
 Me., 346, 348; OUv. BtaU, 17 Wis., 675, 679. 
 
 [c] mpon e. BUM, 30 Wis., 614; Barmy v. State, 40 Ind., 
 516; Piersonv. Hoag, 4n Barb., 343, 246; 1 Whar. Ev., sees. 
 666 and 438. 
 
182 A DiaMST OF THE [Pabt III. 
 
 Article 137. 
 
 eight or adveese paett as to weitmg used to 
 eefebsh memoet. 
 
 Any writing referred to under article 136 must 
 be produced and shown to the adverse party if he 
 requires it ; and such party may, if he pleases, 
 cross-examine the witness thereupon.' [a] 
 
 Aeticle 138. 
 
 glvmo, as evidence, document called foe and 
 peoduced on notice. 
 
 When a party calls for a document which he has 
 given the other party notice to produce, and such 
 document is produced to, and inspected by, the 
 party calling for its production, he is bound to give 
 it as evidence if the party producing it requires him 
 to do so, and if it is or is deemed to be relevant' [b] 
 
 1 See cases in R. N. P., 195. 
 
 s WMram v. BouOedge, 1 Esp., 235; OcUvert v. Flower, 7 
 C. and P., 386. 
 
 [a] Com. 11. Haley, 13 Allen, 587; Hall v. Ray, 18 N. H., 12G. 
 
 [b] Olark «. Fletcher, 1 Allen, 53, 57 ; Jordan i>. Wilhins, 8 
 Wasli. C. C, 483, 484, n. ; Withers v. Gillespy, 7 S. and R., 10, 
 14; but see Austin v. Thompson, 45 N. H., 113, 116. 
 
Chap. XVI.] LAW OF EVIDENCE. 183 
 
 Aetiole 139. 
 using, as bvideifcb, a dooitment, peoduction of 
 
 WHICH WAS EEFirSED ON NOTICE. 
 
 When a party refuses to produce a document 
 which he has had notice to produce, he may not 
 afterwards use the document as evidence without 
 the consent of the other party. ' [a] 
 
 1 Doe V. Hodgson, 13 A. and B., 135; but see remarks in 3 
 Ph. Ev., 270. 
 
 [a] Doon D. Donah&r, 113 Mass., 151. 
 
184 A DIGEST OF TEE [Paet EL 
 
 CHAPTER XVII. 
 
 OF IMPROPER ADMISSION AND REJECTION OF 
 EVIDENCE. 
 
 Article 140. 
 
 A new trial will not be granted in any civil action 
 on the ground of the improper admission or rejec- 
 tion of evidence, unless in the opinion of the court 
 to which the application is made some substantial 
 wrong or miscarriage has been thereby occasioned 
 in the trial of the action, [a] 
 
 [A new trial will not be granted in any criminal 
 case on the ground of the improper admission or 
 rejection of evidence if, upon reviewing the whole 
 case, the court to which the application is made be 
 fully satisfied that the verdict rendered could not 
 have been affected by the evidence improperly 
 admitted or rejected.] [b] 
 
 [k\ Lucas e. Brooks, 18 Wall., 436, 454; Wyethii. Wakl, 43 
 Ma., 426, 431. 
 
 [b] People V. Oonzales, 35 N. Y., 49, 59; Com. v. Eierle, 3 
 S. and R., 9, 14; Lymes v. Stale, 36 Miss., 617, 626; Biri v. 
 Stats, 14 Ga., 43, 54; De Phue v. State, 44 Ala., 32, 40; Clark 
 ». People, 31 Ills., 479, 481. 
 
Appendix.] LAW Off BVIDENOE. 185 
 
 Appendix A. 
 
 PouETH AND Seventeenth Sections op the 
 Statute of Feauds, 29 Cae. II., c. 3. 
 
 Section 4. " No action shall be brought whereby 
 to charge any executor or administrator, upon any 
 special promise, to answer damages out of his own 
 estate, or to charge the defendant upon any special 
 promise, to answer for the debt, default, or miscar- 
 riage of another person, or to charge any person upon 
 any agreement made upon any consideration of mar- 
 riage, or upon any contract or sale of lands, tene- 
 ments or hereditaments, or any interest in or con- 
 cerning them ; or upon any agreement that is not to 
 be performed within the space of one year from the 
 making thereof, unless the agreement upon which 
 said action shall be brought, or some memorandum 
 or note thereof shall be in writing, and signed by 
 the party to be charged therewith, or some other 
 person thereunto by him lawfully authorized." 
 
186 A DIGEST OF THE [Appendix. 
 
 Section 17, " No contract for the sale of any 
 goods, wares and merchandises, for the price of ten 
 pounds ($48.40) or upwards, shall be good, except 
 the buyer shall accept part of the goods so sold, and 
 actually receive the same ; or give something in 
 earnest to bind the bargain, or in part payment ; or 
 that some note or memorandum in writing, of the 
 said bargain, be made and signed by the parties to 
 be charged by such contract or their agents there- 
 unto lawfully authorized." 
 
Notes.] LAW OF EYIBENOE. 187 
 
 Sir James F. Stephen's 
 
 Appendix of Notes. 
 
 NOTE I. 
 (To Article 1.) 
 
 The definitions are simply explanations of the 
 senses in which the words defined are used in this 
 work. They will be found, however, if read in 
 connection with my " Introduction to the Indian 
 Evidence Act," to explain the manner in which it 
 is arranged. 
 
 I use the word " presumption " in the sense of a 
 presumption of law capable of being rebutted. A 
 presumption of fact is simply an argument. A 
 conclusive presumption I describe as conclusive 
 proof. Hence the few presumptions of law which 
 I have thought it necessary to notice are the only 
 ones I have to deal with. 
 
 As to the definition of the word " relevant," I 
 have considerably modified what I formerly said on 
 the subject, for reasons given in the preface to this 
 edition. The definition of "relevancy" is sub- 
 
188 A DIGEST OF TEE [Notes. 
 
 stituted for the following, which in the earlier 
 editions of the work formed the last article of the 
 first chapter, and to which the remainder of the 
 present note was appended as a note. 
 
 Facts, whether in issue or not, are relevant to 
 each other when one is, or probably may be, or 
 probably may have been — 
 
 the cause of the other ; 
 
 the effect of the other ; 
 
 an effect of the same cause ; 
 
 a cause of the same effect : 
 or when the one shows that the other must or can- 
 not have occurred, or probably does or did exist, or 
 not; 
 
 or that any fact does or did exist, or not, which 
 in the common course of events would either have 
 caused or have been caused by the other ; 
 
 provided that such facts do not fall within the 
 exclusive rules contained in chapters iii, iv, v, vi, 
 or that they do fall within the exceptions to those 
 rules contained in those chapters. 
 
 This is taken (with some verbal alterations) from 
 a pamphlet called " The Theory of Eelevancy for 
 the purpose of Judicial Evidence, by George CHf- 
 ford Whitworth, Bombay Civil Service. Bom- 
 bay, 1875." 
 
 The seventh section of the Indian evidence act is 
 as follows : " Facts which are the occasion, cause 
 or effect, immediate or otherwise, of relevant facts 
 
Notes.] LAW OF EVIDENCE. 189 
 
 or facts in issue, or which constitute the state of 
 things under which they happened, or which afford 
 an opportunity for their occurrence or transaction, 
 are relevant." 
 
 The 11th section is as follows : 
 
 " Facts not otherwise relevant are relevant : 
 
 " (1) If they are inconsistent with any fact in 
 issue or relevant fact ; 
 
 " (2) If by themselves, or in connection with 
 other facts, they make the existence or non-exist- 
 ence of any fact in issue, or relevant fact, highly 
 probable or improbable." 
 
 In my " Introduction to the Indian Evidence Act " 
 I examined at length the theory of judicial evi- 
 dence, and tried to show that the theory of rele- 
 vancy is only a particular case of the process of 
 induction, and that it depends on the connection of 
 events as cause and effect. This theory does not 
 greatly differ from Bentham's, though he does not 
 seem to me to have grasped it as distinctly as he 
 probably would if he had lived to study Mr. Mill's 
 Inductive Logic. 
 
 My theory was expressed too widely in certain 
 parts, and not widely enough in others, and Mr. 
 Whitworth's pamphlet appears to me to have cor- 
 rected and completed it in a judicious manner. I 
 accordingly embodied his definition of relevancy, 
 with some variations and additions, in the text of 
 the lirst edition. I now reprint it here for reasoiie 
 
190 A DIGEST OF TEE [Notbs. 
 
 given in the preface. The necessity of limiting ia 
 some such way the terms of the 11th section of the 
 Indian evidence act may be inferred from a judg- 
 ment by Mr. Justice "West (of the high court of 
 Bombay), in the case of B. v. Parhhudas and 
 others, printed in the " Law Journal," May 27, 1876. 
 
 As to the coincidence of this theory with Eng- 
 lish law, I can only say that it will be found to 
 supply a key which will explain all that is said on 
 the subject of circumstantial evidence by the 
 writers who have treated of that subject. Mr. 
 "Whitworth goes through the evidence given against 
 the German Miiller, executed for murdering Mr. 
 Briggs on the North London railway, and shows 
 how each item of it can be referred to one or the 
 other of the heads of relevancy which he discusses. 
 
 The theory of relevancy thus expressed would, I 
 believe, suffice to solve every question which can 
 arise upon the subject; but the legal rules based 
 upon an unconscious apprehension of the theory 
 exceed it at some points and fall short of it at 
 others, as I have pointed out in the preface to this 
 edition. 
 
 NOTE n. 
 (To Artiole 2.) 
 
 See 1 Ph. Ev., 493, etc. ; Best, ss. Ill and 251 ; 
 T. E., chap, ii, pt. ii. 
 
 For instances of relevant evidence held to be 
 insufficient for the purpose for which it was ten- 
 
NOTBS.] LAW OF EYIBBNOB. 191 
 dered on the ground of remoteness, see R. v. , 
 
 2 C. and P., 459 ; and Mann v. Zcmgton, 3 A. and 
 E., 699. 
 
 Mr. Taylor (s. 867) adopts from Professor Green- 
 leaf the statement that " the law excludes on public 
 grounds . . . evidence which is indecent or ofEen- 
 sive to public morals, or injurious to the feelings of 
 third persons." The authorities given for this are 
 actions on wagers which the court refused to try, or 
 in which they arrested judgment, because the wagers 
 were in themselves impertinent and offensive, as, 
 for instance, a wager as to the sex of the Chevalier 
 D'Eon {Da Costa v. Jones, Cowp., 729). No action 
 now lies upon a wager, and I fear that there is no 
 authority for the proposition advanced by Professor 
 Greenleaf. I know of no case in which a fact in 
 issue or relevant to au issue which the court is 
 bound to try can be excluded merely because it 
 would pain some one who is a stranger to the action. 
 Indeed, in Da Costa v. Jones, Lord Mansfield said 
 expressly, "Indecency of evidence is no objection 
 to its being received where it is necessary to the 
 decision of a civil or criminal right :" (p. 734.) See 
 article 129, and note xlvii. 
 
 NOTE III. 
 
 (To Aetiolb 4.) 
 
 On this subject see also 1 Ph. Ev., 157-164; T. 
 E., ss. 527-532 ; Best, s. 508 ; 3 Russ. on Crimes, by 
 
192 A DIGEST OF THE [Notes. 
 
 Greaves, 161-7. (See, too, The Queen's Case, 2 
 Br. and Bing., 309-10.) 
 
 The principle is substantially the same as that of 
 principal and accessory, or principal and agent. 
 "When various persons conspire to commit an offense 
 each makes the rest his agents to carry the plan into 
 execution. (See, too, article 17, note xii.) 
 
 NOTE IV. 
 
 (To Article 5.) 
 
 The principle is fully explained and illustrated in 
 Malcolmson v. O'Dea, 10 H. L. C, 593. See par- 
 ticularly the reply to the questions put by the House 
 of Lords to the Judges, delivered by Willes, J., 
 611-22. 
 
 See also 1 Ph. Ev., 234r-9; T. E., ss. 593-601; 
 Best, 8. 499. 
 
 Mr. Phillips and Mr. Taylor treat this principle 
 as an exception to the rule excluding hearsay. 
 They regard the statements contained in the title- 
 deeds as written statements made by persons not 
 called as witnesses. I think the deeds must be 
 regarded as constituting the transactions which they 
 effect ; and in the case supposed in the text, those 
 transactions are actually in issue. When it is 
 asserted that land belongs to A, what is meant is, 
 that A is entitled to it by a series of transactions of 
 which his title-deeds are by law the exclusive evi- 
 
Notes.] LAW OF EVIDENCE. 193 
 
 dence (see article 40). The existence of the deeds 
 is thus the very fact which is to be proved. 
 
 Mr. Best treats the case as one of " derivative evi- 
 dence," an expression which does not appear to me 
 felicitous. 
 
 NOTE V. 
 
 (To Aeticle 8.) 
 The items of evidence included in this article are 
 often referred to by the phrase " res gestae," which 
 seems to have come into use on account of its con- 
 venient obscurity. The doctrine of "res gestse" 
 was much discussed in the case of Doe v. Tatham 
 (p. 79, etc.) In the course of the argument, Bosan- 
 quet, J., observed, " How do you translate res 
 gestag? gestse, by whom?" Parke, B., afterwards 
 observed, " The acts by whomsoever done are res 
 gestse, if relevant to the matter in issue. But the 
 question is, what are relevant?" (7 A. and E., 353.) 
 In delivering his opinion to the House of Lords, 
 the same judge laid down the rule thus : " "Where 
 any facts are proper evidence upon an issue \i. e., 
 when they are in issue, or relevant to the issue] all 
 oral or written declarations wliich can explain such 
 facts may be received in evidence." (Same Case, 4 
 Bing., N. C, 548.) The question asked by Baron 
 Parke goes to the root of the whole subject, and I 
 have tried to answer it at length in the text, and to 
 give it the prominence in the statement of the law 
 which its importance deserves. 
 13 
 
194 A DIGEST OF TEE [Notes. 
 
 Besides the cases cited in the illustrations, see 
 cases as to statements accompanying acts collected 
 in 1 Ph. Ey., 152-7, and T. E., ss. 521, 528. I have 
 stated, in accordance with R. v. Walker, 2 M. and 
 E., 212, that the particulars of a complaint are not 
 admissible ; but I have heard Willes, J., rule that 
 they were on several occasions, vouching Parke, B., 
 as his authority. H. v. Walker was decided by 
 Parke, B., in 1839. Though he excluded the state- 
 ment, he said, " The sense of the thing certainly is, 
 that the jury should in the first instance know the 
 nature of the complaint made by the prosecutrix, 
 and all that she then said. But for reasons which I 
 never could understand, the usage has obtained that 
 the prosecutrix's counsel should only inquire gen- 
 erally whether a complaint was made by the prose- 
 cutrix of the prisoner's conduct towards her, leaving 
 the prisoner's counsel to bring before the jury the 
 particulars of that complaint by cross-examination." 
 
 Baron Bramwell has been in the habit, of late 
 years, of admitting the complaint itself. The prac- 
 tice is certainly in accordance with common sense. 
 
 NOTE YL 
 
 (To Aeticles 10, 11, 12.) 
 
 Article 10 is equivalent to the maxim, " Ees inter 
 alios acta alteri nocere non debet," which is explained 
 and commented on in Best, ss. 506-510 (though 
 I should scarcely adopt his explanation of it), and 
 
Notes.] LAW OF EVIDENOB. 195 
 
 by Broom (" Maxims," 954r-968). The application 
 of the maxim to the law of evidence is obscure, 
 because it does not show how unconnected transac- 
 tions should be supposed to be relevant to each 
 other. The meaning of the rule must be inferred 
 from the exceptions to it stated in articles 11 and 
 12, which show that it means, Tou are not to draw 
 inferences from one transaction to another which is 
 not specifically connected with it merely because the 
 two resemble each other. They mast be linked to- 
 gether by the chain of cause and effect in some 
 assignable way before you can draw your inference. 
 
 In its literal sense the maxim also fails, because 
 it is not true that a man cannot be affected by trans- 
 actions to which he is not a party. Illustrations to 
 the contrary are obvious and innumerable; bank- 
 ruptcy, marriage, indeed every transaction of life, 
 would supply them. 
 
 The exceptions to the rule given in articles 1 1 
 and 13 are generalized from the cases referred to in 
 the illustrations. It is important to observe that 
 though the rule is expressed shortly, and is sparingly 
 illustrated, it is of very much greater importance and 
 more frequent application than the exceptions. It is 
 indeed one of the most characteristic and distinctive 
 parts of the English law of evidence, for this is 
 the rule which prevents a man charged with a par- 
 ticular offense from having either to submit to im- 
 putations which in many cases woiild be fatal to 
 
196 -A DIGEST OF THE [Notes. 
 
 him, or else to defend every action of his whole life 
 in order to explain his conduct on the particular 
 occasion. A statement of the law of evidence 
 which did not give due prominence to the four 
 great exclusive rules of evidence of which this is 
 one would neither represent the existing law fairly 
 nor in my judgment improve it. 
 
 The exceptions to the rule apply more frequently 
 to criminal than to civil proceedings, and in crimi- 
 nal cases the courts are always disinclined to run 
 the risk of prejudicing the prisoner by permitting 
 matters to be proved which tend to show in general 
 that he is a bad man, and so likely to commit a 
 crime. In each of the eases by which article 12 is 
 illustrated, the evidence admitted went to prove the 
 true character of facts which, standing alone, might 
 naturally have been accounted for on the supposi- 
 tion of accident — a supposition which was rebutted 
 by the repetition of similar occurrences. In the 
 case of li. V. Gra/y (Illustration a), there were mafly 
 other circumstances which would have been suf- 
 ficient to prove the prisoner's guilt, apart from the 
 previous fires. That part of the evidence, indeed, 
 seemed to have little influence on the jury. Gar- 
 ner's Case (Illustration c, note) was an extraordi- 
 nary one, and its result was in every way unsatisfac- 
 tory. Some account of this case will be found in 
 the evidence given by me before the Commission 
 on Capital Punishments which sat in 18C6. 
 
Notes.] LAW OF EVIDENCE. 197 
 
 ]SrOTE VII. 
 (To Article 13.) 
 
 As to presumptions arising from the course of 
 office or business, see Best, s. 403 ; 1 Ph. Ev., 480-4 ; 
 T. E., s. 147. The presumption, " Omnia esse rite 
 acta," also applies. See Broom's " Maxims," 942 ; 
 Best, ss. 353-365 ; T. E., s. 124, etc. ; 1 Ph. Er., 
 480 ; and Star., 757, 763. 
 
 NOTE VIII. 
 (To Article 14.) 
 
 My reasons for partially re-arranging this chapter 
 are given in the preface to this edition. 
 
 The unsatisfactory character of the definitions 
 usually given of hearsay is well known. See Best, 
 s. 495 ; T. E., ss. 507-510. The definition given 
 by Mr. Phillips sufficiently exemplifies it : " When 
 a witness, in the course of stating what has come 
 imder the cognizance of his own senses concerning 
 a matter in dispute, states the language of others 
 which he has heard, or produces papers which he 
 identifies as being written by particular individuals, 
 he offers what is called hearsay evidence. This 
 matter may sometimes be the very matter in dis- 
 pute," etc. (1 Ph. Ev., 143.) If this definition is 
 correct, the maxim, " Hearsay is no evidence," can 
 only be saved from the charge of falsehood by ex- 
 
198 A DIGEST OF THE [Notes. 
 
 ceptions which make nonsense of it. By attaching 
 to it the meaning given in the text, it becomes both 
 intelligible and true. There is no real difference 
 between the fact that a man was heard to saj' this 
 or that, and any other fact. Words spoken may 
 convey a threat, supply the motive for a crime, 
 constitute a contract, amount to slander, etc., etc. ; 
 and if relevant or in issue, on these or other 
 grounds, they must be proved, like other facts, by 
 the oath of some one who heard them. The im- 
 portant point to remember about them is that bare 
 assertion must not, generally speaking, be regarded 
 as relevant to the truth of the matter asserted. 
 
 The doctrine of hearsay evidence was fully dis- 
 cussed by many of the judges in the case of Doe d. 
 Wright v. Tatham, on the different occasions when 
 that case came before the court (see 7 A. and E., 
 313-408 ; 4 Bing. K C, 489-573). The question 
 was, whether letters addressed to a deceased testa- 
 tor, implying that the writers thought him sane, 
 but not acted upon by him, could be regarded as 
 relevant to his sanity, which was the point in issue. 
 The case sets the stringency of the rule against 
 hearsay in a light which is forcibly illustrated by a 
 passage in. the judgment of Baron Parke (7 A. and 
 E., 385-8), to the following effect : He treats the 
 letters as " statements of the writers, not on oath, 
 of the truth of the matter in question, with this 
 addition, that they have acted upon the statements 
 
Notes.] LAW OF EVIDENCE. 199 
 
 on the faith of their being true, by their sending 
 the letters to the testator." He then goes through 
 a variety of ilhistrations which had been suggested 
 in argunaent, and shows that in no case ought such 
 statements to be regarded as relevant to the truth 
 of the matter stated, even when the circumstances 
 were such as to give the strongest possible guar- 
 antee that such statements expressed the honest 
 opinions of the persons who made them. Amongst 
 others he mentions the following : " The conduct 
 of the family or relations of a testator taking the 
 same precautions in his absence as if he were luna- 
 tic — his election in his absence to some high and 
 responsible office ; the conduct of a physician who 
 permitted a will to be executed by a sick testator ; 
 the conduct of a deceased captain on a question of 
 seaworthiness, who, after examining every part of 
 a vessel, embarked in it with his family ; all these, 
 when deliberately considered, are, with reference to 
 the matter in issue in each case, mere instances of 
 hearsay evidence — -mere statements, not on oath, 
 but implied in or vouched by the actual conduct of 
 persons by whose acts the litigant parties are not to 
 be bound." All these matters are therefore to be 
 treated as irrelevant to the questions at issue. 
 
 These observations make the rule quite distinct, 
 but the reason suggested for it in the concluding 
 words of the passage extracted appears to be weak. 
 That passage implies that hearsay is excluded be- 
 
200 A DIGEST OF THE [Notes. 
 
 cause no one " ought to be bound by the act of a 
 stranger." That no one shall have power to make 
 a contract for another or commit a crime for which 
 that other is to be responsible without his authority- 
 is obviously reasonable, but it is not so plain why 
 A's conduct should not furnish good grounds for 
 inference as to B's conduct, though it was not 
 authorized by B. The importance of shortening 
 proceedings, the importance of compelling people 
 to procure the best evidence they can, and the im- 
 portance of excluding opportunities of fraud, are 
 considerations which probably justify the rule ex- 
 cluding hearsay ; but Baron Parke's illustrations of 
 its operation clearly prove that in some cases it ex- 
 cludes the proof of matter which, but for it, would 
 be regarded not only as relevant to particular facts, 
 but as good grounds for believing in their exist- 
 ence. 
 
 ITOTE IX. 
 
 (To Akticle 15.) 
 
 This definition is intended to exclude admis- 
 sions by pleading, admissions which, if so pleaded, 
 amount to estoppels, and admissions made for the 
 purposes of a cause by the parties or their soli- 
 citors. These subjects are usually treated of by 
 writers on evidence; but they appear to me to 
 belong to other departments of the law. The sub- 
 ject, including the matter which I omit, is treated 
 
Notes.] LAW OF EVIDENCE. 201 
 
 at length in 1 Ph. Ev., 308-401, and T. E., ss. 
 653-788. A vast variety of eases upon admissions 
 of every sort may be found by referring to Hoscoe 
 ]Sr. P. (Index, under the word Admissions.) It 
 may, perhaps, be well to observe that when an ad- 
 mission is contained in a document, or series of 
 documents, or when it forms part of a discourse or 
 conversation, so much and no more of the docu- 
 ment, series of documents, discourse or conversa- 
 tion, must be proved as is necessary for the full 
 understanding of the admission, but the judge or 
 jury may of course attach degrees of credit to dif- 
 ferent parts of the matter proved. This rule is 
 elaborately discussed and illustrated by Mr. Taylor, 
 ss. 656-665. It has lost much of the importance 
 which attached to it when parties to actions could 
 not be witnesses, but could be compelled to make 
 admissions by bills of discover}'. The ingenuity of 
 equity draughtsmen was under that system greatly 
 exercised in drawing answers in such a form that it 
 was impossible to read part of them without read- 
 ing the whole, and the ingenuity of the court was 
 at least as much exercised in countermining their 
 ingenious devices. The power of administering 
 interrogatories, and of examining the parties di- 
 rectly, has made great changes in these matters. 
 
202 A DIQEST OF THE [Notes. 
 
 NOTE X. 
 (To Ae-hcle 16.) 
 
 As to admissions by parties, see Moriarty v. L. 
 0. (& D. Railway, L. K. 5 Q. B., 320, per Black- 
 burn, J. ; Alner v. George, 1 Camp., 392 ; Bauer- 
 man V. Badenius, 7 T. R., 663. 
 
 As to admissions by parties interested, see Spargo 
 V. Brown, 9 B. and C, 938. 
 
 See, also, on the subject of this article, 1 Ph. Ev., 
 362-3, 369, 398 ; and T. E., ss. 669-671, 685, 687, 
 719 ; Eoscoe K P., 71. 
 
 As to admissions by privies, see 1 Ph. Ev., 394-7, 
 and T. E. (from Greenleaf), s. 712. 
 
 NOTE XL 
 
 (To Aetigle 17.) 
 
 The subject of the relevancy of admissions by 
 agents is rendered difficult by the vast variety of 
 forms which agency assumes, and by the distinction 
 between an agent for the purpose of making a 
 statement and an agent for the purpose of trans- 
 acting business. If A sends a message by B, B's 
 words in delivering it are in effect A's; but B's 
 statements in relation to the subject matter of the 
 message have, as such, no special value. A's own 
 statements are valuable if they suggest an infer- 
 ence which he afterwards contests because they are 
 
Notes.] LAW OF EVIDENCE. 203 
 
 against his interest ; but when the agent's duty is 
 done, he has no special interest in the matter. 
 
 The principle as to admissions by agents is stated 
 and explained by Sir W. Grant in Fairlie v. Hast- 
 ings, 10 Ve., 126-7. 
 
 NOTE XII. 
 
 (To Aetiole 18.) 
 
 See, for a third exception (which could hardly 
 occur now). Clay v. Langsloio, M. and M., 45. 
 
 NOTE XIII. 
 
 (To Aeticlb 19.) 
 
 This comes very near to the case of arbitration. 
 See, as to irregular arbitrations of this kind, 1 Ph. 
 Ev., 383 ; T. E., ss. 689-90. 
 
 NOTE XIV. 
 
 (To Aetiole 20.) 
 
 See more on this subject in 1 Ph. Ev., 326-8 ; 
 T. E., ss. 702, 720-3 ; R. N. P., QQ. 
 
 NOTE XV. 
 
 (To Aetiole 22.) 
 
 On the law as to confessions, see 1 Ph. Ev., 
 401-423 ; T. E., ss. 796-807, and s. 824 ; Best, ss. 
 551-574; Eoscoe Or. Ev., 38-56; 3 Paiss. on 
 
204 ^ DIGEST OF TEE [Notes. 
 
 Crimes, by Greaves, 365-43G. Joy on Confessions 
 reduces the law on the subject to the shape of thir- 
 teen propositions, the e£Eect of all of which is given 
 in the text in a different form. 
 
 Many cases have been decided as to the language 
 which amounts to an inducement to confess (see 
 Eoscoe Cr. Ev., 40-3, where most of them are col- 
 lected). They are, however, for practical purposes, 
 summed up in R. v. JBaldry, 2 Den., 430, which is 
 the authority for the last lines of the first paragraph 
 of this article. 
 
 NOTE XVI. 
 (To Aeticle 23.) 
 
 Cases are sometimes cited to show that if a per- 
 son is examined as a witness on oath, his deposition 
 cannot be used in evidence against him afterwards 
 (see T. E., ss. 809 and 818, n. 6 ; also 3 Russ. on 
 Cri. by Greaves, 407, etc.) All these cases, how- 
 ever, relate to the examinations before magistrates 
 of persons accused of crimes, under the statutes 
 which were in force before 11 and 12 Vict., c. 42. 
 
 These statutes authorized the examination of 
 prisoners, but not their examination upon oath. 
 The 11 and 12 Vict., c. 42, prescribes the form of 
 the only question which the magistrate can put to a 
 prisoner; and since that enactment it is scarcely 
 possible to suppose that any magistrate would put a 
 
Notes.] LAW OF EVIDENCE. 205 
 
 prisoner upon liis oath. The cases may, therefore, 
 be regarded as obsolete. 
 
 NOTE XVII. 
 
 (To Aetiolb 26.) 
 
 As to dying declarations, see 1 Ph. Ev., 239-252 ; 
 T. E., ss. 64:4-652 ; Best, s. 505 ; Starkie, 32 and 38 ; 
 3 Eiass. Cri., 250-272 (perhaps the fullest collection 
 of the eases on the subject) ; Roscoe Grim. Ev., 
 31-2. a. V. JSaker, 2 Mo. and Ro., 53, is a curious 
 case on this subject. A and B were both poisoned 
 by eating the same cake. G was tried for poison- 
 ing A. B's dying declaration that she made the 
 cake in G's presence, and put nothing bad in it, was 
 admitted as against G, on the ground that the whole 
 formed one transaction. 
 
 NOTE XVIII. 
 
 (To Aeticle 27.) 
 
 1 Ph. Ev., 280-300 ; T. E., ss. 630-643 ; Best, 
 501 ; R. ]Sr. P., 63 ; and see note to Price v. Lord 
 Torrington, 2 S. L. G., 328. 
 
 NOTE XIX. 
 
 (To Article 28.) 
 
 The best statement of the law upon this subject 
 will be found in Higham v. Ridgway, and the note 
 
206 A DIGEST OF THE [Notes. 
 
 thereto, 2 S. L. C, 318. See also 1 Ph. Ev., 252- 
 280 ; T. E., ss. 602-629 ; Eest, s. 500 ; E. K P., 584. 
 A class of cases exists which I have not put into 
 the form of an article, partly because their occur- 
 rence since the commutation of tithes must be very 
 rare, and partly because I find a great difficulty in 
 understanding the place which the rule established 
 by them ought to occupy in a systematic statement 
 of the law. They are cases which lay down the 
 rule that statements as to the receipts of tithes and 
 moduses made by deceased rectors and other ecclesi- 
 astical corporations sole are admissible in favor of 
 their successors. There is no doubt as to the rule 
 (see, in particular, Short v. Lee, 2 Jac. and Wal., 
 464; and Young, v. Cla/re Hall, 17 Q. B., 537). 
 The diflSculty is to see why it was ever regarded as 
 an exception. It falls directly within the principle 
 stated in the text, and would appear to be an obvi- 
 ous illustration of it ; but in many cases it has been 
 declared to be anomalous, inasmuch as it enables a 
 predecessor in title to make evidence in favor of his 
 successor. This suggests that article 28 ought to 
 be limited by a proviso that a declaration against 
 interest is not relevant if it was made by a prede- 
 cessor in title of the person who seeks to prove it, 
 unless it is a declaration by an ecclesiastical corpor- 
 ation sole, or a member of an ecclesiastical corpor- 
 ation aggregate (see Short v. Lee), as to the receipt 
 of a tithe or modus. 
 
Notes.] LAW OF EVIBENOE. 207 
 
 Some eounteaance for such a proviso may be 
 found in the terms in which Bayley, J., states the 
 rule in Gleadow v. Aikm, and in the circumstance 
 that when it first obtained currency the parties to 
 an action were not competent witnesses. But the 
 rule as to the endorsement of notes, bonds, etc., is 
 distinctly opposed to such a view. 
 
 NOTE XX. 
 (To Aeticle 30.) 
 
 Upon this subject, besides the authorities in the 
 text, see 1 Ph. Ev., 169-197 ; T. E., ss. 543-569 ; 
 Best, s. 497 ; E. K P., 50-54 (the latest collection 
 of cases). 
 
 A great number of cases have been decided as to 
 the particular documents, etc., which fall within the 
 rule given in the text. They are collected in the 
 works referred to above, bxit they appear to me 
 merely to illustrate one or other of the branches of 
 the rule, and not to extend or vary it. An award, 
 e. g., is not within the last branch of illustration (6), 
 because it " is but the opinion of the arbitrator, not 
 upon his own knowledge" {Evans v. Rees, 10 A. 
 and E., 155) ; but the detailed application of such a 
 rule as this is better learned by experience, applied 
 to a firm grasp of principle, than by an attempt to 
 recollect innumerable cases. 
 
 The case of Weeks v. Spourke is remarkable for 
 
208 A DIGEST OF THE [Notes. 
 
 the light it throws on the history of the law of 
 evidence. It was decided in 1813, and contains 
 inter alia the following curious remarks by Lord 
 Ellenborough : " It is stated to be the habit and 
 practice of different circuits to admit this species of 
 evidence upon such a question as the present. That 
 certainly cannot make the law, but it shows at least, 
 from the established practice of a large branch of 
 the profession, and of the judges who have presided 
 at various times on those circuits, what has been the 
 prevailing opinion upon this subject amongst so 
 large a class of persons interested in the due admin- 
 istration of the law. It is stated to have been the 
 practice both of the northern and western circuits. 
 My learned predecessor. Lord Kenyon, certainly 
 held a different opinion, the practice of the Oxford 
 circuit, of which he was a member, being different." 
 So in the Berkeley Peerage Case, Lord Eldou said, 
 " when it was proposed to read this deposition as a 
 declaration, the attorney-general (Sir Vicary Gibbs) 
 flatly objected to it. He sjoolce quite right as a 
 western oircuiteer, of what he had often heard laid 
 down in the west, and never heard doubted " (4 Cam. 
 419, A. D. 1811). This shows how very modern 
 much of the law of evidence is. Le Blanc, J., in 
 Weehs v. Sparhe, says, that a foundation must be 
 laid for evidence of this sort " by acts of enjoyment 
 within living memory." This seems superfluous, 
 as no jury would ever find that a public right of 
 
NOTBS.] LAW OF EYIDENCK 209 
 
 way existed, which had not been used in living 
 memory, on the strength of a report that some 
 deceased person had said that there once was such a 
 right. 
 
 NOTE XXI. 
 (To Article 31.) 
 
 See 1 Ph. Ev., 197-233; T. E., ss. 571-592; 
 Best, 633 ; E. N. P., 49-50. 
 
 The Berkeley Peerage Case (Answers of the 
 Judges to the House of Lords), 4 Cam., 401, which 
 established the third condition given in the text ; 
 and Davies v. Lowndes, 6 M. and Gr., 471 (see 
 more particularly pp. 525-9, in which the question 
 of family pedigrees is fully discussed), are specially 
 important on this subject. 
 
 As to declarations as to the place of births, etc., 
 see Shields v. Boucher, 1 De G. and S., 49-58. 
 
 NOTE XXII. 
 
 (To Article 32.) 
 
 See, also, 1 Ph. Ev., 306-8 ; T. E., ss 434-447 ; 
 Buller K P., 238, and following. 
 
 In reference to this subject it has been asked 
 wliether this principle applies indiscriminately to 
 all kinds of evidence in all cases. Suppose a man 
 were to be tried twice upon the same facts — e. g., 
 for robbery after an acquittal for murder, and sup- 
 14 
 
210 A DIGEST OF TEE [Notes. 
 
 pose that in the interval between the two trials an 
 important witness who had not been called before 
 the magistrates were to die, might his evidence be 
 read on the second trial from a reporter's short- 
 hand notes ? This case might easily have occurred 
 if Orton had been put on his trial for forgery as 
 well as for perjury. I should be disposed to think, 
 on principle, that such evidence would be admis- 
 sible, though I cannot cite any authority on the 
 subject. The common law principle on which 
 depositions taken before magistrates and in chancery 
 proceedings were admitted seems to cover the case. 
 
 NOTE XXIII. 
 
 (To Articles 39^7.) 
 
 The law relating to the relevancy of judgments 
 of courts of justice to the existence of the matters 
 which they assert is made to appear extremely com- 
 plicated by the manner in which it is usually dealt 
 with. The method commonly employed is to mix 
 up the question of the effect of judgments of vari- 
 ous kinds with that of their admissibility, subjects 
 which appear to belong to different branches of the 
 law. 
 
 Thus the subject, as commonly treated, intro- 
 duces into the law of evidence an attempt to dis- 
 tinguish between judgments in rem, and judgments 
 in personam, or inter pa/rtes (terms adapted from, 
 
NOTBS.] LAW OF EVIDENCE. 211 
 
 but not belonging to, Roman law, and never clearly 
 defined in reference to our own or any other sys- 
 tem) ; also the question of the effect of the pleas 
 of autrefois acquit, and aut/refois convict, which 
 clearly belong not to evidence, but to criminal pro- 
 cedure; the question of estoppels, which belongs 
 rather to the law of pleading than to that of evi- 
 dence ; and the question of the effect given to the 
 judgments of foreign courts of justice, which would 
 seem more properly to belong to private interna- 
 tional law. These and other matters are treated of 
 at great length in 2 Ph. Ev., 1-78, and T. E., ss. 
 1480-1534, and in the note to the Duchess of 
 Kingston's Case, in 2 S. L. C, 777-880. Best 
 (ss. 588-595) treats the matter more concisely. 
 
 The text is confined to as complete a statement 
 as I could make of the principles which regulate 
 the relevancy of judgments considered as declara- 
 tions proving the facts which they assert, whatever 
 may be the effect or the use to be made of those 
 facts when proved. Thus the leading principle 
 stated in article forty is equally true of all judg- 
 ments alike. Every judgment, whether it be in 
 rem or inter partes, must and does prove what it 
 actually effects, though the effects of different sorts 
 of judgments differ as widely as the effects of dif- 
 ferent sorts of deeds. 
 
 There has been mucli controversy as to the ex- 
 tent to which effect ought to be given to the judg- 
 
212 A DIGEST OF THE [Notes. 
 
 ments of foreign courts in this country, and as to 
 the cases in which the courts will refuse to act upon 
 them ; but, as a mere question of evidence, tliey 
 do not differ from English judgments. The cases 
 on foreign judgments are collected in the note to 
 the Duohess of Kingston's Case, 2 S. L. C, 813-84-5. 
 There is a convenient list of the cases in R. N. P., 
 201-3. The cases of Godard v. Gray, L. E. 6 Q. 
 B., 139, and Castrique v. Imrie, L. E.. 4 E. and I. 
 A., 414, are the latest leading cases on the subject. 
 
 NOTE XXIY. 
 
 (To Chaptke V.) 
 
 On evidence of opinions, see 1 Ph. Ev., 520-8 ; 
 T. E., ss. 1273-1281 ; Best, ss. 511-17 ; R. E". P., 
 193-4. The leading case on the subject is Doe v. 
 Tatham, 7 A. and E., 313 ; and 4 Bing. JSf. C, 489, 
 referred to above in note ix. Baron Parke, in the 
 extracts there given, treats an expression of opinion 
 as hearsay — that is, as a statement affirming the 
 truth of the subject matter of the opinion. 
 
 ]SrOTE XXY. 
 
 (To Chapter VI.) 
 
 See 1 Ph., 502-8 ; T. E., ss. 325-336 ; Best, ss. 
 257-263 ; 3 Euss. Cr., 299-304. The subject is 
 considered at length in H. v. Rowton, 1 L. and C, 
 520. One consequence of the view of the subject 
 
Notes.] LAW OF EVIDENCE. 213 
 
 taken in that case is that a witness may, with per- 
 fect truth, swear that a man who, to his knowledge, 
 has been a receiver of stolen goods for years, has an 
 excellent character for honesty, if he has had the 
 good luck to conceal his crimes from his neighbors. 
 It is the essence of successful hypocrisy to combine 
 a good reputation with a bad disposition, and ac- 
 cording to H. V. Howton, the reputation is the im- 
 portant matter. The case is seldom if ever acted 
 on in practice. The question always put to a wit- 
 ness to character is, What is the prisoner's charac- 
 ter for honesty, morality, or humanity ? as the case 
 may be ; nor is the witness ever warned that he is 
 to confine his evidence to the prisoner's reputation. 
 It would be no easy matter to make the common 
 run of witnesses understand the distinction. 
 
 NOTE XXVI. 
 
 (To Article 58.) 
 
 [Omitted, this article being entirely rewritten.] 
 
 NOTE XXVII. 
 
 (To Aeticle 62.) 
 
 Owing to the ambiguity of the word " evidence," 
 which is sometimes used to signify the effect of a 
 fact when proved, and sometimes to signify the tes- 
 timony by which a fact is proved, the expression 
 " hearsay is no evidence " has many meanings. Its 
 
214 A DIOEST OF THE [Notes. 
 
 common and most important meaning is the one 
 given in article 14, which might be otherwise ex- 
 pressed by saying that the connection between 
 events, and reports that have happened, is gener- 
 ally so remote that it is expedient to regard the ex- 
 istence of the reports as irrelevant to the occurrence 
 of the events, except in excepted cases. Article 62 
 expresses the same thing from a different point of 
 view, and is subject to no exceptions whatever. It 
 asserts that whatever may be the relation of a fact 
 to be proved to the fact in issue, it must, if proved 
 by oral evidence, be proved by direct evidence. 
 For instance, if it were to be proved under article 
 31 that A, who died fifty years ago, said that he 
 had heard from his father B, who died 100 years 
 ago, that A's grandfather C had told B that D, C's 
 elder brother, died without issue, A's statement 
 must be proved by some one who, with his own 
 ears, heard him make it. If (as in the case of ver- 
 bal slander) the speaking of the words was the very 
 point in issue, they must be proved in precisely the 
 same way. Cases in which evidence is given of 
 character and general opinion may perhaps seem to 
 be exceptions to this rule, but they are not so. 
 When a man swears that another has a good char- 
 acter, he means that he has heard many people, 
 though he does not particularly recollect what 
 people, speak well of him, though he does not 
 recollect all that they said. 
 
Notes.] LAW OF EVIDENCE. 215 
 
 NOTE XXYIII. 
 (To Aeticles 66 and 67.) 
 
 This is probably the most ancient, and is, as far 
 as it extends, the most inflexible of all the rules of 
 evidence. The following characteristic observations 
 by Lord Ellenborough occur in E. v. Harringworth, 
 4 M. and S., 353 : 
 
 " The rule, therefore, is universal that you must 
 first call the subscribing witness, and it is not to be 
 varied in each particular case by trying whether, in 
 its application, it may not be productive of some 
 inconvenience, for then there would be no such 
 thing as a general rule. A lawyer who is well 
 stored with these rules would ie no better than any 
 other man that is without them, if by mere force 
 of speculative reasoning it might be shown that 
 the application of such and such a rule would be 
 productive of such and such an inconvenience, and 
 therefore ought not to prevail ; but if any general 
 rule ought to prevail, this is certainly one that is as 
 fixed, formal and universal as any that can be stated 
 in a court of justice." 
 
 In Whymam^v. Garth, 8 Ex., 807, Pollock, C. B., 
 said, " The parties are supposed to have agreed inter 
 se that the deed shall not be given in evidence with- 
 out his [the attesting witness] being called to depose 
 to the circumstances attending its execution." 
 
216 A DIGEST OF THE [Notes. 
 
 In very ancient times, when the jury were wit- 
 nesses as to matter of fact, the attesting witnesses to 
 deeds (if a deed came in question) would seem to 
 have been summoned with, and to have acted as a 
 sort of assessors to, the jury. See as to this. Brae- 
 ton, fo. 38a ; Fortescue de Laudihus, ch. xxxii, 
 with Selden's note, and cases collected from the 
 Year-books in Broke's Abridgment, tit. Test- 
 moignes. 
 
 For the present rule, and the exceptions to it, see 
 1 Ph. Ev., 242-261; T. E., ss. 1637-42; R. N. P., 
 147-50 ; Best, ss. 220, etc. 
 
 The old rule which applied to all attested docu- 
 ments was restricted to those required to be attested 
 by law, by 17 and 18 Vict., c. 125, s. 26, and 28 and 
 29 Yict., c. 18, ss. 1 and 7. 
 
 NOTE XXIX. 
 (To Article 72.) 
 
 For these rules in greater detail, see 1 Ph. Ev., 
 452-3, and 2 Ph. Ev., 272-289 ; T. E., ss. 419-426 ; 
 R. TSr. P., 8 and 9. 
 
 The principle of all the rules is fully explained 
 in the cases cited in the foot-notes, more particularly 
 in Dwyer v. Collins, 7 Ex., 639. In that case it is 
 held ' that the object of notice to produce is " to 
 enable the party to have the document in court, 
 and if he does not, to enable his opponent to give 
 
Notes.] LAW OF EVIDENCE. 'ill 
 
 parol evidence ... to exclude the argument that 
 the opponent has not taken all reasonable means to 
 procure the original, which he must do before he 
 can be permitted to make use of secondary evi- 
 dence " (pp. 647-8.) 
 
 NOTE XXX. 
 (To Article 75.) 
 
 Mr. Phillips (ii, 196) says, that upon a plea of 
 nul tiel record, the original record must be pro- 
 duced if it is in the same court. 
 
 Mr. Taylor (s. 1379) says, that upon prosecutions 
 for perjury assigned upon any judicial document 
 the original must be produced. The authorities 
 given seem to me hardly to bear out either of these 
 statements. They show that the production of the 
 original in such cases is the usual course, but not, I 
 think, that it is necessary. The case of Lady 
 Dartmouth v. JRoberts, 16 Ea., 334, is too wide for 
 the proposition for which it is cited. The matter, 
 however, is of little practical importance. 
 
 NOTE XXXI. 
 
 (To Articles 77 aotj 78.) 
 
 The learning as to exemplifications and office- 
 copies will be found in the following authorities : 
 Gilbert's Law of Evidence, 11-20; Buller, Nisi 
 
218 A DIGEST OF THE [Notes. 
 
 Prius, 228, and following: Starkie, 256-66 (fully 
 and very conveniently) ; 2 Ph. Ev., 196-200 ; T. E., 
 8S. 1380-4; E. K P., 112-15. The second para- 
 graph of article 77 is founded on Ajppleton v. 
 Braylrooh, 6 M. and S., 39- 
 
 As to exemplifications not under the great seal, 
 it is remarkable that the judicature acts give no seal 
 to the Supreme Court, or the high court, or any of 
 its divisions. 
 
 NOTE XXXII. 
 
 (To Abticlb 90.) 
 
 The distinction between this and the following 
 article is, that article 90 defines the cases in which 
 documents are exclusive evidence of the transac- 
 tions which they embody, while article 91 deals 
 with the interpretation of documents by oral evi- 
 dence. The two subjects are so closely connected 
 together, that they are not usually treated as dis- 
 tinct ; but they are so in fact. A and B make a 
 contract of marine insurance on goods, and reduce 
 it to writing. They verbally agree that the goods 
 are not to be shipped in a particular ship, though 
 the contract makes no such reservation. They 
 leave unnoticed a condition usually understood in 
 tlie business of insurance, and they make use of a 
 technical expression, the meaning of which is not 
 commonly known. The law does not permit oral 
 evidence to be given of the exceptions as to the 
 
Notes.] LAW OP EVIDENOE. 219 
 
 particular ship. It does permit oral evidence to be 
 given to annex the condition, and thus far it decides 
 that for one purpose the document shall, and that 
 for another it shall not, be regarded as exclusive 
 evidence of the terms of the actual agreement 
 between the parties. It also allows the technical 
 term to be explained, and in doing so it interprets 
 the meaning of the document itself. The two 
 operations are obviously diiferent, and their proper 
 performance depends upon different principles. 
 The first depends upon the principle that the ob- 
 ject of reducing transactions to a written form is 
 to take security against bad faith or bad memory, 
 for which reason a writing is presumed as a general 
 rule to embody the final and considered determina- 
 tion of the parties to it. The second depends on 
 the consideration of the imperfections of language, 
 and of the inadequate manner in which people 
 adjust their words to the facts to which they apply. 
 The rules themselves are not, I think, difficult 
 either to state, to understand, or to remember ; but 
 they are by no means easy to apply, inasmuch as 
 from the nature of the case an enormous number of 
 transactions fall close on one side or the other of 
 most of them. Hence the exposition of these rules, 
 and the abridgment of all the illustrations of them 
 which have occurred in practice, occupy a very 
 large space in the difEerent text writers. They will 
 be found in 2 Ph. Ev., 332-424; T. E., ss. 1031- 
 
220 ^ DIGEBT OP THE [Notes. 
 
 1110 ; Star., 64S-731 ; Best (very shortly and im- 
 perfectly), ss. 226-229 ; E. N. P. (an immense list 
 of cases), 17-35. 
 
 As to paragraph (4), which is founded on the case 
 of Goss V. Lord N^cgent^ it is to be observed that 
 the paragraph is purposely so drawn as not to touch 
 the question of the effect of the statute of frauds. 
 It was held in efEeet in Qoss v. Lord Nugent that 
 if by reason of the statute of frauds the substituted 
 contract could not be enforced, it would not have 
 the efEeet of waiving part of the original contract ; 
 but it seems the better opinion that a verbal rescis- 
 sion of a contract good under the statute of frauds 
 would be good. See Noble v. Ward, L. K., 2 Ex., 
 135, and Pollock on Contracts, 411, note (6). A 
 contract by deed can be released only by deed, and 
 this case also would fall within the proviso to parar 
 graph (4). 
 
 The cases given in the illustrations will be found 
 to mark sufficiently the various rules stated. As to 
 paragraph (5) a very large collection of cases will 
 be found in the notes to Wigglesworth v. Dallison, 
 1 S. L. C, 598-628, but the consideration of them 
 appears to belong rather to mercantile law than to 
 the law of evidence. For instance, the question 
 what stipulations are consistent with, and what are 
 contradictory to, the contract formed by subscribing 
 a bill of exchange, or the contract between an insurer 
 
Notes.] LAW OF EVIDENCE. 221 
 
 and an underwriter, are not questions of the law of 
 evidence. 
 
 NOTE XXXIII. 
 (To Aetiolb 91.) 
 
 Perhaps the subject matter of this article does 
 not fall strictly within the law of evidence, but it 
 is generally considered to do so; and as it has 
 always been treated as a branch of the subject, I 
 have thought it best to deal with it. 
 
 The general authorities for the propositions in 
 the text are the same as those specified in the last 
 note ; but the great authority on the subject is the 
 work of Vice-Chancellor Wigram on Extrinsic Evi- 
 dence. Article 91, indeed, will be found, on exami- 
 nation, to difEer from the six propositions of Yice- 
 Chancellor Wigram only in its arrangement and 
 form of expression, and in the fact that it is not 
 restricted to wills. It will, I think, be found, on 
 examination, that every case cited by the Vice- 
 Chancellor might be used as an illustration of one 
 or the other of the propositions contained in it. 
 
 It is difiicult to justify the line drawn between 
 the rule as to cases in which evidence of expres- 
 sions of intention is admitted and cases in which it 
 is rejected (paragraph 7, illustrations Qc), {I), and 
 paragraph (8), illustration (m). When placed side 
 by side, such cases as Doe. v. Hiscocks (illustration 
 li) and Doe v. Needs (illustration m) produce a 
 
222 A DIGEST OF THE [Notes. 
 
 singular effect. The vagueness of the distinction 
 between thena is indicated by the case of Charter 
 V. Charter, L. R. 2 P. and D., 315. In this case 
 the testator Forster Charter appointed "my son 
 Forster Charter" his executor. He had two sons, 
 William Forster Charter and Charles Charter, and 
 many circumstances pointed to the conclusion that 
 the person whom the testator wished to be his 
 executor was Charles Charter. Lord Penzance not 
 only admitted evidence of all the circumstances of 
 the case, but expressed an opinion (p. 319) that, if 
 it were necessary, evidence of declarations of inten- 
 tion might be admitted under the rule laid down by 
 Lord Abinger in Hiscocks v. Hiscocks, because part 
 
 of the language employed (" my son Charter ") 
 
 applied correctly to each son, and the remainder, 
 "Forster," to neither. This mode of construing 
 the rule would admit evidence of declarations of 
 intention both in cases falling under paragraph 8, 
 and in cases falling under paragraph 7, which is 
 inconsistent not only with the reasoning in the 
 judgment, but with the actual decision in Doe v. 
 Hiscooks. It is also inconsistent with the principles 
 of the judgment in the later case of Allgood v. 
 Make, L. E. 8 Ex., 160, where the rule is stated by 
 Blackburn, J., as follows : " In construing a will, 
 the court is entitled to put itself in the position of 
 the testator, and to consider all material facts and 
 circumstances known to the testator with reference 
 
Notes.] LAW OF EVIDENCE. 223 
 
 to which he is to be taken to have used the words 
 in the will, and then to declare what is the inten- 
 tion evidenced by the words used with reference to 
 those facts and circumstances which were (or ought 
 to have been) in the mind of the testator when he 
 used those words." After quoting Wigram on Ex- 
 trinsic Evidence, and Doe v. Hisoooks, he adds : 
 " No doubt, in manj cases the testator has, for the 
 moment, forgotten or overlooked the material facts 
 and circumstances which he well knew. And the 
 consequence sometimes is that he uses words which 
 express an intention which he would not have 
 wished to express, and would have altered if he had 
 been reminded of the facts and circumstances. But 
 the court is to construe the will as made by the tes- 
 tator, not to make a will for him ; and therefore it 
 is bound to execute his expressed intention, even if 
 there is great reason to believe that he has by blun- 
 der expressed wliat he did not mean." The part of 
 Lord Penzance's judgment above referred to was 
 unanimously overruled in the House of Lords ; 
 though the court, being equally divided as to the 
 construction of the will, refused to reverse the 
 judgment, and the principle '■^ prmsumitur pro ne- 
 gcmte." 
 
 Conclusive as the authorities upon the subject 
 are, it may not, perhaps, be presumptuous to express 
 a doubt whether the conflict between a natural wish 
 to fulfill the intention which the testator would have 
 
224 A DIGEST OF THE [Notes. 
 
 formed if he had recollected all the circumstances 
 of the case ; the wish to avoid the evil of permit- 
 ting written instruments to be varied by oral evi- 
 dence ; and the wish to give effect to wills, has not 
 produced in practice an illogical compromise. The 
 strictly logical course, I think, would be either to 
 admit declarations of intention both in cases falling 
 under paragraph 7, and in cases falling under para- 
 graph 8, or to exclude such evidence in both classes 
 of cases, and to hold void for uncertainty every 
 bequest or devise which was shown to be uncertain 
 in its application to facts. Such a decision as that 
 in Stringer v. Gardiner, the result of which was to 
 give a legacy to a person whom the testator had no 
 wish to benefit, and who was not either named or 
 described in his will, appears to me to be a practical 
 refutation of the principle or rule on which it is 
 based. 
 
 Of course every document, whatever, must to 
 some extent be interpreted by circumstances. How- 
 ever accurate and detailed a description of things 
 and persons may be, oral evidence is always wanted 
 to show that persons and things answering the 
 description exist, and therefore in every case what- 
 ever, every fact must be allowed to be proved to 
 which the document does, or probably may, refer ; 
 but if more evidence than this is admitted, if the 
 court may look at circumstances which affect the 
 probability that the testator would form this inten- 
 
Notes.] LAW OF EVIDENCE. 225 
 
 tion or that, why should declarations of intention 
 be excluded ? If the question is, " What did the 
 testator say?" why should the court look at the 
 circumstances that he lived with Charles, and was 
 on bad terms with "William ? How can any amount 
 of evidence to show that the testator intended to 
 write "Charles" show that what he did write 
 itneans " Charles ? " To say that " Forster " means 
 " Charles," is like saying that " two " means 
 " three." If the question is, " What did the testa- 
 tor wish? " why should the court refuse to look at 
 his declarations of intention ? And what third 
 question can be asked ? The only one which can 
 be suggested is, "What would the testator have 
 meant if he had deliberately used unmeaning 
 words?" The only answer to this would be, he 
 would have had no meaning, and would have said 
 nothing, and his bequest should be pro tanto void. 
 
 NOTE XXXIV. 
 
 (To Aetiole 92.) 
 
 See 2 Ph. Ev., 364; Star., 726; T. E. (from 
 Greenleaf), s. 1051. Various cases are quoted by 
 these writers in support of the hrst part of the 
 proposition in the article ; but R. v. Cheadle is the 
 only one which appears to me to come quite up to 
 it. They are all settlement cases. 
 
 15 
 
226 A DIGEST OF THE [Notes. 
 
 NOTE XXXV. 
 (To Chapter XIII.) 
 In this and the following chapter many matters 
 usually introduced into treatises on evidence are 
 omitted, because they appear to belong either to 
 the subject of pleading, or to different branches of 
 substantive law. For instance, the rules as to the 
 burden of proof of negative averments in criminal 
 cases (1 Ph. Ev., 555, etc. ; 3 Euss. on Or., 276-9) 
 belong rather to criminal procedure than to evi- 
 dence. Again, in every branch of substantive law 
 there are presumptions, more or less numerous and 
 important, which can be understood only in connec- 
 tion with those branches of the law. Such are the 
 presumptions as to the ownership of property, as 
 to consideration for a bill of exchange, as to many 
 of the incidents of the contract of insurance. Pass- 
 ing over all these, I have embodied in Chapter 
 XIV those presumptions only which bear upon the 
 proof of facts likely to be proved on a great 
 variety of different occasions, and those estoppels 
 only which arise out of matters of fact, as distin- 
 guished from those which arise upon deeds or 
 judgments. 
 
Notes.] LAW OF EVIDENCE. 227 
 
 NOTE XXXYI. 
 
 (To Aeticle 94.) 
 
 The presumption of innocence belongs princi- 
 pally to the criminal law, though it has, as the 
 illustrations show, a bearing on the proof of ordi- 
 nary facts. The question, " What doubts are reason- 
 able in criminal cases?" belongs to the criminal 
 law. 
 
 NOTE XXXVII. 
 
 (To Article 101.) 
 
 The first part of this article is meant to give the 
 effect of the presumption, omnia esse rite acta, 1 
 Ph. Ev., 480, etc. ; T. E., s. 124, etc. ; Best, s. 353, 
 etc. This, like all presumptions, is a very vague 
 and fluid rule at best, and is applied to a great 
 variety of different sxibject matters. 
 
 NOTE XXXYIII. 
 
 (To Articles 102-105.) 
 
 These articles embody the principal cases of 
 estoppels inpms, as distinguished from estoppels 
 by deed and by record. As they may be applied 
 in a great variety of ways and to infinitely various 
 circumstances, the application of these rules has 
 involved a good deal of detail. The rules them- 
 
228 -A. DIGEST OF TEB [Notes. 
 
 selves appear clearly enough on a careful examina- 
 tion of the cases. The latest and most extensive 
 collection of cases is to be seen in 2 S. L. C, 851- 
 880, where the cases referred to in the text and 
 many others are abstracted. See, too, 1 Ph. Ev., 
 350-3 ; T. E., ss. 88-90, 776, 778; Best, s. 543. 
 
 Article 102 contains the rule in Piokardv. Sears, 
 6 A. and E., 474, as interpreted and limited by 
 Parke, B., in Freeman v. Cooke, 6 Bing., 174, 179. 
 The second paragraph of the article is founded on 
 the application of this rule to the case of a negli- 
 gent act causing fraud. The rule as expressed is 
 collected from a comparison of the following cases : 
 Bank of Irelam,d v. Evoms, 5 H. L. C, 389 ; Swan 
 V. British and Australasian Company, which was 
 before three courts, see 7 0. B. (JST. S.), 448 ; 7 H. 
 and IS"., 603 ; 2 H. and C, 175, where the judgment 
 of the majority of the court of exchequer was 
 reversed ; and Halifax G-uardians v. Wheelwright, 
 L. R., 10 Ex., 183, in which all the cases are referred 
 to. All of these refer to Foung v. Orote (4 Bing., 
 253), and its authority has always been upheld, 
 though not always on the same ground. The rules 
 on this subject are stated in general terms in Carr 
 V. L.&N. W. Railway, L. E. 10 0. P., 316-17. 
 
 It would be difficult to find a better illustration 
 of the gradual way in which the judges construct 
 rules of evidence, as circumstances require it, than 
 is afforded by a study of these cases. 
 
Notes.] LAW OF EVIDENCE. 229 
 
 NOTE XXXIX. 
 
 (To Chap'Tee XV.) 
 
 The law as to the competency of witnesses was 
 formerly the most, or nearly the most, important 
 and extensive branch of the law of evidence. In- 
 deed, rules as to the incompetency of witnesses, as 
 to the proof of documents, and as to the proof of 
 some particular issues, are nearly the only rules of 
 evidence treated of in the older authorities. Great 
 part of Bentham's "Rationale of Judicial Evi- 
 dence" is directed to an exposure of the funda- 
 mentally erroneous nature of the theory upon which 
 these rules were founded ; and his attack upon them 
 has met with a success so nearly comj)lete that it 
 has itself become obsolete. The history of the sub- 
 ject is to be found in Mr. Best's work, book i, part 
 i, ch. ii, ss. 132-188. See, too, T. E., 1210-57, and 
 E. JSr. P., 177-81. As to the old law, see 1 Ph. 
 Ev., 1-104. 
 
 NOTE XL. 
 (To Abticle 107.) 
 
 The authorities for the first paragraph are given 
 at great length in Best, ss. 146-165. See, too, 
 T. E., s. 1240. As to paragraph 2, see Best, s. 
 148 ; 1 Ph. Ev., 7 ; 2 Ph. Ev., 457 ; T. E., s. 1241. 
 The concluding words of the first paragraph are 
 
230 A DIGEST OF TEE [Notes. 
 
 framed with reference to the alteration in the law 
 as to the competency of witnesses made by 32 and 
 33 Vict., c. 68, s. i. The practice of insisting on a 
 child's belief in punishment in a future state for 
 lying as a condition of the admissibility of its evi- 
 dence leads to anecdotes and to scenes little calcu- 
 lated to increase respect either for religion or for 
 the administi-ation of justice. The statute referred 
 to would seem to render this unnecessary. If a 
 person who deliberately and advisedly rejects all 
 belief in God and a future state is a competent 
 witness, d fortiori, a child who has received no 
 instructions on the subject must be competent also. 
 
 NOTE XLI. 
 (To Aeticle 108.) 
 
 At common law the parties and their husbands 
 and wives were incompetent in all cases. This in- 
 competency was removed as to the parties in civil, 
 but not in criminal cases, by 14 and 15 Vict., c. 99, 
 s. 2 ; and as to their husbands and wives, by 16 and 
 17 Vict., c. 83, ss. 1, 2. But sec. 2 expressly re- 
 served the common law as to criminal cases and 
 proceedings instituted in consequence of adultery. 
 
 The words relating to adultery were repealed by 
 32 and 33 Vict., c. 68, s. 3, which is the authority 
 for the next article. 
 
 Persons interested, and persons who had been 
 convicted of certain crimes, were also incompetent 
 
Notes.] LAW OF MVLDBNOE. 231 
 
 witnesses, but their incompetency was removed by 
 6 and 7 Yict., c. 85. 
 
 E'OTE XLII. 
 (To Aeticle 111.) 
 
 The cases on which these articles are founded are 
 only Nisi Prius decisions ; but as they are quoted 
 by writers of eminence (1 Ph. Ev., 139 ; T. E., s. 
 859), I have referred to them. 
 
 In the trial of Lord Thanet, for an attempt to 
 rescue Arthur O'Connor, Serjeant Shepherd, one 
 of the special commissioners, before whom the riot 
 took place in court at Maidstone, gave evidence : 
 E. V. Lord Thcmet, 27 S. T., 836. 
 
 I have myself been called as a witness on a trial 
 for perjury to prove what was said before me when 
 sitting as an arbitrator. The trial took place before 
 Mr. Justice Hayes at York, in 1869. 
 
 As to the case of an advocate giving evidence in 
 the course of a trial in which he is professionally 
 engaged, see several cases cited and discussed in 
 Best, ss. 184-6. 
 
 In addition to those cases, reference may be made 
 to the trial of Home Tooke for a libel in 1777, 
 when he proposed to call the attorney-general (Lord 
 Thurlow), 20 S. T., 740. These cases do not appear 
 to show more than that, as a rule, it is for obvious 
 reasons improper that those who conduct a case as 
 advocates should be called as witnesses in it. Cases, 
 
232 A DIGEST OF THE [Notes. 
 
 however, might occur in which it might be abso- 
 lutely necessary to do so. .For instance, a solicitor 
 engaged as an advocate might, not at all improb- 
 ably, be the attesting witness to a deed or will. 
 
 NOTE XLIII. 
 
 (To Article 115.) 
 
 This article sums up the rule as to professional 
 communications, every part of which is explained 
 at great length, and to much the same efEect, in 1 
 Ph. Ev., 105-122 ; T. E., ss. 832-9 ; Best, s. 581. 
 It is so well established and so plain in itself that 
 it requires only negative illustrations. It is stated 
 at length by Lord Brougham in Qreenough v. 
 GasMl, 1 M. and K., 98. 
 
 NOTE XLIV. 
 (To Aeticle 117.) 
 The question whether clergymen, and particu- 
 larly whether Roman Catholic priests, can be com- 
 pelled to disclose confessions made to them profes- 
 sionally has never been solemnly decided in England, 
 though it is stated by the text writers that they can. 
 See 1 Ph. Ev., 109 ; T. E., ss. 887-8 ; R. IST. P., 
 190; Starkie, 40. The question is discussed at 
 some length in Best, ss. 583-4, and a pamphlet was 
 written to maintain the existence of the privilege 
 
Notes.] LAW OF EVIDENOE. 233 
 
 by Mr. Baddeley in 1865. Mr. Best shows clearly 
 that none of the decided cases are directly in point, 
 except Butler v. Moore (MacNally, 253-4), and 
 possibly B. v. Sparkes, which was cited by Garrow 
 in arguing Du Barre v. Livette before Lord Kenyon 
 (1 Pea., 108). The report of his argument is in 
 these words : " The prisoner being a Papist, had 
 made a confession before a Protestant clergyman of 
 the crime for which he was indicted, and that con- 
 fession was permitted to be given in evidence on 
 the trial " (before BuUer, J.), " and he was convicted 
 and executed." The report is of no value, resting 
 as it does on Peake's note of Garrow's statement of 
 a case in which he was probably not personally con- 
 cerned, and it does not appear how the objection 
 was taken, or whether the matter was ever argued. 
 Lord Kenyon, however, is said to have observed : 
 " I should have paused before I admitted the evi- 
 dence there admitted." 
 
 Mr. Baddeley's argument is in a few words, that 
 the privilege must have been recognized when the 
 Roman Catholic religion was established by law, 
 and that it has never been taken away. 
 
 I think that the modern law of evidence is not 
 so old as the Reformation, but has grown up by the 
 practice of the courts, and by decisions in the course 
 of the last two centuries. It came into existence 
 at a time when exceptions in favor of auricular 
 confessions to Roman Catholic priests were not 
 
234 A DIGEST OF THE [Notes. 
 
 likely to be made. The general rule is that every 
 person must testify to what he knows. An excep- 
 tion to the general rule has been established in 
 legal advisers, but there is nothing to show that it 
 extends to clergymen, and it is usually so stated as 
 not to include them. This is the ground on which 
 the Irish master of the rolls (Sir Michael Smith) 
 decided the case of Butler v. Moore, in 1802 (Mac- 
 JSTally Ev., 253-4). It was a demurrer to a rule to 
 administer interrogatories to a Koman Catholic 
 priest as to matter which he said he knew, if at all, 
 professionally only. The judge said, "It was the 
 undoubted legal constitutional right of every sub- 
 ject of the realm who has a cause depending, to 
 call upon a fellow subject to testify what he may 
 know of the matters in issue, and every man is 
 bound to make the discovery, unless specially 
 exempted and protected by law. It was candidly 
 admitted that no special exemption could be shown 
 in the present instance, and analogous cases and 
 principles alone were relied upon." The analogy, 
 however, was not considered sufficiently strong. 
 
 Several judges have, for obvious reasons, expressed 
 the strongest disinclination to compel such a dis- 
 closure. Thus Best, C. J., said, " I, for one, will 
 never compel a clergyman to disclose communica- 
 tions made to him by a prisoner ; but if he chooses 
 to disclose them I shall receive them in evidence " 
 {ohiter, in Broadv. Pitt, 3 C. and P., 518). Alder- 
 
Notes.] LAW OF EYTDENGE. 235 
 
 son, B., thought (rather it would seem as a matter 
 of good feeling than as a matter of positive law) 
 that such evidence should not be given: B. v. 
 Qriffm, 6 Cox Cr. Ca., 219. 
 
 NOTE XLY. 
 
 (To Articles 126, 127, 128.) 
 
 These articles relate to matters almost too familiar 
 to require authority, as no one can watch the pro- 
 ceedings of any court of justice without seeing the 
 rules laid down in them continually enforced. The 
 subject is discussed at length in 2 Ph. Ev., pt. 2, 
 chap. X, p. 456, etc. ; T. E., s. 1258, etc. ; see, too. 
 Best, s. 631, etc. In respect to leading questions, 
 it is said, " It is entirely a question for the presid- 
 ing judge whether or not the examination is being 
 conducted fairly : " E. K P., 182. 
 
 ISrOTE XLYI. 
 
 (To Article 129.) 
 
 This article states what is now the well-estab- 
 lished practice of the courts, and it never was more 
 strikingly illustrated than in the case referred to in 
 the illustration. But the practice which it repre- 
 sents is modern, and it may perhaps be doubted 
 whether upon solemn argument it would be held 
 that a person who is called to prove a minor fact, 
 
236 A DIGEST OF THE [Notes. 
 
 not really disputed, in a case of little importance, 
 thereby exposes himself to having every transac- 
 tion of his past life, however private, inquired into 
 by persons who may wish to serve the basest pur- 
 poses of fraud or revenge by doing so. Suppose, 
 for instance, a medical man were called to prove the 
 fact that a slight wound had been inflicted, and 
 been attended to by him, would it be lawful, under 
 pretense of testing his credit, to compel him to 
 answer upon oath a series of questions as to his 
 private affairs, extending over many years, and 
 tending to expose transactions of the most delicate 
 and secret kind, in which the fortune and character 
 of other persons might be involved ? If this is the 
 law, it should be altered. The following section of 
 the Indian evidence act (1 of 1872) may perhaps be 
 deserving of consideration. After authorizing, in 
 sec. 147, questions as to the credit of the witness, 
 the act proceeds as follows in sec. 148 : 
 
 " If any such question relates to a matter not 
 relevant to the suit or proceeding, except in so far 
 as it affects the credit of the witness by injuring 
 his character, the court shall decide whether or not 
 the witness shall be compelled to answer it, and 
 may, if he thinks fit, warn the witness that he is 
 not obliged to answer it. In exercising this discre- 
 tion, the court shall have regard to the following 
 considerations : 
 
 "(1) Such questions are proper if they are of 
 
Notes.] LAW OF EVIDENOB. 237 
 
 such a nature that the truth of the imputation con- 
 veyed by them would seriously affect the opinion 
 of the court as to the credibility of the witness on 
 the matter to which he testifies. 
 
 " (2) Such questions are improper if the imputa- 
 tion which they convey relates to matters so remote 
 in time or of such a character that the truth of the 
 imputation would not affect, or would affect in a 
 slight degree, the opinion of the court as to the 
 credibility of the witness on the matter to which 
 he testiiies. 
 
 " (3) Such questions are improper if there is a 
 great disproportion between the importance of the 
 imputation made against the witness's character and 
 the importance of his evidence." 
 
 NOTE XLYII. 
 (To Aetiole 131.) 
 
 The words of the two sections of 17 and 18 
 Yict., e. 125, meant to be represented by this article, 
 are as follows : 
 
 22. A party producing a witness shall not be 
 allowed to impeach his credit by general evidence 
 of bad character; but he may, in case the witness 
 shall, in the opinion of the judge, prove adverse, 
 contradict him by other evidence, or, by leave of 
 the judge, prove that he has made at other times a 
 statement inconsistent with his present testimony ; 
 
238 A DIGEST OF THE [Notes. 
 
 but before such last mentioned proof can be given, 
 the circamstances of the supposed statement, suffi- 
 cient to designate the particular occasion, must be 
 mentioned to the witness, and he must be asked 
 whether or not he has made such a statement. 
 
 23. If a witness, upon cross-examination as to a 
 former statement made by him relative to the sub- 
 ject matter of the cause, and inconsistent with his 
 present testimony, does not distinctly admit that he 
 made such statement, proof may be given that he 
 did in fact make it ; but before such proof can be 
 given, the circumstances of the supposed statement, 
 sufficient to designate the particular occasion, must 
 be mentioned to the witness, and he must be asked 
 whether or not he has made such statement. 
 
 The sections are obviously ill-arranged ; but apart 
 from this, s. 22 is so worded as to suggest a doubt 
 whether a party to an action has a right to contra- 
 dict a witness called by himself whose testimony is 
 adverse to his interests. The words " he may, in 
 case the witness shall, in the opinion of the judge, 
 prove adverse, contradict him by other evidence," 
 suggest that he cannot do so unless the judge is of 
 that opinion. This is not, and never was the law. 
 In Greenough v. Eocles, 5 C. B. (N. S.), p. 802, 
 Williams, J., says : " The law was clear that you 
 might not discredit your own witness by general 
 evidence of bad character ; but you might, never- 
 theless, contradict him by other evidence relevant 
 
Notes.] LAW OF EVIDENCE. 239 
 
 to the issue," and lie adds (p. 803) : " It is impos- 
 sible to suppose that the Legislature could have 
 really intended to impose any fetter whatever on 
 the right of a party to contradict his own witness 
 by other evidence relative to the issue — a right not 
 only established by authority, but founded on the 
 plainest good sense." 
 
 Lord Chief Justice Cockburn said of the 22d 
 section : " There has been a great blunder in the 
 drawing of it, and on the part of those who adopted 
 it." ..." Perhaps the better course is to con- 
 sider the second branch of the section as altogether 
 superfluous and useless (p. 806)." On this authority 
 I have omitted it. 
 
 For many years before the common law proced- 
 ure act of 1854 it was held, in accordance with 
 Queen Caroline's Case (2 Br. and Bing., 286-291), 
 that a witness could not be cross-examined as to 
 statements made in writing, unless the writing had 
 been first proved. The effect of this rule in crim- 
 inal cases was that a witness could not be cross- 
 examined as to what he had said before the magis- 
 trates without putting in his deposition, and this 
 gave the prosecuting counsel the reply. Upon this 
 subject rules of practice were issued by the judges 
 in 1837, when the prisoner's counsel act came into 
 operation. The rules are published in 7 C. and P., 
 676. They would appear to have been superseded 
 by the 28 Vict., c. 18. 
 
240 A DIGEST OF TEE [Notes. 
 
 NOTE XLVIII. 
 
 The statute law relating to the subject of evi- 
 dence may be regarded either as voluminous or 
 not, according to the view taken of the extent of 
 the subject. 
 
 The number of statutes classified under the head 
 " Evidence " in Chitty's statutes is 35. The num- 
 ber referred to under that head in the index to the 
 Revised Statutes is 39. Many of these, however, 
 relate only to the proof of particular documents, 
 or matters of fact which may become material under 
 special circumstances. 
 
 Of these I have noticed a few which, for various 
 reasons, appeared important. Such are : 34 and 35 
 Vict., c. 112, s. 19 (see article 11) ; 9 Geo. IV., c. 
 14, s. 1, amended by 19 and 20 Vict., c. 97, s. 13 
 (see article 17) ; 9 Geo. IV., c. 14, s. 3 ; 3 and 4 
 "Will. IV., c. 42 (see article 28) ; 11 and 12 Vict., 
 c. 42, s. 17 (article 33) ; 30 and 31 Vict., c. 35, s. 6 
 (article 34) ; 7 James I., c. 12 (article 38) ; 7 and 8 
 Geo. IV., c. 28, ^. 11, amended by 6 and 7 Will. 
 IV., c. Ill; 24 and 25 Vict., c. 96, s. 116; 24 and 
 25 Vict., c. 90, s. 37 (see article 56) ; 8 and 9 Vict., 
 e. 10, 8. 6 ; 35 and 36 Vict., e. 6, s. 4 (article 121) ; 
 7 and 8 Will. III., e. 3, ss. 2-4 ; 39 and 40 Geo. 
 III., c. 93 (article 122). 
 
 Many, again, refer to pleading and practice rather 
 than evidence, in the sense in which I employ the 
 
Notes.] LAW OF EVIDENCE. 241 
 
 word. Such are the acts which enable evidence to 
 be taken on commission if a witness is abroad, or 
 relate to the administration of interrogatories. 
 
 Those which relate directly to the subject of evi- 
 dence, as defined in the introduction, are the ten 
 following acts : 
 
 1. 
 
 ^,6 Geo. III., c. 37 (1 section; see article 120). 
 This act qualifies the rule that a witness is not 
 bound to answer questions which criminate himself 
 by declaring that he is not excused from answering 
 questions which fix him with a civil liability. 
 
 2. 
 
 6 and 7 Vict, e. 85. This act abolishes incom- 
 petency from interest or crime (4 sections; see 
 article 106). 
 
 3. 
 
 8 and 9 Vict., c. 113 : " An act to facilitate the 
 admission in evidence of certain official and other 
 documents" (8th August, 1845 ; 7 sections). 
 
 S. 1, after preamble reciting that many docu- 
 ments are, by various acts, rendered admissible in 
 proof of certain particulars if authenticated in a 
 certain way, enacts inter alia that proof that they 
 were so authenticated shall not be required if they 
 purport to be so authenticated. (Article 79.) 
 
 S. 2. Judicial notice to be taken of signatures of 
 certain judges. (Article 58, latter part of clause 8.) 
 16 
 
242 A DIGEST OF THE [Notes. 
 
 S. 3. Certain acts of Parliament, proclamations, 
 etc., may be proved by copies purporting to be 
 Queen's printer's copies. (Article 81.) 
 
 S. 4. Penalty for forgery, etc. This is omitted 
 as belonging to the criminal law. 
 
 Ss. 5, 6, 7. Local extent and commencement of 
 act. 
 
 1J^ and 15 Vict, c. 99 : " An act to amend the 
 law of evidence," 7th August, 1851 (20 sections) : 
 
 S. 1 repeals part of 6 and 7 Vict., c. 85, which 
 restricted the operation of the act. 
 
 S. 2 makes parties admissible witnesses, except in 
 certain cases. (Effect given in articles 106 and 
 108.) 
 
 S. 3. Persons accused of crime, and their hus- 
 bands and wives, not to be competent. (Article 108.) 
 
 S. 4. The first three sections not to apply to pro- 
 ceedings instituted in consequence of adultery. 
 Kepealed by 32 and 33 Yiet., c. 68. (Effect of 
 repeal, and of s. 3 of the last named act given in 
 article 109.) 
 
 S. 5. None of the sections above mentioned to 
 affect the wills act of 1838, 7 Will. IV. and 1 
 Vict., c. 26. (Omitted as part of the law of wills.) 
 
 S. 6. The common law courts authorized to grant 
 inspection of documents. (Omitted as part of the 
 law of civil procedure.) 
 
 S. 7. Mode of proving proclamations, treaties, 
 etc. (Article 84.) 
 
Notes.] LAW OF EVIDENOE. 243 
 
 S. 8. Proof of qualification of apothecaries. 
 (Omitted as part of the law relating to medical 
 men.) 
 
 Ss. 9, ]0, 11. Documents admissible either in 
 England or in Ireland, or in the colonies, without 
 proof of seal, etc., admissible in all. (Article 80.) 
 
 S. 12. Proof of registers of British ships. (Omit- 
 ted as part of the law relating to shipping.) 
 
 S. 13. Proof of previous convictions. (Omitted 
 as belonging to criminal procedure.) 
 
 S. 14. Certain documents provable by examined 
 copies, or copies purporting to be duly certified. 
 (Article 79, last paragraph.) 
 
 S. 15. Certifying false documents a misdemeanor. 
 (Omitted as belonging to criminal law.) 
 
 S. 16. Who may administer oaths. (Article 125.) 
 
 S. 17. Penalties for forging certain documents. 
 (Omitted as belonging to the criminal law.) 
 
 S. 18. Act not to extend to Scotland. (Omitted.) 
 
 S. 19. Meaning of the word " Colony." (Arti- 
 cle 80, note 1.) 
 
 S. 20. Commencement of act. 
 
 5. 
 
 17 and 18 Yict, o. 1^5. The common law pro- 
 cedure act of 1854 contained several sections which 
 altered the law of evidence. 
 
 S. 22. How far a party may discredit his own 
 witness. (Articles 131, 133 ; and see note xlvii.) 
 
244 A DIGEST OF THE [Notes. 
 
 S. 23. Proof of contradictory statements by a 
 witness under cross-examination. (Article 131.) 
 
 S. 24. Cross-examination as to previous state- 
 ments in writing. (Article 132.) 
 
 S. 25. Proof of a previous conviction of a wit- 
 ness may be given. (Article 130 (1).) 
 
 S. 26. Attesting witnesses need not be called un- 
 less writing requires attestation by law. (Article 72.) 
 
 S. 27. Comparison of disputed handwritings. 
 (Articles 49 and 52.) 
 
 After several acts, giving relief to Quakers, Mo- 
 ravians and Separatists, who objected to take an 
 oath, a general measure was passed for the same 
 purpose in 1861. 
 
 6. 
 
 2^. and 25 Vict, c. 66 (1st August, 1861, 3 sec- 
 tions) : 
 
 S. 1. Persons refusing to be sworn from consci- 
 entious motives may make a declaration in a given 
 form. (Article 123.) 
 
 S. 2. Falsehood upon such a declaration punish- 
 able as perjury. (Do.) 
 
 S. 3. Commencement of act. 
 
 7. 
 28 Vict, G. 18 (9th May, 1865, 10 sections) : 
 S. 1. Sections 3-8 to apply to all courts and 
 causes, criminal as well as civil. 
 
KOTES.] LAW OF EVIDENCE. 245 
 
 S. 3. Ee-euacts 17 and 18 Vic, c. 125, s. 22, 
 
 S. 4. 
 S. 5. 
 S. 6. 
 S. 7. 
 S. 8. 
 
 23. 
 24. 
 25. 
 26. 
 
 27. 
 
 The effect of these sections is given in the articles 
 above referred to by not confining them to proceed- 
 ings under the Common Law Procedure Act, 1854. 
 
 The rest of the act refers to other subjects. 
 
 8. 
 
 31 cmd 32 Vict., c. 37 (25th June, 1868, 6 sec- 
 tions) : 
 
 S. 1. Short title. 
 
 S. 2. Certain documents may be proved in par- 
 ticular ways. (Art. 83, and for schedule referred 
 to see note to the article.) 
 
 S. 3. The act to be in force in the colonies. 
 (Article 83.) 
 
 S. 4. Punishment of forgery. (Omitted as form- 
 ing part of the Criminal Law.) 
 
 S. 5. Interpretation clauses embodied (where 
 necessary) in Article 83. 
 
 S. 6. Act to be cumulative on Common Law. 
 (Implied in article 73.) 
 
 9. 
 
 32 and 33 Vict., c. 68 (9th August, 1869, 6 sec- 
 tions) : 
 
246 ^ DIGEST OF THE [Notes. 
 
 S. 1. Eepeals part of 14 and 15 Yict., c. 99, s. 4, 
 and part of 16 and 17 Yict., c. 83, s. 2. (The efEect 
 of this repeal is given in article 109 ; and see note 
 xli.) 
 
 S. 2. Parties competent in actions for breach of 
 promise of marriage, but must be corroborated. 
 (See articles 106 and 121.) 
 
 S. 3. Husbands and wives competent in proceed- 
 ings in consequence of adultery, but not to be com- 
 pelled to answer certain questions. (Article 109.) 
 
 S. 4. Atheists rendered competent witnesses. 
 (Articles 106 and 123.) 
 
 S. 5. Short title. 
 
 S. 6. Act does not extend to Scotland. 
 
 10. 
 
 33 and 3k Yict., o. Ifi (9th August, 1870, 3 sec- 
 tions) : 
 
 S. 1. Recites doubts as to meaning of " court " 
 and " judge " in s. 4 of 32 and 33 Vict., c. 68, and 
 defines the meaning of those words. (The effect of 
 this provision is given in the definitions of " court" 
 and "judge" in article 1, and in s. 125.) 
 
 S. 2. Short title. 
 
 S. 3. Act does not extend to Scotland. 
 
 These are the only acts which deal with the law 
 of evidence as I have defined it. It will be 
 observed that they relate to three subjects only — 
 the competency of witnesses, the proof of certain 
 
Notes.] LAW OF EVIDENGE. 247 
 
 classes of documents, and certain details in the prac- 
 tice of examining witnesses. These details are pro- 
 vided for twice over, namely, once in 17 and 18 
 Vict., c. 125, ss. 22-27, both inclusive, which con- 
 cern civil proceedings only ; and again in 28 Vict., 
 c. 18, ss. 3-8, which re-enact these provisions in 
 relation to proceedings of every kind. 
 
 Thus, when the statute law upon the subject of 
 evidence is sifted and put in its proper place as part 
 of the general system,- it appears to occupy a very 
 subordinate position in it. The ten statutes above 
 mentioned are the only ones which really form part 
 of the law of evidence, and their effect is fully 
 given in twenty* articles of the Digest, some of 
 which contain other matter besides. 
 
 * 1, 49, 52, 58, 72, 79, 80, 81, 83, 84, 106, 108, 109, 120, 121, 
 133, 125, 131, 132, 133. 
 
INDEX. 
 
 [thb figukbs kefer to the articles.] 
 
 Accomplice, evidence of, 121. 
 
 Acts of Congress, judicially noticed, 58; how proved, 80. 
 
 Legislature, judicially noticed, 58; how proved, 81. 
 " Admission," definition of, 15. 
 
 by one joint contractor not binding on remain- 
 der to bar Statute of Limitations, 17. 
 by partners and joint contractors, 17; illustra- 
 tion of, ib. 
 by persons having a common interest, 17; 
 
 illustration of, ib. 
 by persons referred to by party, 19; illustra- 
 tion of, ib. 
 cannot be made in criminal cases, 60. 
 made under duress, 20. 
 made without prejudice, 20. 
 principal not agent of surety to make, 17; 
 
 illustration of, ib. 
 statement by agent when not, 17; illustration 
 
 of ib. 
 statement made by person interested in action, 
 
 or privy, when, 16; illustration of, ib. 
 statement of person sued in a representative 
 character when, 16. 
 Admissions by agents, 17 ; illustrations of, ib. 
 by counsel or attorney, 17. 
 by strangers to action when relevant, 18. 
 by whom, may be made, 16; illustrations of, ib. 
 statements by counsel or attorney, when not, 17. 
 
250 INDEX. 
 
 Afflrmation in place of oath, 133. 
 
 Attorneys and solicitors, when not compellable to produce 
 documents, 119. 
 
 Bodily feeling, acts showing, relevant, 11. 
 
 statements showing, relevant, 11. 
 Burden of proof, 93, 94, 95, 96, 97. 
 
 Certified copies of documents admissible, 79, 81, 82, 83, 84. 
 Character aa afCecting damages in civil cases generally irrele- 
 vant, 59. 
 evidence of general reputation and not of particu- 
 lar acts may be given, 56. 
 generally irrelevant in civil cases, 55. 
 good, when evidence given of, previous bad char- 
 acter may be proved, 56. 
 in criminal proceedings when relevant, 56. 
 Clergymen compelled to disclose confidential communica- 
 tions, 117. 
 Communications during marriage privileged, 110. 
 Complaint of person against whom crime committed, fact 
 
 of, relevant, but terms not, 8; ilhisiration of, ib. 
 " Conclusive proof," definition of, 1. 
 Conduct of person against whom crime committed, relevancy 
 
 of facts showing, 8; illustration of, ib. 
 "Confession," definition of, 21. 
 
 facts discovered in consequence of, though 
 
 improperly obtained, relevant, 22; Ulustra- 
 
 tion of, ib. 
 
 made by accused persons without warning, 24. 
 
 made in consequence of deception, relevancy 
 
 of, 24. 
 made under promise of secrecy, relevaitcy 
 
 of, 24. 
 made when drunk, relevancy of, 24. 
 to persons in authority, 22. 
 when impression produced by threat, induce- 
 ment or promise is removed, 23 ; iUustraiion 
 of, ib. 
 
INDBX. 251 
 
 " Confession," when made as a religious duty, 23; illustration 
 of, ib. 
 ■when made by inducement collateral to the 
 
 proceeding, 22; illustration of, ib. 
 when made to a person not in authority, 23; 
 
 illustration of, ib. 
 when not deemed voluntary, 22; illustration 
 
 of ib. 
 when relevant, 31 ; illustration of, 32. 
 Confessions made on oath when relevant, 23; illustration 
 of, ib. 
 made on oath when witness improperly com- 
 pelled to answer, 23. 
 Conspirators, acts of, 4. 
 
 judge must be satisfied of primS facie case 
 
 against, 4. 
 relevancy of facts as against, 4; illustration of , ib. 
 Copies of documents when equivalent to exemplifications, 78. 
 Corroboration of mother of bastard child required, 121. 
 
 of plaintiff required in proceedings for di- 
 vorce, 121. 
 required when evidence given by accom- 
 plice, 131. 
 Course of business, relevancy of, 13; illustrations of, ib. 
 Credit of witness, impeaching, 133. 
 Cross-examination of witnesses, 136. 
 
 to what must be directed, 137. 
 questions lawful in, 189 ; illustrations of, ib. 
 as to inconsistent statements, 131. 
 as to statements in writing, 133. 
 Custom, relevancy of facts as to, 6; illustrations of, ib. 
 
 Death, presumption of, 99. 
 
 Declaration against interest, indorsement of payment on 
 bond or note, 28. 
 against interest, indorsement of payment on 
 
 bond or note by deceased person, 28. 
 against interest not relevant unless interest pecu- 
 niary or proprietary, 38; illustration of, ib. 
 
252 INDEX. 
 
 Declaration against interest pecuniary or proprietary, rele- 
 vancy of, 28. 
 against interest, when not relevant, 38; ithtstra- 
 
 twm of, 28. 
 against interest when relevant, 28; illiistratione 
 
 of. 28. 
 as to general right relevant when made by per- 
 sons having means of knowledge, 30. 
 as to public right relevant by whomever made, 30. 
 by testator as to contents of will relevant, 29. 
 dying, as to cause of death, when relevant, 26; 
 
 illustrations of, ib. 
 dying, not irrelevant because intended to be made 
 
 as deposition, 36 ; illustration of, ib. 
 irrelevant except made in ordinary course of 
 
 business or duty, 27; illustrations of, ib. 
 made in course of business, relevancy of, 27 j 
 
 must/rations of, ib. 
 made in discharge of professional duty, rele- 
 vancy of, 37; illustrations of, ib. 
 Declarations as to facts from which public rights may be 
 inferred, not relevant, 30 ; illtisiration, of, ib. 
 as to pedigree when relevant, 31. 
 by whom to be made, 31. 
 conditions under which they are to be made, 31; 
 
 illustrations of, ib. 
 as to public or general rights relevant, 30; illiu- 
 
 trations of, ib. 
 relevant vmder articles 25-33, what may be 
 proved in reference to, 135. 
 Deeds, presumption as to sealing and delivery of, 87. 
 Definition of terms, 1. 
 "Document,"' definition of, 1. 
 
 date of, presumption as to, 85; ilhistrationg 
 
 of ib. 
 person other than party to, may prove fact not 
 varying or altering right or liability, 92; 
 illustrations of, ib. 
 public, may be proved by examined copy, 75. 
 
INDMX. 253 
 
 "Document," stamp of, presumption as to, 86. 
 used to refresh memory, 136, 137. 
 using, as evidence when production refused 
 
 on notice, 139. 
 when called for and produced and inspected 
 must be given in evidence if party produc- 
 ing requires it, 138. 
 "Documentary evidence," definition of, 1. 
 of contracts, 90. 
 
 cannot be varied by oral evi- 
 dence, 90. 
 exceptions, 90; illustrations of, ib. 
 Documents admissible throughout the Union, 76, 80-84. 
 
 certified copies of, admissible, 76, 79, 81, 83, 88, 84. 
 construction of, what evidence may be given, 91 ; 
 
 iUiiStrations of, ib. 
 contents of, when irrelevant, 14. 
 how proved by primary evidence, 64. 
 notice to produce, rules as to, 72. 
 persons entitled to refuse prod uction of, not com- 
 pelled to give evidence of contents, 119. 
 presumption as to alteration of, 89. 
 production of, when witness entitled to refuse, 118. 
 proof of attested, acknowledged under statute, 69. 
 proof of execution of, when attested, 66, 67. 
 proof of, must be by primary evidence, 64. 
 exceptions, 71. 
 
 proof of, when attesting witness denies execu- 
 tion, 68. 
 proof of, when attesting witness need not be 
 
 called, 67. 
 public, proof of, 73. 
 
 public, proved by production from proper cus- 
 tody, 74. 
 thirty years old, presumption as to, 88. 
 when secondary evidence of contents may be 
 given, 71. 
 
 Entries in books of corporations, when relevant, 36. 
 in party's own books, when relevant, 37, 38. 
 
254 INDEX. 
 
 Entry in public record made in performance of duty rele- 
 vant, 34. 
 Estoppel by conduct, 102 ; Uhisirationa of, ib. 
 Estoppel of acceptor of bill of exchange, 104 
 of bailee, agent, and licensee, 105. 
 of tenant or licensee, 103. 
 "Evidence," definition of, 1. 
 
 as to affairs of state, 113. 
 
 false, on affirmation punishable as perjury, 135. 
 improper admission of, 140. 
 improper rejection of, 140. 
 in former proceedings when relevant, 33. 
 conditions under which it may be given, 83. 
 need not be given of admitted facts, 60. 
 oral, how taken, 135. 
 oral, may be talien by deposition, 125. 
 oral, may be taken in open court, 185. 
 oral, may be taken under a commission, 135. 
 oral, must be direct, 63. 
 
 oral, not excluded by a documentary memoran- 
 dum of fact, 90. 
 oral, reduced to writing, when may be objected 
 
 to, 125. 
 proof of facts by oral, 63. 
 to be on oath, or affirmation, 133. 
 "Evidence, secondary," definition of, 70. 
 
 of documents, when may be given, 71. 
 Examination of witnesses, 136. 
 Examined copy of public document, what is, 75. 
 Exemplifications, what are, 77. 
 
 Experts, facts bearing on opinions of, 50; illustrations of, ib. 
 opinions of, on points of science and art, 49. 
 
 " Fact," definition of, 1. 
 
 that particular person held particular office when 
 relevant, 13. 
 Facts admitted need not be proved, 60. 
 " Facts in issue," definition of, 1. 
 
INDEX. 255 
 
 Facta in issue and relevant to issue may be proved, 3; illus- 
 iration of, ib. 
 necessary to introduce or explain relevant facts, rele- 
 vancy of, 9 ; iUustratirms of, ib. 
 necessary to support or rebut an inference suggested 
 by fact in issue, relevancy of, 9; iUusl/ratiom 
 of, ib. 
 of which Court takes judicial notice, 58. 
 of which Court takes judicial notice need not be 
 
 proved, 59. 
 relevant to facts in issue may be proved, 3; illuai/ror 
 
 tion of, ib. 
 showing existence of course of business, relevancy 
 
 of, 13. 
 showing system, relevancy of, 13; illustrations of, ib. 
 similar to but unconnected with the facts in issue 
 when relevant, 10; illustrations of, ib. 
 Facts supporting or contradicting opinions of experts rele- 
 vant, 150; illustrations of, ib. 
 too remote may be excluded by judge, 3. 
 which establish identity of any thing or person, rele- 
 vancy of, 9 ; illustration of, ib. 
 which fix time and place at which any fact in issue or 
 relevant happened, relevancy of, 9; illustration of, ib. 
 which show genuineness of document produced, rele- 
 vancy of, 9 ; illustration of, ib. 
 which show opportunity, relevancy of, 9; illustration 
 
 of, ib. 
 which show relation of parties, relevancy of, 9; illus- 
 tration of, ib. 
 which show relevancy of other facts, relevancy of, 9. 
 Foreign Acts of State, how proved, 84. 
 
 judgments, same rules apply to such, as can be 
 enforced by law in this country, 47. 
 bow proved, 84. 
 
 General right common to considerable number of persons, 30. 
 Good faith, acts showing, relevant, 11; illustrations of, ib. 
 statements showing, relevant, 11. 
 
256 INDEX. 
 
 Handwriting, comparison of disputed, with genuine, 53. 
 opinion as to, 51. 
 
 when person deemed acquainted with, 5L 
 illustrations of, ib. 
 Hearsay irrelevant, 14; illustrations of, ib. 
 Husbands and wives, confidential communications between, 
 110. 
 when competent witnesses, 108, 109. 
 
 Information as to the commission of offenses, 113. 
 Innocence, presumption of, 94. 
 
 Intention, acts showing, relevant, 11; illustrations of, ib. 
 statements showing, relevant, 11. 
 
 Journals of Legislatures, transactions on, not judicially 
 
 noticed, 58. 
 "Judge," definition of, 1. 
 
 may exclude facts too remote, 3. 
 Judges, their competency and privileges. 111. 
 "Judgment," definition of, 39. 
 
 conclusive when party had no opportunity of 
 pleading it as an estoppel, 43; illustrations 
 of, ib. 
 foreign, how proved, 84. 
 not pleaded as estoppel relevant, 43; Ulustra- 
 
 tion of, ib. 
 offered as evidence may be proved to be pro- 
 cured by fraud, 46. 
 of State Courts, how proved in other states and 
 in U. S. Courts, 83. 
 Judgment offered as evidence may be proved to have been re- 
 versed, 46. 
 Judgment offered as evidence may be proved that Court had 
 
 no jurisdiction, 46. 
 Judgments conclusive in favor of judge, 45; illustration of, ib. 
 conclusive proof, 40; illustrations of, ib. 
 statements in, when irrelevant, 41; illustration 
 of, ib. ; conclusive Admiralty and other cases 
 in rem, 43; illustrations of, ib. 
 
INDEX. 257 
 
 Judgments when conclusive between parties and privies, 41 ; 
 iWustraticms of, ib. 
 when irrelevant between strangers, 44; UliistraMon 
 
 of, ib. 
 between parties and privies where issue different, 
 , 44; illustration of, ib. 
 in favor of strangers against parties and privies, 
 
 44; illustration of, ib. 
 except as being an admission, or if it relates to a 
 matter of public or general interest, 44; illus- 
 tration of, ib. 
 Judicial notice, facts need not be proved of which Court 
 takes, 59. 
 facts of which Court takes, 58. 
 Judicial proceedings of State Courts, etc., how proved, 82. 
 Jurors, when competent to give evidence, 114. 
 
 Knowledge, acts showing, relevant, 11 ; illustration of, ib. 
 statements showing, relevant, 11. 
 
 Laws of United States, etc., Little & Brown's edition, evi- 
 dence, 80. 
 Leading questions, 128. 
 
 Legal advisers, confidential communications with, 116. 
 Legislative acts of States and Territories, how proved, 81. 
 Legitimacy, when presumed, 98. 
 
 Malice, acts showing, relevant, 11 ; illustration of, ib. 
 statements showing, relevant, 11. 
 ,^ Marriage, communications during, 111. 
 opinion as to existence of. 53. 
 opinion as to validity of, 53. 
 Medical men compelled to disclose confidential communica- 
 tions, 117. 
 Motive, relevancy of facts supplying, 7; illustrations of, ib. 
 
 Notice to produce, rules as to, 72. 
 
 Oaths, form of, 134. 
 
 when binding, 124. 
 17 
 
258 INDEX. 
 
 Offenses against women, what evidence is relevant, 133. 
 Opinion as to existence of marriage relevant, 53; not to prove 
 bigamy or proceedings for divorce, ib. 
 as to sanity of testator when relevant, 48. 
 of witnesses, derived from personal observation, 
 relevant when no better evidence can be obtained, 
 48; illuitrations of, ib. 
 Opinion when relevant, grounds of, relevant, 54; illustration 
 
 of, ib. 
 Opinions as to handwriting relevant when made by person 
 acquainted with writing of supposed writer, 51. 
 duty of judge to decide whether person 'offering, is 
 
 an expert, 49. 
 generally irrelevant, 48 ; illustrations of, ib. 
 of experts as to existence of facts on which opinion 
 
 founded irrelevant, 49 ; illustration of, ib 
 of experts as to foreign laws relevant, 49. 
 of experts in matters of science or ait relevant, 49; 
 illustrations of, ib. 
 Oral evidence, how it may be taken, 125. 
 must be direct, 63. 
 
 Perjury, number of witnesses, 123. 
 
 on affirmation, 123. > 
 
 Preparation, relevancy of facts constituting, 7; illustrations 
 
 of, ib. 
 "Presumption," definition of, 1. 
 
 as to alteration of document, 89. 
 
 as to date of document, 85 ; illustrations of, ib. 
 
 as to documents thirty years old, 88. 
 
 as to sealing and delivery of deeds, 87. 
 
 as to stamp of document, 86. 
 
 of death from seven years' absence, 99. 
 
 of execution of deeds to complete title, 101. 
 
 of innocence, 94; illustrations of, ib. 
 
 of legitimacy, 98. 
 
 of lost grant, 100 ; illustrations of, ib. 
 
 of regularity of judicial or official acts, 101. 
 Previous conviction, proof of, when relevant, 107, 133. 
 
INDEX. 259 
 
 Previous conviction proved only by record, 129. 
 Primary evidence of documents, what, 64. 
 Proclamations judicially noticed by Courts, 58. 
 
 recitals in, when relevant, 33. 
 Professional communications, when privileged, 115; iWuMra- 
 
 tions of, ib. 
 Proof, burden of, as to particular fact, 96; illustrationa of, 
 ib. 
 burden of, lies on him who affirms, 93, 95. 
 burden of, of fact to be proved to make evidence 
 
 admissible, 95 ; illustrations of, ib. 
 burden of, on whom it lies, 95 ; illustrations of, ib. 
 Public documents, how proved, 73 to 84. 
 
 Records of State, etc. , not judicial, how proved, 83. 
 right common to aU citizens of the State, 30. 
 Recitals of public facts in statutes and proclamations, when 
 
 relevant, 33. 
 Records and judicial proceedings of state courts, how 
 
 proved, 83. 
 Records, general, of nation may be proved by certified copy, 76. 
 Refreshing memory by document, when admissible, 136. 
 "Relevancy," definition of, 1. 
 Relevancy of facts forming part of the same transaction as 
 
 facts in issue, 3 ; illustrations of, ib. 
 "Relevant," definition of, 1. 
 
 State of body, acts showing, relevant, 11. 
 
 statements showing, relevant, 11. 
 State of mind, acts showing, relevant, 11. 
 
 statements showing, relevant, 11. 
 Statement of act of state or fact of public nature, when 
 relevant, 34. 
 relevancy of, accompanying or explaining act, 8; 
 illustrations of, ib. 
 Statements by deceased, insane or absent persons, relevancy 
 of, 25. 
 causing state of mind, relevancy of, 11. 
 inconsistent with testimony may be proved if 
 desired by witness, 130. 
 
260 INDEX. 
 
 Statements in works of history, maps, charts and plans rele- 
 vant when they relate to matters of general 
 public interest, 35 ; irrelevant when they relate 
 to private matters, ib. 
 made in presence of person whose conduct ia in 
 
 issue are relevant, 8. 
 presenting state of mind, relevancy of, 11. 
 Statute of Limitations, indorsement on memorandum or 
 promissory note of a payment 
 does not exclude, 28. 
 declaration by deceased person to 
 whom payment is made will ex- 
 clude operation of, 28. 
 Statutes, foreign, how proved, 84 
 
 of sister state, how proved, 81. 
 Subsequent conduct of person accused, relevancy of facts 
 showing, 7; illustrations of, ib. 
 
 "Terms," definition of, 1. 
 
 Title, relevancy of facts as to, 5; illustrations of, ib. 
 
 Treason, 122. 
 
 number of witnesses, 133. 
 
 Witness cannot be contradicted as to answers to questions 
 testing credit generally, 130. 
 
 cross-examination of, 127. 
 
 cross-examination of, as to previous statements in 
 writing, 183. 
 
 deaf and dumb, not incompetent, but may give evi- 
 dence by writing or signs in court, 107. 
 
 dying or becoming incapable, evidence given by, 
 when good, 126. 
 
 examination of, 126. 
 
 examination of , must be directed to relevant facts, 137. 
 
 found to be incompetent, evidence may be with- 
 drawn, 126. 
 
 husband or wife when competent, 108, 109, 110. 
 
 husband or wife when incompetent, 108, 109, 110. 
 
INDEX. 261 
 
 Witness may be contradicted to show statements inconsistent 
 with present testimony, 131; to show that he is not 
 impartial, 130. 
 
 may be cross-examined as to credit, 139. 
 
 may be cross-examined as to veracity, 129. 
 
 may not be asked leading questions in examination 
 in chief or re-examination, 138. 
 
 not bound to criminate himself, 130. 
 
 not party to suit when not compelled to produce 
 document, 118. 
 
 not party to suit when not entitled so refuse to pro- 
 duce document, 118. 
 
 re-examination of, must be confined to facts referred 
 to in cross-examination, 127. 
 
 refreshing memory, 136. 
 
 when, incompetent from youth or incapacity, 107. 
 
 when, incompetent from infamy, 107. 
 
 unbelief in a God, 107. 
 
 when, may be cross-examined by party calling 
 him, 128, 131. 
 
 when, not entitled to refuse to produce document, 118. 
 
 when, party to suit competent, 107. 
 Witnesses, number of, in treason against United States, 122. 
 number of, in treason against a state, 132. 
 number of, in perjury, 122. 
 Women, offenses against, 134. 
 
I^ 8935 S82 1879 c.l 
 
 
 Author 
 
 Stephen, Sir James Fitzjames 
 
 Vol. 
 
 Title 
 
 Digest of the Law of Evidence 
 
 Copy 
 
 C.l