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THE 
 
 ykw OF EVIDENCE 
 
 <V>- 
 
 IN CIVIL CASES 
 
 4j 
 
 BURR W. JONES 
 
 OF THE WISCOKSIM BAB 
 
 Frofessok of the Law of Etidencb ih the College or Law 
 or THK Unitbbsiti or Wisconsin 
 
 SECOND EDITION 
 
 SAN FRANCISCO 
 BANCROFT-WHITNEY COMPANY 
 
 LAW PUBLIBEEBS AIO) LAW BOOKSKLLIIBS 
 
 1908 
 
13 7f3f^ 
 
 CJOPYBIQHT, 1896, 
 BIT 
 
 BURR W. JONES. 
 
 Copyright, 1908, 
 
 BY 
 
 BURR W. JONES. 
 
 STATE JOUKNAL PRINTING COMPANY, 
 FnurrsRS and Stbrsotypbbs, 
 
 UADISON, WIS. 
 
PKEFACE TO SECOND EDITION. 
 
 The very generous reception given to the first edition of this work 
 has led me to believe that the hope then entertained, that it might 
 , prove an aid to busy lawyers, was reasonably well founded and that 
 a second edition may also be of service to the profession. 
 
 In planning a second edition, the problem at once arose how a 
 large amount of new matter and a large number of new cases could 
 be added, at the same time preserving the original plan of making 
 the book a convenient treatise on Trial Evidence. 
 
 It was determined to change the form of the work from that of 
 three smaU volumes into a single volume, containing much more 
 matter than the ordinary law book. 
 
 It will be seen that space has been saved by placing many of the 
 illustrations in the notes, but it is hoped in such a manner, that they 
 can be easily referred to. By this plan the text is somewhat more 
 confined to a discussion of general rules, and is thus made useful to 
 the student, while those having need of numerous illustrations or 
 citations of cases will find them in the notes. 
 
 Since the publication of the first edition, the elaborate and valu- 
 able works of Wigmore and Elliott, have appeared. But it is be- 
 lieved that the busy practitioner will still find use for a work stat- 
 ing in a more condensed form the rules of the Law of Evidence. 
 
 Although I have personally revised every section and have re-writ- 
 ten and changed many, I am deeply indebted to my law partner, 
 B. J. B. Schubring for the very faithful and able help which he has 
 rendered from the beginning to the end of my work, and I desire 
 to give the fullest acknowledgment of the value of his assistance. 
 
 BuEE W. Jones. 
 
 Madison, Wis., Augv^t, 1908. 
 
PREFACE TO FIRST EDITION. 
 
 In the preparation of this work my primary object has been 
 to fumisli a convenient text-book for trial lawyers, stating tersely 
 the rules of law which govern in the trial of civil cases. 
 
 Since the rules of evidence are for the most part the outgrowth 
 of judicial decisions, and belong to the domain of judge-made law, 
 and not to that of codes and statutes, it is not remarkable that, in 
 a country having many independent jurisdictions there should have 
 arisen in the course of more than a century innumerable conflicting 
 decisions on the law of evidence. 
 
 It would be a vain attempt in any treatise, however extended, to 
 reconcile these controversies, and, within the limits of such a work 
 as this, it would even be impossible to discuss at length the conflict- 
 ing views. In dealing with these questions I have sought to state 
 the respective claims, indicating the rules supported by the weight 
 of authority, and have cited the leading authorities supporting 
 each view. 
 
 Prom the earliest English reports to the present time quite a 
 large proportion of the reported decisions in England and in 
 America have contained, in connection with discussions of other sub- 
 jects, rulings upon questions of evidence. It would not be practic- 
 able in a work of his character to cite exhaustively from this multi- 
 tude of cases. It is in view of this fact that I have referred the 
 practitioner and student to other sources where a fuller presenta- 
 tion of controverted questions may be found. The elementary 
 works are of course well known to the profession, and it has not 
 been deemed necessary to constantly refer to those treatises. 
 
 It is well known that some of the ablest discussions of mooted 
 questions of law are to be found in the law reviews and joumalg 
 
VI PREFACE TO FIRST EDITION. 
 
 and in the various series of annotated cases which have lately come 
 into extensive use. In this part of the literature of the law there 
 will often be found a more elaborate review of particular subjects 
 in the law of evidence and a more extended collection of the author- 
 ities than in the elementary works or judicial decisions. I have 
 therefore taken pains to cite quite fully these articles and discus- 
 sions, and, although thej ' ve not the authority of judicial deci- 
 sions, they are often invamable in the investigation of legal ques- 
 tions. 
 
 In treating the various suDJcots I have not only stated the rules 
 of evidence which govern, but n;'i ' often given many illustrations 
 from the reported cases. If it mag', ,>m that more of these examples 
 are given than are necessary to 'illustrate the principles involved, 
 the explanation is, that the work has been prepared as an aid to 
 the busy lawyer who is always glad to rest his case upon sound 
 principles of the law and at the same time to fortify it by preced- 
 ent. - 
 
 BuEE W. Jones. 
 
 Madison, Wis., August, 1896. 
 
TABLE OF CONTENTS. 
 
 CHAPTBP ,^^ 
 EVIDENCE IN GE^fBRAIl. 
 
 1. Evidence — Necessity lor exclusionary rules. 
 
 2. Evidence — Effect of jury system nti rules of. 
 
 3. Evidence — Definitions of, as ' 1 in municipal Ui.,,'. 
 
 4. The terms "evidence" and ' »f." 
 
 5. Demonstrative and moral e> ice. 
 
 6. Direct and circumstantial evid nee. 
 
 7. Competent and satisfactory evidence. 
 
 8. Other descriptive terms. 
 
 CHAPTER 2. 
 
 PRESUMPTIONS. 
 
 § 9. Presumptions — In general. 
 
 10. Presumptions of fact. 
 
 11. Presumptions of law — Conclusive and disputable. 
 
 12. Presumption of innocence. 
 
 13. Same — Applications of the presumption — Fraud and similar issues. 
 
 14. Same — As applied to the marriage relation. 
 
 15. Negligence. 
 
 16. Effect of the presumption of innocence as to the amount of evi- 
 
 dence. 
 
 17. Presumptions arising from the spoliation or fabrication or suppres- 
 
 sion of evidence. 
 
 18. Same— Documents. 
 
 19. Presumptions from withholding evidence. 
 
 20. Same — Refusal to produce. 
 
 21. Same — Qualifications of the rule. 
 
 22. Same — Effect of the presumption on the burden and degree of proof. 
 
 23. Presumptions as to knowledge of the law. 
 
 24. Effect of mistake as to matters of law. 
 
 25. Parties presumed to know the legal effect of their contracts. 
 
 26. Same — Misrepresentations as to law. 
 
 27. Presumption that men know the consequences of their acts. 
 
 28. Same — In civil cases. 
 
 29. Presumptions as to malice. 
 
VIU TABLE OF CONTENTS. 
 
 § 30. Presumptions as to regularity — General rnle. 
 
 31. Regularity of judicial proceedings — 'Jurisdiction. 
 
 32. Presumptions not allowed to contradict the record. 
 
 33. Limitations of the rule— Service of publication — Ministerial powers. 
 
 34. Regularity of proceedings subsequent to gaining jurisdiction. 
 
 35. Same — Federal courts. 
 
 36. Same — The rule as to Inferior courts. 
 
 37. Same — Courts of 'probate. 
 
 38. Same — As to judgments In other states. 
 
 39. Same — Collateral and direct proceedings, 
 
 40. Same — ^Awards of arbitrators. 
 
 41. Regularity of official acts. 
 
 42. Same. 
 
 43. Presumption of authoritjy from acting in official capacity. 
 
 44. Same — Not restricted to official appointments. 
 
 45. Performance of official duty. 
 
 46. Same — ^Acts of municipal officers. 
 
 47. Statutory presumptions of this class. 
 
 48. Presumptions of regularity In unofficial acts — In general. 
 
 49. Same — As to negotiable paper. 
 
 50. Presumptions that documents have been duly executed. 
 
 51. Dates — When presumed correct. 
 
 52. Presumptions as to the mailing and receipt of letters. 
 
 53. Same — Telegrams — ^Weight of the presumption. 
 
 54. Presumptions arising from partnership dealings. 
 
 55. Presumptions of regularity in acts of private corporations. 
 
 56. Same — General scope of the rule. 
 
 57. Miscellaneous presumptions from the general course of business. 
 
 CHAPTEE 3. 
 
 PRESUMPTIONS (Continued.) 
 
 5 58. Presumptions as to continuance of the existing state of things. 
 
 59. Presumptions as to sanity and insanity. 
 
 60. Presumption of continuance of life. 
 
 61. Presumptions of death after seven years absence. 
 
 62. No presumption that death occurred at a particular time. 
 
 63. When death may be Inferred from an absence of less than seven 
 
 years. % 
 
 64. Presumption of survivorship in common disaster. 
 
 65. Presumptions of payment from lapse of time. 
 
 66. Lapse of time not a bar, but evidence to raise the presumption. 
 
 67. Mere lapse of time less than twenty years not enough. 
 
 68. A less period than twenty years with other circumstances may suf- 
 
 fice. 
 
 69. The presumption — How rebutted. 
 
 70. Presumption of payment from usual modes of business— Receipts. 
 
 71. Cancellation of Instruments. 
 
TABLE OP CONTENTS. IX 
 
 § 72. Same subject — ^Application of payment to debts first due. 
 73 Settlement presumed from accepting note. 
 
 74. Presumption of ownership from possession. 
 
 75. The presumption of title from the possession of lands. 
 
 76. Presumptions as to grants and other sources of title. 
 
 77. The presumption not superseded by statutes of limitation. 
 
 78. Presumption that trustees have made proper conveyances. 
 
 79. Nature of the possession required. 
 
 80. Same — Changes in possession — Possession by tenant, etc. 
 
 81. The presumption — How rebutted. 
 
 82. Same — Disabilities — Nature of estate — What facts are relevant. 
 
 83. Presumptions as to the law of sister states. 
 
 84. Same Subject — Foreign law. 
 
 85. Contracts presumed to be legal. 
 
 86. Presumptions as to marriage. 
 
 87. Cohabitation and reputation to concur — Weight of presumption. 
 88 Presumption of marriage in civil and criminal issues. 
 
 89. No presumption arising from illicit cohabitation. 
 
 90. Other presumptions growing out of the marriage relation. 
 
 91. Same — Of coercion by the -husband. 
 
 92. Same subject — ^Nature and limits of the presumption. 
 
 93. Presumption of legitimacy. 
 
 94. Same — How rebutted. 
 
 95. Same — Conclusive, if sexual intercourse between husband and wife 
 
 Is shown. 
 86. Same — ^Relevant facts when sexual intercouse between husband 
 and wife is not shown. 
 
 97. The husband or wife not allowed to deny sexual intercourse. 
 
 98. Presumptions as to infants — Capacity to commit crime — Consent 
 
 to sexual intercourse and marriage. 
 
 99. Same subject — Testamentary capacity — Domicile — Necessaries — 
 
 Torts. 
 
 100. Presumption as to identity from name. 
 
 101. Conflicting presumptions — That of innocence prevails over other 
 
 presumptions. 
 
 102. Continued — Presumption of Innocence of a party overcomes the 
 
 presumption of Innocence of a stranger. 
 
 103. Innocence — Sanity — Weight of conflicting presumptions. 
 
 104. General rules as to presumptions. 
 
 CHAPTER 4. 
 
 JUDICIAL NOTICE. 
 
 § 105. Meaning of term. 
 
 106. Existence of domestic governments. 
 
 107. Existence of foreign governments — Flags — Seals of State — Foreign 
 
 war. 
 
 108. Territorial extent and subdivision— Counties— Towns— Cities, etc. 
 
TABLE OF CONTENTS. 
 
 109. Oflacers of the national and state governments. 
 
 110. SuViordlnate officers in other states— Notaries publla 
 
 111. Official signature and seals. 
 
 112. Laws of the forum — International law — Foreign treaties— Acts of 
 
 congress— Statutes of the state — Constitutions, 
 
 113. What are public statutes. 
 
 114. Bank and railway charters. 
 
 115. Municipal charters. 
 
 116. Ordinances and other acts of municipal bodies. 
 
 117. Character and' existence of the statute, a question for the court 
 
 118. Private statutes — Statutes of sister states. 
 
 119. Same — Exceptions to the rule. 
 
 120. Federal courts — State statutes. 
 
 121. The unwritten law. 
 
 122. Executive proclamations — Regulation of bureaus — Official reports 
 
 of public officers. 
 
 123. Customs and modes of business. 
 
 124. Courts — Officers of the court — Records — Terms. 
 
 125. Matters of history. 
 
 126. Facts relating to the currency. 
 
 127. Geographical features — Surveys — Plats — Distances — Modes of 
 
 Travel — Population — Local divisions of the state. 
 
 128. Matters of science and art — Nature ajid qualities of commem snib- 
 
 stances. 
 
 129. Invariable course of nature — Time — Course of Ssaaons — Duration of 
 
 Life — Instincts. 
 
 130. Meaning of words and phrases. 
 
 131. Abbreviations. 
 
 132. Facts not within the memory of the judge. 
 
 133. Facts of which the judge has special knowledge. 
 
 134. Facts of which jurors take judicial notice. 
 
 CHAPTER 5. 
 RELEVANCY. 
 
 § 135. Relevancy— In general. 
 
 136. The terms "admissibility^' and "relevant" not synonymous. 
 
 137. Logical connection between fact offered and fact to be proved. 
 
 138. Same — Illustrations of relevant facts. 
 
 139. Same, continued. 
 
 140. Acts between strangers or between a party and strangers. 
 
 141. Facts apparently collateral may become relevant — Custom — Cause 
 
 and effect. 
 
 142. Same — Knowledge — Intent. 
 
 143. Same — Proof of other crimes than the one ia Issue. 
 
 144. Same, continued. 
 
 145. Same — Such evidence — How limited. 
 
 146. Collateral facts to show good faith — Knowledge — Threats, etc 
 
TABLE OF CONTENTS. II 
 
 5 147. Facts apparently collateral to repel the inference of accident 
 
 148. Character — When relevant 
 
 149. Qualifications of the rule — ^Libel and slander. 
 
 150. Same — Nature of proof — Pleadings — Rumors. 
 
 151. Character — Actions for breach of promise of marriaga, 
 
 152. Same — Seduction and criminal conversation. 
 
 153. Same — Actions for bastardy. 
 
 154. Character in actions for fraud. 
 
 155. Same, continued. 
 
 156. Same — Homicide. 
 
 157. Character — Action for malicious prosecution. 
 
 158. Proof of good character. 
 
 159. Proof of financial standing — Exemplary damages. 
 
 160. Same — Compensatory damages. 
 
 161. Same — Financial standing of plaintiff. 
 
 162. Kode of proving financial standing. 
 
 163. Relevancy of facts apparently collateral — ^Negligence eases. 
 
 164. Same, continued. 
 
 165. Same, continued. 
 
 166. Relevancy of disconnected tacts to show defective machinery- 
 
 Railroad fires. 
 
 167. Same, continued. 
 
 168. Facts apparently collateral — Value of lands. 
 
 169. Same — Persional property — Services. 
 
 170. Direct proof of intent, motives and belief. 
 
 171. Evidence made relevant by that of adverse party. 
 
 172. Same — Rebuttal or explanation of irrelevant testimony. 
 
 173. General rules as to relevancy. 
 
 174. Province of judge and jury. 
 
 175. Same — Mixed questions of law and fact — Construction of writings 
 
 — Statutes, etc. 
 175o. The court decides questions of law — Criminal cases. 
 
 CHAPTER 6. 
 BURDEN OF PROOF. 
 
 5 176. Burden of proof — On whom does it lie? 
 
 177. Same — Shifting of the burden. 
 
 178. Same — Form of pleadings. 
 
 179. Same — Plaintiff generally has the burden — ^Exceptions. 
 
 180. How affected by form of issue — ^Whether affirmative or negative. 
 ISl. Burden as to particular facts lying peculiarly within the knowl- 
 
 ■ edge of a party. 
 
 182. Actions against common carriers — Telegraph companies. 
 
 183. Same, continued. 
 
 184. Same — Negligence — Setting of flres, etc. 
 
 185. Contributory negligence. 
 
S31 TABLE OF CONTENTS. 
 
 S 186. Burden In cases of bailment. 
 
 187. Innkeepers. 
 
 188. Insanity — Civil cases — Criminal. 
 
 189. Burden In probate of wills— Testamentary capacity. 
 
 190. Burden of proof as between persons In a fiduciary relation. 
 
 191. Same — In respect to wills. 
 
 192. Burden as to crimes — Fraud. 
 
 193. Burden in quo tvarranto proceedings. 
 
 194. Burden as to statutes of limitation. 
 
 195. Burden and weight of proof where crime is In Issue itt civil cases. 
 
 196. Statutes as to burden of proof. 
 
 197. The right to begin and reply. 
 
 198. Same, continued. 
 
 CHAPTER 7. 
 BEST EVIDENCH. 
 
 J 199. Rule as to best evidence. 
 
 200. Primary and secondary evidence. 
 
 201. Application of the rule — Private writings. 
 
 202. The rule does not exclude evidence unless objection Is made. 
 
 203. Qualifications of the rule — Independent and collateral facts. 
 
 204. Same — Corporate acts. 
 
 205. Appointment and acts of public ofllceirs — Writings not producible, 
 
 etc. 
 
 206. Multiplicity of documents — General results. 
 
 207. Parol proof of admissions concerning writings — ^English rule. 
 
 208. Same — Rule in the United States. 
 
 209. Same — Copies not the best evidence — ^Duplicates. 
 
 210. The general rule as applied to telegrams — Mode of proof. 
 
 211. Communications by telephone. 
 
 212. Proof of lost Instruments. 
 
 213. Same — Diligence necessary before secondary evidence Is allowed. 
 
 214. Same — ^Further Illustrations. 
 
 215. Importance of documents as affecting diligence — Time of search. 
 
 216. Mode of proving loss — Hearsay admissions — Affidavit. 
 
 217. Documents beyond the jurisdiction of the court — Destruction of 
 
 documents, etc. 
 
 218. Effect of notice to produce. 
 
 219. Object of notice to produce. 
 
 220. Requisites of notice. 
 
 221. Notice to produce — On whom served. 
 
 222. Effect of non-production. 
 
 223. When notice to produce is not necessary. 
 
 224. Same, continued. 
 
 225. Duplicates — Recorded deeds. 
 
TABLE OF CONTENTS. Xiii 
 
 \ 226. Effect of the production of papers upon notice. 
 
 227. Proof of the contents of lost documents. 
 
 228. Degrees of secondary evidence. 
 
 229. Same — Cases illustrating the American rule. 
 
 230. Same — Parol evidence not allowed when the law requires copies- 
 
 Original always admissible. 
 
 231. Cross-examinatiooi of witnesses as to writings. 
 
 CHAPTEE 8. 
 SUBSTANCE OF ISSUE. 
 
 I 232. Common-law rules as to substance of the issue. 
 
 233. The modern rules as to substance of the issue — Amendments. 
 
 234. Same, continued. 
 
 CHAPTER 9. 
 
 ADMISSIONS. 
 
 i 235. Admissions — Confessions — Declarations of a party In his owti be- 
 half inadmissible. 
 
 236. Such statements are evidence for the adverse party — Why admis- 
 
 sions competent. 
 
 237. Admissions by real and nominal parties. 
 
 238. Admissions may be made by those not parties if identified In In- 
 
 terest. 
 
 239. Admissions by those in privity of interest — Grantor and grantee. 
 
 240. Same, continued. 
 
 241. Same — ^Limitations upon the rule. 
 
 242. Admissions of ancestor against heir. 
 
 243. Admissions — ^Landlord and tenant. 
 
 244. AdmissiouB by former owners of personal property. 
 
 245. Same — Real and personal property. 
 
 246. Same — Strict rule Ip some iurisdlctions. 
 
 247. Same — Declarations of former owners of choses in action. 
 
 248. Declarations of persons having a joint interest — Partners. 
 
 249. Same — Statutes of limitation as affecting admissions of partners. 
 
 250. Admissions after dissolution of partnership. 
 
 251. Partnership to be proved before admissions are received. 
 
 252. Admissions by joint ccintractors, not partners. 
 
 253. Declarations by persons having a mere community of Interest. 
 
 254. Declaration by wrong-doers — Conspiracy. 
 
 255. Declarations of agents. 
 
 256. Same — Effect of such declarations. 
 
 257. Admissions by attorneys. 
 
 258. Same — Casual statements — Informal admissiona. 
 
 259. Same — Different actions or trials. 
 
XIV TABLE OF CONTENTS. 
 
 § 260. Admissions of husband and wife. 
 
 261. Same — Power to make admissions — How inferred. 
 
 262. Same — In actions for divorce. 
 
 263. Admissions by persons referred to. 
 
 264. Effect of consenting to pay on condition affidavit Is made. 
 
 265. Admissions by interpreters. 
 
 266. Declarations of persons acting in representative capacity. 
 
 267. Admissions by public corporations. 
 
 268. Admissions by private corporations. 
 
 269. Written admissions — Letters. 
 
 270. Other writings — Corporate records. 
 
 271. Same — Partnership books. 
 
 272. Admissions in pleadings. 
 
 273. Same, continued. 
 
 274. Admissions in pleadings — When conclusive. 
 
 275. Estoppel by conduct. 
 
 276. Same — Corporations — Copartners — ^Husband and wife. 
 
 277. Same — ^When admissions are in good faith and by mistake. 
 
 278. Same — Erection of improvements — Boundary lines. 
 
 279. Same — The act must be calculated to mislead and must actually 
 
 mislead. 
 
 280. Who may claim benefit of estoppel. 
 
 281. Estoppel by deed. 
 
 282. Same — Title subsequently acquired — ^Mutuality and privity. 
 
 283. Qualifications as to mefe general recitals — Other qualifications of 
 
 general rule. 
 
 284. As between landloid and tenant. 
 
 285. As between others holding subordinate title — Bailees, etc 
 
 286. Acceptance of bills of exchange. 
 
 287. Admissions implied from conduct. 
 
 288. Same — ^Repairing defective machinery or highways. 
 
 289. Admissions may be implied from silence. 
 
 290. Same — ^No admission from silence at judicial proceeding. 
 
 291. Offers of compromise. 
 
 292. Effect of paying money into court. 
 
 293. The whole statement or admission to be received 
 
 294. Same — ^Written admissions. 
 
 295. Weight of admissions. 
 
 296. Same, continued. 
 
 CHAPTER 10. 
 HEARSAY. 
 
 5 297. Definition — Hearsay evidence — Reasons for Its exclusloa. 
 
 298. Hearsay may relate to what is done or written as well as to what 
 
 Is spoken. 
 
 299. Hearsay may Include things stated under oath or against interest. 
 
 300. Statements apparently hearsay may be original evidence. 
 
TABLE OF CONTENTS. XV 
 
 301. Matters of public and general interest 
 
 302. Distinction between public and merely general rights. 
 
 303. Reputation as to private boundaries excluded in England. 
 
 304. Same — Relaxation of the rule In the United States. 
 
 305. Declarations as to particular facts concerning private boundaries 
 
 not admissible. 
 
 306. Declarations of surveyors. 
 
 307. Maps relating to subjects of public or general interest. 
 
 308. Ancient documents in support of ancient possession — Their cus- 
 
 tody. 
 
 309. Same — Documents to come from the proper custody. 
 
 310. Declarations must have been made after the controversy arose. 
 
 311. Same — meaning of the rule — Lis mota. 
 
 312. Declarations as to pedigree — ^Reasons for the exception. 
 
 313. Same — Declarant's relationship — How proved — Particular facta. 
 
 314. Are the declarations limited to cases where pedigree is the direct 
 
 subject of the suit. 
 
 315. Acts and conduct of relatives admissible as well as declarations — 
 
 Written declarations. * 
 
 316. Same — Family recognition of writings and records. 
 
 317. Weight of such testimony. 
 
 318. Declarations only admissible after death of the declarant. 
 
 319. Entries in the course of business by deceased persons. 
 
 320. Same — Principle extended to declarations by persons still living. 
 
 321. Recollection of the fact by the person making the entry. 
 
 322. Entries by a party himself. 
 
 323. Declarations of deceased persons against interest — In general. 
 
 324. Same — The declaration must be against pecuniary or proprietary 
 
 Interest. 
 
 325. SuflScient if the entries are prima facie against interest. 
 
 326. Same — Evidence of collateral facts. 
 
 327. Rule when declaration is made by an agent. 
 
 328. Declarant need not have actual knowledge of the transaction. 
 
 329. Such declarations inadmissible to prove contracts. 
 
 330. General rules on the subject. 
 
 331. Dying declarations. 
 
 332. Limited to cases of homicide and when made in expectation of 
 
 Impending death. 
 
 333. Declarant must have been competent to testify. 
 
 334. Declarations must be confined to the homicide. 
 
 335. Form of the declaration — General rules. 
 
 336. Evidence of witnesses given in former action or on former trial. 
 
 337. Exact identity of the parties not necessary. 
 
 338. Parties should be substantially the same or in privity. 
 
 339. Form of proceedings may be different. 
 
 340. The opportunity of cross-examination on the former trial. 
 
 341. Death of the former witness — Relaxation of the rule. 
 
 342. Same — ^Absfence from state — Other disability — Criminal cases. 
 
 343. Mode of proving former testimony — Refreshing memory. 
 
 b 
 
XVI TABLE OF CONTENTS. 
 
 CHAPTER 11. 
 RES GESTAE. 
 
 § 34?. Res gestae — ^Meaning of the term — Illustrations. 
 
 345. Mere narrations not admissible. 
 
 346. C5ases in which the rule is relaxed. 
 
 347. Time through which res gestae may extend. 
 
 348. The statements or acts must be part of a transaction. 
 
 349. Declarations as to bodily feelings. 
 
 350. Declarations showing motive or intent. 
 
 351. Declarations by possessor of personal property. 
 
 352. Declarations by one in possession of land — When admitted in dis- 
 
 paragement of title. 
 
 353. Same — Possession must be shown. 
 
 354. Declarations proper to show character of possession — Not to de- 
 
 stroy record title. 
 
 355. Declarations as to boundary lines. 
 
 356. Declarations of agents. 
 
 357. Declarations by agents of corporations. 
 
 358. General rule. 
 
 CHAPTER 12. 
 OPINIONS. 
 
 § 359. Opinions In general Inadmissible. 
 
 360. Exceptions to the general rule — Opinions of ordinary witnesses. 
 
 361. Same— Identity. 
 
 362. Same — Speed of railroad trains. 
 
 363. Same — Values. 
 
 364. Same — Sanity. 
 
 385. Same-^As to sanity in will cases. 
 
 366. Same — In general — Conclusion. 
 
 367. Expert testimony — Ground of admissioi 
 
 368. Same^— Proof of qualifications of experts. 
 
 369. Same — A preliminary question for the court. 
 
 370. Mode of examination — Hypothetical questions. 
 37i, Hypothetical questions to be based upon proof. 
 
 372. The expert not to decide questions of fact. 
 
 373. Same, continued. 
 
 374. Opinions based upon testimony heard or read by the expert. 
 
 375. Opinions based on personal knowledge. 
 
 376. Opinions based on hearsay — Conclusions of law, etc. 
 
 377. Form of hypothetical questions. 
 
 378. Physicians and surgeons. 
 
 379. Same — Testimony of physicians and others as to poisons. 
 
 380. Mechanics and machinists as experts. 
 
 381. Expert testimony as to railroads and their management. 
 
 382. Experts in agriculture. 
 
TABLE OF CONTENTS. XVII 
 
 383. Experts In Insurance matters. 
 
 384. Illustrations of expert testimony by surveyors and engineers. 
 
 385. Opinions of nautical men. 
 
 386. Miscellaneous illustrations. 
 
 387. Expert testimony as to values. 
 
 388. Opinions as to amount of damages. 
 
 389. Cross-examination of experts — Latitude allowed, 
 
 390. Infirmity of expert testimony. 
 
 391. Same, continued. 
 
 392. Expert testimony — ^Wten valuable. 
 
 CHAPTER 13. 
 REAL EVIDENCE. 
 
 i 393. Real evidence — In general. 
 
 394. Same — Tbe ancient practice. 
 
 395. Inspection other than by the court or jury. 
 
 396. Inspection of persons in personal injury cases. 
 
 397. Same, continued. 
 
 398. Inspection by the jury — Personal injury cases. 
 
 399. Inspection of articles by jury. 
 
 400. Inspection of person and articles in criminal cases. 
 
 401. Inspection as proof of resemblance — ^Race — Age, etc 
 
 402. Effect of non-production of real evidence. 
 
 403. Experiments and tests in the presence of the jury. 
 
 404. View — The former practice. 
 
 405. Statutes regulating view. 
 
 406. View discretionary. 
 
 407. When view may be granted. 
 
 408. Is the view evidence in the case? 
 
 409. Same, continued. 
 
 410. Experiments out of court. 
 
 411. Models — Diagrams^Photographa. 
 
 CHAPTER 14. 
 STATUTE OP FRAUDS. 
 
 5 412. Grounds on which evidence is excluded by statute of frauds. 
 
 413. As to the conveyance of interests in land. 
 
 414. The statute as affecting leases. 
 
 415. Proof of surrender of interests in land. 
 
 416. Sun-ender by operation of law. 
 
 417. Cancellation of instruments creating interests in land. 
 
 418. Trusts — How proved — Need not be created by writing. 
 
 419. The trust to be proved by writing. 
 
 420. Exception as to resulting trusts. 
 
 421. Same, continued. 
 
XVlll TABLE OP CONTENTS. 
 
 § 422. Same — Mode of proving the trust — Amount of evidence. 
 
 423. Statutes limiting resulting trusts. 
 
 424. Same — Object of the statute. 
 
 425. Proof of trusts between tliose holding fiduciary relatlona 
 
 426. Wills — Procuring devise by fraud. 
 
 427. Proof of guaranty. 
 
 428. Sale of goods. 
 
 429. What the memorandum is to contain. 
 
 430. Same, continued. 
 
 431. Subsequent modifications by parol — Fraud — Mistaka 
 
 432. Reformation — Part performance. 
 
 433. Same — Original agreement must be proved. 
 
 CHAPTER 15. 
 
 PAROL EVIDENCE TO EXPLAIN WRITINGS. 
 
 § 434. Parol evidence inadmissible to vary written instruments — Reasons 
 for the rule. 
 
 435. The rule does not prevent proof of fraud — Sealed and unsealed in- 
 
 struments. 
 
 436. Illegality of contract may be shown — Incapacity. 
 
 437. As to mistakes of fact — Reformation of contracts. 
 
 438. Mistakes as to dates. 
 
 439. Proof of independent or collateral contracts. 
 
 440. Parol evidence, when the writing is inoompleteL 
 
 441. Sales of personal proi>erty. 
 
 442. Parol proof of subsequent agreement 
 
 443. Same — ^As to specialties. 
 
 444. Subsequent agreement as to contracts within the statute of frauds. 
 
 445. Same — Tendency of decisions in the United States. 
 
 446. To show that instruments apparently absolute are only securities. 
 
 447. Same — Real intention of the parties to be ascertained. 
 
 448. Not limited to deeds and mortgages. 
 
 449. Rule as to parol evidence not applicable to strangers to the instru- 
 
 ment. 
 
 450. Parol evidence to identify the subject matter. 
 
 451. Same — Use of property — Identifying parties. 
 
 452. Same — Further illustrations — Greneral rule. 
 
 453. Proof of surrounding facts. 
 
 454. Such evidence only received when the language is of doubtful im- 
 
 port. 
 
 455. Proof of meaning of words. 
 
 456. Same — Intention — Meaning of words and phrasea 
 
 457. Usages of trade. 
 
 458. Same — Principal and agent. 
 
 459. Proof of usage — Bills of lading— Insurance 
 
 460. Same — Contracts for services. 
 
 461. Proof of customs between landlord and tenant — Other contract*. 
 
TABLE OF CONTENTS XIX 
 
 § 462. General requisites of usages — Must be reasonable. 
 
 463. The usage must be an established one. 
 
 464. The usage must be known. 
 
 465. The usage must be consistent with the contract. 
 46B. Proof that the usage is general. 
 
 467. To admit parol proof the usage must be lawful. 
 
 468. Parol evidence as to consideration. 
 
 469. Proof of consideration in deeds. 
 
 470. Same — In cases of fraud. 
 
 471. Parol proof as to execution and delivery. 
 
 472. Parol proof of latent ambiguities. 
 
 473. Parol evidence not allowed in cases of patent ambiguities. 
 
 474. Patent ambiguity — How ascertained — Inaccuracies. 
 
 475. Parol evidence as to wills — In general. 
 47^. Wills — Parol evidence to identify property. 
 
 477. Wills — Evidence to identify legatee. 
 
 478. The rule where the description is more applicable to one subject 
 
 or person than another. 
 
 479. Wills — Meaning of words and terms — Proof in case of latent am- 
 
 biguity — Declarations of testator. 
 
 480. Where there is no latent ambiguity, declarations of testator re- 
 
 jected. 
 
 481. Proof of declarations of testator — Time of making. 
 
 482. Same — To show mental condition, etc. 
 
 483. Same — Declarations — How limited. 
 
 484. Parol proof of declarations as to revocation — Lost wills. 
 
 485. Parol evidence to explain deeds — Latent ambiguities 
 
 486. Parol evidence inadmissible to prove reservation. 
 
 487. Parol evidence as to warranties. 
 
 488. Same, continued. 
 
 489. As to deficiency of land in deeds. 
 
 490. Parol proof as to acknowledgments. 
 
 491. Parol evidence to explain receipts. 
 
 492. Effect of receipt when not explained. 
 
 493. Warehouse receipts. 
 
 494. Parol evidence as to bills and notes. 
 
 495. Qualifications of the general rule as applied to negotiable paper. 
 
 496. Indorsements on negotiable paper. 
 
 497. Same — Qualifications. 
 
 498. Bills of lading — Contractual stipulations — ^Receipts. 
 
 499. Parol evidence as to mortgages. 
 
 CHAPTER 16. 
 
 DOCUMENTARY EVIDENCE. 
 
 § 500. Documentary evidence — Definitions, etc. 
 
 501. Proof of statutes of the state. 
 
 502. Proof of foreign laws — ^Unwritten law, 
 
 503. Same, continued. 
 
XX TABLE OF CONTENTS. 
 
 § 504. Proof of laws of sister states — Statutes. 
 
 505. 9ame, continued. 
 
 506. Same — Proof of the unwritten law. 
 
 507. Proof of acts of state — Proclamations — Legislative journals. 
 
 508. Official registers — Books of public officers. 
 
 509. Proof of facts contained in official registers. 
 
 510. Registers of marriage, birth and death. 
 
 511. Same, continued. 
 
 512. Ship registers. 
 
 513. Eog-hooks as evidence. 
 
 514. Records of municipal corporations. 
 
 515. Samfi — How authenticated and proved. 
 
 516. Records of private corporations — For what purposes admitted. 
 617. Same — In actions on stock subscriptions and other actions. 
 
 518. Same — As admissions — As account books. 
 
 519. Recording acts — Conveyances — Documents recorded when admis- 
 
 sible. 
 
 520. Same — ^Requisites — Certificates of acknowledgment — Defects in. 
 
 521. Defective records — Evidence for some purposes. 
 
 522. Public documente — Provable by copies — Corporate records. 
 
 523. Copies of records — Different classes. 
 
 524. Examined and certified copies as evidence. 
 
 525. Effect of copies as evidence — Cannot exclude originals — By whom 
 
 certified. 
 
 526. Proof of execution of documents. 
 
 527. Proof of attested documents — ^Attesting witnesses to be called. 
 
 528. Exceptions to the general rule — ^Absence or disability of witnesses. 
 
 529. Diligence necessary, if witness Is absent. 
 
 530. Exception where adverse party claims under the document. 
 
 531. Exception — Ancient documents. 
 
 532. Same — Office bonds, etc. 
 
 533. Best evidence after non-production of subscribing witnesses. 
 
 534. Same, continued. 
 
 535. Same — Absence of subscribing witness, etc. 
 
 536. Sam& — ^Mode of proving execution by subscribing witnesses. 
 
 537. Statutes affecting proof of documents — Recording acts, etc 
 
 538. Non-judicial records — Proof of — Federal statutes. 
 
 539. Same — Department records — Federal statutes. 
 
 540. Proof of records of public departments — Copies — Certificates. 
 
 541. Same — Effect of these statutes. 
 
 542. Same — Certificates. 
 
 543. Mere certificates not evidence. 
 
 544. Exceptions to the rule that mere certificates are not evidence. 
 
 545. Proof of handwriting — Writer need not be called. 
 
 546. One who has seen another write is competent to testify as to his 
 
 handwriting. 
 
 547. Knowledge of handwriting may be gained by correspondence. 
 
 548. Such knowledge may be gained in the course of business. 
 
 549. Value of the testimony — How effected by the means of knowledge. 
 
 550. Use of writing written at the trial for comparison. 
 
TABLE OF CONTENTS. XXi 
 
 551. Comparison of handwriting — English rule. 
 
 552. Same — Conflicting views in the United States. 
 
 553. Comparison of simulated signatures — Proof of Identity. 
 
 554. Exceptions — Allowing comparison of hands. 
 
 555. Writings used for comparison must he shown to he genuine. 
 
 556. Proof of handwriting— Expert evidence. 
 
 557. Effect of alteration of instruments — What constitutes alteration. 
 
 558. Same rule although the change is to the disadvantage of the 
 
 wrongdoer. 
 
 559. Immaterial alterations — Conflicting views. 
 
 560. Test of the materiality of the alteration. 
 
 561. Implied consent to alterations — Blanks. 
 
 562. Unauthorized filling of blanks — Iteeds. 
 
 563. Presumption in case of alteration — English rule. 
 
 564. Same— Conflicting views in the United States. 
 
 565. Question of alteration is for the jury. 
 
 566. Fraudulent intent — Alteration of negotiable paper. 
 
 CHAPTER 17. 
 DOCUMENTARY EVIDENCE— Continued. 
 
 567. Books of account as evidence. 
 
 588. Same — Statutes — Of what transactions books are evidence. 
 
 569. Books should be those of original entry. 
 
 570. Form of books of account. 
 
 571. Books are to be those used in the course of business. 
 B72. Time of making the entries. 
 
 573. Suppletory oath. 
 
 574. Account books not evidence of collateral facts. 
 
 575. Degree of credit to be given to books of account. 
 
 576. Defects in books as affecting admissibility. 
 
 577. Impeachment of books of account — They must be produced in court. 
 
 578. Scientific books. 
 
 579. Use of scientific books in the examination of experts. 
 
 580. Reading from scientific books in argument to the jury. 
 
 581. Admissibility of photographs. 
 
 582. Newspapers — ^When admissible. 
 
 583. Proof and effect of letters. 
 
 584. Admissibility of facts In histories. 
 
 585. Effect of judgments — General rule. 
 
 586. As to what persons judgments are conclusive. 
 
 587. Effect of judgments on persons in privity with each other. 
 
 588. Admissibility of judgment as against strangers. 
 
 589. Judgments in civil cases, no bar in criminal cases. 
 
 590. Judgments admissible against third persons for incidental pur- 
 
 poses. 
 
 591. Judgments against principals in actions against their sureties. 
 
 592. Sam« — Other classes of bonds. 
 
 593. Judgments — When admissible as against third persons who are 
 
 liable tp wato indemnity. 
 
xii tabijE op contents. 
 
 594. Judgment must be final. 
 
 595. Finality of judgments— Must be on the merits. 
 
 596. Effect of nonsuit or discontinuance or appeal. 
 
 597. Conclusive only as to matters in issue. 
 
 598. As affected by form of action. 
 
 599. Extrinsic evidence to identify the issue. 
 
 600. Same, continued. 
 
 601. Proof that issues are the same — Burden. 
 
 602. Effect of judgment where cause wf action Is different. 
 
 603. Effect of judgment — General issue. 
 
 604. Matters which might have been litigated in a former suit. 
 
 605. Same, continued. 
 
 606. Judgments in rem as evidence. 
 
 607. Same — Judgments of divorce. 
 
 608. Same, continued. 
 
 609. Judgments in probate — Conclusive effect of — Proof of death, etc. 
 
 610. Same — Jurisdiction. 
 
 611. Collateral proof to show want of jurisdiction. 
 
 612. Contrary view — Qualifications of general rule. 
 
 613. Inferior courts — Jurisdiction to appear on record. 
 
 614. Merits of foreign judgments — Not open to inquiry. 
 
 615. Same — Conflicting views. 
 
 616. Foreign judgments — May be impeached for fraud or want of JurlS' 
 
 diction. 
 
 617. iludgments of sister states — Want of jurisdiction may be shown. 
 
 618. Same — Regularity presumed — Proof of fraud. 
 
 619. Domestic judgments not impeachable by parties for fraud. 
 
 620. Judgments — How proved — Should be complete. 
 
 621. Proof of parts of record — Verdict. 
 
 622. Proof of judgments in courts where rendered. 
 
 623. Proof of records of courts la- the same state. 
 
 624. Mode of proof of foreign records. 
 
 625. Same — Mode of authentication. 
 
 626. Proof of records of sister states — Federal statutes. 
 
 627. Proof of judgments in federal courts. 
 
 628. Authentication — Attestation by clerk. 
 
 629. Same — Certificate of judge. 
 
 630. Same — Seal. 
 
 631. Return of ofBcers — ^Not evidence of collateral facts. 
 
 632. As between parties, the return cannot be collaterally attackefl. 
 
 633. Same — How far conclusive upon the oflScer — ^As to strangers. 
 
 CHAPTER 18. 
 DEPOSITIONS. 
 
 I 634. Depositions not admissible at common law. 
 
 635. Depositions received in chancery practice — To perpetuate tastl- 
 
 mony — De bene esse. 
 
 636. Depositions under statutes — On commission — De tene esse. 
 
TABLE OF CONTENTS. XxilJ 
 
 DEPOSITIONS m FEDERAI, COUBTS. 
 
 637. Depositions de bene esse In the federal courts. 
 
 638. Wbose depositions may be taljen under federal statutes. 
 639 Before whom depositions may be taken — The notice. 
 
 640. The notice — Time of giving. 
 
 641. Same — ^Names of witnesses — Of the court and officer, 
 
 642. Service of the notice. 
 
 643. Mode of taking. 
 
 644. The certificate. 
 
 645. Waiver of objections. 
 
 646. Same — Objections — When made. 
 
 647. Depositions dedimus potestatem. 
 
 648. Procedure in obtaining the commission. 
 
 649. Meaning of the statutory words "common usage." 
 
 650. Control over depositions. 
 
 651. Several commissioners may act — Taking the oath. 
 
 652. Miscellaneous. 
 
 653. Compelling attendance and production of papers. 
 
 654. Depositions in equity trials. 
 
 655. Evidence to be taken by commissioners, masters, etc. — ^Whether 
 
 relevant or not. 
 
 DEPOSITIONS IN STATE COURTS. 
 
 656. peposltlons under state statutes — General mode of taking. 
 
 657. Same, continued. 
 
 658. Statutes to be complied with. 
 
 659.' How compliance with the statute Is to appear. 
 
 660. Same, continued. 
 
 661. Notice of taking — Time. 
 
 662. Same — Names of witnesses, officer, etc. 
 
 663. Notice — On whom" served. 
 
 664. Same — Place of taking. 
 
 665. Mode of taking — Reducing to writing. 
 
 666. Interpreters. 
 
 667. Persons competent to take depositions. 
 
 668. Comity between states. 
 
 669. Mode of taking and returning depositions. 
 
 670. Irregularities — As to names, etc. 
 
 671. Waiver of objections. 
 
 672. Same — Objections to the authority of the commissioner. 
 
 673. When objections are to be made. 
 
 674. Mere general objections. 
 
 675. Renewal of objections — Waiver. 
 
 676. Objections to the substance — When made. 
 
 677. Statutory provisions as to objections. 
 
 678. Depositions not admissible unless cause therefor continues. 
 
 679. Same — Modifications of the rule — Statutes. 
 
 680. Continuance of the cause — How Inferred. 
 
XXIV TABLE OF CONTENTS. 
 
 § 681. Use In other actions. 
 
 682. Use of depositions on second trial. 
 
 683. Issues and parties to be substantially the same. 
 
 684. Control and use of depositions. 
 
 685. Use of portions of depositions. 
 
 686. Suppression of depositions. 
 
 687. Grounds for suppression. 
 
 688. Same — ^Where party Is deprived of right of cross-examination. 
 
 689. Same — ^Refusal of witness to answer. 
 
 690. Suppression for non-compliance with statute — Irregularities. 
 
 691. Suppression of parts of deposition. 
 
 692. Same — Miscellaneous. 
 
 693. Amendments. 
 
 694. The certificate. 
 
 695. The caption. 
 
 696. Adjournments. 
 
 697. Presence of party when deposition Is taken on commission. 
 
 698. Retaking depositions. 
 
 699. Exhibits to depositions. 
 
 700. Depositions taken in foreign countries. 
 
 701. Depositions to perpetuate testimony. 
 
 CHAPTER 19. 
 DISCOVERT. 
 
 § 702., Bill of discovery — General nature of. 
 
 703. Statutory discovery. 
 
 704. Same — Practice in federal courts. 
 
 705. Effect of statutes upon former remedy. 
 
 706. Scope of examination. 
 
 707. Same — Examination under the control ot the court 
 
 708. Privilege — Self-crimination. 
 
 709. Inspection of books and papers. 
 
 710. Inspection of documents in the United States courts. 
 
 711. Statutory discovery of books and papers in state courts. 
 
 CHAPTER 20. 
 COMPETENCY OP WITNESSES. 
 
 § 712. Competency of witnesses — Oath. 
 
 713. Objection to competency for want of belief — ^How raised. 
 
 714. Former rule — How changed by statute. 
 
 715. Oath or equivalent still required. 
 
 716. Infamy as a ground of incompetency. 
 
 717. Same — Effect of crime committed in foreign countries. 
 
 718. Disability — How proved — How removed. 
 
 719. Incapacity as a ground of Incompetency — Idiots — Mutes. 
 
TABLE OP CONTENTS. XXV 
 
 720. Incapacity — ^Want of age. 
 
 721. Mode of determining capacity of children — ^The tests to be applied. 
 7'22. Degree of credit to be given such testimony. 
 
 723. Want of capacity — Insanity. 
 
 724. Same — Drunkenness — Defective memory, etc. 
 
 725. Interest in the result. 
 
 726. Nature of the interest necessary to disqualify — How removed. 
 
 727. Parties formerly Incompetent witnesses. 
 
 728. Exceptions to the ancient rule — Practice in equity. 
 
 729. Parties were not compelled to testify for the adversary — Rule in 
 
 criminal cases. 
 
 730. Effect of statutes on competency of parties as witnesses. 
 
 731. Same, continued. 
 
 732. Competency of parties — Corporators. 
 
 733. Husband and wife incompetent as witnesses. 
 
 734. Same — The rule in criminal cases. 
 
 735. Same — Confidential communications. 
 
 736. Duration of disability. 
 
 737. Matters which may be disclosed after marriage relation ceases. 
 
 738. Same — Actions for criminal conversation. 
 
 739. Waiver. 
 
 740. Exceptions — Agency. 
 
 741. Proof of the agency. 
 
 742. Evidence of husband and wife tending to criminate or contradict 
 
 the other — Collateral proceedings. 
 
 743. Other exceptions to the general rule — Divorce. 
 
 744. The marriage to be proved by the party objecting. 
 7i5. Effect of statutes on the subject. 
 
 746. Same, continued. 
 
 747. General tendency of the statutes. 
 
 748. Attorneys not allowed to disclose confidential communications. 
 
 749. Same — The privilege that of the client — ^Not confined to cases 
 
 pending. 
 
 750. Same — Duration — Client may claim the privilege — Extends to 
 
 writinigs. 
 
 751. Communication must be made in the nature of professional inter- 
 
 course. 
 
 752. Same — Privilege does not extend to information gained in a casual 
 
 manner. 
 
 753. Privilege not allowed in furtherance of crime. 
 
 754. Attorney may be witness for client — Litigation between attorney 
 
 and client, etc. 
 
 755. Instructions for drawing wills. 
 
 756. Waiver of the privilege. 
 
 757. Statutes on the subject. 
 
 758. Communications to clergyman. 
 
 759. Communications between physician and patient — Statutes. 
 
 760. Confined to information gained in the performance of professional 
 
 duty. 
 
XXVI TABLE OP CONTENTS. 
 
 § 701. Waiver of the privilege. 
 
 762. Privileged communications as to affairs of stata. 
 
 763. Arbitrators. 
 
 704. Judges as witnesses. 
 
 765. Privilege as to transactions in the jury room — Grand jurors, 
 
 766. Same — Petit jurors — When juror may he witness. 
 
 767. Evidence showing misconduct of jurors. 
 
 768. Accomplices. 
 
 769. Same— Credibility. 
 
 770. What facts may serve as corroboration of accomplices. 
 
 771. Telegrams not privileged — Other confidential statements. 
 
 772. Competency of witnesses as to transactions with deceased persons 
 
 — Statutes. 
 
 773. Reasons for statutes — Limitations — Persons affected. 
 
 774. General scope of statutes — Meaning of their terms. 
 
 775. Nature of the disqualifying interest. 
 
 776. When the disability arises — Assignees — Representatives. 
 
 777. Nominal and real parties. 
 
 778. Mere relationship does not disqualify. 
 
 779. Donees — ^Heirs — Sureties, etc, 
 
 780. Waiver — Construction of statutes. 
 
 781. Waiver by examining adverse party — Depositions. 
 
 782. Same — Former trials. 
 
 783. Waiver hy calling other witnesses to the transaction or communi- 
 
 cation. 
 7^4. Waiver by cross-examination of adverse party. 
 
 785. Meaning of term "transaction." 
 
 786. Same, continued. 
 
 787. Transactions with partners. 
 
 788. Transactions with agents. 
 
 789. Agents representing corporations. 
 
 790. The rule when third persons are present 
 
 791. The rule in respect to account books. 
 
 792. Further applications of the rule — Wills. 
 
 793. Co-parties — Trustees. 
 
 794. EJxclusion of persons under whom others claim title. 
 
 795. Statutes excluding any matter occurring before the death. 
 
 796. Mode of ascertaining competency of witnesses — Voir dire. 
 
 CHAPTER 21. 
 ATTENDANCE AND EXAMINATION OF WITNESSES. 
 
 § 797. Attendance of witnesses — Subpasna. 
 
 798. Fees of witnesses. 
 
 799. Mode of compelling attendance. 
 
 800. Refusal to testify. 
 
 801. Production of books and papers — Subpccna duces tecum. 
 
 802. Who may be compelled to produce documents. 
 
TABLE OP CONTENTS. XXVll 
 
 § 803. Practice ■where a witness Is confined — Writ of habeas corpus ad 
 testificandum. 
 
 804. Recognizance by witnesses. 
 
 805. Privileged from arrest and service of process. 
 
 806. Same — Extent and nature of the privilege. 
 
 807. Exclusion of witnesses from court room. 
 
 808. yiolatlon of the order excluding witnesses — Effect of. 
 
 809. Order of proof — Discretion of court — Evidence not to be given 
 
 piecemeal. 
 
 810. Same — Relaxation of the rule discretionary — Illustrations. 
 
 811. Same — Discretion of court — ^R«view. 
 
 812. Privilege allowed counsel as to order of proof. 
 
 813. Must the relevancy of the proof appear at the time? 
 
 814. Further illustrations of discretion of the court in conducting trial. 
 
 815. Questions by judge — Comments by judge — protection of wit- 
 
 nesses — Striking out evidence, etc. 
 
 816. Leading questions — General rule. 
 
 817. Exceptions to the rule — Hostile witnesses — Introductory questions. 
 
 818. Same — As to facts not remembered — For purposes of contradiction. 
 
 819. Leading questions — Discretion of the court. 
 
 820. Cross-examination — On subject matter of direct examination. 
 
 821. Further discussion and qualification of the rule. 
 
 822. Same — Details may be called for — Questions showing improbability 
 
 of direct testimony. 
 
 823. Facts that are part of res gestm may be shown. • 
 
 824. Leading questions may be asked — As to new matter. 
 
 825. How long right to cross-examine continues. 
 
 826. More liberal rule as to relevancy on cross-examination. 
 
 827. Witness cannot be contradicted as to wholly irrelevant matter. 
 
 828. Partiality of witness relevant — On that subject cross-examiner 
 
 not concluded by answer — Bias — Hostility — Interest — State of 
 feeling, etc. 
 
 829. Contradicting the witness to prove bias. 
 
 830. Questions tending to degrade the witness, as affecting his credi- 
 
 bility. 
 
 831. Same subject — Conflict — English rule. 
 
 832. Same subject — View that the evidence should be received. 
 
 833. Same — Contrary view. 
 
 834. View that collateral questions as to specific misconduct may be 
 
 allowed or rejected in the discretion of the court. 
 
 835. iSame — Such questions admissible when material to the issue. 
 
 836. Cross-examination of party. 
 
 837. Same — In criminal cases. 
 
 838. Cross-examination as to arrests and indictments. 
 
 839. Cross-examination as to conviction of crimes. 
 
 840. Independent evidence to impeach credibility by proof of specific 
 
 m^isconduct. 
 
 841. Actions where the chastity of women is in issue. 
 
 842. Method and extent of cross-examination — Discretion of the court. 
 
 843. Limitations on right of cross-examination. 
 
XXVIU TABLE OF CONTENTS. 
 
 CHAPTER 22. 
 EXAMINATION OF WITNESSES— Continued. 
 
 § 844. Impeachmeitt of witnesses. 
 
 845. Impeachment by proof of former contradictory statements and 
 
 conduct. 
 
 846. Same — Laying foundation. 
 
 847. Contradictory written statements — Mode of procedure. 
 
 848. Same, continued — Dying declarations. 
 
 849. Denial of statements not necessary to admit contradiction. 
 
 850. Impeachment— Expressions of opinion — Of hostility. 
 
 851. Ordinary rules do not apply in case of parties. 
 
 852. Impeachment — Witness may explain on re-examlnatlon. 
 
 853. A party cannot impeach his own witness. 
 
 854. Same, continued. 
 
 855. Same — Statutes where adverse party is called as witness. 
 
 856. Exceptions and qualifications of the rule. 
 
 857. Party not hound to accept testimony of his own witness as correct 
 
 858. Same, continued. 
 
 859. Reputation for veracity — ^Mode if Impeachment. 
 
 860. Only general veputation for truth and veracity admissible. 
 
 861. The view thai the inquiry may relate to moral character generally. 
 
 862. Inquiry as to believing the witness under oath. 
 
 863. ESfEect of impeachment. 
 
 864. Cross-examination of impeaching witnesses. 
 
 865. Sustaining an Impeached witness — Laying foundation. 
 
 866. Same, continued. 
 
 867. Does a collateral attack admit sustaining testimony? 
 
 868. Proof of contradictory statements of witness does not permit evi- 
 
 dence of his good character. 
 
 869. Former statements of witness not admissible to corroborate him. 
 
 870. Quallflcatlons of the rule. 
 
 871. Re-examlnatlon — Object of. 
 
 872. Same — Illustrations. 
 
 873. Same, continued. 
 
 874. XJsie of memoranda to refresh the memory of witnesses. 
 
 875. Same — ^When allowed. 
 
 876. Non-production of the memorandum — Cross-examination. 
 
 877. Memoranda not made by the witness. 
 
 878. Copy used to refresh memory. 
 
 879. Must the memorandum be contemporaneous with the fact re- 
 
 corded. 
 
 880. Mode of using memoranda. 
 
 881. Use of memoranda when the witness has no Independent recollec- 
 
 tion of the facts. 
 
 882. Further Illustrations and decisions. 
 
 883. Other modes of refreshing memory— Use of memoranda as evidence. 
 
 884. Witnesses not compelled to criminate themselves. 
 
TABLE OF CONTENTS. XXIX 
 
 885. Matters tending to criminate privileged. 
 
 886. Statement of witness claiming privilege not conclusive. 
 
 887. Privilege extends to acts as well as words — When to be claimed. 
 
 888. No privilege if testimony cannot be used to convict the witness. 
 
 889. Same, continued. 
 
 890. Privilege— How claimed — How waived. 
 
 891. Effect of claiming privilege — Inferences. 
 
 892. Same — Penalties and forfeitures. 
 
 893. Objections and exceptions to evidence. 
 
 894. Same — Offer of evidence — ^Waiver of objections. 
 
 895. Withdrawing and striking out evidence. 
 
 896. Effect of improper admission and exclusion of evidence. 
 
 897. Same, continued. 
 
 898. Weight of evidence — ^Positive and negative. 
 
 899. Same — direct and circumstantial. 
 
 900. Number of witnesses. 
 
 901. Credibility of witnesses. 
 
 902. Same, continued. 
 
 903. Same, continued. 
 
THE LAW OF EVIDENCE. 
 
 CHAPTER 1. 
 
 EVIDENCE IN GENERAL. 
 
 § 1. Evidence — ^Necessity for exclusionary rules. 
 
 2. "Evidence — Effect of jury system on rules of. 
 
 3. Evidence — Definitions of, as used In municipal law, 
 
 4. The terms "evidence" and "proof." 
 
 5. Demonstrative and moral evidence. 
 
 6. Direct and circumstantial evidence. 
 
 7. Competent and satisfactory evidence. 
 
 8. Other descriptive terms. 
 
 § 1 (1). Evidence — Necessity for exclusionary rules. — ^Evidence 
 in its broadest sense has been defined as "any matter of fact, the ef- 
 fect, tendency or design of which is to produce in the mind a persua- 
 sion aifirmative or disaffirmative of the existence of some other mat- 
 ter of fact. " ^ But it is evident that the term as used in municipal 
 law must have a very much more limited meaning. However desir- 
 able it might be in legal controversies involving the rights of prop- 
 erty or the liberty of the citizen, if every fact which might have the 
 slightest bearing on the issue could be adduced, it is manifest that the 
 limitations which surround judicial tribunals render this impossible. 
 Courts are so organized that there must be some limit to the facts 
 which may be given in evidence, as there must be an end of litiga- 
 tion. By the way of illustration, if it is claimed that A. has as- 
 saulted B. there are many classes of facts which would influence the 
 judgment of persons investigating the controversy, which would not 
 be received in courts of justice. The general estimation in which 
 ■ the parties are held in the community, the opinions and comments 
 of neighbors as to the merits of the controversy, the fact that one p.f 
 the parties has frequently been engaged in similar troubles, would 
 all be matters which might have considerable weight in extra-judi- 
 
 t Bentham, Jud. Ev. p. 17. 
 
2 THE LAW OP EVIDENCE. '' § 3. 
 
 cial investigation. But if testimony of this character were to be 
 uniformly admitted in actions for assault, or in other controversies, 
 the expenses and delays of the litigation would be so oppressive that 
 parties might better submit to wrong in silence, or to an unjust 
 judgment, than incur the outlay and hazards of a lawsuit. It is true 
 the reformers have zealously attacked and have broken down many 
 of the artificial barriers which, formerly prevented suitors from 
 bringing the facts on which they relied to the ear of the court or 
 jury; but it is hardly possible that the courts of civilized countries 
 will ever seek to administer justice without the use of fixed, and to 
 some extent arbitrary, rules of evidence. Considering those infirm- 
 ities in judicial procedure, which must always be borne in mind, it 
 is the lesser evil that there should be an occasional failure of jus- 
 tice, than that litigation should be so expensive as to be only the- 
 luxury of the rich, or so protracted as to outlive those who may be 
 compelled to become litigants. Mr. Stephen justly says that "the 
 great bulk of the law of evidence consists of negative rules declar- 
 ing what, as the expression runs, is not evidence." ^ These exclusive 
 rules excite surprise among laymen for the reason that by their 
 operation facts which seem to have a probative effect are often re- 
 jected, and the question is thus raised whether the ends of justice 
 are not thwarted by defects in judicial procedure. 
 
 § 2 (1). Evidence — Effect of jury system on rules of. — It is 
 clear, however, that the many rules which in our courts of justice 
 govern the introduction of facts for the discovery of the truth, are 
 very closely associated with an institution very dear to the Anglo- 
 Saxon race, that of trial by jury. In a celebrated ease Lord Mans- 
 field called attention to the fact that, "In Scotland and most of the 
 Continental states, the judges determine upon the facts in dispute as 
 well as upon the law and they think there is no danger in their 
 listening to evidence of hearsay because, when they come to con- 
 sider their judgment on the merits of the case, they can trust 
 themselves entirely to disregard the hearsay evidence, or to give 
 it any little weight which it may seem to deserve. But in England, 
 where the jury are the sole judges of fact, hearsay evidence is prop- 
 erly excluded, because no man can tell what effect it might have 
 upon their minds." ' 
 
 § 3 (2). jBvidence — Definitions of, as used in municipal law. — 
 The more limited meaning of the term evidence, as used in legal pro- 
 
 2 Introduction to Steph. Ev. 
 
 » Berkeley's Peer Case, 4 Camp. 414; Thayer, Cas. Ev. p. 4. 
 
§ 3. EVIDENCE IN GENEEAL. 3 
 
 eeedings, is well illustrated in the definition of Mr. Stephen, accord- 
 ing to which evidence includes, (1) statements made by 'witnesses in 
 court under a legal sanction in relation to matters of fact under 
 inquiry, and (2) documents produced for the inspection of the court 
 or judge.* Perhaps this definition is open to the criticism that it 
 does not include those facts which in judicial proceedings may be 
 addressed directly to the senses of the court or jury. Other defini- 
 tions which have met with favor are the following: According to 
 Blackstone: "Evidence signifies that which demonstrates, makes 
 clear, or ascertains the truth of the very fact or point in issue, either 
 on the one side or on the other. ' ' ^ Says Professor Greenleaf : ' ' Evi- 
 dence in legal acceptation includes all the means by which any al- 
 leged matter of fact, the truth of which is submitted to investigation, 
 is established or disproved."" Starkie says that "That which is 
 legally offered by the litigant parties to induce a jury to decide for 
 or against the party alleging such facts, as contradistinguished from 
 comment and argument on the subject, falls within the description 
 of evidence."^ According to professor Thayer: "Evidence is any 
 matter of fact which is furnished to a legal tribunal, otherwise than 
 by reasoning or a reference to what is noticed without proof, as the 
 basis of inference in ascertaining some other matter of fact. ' ' * Prof. 
 Wigmore says ' ' Evidence represents any knowable fact or group of 
 facts, not a legal or a logical principle, considered with a view to its 
 being offered before a legal tribunal for the purpose of producing a 
 conviction, positive or negative, on the part of the tribunal, as to the 
 truth of a proposition, not of law or of logic, on which the deter- 
 mination of the tribunal is to be asked. ' ' ° According to codes of pro- 
 cedure adopted in several states: "Judicial evidence is the means, 
 sanctioned by law, of ascertaining in a judicial proceeding the truth 
 respecting a question of fact. ' ' ^^ And the law of evidence is the law 
 which has to do with the furnishing of this matter of fact: " (1) It 
 prescribes the manner of presenting evidence ; as by requiring that 
 it shall be given in open court by one who personally knows the 
 
 * Stephen, Ev. art. 1. 
 
 o Blackstone, Commentaries, 3, *367. 
 
 8 1 Greenl. Ev. § 1. This definition has been criticised for including not 
 only facts but arguments, see Chamberlayne's Best, Ev. § 11. 
 
 T Starkie, Bv. p. 9. 
 
 B Thayer, 3 Harv. Law Rev. 142, 147. 
 
 » Wigmore, Ev. 1, p. 3. . 
 
 loCal. Code, § 1823; Mont. Ann. Code, § 3100; Hill's Ann. Laws (Ore.), 
 S 665. 
 
4 THE LAW OF EVIDENCE. § 5. 
 
 thing to be true, appearing in person, subject to cross-examination; 
 or by allowing it to be given by deposition, taken in such and such 
 a way; and the like: (2) it fixes the qualifications and the privi- 
 leges of witnesses, and the mode of examining them; (3) and chiefly, 
 it determines, as among probative matters, things which are logically 
 and in their nature evidential, what classes of things shall not be 
 received. This excluding function is the characteristic- one in our 
 law of evidence. ' ' ^^ 
 
 § 4 (3). The terms "evidence" and "proof," — The attempt has 
 frequently been made, but without great success, to distinguish be- 
 tween the terms evidence and proof. The latter term in its popular 
 meaning more often refers to the degree or kind of evidence which 
 wiU produce full conviction, or establish the proposition to the satis- 
 faction of the tribunal. More accurately, proof is the effect or re- 
 sult of evidence while evidence is the medium of proof.^^ To more 
 fully illustrate the meaning of the two terms, if on a charge of arson 
 it were shown that the accused had obtained excessive insurance 
 upon the property btirned, that he was in embarrassed circum- 
 stances, that he had made contradictory statements as to the circum- 
 stances of the fire, and had betrayed great emotion on his first arrest, 
 any one of these circumstances might constitute evidence tending 
 to show his guilt; but all combined might or might not be deemed 
 proof thereof. It will be found, however, that the two terms are fre- 
 quently used in text-books and in judicial decisions as synony- 
 mous. They are often used in such a manner as to include at one 
 time the media by which the facts are established, at another the 
 effect or conclusions produced by the testimony. 
 
 § 5 (4). Demonstrative and moral evidence. — ^In judicial pro- 
 cedure the issues are so framed that it is hardly possible to establish 
 with absolute certainty the truth of the propositions involved ; hence 
 in courts of justice parties are compelled to rely not upon demonstra- 
 tive but upon moral evidence, "by which is meant not only that kind 
 of evidence which is employed on subjects connected with moral con- 
 duct, but all the evidence which is not obtained either from intuition 
 or from demonstration. " ^' It is elementary that in civil cases a mere 
 preponderance of the proof is all that is necessary to establish the 
 
 11 Thayer, Cas. EV. p. 2. 
 
 12 Best, Ev. § 10 et seq.; Powell v. State, 101 Ga. 9, 29 S. E. 309, 65 Am. 
 St. Rep. 277, 283; Jastrzembski v. Miarxhausen, 120 Mich. 677, 79 N. W. 
 935, 937; People' v. Beckwith, 108 N. Y. 73. 15 N. E. 53, 55. 
 
 la Greenl. Ev. f 1. 
 
§ 6. EVIDENCE IN GENEKAli. 5 
 
 point in issue ; while, in criminal actions it is necessary to prove the 
 guilt of the accused beyond a reasonable doubt. But even this de- 
 gree of proof is often far removed from a demonstration of guilt. 
 By the phrase "proof to a moral certainty" or "beyond a reasonable 
 doubt" such proof only is meant as satisfies the judgment and con- 
 sciences of the jury, as reasonable men, that the crime charged has 
 been committed by the defendant, and so satisfies them as to leave 
 no other reasonable conclusion possible.'* 
 
 § 6 (5). Direct and circumstantial evidence. — Other terms 
 which are familiarly used to designate different forms of evidence 
 are direct and circumstantial. Direct or positive evidence is evi- 
 dence to the precise point in issue ; as in case of homicide, that the 
 witness saw the accused inflict the blow which caused the death, or, 
 in a prosecution for arson, that the witness saw the defendant apply 
 the torch which lighted the fire, or in the case of an agreement, that 
 the witness was present and witnessed it.'° Circumstantial evidence 
 is that which relates to a series of other facts than the fact in issue, 
 which by experience have been found so associated with that fact 
 that in the relation of cause and effect they lead to a satisfactory 
 conclusion ; for example, when foot-prints are discovered after a re- 
 cent snow, it is proper to infer that some animated being passed over 
 the snow since it fell; and from the form and number of the foot- 
 prints it can be determined whether they are those of a man, a bird 
 or a quadruped. Such evidence, therefore, is founded on experience 
 and observed facts and coincidences establishing a connection bcr 
 tween the known and proven facts and the facts sought to be 
 proved.^' These two kinds of evidence are thus defined by the codes 
 in several states: "Direct evidence is that which proves the fact in 
 dispute directly without any inference or presumption and which, 
 if itself is true, conclusively establishes the fact. . . . Indirect evi- 
 dence is that which tends to establish the fact in dispute by proving 
 another, and which though true does not of itself conclusively estab- 
 
 i*Com. V. Costley, 118 Mass. 1; Com. v. Webster, 5 Cush. 295, 52 Am. 
 Dec. 711, 730; Com. v. Cobb, 14 Gray, 57; Com. v. Tuttle, 12 Cush. 502; 
 Regina v. White, 4 Fost. & F. 383. 
 
 15 Com. V. Webster, 5 Cush. 295, 52 Am. Dec. 711, 723; Benson v. State, 
 43 Tex. Cr. App. 942, 63 S. W. 96, 98. 
 
 16 Com. V. Webster, 5 Cush. 295, 52 Am. Dec. 711, 723. See note to State 
 V. Hudson, 66 S. C. 394, 97 Am. St. Rep. 771-802. As to necessity of in- 
 struction as to law on circumstantial evidence, see extended note 69 L. R. 
 A. 193-217. 
 
6 THE LAW OF EVIDENCE. § 8. 
 
 lish that fact, but which affords an inference or presumption of its 
 existence. ' ' " 
 
 § 7 (6). Competent and satisfactory evidence. — Another dis- 
 tinction constantly recognized by the courts is that between compe- 
 tent and satisfactory evidence, and is thus stated and explained by 
 Professor Greenleaf : "By competent evidence is meant that which 
 the very nature of the thing to be proved requires, as the fit and ap- 
 propriate proof in the particular case, such as the production of a 
 Writing, where its contents are the subject of inquiry. By satisfac- 
 tory evidence, which is sometimes called sufficient evidence, is in- 
 tended that amount of proof which ordinarily satisfies an unpreju- 
 diced mind beyond reasonable doubt. The .circumstances which will 
 amount to this degree of proof can never be previously defined ; the 
 only legal test of which they are susceptible is their sufficiency to 
 satisfy the mind and conscience of a common man; and so to con- 
 vince him that he would venture to act upon that conviction, in mat- 
 ters of the highest concern and importance to his own interest. 
 Questions respecting the competency and admissibility of evidence 
 are entirely distinct from those which respect its sufficiency or ef- 
 fect ; the former being exc|usively within the province of the court ; 
 the latter belonging exclusively to the jury. " ^* In determining 
 whether evidence is competent, reference must be had to those ex- 
 eluding principles which form so large a part of the law of evidence, 
 and it is clear that the application of those rules of law which re- 
 strain the admission of evidence can be safely entrusted only to 
 those familiar with legal science. Although the sufficiency of the 
 evidence is ordinarily for the determination of the jury, it will be 
 seen that in determining the amount of testimony to be received 
 and the mode of its presentation, the court is charged with impor- 
 tant functions, and vested with no little discretion.^' 
 
 § 8 (7). Other descriptive terms. — Cumulative evidence, is ad- 
 ditional evidence of the same kind to the same point. Thus when 
 testimony has been given by one or more witnesses as to an assault, 
 and other witnesses are produced who testify to the same state of 
 facts and to no new fact, the evidence given by such witnesses is 
 merely cumulative.^" Although cumulative evidence is admissible, 
 
 iTCal. Code, §§ 1831, 1832; Hill's Ann. Laws (Ore.), §§ 672, 673; Mont. 
 Ann. Code, §§ 3108, 3109. 
 18 1 Greenl. Ev. § 2. 
 
 i» See §§ 174-175 infra, and sections on examination of witnesses. 
 20 Parker v. Hardy, 41 Mass. (24 Pick.) 246; People v. Superior Court, 
 
§ 8. EVIDENOE IN GENERAL. 7 
 
 and often of great importance, considerable discretion may be ex- 
 ercised by the trial judge in determining the extent to which such 
 evidence may be- received, and in limiting the number of witnesses 
 who may testify to a particular fact.^'^ There are numerous terms 
 which are frequently used as descriptive of different kinds of evi- 
 dence which will be frequently referred to in this work or discussd 
 under separate heads. For example, real evidence is that which is 
 addressed to the senses of the tribunal, as where objects are pre- 
 sented for the inspection of the jury.^^ Primary or test evidence is 
 that which affords the greatest certainty of the fact in question; 
 thus a deed or other written instrument is primary evidence of its 
 contents.^^ Secondary evidence is that which is ijiferior to primary 
 evidence, and which upon its face shows that better evidence exists ; 
 thus a copy of a written instrument or the recollection of a witness 
 as to its contents.^* When evidence is received which the law does 
 not allow to be contradicted, it is said to be conclusive. Thus the 
 record of a court of competent jurisdiction cannot be contradicted 
 by the parties to such record.^" Prima facie evidence is that which 
 standing alone, unexplained or uncontradicted, is sufficient to main- 
 tain the proposition affirmed.^° Thus by statutes, account books 
 complying with the requisite formalities, are prima facie evidence 
 of the sale and delivery of goods,^^ and records and certified copies 
 made by public officers may be prima facie evidence of the contents 
 of the original documents.''* 
 
 10 Wend. (N. Y.) 285, 292, and cases cited. See article "Cumulative Evi- 
 dence," 3 Bncyc. of EVidence, 914-948. 
 
 2iThomp. Trials, § 353; Mergentheim v. State, 107 Ind. 567; Hilliard 
 V. Seattle, 59 N. H. 462; Sixth Ave. R. Co. v. Metropolitan El. Ry.- Co., 
 138 N. Y. 548, 34 N. E. 400, 401. See § 900 infra, and chapter on examina- 
 tion of witnesses. 
 
 22 For discussion of this subject, see chapter on real evidence. 
 
 23 See §§ 200 et seq. infra. 
 
 24 See §§ 200 et seq. infra. 
 2'^ See §§ 585 et seq. infra. 
 
 26 Kelly v. Jackson, 6 Pet. (U. S.) 622, 632; Lilienthal's Tobacco v. 
 United States, 97 U. S. 237, 268; Emmons v. Westfield Bank, 97 Mass. 
 230, 243. 
 
 27 For statutory definitions of the various classes of evidence, see Cal. 
 Code Civ. Pro. § 1825. As to account books, see § 567 et seg. 
 
 28 See §§ 525, 544 infra. ' 
 
CHAPTER 2. 
 
 PRESXJMPTIONS. 
 
 § 9. Presumptions — In general. 
 
 10. Presumptions of fact. 
 
 11. Presumptions of law — Conclusive and disputable. 
 
 12. Presumption of Innocence. 
 
 13. Same — ^Applications of the presumption — Fraud and similar Issues. 
 
 14. Same — As applied to the marriage relation. 
 
 15. Negligence. 
 
 16. B'ffect of the presumption of innocence as to the amount of evi- 
 
 dence. 
 
 17. Presumptions arising from the spoliation or fabrication or suppres- 
 
 sion of evidence. 
 
 18. Same — Documents. 
 
 19. Presumptions from withholding evidence. 
 
 20. Same — Refusal to produce. 
 
 21. Same — Qualifications of the rule. 
 
 22. Same — ^ETffect of the presumption on the burden and degree of proof. 
 
 23. Presum^ptions as to knowledge of the law. 
 
 24. Effect of mistake as to matters of law. 
 
 25. Parties presumed to know the legal effect of their contracts. 
 
 26. Same — Misrepresentations as to law. 
 
 27. Presumption that men know the consequences of their acts. 
 
 28. Same — In civil cases. ^ 
 
 29. Presumption as to malice. 
 
 30. Presumptions as to regularity — General rule. 
 
 31. Regularity of judicial proceedings — Jurisdiction. 
 
 32. Presumptions not allowed to contradict the record. 
 
 33. Limitations of the rule — Service of publication — Ministerial powers. 
 
 34. Regularity of proceedings subsequent to gaining jurisdiction. 
 
 35. Same — Federal courts. 
 
 36. Same — The rule as to inferior courts. 
 
 37. Same — Courts of probate. 
 
 38. Same — ^As to judgments in other states. 
 
 39. Same — Collateral and direct proceedings. 
 
 40. Same — ^Awards of arbitrators. 
 
 41. Regularity of oflScial acts. 
 
 42. Same. 
 
 43. Presumption of authority from acting in official capacity. 
 
 44. Same — Not restricted to official appointments. 
 
 45. Performance of official duty. 
 
 46. Same — ^Acts of municipal officers. 
 
§ 9. PRESUMPTIONS. 9 
 
 § 47. Statutory presumptions of this class. 
 
 48. Presumptions of regularity in unofficial acts — In general. 
 
 49. Same — ^As to negotiable paper. 
 
 50. Presumptions that documents have been duly executed. 
 
 51. Dates — ^When presumed correct. 
 
 52. Presumptions as to the mailing and receipt of letters. 
 
 53. Same — Telegrams — ^Weight of the presumption. 
 
 54. Presumptions arising from partnership dealings. 
 
 55. Presumptions of regularity in acts of private corporations. 
 
 56. Same — General scope of the rule. 
 
 57. Miscellaneous presumptions from the general course of business. 
 
 § 9(8). Presumptions — In general. — "A presumption may be 
 defined to be an inference as to the existence of one fact from the ex- 
 istence of some other fact founded upon a previous experience of 
 their connection. ' ' ^ The whole history of jurisprudence illustrates 
 the fact that among .judges as among legislators, there is a constant 
 struggle, however ineffectual it may be, to approach uniformity in 
 the law. Although every judge understands that each ease should be 
 determined according to its own facts, he often finds different cases 
 so nearly analagous in the facts presented that similar instructions 
 to the jury are appropriate in each. Judges thus find themselves not 
 only applying to different cases the same substantive rules of law, 
 but they derive aid from precedents even in reaching conclusions as 
 to the facts of a given cause. To illustrate the growth of presump- 
 tions of law: There were probably instances in the history of the 
 common law where children under seven years of age were convicted 
 of criminal offenses." Judges, however, acting upon their knowledge 
 of the incapacity of children of very tender age to form a criminal 
 intent, undoubtedly very early instructed juries to act with caution 
 in such cases ; and later the rule was established without the aid of 
 any statute and purely by way of judicial legislation that a child 
 under seven years of age could not commit a felony.' In like manner 
 the judges gradually developed the rule independently of statutes 
 
 1 Stark. Ev. p. 742. The United States supreme court has defined a pre- 
 sumption to be "an inference as to the existence of a fact not actually 
 known, arising from its usual connection with another which is known." 
 Ins. Co. V. "Weide, 11 Wall. (U. S.) 438. For other definitions, see 9 Eacyc. 
 of Ev. 881. For distinction between a presumption and an Inference, see 
 Cogdell V. Wilmington & N. R. Co., 132 N. C. 852, 44 S. B. 618. On the 
 general subject of presumptions, see Thayer, Prel. Treatise on Ev. p. 313. 
 
 2 1 Russ. Cr. (6th Ed.) p. 114, m. 
 8 Infra, § 98. 
 
10 THE LAW OF EVIDENCE. § 10- 
 
 that if seven years elapse after a traveler has crossed the high seas 
 without being heard from, the presumption arises that he is dead.* 
 As another illustration of judge-made law the courts slowly adopted 
 the practice of instructing juries that from the long enjoyment of 
 an incorporeal hereditament they might draw the inference of right 
 to such enjoyment in the possessor.^ These and other illustrations 
 which wiU be discussed under the appropriate heads exemplify the 
 manner in which the courts have gradually deduced canons of evi- 
 dence for inferring the existence of one fact from other facts which 
 are proved and which generally accompany the facts so to be in- 
 ferred. Out of these attempts of many judges to deduce rules for 
 determining the probative effect of certain facts or groups of facts 
 often recurring have developed many rules called presumptions, but 
 which widely differ in importance and intensity. As we go on it 
 will be seen that some of these presumptions play quite as important 
 a part in the administration of justice as those parts of the munici- 
 pal law which are embodied in statutes ; they are of such importance 
 that, if disregarded by a jury, the verdict will be set aside. On the 
 other hand there are other presumptions so called which scarcely 
 ought to be dignified by the name, but which have been long recog- 
 nized as such in the courts, and have some value in aiding the court 
 or jury to draw the proper inferences from facts established. Al- 
 though more elaborate classifications of the different presumptions 
 have sometimes been made, the one which is most common is that of 
 presumptions of fact and presumptions of law. Authors have 
 sometimes added a third class called mixed presumptions, meaning 
 those partaking of the nature of both of the other classes; but the 
 distinctions in this classification are so uncertain and refined as to 
 be of little practical value." 
 
 § 10 (9). Presumptions of fact. — ^It has been said that presump- 
 tions of fact can hardly be classed with propriety as belonging to 
 this branch of the law. Says Professor Greenleaf : "They are in 
 truth but mere arguments, of which the major premise is not a rule 
 of law ; they belong equally to any and every subject matter ; and are 
 to be judged by the common and received tests of the truth of prop- 
 ositions and the validity of arguments. They depend upon their own 
 natural force and efficacy in generating belief or conviction in the 
 
 * infra, % 61. 
 B Infra, § 75 et seq. 
 
 8 See the fanciful classification of Coke cited in Best, EIv. (10th Ed.) 
 § 317. 
 
§' 10. PRESUMPTIONS. 11 
 
 mind, as derived from those connections, which are shown by ex- 
 perience, irrespective of any legal relations. They differ from pre- 
 sumptions of law in this essential respect, that while those are re- 
 duced to fixed rules, and constitute a branch of the particular sys- 
 tem of jurisprudence to which they belong, these merely natural 
 presumptions are derived wholly and directly from the circum- 
 stances of the' particular case, by means of the common experience 
 of mankind, without the aid or control of any rules of law whatever. 
 Such, for example, is the inference of guilt, drawn from the dis- 
 covery of a broken knife in the pocket of the prisoner, the other 
 part of the blade being found sticking in the window of a house, 
 which, by means of such an instrument had been burglariously en- 
 tered. ' ' ' These are sometimes called natural presumptions since they 
 are supposed to correspond with those inferences which the reason- 
 ing process would ordinarily deduce from a given state of facts and 
 do not depend upon those artificial rules which precedent has de- 
 veloped into law. Among the illustrations which have been given of 
 presumptions of fact are the following: The presumption of guilt 
 derived from foot-marks resembling those of a particular person 
 being found on the snow or ground near the scene of crime. The 
 presumption of homicide from previous quarrels or from the ac- 
 cused having a pecuniary interest in the death of the deceased.* The 
 most familiar illustration and the one most cited is that derived 
 from the scriptures in which Solomon determined that the pre- 
 tended mother was not the real mother of the child she was willing 
 to have divided in twain.' Other illustrations are thus given by Mr. 
 Starlde: "Presumptions, and strong ones, are constantly founded 
 on a knowledge of mankind; a man's motives are inferred from his 
 acts, and his conduct from the motives by which he was known to be 
 influenced; it is presumed, that a rational agent intended the con- 
 sequence which his acts naturally tended to accomplish; that he 
 consults his own interests; that if he pays or acknowledges a debt 
 it is really due ; that if he admits himself to be guilty of a crime the 
 admission is true; that he does not conunit a crime, or do any other 
 act which tends to his prejudice, without a motive. Presumptions of 
 
 7 1 Greenl. Bv. § 44. But they must be based on known facts and not 
 on presumptions. Manning v. Ins. Co., 100 U. S. 693; Looney v. Metro- 
 politan Railroad Co., 200 V. S. 480; Bycyzanski v. Illinois Steel Co., 115 
 111. App. 326; Cunard S. S. Co. v. Kelley, 126 Fed. 610. 
 
 8 Best, Bv. (10th Ed.) 5 319. 
 » 1 Kings, ch. 3. 
 
12 THE LAW OP EVIDENCE. § H- 
 
 this nature, in almost every case of circumstantial evidence, afford 
 a light which may be considered to be absolutely essential to the dis- 
 covery of truth; but then they operate simply by their own in- 
 trinsic efficacy as ascertained by experience, and never so conclu- 
 sively as to form the basis of an artificial rule which is to operate 
 invariably. " i" It is evident, however, that many of the instances 
 commonly cited as examples of presumptions of fact are mere illus- 
 trations of circumstantial evidence. They are inferences drawn by 
 the ordinary reasoning powers and without the aid of any artificial 
 rules of law; inferences which, however well founded under some 
 circumstances, are entirely unjustifiable under others, and which 
 from the infinite complexity of human affairs are too uncertain and 
 unreliable to be urged upon juries except in an advisory manner. 
 Since these inferences, sometimes called presumptions of fact, are 
 mere permissible deductions from the evidence, it has often been sug- 
 gested that they are in fact not presumptions at all. But they are 
 constantly recognized in the decisions although often in a confused 
 and inaccurate manner.^^ 
 
 § 11 (10). Presumptions of law — Conclusive and disputable. — 
 When an inference derives from the law some arbitrary or artificial 
 effect and is obligatory upon judges and juries, that inference is a 
 presumption of law. It arises when the facts found are in point of 
 law inconsistent with any supposition except that of the existence or 
 non-existence of the fact in controversy, in which case the conclusion 
 is necessary, independently of any belief based upon what is more or 
 less probable, because the law declares the uniform effect of such a 
 state and condition of circumstances.^" Presumptions of law are 
 generally divided into two classes, conclusive and disputable. "Con- 
 clusive or absolute presumptions of law are rules determining the 
 quantity of evidence requisite for the support of any averment 
 which is not permitted to be overcome by any proof that the fact 
 is otherwise. " ^' In the earlier treatises on the law of evidence va- 
 rious presumptions were treated under this head which are no longer 
 so classified. It will be seen as the discussion proceeds that courts are 
 inclined to abandon the arbitrary rules of evidence which formerly 
 forbade inquiry into the real facts. Instruments under seal were 
 once regarded as conclusive evidence of a consideration, unless the 
 
 10 stark. Ev. (9tli Am. Ed.) p. 744. 
 
 11 See interesting discussion, Thayer, Prel. Treatise on Ev. p. 339. 
 
 12 Sun Mut. Ins. Co. v. Ocean Ins. Co., 107 U. S. 485. 
 Hi Greenl. Ev. § 44. 
 
§' 12.' PEESUMPTIONS. 13 
 
 instrument was impeached for fraud,^* receipts under seal were 
 conclusively presumed to import the payment of money.^* But few 
 of the numerous presumptions formerly called conclusive can now 
 be so classified. At common la^w infants under seven are presumed 
 to be incapable of committing crime; a boy under fourteen is con- 
 clusively presumed incapable of committing a rape; a female of 
 tender age is conclusively presumed incapable of consenting to sex- 
 ual intercourse, this age, not having been precisely determined in 
 the common law, was fixed by statute in the reign of Queen Eliza- 
 beth at ten years.^° So the issue of a wife cohabiting with her hus- 
 band who is not impotent is indisputably presumed to be legiti- 
 mate.^^ In the absence of statutory regulations there may be still 
 cited as illustrations of conclusive presumptions of law the pre- 
 sumptions that persons know the law by which they are governed, 
 and that sane persons Icnow the consequences of their acts. Yet it 
 may well be urged that all of these so-called conclusive presump- 
 tions may be more properly described as substantive rules of the 
 ■law than as conclusive presumptions of law. The same remark ap- 
 plies to most of the statutes of limitations, which are sometimes re- 
 garded as creating conclusive presumptions. Whether or not these 
 presumptions are to hold their place as conclusive it is evidence that 
 by far the greater number of legal presumptions belong to the class 
 Imown as disputable presumptions; or those presumptions which 
 arise and continue until they are overcome by evidence, or by some 
 stronger presumption. The presumption of innocence, of legitimacy 
 and indeed most of those discussed in the following pages are illus- 
 trations of this class. 
 
 § 12 (11). Presumption of innocence. — ^Perhaps there is no pre- 
 sumption more highly favored in the law than that of innocence. The 
 maxims, "Injuria non praesumitur," and "Odiosa non praesumun- 
 tur," have been recognized in criminal trials under the common law 
 for hundreds of years.^* At a time when persons could not have the 
 aid of counsel and could not even testify in their own behalf, the 
 presumption involved in these ancient maxims was one of the few 
 
 "Best, Ev. (10th Ed.) § 220. 
 
 "Best, Ev. (10th Ed.) § 406. 
 
 18 1 Bish. Cr. L. eh. 26, §§ 461, 466; Best, Ev. (10th Ed.) § 438; 4 Bl. 
 Comm. 212; 3 Greenl. Ev. § 211. < 
 
 ^T Infra, § 95. t 
 
 18 Coke, Litt. 232. For comparison as to the practice In the civil and 
 the common law, see article in 14 Crlm. L. Mag. 184. 
 
14 THE LAW OF EVIDENCE. ' § 12. 
 
 beneficent rules in a harsh criminal code. Although some of the 
 reasons which led to the adoption of this presumption have dis- 
 appeared with the severity of the old criminal law, yet the sacred- 
 ness of reputation and liberty still gives sanction to the rule that 
 the law presumes in favor of innocence. The favor with which this 
 presumption is regarded in the law is illustrated in this, that when 
 misconduct or crime is alleged, whether in a criminal or in a civil 
 suit, whether in a direct proceeding to punish the offender or in 
 some collateral manner, the accused is presumed to be innocent until 
 proved guilty.'" This is also illustrated in the fact that other pre- 
 sumptions so often have to yield to that of innocence,^" and by the 
 fact that although ordinarily the burden of proof is on the one 
 asserting the affirmative of the issue, yet if proof of "a negative is 
 necessary to establish guilt, such proof must be made."^ This pre- 
 sumption has its most frequent application in the criminal law; 
 indeed, it has sometimes been said to have no place in civil cases ex- 
 cept so far as it regulates the burden of proof .^^ But it is held by 
 the general weight of authority, as will be seen from the illustra- 
 tions given below, that the presumption rests on a broader basis. 
 As stated by Mr. Taylor: "The right which every man has to his 
 character, the value of that character to himself and his family and 
 the evil consequences which would result to society if charges of 
 guilt were lightly entertained, or readily established in courts of 
 justice — these are the real considerations which have led to the 
 adoption of the rule that all imputations of crime must be strictly 
 proved. The rule, then, is recognized alike by all tribunals, whether 
 civil or criminal, and is equally effective in all proceedings, whether 
 the question of guilt be directly or incidejitally raised. " "^ In a 
 case which has been much discussed and criticized the follow- 
 ing language was used, "The fact that the presumption of inno- 
 cence is recognized as a presumption of law and is characterized 
 by the civilians as a presumptio juris, demonstrates that it is evi- 
 dence in favor of the accused. For in all systems of law legal pre- 
 sumptions are treated as evidence giving rise to resulting proof to 
 the full extent of their legal efficacy. ' ' ^^ 
 
 i«Ross V. Hunter, 4 T. R. 33; Best, Bv. (10th Ed.) § 346. 
 2" See conflicting presumptions, § 101 et seq. infra. 
 
 21 Williams v. Bast India Co., 3 East. 192; infra, § 188. 
 
 22 Lilienthal's Tobacco v. United States, 97 U. S. 237. For discussion 
 of limitations of the rule In habeas corpus cases, see note, 22 L. R. A. 678. 
 
 23Tayl. Etv. (10th Ed.) § 112. 
 
 24 Coffin v. United States, 156 U. S. 432, 460. See the learned criticism 
 
§ 13. PRESUMPTIONS. 15 
 
 § 13 (12). Same — ^Applications of the presumption — Fraud and 
 similar issues. — This presumption is of constant application in civil 
 actions when fraud is the issue. "Fraus est odiosa et non praesum- 
 enda." In the ordinary transactions of life fairness and honesty are 
 presumed and conveyances, sales and contracts generally are pre- 
 sumed to have been made in good faith until the contrary appears.^^ 
 But from this it is not to be understood that fraud can not be in- 
 ferred from circumstantial evidence, as it is by evidence of this 
 character that the charge must often, and indeed generally is es- 
 tablished.^" The party alleging fraud, deceit or fraudulent repre- 
 sentations must produce stronger proof than would suffice to estab- 
 lish a mere debt or sale ; it is incumbent on him to furnish sufficient 
 proof to overcome the presumption of innocence and honesty. In 
 actions involving fraud, as in other cases where the facts present a 
 double aspect, one consistent with fair dealing and the other involv- 
 ing dishonesty of purpose, the court, unless the scale decidely pre- 
 dominates for the latter, will strike the balance in favor of honesty 
 and innoeence.^^ 
 
 of Prof. Thayer, Prel. Treatise on Bv. Appendix B., p. 551. In Agnew v. 
 XT. S. 165 U. S. 36-51, the court hold it no error for the trial judge to give 
 this statement as an instruction, where the jury were fully instructed as 
 to the effect of the presumption of innocence. 
 
 2s Gregg v. Sayre, 8 Peters, 244; O'Neill v. Boone, 82 111. 589; Stewart 
 V. Preston, 1 Pla. 10, 44 Am. Dec. 621; "Williams v. Lord, 75 Va. 390; 
 Patee v. Pelton, 48 Vt. 182; Price v. Grover, 40 Md, 102; Hatch v. Bayley, 
 12 Gush. 27. Public cfiScers are presumed to do their duty, see United 
 States v. Jones, 31 Fed. Rep. 718. It is presumed that a marriage was 
 duly solemnized, Sichel v. Lambert, 15 C. B. N. S. 781. It is also presumed 
 that every person has conformed to the laws until contrary appears. 
 King V. Hawkins, 10 East, 211. Where one is shown to he a wrongdoer 
 as to one transaction he will not he presumed guilty of other contempo- 
 raneous acts, Harris v. Rosenherger, 43 Oonn. 227. It is presumed that 
 a servant Is honest in turning over to his master money received, Evans 
 v. Birch, 3 Camp. 10. 
 
 20 Kaine v. Weigley, 22 Pa. St. 179 ; Reed v. Noxon, 48 111. 323 ; O'Don- 
 nell V. Legar, 25 Mich. 367; Lowery v. Beckner, 5 B. Mon. 41; Morford v. 
 Peck, 46 Conn. 380. See full discussion of this subject and many cases 
 cited In Burch v. Smith. 15 Tex. 219, 65 Am. Dec. 154 and note. 
 
 27 Hatch V. Bayley, 12 Cush. 27; Price v. Gover, 40 Md. 102; Greenwood 
 V. Lowe, 7 La. An. 197; Oaks v. Harrison, 24 Iowa, 170; Leighton v. Orr, 
 44 Iowa, 680. The conduct of third persons whose acts are investigated 
 only collaterally, will also be presumed free from fraud, Ross v. Hunter, 
 4 T. R. 33. Administrators and trustees presumed to have performed 
 their duty. Gee v. Hicks, Rich. (S. C.) Eq. Cas. 5. For discussion of pre- 
 sumptions and burden of proof where fiduciary relations exist, see infra, 
 § 190. An agreement to deal in futures presumed not unlawful. Will- 
 
16 THE LAW OF EVIDENCE. § 15. 
 
 § 14 (13). Same — As applied to the marriage relation. — It is 
 
 upon the same general principle that when persons live and cohabit 
 together and are reputed to be married, they are presumed to be 
 married as it will not be presumed that they have violated the law.^* 
 And where a husband separated from his wife and cohabited with 
 another woman, it was even presumed in favor of innocence that a 
 divorce had been obtained.^" And where a person had married a sec- 
 ond time and the issue was whether he had obtained a divorce, it 
 was presumed that the decree had been recorded according to law.'" 
 But there is no absolute presumption of law as to the dissolution of 
 marriage under such circumstances. Each case must be determined 
 upon its own facts and circumstances and such inferences as should 
 be reasonably drawn from them.^^ 
 
 § 15 (14). Negligence. — On the same principle rests the familiar 
 rule that negligence is not to be presumed; it is rather to be pre- 
 sumed that ordinary care has been used. And the person charging 
 negligence must show that the other party by his act or omission has 
 
 iams V. Connor, 14 S. C. 621. Interlineation or alteration not suspicious 
 on its face presitimed made before execution, see §§ 563 et seg. infra. 
 Purchase of land for valuable consideration presumed to be made in good 
 faith without notice of prior unrecorded deeds. See extended note to An- 
 thony V. Wheeler, 17 Am. St. Rep. 288, citing cases. Witnesses presumed 
 to have testified truthfully, Hewlett v. Hewlett, 4 Edw. Ch. (N. Y.) 7; 
 Matthews v. Lanier, 33 Ark. 91. Professional services presumed necessa- 
 rily rendered, Todd v. Myers, 40 Cal. 355. No presumption that acts have 
 been done for which the law imposes a penalty, Sidney v. Sidney, 3 Will. 
 (P.) 270; Scholes v. Hilton, 10 M. & W. 15; or that the law has been vio- 
 lated, Savier v. Chipman, 1 Mich. 116; Timson v. Moulton, 3 Cush. 269; 
 Hewlett V. Hewlett, 4 Edw. Ch. (N. Y.) 7; or will be violated, Johnson v. 
 Farwell, 7 Me. 370. Intention to perform act, omission of which would 
 be criminal, presumed, Stark. Ev. 756. Patents presumed regularly is- 
 sued. U. S. V. Iron Silver Mining Co., 128 U. S. 673. 
 
 28 Post V. Post, 70 111. 484; Bowen v. Little, 101 Md. 310, 61 Atl. 223. 
 But there is an exception in case of bigamy and where damages are 
 claimed for adultery, Catherwood v. Caston, 13 M. & W. 261; People v. 
 Humphrey, 7 Johns. 314; Buchanan v. State, 55 Ala. 154; Weinberg v. 
 State, 25 Wis. 370; Brown v. State, 52 Ala. 338; Com. v. Norcross, 9 Mass. 
 492. See note 89 Am. St. Rep. 198; also § 86 et seg. infra. 
 
 29 Blanchard v. Lambert, 43 Iowa, 228, 22' Am. Rep. 245. For other illus- 
 trations of presumptions of marriage, see note 14 L. R. A. 540-544. 
 
 30 In. re Edwards, 58 Iowa, 431. For further discussion see note 89 Am 
 St. Rep. 179; also presumptions as to marriage, § 86 et seg. infra. 
 
 31 Williams v. Williams, 63 Wis. 58, 53 Am. Rep. 253, full discussion; 
 St. Sure V. LindsfiJt, 82 Wis. 346, 33 Am. St. Rep. 50, as to alleged divorce 
 In a foreign country. See note 89 Am. St. Rep. 204-206. 
 
§■ 15. PRESUMPTIONS. 17 
 
 violated some duty incumbent upon him and thereby caused the in- 
 jury complained of .^^ This rule does not apply in the ease of com- 
 mon carriers, who, on grounds of public policy, are presumed to 
 have been negligent if goods entrusted to their care have been lost 
 or damaged.^^ And there is another class of cases against carriers 
 where it is often held that negligence may be inferred from the 
 fact that an injury has happened to a passenger. As where a ear 
 leaves the track or a stage coach is overturned, or where there is a 
 collision between trains belonging to the same company.^* Although 
 if, in proving the injury, facts and circumstances are developed 
 which tend to exonerate the carrier or to charge the plaintiff with 
 contributory negligence, no presumption of negligence arises."^ 
 There is another class of cases in which it is held that where the 
 thing is shown to be under the management of the defendant or his 
 agent and where an accident in the ordinary course of events does 
 not happen when the business is properly conducted, the accident 
 itself, if it happens, raises a presumption of negligence in the ab- 
 sence of any explanation. The English case where a passer-by in a 
 street was hurt by a barrel of flour failing from a warehouse win- 
 
 »2Tlie Nitro Glycerine Case, 15 Wall. 524; Weiss v. Pennsylvania Ey. 
 Co., 79 Pa. St. 387; Lyndsay v. Connecticut Ry. Co., 27 Vt. 643; The Buck- 
 eye, 7 Diss. 23; Huey v. Gahlenbeck, 121 Pa. St. 238, 6 Am. St. Rep. 790 
 and note; Looney v. Metropolitan Railroad Co., 200 V. S. 480. It will be 
 presumed that a person stopped, looked and listened before crossing a 
 railway track, Baltimore & Potomac R, Co. v. Landrigan, 191 U. S. 461, 
 474. 
 
 33 Ross v. Hill, 2 C. B. 890; Coggs v. Bernard, 2 Ld. Raym. 918; The Ni- 
 tro Glycerine Case, 15 Wall. 524; Philadelphia Ry. Co. v. Anderson, 72 
 Md. 519, 20 Am. St. Rep. 483 and long note. Note, 16 L. R. A. 261. Infra, 
 § 183. 
 
 34Flannery v. Railway Co., I. R. 11 C. L. 30; Judson v. Giant Powder 
 Co., 107 Cal. 549, 48 Am. St. Rep. 146; Skinner v. Railway Co., 5 Exch. 
 787; Edgerton v. Railway Co., 39 N. Y. 227; Augusta Ry. Co. v. Randall, 
 79 Ga. 304; Memphis & Ohio Packet Co. v. McCool, 83 Ind. 392, 43 Am. 
 Rep. 71 and note; Smith v. Railway Co., 32 Minn. 1, 50 Am. Rep. 550 and 
 note; Miller v. Ocean Co., 118 N. Y. 199; Feital v. Railway Co., 109 Mass. 
 398; Railway Co. v. Blumenthal, 160 111. 48, 43 N. E. 809; Fleming v. Rail- 
 way Co., 158 Pa. St. 130, 38 Am. St. Rep. 835; Gleason v. Railway Co., 140 
 U. S. 435. See note, 20 Am. St. Rep. 490, above cited, for farther illustra- 
 tions and also illustrations and cases in note, 15 L. R. A. 35. But see 
 Railway Co. v. South Fork Coal Co., 139 Fed. 528. 
 
 35 For cases illustrating this subject in case of personal Injuries, see 
 Barnowskl v. Helson (Mich.), 15 L. R. A. 33 and long note. See § 184, 
 infra. 
 
 a 
 
18 THE LAW OF EVIDENCE. § 16. 
 
 dow is an illustration of this group of eases.^« The same principle is 
 illustrated by a New York case in which it was held that since the 
 owner of a building adjoining the street is under obligation to take 
 reasonable care that the same shall not fall upon the passers-by, if 
 such an accident happens without any proof of explanatory circum- 
 stances, negligence wiU be presumed.^^ In such cases the facts are 
 said to speak for themselves, res ipsa loquitur. But in all such cases 
 the cause of the accident must be clearly connected with the de- 
 fendant as being by his act or under his control before negligence 
 can be presimied.'* 
 
 § 16 (15). Effect of the presumption of innocence as to the 
 amount of evidence. — ^It has been the subject of much discussion as 
 to what degree of evidence is necessary to repel the presumption of 
 innocence in civil proceedings. It is perfectly well settled that in 
 criminal actions the coTnmission of a crime must be proved beyond 
 a reasonable doubt. But the authorities are in conflict on the point 
 whether the same rule obtains in civil proceedings. Mr. Stephen 
 lays down the English rule very broadly, as follows: "If the com- 
 mission of a crime is directly in issue in any proceeding, criminal or 
 civil, it must be proved beyond a reasonable doubt. ' ' '" This doctrine 
 has been questioned in England, but is there sustained by the weight 
 of authority. On the other hand the decided weight of authority in 
 the United States supports the proposition that in civil actions, al- 
 though the charge of a crime is to be established, a preponderance 
 of testimony is sufficient.*" 
 
 3« Byrne v. Broadle, 2 Hurl. & C. 722; Scott v. liondon Dock Co., 34 
 L. J. E^. 220; Kearney v. Railway Co., L. R. 5 Q. B. 411; Peldschneider v. 
 Railway Co., 122 Wis. 423. See note to Heuy v. Gahlenbeck, 6 Am. St. 
 Rep. 792 and cases; also note to Philadelphia Ry. Co. v. Anderson, 20 Am. 
 St. Rep. 483; also note, 15 L. R. A. 34. As to injuries caused by the ex- 
 plosion of a boiler, see Rose v. Stephens, 21 Am. L. Reg. 522 and note; 
 also note, 15 Ii. R. A. 35. 
 
 87 Mullen V. St. John, 57 N. Y. 567. As to the falling of a brick from a 
 railroad bridge, see leading case, Kearney v. Railway Co., L. R. 5 Q. B. 
 441. 
 
 S8 Smith, Nag. (2nd Ed.) p. 524. 
 
 39 Steph. Ev. art. 94. For further discussion of this subject see § 195 
 infra. 
 
 *o This has been repeatedly held in actions on insurance policies, Blae- 
 ser v. Milwaukee Ins. Co., 37 Wis. 31, 19 Am. Rep. 747; Schmidt v. Ins. 
 Co., 1 Gray, 529; jEtna Ins. Co. v. Johnson, 11 Bush. 587, 21 Am. Rep. 
 223; Kane v. Ins. Co., 39 N. J. L. 697, 23 Am. Rep. 239, and see note on 
 this subject, Sprague v. Dodge, 95 Am. Dec. 523-525; for slander and libel, 
 Ellis V. Buzzell, 60 Me. 209, 11 Am. Rep. 204; Knowles v. Scribner, 57 
 
§ 17. PREgUMPTIONS. 19 
 
 § 17 (16). Presumption arising from the spoliation or fabrica- 
 tion or suppression of evidence. — Closely allied with the presump- 
 tion of innocence are the presumptions which arise against persons 
 who fabricate, suppress or destroy testimony. Omnia praesumuntur 
 contra spoUatorem. By such conduct the presumption of innocence 
 may be repelled and overcome. Such conduct may not only be rele- 
 vant testimony to rebut the presumption of innocenoe, but may be 
 treated by the jury as evidence of guilt.*^ The familiar leading case 
 which illustrates the nature of this presumption is that in which the 
 goldsmith wrongfuUy refused to deliver a valuable jewel which had 
 been left in his possession. The jury were instructed that unless the 
 defendant produced the jewel and thereby showed it to be not of the 
 finest quality, they should find the jewel of the highest value that 
 would fit the socket in which it was placed.*^ The same rule has been 
 enforced in numerous other cases when a party has by his wilful 
 acts rendered it impossible to show the quality or value of the prop- 
 erty sued for. In such cases the inference is very strong that the 
 facts suppressed would be unfavorable to the wrongdoer and the 
 courts have the right to act on such presumption.*^ And more 
 broadly if it is shown that a person has attempted to falsify, fabri- 
 cate, suppress or destroy evidence, such conduct may be justly con- 
 strued as an indication of his consciousness that his case or defense 
 is lacking in merit. And it is only another step to infer that his 
 own belief is well founded.** 
 
 Me. 497; Matthews v. Huntley, 9 N. H. 146; Sloan v. Gilbert, 12 Bush, 51, 
 23 Am. Rep. 708; for adultery, Poertner v. Poertner, 66 Wis. 644; for re- 
 ceiving stolen goods. United States Exp. Co. v. Jenkins, 73 Wis. 471; and 
 for negligence and fraud, Seybolt v. N. Y. Ry. Co., 95 N. Y. 562; Gordon v. 
 Parmlee, 15 Gray, 413; Jones v. Greaves, 26 Ohio St. 2, 20 Am. Rep. 752. 
 Contra, Schultz v. Ins. Co., 14 Pla. 73; Butman v. Hobbs, 35 Me. 227; Mc- 
 Connell v. Ins. Co., 18 111. 228; Thurtell v. Beaumont, 1 Bing. 339. See 
 Riggs V. Powell, 142 111. 453, 32 N. E. 482, where a distinction is drawn 
 between a "bare" and a 'clear" preponderance. 
 
 11 1 Greenl. Kv. § 37. See cases cited below. For illustrations of the 
 general subject see note, 34 L. R. A. 581; 1 Smith L. C. (8th Am. Ed.) 
 688-690. This is also true where the party intimidates or suborns wit- 
 nesses, Keesier v. State, 154 Ind. 242, 56 N. E. 232; State v. Rozum, 8 N. 
 D. 548, 80 N. W. 477; XT. S. Brewing Co. v. Ruddy, 203 111. 306, 67 N. E. 
 799; McHugh v. McHugh, 186 Pa. 197, 40 Atl. 410. 
 
 42 Armory v. Delamirie, 1 Str. 505. 
 
 *3 Bailey v. Shaw, 24 N. H. 297, 55 Am. Dec. 241; Tanton v. Keller, 167 
 111. 323, 47 N. E. 376; Robinson v. Union Cent. Life Ins. Co., 144 Fed. 1005. 
 
 ** Wilson V. U. S., 162 U. S. 613, 621; Com. v. Webster, 5 Cush. 296; 
 Com. v. Devaney, 182 Mass. 33, 64 N. E. 402. 
 
20 THE LAW OF EVIDENCK § 18. 
 
 § 18 (16). Same — ^Documents. — The wilful destruction, suppres- 
 sion, alteration or fabrication of documentary evidence properly 
 gives rise to the presumption that the documents if produced would 
 be injurious to the one who has thus hindered the investigation of 
 the facts.*' In some cases it has been contended that when the spolia- 
 tion is once shown it should be assumed that the contents of the docu- 
 ments are what is alleged by the other party.*® But it may well be 
 questioned whether the presumption should be carried to this ex- 
 tent. Doubtless the wrongfid act is a circumstance from which the 
 jury may draw the most unfavorable inference against the wrong- 
 doer. Such act may throw suspicion on all the other evidence pro- 
 duced by him.*^ And it will prevent him from proving the contents 
 of the documents destroyed by any other evidence.*' But the pre- 
 sumption arising from such acts does not entirely dispense with 
 proof by the adverse party.*" Parol evidence may be given by him 
 of the contents of the document.^" And such evidence, when sup- 
 ported by the presumption that the contents of the paper were ad- 
 verse to the spoliator, may be very slight and still support a judg- 
 ment, though it might be wholly unsatisfactory standing alone.'^ 
 Though the secondary evidence thus given is imperfect, vague and 
 uncertain, every intendment and presumption is to be made against 
 the party who might remove all doubt by producing the higher evi- 
 dence.'*^ 
 
 45 In case of deeds, Dalston v. Coatsworth, 1 Will. (P.) 731; of account 
 books, Shiels v. West, 17 Cal. 324; or corporate records, Riggs v. Penn. 
 Ry. Co., 16 Fed. Rep. 804; and other documents, Tanton v. Keller, 167 111. 
 323, 47 N. E. 376; Murray v. Lepper, 99 Mich. 135, 57 N. W. 1097; The 
 Olinde Rodrigues, 174 U. S. 510, 528; Joannes v. Bennett, 5 Allen, 169, 81 
 Am. Dec. 738; Sullivan v. Sullivan, 188 Mass. 380, 74 N. B. 608; Missouri, 
 etc. R. Co. V. Elliott, 102 Fed. 96; Westervelt v. Nat. Mfg. Co. (Ind.) 69 
 N. E. 169; Johnson v. Marx Levy, 109 La. 1036, 34 So. 68. 
 
 40 Barker v. Ray, 2 Russ. 72. 
 
 4T Best, Et. (10th Ed.) § 413. 
 
 48 Blade v. Noland, 12 Wend. 173, 27 Am. Dec. 126 and note; Joannes v. 
 Bennett, 5 Allen, 168; Price v. Tallman, 1 N. J. L. 447. But see Moulton v. 
 Mason, 21 Mich. 364. 
 
 48 Askew v. Odenheimer, 1 Bald. (U. S.) 380; Bott v. Wood, 56 Miss. 
 136; Merwin v. Ward, 15 Conn. 377; Stout v. Sands (W. Va.) 49 S. E. 428; 
 F. R. Patch Mfg. Co. v. Machinists (Vt) 60 Atl. 74. 
 
 ooCowper v. Cowper, 2 Will. (P.) 748; Jones v. Murphy, 8 Wils. & S. 
 275. 
 
 61 Jones V. Knause, 31 N. J. Eq. 609; Rector v. Rector, 3 Gilm. (111.) 
 105; Harden v. Hesketh, 4 Hurl. & N. 175; Roe v. Harway, 4 Burr. 2484; 
 Sutton V. Davenport, 27 L. J. C. P. 54. 
 
 62 Thayer v. Middlesex Ins. Co., 10 Pick. 329. 
 
§' 20. PRESUMPTIONS. 21 
 
 § 19 (17). Presumptions from withholding evidence. — ^The mere 
 withholding or failing to produce evidence, which under the circum- 
 stances would be expected to be produced and which is available, 
 gives rise to a presumption against the party. It is a presumption 
 less violent than that which attends the fabrication of testimony or 
 the suppression of documents in which other parties have a legal in- 
 terest ; but the courts recognize and act upon the natural inference 
 that the evidence is held back under such circumstances because it 
 would be unfavorable."' Said Lord Mansfield: "It is certainly a 
 maxim that all evidence is to be weighed according to the proof 
 which it was in the power of one side to have produced and in the 
 power of the other to have contradicted." "* 
 
 § 20 (17). Same — Refusal to produce. — Certain presumptions 
 arise when on notice to produce material documentary evidence a 
 party, being able to comply, refuses to do so.^° If the other party 
 gives parol proof of the contents of documents so withheld and if 
 such secondary evidence is vague or uncertain, the presumptions are 
 against the party who might have removed all doubt by producing 
 
 03 Crescent City Ins. Co. v. Ermann, 36 La. An. 841; Croft v. Bill, 35 N. 
 H. 83; State v. Rodman, 62 Iowa, 456; Rice v. Com., 102 Pa. St. 408; Con- 
 necticut Ins. Co. V. Smith, 117 Mo. 261; The Ville de Harve, 7 Ben. (U. S.) 
 328 (failure to call seaman in charge of light^t time of collision) ; Ban- 
 ner V. South Carolina Ry. Co., 4 Rich. L. 329, 55 Am. Dec. 678 (failure to 
 call persons In charge of train at time of accident) ; Cooley v. Foltz, 85 
 Mich. 47 (failure to call attending physician when defendant cannot call 
 him); The New York, 175 U. S. 187 (failure to call ofBcer in charge at 
 time of collision) ; Hinshaw v. State, 147 Ind. 334, 47 N. E. 157 (failure 
 to call a. witness whose acts were the subject of inquiry) ; Robinson v. 
 Union Cent. Life Ins. Co., 144 Fed. 1005 (failure to produce application, 
 entries upon which were in dispute) ; The Luckenbach, 144 Fed. 980 (fail- 
 ure to produce rope whose defective condition was in question) ; Isabella 
 Gold Mln. C!o. v. Glenn (Colo.) 86 Pac. 349 (failure to produce map); Wil- 
 son V. Griswold, 79 Conn. 18, 63 Atl. 659 (failure to produce lease, terms of 
 which were In question) ; People v. Hovey, 92 N. Y. 554 (objection to tes- 
 timony of wife) ; Brown v. Schock, 77 Pa. St. 471 (refusal of plaintiff to 
 appear when his identity is in issue) ; Cole v. Lake Shore Ry. Co., 95 
 Mich. 77 (failure to testify when plaintiff has exclusive knowledge) ; Bry- 
 ant V. Stillwell, 24 Pa, St. 314 (failure to produce plans for examination) ; 
 Clark V. Miller, 4 Wend. 628 (refusal of bailee to give amount received for 
 goods). For further illustrations of the general subject, see 14 L. R. A. 
 470; 34 L. R. A. B81; 1 Smith K C. 374; also note to Armory v. Delamirie, 
 1 Str. 505. 
 
 54 Blatch V. Archer, Cowp. 66. 
 
 BoHaldone v. Harvey, 4 Burr. 2486; Barber v. Lyon, 22 Barb. (N. Y.) 
 62; Page v. Stephens, 23 Mich. 357; Reavls v. Crenshaw, 105 N. C. 369. 
 
22 THE LAW OF EVIDENCE. § 21. 
 
 the higher evidence."" It has been frequently declared as the rule 
 that the mere non-production of books on notice has no other legal 
 effect than to allow the other party to prove their contents by parol 
 unless under special circumstances." But the weight of authority 
 sustains the view that the court may properly instruct the jury that 
 they may presume that the evidence withheld would have operated 
 unfavorably to the one refusing to produce it."* And in such cases 
 if secondary evidence is given by the party who gave notice to pro- 
 duce, such evidence cannot be rebutted by the production of the 
 document withheld. The one who has withheld the testimony cannot 
 thus take advantage of his own wrong. And he cannot use the docu- 
 ment as evidence without the consent of the other party.°° 
 
 § 21(18). Same — Qualifications of the rule. — There is no unfav- 
 orable presumption arising from the failure to produce evidence, if 
 it is not within the control of the one failing to produce it ; "" nor 
 from the failure to call as a witness one whom the other party had 
 the same opportunity of calling ; "^ nor where the witness on account 
 of his situation or relations would be likely to be hostile; "^ nor one 
 whose testimony would be simply cumulative f^ nor if the testimony 
 not given is privileged, as that of an attorney in respect to confiden- 
 tial communications ;°* nor if testimony of the same character has 
 
 56 Life Ins. Co. v. Mechanics Fire Ins. Co., 7 Wend. 31; Missouri, etc. 
 R. Co. V. Elliott, 102 Fed. 90. 
 
 07 See cases above cited and also § 222 et seq. infra. 
 
 B8 Clifton V. United States, 4 How. 242; Thayer v. Middlesex Ins. Co., 
 10 Pick. 329; Jackson v. McVey, 18 Johns. 330; Ransford v. Bosanquet, 1 
 Q. B. 814. But see Harrison v. KIser, 79 Ga. 588. But the contrary rule 
 is held where it was admitted that the hook contained the entry alleged, 
 Cartier v. Troy Lumber Co., 138 111. 533. 
 
 68 Joannes v. Bennett, 5 Allen, 169, 81 Am. Dec. 738; Tobin v. Shaw, 45 
 Me. 331, 71 Am. Dec. 547; Doe v. Hodgson, 12 Adol. & Ell. 135; Kingman 
 V. Tirrell, 11 Allen, 97; Ting v. United States Submarine Co., 1 Hun, 161. 
 See also § 222 infra. 
 
 eo First National Bank v. Hyland, 6 N. Y. S. 87, 53 Hun, 108; Gilbert v. 
 Ross, 7 M. & W. 121; State v. Buckman, 74 Vt. 309, 52 Atl. 427. 
 
 61 Scovill V. Baldwin, 29 Conn. 318; Cross v. Lake Shore Ry. Co., 69 
 Mich. 363; Haynes v. McRae, 101 Ala. 318; Mooney v. Holcomb, 15 Ore. 
 639; Diel v. Missouri Pacific Ry. Co., 37 Mo. App. 454; Peetz v. St. Charles 
 Ry. Co., 42 La. An. 541; Erie R. Co. v. Kane, 118 Fed. 223. Where a wit- 
 ness, an employe, could not be found, see Winner v. Smith, 22 Ore. 469. 
 
 62 state V. Cousins, 58 la. 250, 12 N. W. 281; Com. v. McCabe, 163 Mass. 
 98, 39 N. E. 777; Fonda v. R. Co., 71 Minn. 438, 74 N. W. 166. 
 
 63 fileecker v. Johnson, 69 N. Y. 309, a case In which there were two de- 
 fendants and only one was caUed, 
 
 6* Wentworth v. Lloyd, 10 H. L. Cas. 589. 
 
§' 22. PRESUMPTIONS. 23 
 
 been excluded when offered by the adverse party as inadmissible ;"' 
 nor if the document would not be admissible in evidence without the 
 consent of the other party;"* nor if the contents of the instrument 
 destroyed or withheld are fully and satisfactorily proved by other 
 evidence.*"^ Where a person brought an action for an injury which 
 had impaired his mind, it was held that no unfavorable presump- 
 tions arose because he was not called as a witness.''* The destruction 
 or mutilation of a document is not spoliation within the meaning of 
 the rule if caused by mere inadvertence or mistake.*^ It is for the 
 .iury to determine, under proper instructions from the court, what 
 inferences are to be drawn from the failure of a party to produce 
 evidence which is accessible to him or under his control.'" 
 
 § 22 (19). Same — Effect of the presumption on the burden and 
 degree of proof. — ^It must not be inferred that the presumption 
 arising from the withholding or suppression of evidence by a party 
 will wholly relieve the adverse party from the burden of proving his 
 case. In an action for fraud upon the revenue a federal judge in- 
 structed the jury in substance that since the defendants had failed 
 to produce proof in their possession the government need only prove 
 that the defendants were presumptively guilty and the duty there- 
 upon devolved upon them to establish their innocence and if they 
 did not they were guilty. It was held on appeal that the instruction 
 was error; that it set at naught established principles, since it su"b- 
 stantially withdrew from the defendants their constitutional right 
 of trial by jury and converted what at law was intended for their 
 protection, the right to refuse to testify, into the machinery for their 
 destruction.'^ Although, as has been seen from the cases already cited, 
 the courts have uniformly enforced the rule that every reasonable 
 intendment is to be made against spoliation and have sometimes used 
 , strong language in the statement of the rule, the presumption is 
 clearly not conclusive, nor does it so far take the place of other 
 proof, but that some other evidence than the mere fact of suppres- 
 
 65 Carpenter v. Bailey, 94 Cal. 406. , 
 
 esMerwin v. Wood, 15 Conn. 377; Cartier v. Troy Lumber Co., 138 111. 
 533. 
 
 «7 Miltenberger v. Croyle, 27 Pa. St. 170 
 
 68 Cramer v. Bentlngton, 49 Iowa, 213. 
 
 69Rlggs V. Tayloe, 9 Wheat. 487; Tobin v. Shaw, 45 Me. 331, 71 Am. 
 Dec. 547; Vlllors v. Villors, 2 Atk. 71; Livingston v. Rogers, 2 Johns. Cas. 
 488. 
 
 ToEldridge v. Hawley, 115 Mass. 410; Cooley v. Poltz, 85 Mich. 47. 
 
 Ti Chaffee y. United States, 18 Wall. 516. 
 
24 THE LAW OP EVIDENCE. §' 23. 
 
 sion or spoliation is necessary to sustain a claim against the wrong- 
 doer. In such cases at least a prima facie case must be established.'" 
 The fabrication or suppression of evidence is a fact to be considered 
 in view of all the circumstances of the ease. It may become un- 
 important by reason of other and perfectly satisfactory evidence of 
 the fact or document suppressed or despoiled; it may afford evi- 
 dence of the most convincing character against the wrongdoer. On 
 the other hand one who is innocent of the charge made against him, 
 may, in excitement or fear, yield to the temptation of suppressing or 
 manufacturing evidence.''' 
 
 § 23 (20). Presumptions as to knowledge of the law. — The 
 maxim, ignorantia juris non excusat, is based on the fact that there 
 could be no successful administration of justice if the converse of the 
 rule were to prevail. If prisoners accused of crime could successfully 
 plead that they were ignorant of the illegality of their acts, no 
 other shield for crime would need to be interposed ; for no other de- 
 fense could be so easily raised or so difficult to overcome. "If igno- 
 rance of the law was admitted as a ground of exception, the court 
 would be involved in questions which it were scarcely possible to 
 solve and which would render the administration of justice next to 
 impossible; for in almost every case ignorance of law would be al- 
 leged and the court would, for the purpose of determining this 
 point, be often compelled to enter upon questions of fact insoluble 
 and indeterminable." '* Although it has been sometimes stated that 
 
 72 Bott V. Wood, 56 Miss. 136; Chaffee v. United States, 18 Wall. 516; 
 Cowper V. Cowper, 2 Will. (P.) 748; Meagley v. Hoyt, 125 N. Y. 771; Ar- 
 buckle V. Templeton, 65 Vt 205. 
 
 73 Best, Ev. (lOtt Ed.) § 415. In a case cited by Sir Edward Coke, an 
 uncle was charged with the murder of his niece. The motive assigned for 
 the murder was that on the death of the niece the accused would inherit 
 her property. Being unable to find the child the defendant dressed up 
 another child to represent her. On the discovery of the fraud the accused 
 was found gvjilty and executed; but some years afterward It was found 
 that the girl supposed to have been murdered was still living and had 
 run away. 3 Inst. Ch. 104, p. 232. .Another instance is related by Jeremy 
 Bentham, where it was proposed that all the persons present at a com- 
 pany should be searched to see If a valuable trinket which had been 
 missed could be found. All submitted but one, who excited suspicion by 
 his refusal. But when he consented to be privately searched it was found 
 that he had not taken the trinket but had concealed some articles of food 
 for the purpose of carrying them to his wife who had no means of ob- 
 taining food. 3 Benth. Jud. Bv. pp. 88-89. 
 
 7* Quoted in Upton v. Tribllcock, 91 U. S. 51. The authorities given in 
 
§' 24. PEESUMPTIONS. 25 
 
 the rule has no application except in criminal cases, there seems to 
 be no good reason for confining the rule to the criminal law. The 
 same considerations which forbid a party to urge his ignorance of 
 the law as a defense to a criminal charge also forbid that he should 
 plead his ignorance of the law as an excuse for the failure to comply 
 with contract obligations '^ or as a defense in actions of tort." 
 
 § 24 (21). Effect of mistake as to matters of law. — While ignor- 
 ance of fact is a constant ground for relief in courts of justice, the 
 cases are rare in which parties have been allowed to obtain relief on 
 the ground of mistake of law. When a party seeks relief on the 
 ground that, although he was fully cognizant of all the facts, he has 
 misapprehended his legal rights, he has to face the objection that all 
 persons of sound and mature mind are presumed to know the law.'" 
 Even in the exceptional cases in which relief seems to have been 
 granted on the ground of mistake of law, it will be generally found 
 that some element of fraud or mistake of fact or inequitable conduct 
 of the other party has been to some extent relied upon as the basis 
 of equitable relief.^* Under peculiar circumstances, when two par- 
 ties ignorant of a matter of law enter into a contract for a particu- 
 lar object and the result according to law is different from what 
 they mutually intended, courts of equity will interfere to prevent 
 the enforcement of the contract and to relieve them from the unex- 
 pected consequences of it. Such action is deemed necessary to pre- 
 
 thls chapter as special illustrations of the rule render it unnecessary to 
 cite the large number of cases which might be mentioned as containing 
 the general and familiar rule. See note, 55 Am. St. Rep. 494-520. 
 ■ 75 So litigants cannot claim ignorance of law as to presumption of pay- 
 ment from lapse of time, Goodwyn v. Baldwin, 59 Ala. 127; as to their 
 liability to pay according to terms of contract, Mears v. G-raham, 8 Blackf. 
 (Ind.) 144; Clarcke v. Butcher, 9 Cow. 674; Warder v. Tucker, 7 Mass. 
 449; Upton v. Tribilcock, 91 U. S. 51; as to priority of judgments, Shor- 
 well T. Murray, 1 Johns. Ch. 512. Holders of government bonds presumed 
 to have knowledge of laws by which bonds were created and issued, Mor- 
 gan V. United States, 113 U. S. 476; City of Plattsmouth v. Murphy 
 (Neb.) 105 N. W. 293. 
 
 T8 It is no defence in actions for false imprisonment that ofiScer sup- 
 posed void writs to be valid, Pattison v. Prior, 18 Ind. 440; and in actions 
 for malicious prosecution the court will instruct the jury on subject of 
 probable cause that parties are presumed to know the law. Wills v. Noyes, 
 12 Pick. 324. 
 
 7' This subject is ably discussed and authorities are cited In 2 Pom. Eq. 
 Jur, (3rd Ed.) § 840, et seq. 
 
 78 Champlin v. Laytin, 6 Paige 189, 195. See also note. Am. St. Rep. 
 494-520. 
 
26 THE LAW OF EVIDENCE. §' 26. 
 
 vent one party taking an unconscientious and inequitable advantage 
 of the other and to stop him from deriving a benefit from the con- 
 tract which neither of them intended it should produce.''^ 
 
 § 25 (22). Parties presumed to know the legal effect of their 
 contracts. — ^It is but the logical result of the rule under discussion 
 that persons are presumed to know the legal effect of instru- 
 ments which they have signed *" and, in the absence of evidence 
 showing fraud. or mistake, this presumption becomes so far conclu- 
 sive that no evidence can be introduced to show an understanding 
 different from that which the law would imply from the instrument 
 itself, and the contract should be interpreted as the parties must be 
 supposed to have understood its terms at the time.^^ 
 
 § 26 (22). Same — Misrepresentations as to law. — Since every- 
 one is bound to know the law, misrepresentations respecting it afford 
 no ground of action or defense.^^ Thus, where the party signs the 
 contract he intended to sign without any mistake as to the facts, but 
 
 TSA non-resident is presumed to know the law of the place where he 
 makes a contract, Tyson v. Passmore, 2 Pa. St. 122, 44 Am. Dec. 181; 
 though a mistake as to foreign law is sometimes treated as a mistake of 
 fact, Norton v. Harden, 15 Me. 45, 32 Am. Dec. 132; King v. Doolittle, 1 
 Head, 77. But this is not true when a contract is made with direct refer- 
 ence to the law of another state, Huthsing v. Bosquet, 3 McCrary, 569; 
 Dalyrymple v. Dalyrymple, 2 Hagg. Const. 61. 
 
 soMears v. Graham, 8 Blackf. (Ind.) 144; Kernoohan v. Murray, 111 N. 
 Y. 306, 7 Am. St. Rep. 744; Carr v. Railway Co., 194 U. S. 427. Every one 
 is presumed to know the contents of instruments he signs or directs his 
 name to be signed to. Clem v. Railway Co., 9 Ind. 488, 68 Am. Dec. 653; 
 Harris v. Story, 2 E. D. Smith (N. Y.) 363; or which he executes by mak- 
 ing his mark, D'oran v. Mullen, 78 111. 342; and the rule applies although 
 the person is unable to read or write, Doran v. Mullen, 78 111. 342. This 
 presumption not conclusive and may be overcome by proof of mistake of 
 fact or of fraud, see §§ 435 and 437 infra. Every litigant presumed to 
 know the records of legal proceeding in which he is engaged, Watrous v. 
 Rodgers, 16 Tex. 410; Gouldin v. Shehee, 20 Ga. 531. No presumption in 
 proof of will that deceased knew the instrument to be a will, but proof of 
 testamentary capacity must be given, Gerrish v. Nason, 22 Me. 438, 39 
 Am. Dec. 589; Swett v. Boardman, 1 Mass. 258, and see § 189 infra, also 
 note 17 L. R. A. 494. 
 
 81 Gist V. Drakely, 2 Gill. 330, 41 Am. Dec. 426; Clay v. Ballard, 9 Rob. 
 (La.) 308, 41 Am. Dec. 328. 
 
 82 Lewis V. Jones, 4 Barn. & C. 506; Piatt v. Scott, 6 Blackf. (Ind.) 389; 
 39 Am. Dec. 436; Fish v. Cleland, 33 111. 238; Rashdall v. Ford, L. R. 2 
 Eq. 750; Steamboat Belfast v. Boon Co., 41 Ala. 50; Russell v. Branham, 
 8 Blackf. (Ind.) 277; People v. Supervisors, 27 Cal. 655; Jagger v. Wins- 
 low, 30 Minn. 263; Insurance Co. v. Reed, 33 Ohio St. 283; Gormley v. 
 
§' 27. PRESUMPTIONS. 27 
 
 in law incurs a greater liability than he expected or than was repre- 
 sented to exist, the misrepresentation as to matters of law is no de- 
 fense.*' But if the misrepresentation relates both to matters of fact 
 and law the rule does not apply.** Nor does the rule apply where a 
 party professes to know what the foreign law is and falsely repre- 
 sents the law and misleads the person with whom he is dealing, 
 since foreign law is treated as a matter of fact.*^ The general rule is 
 also subject to the qualification that if the relation of the parties is 
 one of confidence and trust, misrepresentation as to the law may be 
 fraudulent.*^ 
 
 § 27 (23) . Presumption that men know the consequences of their 
 acts. — Another rule closely allied to the last and of constant ap- 
 plication, especially in the criminal law, is that men of sound mind 
 are presumed to intend the natural and necessary consequences of 
 acts which they intentionally perform. The rule is thus broadly 
 stated by Mr. Greenleaf : "Thus also, a sane man is conclusively 
 presumed to contemplate the natural and probable consequences of 
 his own acts."*' It would be clearly repugnant to justice that one 
 should be conclusively presumed to intend the consequences of his 
 accidental or unavoidable acts.** But when the 'proper limitations 
 are observed the rule is hardly open to the severe criticism it has 
 often received. Indeed, there is no rule of law which rests on a bet- 
 ter basis of authority or public policy. The following are illustra- 
 tions of the rule: One who kaowingly utters a forged bill is pre- 
 sumed to intend to defraud.*" The presumption in such case is so far 
 conclusive that the defendant will not be allowed to prove that he 
 intended to pay at maturity. ''° So one who voluntarily does an act 
 
 Gymnastic Association, 55 Wis. 350; Tbompson v. Phoenix Insurance Co., 
 75 Me, 55, 46 Am. Rep. 357. 
 
 83 Fish V. Cleland, 33 111. 238; Hears v. Graham, 8 Blackf. (Ind.) 144; 
 Martin v. Wharton, 38 Ala. 637; Upton v. Tribilcock, 91 U. S. 45 (action 
 on a subscription to stock). 
 
 84 Brown v. Rice's Administrator, 26 Gratt (Va.) 467; Ross v. Drink- 
 ard's Administrator, 35 Ala. 434; Broughton v. Hutt, 3 De Gex & J. 501. 
 
 8sBethell v. Bethell, 92 Ind. 318; Wood v. Roeder, 50 Neb. 479, 70 N. 
 W. 21. 
 
 sejagger v. Winslow, 30 Minn. 263; Durr v. Shockleford, 50 Ala. 437; 
 Adair v. Brimmer, 74 N. Y. 539; Hubbard v. McLean, 115 Wis. 9. 
 
 87 1 Greenl. Bv. § 18; Lowe v. State, 118 "Wis. 641; Cupps v. State, 120 
 Wis. 504. See criticism in 2 Whart. Ev. § 1258. 
 
 88 State V. Hersom, 90 Me. 273, 38 Atl. 160. 
 
 89 King V. Sheppard, Russ. & R. Cr. C. 169. 
 so Reg. V. Hill, 2 Moody Cr. C. 30. 
 
28 THE LAW OF EVIDENCE. §' 29. 
 
 which has a direct tendency to destroy another's life is presumed 
 to have intended to destroy life,"^ and it is presumed that one who 
 wilfully sets fire to the property of another intends to injure the 
 owner."^ 
 
 § 28 (23). Same — ^In civil cases. — Though this presumption has 
 its most frequent application in the criminal law and is frequently 
 classified as a presumption belonging to that branch of law, yet it 
 obtains with equal reason in civil eases. This is illustrated by the 
 cases already cited and in many actions of tort where the ques- 
 tion of intent is material and where there may be no mode of deter- 
 mining the mental processes of the defendant except from his acts. 
 Thus the publisher of a libel is presumed to have acted intentionally 
 and to have intended injury ;°^ and if the acts of an insolvent debtor 
 actually give a preference to certain creditors the intention to give 
 such preference is presumed."* In like manner if one heavily em- 
 barrassed makes a voluntary conveyance of all his property, the in- 
 tention to defraud creditors is presumed."" 
 
 § 29 (24). Presumptions as to malice. — In close logical connec- 
 tion with the subject discussed in last two sections is the presumption 
 of malic'e arising in those crimes where malice is an ingredient and 
 especially in cases of homicide."" The rule that malice wiU be pre- 
 sumed from the mere fact of homicide was very positively and 
 broadly stated by some of the early English commentations."^ Thus 
 Blackstone used the following language: "All homicide is presumed 
 to be malicious until the contrary appeareth in evidence." °* This 
 view has been frequently criticised on the ground that it places the 
 burden of proof upon the defendant, contrary to the spirit of the 
 common law; and on the gt-ound that it arbitrarily assumes the 
 homicide not only to be unlawful but of the most aggravated charac- 
 ter known to the law."" The rule is stated more guardedly by modern 
 
 01 Com. V. York, 9 Met. 93, 43 Am. Dec. 373. 
 
 !>2 Rex V. Parrlngton, Russ. & R. Cr. C. 207. 
 
 93Haire v. Wilson, 9 Barn. & C. 643; Morse v. Times-Republican Print- 
 ing Co., 124 la. 707, 100 N. W. 867; Holmes v. Jones, 147 N. Y. 59, 49 Am. 
 St. Rep. 646, and note. 
 
 04 Denny v. Dana, 2 Cush. 161. 
 
 96 Kaine v. Weigley, 22 Pa. St. 179. 
 
 »8Com. V. York, 9 Met. -93; State v. Payne, 10 Wash. 545, 39 Pac. 157. 
 
 »7 East P. C. p. 224. 
 
 »8 4 Bl. Com. 201. 
 
 80 See article, N. A. Rev. vol. 72, p. 178; Territory v. Lucero, 8 N. M. 
 543, 46 Pac 18. 
 
§' 29. PBESUMPTIONS. 29 
 
 authorities in this country. But by the weight of authority malice 
 is presumed, when an intentional homicide is proved and no justifi- 
 cation or excuse or circumstances of mitigation appear in the evi- 
 dence.^ In such case the killing is at least presumed to be unlawful 
 though it may not under some of the authorities be presumed to be 
 murder in the first degree under the statutes.'' But if the circum- 
 stances attending the homicide are fully shown by the evidence 
 either for the prosecution or defense and circumstances of excuse 
 appear, there is no presumption of malice. Where all the circum- 
 stances of the homicide are given in evidence, the burden remains on 
 the prosecution throughout the case.' In a celebrated case where all 
 the details of the homicide were given in evidence the jury were in- 
 structed in substance that, as the homicide was conceded, the law ' 
 implied a motive and consequently the crime of murder in the first 
 degree, and that they should find the prisoner guilty unless he had 
 given evidence satisfying them that it was manslaughter or excus- 
 able homicide. This was held error on the ground that it improperly 
 placed the burden of proof upon the defendant, and that there was 
 no presumption under the circumstances of the specific intent in- 
 volved in the statute.* The law in civU actions recognizes also the 
 presumption of malice from certain wrongful acts. Thus malice is 
 presumed from the deliberate publication of a libel or slander.'* 
 There need be no proof of malice in the popular sense, but in its 
 legal sense any unlawful act done wilfully and purposely to the 
 prejudice of another is malicious.® 
 
 1 Oliver v. State, 17 Ala. 587; State v. Gilllck, 7 Iowa, 287; Clarke v. 
 State, 35 Ga. 75; Murphy v. People, 37 111. 447; Com. v. Drew, 4 Mass. 391; 
 Mltcliell V. State, 5 Yerg. (Tenn) 340; State v. Willis, 63 N. C. 26; Green 
 V. State, 28 Miss. 687; Spies v. People, 122 111. 1, 3 Am. St. Rep. 320; 
 Marntinez v. State, 30 Tex. Cr. App. 129. But see Com. ' v. Hawkins, 3 
 Gray, 463; Maher v. People, 10 Mich. 212. 
 
 2 Hill V. Com., 2 Gratt. (Va.) 594, and cases last cited. 
 
 3 Com. V. Hawkins, 3 Gray, 463, and cases cited above. 
 
 * Stokes V. People, 53 N. Y. 164. See also Com. v. Drum, 58 Pa. St. 9; 
 Hamby v. State, 36 Tex. 523; State v. Mitchell, 64 Mo. 191; Roberts v. 
 People, 19 Mich. 401; Maher v. People, 10 Mich. 212; State v. Foster, 61 
 Mo. 549. 
 
 6 Morse v. Times-Republican Printing Co., 124 la. 707, 100 N. W. 867; 
 Holmes v. Jones, 147 N. Y. 59, 49 Am. St. Rep. 646, and note. 
 
 «King V. Root, 4 Wend. 113, 21 Am. Dec. 102; Com. v. Snelling, 15 Pick. 
 337; Byrket v. Monohon, 7 Blackf. (Ind.) 83; Haire v. Wilson, 9 Barn. & 
 C. 643; Fisher v. Clement, 18 Bam. & C. 472; Bodwell v. Osgood, 3 Pick. 
 379. 
 
30 THE LAW OP EVIDENCE. §' 31. 
 
 § 30 (25). Presumptions as to regularity — General rule. — ^We 
 
 now come to the discussion of the principle embodied in the familiar 
 maxim, omnia praesumuntur rite et solenniter esse acta. The prin- 
 ciple is that where acts are of an official nature or require the con- 
 currence of official persons a presumption arises in favor of their 
 regularity. Mr. Stephen thus states the rule: "When any judicial 
 or official act is shown to have been done in a manner substantially 
 regular, it is presumed that formal requisites for its validity were 
 complied with. ' ' ' While this presumption had its origin in respect 
 to acts of an official and judicial character, it will be seen during the 
 discussion which follows that it is constantly applied in the courts to 
 contracts and other acts of an unofficial character when such acts 
 are not illegal or repugnant to natural right. 
 
 § 31 (26). Regularity of judicial proceedings — Jurisdiction. — 
 Valuable property rights often depend upon the presumption that 
 judicial proceedings have been regularly and properly conducted. 
 This is especially true after the lapse of time has rendered it prac- 
 tically impossible to furnish extraneous evidence that the require- 
 ments of law have been in all respects complied with. In respect to 
 jurisdiction the doctrine was long since declared in a leading case as 
 follows : ' ' The rule for jurisdiction is this, that nothing shall be in- 
 tended to be out of the jurisdiction of a superior court but that 
 which specially appears to be so." ^ This rule has been fully upheld 
 by the decisions in this country and the doctrine is well settled that, 
 in favor of a court of general jurisdiction, it is presumed that it had 
 jurisdiction of the person of the defendant though that fact does not 
 appear in the record.^ The presumption extends not only to the par- 
 ties but to the subject matter. Jurisdiction as to the subject matter 
 generally appears from the character of the judgment and the law 
 of the forum ; and when this appears to exist, jurisdiction over the 
 
 7 Steph. Ev. art. 101; Co. Litt. 6 b. 332; Broom, Leg; Max. 942. See § 31 
 et seg. infra. 
 
 8 Peacock v. Bell, 1 Saund. 74. See also Kenney v. Greer, 13 111. 432, 
 54 Am. Dec. 439; Royse v. Turnbaugh, 117 Ind. 539. And this Is true 
 even though the proceeding Is under a special statute, In. re Marchant's 
 Estate, 121 Wis. 526. 
 
 8 Foot v. Stephens, 17 Wend. 483; Voorhees v. United States Bank, 10 
 Peters, 447; Bustard v. Gates, 4 Dana (Ky.) 435; Horner v. Doe, 1 Ind. 
 130, 48 Am. Dec. 355; Fox v. Hoyt, 12 Conn. 491, 31 Am. Dec. 760; Rey- 
 nolds V. Stansbury, 20 Ohio, 344, 55 Am. Dec. 459; City of St. Louis v. 
 Lanigan, 97 Mo. 175; Hempstead v. Cargill, 46 Minn. 141; Sichler v. Look, 
 93 Cal. 600. 
 
§■ 32. PKESUMPTIONS. 31 
 
 parties is presumed.^" It will be seen that tlie rule includes those 
 eases where the jurisdictional facts do not appear on the record. In 
 any attempt to impeach the judgment collaterally it wiU be pre- 
 sumed that the necessary facts existed.^^ And generally if parts of 
 the record are lost, or if the record is silent on the subject of juris- 
 diction, or if its statements are incomplete or obscure on the subject, 
 unless the want of jurisdiction is distinctly shown, it will be pre- 
 sumed.^" 
 
 § 32 (27). Presumptions not allowed to contradict the record. — 
 But no presumption can be allowed against the express statements 
 of the record ; thus if the return 'or proof of service shows service 
 at a particular place or upon a person not defendant and there is 
 no averment of other service, there is no room for presumption.'-' 
 And if the record shows steps to have been taken, which in law are 
 insufficient to sustain the judgment, no other steps will be pre- 
 sumed ; thus if it appears that service is made in a particular man- 
 ner no other mode of service can be presumed since this would 
 be a contradiction of the record.^* On the same principle where 
 the judgment recites the facts conferring jurisdiction such recit- 
 als are presumed to be correct. And by the weight of authority 
 such recitals in a domestic judgment are so far conclusive that 
 on grounds of public policy the law does not permit the intro- 
 
 10 Galpin v. Page, 18 Wall. 350. 
 
 11 Thus it has been presumed that a necessary affidavit had been filed, 
 Withers v. Patterson, 27 Tex. 491, 86 Am. Dec. 643; Bush v. Lindsey, 24 
 Ga. 245, 71 Am. Dec. 117; Palmer v. Oakley, 2 Doug. (Mich.) 433, 47 Am. 
 Dec. 41; Weaver v. Brown, 87 Ala. 533; Stahl v. Mitchell, 41 Minn. 325; 
 Reinig v. Hecht, 58 Wis. 212; Prince v. Griffin, 16 Iowa, 552; that pre- 
 liminary rights have been waived, Kenney v. Greer, 13 111. 432, 54 Am. 
 Dec. 439; that an- appearance by an attorney was authorized, Reynolds v. 
 Fleming, 30 Kan. 106, 46 Am. Rep. 86; and in default action where papers 
 were lost or destroyed, that proper service had been made, EJvans v. 
 Young, 10 Col. 316; Fogg v. Gibbs, 8 Baxt. (Tenn.) 464. 
 
 12 Horner v. State Bank, 1 Ind. 130, 48 Am. Dec. 355; Coit v. Haven, 30 
 Conn. 190; Lawler v. White, 27 Tex. 250; Swearengen v. Gulick, 67 111. 208; 
 Goar V. Maranda, 57 Ind. 339; Sharp v. Brunnlngs, 35 Cal. 528; Groves v. 
 First National Bank, 77 Tex. 555; Yaeger v. City of Henry, 39 111. App. 
 21. For discussion see §§ 611, 616, et seg. infra.' 
 
 13 Galpin v. Page, 18 Wall. 350, 364. 
 
 i*Haring v. Chambers, 103 Pa. St. 175; Clark v. Thompson, 47 111. 25, 
 95 Am. Dec. 457; Hahn v. Kelly, 34 Cal. 391, 94 Am. Dec. 742; Forest v. 
 Fey, 218 111. 165, 75 N. E. 789. For example, that a guardian ad litem ap- 
 peared for Infant defendants when the record states there was a default, 
 Schaefer v. Gates, 2 B. Mon. (Ky.) 453; 38 Am. Dec. 164. 
 
32 THE LAW OF EVIDENCE. §' 33. 
 
 duction of extraneous evidence to rebut them in any collateral pro- 
 ceeding.^' It may of course be shown that the recitals as to juris- 
 diction in one part of the record are contradicted by recitals in 
 another part.^* In such eases the whole record will be examined 
 and, if the inconsistency is such that it can be reconciled or if the 
 contradiction is only inferential, the recitals in the judgment show- 
 ing jurisdictional facts will govern.^' 
 
 § 33 (28). Limitations of the rule— Service by publication- 
 Ministerial powers. — ^By the weight of authority the presumption 
 is limited to the jurisdiction over persons within the territorial lim- 
 its of the courts who can be reached by the process of the courts. 
 Hence under the statutes allowing service by publication on per- 
 sons outside the state, no such presiunptions are indulged. It is the 
 prevailing rule that, since such proceedings are contrary to the 
 course of the common law, the requirements of the statute must be 
 strictly followed and that defects and omissions are not to be aided 
 by presumptions in favor of jurisdiction.^' But there are decisions 
 which assert that there is no substantial reason for any such dis- 
 tinction between the presumptions which arise in service by publi- 
 cation and personal service.^^ Where a court of general jurisdiction 
 is authorized in a proceeding, either statutory or at law or in equity, 
 to bring in, by publication or other substituted service, non-resident 
 defendants interested in or having a lien upon property lying 
 within its territorial jurisdiction, but is not required to place the 
 proof of service upon the record, and the court orders such substi- 
 tuted service, it will be presxmied iu favor of the jurisdiction that 
 service was made as ordered, although no evidence thereof appears 
 of record; and the judgment of the court, so far as it affects such 
 
 IB Granger v. Clark, 22 Me. 128; Cook v. Darling, la Pick. 393; Hart- 
 man V. Ogbom, 54 Pa. St. 120, 93 Am. Dec. 679; Callen v. Rllison, 13 Ohio 
 St. 446, 82 Am. Dec. 448; Maples v. Mackey, 89 N. Y. 146; Rogers v. Beau- 
 champ, 102 Ind. 33; McAuley v. Fulton, 44 Cal. 355; Wilchen v. Robert- 
 son, 78 Va. 602. Contra, Ferguson v. Crawford, 70 N. T. 253, 26 Am. Rep. 
 589. See §§ 611, 616 et seq. infra. 
 
 18 Callen v. Ellison, 13 Ohio St. 446, 82 Am. Dec. 448. 
 
 17 Turner v. Jenkins, 79 111. 228; Smith v. Wood, 37 Tex. 616; Treadway 
 V. Eastburn, 57 Tex. 209; Sacramento Bank v. Montgomery, 146 Cal. 745, 
 81 Pac. 138. 
 
 isGalpin v. Page, 18 Wall. 350; Boyland v. Boyland, 18 111. 551; Ne£f v. 
 Pennoyer, 3 Sawy. (U. S.) 274; Brownfield v. Dyer, 7 Bush (Ky.) 505; 
 Kelley v. Kelley, 161 Mass. Ill, 32 N. E. 837, 42 Am. St. Rep. 389; Rol- 
 lins V. Maxwell Bros. 127 Wis. 142. 
 
 !• Stewart v. Anderson 70 Tex. 588; Gemmell v. Rice, 13 Minn. 400. 
 
§' 34. PEESUMPTIONS. 33 
 
 property, will be valid.'"' Another limitation generally recognized by 
 the courts has been thus expressed: "When a court of general juris- 
 diction has conferred upon it special powers by special statute, and 
 such special powers are exercised judicially, that is, according to 
 the course of the common law and of proceedings in chancery, such 
 judgment cannot be impeached collaterally. But when a court of 
 general jurisdiction has conferred upon it special and summary 
 powers, wholly derived from statutes which do not belong to it as 
 a court of general jurisdiction, and when such powers are not ex- 
 ercised according to the course of the common law, its action being 
 ministerial only and not judicial, — in such ease its decision must be 
 regarded and treated like those of courts erf limited and special 
 jurisdiction and no such presumption of jurisdiction will attend 
 the judgment of the court. But in such cases the facts essential to 
 the exercise of the special jurisdiction must appear upon the face 
 of the record."" 
 
 § 34 (29) . Regularity of proceedings subsequent to gaining ju- 
 risdiction. — The presumption not only applies to the fact of juris- 
 diction but to the regularity of proceedings subsequent to the gain- 
 ing of jurisdiction. "When the jurisdiction of a competent court has 
 attached, every act is presumed to have been rightly done until the 
 contrary appears. This applies not only to the final decree but to 
 eveiy judgment or order rendered in the various stages of the pro- 
 ceeding.^'' The reasons on account of which the courts indulge such 
 
 aoApplegate v. Lexington Mining Co.. 117 U. S. 255. See § 607 et seq. 
 infra. 
 
 21 Pulaski Co. V. Stuart, 28 Gratt. (Va.) 872; Thatcher v. Powell, 6 
 Wheat. 119; Cooper v. Sunderland, 3 Iowa, 114, 66 Am. Dec. 52; Shivers 
 V. Wilson, 5 Har. (N. J.) 130, 9 Am. Dec. 497; Foster v. G-lazener, 27 Ala. 
 391; Denning v. Corwin, 11 Wend. 647; Ludlow v. Johnson, 3 Ohio, 553, 
 17 Am. Dec. 609; Embury v. Connor, 3 N. Y. 511, 53 Am. Dec. 325; Brown 
 V. Wheelock, 75 Tex. 385. The fact that judgments are entered on war- 
 rant of attorney does not render the proceeding of this statutory charac- 
 ter, Bush v. Hanson, 70 111. 480. 
 
 22 Fox y. Hoyt, 12 Conn. 491, 31 Am. Dec. 760; Jackson v. Astor, 1 Binn. 
 137, 39 Am. Dec. 289; Slicer v. Bank of Pittsburg, 16 How. 571; Blair v. 
 Railway Co., 89 Mo. 383. If till of exceptions does not contain all the evi- 
 dence it will be presumed that the evidence was sufficient to support the 
 judgment. Wagers v. Dickey, 17 Ohio, 439, 49 Am. Dec. 467 ; Wood v. Lake- 
 shore Ry. Co., 49 Mich. 370; Butler v. Winona Mill Co., 28 Minn. 205, 41 
 Am. Rep. 277; Belkner v. Rhodes, 76 Mo. 643; Fife v. Com. 29 Pa. St. 429; 
 Abbott V. Johnson, 47 Wis. 239; United States v. White, 5 Cranch C. C. 73; 
 Credit Foncier v. Rogers, 10 Neb. 184. Unless record shows otherwise it 
 
 8 
 
34 a'l-IE LAW of EVIbUNCE. § 34. 
 
 presumptions as are enumerated in the notes are thus stated in a 
 Pennsylvania ease: "We are not to expect too much from the rec- 
 ords of judicial proceedings. They are memorials of the judgments 
 and decrees of the judges and contain a general, but not particular, 
 
 will be presumed that improper evidence was not admitted, Wetmore v. 
 Mell, 1 Ohio St. 26, 59 Am. Dec. 607; Sutton v. Reagan, 5 Blackf. (Ind.) 
 217, 33 Am. Dec. 466; Baston v. Lewis (Ariz.), 20 Pac. Rep. 310; or if 
 admitted was disregarded, Ritter v. Schenk, 101 111. 387; that every fact 
 susceptible of proof was proved, "Walling v. Kinnard, 10 Tex. 508, 60 
 Am. Dec. 216; that the charge of the court was correct, Sims v. State, 68 
 Ga. 486; Lackley v. Bostwick, 54 Ga. 45; that the jury followed the in- 
 structions of the court, Abbott v. M. L. H. & T. Co.,* 126 Wis. 634; that 
 where the law required instructions to be in writing that instruction was 
 refused because not in' writing. Green v. State, 66 Ala. 40, 41 Am. Rep. 744; 
 that the grand jury was duly subpoenaed. Long v. State, 46 Ind. 582; 
 that the trial jury were duly sworn, Osgood v. State, 64 Wis. 472, and in 
 charge of a sworn oflScer, State v. Pitts, 11 Iowa, 343, duly admonished by 
 the judge. State v. Shellady, 8 Iowa, 477, and that they possessed sufiBcient 
 intelligence to understand the judge. Hart v. Newton, 48 Mich. 401; that 
 the prisoner was present in court during all proceedings, People v. Stuart, 
 4 Cal. 218 (but in French v. State, 85 Wis. 400, a conviction of murder 
 was not sustained where neither the minutes of the clerk nor the record 
 showed that the prisoner was present in court when the verdict of guilty 
 was rendered or that he was present when sentence was pronounced 
 against him, but in Hoffman v. State, 88 Wis. 166, such defective record 
 was allowed to be amended upon testimony of the clerk and the sheriff) ; 
 that the bill of exceptions is correct, Eastman v. People, 93 111. 112; that 
 the judgment was regular, Falkner v. Christian, 51 Ala. 495; Bunker v. 
 Rand, 19 Wis. 271. After verdict all presumptions are In its favor. Gen- 
 try V. McKehen, 5 Dana (Ky.) 34; Christ v. People, 3 Colo. 394. After 
 judgment it will be presumed that sunvmons was duly served, Ray v. Row- 
 ley, 1 Hun, 614; that proper steps were taken to secure discharge in 
 bankruptcy, Young v. Ridenbough, 3 Dill. (U. S.) 239; Salters v. Tobias, 
 3 Paige, Ch. 338; that writ properly returned was duly served, Drake v. 
 Duvenick, 45 Cal. 455; that necessary parties were before the court, Jones 
 V. Edwards, 78 Ky. 6; that all persons interested had due notice. Brown 
 V. Wood, 17 Mass. 68; Gibspn v. Poster, 2 La. An. 509; that where several 
 acts in a judicial proceeding are performed on the same day, they were 
 performed in prober order to give them legal effect, Knowlton v. Culver, 
 2 Pinn. 243, 52 Am. Dec. 156; Metts v. Bright, 4 Dev. & B. (N. C.) 173, 
 32 Am. Dec. 683; that the court had proper evidence for making an order, 
 Com. V. Bolkom, 3 Pick. 281; Barnard v. Heydrick, 49 Barb. 62; State v. 
 Lewis, 22 N. J. L. 564. The presumption applies where records and docu- 
 mentary evidence are lost and proof by secondary evidence is made. In re 
 Warfleld, 22 Cal. 51, 83 Am. Dec. 49; Carroll v. Peake, 1 Peters, 18. It has 
 been held that the presumption applies only between parties to the pro- 
 ceeding, Seechrist v. Baskin, 7 Watts. & S. (Pa.) 403, 42 Am. Dec. 251. 
 
§' 36. PRESUMPTIONS. 35 
 
 detail of all that occurs before them. If we should insist upon find- 
 ing every fact fully recorded which must occur before a citizen 
 could be punished for an offense against the laws, we should de- 
 stroy public justice and give unbridled license to crime. Much must 
 be left to intendment and presumption, for it is often less difficult to 
 do things correctly than to describe them correctly. ' ' ^' 
 
 § 35 (30). Same — Federal courts. — The same presumptions 
 which are indulged in favor of courts of general jurisdiction of the 
 several states are extended to the federal courts. ' ' The district and 
 circuit courts of the United States, though of limited jurisdiction 
 are not inferior courts in the technical sense of the term. If juris- 
 diction does not appear upon the proceedings, their judgments and 
 decrees will be reversed on error or appeal. But they are not nulli- 
 ties which may be disregarded in a collateral proceeding. In this 
 respect the district and circuit courts of the United States stand on 
 the same footing as courts of general jurisdiction ; and the authority 
 of such courts is always presumed, until the contrary is shown. ' ' ^* 
 
 § 36 (31). The rule as to inferior courts. — It is well settled that 
 the presumption in favor of jurisdiction does not apply to certain 
 inferior courts of special and limited jurisdiction. In the same lead- 
 ing case above referred to, the rule was thus declared: "Nothing 
 shall be intended to be within the jurisdiction of an inferior court, 
 but that which is expressly so alleged. ' ' ^° By this it is meant that it 
 must appear on the face of the proceedings of such courts that they 
 have acted within the scope of their authority ; and that the minutes 
 or record must affirmatively show the existence of all facts neces- 
 sary to jurisdiction.''" It does not necessarily follow however that 
 
 23 Beale v. Com., 25 Pa. St. 11. 
 
 24Ruskman v. Cowell, 1 N. Y. 505, 507; Reed v. Vaughn, 15 Mo. 137, 55 
 Am. Dec. 133; Thomas v. Southard, 2 Dana (Ky.) 475, 26 Am. Dec. 467; 
 Byers v. Fowler, 12 Ark. 218, 54 Am. Dec. 271; Tunell v. Warren, 25 Minn. 
 9; Pierro v. St. Paul Ry. Co., 37 Minn. 313. 
 
 2B Peacock v. Bell, 1 Saund. 73; Lowry v. Erwin, 6 Rob. (La.) 192; 39 
 Am. Dec. 556; Tucker v. Harris, 3 Ga. 1, 58 Am. Dec. 488. Courts of jus- 
 tice of the peace are clearly inferior courts, Spear v. Carter, 1 Mich. 19, 
 48 Am. Dec. 688; Levy v. Sherman, 6 Ark. 182, 42 Am. Dec. 690; Jones v. 
 Hunt, 90 Wis. 199; King v. Inhabitants of All Saints, 7 Barn. & C. 785; 
 although the contra Is held in a few states, Billings v. Russell, 23 Pa. 
 St. 189, 62 Am. Deo. 330; Fox v. Hoyt, 12 Conn. 497, 31 Am. Dec. 760; 
 Wright V. Hazen, 24 Vt. 143; Turner v. Irelatid, 11 Humph. (Tenn.) 
 447; Stevens v. Mangum, 27 Miss. 481. 
 
 28 Kemp V. Kennedy, 5 Cranch, 173; Hall v. Howd, 10 Conn. 514, 27 
 Am. Dec. 696; Cooper v. Sunderland, 3 Iowa, 114, 66 Am. Dec. 52; Horan 
 
36 THE LAW OP KVIDENCB. § 37. 
 
 the judgment is absolutely void if the matters necessary to juris- 
 diction do not appear. In such case, although there is no presump- 
 tion in favor of jurisdiction, it has been held admissible to show the 
 necessary facts by extraneous evidence.'''' The rule that no presump- 
 tions are indulged in favor of the proceedings of inferior courts only 
 applies to the question of jurisdiction; and such courts like others 
 are presumed to have acted correctly as to matters within their 
 jurisdiction.^' 
 
 § 37 (32). Same — Courts of probate. — The rule has sometimes 
 been declared that the probate or county courts of this country as 
 generally created are not courts of general jurisdiction within the 
 meaning of the rule, and that no intendments can be made in favor 
 of their jurisdiction beyond what appears on the face of the proceed- 
 ings.^* But while it is true that such courts are courts of limited 
 jurisdiction, yet they very generally have general jurisdiction over 
 the administration of estates ; they are courts of record, having very 
 extensive powers; and a fair regard for the security of property 
 rights demands that the same presumptions should be extended in 
 favor of their acts as to those of other courts of record. In the opin- 
 ion of the author this view is sustained by the weight of authority.'" 
 
 V. Wahrenberger, 9 Tex. 313, 58 Am. Dec. 145; Adams v. Tiernan, 5 
 Dana (Ky.) 394; Rutherford v. Crawford, 53 Ga. 138. See § 613 infra. 
 
 27 Jolley V. Foltz, 34 Cal. 321; Van Deuzen v. Sweet, 51 N. Y. 381. But 
 such proof is not allowed as to facts which the statutes expressly require 
 to be recorded. See cases last cited. 
 
 28McGrews v. McGrews, 1 Stew. & P. (Ala.) 30; Bacon v. Bassett, 19 
 Wis. 45; Slicer v. Bank of Pittsburg, 16 How. 571; State v. Hinchman, 
 27 Pa. St. 479. 
 
 29 Strouse v. Drennan, 41 Mo. 289 ; Fairfield v. Gullifer, 49 Me. 360. As 
 to the effect of such judgments see § 609 infra. 
 
 30 Johnson v. Beazley, 65 Mo. 250; Schroyer v. Richmond, 16 Ohio St 
 455; Kimball v. Fisk, 39 N. H. 110, 75 Am. Dec. 213; Roderigras v. East 
 River Savings Institute, 63 N. Y. 460, 20 Am. Rep. 555; Fletcher v. 
 Wier, 7 Dana (Ky.) 345; Irwin v. Scriber, 18 Cal. 499; Wyatt v. Steele, 
 26 Ala. 639; Redmond v. Anderson, 18 Ark. 449; Brien v. Hart, 6 Humph. 
 (Tenn.) 131; People v. Cole, 84 111. 327; Brooks v. "Walker, 3 La. An. 150 
 (letters of administration presumptive evidence that requisite oath was 
 taken) ; Den. v. Gaston, 25 N. J. 615 (letters of administration regular on 
 face presumed legally issued) ; Tucker v. Harris, 13 Ga. 1, 58 Am. Dec. 
 488 (administrator's bond presumed to have been given in open court 
 in certain cases). Contra. Musselman's Appeal, 65 Pa. St. 485; Martin v. ■ 
 Williams, 42 Miss. 210, 97 Am. Deo. 456. And see Mercer v. Chase, 9 
 Allen, 242; Peters v. Peters, 8 Cush. 529. But where the records are 
 apparently entire and no loss of papers is suggested it cannot be pre- 
 
§ 40. PEESDMPTIONS. 37 
 
 Special weight attaches to the presumption of regularity in such 
 proceedings after great lapse of time; and after the lapse of many 
 years the presumption has sometimes been held conclusive.'^ 
 
 § 38 (33). Same — ^As to judgments in other states. — The same 
 presumption in favor of jurisdiction may be invoked when a judg- 
 ment rendered in one state is sued on in a sister state. If the record 
 produced shows on its face no want of jurisdiction, it will be pre- 
 sumed that the judgment was properly rendered even though the 
 facts upon which jurisdiction depended do not affirmatively ap- 
 pear.'^ So it will be presumed in favor of jurisdiction that proceed- 
 ings intermediate the commencement of the action and the judgment 
 were regular in their character ; and that the findings of the court in 
 favor of its jurisdiction were correct.*' 
 
 § 39 (34). Same — ^Collateral and direct proceedings. — ^It is to be 
 observed that the conclusive presumptions in favor of jurisdiction 
 which arise from recitals in domestic judgments are confined to 
 collateral proceedings.'* In a direct proceeding between the parties 
 to the judgment the presumption in favor of regularity may be re- 
 butted and it may be shown that the pretended record or judgment 
 is in fact no record at all.'° Thus in a direct proceeding to set aside 
 a judgment it may be shown that the alleged service was fraudu- 
 lent or that no service was actually made.'" 
 
 § 40 (34). Same — Awards of arbitrators. — The presumption of 
 regularity extends to the proceedings of arbitrators. It will be pre- 
 sumed that a final judgment has been made which does not appear, Hath- 
 away V. Clark, 5 Pick. 490; Picto v. Bates, 39 Mo. 292. Nor can it he 
 presumed that an administrator's sale has been confirmed, Walker v. 
 Jessup, 43 Ark. 163. 
 
 81 Sprague v. Litherberry, 4 McLean (U. S.) 442; Austin v. Jordan, 35 
 Ala. 642; Steward v. Dedier, 16 Neb. 58; Stevenson v. McReary, 17 Smed. 
 & M. (Miss.) 9, 51 Am. Dec. 102; Wyatt v. Scott, 33 Ala. 313; Desverges 
 V. Desverges, 31 Ga. 753. 
 
 32BufEum v. Stimpson, 5 Allen, 591, 81 Am. Dec. 767; State v. Weber, 
 (Minn.) 105 N. W. 490; Stewart v. Stewart, 27 W. Va. 167; Lockhart v. 
 Locke, 42 Ark. 17; Mills v. Stewart, 12 Ala. 90; Lincoln v. Tower, 2 Mc- 
 Lean (U. S.) 473; Dodge v. Coffin, 15 Kan. 277; Davis v. Connelly's 
 Executors, 4 B. Mon. (Ky.) 136. See § 617 infra. 
 
 33 Harper v. Nichol, 13 Tex. 151; Nunn v. Sturges, 22 Ark. 389 
 
 84 See § 619 infra. 
 
 35 Ducan v. Gerdine, 59 Miss 550. See § 619 infra. 
 
 ssNewcomb v. Dewey, 27 Iowa, 381; McNeill v. Edie, 24 Kan. 108; Bond 
 V. Wilson, 8 Kan. 299, 12 Am. Rep. 466; Chambers v. Bridge Manufactory, 
 16 Kan. 270; Hanson v. Wolcott, 19 Kan. 207. 
 
38 THE LAW OF EVIDENCE. §' ^^^ 
 
 sumed in support of their award that they have proceeded regularly 
 and acted fairly and that they have received all the testimony which 
 was offered; and everj' reasonable intendment will be made in 
 favor of their award.^'' 
 
 § 41 (35). Regularity .of official acts. — The presumption of the 
 regularity of official acts not only embraces judicial acts but those of 
 other officers. Naturally the presumption has less weight and hence 
 it is more easily rebutted when applied to acts in non-judicial pro- 
 ceedings; but in each case the principle is the same, namely that, 
 when an official act is shown to have bepn substantially regular, it 
 is presumed that the formal requisites were also performed.^* Pre- 
 sumptions of this character are of constant application in a great 
 variety of cases. Their weight varies greatly, depending on the 
 length of time which has elapsed, the degree of the responsibility 
 resting upon the officer, the extent to which he has been recognized 
 as such by others and the nature, of the acts themselves and in many 
 eases these presumptions have no other effect than to determine the 
 burden of proof. 
 
 § 42 (35). Same. — In a leading case Mr. Justice Story thus 
 states the principle and the grounds on which the presumption rests 
 and shows that it is not confined to official acts: "By the general 
 rules of evidence presumptions are continually made in cases of pri- 
 vate persons, of acts even of the most solemn nature, when those acts 
 are the natural results or necessary accompaniment of other circum- 
 stances. In aid of this salutary principle the law itself, for the pur- 
 pose of strengthening the infirmity of evidence and upholding trans- 
 actions intimately connected with the public peace and the security 
 
 37 Browning v. Wheeler, 24 "Wend. 258, 35 Am. Dec. 617; Bullitt v. 
 Musgrave, 3 Gill (Md.) 31; Yates v. Rissell, 17 Johns. 461; Ackley v. 
 Finch, 7 Cow. 290; Lamphire v. Cowan, 39 Vt. 420; Hayes v. Forskoll, 31 
 Me. 112; Davies v. Pratt, 17 C. B. 183; Strong v. Strong, 9 Gush. 560; Ken- 
 drick V. Tarbell, 26 Vt. 416; Wood v. Treleven, 74 Wis. 577; Brush v 
 Fisher, 70 Mich. 469, 14 Am. St. Rep. 510; McCord v. Flynn, 111 Wis. 78; 
 Parsons v. Aldrich, 6 N. H. 264; Hendrickson v. Reinbach, 33 111. 299; 
 Case V. Ferris, 2 Hill, 75; Robertson v. McNeil, 12 Wend. 278; Chapin v. 
 Broody, 25 N. H. 285; Joy v. Simpson, 2 N. H. 179; Dolph v. Clemens, 4 
 Wis. 181, as to presentment of claims; Robinson v. Hawkins, 38 Vt. 693, 
 as to the taking and administering of an oath. This presumption extends 
 to the proceedings of commissioners of equalization of taxes. Foster v. 
 Rowe, 128 Wis. 326. 
 
 88 State V. Baptiste, 105 La. 661, 30 So. 147; Lyman County v. State, 11 
 S. 0. 391, 78 N. W. 17; State v. Kempf, 69 Wis. 470, 2 Am. St. Rep. 753; 
 Dubuc V. Voss, 19 La. An. 210, 92 Am. Dec. 526. 
 
§ 43. PRESUMPTIONS. 39 
 
 of private property, indulges its own presumptions. It presumes 
 that every man in his private and official character does his duty 
 until the contrary is proved; it will presume that all things are 
 rightly done unless the circumstances of the case overturn, thus it 
 presumption, according to the maxim, omnia praesumuntur rite et 
 solenniter esse acta donee probetur in contrarium. This will pre- 
 sume that a man acting in a public capacity has been rightly ap- 
 pointed ; that entries found in public books have been made by the 
 proper officer; that, upon proof of title, matters collateral to that 
 title shall be deemed to have been done ; as, for instance, if a grant 
 of feoffment has been declared on, attornment will be intended, and 
 that deeds and grants have been accepted, which are manifestly for 
 the benefit of the party.^' 
 
 § 43 (36) . Presumption of authority from acting in official capa- 
 city. — It has long been held that due appointment to office may 
 be presumed, until the contrary appears, from the fact that one has 
 acted in an official capacity. In England the rule has been held ap; 
 plicable to masters in chancery, surrogates, sheriffs, under sheriffs, 
 justices of the peace, constables and numerous other officers ; *" and 
 indeed is said to extend to all public officers. The same rule applies 
 though the action be in the name of the officer, or though the title 
 be directly put in issue by the pleading, or though the proceedings 
 be criminal.*^ It would cause great inconvenience if, in the first in- 
 stance, strict proof were required of appointment or election to office 
 in all cases where it might be only collaterally in issue, and it im- 
 poses no hardship in most eases to indulge the presumption that one 
 assuming to be a public officer is not an intruder and violator of the 
 law. Indeed, but for such a presumption, acting officers would find 
 no protection in the discharge of public duties. In the United States 
 the rule has been applied in a great variety of cases. *^ 
 
 s9 Bank of United States v. Dandridge, 12 Wieat. 64, 69. See note to 
 Wood V. Chapin, 67 Am. Dec. 73. 
 
 40 Marshall v. Lamb, 5 Q. B. 115; R. v. Verelst, 3 Camp. 432; Bunbury 
 V. Matthews, 1 Car. & K. 380; Plumer v. Brisco, 11 Q. B. 46; Berryman v. 
 Wise, 4 T. R. 366. As to the mode of appointment of oflacers, see § 205 
 infra. 
 
 iiCannell v. Curtis, 2 Bing. N. C. 228; Hayes v. Dexter, 13 Ir. L. Rec. 
 N. S. 22. 
 
 42 Ronhendorff v. Taylor's Lessee, 4 Peters, 349 ; Tucker v. Aiken, 7 N. 
 H. US; State v. Roberts, 52 N. H. 492 (collector of taxes); Com. v. Mc- 
 Cue, 16 Gray, 226 (pound keeper) ; Connely v. Riley, 25 Md. 402 (notary 
 public); Commissioners v. Anderson, 20 Kan. 298, 27 Am. Rep. 171 
 
40 THE LAW OF EVIDENCE. §' 45. 
 
 § 44 (37). Same — Not restricted to official appointments. — ^It 
 
 has been applied to constables and watchmen appointed by commis- 
 sioners under a local act, and to trustees empowered by act of parlia- 
 ment to raise money to build a church.*^ The same presumption has 
 been applied where professional men as surgeons and attorneys 
 have brought action for slander or libel in their professional capac- 
 ity, although these cases may rest on the principle that the profes- 
 sional capacity of the plaintiff had been recognized or admitted in 
 the defamatory language ; and in such cases, if the professional ca- 
 pacity of the plaintiff is denied, there should be proof of appoint- 
 ment or of authority to act.** Said Chief Justice Marshall : ' ' Cer- 
 tain gentlemen, first licensed by the government, are admitted by 
 order of court, to stand at the bar with a general capacity to repre- 
 sent all suitors. The appearance of any one of these gentlemen in a 
 cause has always been received as evidence of his authority, and no 
 additional evidence, so far as we are informed, has ever been re- 
 quired. This practice, we believe, has existed from the first estab- 
 lishment of our courts, and no departure from it has been made in 
 those of any state or of the Union. ' ' *" 
 
 § 45 (38). Performance of ofQcial duty. — The maxim, omnia 
 praesumuntur rite et solenniter esse acta, does not depend alone on 
 the ground that the official act is performed by an officer who has 
 taken the oath of office, though undoubtedly this is one of the consid- 
 erations which support the presumption of regularity in such cases ; 
 and we find the statement constantly recurring in judicial decisions 
 that sworn public officials are presumed to have properly performed 
 their duties in the absence of evidence to the contrary.*" The pre- 
 
 (county commissioner) ; Killpatrick v. Frost, 2 Grant Cas. (Pa.) 168 
 (marshal); McCormick v. Cleveland, 98 Wis. 522 (justice of the peace). 
 
 "Butler V. Ford, 1 Cromp. & M. 662; Best, Ev. (10th Ed.) § 357. 
 
 44Berryman v. Wise, 4 T. R. 366; Collins v. Carnegie, 1 Adol. & Ell. 
 695; Pickford v. Gutch, 8 T. R. 305. See discussion of this subject, Tayl. 
 Ev. (10th Ed.) §§ 173, 174, 175. 
 
 45 0sborn v. Bank, 9 Wheat. 738; In re Gasser, 104 Fed. 537. Thus an 
 attorney who files papers Is presumed to have authority to do so. Beem v. 
 Kimberly, 72 Wis. 343; Field v. Proprietors, 1 Cush. 11; Tally v. Rey- 
 nolds, 1 Ark. 99, 31 Am. Dec. 737; Penobscot Boom Co. v. Lamson, 16 Me. 
 224, 33 Am. Dec. 656. When an attorney appears and commences an ac- 
 tion, he Is presumed to have authority. McAlexander v. Wright, 3 B. 
 Mon. 189, 16 Am. Dec. 93 and note. 
 
 *8SquIer v. Stockton, 5 La. An. 120, 52 Am. Dec. 583; Par v. Sims, 
 Rich. Ed. Cas. (S. C.) 122, 24 Am. Dec. 396; Templeton v. Morgan, 16 La. 
 An. 438; Ross v. Reed, 1 Wheat. 482; Hickman v. Boffman, Hardin (Ky.) 
 
§ 46. PRESUMPTIONS. 41 
 
 sumption has been applied to acts of officers of almost every class, 
 and a few illustrations will sufficiently illustrate the rule.*' 
 
 § 46 (39,40). Same — ^Acts of municipal officers. — On the samo 
 principle this presumption of regularity is extended to the acts of 
 the officers of municipal corporations^^ It was applied in the fol- 
 
 348; State v. Rosenthal, 123 Wis. 442; U. S. v. Commonwealth Trust Co , 
 193 U. S. 651; Haokfeld & Co. t. United States, 197 U. S. 442. 
 
 " Schermerhorn v. Talman, 14 N. Y. 93, presumed clerk of court prop- 
 erly administered oath. Surveys by public officers regular on lace are 
 presumed prima facie correct. Pindley v. McCormick, 50 Ind. 19; Trot- 
 ter V. President, 9 Mo. 69; Harris v. Buroham, 1 Wash. C. C. 191; Baeder 
 V. Jennings, 40 Fed. Rep. 199. This presumption is frequently extended 
 in the official acts of sheriffs and similar officers, Shorey v. Hussey, 32 
 Me. 579; Conwell v. Watkins, 71 111. 488; Curtis v. Herrick, 14 Cal. 117; 
 Cooper V. Granberry, 33 Miss. 117; Hartwell v. Root, 19 Johns. 345; Hef- 
 ner V. Hesse, 29 La. An. 149; Sadler v. Anderson, 17 Tex. 245; thus a 
 sale by a sheriff under execution is presumed to have been made at 
 proper time and place, Howard v. North, 5 Tex. 290, 51 Am. Dec. 769; 
 and the property levied on by him to be rightfully in his possession. 
 Wafer v. Pratt, 1 Rob. (La.) 41, 36 Ato. Dec. 581; and that the recitals in 
 his return are correct, Morse v. McCall, 13 La. An. 215; Case v. Colston, 
 
 I Met. (Ky.) 145; that before a sale a levy and notice of sale had been 
 made. Smith v. Hill, 22 Barb. 656; Culbertson v. MilhoUin, 22 Ind. 362; 
 that the deed was executed in due form, Armstrong v. McCoy, 8 Ohio, 
 128, 31 Am. Dec. 435; and a proper return made, Conwell v. Watkins, 71 
 111. 488; New River Mineral Co. v. Roanoke C. & C. Co., 110 Fed. 343. 
 This presumption applies to acts of attorneys and, notaries, Pennington 
 v. Yell, 11 Ark. 212, 52 Am. Dec. 262; assessors, Perkins v. Nugent, 45 
 Mich. 156; clerics of court, Niantlc Bank v. Dennis, 37 111. 381; Craig v. 
 Adair, 22 Ga. S73;. recording officers, Rollins v. Wright, 93 Cal. 395; Col- 
 lins v. Valleau, 79 Iowa, 626; constables, Richardson v. Smith, 1 Allen, 
 541; military and fiscal officers of the United States, United States v. 
 Crusell, 14 Wall. 1. For further illustrations, see Nelson v. People, 23 
 N. Y. 293; Parkinson v. Bracken, 1 Finn. 174, 39 Am. Dec. 296; Forsaith 
 V. Clark, 21 N. H. 409; Bullen v. Arnold, 31 Me. 583. 
 
 48 Thus it wjll be presumed that ordinances have been properly passed. 
 City of Louisville v. Hyatt, 2 B. Mon. (Ky.) 177, 36 Am. Dec. 594; In re 
 Board of Rapid Transit Commissioners, 18 N. Y. S. 320; City of Dulutb 
 V. Krupp, 46 Minn. 435; and adjournments regularly taken. Freeholders 
 V. State, 24 N. J. L. 718; but see Schott v. People, 89 111. 195; that all 
 formalities have been complied with in the making of contracts, New Or- 
 leans v. Hal pin, 17 La. An. 185; Jackson School Township v. Hadley, 59 
 Ind. 534; that elections were legally held, Mussey v. White, 3 Me. 290; 
 that the municipality is regularly organized, Jameson v. People, 16 lU 
 257, 63 Am. Dec. 304; 'Bassett v. Porter, 4 Gush. 487; Sherwin v. Bugbee 
 
 II Vt. 439; People v. Farnham, 35 111. 562; People v. Maynard, 15 Mich 
 463; New Boston v. Dunbarton, 12 N. H. 409; Robie v. Sedgwick, 35 Barb. 
 
42 THE LAW OF EVIDENCE. §' 47. 
 
 lowing case in the supreme court of the United States. In an action 
 on municipal bonds it appeared that an election had been held, that 
 the votes cast had been canvassed by the proper officers, and an order 
 made by the county court for a subscription in accordance with the 
 terms of the order for the election. From these facts it was held a 
 proper presumption that due notices of the election had been given 
 on the ground that where an act is done which can be done legally 
 only after the performance of some prior act, proof of the latter car- 
 ries with it a presumption of the due performance of the prior act.*' 
 § 47 (41). Statutory presumptions of this class. — ^Presumptions 
 in favor of the regularity of official acts are frequently created by 
 statute. Thus in the various jurisdictions statutes will be found 
 providing that a tax deed duly witnessed and acknowledged shall be 
 presumptive evidence of the regularity of all the proceedings from 
 the valuation of the lands by the assessor up to and including the 
 execution of the deed. So statutes are frequently enacted providing 
 that former acknowledgments of deeds, taken in other states of 
 
 319; that a town has the requisite number of officers, Downing v. Rugar, 
 21 Wend. 178, 34 Am. Dec. 223: when a person acts as an officer of a corpo- 
 ration and is recognized as such, a regular appointment will be pre- 
 sumed. United States Bank v. Dandridge, 12 Wheat. 64; Kiley v. Forsee, 
 57 Mo. 390. In like manner acts published in the usual manner and 
 among the public acts will be presumed to have been regularly passed. 
 Illinois Central Ry. Co. v. Wren, 43 111. 77; Bedard v. Hall, 44 111. 91; Peo- 
 ple ex rel. Barnes v. Starne, 35 111. 121, 85 Am. Dec. 348 and elaborate 
 note. For mode of determining whether a statute was legally enacted, 
 see § 117 infra. That custodians of public documents have performed their 
 duty by keeping and preserving them, Hemingway v. State, 68 Miss. 371; 
 Hall V. Kellogg, 16 Mich. 135; Morrill v. Douglas, 14 Kan. 293; Hommell 
 V. Devinney, 39 Mich. 522. But this- presumption is limited to official 
 acts. Murphy v. Chase, 103 Pa. St. 260. It will not be presumed that the 
 officer is in default upon the presumption that the other party has per- 
 formed his duty. Weimer v. Bamburg, 30 Mich. 201. Nor is the presump- 
 tion a substitute for wholly independent and material facts having no 
 necessary connection with such official acts. United States v. Ross, 92 
 U. S. 281. Nor is it effective when the officer acts under a naked statu- 
 tory power with a view to divest the title or right of a citizen. Keane v. 
 Cannovan, 21 Cal. 291, 82 Am. Dec. 738; Thatcher v. Powell, 6 Wheat. 
 119; Jackson v. Shepard, 7 Cow. 88, 17 Am. Dec. 502; Sharp v. Johnson, 
 4 Hill, 92, 40 Am. Dec. 259; Polk v. Rose, 25 Md. 153, 89 Am. Dec. 773; Mar- 
 tin V. Rushton, 42 Ala. 289; Nichols v. Bridgport, 23 Conn. 189, 60 Am. 
 Dec. 636. 
 
 *9Knox County v. Ninth National Bank, 147 U. S. 91; Fel-cher v. Hodg- 
 man, 60 Ohio St. 317, 56 N. B. 1018; Stanley County v. Coler, X90 U S 
 437. 
 
§■ 49. PRESUMPTIONS. 43 
 
 lands within the jurisdiction, shall be presumed to have been taken 
 in conformity to law ; and that orders of the proper officers laying 
 out highways are presumptive evidence of notice and of regularity 
 of former proceedings. Equally important illustrations of such leg- 
 islation will be found in numerous statutes in the several states 
 which provide that judicial sales ^shall be presumed to have been 
 regular after the lapse of time or after proof has been made of cer- 
 tain jurisdictional facts. These statutes are of special importance 
 in supporting titles depending upon proceedings in courts of pro- 
 bate. No attempt will be made to enumerate the statutes of the sev- 
 eral states creating these and similar presumptions, but it is left 
 with the pradtitioner to consult the statutes and decisions of the 
 jurisdiction."" 
 
 § 48 (42). Presumptions of regularity in imoflacial acts — ^In gen- 
 eral. — Gradually the presumption that ofSeials obey the mandates 
 of the law and perform their duties has been extended to include 
 to some extent the acts of private persons as well in the transaction 
 of affairs of business. Courts have sanctioned the presumptions 
 which will be mentioned in the following sections on the grounds 
 that men are presumed to have acted legally and properly rather 
 than otherwise, and that it is reasonable to assume that the usual 
 and customary modes of business have been adopted in given cases, 
 • until some departure from the regular mode has been shown. But it 
 is evident from the very statement of the considerations which have 
 influenced the courts io adopt presumptions of this class that such 
 presumptions are far from conclusive and that they must be re- 
 ceived with caution, yet they have been applied to an infinite variety 
 of cases, sometimes being entitled to considerable weight, in others 
 to very little; generally their chief importance is to determine the 
 burden or order of proof. 
 
 § 49 (43). Same — As to negotiable paper. — Presumptions of this 
 character are perhaps most frequently indulged in in respect to ne- 
 gotiable paper. It is presumed that such paper was regularly issued 
 for a valuable consideration, and that the payee or the one who has 
 purchased it before maturity is a bona fide holder and entitled to re- 
 cover the full amount."^ But if the defendant can show that the 
 note was originally obtained by duress; secured through fraud, or 
 
 so See extended note, 36 Am. St. Rep. 682-689. 
 
 siDickerson v. Burke, 25 Ga. 225; Wilson v. Lazier, 11 Gratt. 477; 
 Clarke v. Schneider, 17 Mo. 295; Poorman v. Mills, 35 Cal. 118. See full 
 note, 17 L. R. A. 326. 
 
44 THE LAW OF EVIDENCE. §' 50. 
 
 that it was lost or stolen, the burden is changed, and the presump- 
 tion then arises that the guilty person will part with the instrument 
 for the purpose of enabling some third party to recover for his 
 benefit.^" There is also a presumption that an endorsement, made by 
 a payee or endorsee without date, was before maturity and that the 
 holder acquired the note or bill before maturity, and in the absence 
 of proof the endorsement will be presumed to have been at the time 
 of execution of the note "' and at the place where the instrument is 
 dated.^-* 
 
 § 50 (44). Presumptions that documents have been duly exe- 
 cuted. — ^It is a rule of general application that documents regular 
 on their face are presumed to have been properly executed and to 
 have undergone all formalities essential to their validity.^" Thus it 
 
 82 Bailey v. Bldwell, 13 M. & W. 73; Edmonds v. Groves, 2 M. & W. 642; 
 Bingliain v. Stanley, 2 Q. B. 117; Wyat v. Bulmer, 2 Bsp. 538; First Na- 
 tional Bank V. Green, 43 N. Y. 298; Knight v. Pugh, 4 "Watts & S. (Pa.) 
 445, 39 Am. Dec. 99; Brown v. Street, 6 Watts & S. (Pa.) 221. See note, 
 11 Am. St. Rep. 323-326. 
 
 BSMobley v. Ryan, 14 111. 51, 56 Am. Dec. 488; Ranger v. Carey, 1 Met 
 369; Pettis v. Westlake, 3 Scam. 535; McDowell v. Goldsmith, 6 Md. 319; 
 61 Am. Dec. 305; New Orleans, etc. v. Montgomery, 95 U. S. 16; Cripps v. 
 Davis, 12 M. & W. 165; Snyder v. Oatman, 16 Ind. 265; Pinkerton v. 
 Bailey, 8 "Wend. 600; Mason v. 'Noonan, 7 Wis. 510; Colburn v. Averill, 30 
 Me. 310, 50 Am. Dec. 630. Contra, Ruddell v. Landers, 25 Ark. 238, 94' 
 Am. Dec. 719. The rule is otherwise as to non-negotiable paper. Barrick 
 v Austin, 21 Barb. 241. 
 
 BiLemig v. Ralston, 23 Pa. St. 139. Thus It is presumed that a bill of 
 exchange was accepted before maturity, Roberts v. Bethell, 12 C. B. 778 
 (for extended note as to liability of a stranger who endorses commercial 
 paper before delivery, see 18 L. R. A. 33); that the holder of a note pay- 
 able to bearer is the owner, Stoddard v. Burton, 41 Iowa, 582; that the 
 drawee of a check Tcnows the signature of the drawer, Redington v. 
 Woods, 45 Cal. 406; that a note in the possession of the maker has been 
 paid, Gray v. Gray, 2 Lans. 173; Hollenberg v. Lane, 47 Ark. 394; Calla- 
 han V. Bank, 82 Ky. 231; Tuskaloosa Oil Co. v. Perry, 85 Ala. 158; Turner 
 V. Turner, 79 Cal. 565. The rule is the same as to a note with the name 
 torn off, Powell v. Swan, 5 Dana (Ky.) 1; and as to a due bill, Tedens v. 
 Schumers, 112 111. 263. A settlement of accounts will be presumed from 
 the making of a note, Copeland v. Clark, 2 Ala. 388; Campbell v. Hays, 1 
 Ind. 547; DeFreest v. Bloomingdale, 5 Den. 304; and when several per- 
 sons sign a note they will be presumed equally liable, Orvis v. Newell, 17 
 Conn. 97; but there is no presumption from the drawing of a checl: that 
 it was in payment of a debt to the bank, White v. Ambler, 8 N. Y. 170. 
 See extended note, 17 L. R. A. 328. 
 
 55 Clements v. Machebouef, 92 U. S. 418; Freeman v. Thayer, 33 Me. 76; 
 
§' 50. PKESUMPTIONS. 45 
 
 will be presumed that the maker of an instrument executed it before 
 the witness signed/^ and that a document purporting to be witnessed 
 was witnessed at the time of its execution."^ When different deeds 
 and leases are made bearing date on the same day and the order of 
 the execution does not appear, it wiU be presumed that they were 
 made in the proper order and to carry out the obvious intent of the 
 parties.^* "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." °° If after notice to pro- 
 duce, secondary evidence is offered of a document which must 
 have been stamped in order to be legal, the presumption is that it 
 was duly stamped."" The rule is the same where secondary evidence 
 is given of a lost instrument "^ or of notice of protest, the contents 
 not being proved."'^ It is an application of the same principle that 
 when a contract which should be in writing under the statute of 
 frauds is declared to have been duly made it will be presumed to be 
 in writing.*^ So where a deed is duly signed, attested and witnessed 
 there arises a presumption of sealing and delivery,"*' and the time of 
 its execution and delivery is presumed to be on the day of its date.*'' 
 And where a power of attorney to make a deed is shown to have 
 been executed, it is presumed that the trust reposed in the attorney 
 was executed in good faith."* In like manner, delivery and accep- 
 tance and knowledge of contents are presumed after due acknowl- 
 
 Sadler v. Anderson, 17 Tex. 245; Diehl v. Ewing, 65 Pa. St. 320; Roberts 
 V. Pillow, 12 Ark. 822. 
 
 06 Hughes V. Debnom, 8 Jones (N. C.) 127. 
 
 07 Pringle v. Dunn, 37 Wis. 449. 
 
 08 Dudley v. Cadwell, 19 Conn. 218; Taylor v. Horde, 1 Burr. 106; Bar- 
 ker V. Keete, 1 Freem. 250; Steph. Ev. art. 85. 
 
 08 Steph. Ev. art. 85. See also Houliston v. Smith, 2 Car. & P. 24. 
 
 00 Crisp V. Anderson, 1 Stark. 35. 
 
 ei Marine Investment Co. v. Haviside, 5 L. R. H. L. Cas. 624; Thayer v. 
 Barney, 12 Minn. 502. 
 
 62 Burgess v. Vreeland, 2 Zab. (N. J.) 71, 59 Am. Dec. 408. 
 
 eaPrintup v. Johnson, 19 Ga. 75; Coles v. Bowne, 10 Paige, 526. 
 
 84 Ball V. Taylor, 1 Car. & P. 417; Hall v. Bainbridge, 12 Q. B. 699; Orel- 
 lier V. Neale, 1 Peake, 199; Tulbat v. Hodson, 7 Taunt. 251. But in this 
 country if the original deed has no seal in such manner as to be valid 
 under the law of the. state, the fact that there is a recital of sealing is 
 not sufficient. State v. Humbird, 54 Md. 327; Chilton v. Peopla, 66 111. 501. 
 
 60 Hardin v. Crate, 78 111. 533; Smiley v. Pries, 104 111. 416. 
 
 66 Clements v. Machebouef, 92 U. S. 418. 
 
46 THE LAW OP EVIDENCE. §' 51. 
 
 edgment and recording."' And where a mortgage for purchase 
 money was regular, it was presumed that a lost deed executed at 
 the same time was also regular."' On the same principle recitals in 
 ancient documents of former documents have heen held presumptive 
 evidence of their existence."' And where an attested copy of a deed 
 from its registry is introduced as evidence bearing a scroll and the 
 word "seal" written upon it in a place where the seal is usually 
 placed, it will be presumed that the original was properly sealed.'" 
 And if a will purports to have heen duly signed, attested and wit- 
 nessed, on proof of execution the court will presume, in the case of 
 the death of the witnesses or in case they do not remember the facts 
 connected with its execution, that the law was complied with,'^ and 
 the details of the statutory requirements will be presumed, whether 
 it is so stated in the attestation clause or not, unless the contrary is 
 proven.'^ 
 
 § 51 (45). Dates, when presumed correct. — ^It is on the same 
 principle that dates in written instruments are presumed to be cor- 
 rect, and that such instruments are presumed to have been executed 
 at the time indicated by the date they bear. It is doubtless true that 
 in the great majority of cases the date of the instrument and the 
 time of its execution are the same, hence the inference may be fairly 
 drawn until the contrary is proven." But it has been held that the 
 
 er Warren v. President, 15 111. 236, 58 Am. Dec. 610; Rushln v. Shields, 
 10 Ga. 636, 56 Am. Dec. 436; Blight v. Schenck, 10 Pa. St 285, 51 Am. 
 Dec. 478. 
 
 08 Grodfroy v. Disbrow, Walk. (Mich.) 260. 
 
 69 Fuller V. Saxton, 20 N. J. L. 61. 
 
 70 Deininger v. McConnell, 41 111. 228. 
 
 71 Burgoyne v. Showier, 1 Rob. Ecc. 5; Brenchley v. Still, 2 Roberts, 162; 
 Thompson v. Hall, 2 Roberts, 426; Reeves v. Lindsay, I. R. 3 Bq. 509; 
 Hughes V. Hughes, 31 Ala. 519; Auburn Seminary v. Calhoren, 25 N. Y. 
 422; In re Gillmor's Will, 117 Wis. 302. But see Croft v. Croft, 4 Swab. 
 & T. 10. 
 
 72Deupree v. Deupree, 45 Ga. 415; Fatheree v. Lawrence, 33 Miss. 585; 
 Croft V. Pawlet, 2 Str. 1109; Eliot v. Bliot, 10 Allen, 357; Barnes v. 
 Barnes, 66 Me. 286; Chaffee v. Convention, 10 Paige, 85, 40 Am. Dec. 225, 
 and note; In re Johnson, 2 Curt. (TJ. S.) 341; Blocher v. Hostetter, 2 
 Grant Cas. (Pa.) 288. 
 
 73 This rule has been applied to deeds, Smith v. Porter, 10 Gray, 66; 
 Costigan v. Gould, 5 Den. 290; Pullen v. Hutchinson, 25 Me. 242; McFar- 
 lane v. Louden, 99 Wis. 620; Conley v. Finn, 171 Mass. 70. People v. Sny- 
 der, 41 N. Y. 397, as to the presumption of delivery on the day ot date; 
 assignments, Byrd v. Tucker, 3 Ark. 451; mortgages, Merrill v. Dawson, 
 Hemp. (U. S.) 563; receipts of payment, Caldwell v. Gamble, 4 Watts 
 
§' 52. PEBSUMPTIONS. 47 
 
 rule does not apply when a deed is offered to support an action 
 against one who is neither a party nor privy to it;'* and in respect 
 to forged instruments there is no presumption of delivery on the 
 day of the date or at any particular time." Nor does it apply where 
 it is apparent that there was a motive for collusion or fraud.''" And 
 although dates in written instruments are presumed correct they do 
 not afford any presumption of the truth of collateral facts, as of 
 the presence of the alleged signers at the time and place the instru- 
 ment purports to have been made." 
 
 § 52 (46). Presumptions as to the mailing and receipt of let- 
 ters. — When it is shown that a letter has been deposited in the 
 postofSce properly stamped and addressed correctly, and to the true 
 place of residence of the person to whom it is sent, it wiU be pre- 
 sumed that he received it in the due course of mail. The presump- 
 tion is based on the fact that the postoffice is a public agency, charged 
 yrith the duty of transmitting letters, and on the assumption that 
 what ordinarily results from the transmission of a letter through the 
 postoffice probably resulted in the given case. The known difficulty 
 of making strict proof of facts of this character has no doubt also 
 influenced the courts in holding that such a presumption exists.''' 
 
 (Pa.) 292; notes, tills and endorsements, Kinsley v. Sampson, 100 111. 
 573; Claridge v. Klett, 15 Pa. St. 255; Taylor v. Snyder, 3 Den. 145, 45 
 Am. Dec, 457; letters, Anderson v. Weston, 6 Blng. N. C. 296; Pullen v. 
 Hutchinson, 25 Me. 249; Abroms v. Pomeroy, 13 111. 133; Breek v. Cole, 
 4 Sandf. 79; Smith v. Shoemaker, 17 Wall. 630; but see Butler v. Mount- 
 garret, 7 H. Xj. Cas. 647; agreements, Sinclair v. Baggaley, 4 M. & W. 312; 
 and legal processes. Day v. Lamb, 7 Vt. 426; Lyle v. Bradford, 7 Mon 
 (Ky.) Ill; Bunker v. Shed, 8 Met. 150. 
 
 T4 Baker v. Blackburn, 5 Ala. 417. But see Potez v. Glossip, 2 Exch. 
 191. 
 
 76 Remington Co. v. O'Dougherty, 81 N. Y. 474. 
 
 76Hoare v. Coryton, 4 Taunt. 560; Wright v. Lainson, 2 M. & W. 73b. 
 Contra, Sinclair v. Baggaley, 4 M. & W. 312; Taylor v. Kinloch, 1 Stark. 
 
 175. 
 
 77 Given v. Albert, 5 Watts. & S. (Pa.) 333. 
 
 78 Austin v. Holland, 69 N. Y. 571; Oregon Steamship Co. v. Otis, 100 
 N. Y. 446, 53 Am. Rep. 221; Briggs v. Hervey, 130 Mass. 186; Breed v. 
 Central City Bank, 6 Colo. 235; Stocken v. Collin, 7 M. & W. 515; Dunlop 
 V. Higgins, 1 H. L. Cas. 381; Starr v. Torrey, 22 N. J. L. 190; Shoemaker 
 V. Bank, 59 Pa. St. 79; German National Bank v. Bums, 12 Cal. 539, 13 
 Am. St Rep. 247; Planters Mut. Ins. Ass'n v. Green (Ark.), 80 S. W. 151; 
 Wilson V. Ford, 190 111. 626, 60 N. E. 876; Small v. Town of Prentice, 102 
 Wis. 256, 78 N. W- 415; Davidson S. S. Co. v. U. S., 142 Fed. 315; Hender- 
 son V. Carbondale Coal & Coke Co., 140 U., S. 25. See also, Phelan v. 
 
48 THE LAW OP EVIDENCE. §' 53. 
 
 The delivery may be at the postofSce or at another depository from 
 which the proof shows the letters to be re^larly delivered, or it 
 may be to a clerk whose regular business it is to deliver such letters, 
 the essential fact being that such a regular general course of busi- 
 ness is established that the inference sought may be fairly drawn in 
 the special case." The rule has been applied even in cases where 
 money was sent in the letter addressed.^" But in other cases the con- 
 trary rule has been applied.*'^ Where a letter is received purporting 
 to be cm answer to the one which has been duly mailed to a person at 
 his place of residence this fact creates a presumption that the answer 
 is genuine.*^ The presumption or inference that letters have been sent 
 from a private office may arise when it is shown by the testimony of 
 a clerk or otherwise that it is the regular practice to carry the let- 
 ters to the postoffice or to mail them in a certain manner. After 
 such proof the presumption of the mailing arises although the wit- 
 ness has no recollection that in the given case the letter was mailed.^'' 
 § 53 (47). Same — Telegrams — Weight of the presumption. — On 
 proper preliminary proof similar presumptions may arise as to the 
 sending and delivery of a telegram.** One of the considerations 
 which have been urged in favor of the presumption as to the due re- 
 ceipt of letters is the fact that the postoffice is managed by sworn 
 
 Northwestern Life Insurance Co., 113 N. Y. 147, 10 Am. St. Rep. 441, and 
 note. 
 
 iTOMacgregor v. Kelley, 3 Exch. 794; Skilbeck v. Garbett, 7 Q. B. 846; 
 Dana v. Kemble, 19 Pick. 112; Thalkheimer v. Brinckerhoff, 6 Cow. 90; 
 Hagedorn v. Reid, 3 Camp. 377. Contra, Hetherinton v. Kemp, 4 Camp. 
 193. The presumption also arises when the letter is mailed at the train 
 by being handed to a U. S. mail agent. Watson v. Richardson, 110 la. 
 698, 80 Am. St. Rep. 331. 
 
 so Russell v. Buckley, 4 R. I. 525, 70 Am. Dec. 167; Sutton v. Corning, 
 69 N. Y. Supp. 670. 
 
 81 Crane v. Pratt, 12 Gray, 348; First Nat. Bank v. McManigle, 69 Pa. 
 St. 156, 8 Am. Rep. 236. 
 
 82 Walter v. Haynes, Ryan & M. 149; Com. v. Bradlsh, 14 Mass. 296. 
 The address must be substantially correct in order to create this presump- 
 tion, see above cases; and there should be proof of the place of mailing 
 and the course of the mail. Boon v. State Insurance Co., 37 Minn. 426; 
 Wiggins V. Burkham, 10 Wall. 129; Phelan v. Northwestern Life Insur- 
 ance Co., 113 N. Y. 147, 10 Am. St. Rep. 441 and note. 
 
 83 See § 53 infra. 
 
 84 Com. V. Jeffries, 7 Allen, 548, 83 Am. Dec. 712; Oregon Steamship Co. 
 V. Otis, 100 N. Y. 446, 53 Am. Rep. 221; Perry v. German Am. Bank, 53 
 Neb. 89, 68 Am. St. Rep. 593. See note, 110 Am. St. Rep. 766-768. Contra, 
 Howley v. Whipple, 48 N. H. 488. As to proof of telegrams see § 210 infra. 
 
§■ 54. PRESUMPTIONS. 49 
 
 government officers who are in the discharge of public duties."* 
 While this is not true of the officials and agents of telegraph compa- 
 nies, those companies are regulated in their business by public law 
 and severe penalties are frequently imposed for abuse of the confi- 
 dence, and doubtless the instances in which messages properly di- 
 rected and intrusted to their care are not delivered, are compara- 
 tively rare. Under considerations of this kind it was held by the 
 court of appeals of New York that "upon proof of delivery of the 
 message for the purpose of transmission, properly addressed to the 
 correspondent at his place of residence or where he was shown to 
 have been, a presumption of fact arises that the telegram reached its 
 destination, sufficient at least to put the other party on his denial 
 and to raise an issue to be determined.*" The weight to be given to 
 the presumption now under discussion will of course depend very 
 much upon the preliminary proof which may be given as to the 
 course of business. The business of a public officer may be so sys- 
 tematically conducted that very considerable weight should be given 
 to the presumption ; on the other hand it may be so carelessly man- 
 aged that any presumption of regularity must be very unsatisfac- 
 tory and very easily rebutted. 
 
 § 54 (48). Presiunptions arising from partnership deali'ngs. — 
 Other presumptions arise out of the customary and well-known 
 methods of partnership dealings. Thus, as between partners, each 
 partner is presumed to have knowledge of the partnership books, and 
 the books are presumed to be correct; hence it is not necessary to 
 show knowledge of particular entries on the part of the partner.'' 
 Of course this presumption is disputable and little more than a mere 
 inference of fact and may be rebutted by proof that the partner 
 sought to be charged had no actual knowledge or no opportunity 
 for inspection or examination of the books.*' In the absence of any 
 
 85 Oregon Steamship Co. v. Otis, 100 N. Y. 446, 53 Am. Rep. 221. 
 
 86 Oregon Steamship Co. v. Otis, 100 N. Y. 446, 53 Am. Rep. 221. As to 
 telephone communications, see Sullivan v. Kuykendall, 82 Ky. 483, 56 
 Am. Rep. 901; "Western Twine Co. v. Wright, 11 S. D. 521, 78 N. W. 942. 
 See § 211 infra. 
 
 87 Desha v. Smith, 20 Ala. 747; Haller v. Williamowicz, 23 Ark. 566; 
 Hale V. Brennan, 23 Cal. 511; Pond v. Clark, 24 Conn. 370; Stuart v. Mc- 
 Kitchan, 74 111. 122; Cunningham v. Smith, 11 B. Mon. (Ky) 325; Parker 
 V. Jonte, 15 La. An. 200; Topliff v. Jackson, 12 Gray, 565; Allen v. Coit, 
 6 Hill, 318; Pairchild v. Fairchild, 64 N. Y. 471; Boire v. McGinn, 8 Ore. 
 466. 
 
 88 United States Bank v. Binney, 5 Mason, 176; Wheatley y. Wheatley, 
 
 4 
 
50 THE LAW OF EVIDENCE. § 55. , 
 
 agreement or evidence showing the contrary there is a presumption 
 that the partners are equally interested both in the capital and the 
 profits.'" So they are presumed liable to the payment of losses in 
 the same proportion that they are entitled to share the profits.*" 
 Where several persons carry on the same business together they are 
 presumed to be partners."^ And for stronger reason when several 
 persons participate in the profits of a business a partnership is pre- 
 sumed.^^ And in those cases where each partner has the right to 
 sign the firm name to commercial paper it will be presumed, when 
 the firm name so appears, that it is signed regularly by authority, 
 and for the purposes of the firm ; and the burden of proof is placed 
 upon the partners to show the contrary.*' This presumption will be 
 rebutted by proof that the instrument was given upon other than 
 partnership transactions or in some transaction beyond the scope of 
 the partnership."* 
 
 § 55(49). Presumptions of regularity in acts of private corpora- 
 tions. — The presumption of regularity is frequently extended to 
 corporate acts. In a former section we discussed the proposition that 
 
 34 Md. 62; Piano Co. v. Bernard, 2 Lea, 358; Saunders v. Duval, 19 Tex. 
 467; Lay ton v. Hall, 25 Tex. 204. 
 
 asFarr v. Johnson, 25 111. 522; Gould v. Gould, 6 Wend. 263; Taylor v. 
 Taylor, 2 Murph. (N. C.) 70; Conwell v. Sandidge, 5 Dana (Ky), 210; 
 Jones V Jones, 1 Ired. Eq. 332; Donelson v. Posey, 13 Ala. 752; Logan 
 V. Dixon. 73 Wis. 533; Roach v. Perry, 16 111. 37; Harris v. Carter, 147 
 Mass. 313, 17 N. E. 649. Contra, Peacock v. Peacock, 2 Camp. 45. But 
 as to real estate the presumption is against its being partnership property. 
 See note 48 Am. St. Rep. 66. 
 
 90 In re Albion Life Assurance Society, 16 Ch. D. 83; Robinson's EJx- 
 ecutors Case. 6 De Gex, M. & G. 572. 
 
 91 McMillan v. McKenzie, 2 G. Greene (Iowa) 368. 
 
 02 Ryder v. Wilcox, 103 Mass. 24; Parker v. Canfield, 37 Conn. 250, 
 9 Am. Rep. 317; St. Louis Bank v. Attheimer, 91 Mo. 190; Cothram v. 
 Marmaduke, 60 Tex. 370; Mifflin v. Smith, 17 Serg. & R. (Pa.) 165. 
 
 93LeRoy v. Johnson, 2 Peters, 186; Jones v. Rivers, 8 Ala. 11; Miller 
 V. Hines, 15 Ga. 197; Gregg v. Fisher, 3 111. App. 261; Magill v. Merrie, 
 5 B. Mon. (Ky.) 168; Waldo Bank v. Greely, 16 Me. 419; Thurston v. 
 Lloyd, 4 Md. 283; Bank v. Winship, 5 Pick. 11; Littell v. Pitch, 11 Mich. 
 525; Vallett v. Parker, 6 Wend. 615. 
 
 8* Mauldin v. Bank, 2 Ala. 502; Insurance Co. v. Bennett, 5 Conn. 574, 
 13 Am. Dec. 109; Bryan v. Tooke, 60 Ga. 437; Lucas v. Baldwin, 97 Ind. 
 471; Chenowith v. Chamberlin, 6 B. Mon. (Ky.) 60, 43 Am. Dec. 145; 
 Eastman v. Cooper, 15 Pick. 276, 26 Am. Dec. 600; Butler v. Stocking, 8 
 N. y. 408. Contra, Flemming v. Prescott, 3 Rich. (S. C.) 307, 45 Am. 
 Dec. 766; First National Bank v. Carpenter, 34 Iowa, 433. 
 
§' 55. PRESUMPTIONS. 51 
 
 persons who act in a public capacity as officers are presumed to 
 have.been regularly appointed or elected."" The same presumption 
 obtains in respect to those who act publicly as the officers of private 
 corporations; prima facie they will be deemed rightfully in office 
 rather than intruders, and the requirements necessary to their ap- 
 pointment will be presumed to have been complied with."' So there 
 is a presumption that the officers of the corporation have acted regu- 
 larly, for example, where the common seal of the corporation ap- 
 pears to be attached to an instrument and the signatures of the 
 officers are proved, the seal is presumed to have been affixed by 
 proper authority in those cases where the execution of the instru- 
 ment would be ordinarily within the power of such officers."^ And 
 
 »6 Bank of United States v. Dandridge, 12 Wheat. 64. See § 43 supra. 
 
 osSelma & Tenn. Ry. Go. v. Tipton, 5 Ala. 787, 39 Am. Dec. 344; Bil- 
 liard V. Goold, 34 N. H. 230, 66 Am. Dec. 765. 
 
 »7 Canandarqua Academy v. McKeclinie, 90 N. Y. 618; Mickey v. Strat- 
 ton, 5 Sawy. (U. S.) 475; Wood v. Wielan, 93 111. 153; Thorington v. 
 Gould, 59 Ala. 401. Acts of directors presumed to have heen acts of a 
 majority. Despatch Line v. Bellamy Co., 12 N. H. 205, 37 Am. Dec. 203. 
 It is presumed that meetings of the corporation were regularly held upon 
 due notice with a quorum present, Sargent v. Wehster, 13 Met. 497, 46 
 Am. Dec. 743; that board of directors was rightfully in session when 
 authorizing the execution of note, Hardin v. Iowa Ry. Co., 78 Iowa, 726. 
 If minutes show that business was transacted it will be presumed that 
 requisite number were present at the meeting. Hathaway v. Addison, 48 
 Me. 440; Insurance Co. v. Sortwell, 8 Allen, 223; Baile v. Educational 
 Society, 47 Md. 117. But see Mayberry v. Mead, 80 Me. 27, 12 Atl. 635. 
 Granting of charter may be presumed from long continued user of corpo- 
 rate franchises, Selma & Tenn. Ry. Co. v. Tipton, 5 Ala. 787 (for numerous 
 illustrations of this subject see note, 22 L.. R. A. 276); as may also the 
 acceptance of charters and beneficial grants, Bank of United States v. 
 Dandridge, 12 Wheat. 64. Transaction of business by ofilcers without proof 
 of organization or existing charter is however not suflacient to raise pre- 
 sumption of corporate existence. Clark v. Jones, 87 Ala. 474; Greene v. 
 Dennis, 6 Conn. 293, 16 Am. Dec. 58; DeWltt v. Hastings, 8 Jones & S. 
 (N. Y.) 463; United States Bank v. Stearnes, 15 Wend. 314. Associa- 
 tions acting as corjwratlons as well as individuals dealing with such 
 corporations may he estopped to deny corporate existence. Clifton Com- 
 pany v. Barnheisel, 92 Ind. 88; Lakeside Company v. Crane, 80 Cal. 181; 
 Skinner v. Richardson, 76 Wis. 464. In proceedings to which corpora- 
 tion is not a party where a question of incorporation arises incidentally, 
 incorporation will be presumed from user and the exercise of corporate 
 privileges and acts. United States v. Amedy, 11 Wheat. 392; Calkins v. 
 State, 18 Ohio St. 366, 98 Am. Dec. 121; Ricketson v. Galligan, 89 Wis. 
 394. But see Bennington Co. v. Rutheford, 18 N. J. L. 105, 35 Am. Dec. 
 528. In proceedings for the expulsion of members it will be presumed 
 
52 THE LAW OF EVIDENCE. §' 56. 
 
 generally where agents or officers of the corporation are acting 
 within the apparent scope of their powers, it will be presimed that 
 their acts are authorized by all necessary formalities. The presump- 
 tion is that the provisions of law have been complied with by the 
 officers, not that they have been violated."* And after a corporation 
 has gone into operation and rights have been acquired under it, 
 every reasonable presumption is indulged in favor of its legal exist- 
 ence. It is sufficient to establish the existence of the corporation de 
 facto to show, "first, the existence of a charter, or some law under 
 which a corporation with the powers assumed might lawfully be 
 created ; and second, a user, by the party to the suit, of the rights 
 claimed to be conferred by siieh charter or law." "' 
 
 § 56 (50). Same — General scope of the rule. — The general scope 
 of the rule as applied to private corporations with further illustra- 
 tions is thus stated by Mr. Justice Story in a leading case: "Persons 
 acting publicly as officers of the corporation are to be presumed 
 rightfully in office ; acts done by the corporation, which presuppose 
 the existence of other acts to make them legally operative, are pre- 
 sumptive proofs of the latter. Grants and proceedings beneficial to 
 the corporation are presumed to be accepted, and slight acts on their 
 part which can be reasonably accounted for only upon the supposi- 
 tion of such acceptance are admitted as presumptions of the fact. 
 If officers of the corporation openly exercise a power which presup- 
 poses a delegated authority for the purpose, and other corporate 
 acts show that the corporation must have contemplated the legal ex- 
 istence of such authority, the acts of such officers will be deemed 
 rightful and the delegated authority will be presumed. If a person 
 acts notoriously as the cashier of a bank and is recognized by the 
 directors or the corporation as an existing officer, a regular appoint- 
 that proceedings were fair and regular. Bachmann v. N. Y. Arbeiter, 64 
 How. Pr. (N. Y.) 442; Harmon v. Dreher, 1 Spear Eq. (S. C.) 87; Shan- 
 non V. Frost, 3 B. Mon. (Ky.) 253; Burton v. St. George Society, 28 
 Mich. 261. No presumption arises in favor of regularity in proceedings to 
 forfeit property or other valuable rights. People v. Fire Department, 31 
 Mich. 458; People v. Medical Society, 32 N. Y. 187. 
 
 OS Sargeant v. Webster, 13 Met. 497, 46 Am. Dec. 743; Ashtabula Ry. Co. 
 V. Smith, 15 Ohio St. 328; Lane v. Brainerd, 30 Conn. 565; Chouteau Ins. 
 Co. V. Holmes, 68 Mo. 601, 30 Am. Rep. 807; Wells v. Rahway Rubber Co., 
 19 N. J. Eq. 402; McDaniels v. Flower Brook Co., 22 Vt. 274; Leavitt v. Ox- 
 ford Mining Co., 3 Utah, 265; Copp v. Lamb, 12 Me. 312; Bank of Minneap- 
 olis V. Griffin, 168 111. 314, 48 N. E. 154; Pringle v. Woolworth, 90 N. Y. 502. 
 
 80 Duke V. Cahawba Co., 10 A.la. 82, 44 Am. Dec. 472; Methodist Church 
 V. Pickett, 19 N. Y. 482; United States Bank v. Steames. 15 Wend. 314. 
 
§' 57. PEESUMPTIONS. 53 
 
 ment will be presumed ; and his acts as cashier will bind the corpo- 
 ration although no written proof is or can be adduced of his ap- 
 pointment. In short, we think that the acts of artificial persons af- 
 ford the same presumption as the acts of natural persons. Each af- 
 fords presumptions from acts done of what must have preceded 
 them as matters of right or matters of duty." ^ 
 
 § 57 (51). Miscellaneous presumptions from the general course 
 of business. — ^Among other presumptions which arise from the gen- 
 eral course of business may be mentioned the following : That those 
 engaged in a given trade or business are acquainted with the general 
 customs and usages of the iusiness where it is carried on, and with 
 such other facts as are necessarily incident to the proper conduct of 
 the business.^ Again it is presumed from the known and general 
 custom of business that, when a bill of exchange or order or promis- 
 sory note is found after circulation in the possession of the drawee 
 or payee, the money has been paid or the obligation discharged;' 
 also that there has been an agreement to pay for valuable services 
 rendered ^nd accepted.* But there is no such presumption where 
 the dealings are between those of the same family or those closely 
 related by blood or marriage; in such cases an actual agreement 
 must be proved.'* In the absence of any agreement as to time of 
 payment when goods are sold, it is presumed that they are to be 
 paid for on delivery;" that acts agreed to be performed, no time 
 being specified, are to be performed within a reasonable time,'' and 
 that one who purchases goods and for a long time makes no objec- 
 
 1 Bank of United States v. Dandridge, 12 Wheat. 64. 
 
 2 Young V. Turing, 2 'Man. & G. 593, 603; Hincliley v. Kersting, 21 111. 247, 
 74 Am. Dec. 102; McAllister v. Reab, 4 Wend. 483; Mills v. United States 
 Bank, 11 Wheat. 431; Sutton v. Tatham, 10 Adol. & Ell. 27; Given v. 
 Charron, 15 Md. 502; Pittsburg v. O'Neil, 1 Pa. St 342; RindskoH v. Bar- 
 rett, 14 Iowa, 101; John O'Brien Lumber Co. v. Wilkinson, 123 Wis. 272. 
 
 3 Egg V. Bamet, 3 Esp. 196; Garlock v. Geortner, 7 Wend. 198; Weldener 
 V. Schweigart, 9 Serg. &R. (Pa.) 385; Connolly v. McKean, 64 Pa. St. 113. 
 
 4 In re Scott, 1 Redf. (N. Y.) 234; Burr v. Williams, 23 Ark. 244. 
 
 Wilcox V. Wilcox, 48 Barb. 327; Williams v. Hutchinson, 3 N. Y. 312, 
 53 Am. Dec. 301; Andrus v. Foster. 17 Vt. 556; Robinson v. Cushman, 2 
 Den. 149; Pitch v. Peckham, 16 Vt. 150; Weir v. Weir, 3 B. Mon. (Ky.) 
 645, 39 Am. Dec. 487; Davies v. Davies, 9 Car. & P. 87; King v. Kelly, 28 
 Ind. 89; Cauble v. Ryan, 26 Ind. 207; Gallagher v. Vaught, 8 Hun, 87; 
 Tyler v. Burrington, 39 Wis. 376. 
 
 Roberts v. Wilcoxon, 36 Ark. 355. 
 
 » Potter V. Deboos, 1 Stark. 82. 
 
54 THE LAW OF EVIDENCE. §' 57. 
 
 tion to them waives objections to their quality.* So where a state- 
 ment of account for goods sold is rendered and no objection is made, 
 the account is presumed correct f when regular entries of account of 
 the sale of goods have been made by a clerk, since deceased, the pre- 
 sumption is that the goods were duly delivered;^" and a receipt for 
 the rent due the last year or the last quarter is presumptive evi- 
 dence of the payment of former rents}^ Though there is a presump- 
 tion that persons are solvent}'^ yet this presumption may be rebutted 
 by proof of unsatisfied judgments against them or that a debt can- 
 not be collected.^' A presumption arises against the validity of a 
 claim on which no demand for payment has been made for many 
 years, though the insolvency of the debtor or other circumstances of 
 explanation may rebut the presumption.^* In business transactions 
 persons are presumed to have done what it was for their interest to 
 do. It is on this theory that it has often been presumed that devises, 
 conveyances, assignments for the benefit of creditors, charters and 
 other acts usually beneficial to the recipient have been assented 
 to;^^ on the same principle the assent of a widow to a beneficial 
 testamentary provision, in lieu of a dower, has been presumed.^" 
 
 sDavies v. Fish, 1 G. Greene (Iowa). 406, 48 Am. Dec. 287. 
 »Webb V. Chambers, 3 Ired. (N. C.) 374. 
 
 10 Clark v. Magruder, 2 Harr. & J. f Md.) 77. 
 
 11 Brewer v. Knapp, 1 Pick. 332. 
 
 12 Wallace v. Hull, 28 Ga. 68. 
 
 isBeeson v. Wiley, 28 Ala. 575; Bilberry v. Mabley, 20 Ala. 260. 
 
 "Denniston v. Mckeen, 2 McLean (U. S.) 253; Rodman v. Hoops, 1 
 Dall. (Pa.) 85; Inches v. Leonard, 12 Mass. 337; Brubaker v. Taylor, 76 
 Pa. St. 83; Millege v. Gardner, 33 Ga. 397. 
 
 isTowson V. Tickell, 3 Barn. & Aid. 31; Thompson v. Leach, 2 Salk. 
 618; Bensley v. Atwill, 12 Cal. 231; Lady Superior v. McNamara, 3 Barb. 
 Ch. (N. Y.) 375, 49 Am. Dec. 184; Pavey v. Tilton, 18 N. H. 151, 45 Am. 
 Dec. 365; Merrills v. Swift, 18 Conn. 257, 46 Am. Dec. 315; Newton v. Ca- 
 berry, 5 Cranch C. C. 632. But see Maynard v. Maynard, 10 Mass. 456; 
 Welch V. Sackett, 12 Wis. 243; Hullck v. Scovil, 9 111. 159; Governor v. 
 Campbell, 17 Ala. 566; Benning v. Nelson, 23 Ala. 801; Cloud v. Clinkin- 
 beard, 8 B. Mon. (Ky.) 397, 48 Am. Dec. 397. 
 
 i« Merrill v. Emery, 10 Pick. 507. 
 
CHAPTER 3. 
 
 PRESUMPTIONS (contmued) . 
 
 58. Presumptions as to continuance of the existing state of things. 
 
 59. Presumptions as to sanity and Insanity. 
 
 60. Presumption of continuance of life. 
 
 61. Presumption of death after seven year absence. 
 
 62. No presumption that death occurred at a particular time. 
 
 63. When death may be inferred from an absence of less than seven 
 
 years. 
 
 64. Presumption of survivorship in common disaster. 
 
 65. Presumptions of payment from lajise of time. 
 
 66. Lapse of time not a bar, but evidence to raise the presumption. 
 
 67. Mere lapse of time less than twenty years not enough. 
 
 68. A less period than twenty years with other circumstances may suf- 
 
 fice. 
 
 69. The presumption — How rebutted. 
 
 70. Presumption of payment from usual modes of business — Receipts. 
 
 71. Cancellation of instruments. 
 
 72. Same subject — ^Application of payments to debts first due. 
 
 73. Settlement presumed from accepting note. 
 
 74. Presumption of ownership from possession. 
 
 75. The presumption of title from the possession of lands. 
 
 76. Presumptions as to grants and other sources of title. 
 
 77. The presumption not superseded by statutes of limitations. 
 
 78. Presumption that trustees have made proper conveyances, 
 
 79. Nature of the possession required. 
 
 80. Same — Changes in possession — Possession by tenant, etc. 
 
 81. The presumption — How rebutted. 
 
 82. Same — Disabilities — Nature of estate — ^What facts are relevant, 
 
 83. Presumptions as to the law of sister states. 
 
 84. Same subject — ^Foreign -law. 
 
 85. Contracts presumed to be legal. 
 
 86. Presumptions as to marriage. 
 
 87. Cohabitation and reputation to concur — Weight of presumption, 
 
 88. Presumption of marriage in civil and criminal issues. 
 
 89. No presumption arising from illicit cohabitation. 
 
 90. Other presumptions growing out of the marriage relation. 
 
 91. Same — Of coercion by the husband. 
 
 92. Same subject — Nature and limits of the presumption. 
 
 93. Presumption of legitimacy. 
 
 94. Same — ^How rebutted. 
 
 35. Same — Conclusive, if sexual intercourse between husband and wife 
 is showft. 
 
56 THE LAW OF EVIDENCE. §' 58. 
 
 § 96. Relevant facts when sexual intercourse between husband and wife 
 is not shown. 
 
 97. The husband or wife not allowed to deny sexual intercourse. 
 
 98. Presumptions as to infants — Capacity to commit crime — Consent 
 
 to sexual intercourse and marriage. 
 
 99. Same subject — Testamentary capacity — Domicile — ^Necessaries — Torts. 
 
 100. Presumption as to identity from name. 
 
 101. Conflicting presumptions — That of innocence prevails over other 
 
 presumptions. 
 
 102. Continued — Presumptions of innocence of a party overcomes the 
 
 presumption of innocence of a stranger. 
 
 103. Innocence — Sanity — Weight of conflicting presumptions. 
 
 104. General rules as to presumptions. 
 
 § 58 (52, 53, 54). Presumptions as to continuance of the existing 
 state of things. — When things are once proved to have existed in a 
 particular state, they are presumed to have continued in that state 
 until the contrary is established by evidence either direct or pre- 
 sumptive.^ Although this rule has long had the sanction of the high- 
 est authority, it vnll be observed that it is stated in very general 
 terms; and it must have a reasonable ijiterpretation. It is a pre- 
 sumption alvs^ays disputable, sometimes entitled to considerable 
 weight, but frequently liable to be rebutted by very slight circum- 
 stances. The rule has been held to apply to the continuance of 
 minority, a given state of health, a state of war and to other cases 
 vi^here obviously, after a limited time the presumption could have 
 very Kttle weight. When the habits and character of persons have 
 been in issue the rule has been applied. Perhaps the chief value of 
 the presumption is to determine in the cases to which it applies on 
 whom shall rest the burden of proof. The eases cited will give illus- 
 tration of the application of the rule with its limitations.' It is 
 
 iBest, Ev. (10th Ed.) § 405; Tayl. Eiv. (10th Ed.) § 196; Wilkins v. 
 Earle, 44 N. Y. 172, 4 Am. Rep. 655; Martin v. Fishing Ins. Co., 20 Pick. 
 389, 32 Am. Dec. 220; State v. Chittenden, 112 Wis. 568; State v. Chitten- 
 den, 127 Wis. 468; Price v. Price, 16 M. & W. 232; Berrenberg v. City of 
 Boston, 137 Mass. 231, 50 Am. Rep. 296 and long note 
 
 2 This presumption has been applied to ownership, Kidder v. Stevens, 
 60 Cal. 414; Magee v. Scott, 9 Cush. 148, 55 Am. Dec. 49; Collins v. Denny 
 Clay Co., 41 Wash. 136, 82 Pac. 1012; State v. Dexter, 115 la. 678, 87 N. W. 
 417; Lind v. Lind, 53 Minn. 48, 54 N. W. 934, (the presumption is not 
 rebutted by the fact that another is allowed to take possession. Harrl- 
 man v. Queen's Ins. Co., 49 Wis. 71; Table Mountain Mining Co. v. Wal- 
 ler's Mining Co., 4 Nev. 218, 97 Am. Dec. 526) ; possession, Sullivan v. 
 Goldman, 19 La. An. 12; Brown v. King, 5 Met. 173; Currier v. Gate, 9 
 Allen, 522; Hollingsworth v. Walker, 98 Ala. 543, 13 So. 6; Sanford v. 
 
§' 58. PRESUMPTIONS. 57 
 
 doubtless true that sudden and marked changes sometimes take place 
 in the character and habits of individuals, but it is equally true that 
 such sudden changes are not in the common course of experience; 
 they are so exceptional as not to interfere with the general presumpr 
 tion that the character, habits and opinions of a person continue the 
 same.' This rule has even been applied where two persons were 
 shown to have sustained illicit relations with each other. Said Chan- 
 
 Millikln, 144 Mich. 311, l07 N. W. 884; indebtedness, Jackson v. Irvin, 2 
 Camp. 50; Farr v. Payne, 40 Vt. 615; O'Neill v. New York Mining Co., 3 
 Nev. 141; Mullen v. Pryor, 12 Mo. 307; Bell v. Young, 1 Grant Gas. (Pa.) 
 175; "Wallace v. Hull, 28 Ga. 68, (so a vendor's lien was presumed to con- 
 tinue, Hays V. Horine, 12 Iowa, 61, 79 Am. Dec. 518) ; judgment. Murphy 
 V. Orr, 32 111. 489; solvency, insolvency and bankruptcy, Walrod v. Ball, 
 9 Barb. 271; Donahue v. Coleman, 49 Conn. 464; Body v. Jewson, 33 Wis. 
 402; in transportation of goods, Laughlin v. Railway Co., 28 Wis. 204, 9 
 Am. Rep. 493; Smith v. Railway Co., 43 Barb. 225; sea-worthiness of ves- 
 sel, Martin v. Fishing Ins. Co., 20 Pick. 389, 32 Am. Dec. 220; Watson v. 
 Clark, 1 Dow. 336; Parker v. Potts, 3 Dow. 23; partnership, Clark v. 
 Alexander, 8 Scott N. R. 161; Cox v. Wllloughby, L. R. 13 Ch. Div. 863; 
 Cooper V. Dedrick. 22 Barb. 516; Anderson v. Clay, 1 Stark. 405; cor- 
 porate existence, People v. Manhattan Co., 9 Wend. 351; agency, McKen- 
 zie V. Stevens, 19 Ala. 691; Friend v. Yahr, 126 Wis. 291; Ryan v. Sams, 
 12 Q. B. 460; stocTcholder, Montgomery Plank Road Co. v. Webb, 27 Ala. 
 618; public office. Rex v. Budd, 5 Esp. 230; matrimonial state. Page v. 
 Findley, 5 Tex. 391; Erskine v. Davis, 25 111. 251; residence, Mitchell v. 
 United States, 21 Wall. 350; Greenfield v. Camden, 74 Me. 56; Prather v. 
 Palmer, 4 Ark. 456; Rixford v. Miller, 49 Vt. 319; Eaton v. Woydt, 
 26 Wis. 383; Daniels v. Hamilton, 52 Ala. 105; Inhabitants v. Inhab- 
 itants, 6 Allen, 508; Kilbourn v. Bennett, 3 Met. 199; Price v. Price, 
 156 Pa. St. 617, 27 Atl. 291, (as to condition of alienage, see Green v. 
 Sales, 31 Fed. Rep. 106. The rule does not apply in the case of a tramp, 
 however, Ripley v. Hebron, 60 Me. 379); custom. Scales v. Key, 11 Adol. 
 & Ell. 819; state of war and peace, Covert v. Gray, 34 How. Pr. (N. Y.) 
 450; form of government, Gelston v. Hoyt, 1 Johns. Ch. 543; public 
 treaty. People v. McLeod, 1 Hill. (N. Y.) 377, 37 Am. Dec. 328; common 
 law, Stokes v. Macken, 62 Barb. 145; course of business. Eureka Ins. Co. 
 V. Robinson, 56 Pa. St. 256, 94 Am. Dec. 65; Ashe v. De Rossett, 8 Jones 
 (N. C.) 240; Shove v. Wiley, 18 Pick. 558; Kershaw v. Wright, 115 Mass. 
 361; Vaughn v. Raleigh Ry. Co., 63 N. C. 11; reputation of dental college, 
 State v. Chittenden, 127 Wis. 468, 88 N. W. 578. But there can be no 
 presumption of the prim- existence of a relation or status from proof of 
 its present existence, Erskine v. Davis, 25 111. 251; Taylor v. Cresswell, 
 45 Md. 422; Murdock v. State, 68 Ala. 567; State v. Dexter, 115 la. 678, 
 87 N. W. 417. 
 
 3 Smith v. Smith, 4 Paige Ch. (N. Y.) 432; 27 Am. Dec. 75; C^rgile v. 
 Wood, 63 Mo. 501; People v. Squires, 49 Mich. 487; Hunt's Appeal, 86 Pa 
 St. 294; Appeal of Reading Ins. Co., 113 Pa. St. 204, 57 Am. Rep. 448. 
 
58 THE LAW OF EVIDENCE. §' 59. 
 
 cellor Walworth: "When it is once established that an adulterous 
 intercourse has commenced between parties and they are found liv- 
 ing together under circumstances which would induce every un- 
 prejudiced mind to conclude their inclination had not changed, the 
 fair presumption is that the illicit intercourse is still continued. ' ' * 
 The same rule was applied where one was proved at a given time to 
 have been a gambler ; ° where bad character for truth and veracity 
 had been shown,* or where deliberate malice had been proved.' 
 
 § 59 (55). Presumptions as to sanity and insanity. — In the ab- 
 sence of any evidence on the subject, every person is presumed to be 
 of sound mind.* This is but the application of the rule that the ordi- 
 nary mental condition is presumed to exist. Hence it follows that, 
 if a state of chronic or general insanity is shown, the presumption 
 of sanity is not only removed, but there arises the presumption 
 that insanity continues;' and the burden of proof rests upon the 
 one who claims that an act of such a person was during a lucid in- 
 terval, to show that the lucid interval existed at the time of the act 
 in question.^" If monomania or insanity upon particular subjects is 
 shown, such condition is presumed to continue when the sanity of 
 the person as to these subjects is under inquiry .^^ If, however, the 
 
 * See cases last cited. 
 
 5 McMahon v. Harrison, 6 N. Y. 443. 
 
 6 Sleeper v. Van Middles-worth, 4 Den. 431 ; Lum v. State, 11 Tex. App. 
 483. But see Wood v. Matthews, 73 Mo. 482. 
 
 7 State V. Johnson, 1 Ired. (N. C.) 354, 35 Am. Dec. 742. 
 
 s Sutton V. Sadler, 3 C. B. 87; Perkins v. Perkins, 39 N. H. 163; Hall v. 
 Warren, 9 Ves. Jr. 605; Garbill v. Barr, B Pa. St. 441, 47 Am. Dec. 418; 
 Achey v. Stephens, 8 Ind. 411; Staples v. Wellington, 58 Me. 453; Hix v. 
 Whittemore, 4 Met. 545; Taylor v. Creswell, 45 Md. 422. If a person de- 
 stroys his own life he is still presumed to have been sane. Jarvis v. Con- 
 necticut Mut. Life Ins. Co., 5 Ins. L. J. 507; Moore v. Connecticut Mut. Life 
 Ins. Co., 3 Ins. L. J. 444. As to presumption of sanity and innocence, see 
 § 103 infra; as to burden of proof when insanity is in issue, see § 188 
 infra; as to testamentary capacity, siee § 189 infra. 
 
 9 Rogers v. Walker, 6 Pa. St. 371, 47 Am. Dec. 470; Armstrong v. State, 
 30 Pla. 170, 11 So. 618; Garbill v. Barr, 5 Pa. St. 441, 47 Am. Dec. 418; 
 Keely v. Moore, 196 U. S. 38; Cartwrlght v. Cartwright, 1 Phillim. 90; 
 Hall v. Warren, 9 Ves. Jr. 605. See note 35 L. R. A. 117. 
 
 10 Ripley V. Babcock, 13 Wis. 425; Saxon v. Whitaker, 30 Ala. 237; Case 
 of Cochran's Will, 1 T. B. Mon. (Ky.) 264, 15 Am. Dec. 116 and note; Har- 
 den V. Hayes, 9 Pa. St. 151; Jackson v. Van Dusen, 5 Johns. 144, 4 Am. 
 Dec. 330. As to whether reasonableness of the act is evidence of a lucid 
 interval, see note to McMechen v. McMechen, 17 W. Va. 683, 41 Am. Rep, 
 682. 
 
 11 Thornton v. Appleton, 29 Me. 298. 
 
§' 60. PRESUMPTIONS. 59 
 
 insanity is of a character likely to be merely temporary, as if it is 
 the result of sudden or violent disease, there is no presumption of 
 its continuance.^^ Nor is there any presumption against the sanity 
 of one who was formerly a lunatic after a complete restoration to 
 reason."^' But if one has been under guardianship for insanity, it is 
 presumptive evidence of such condition.'-* 
 
 § 60 (56) . Presumption of continuance of life. — When a person 
 is shown to have been living at a given time the continuance of life 
 will be presumed, until the contrary is proved or is to be inferred 
 from the nature and circumstances of the case.^'* In numerous in- 
 stances the courts have refused, in the absence of proof, to assume 
 the death of persons proved to have been alive at some former time 
 even after a long interval had passed, holding that in such cases the 
 burden of proof rests with those who assert the death.^' Thus where 
 a witness gave his deposition in 1682, the court held in 1732 that, in 
 the absence of any proof to the contrary, the continuance of life 
 would be presumed ; and the court rejected the deposition.^' It has 
 been said that the civil law presumed a person still living at a hun- 
 dred years of age and that the common law does not stop much short 
 of this.^* Indeed, it was solemnly asserted by the court of Queen's 
 Bench that it could not judicially presume that a person alive in 
 1034 was not still living in 1826.^° Of course the presumption of 
 the continuance of life would not now be carried to any such absurd 
 
 12 staples V. Wellington, 58 Me. 453; Cartwright v. Cartwright, 1 Phil- 
 lim. 100; Hlx v. Wliittemore, 4 Met 545; Chandler v. Barrett, 21 La. An. 
 58, 99 Am. Deo. 701; State v. Reddick, 7 Kan. 151; Carpenter v. Carpen- 
 ter, 8 Bush (Ky.) 283; People v. Francis, 38 Cal. 183; Taylor v. Pegum, 
 151 111. 106, 37 N. E. 837. 
 
 13 Snow V. Benton, 28 111. 306. 
 
 "Breed v. Pratt, 18 Pick. 115; Titlow v. Tltlow, 54 Pa. St. 216, 93 Am. 
 Dec. 691; Hart v. Deamer, 6 Wend. 497. 
 
 10 In re Hall, 1 Wall. Jr. (U. S.) 85; Peabody v. Hewett, 52 Me. 33, 83 
 Am. Dec. 486; Wilson v. Hodges, 2 East, 313; Chicago & A. R. Co. v. 
 Keegan, 185 111. 70, 56 N. E. 1088; In re Hall, 1 Wall. Jr. (U. S.) 85 (true, 
 even though person was in poor health.) 
 
 18 In re Tindall's Trustee, 30 Beav. 151; Hammond v. Inloes, 4 Md. 138, 
 a grantee of a patent of land was presumed to be living seventy-eight 
 years after the date of the patent. See also Watson v. Tindall, 24 Ga. 
 494, 71 Am. Dec. 142, where it appeared that the party whose death was 
 in Question in 1857 was a revolutionary soldier. 
 
 n Benson v. Olive. 2 Str. 920. 
 
 18 Watson V. Tindall, 24 Ga. 494, 71 Am. Dec. 142. See note, 104 Am. St. 
 Rep. 209. 
 
 "Atkins V. Warrington, 1 Chitty, PI. (6th Ed) 258. 
 
60 THE LAW OF EVIDENCE. § 61. 
 
 limit. By the decisions under the common law there is specific 
 length of time at the end of which the presumption of the continu- 
 ance of life is held to cease. As we have seen, the courts will not 
 presume that death has taken place, although on the contrary pre- 
 sumption the person must have reached an extreme old age. But 
 the courts ought not to assume that which in view of the usual dura- 
 tion of human life is practically impossible.^" 
 
 § 61 (57). Presumptions of death after seven years absence. — 
 As the courts had to resort to the presumption of the continuance of 
 life, in the absence of direct proof of life or death, in order to settle 
 important rights which were often involved, it became equally neces- 
 sary to adopt some counter presumption in classes of cases where the 
 death of the person would in the ordinary course of events seem 
 more probable than the continuance of life. Accordingly in analogy 
 to certain English statutes the courts adopted the rule that "a per- 
 son, 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 presumed to be dead, unless the circumstances of the ease are such 
 as to account for his not being heard of without assuming his 
 death. "^^ In this country the rule has generally been applied only 
 to those who were absentees from their home; and is thus stated in a 
 Massachusetts case : " If a man leaves his home and goes into parts 
 unknovm and remains unheard from for the space of seven years, 
 the law authorizes, to those that remain, the presumption of fact 
 that he is dead ; but it does not authorize him to presume therefore 
 that any one of those remaining in the place which he left has 
 died. " ^^ It is not necessary, in order to raise this presumption, 
 that the removal should be beyond the seas or even to a distant 
 
 20 Tayl. Ev. (10th Ed.) § 198. 
 
 2iSteph. Bv. art. 99; 1 Greenl. Ev. § 41; George v. Jesson, 6 East. 80; 
 In i-e Phrene's Trust, L. R. 5 Ch. App. 139; Nepean v. Knight, 2 M. & W. 
 894; McMahon v. McElroy, Ir. Rep. 5 Eq. 1; Hopewell v. De Pinna, 2 
 Camp. 113; Nepean v. Doe, 2 M. & W. 910; 2 Smith L. C. 584; Rex v. 
 Harborne, 2 Adol. & Ell. 540'; Hyde Park v. Inhabitants of Canton, 130 
 Mass. 500; Davie v. Briggs, 97 U. S. 628; Baden v. McKenney, 7 Mackey 
 (D. C), 268; Bank v. Trustees, 83 Ky. 219; Mutual Benefit Co.'s Petition, 
 174 Pa. St. 1, 52 Am. St. Rep. 814; Sherrod v. BJwell, 104 la. 253, 73 N. W. 
 493. See extended note, 104 Am. St. Rep. 198-213. See interesting account 
 of history of the rule, Thayer, Prel. Ev. at Com. Law, p. 319. 
 
 22 Hyde Park v. Canton, 130 Mass. 505; Stevens v. McNamara, 36 Me. 
 176, 58 Am. Dec. 740; Stinchfleld v. Emerson, 52 Me. 465, 83 Am. Dec. 
 524; Winship v. Conner, 42 N. H. 341; Com. v. Thompson, 6 Allen, 591. 
 
§' 62. PRESUMPTIONS. 61 
 
 state;'^^ but if one removes from his state to a fixed place of resi- 
 dence in another state, the fact that he has remained unheard of in 
 the former state does not alone authorize the presumption."* It need 
 hardly be added that this is not a conclusive presumption. It is one 
 of fact and is subject to be controlled by the facts of the case. It is 
 one which varies in weight according to the circumstances.^^ The 
 presumption under discussion is an arbitrary one rendered neces- 
 sary on grounds of public policy in order that rights depending on 
 the life or death of persons long absent and unheard of might be 
 settled by some certain rule."" It is not enough to raise the presump- 
 tion that the person has not been heard from for seven years. It is 
 not only necessary to show this, but also to show his absence from 
 home and that inquiry has been made at the place of residence of 
 such person abroad, if he had any known fixed residence."^ 
 
 § 62 (58), No presumption that death occurred at a particular 
 time. — In some of the cases the view is maintained that, if no suffi- 
 cient facts are shown from which to draw a reasonable inference 
 that death occurred before the lapse of seven years, the person will 
 be deemed in all legal proceedings to have lived during that period 
 and to have died at its expiration; that the presumption of death 
 which arises at the end of the seven years cannot act retrospectively, 
 
 23 Winshlp V. Conner, 42 N. H. 341. But see Spurr v. Trimble, 1 Marsh. 
 A. K. (Ky.) 279. 
 
 24McCartee v. Camel, 1 Barb. Ch. (N. Y.) 455. If alive when last 
 heard from at his new domicile, the presumption is that life continues. 
 Francis v. Francis, 180 Pa. St. 644, 57 Am. St. Rep. 668. 
 
 25 In re Phrene's Trust, R. L. 5 Ch. App. 139; Davie v. Briggs, 97 U. S. 
 628; Hyde Park v. Canton, 130 Mass. 505. And see Faulkner's Adminis- 
 trator V. Williman (Ky.), 16 S. "W. Rep. 362. 
 
 2e Whiting v. Nicholl, 46 111. 230, 92 Am. Dec. 248. 
 
 27 McCartee v. Camel, 1 Barb. Ch. 455; Stinchfleld v. Emerson, 52 Me. 
 465, 83 Am. Dec. 524; Thomas v. Thomas, 16 Neb. 553; Brown v. Jewett, 
 18 N. H. 230; Gray v. McDowell, 6 Bush, 455; In re Creed, 1 Drewey, 235. 
 But see, Osborn v. Allen, 26 N. J. L.. 388; Smith v. Smith, 5 N. J. Bq. 484; 
 Wambaugh v. Schenck, 2 N. J. L. 167; Smith v. Allen, 49 Ala. 156; 
 Stevens v. McNamara, 36 Me. 176, 58 Am. Dec. 740; Ferry v. Sampson, 
 112 N. Y. 415. And this is true even though such residence is beyond the 
 sea, McCartee v. Camel, 1 Barb. Ch. (N. Y.) 455; but no inquiry need be 
 made at places merely visited, Winship v. Conner, 42 N. H. 341. Such 
 testimony is not confined to memhers of the family. Flynn v. OofCee, 
 12 Allen, 133; Doe v. Deakin, 4 Barn. & Aid. 433; Smith v. Combs, 49 
 N. J. Eq. 420. If heard from within the period the presumption falls, 
 Smith V. Allen, 49 Ala. 156; O'Kelly v. Felk^r, 71 Ga. 775; Dowd v. Wat- 
 son, 105 N. C. 476, 18 Am. St. Rep. 920. 
 
62 THE LAW OP EVIDENCE. §' 63. 
 
 and that to this extent the time as well as the fact of the death are 
 to be presumed.^^ But by the weight of authority the presumption 
 is only tjiat the person is dead at the expiration of seven years, not 
 that the death occurred at the end of that time or at any other par- 
 ticular time within that period. This is left to be determined as a 
 matter of fact, according to the circumstances which may tend to 
 satisfy the mind that it was at an earlier or later day.^" 
 
 § 63 (59). When death may be inferred from an absence of less 
 than seven years. — "We have seen that the presumption is not rigid 
 or conclusive; that death may be inferred from absence before the 
 lapse of seven years from proof of special circumstances tending to 
 show that the death occurred at an earlier period.'* For example, 
 in case the person in question embarked on a vessel which was not 
 heard of and which was long over/due, inquiries having been made at 
 ports of departure and of destination f- and where within the time 
 the absentee was known to be in a desperate state of health,^^ or 
 where he was of grossly intemperate habits when last heard of.*' So 
 also where at some time during the period he has encountered a 
 "specific peril," ^* which means not the ordinary dangers of travel 
 or of navigation, but some unusual and extraordinary danger.'" The 
 same rule applies where his habits, character, domestic relations '" 
 
 28 Clarke v. Canfield, 15 N. J. Eq. 119; Burr v. Sim, 4 Wiart. (Pa.) 150, 
 33 Am. Dec. 50; Whiting v. Nicholl, 43 111. 235, 92 Am. Dec. 248; Mont- 
 gomery V. Bevans, 1 Sawy. (U. S.) 653; Smith v. Knowlton, 11 N. H. 191. 
 
 28 Nepean v. Knight, 2 M. & W. 894, 8 B. R. C. 512 and notes, 544-553; In 
 re Phrene's Trust, L. R. 5 Ch. App. 139; Davie v. Briggs, 97 tJ. S. 628; 
 Spencer v. Moore, 11 Ired. (N. C.) 160; 13 Ired. (N. C.) 333; McCartee v. 
 Camel, 1 Barb. Ch. (N. Y.) 455. See note, 104 Am. St. Rep. 202-205. 
 
 aowhiteley v. Equitable Life Assurance Society, 72 Wis. 170, 176; 
 Waite V. Coaracy, 45 Minn. 159. See note, 104 Am. St. Rep. 205, 206. 
 
 31 White V. Mann, 26 Me. 363; Watson v. King, 1 Stark. 121; In re Hut- 
 ton, 1 Curt. 595; In re Cooke, Ir. Rep. 5 Eq. 240; Gerry v. Post, 13 How. 
 Pr. (N. Y.) 118; In re Bishop, 1 Swab. & T. 303; Eagle's Case, 3 Abb. Pr. 
 (N. Y.) 318; King v. Paddock, 18 Johns. 141. 
 
 32Danby v. Danby, 5 Jur. N. S. 54; Webster v. Birchmore, 13 Ves. 362. 
 But the phrase "bad health" is not specific enough to support the pre- 
 sumption. In re Hall, 1 Wall. Jr. (U. S. 85). 
 
 33 Stonvenel v. Stephens, 2 Daly (N. Y.) 319; Chambreleng v. Purton, 
 125 N. Y. 610, 26 N. E. 907. 
 
 34 Burr V. Sim, 4 Whart. (Pa.) 150, 33 Am. Dec. 50. 
 
 35Gibbs V. Vincent, 11 Rich. (S. C.) 323; Learned v. Corley, 43 Miss. 
 687; In re Norris, 1 Swab. & T. 6; Watson v. King, 1 Stark. 121. 
 
 seTisdale v. Connecticut Mut. Ins. Co., 26 Iowa, 170, 96 Am. Dec. 136; 
 Northwestern Mut. Life Ins. Co. v. Steams, 71 Fed. 258; Cox v. Ellsworth, 
 18 Neb. 664, 53 Am. Rep. 827. 
 
§' 64. PRESUMPTIONS. 63 
 
 or necessities °' would have made it certain that, if alive within that 
 period, he would have returned to or communicated with persons at 
 his place of residence or domicile.'* The same inference arises upon 
 the production of letters testamentary issued upon his estate.'" But 
 where it is improbable that the absentee, even if alive, would or 
 could have been heard of or would or could have communicated with 
 his home, the presumption of death will not attach even at the end 
 of the seven years ;*" nor will it attach where in other judicial pro- 
 ceedings the absentee is recorded as having been alive after the lapse 
 of the period of seven years.*^ 
 
 § 64 (60). Presumption of survivorship in common disaster. — 
 The civil law recognized certain arbitrary rules or presumptions for 
 determining the relative times of death of two or more persons who 
 perished in the same catastrophe. Among the civilians these ques- 
 tions have given rise to infinite discussion and refinement ; it suffices 
 without enumerating particular rules to state that by the civil law 
 in such cases persons who by reason of age or sex or state of health 
 were deemed best able to struggle for life were presumed to have 
 been the survivors.*^ This rule, however, has never prevailed in the 
 common law and our courts have rejected this conjectural mode of 
 arriving at a fact which, from its nature, must often remain uncer- 
 tain and upon the truth of which the title to large amounts of prop- 
 erty often depends.*' The rule supported by the weight of authority 
 in England and in this country is that, when the death of two or 
 more persons results from a common disaster, the case must be de- 
 termined upon its own peculiar facts and circumstances, whenever 
 the evidence is sufficient to support a finding of such survivorship, 
 but in the absence of any such evidence the question of such surviv- 
 orship is regarded as unascertainable and in such cases the question 
 is determined as if the death of all occurred at the same moment."'^ 
 
 37 In re Beasney, L. R. 7 Eq. 498; Hickman v. Upsall, L. R. 20 Eq. 139. 
 
 38 Harden v. City of Boston, 155 Mass. 359. 
 
 39 Newman v. Jenkins, 10 Pick. 515; French v. Prazier, 7 J. J. Marsh. 
 (Ky.) 425. 
 
 *oMcMahon v. McElroy, Ir. Rep. 5 Eq. 1; Watson v. England, 14 Sim. 
 28; Lakin v. Lakin, 34 Beav. 443; In re Milehanis Trust, 15 Beav. 507; 
 Dowley V. Winfield, 14 Sim. 277. 
 
 41 Keech v. Rinehart, 10 Pa. St. 240. 
 
 •12 1 Greenl. Bv. § 29. See note, 104 Am. St. Rep. 210-213. 
 
 43 Middeke v. Balder, 198 111. 590, 64 N. E. 1002, 92 Am. St. Rep. 284. See 
 note 104 Am. St. Rep. 210. 
 
 44 Newell V. Nichols, 75 N. Y. 78, 31 Am. Rep. 424; United States Casu- 
 alty Co. V. Kacer, 169 Mo. 301, 69 S. W. 370, 92 Am. St. Rep. 641; Young 
 
64 THE LAW OF EVIDENCE. §' 64. 
 
 This assumption is accepted, not because the fact is proved nor be- 
 cause there is any presumption to that effect, but because there is 
 no evidence and no presumption to the contrary, and further be- 
 cause the person asserting survivorship in such ease, having the bur- 
 den of proof and being unable to support his claim by evidence, 
 necessarily fails.''^ In other words the fact of survivorship like ev- 
 ery other fact must he proved by the party asserting ii.*" Hence if 
 there are any facts which throw light upon the question of survivor- 
 ship and which tend to show that one person did survive others, the 
 question becomes one of fact for the court or jury to determine un- 
 der the general rules of evidence.*^ And where there is evidence 
 from which fair inferences may be drawn in such cases, the courts 
 are justified in considering all the circumstances of the disaster, 
 however minute, and all the facts which throw light upon the situ- 
 ation of the parties and the probabilities of the case.^' And where 
 the question becomes one for the jury by reason of the fact that one 
 of the persons was seen in a place of greater safety than the others 
 or known to be living after the others were supposed to be lost, the 
 jury may consider all the circumstances of the case including the 
 differences in age, sex or health.** 
 
 Woman's Christian Home v. French 187 U. S. 401. Death caused by fire. 
 Will of Abram Ehle, 73 Wis. 445; by shipwreck, Johnson v. Merithew, 80 
 Me. Ill, 6 Am. St. Rep. 162, 13 Atl. 132; Wing v. Angrave, 8 H. L. Gas. 
 183, 8 E. R. C. 519 and note, 552, 553; Russell v. Hallett, 23 Kan. 276; 
 Coye V. Leach, 8 Met. 371, 41 Am. Dec. 523; where two persons were 
 swept by the same wave into the sea. Underwood v. Wing, 4 De Gex, M. & 
 G. 657; where a mother and her infant lost their lives in the same ship- 
 wreck, Stinde v. Goodrich, 3 Redf. (N. Y.) 87; where the whole family 
 perished in the flood. Cowman v. Rogers, 73 Md. 403; where three sisters 
 perished in the same fire, Petition of Wilbor, 20 R. I. 176, 37 Atl. 634, 79 
 Am. St. Rep. 842. 
 
 « See cases last cited. 
 
 *e See cases cited above. 
 
 47 In re Phrene's Trust, L. R. 5 Ch. App. 139; Underwood v. Wing, 19 
 Beav. 459; Will of Abram Bhle, 73 Wis. 445; Newell v. Nichols, 75 N. Y. 
 78, 31 Am. Rep. 424; Cooke v. Caswell, 81 Tex. 678; Leach v. Hall, 95 
 la. 611, 64 N. W. 790. 
 
 48 "Will of Abram Bhle, 73 Wis. 445. In this case several persons were 
 burned in the same house in the night and the court considered testimony 
 in detail in arriving at a conclusion. See also Smith v. Croom, 7 Fla. 81. 
 
 49 Pell V. Ball, 1 Cheves, Eq. (S. C.) 99, a case of shipwreck; Under- 
 wood V. Wing, 19 Beav. 459, where one of the survivors was last seen 
 floating on a spar; Broughton v. Randall, Cro. Kliz. 503, where two per- 
 sons were executed at the same time. 
 
§■ 65. PEESUMPTIONS. 65 
 
 § 65 (61, 62). Presumption of payment from lapse of time. — ^By- 
 
 the common law there was no stated or fixed time for the bringing of 
 actions. The law was always open; satisfaction was never pre- 
 sumed. As statutes of limitation were from time to time enacted, 
 judges both in the courts of law and chancery by a kind of judicial 
 legislation gradually extended the principles involved in such stat- 
 utes by analogy to cases which, though not within the letter, were 
 yet within the spirit of the law. Although the courts recognized tho 
 principle that when a debt is shown to exist it should be presumed 
 to continue until payment is shown, yet they held that the payment 
 of a debt may be inferred or presumed from a failure to make 
 demand for a long period of time, and from other circumstances ap- 
 parently inconsistent with the continuance of the debt.*" The rule 
 that payments of debts may be presumed from the lapse of time is 
 one of convenience and policy, the result of a necessary regard to 
 the peace and security of society. "Justice cannot be satisfactorily 
 done when parties and witnesses are dead, vouchers lost or thrown 
 away and a new generation has appeared on the stage of life, unac- 
 quainted with the affairs of a past age and often regardless of them. 
 Papers which our predecessors have carefully preserved are often 
 thrown aside or scattered as useless by their successors. It has been 
 truly said that if families were compelled to preserve them they 
 would accumulate to a burdensome extent. Hence, statutes of limi- 
 tation have been enacted in all civilized communities, and in cases 
 not within them, prescription or presumption is called in as an aux- 
 iliary to the administration of justice. Courts of equity consider it 
 mischievous to encourage claims founded on transactions that took 
 place at a remote period. They, therefore grant no relief after a great 
 length of time. In a word, the most solemn muniments are pre- 
 sumed to exist in order to support long possession ; the most solemn 
 of human obligations lose their binding efficacy and are presumed trv 
 be discharged after a lapse of many years." *^ These and other con 
 si derations have led to a long line of decisions establishing the rule 
 that, independently of any statute of limitations, a debt, which has 
 been due and unclaimed and without recognition or the payment of 
 interest for twenty years after becoming due, has been paid."^ 
 
 50 Buchannan v. Rowland, 5 N. J. L. 721. For a discussion of the gen- 
 eral subject, see note to Alston v. Hawkins, 18 Am. St. Rep. 879-888. See 
 cases cited hereafter. 
 
 <si Foulk V. Brown, 2 Watts (Pa.) 216; Bean v. Tonnele, 94 N. Y. 381, 
 46 Am. Rep. 153. 
 
 IS2 Brock V. Savage, 31 Pa. St. 410; Lyon v. Adda, 63 Barb. 89; Jarvis v. 
 5 
 
66 THE LAW OP EVIDENCE. §'66 
 
 § 66 (63). Lapse of time not a bar, but evidence to raise the pre- 
 sumption.— Said Lord Mansfield: "There is a great difference be- 
 tween length of time which operates as a bar to a claim and thai 
 which is only used by way of evidence." He gives the statute of 
 
 Albro, 67 Me. 310; Olden v. Hubbard, 34 N. J. Eq. 85; Peter's Appeal, 106 
 Pa. St. 340; Cowie y. Fisber, 45 Mlcb. 629; Maiming v. Meredith, 69 Iowa, 
 430; Willingbam v. Chick, 14 S. C. 93; Lynde v. Dennison, 3 Conn. 391; 
 Ludlow V. Van Camp, 6 N. J. L. 113, 11 Am. Dec. 529; Clark v. Clemon, 
 33 N. H. 563; Goodwyn v. Baldwin, 59 Ala. 127; Ray v. Pearce, 84 N. C. 
 ■485; Bellas v. Levan, 4 Wiatts (Pa.) 294; McCormick v. Evans, 33 111. 
 327; Lyon v. Odell, 65 N. Y. 28; Newcomb v. St. Peter's Church, 2 Sandf. 
 (N. Y.) 636; Courtney v. Staudemeyer, 56 Kan. 392, 54 Am. St. Rep. 592: 
 Williams v. Mitchell, 112 Mo. 300, 20 S. W. 647. The presumption of pay- 
 ment arises after twenty years as to judgments. Bird's Admin, v. Ins- 
 lee's Ex., 23 N. J. Eq. 363; Kinser v. Holmes, 2 S. 0. 483; Miller v. Smith's 
 Ex., 16 Wend. 425; Chapman y. Loomis, 36 Conn. 459; 6omds, Smith v. 
 Benton, 15 Mo. 371; Durham y. Greenly, 2 Harr. (Del.) 124; Tinsley v. 
 Anderson, 3 Call (Va.) 329; Shubrick y. Adams, 20 S. C. 49; Delaney y. 
 Robinson, 2 Whart. 503; Noeyell v. Little, 79 Va. 141; Hale v. Pack's 
 Ex., 10 W. Va. 145; mortgages, Agnew v. Renwick, 27 S. C. 562; Bowie 
 y. Poor School Society, 75 Va. 300; Pryor y. Wood, 31 Pa. St. 142; Inches 
 y. Leonard, 12 Mass. 379; Jackson y. Wood, 12 Johns. 242, 7 Am. Dec. 315; 
 Sweetser y. Lowell, 33 Me. 446; Barned y. Bamed, 21 N. J. Eq. 245; Smith 
 V. Niagara Fire Ins. Co., 60 Vt. 682, 6 Am. St. Rep. 144; Delaney y. 
 Brunette, 62 Wis. 615; notes or other evidences of deit not under seal, 
 Bean v. Tonnele, 94 N. Y. 381, 46 Am. Rep. 153; Lash y. Von Neida, 109 
 Pa. St. 207; Clark v. Clement, 33 N. H. 563; Dixon y. Gourdin, 26 S. C. 
 391; taxes, Hopkinton y. Springiield, 12 N. H. 328; Fisher y. Mayor of 
 New York, 6 Hun (N. Y.) 54; Dalton y. Bethlehem, 20 N. H. 505; Andoyer 
 y. Merrimack County, 37 N. H. 437; Elliott v. Williamson, 11 Lea (Tenn.) 
 38; m,erohants' accounts, Kingsland y. Roberts, 2 Paige Ch. (N. Y.) 193; 
 accounts due upon covenant, Stockton'g Admin, y. Johnson, 6 B. Mon. 
 (Ky.) 409; money due on contract for purchase of land, Morrison y. Funk, 
 23 Pa. St. 421; McCormick y. Evans, 33 111. 327; recognizances in orphans' 
 court, Ankeny y. Penrose, 18 Pa. St. 190; and rents reserved in a perpetual 
 lease or conveyance in fee, Lyon y. Odel, 65 N. Y. 28, (but the non-payment 
 for more than that period does not raise the presumption that the covenant 
 of payment has been released or discharged). On the same general prin- 
 ciple it may be presumed that an estate has been duly distributed. Hooper 
 y. Howell, 52 Ga. 315; that an administrator was qualified. Battles v. 
 Holley, 6 Me. 145; or that he has made a settlement, Austin v. Jordan, 
 35 Ala. 642; Gregg v. Bethea, 6 Port. (Ala.) 9; O'Brien v. Holland, 3 
 Blackf. (Ind.) 490. And when lands are conveyed to a trustee with 
 which to pay debts it will be presumed that he has paid them, Drysdale's 
 Appeal, 14 Pa. St. 531; Webb v. Dean, 21 Pa. St. 29; Prevost v. Gratz, 6 
 WTieat. 481; Coleman v. Lane, 26 Ga. 515; but this is not true as against 
 a legatee when the legacy Is a lien on land, Williams y. Williams, 82 Wis. 
 393. The presumption is also applicable to the case of a covenant for the 
 
^' 66. PRESUMPTIONS. 67 
 
 limitations as an instance of the former; and as an example of the 
 latter mentions the presumption of the discharge of a debt founded 
 upon lapse of time.^' The statute may be pleaded in bar and is con- 
 clusive, though the debt is not paid ; but the lapse of time only raises 
 a presumption which may be repelled by other circumstances to be 
 considered in arriving at the truth.^* When twenty years have 
 elapsed since a debt became due, the jury ought to presume that it 
 has been paid. In fact, the lapse of this period of time is sufficient 
 prima facie evidence of payment, and it must be accepted by the 
 court and jury unless there is other evidence to explain the delay 
 and rebut the presumption.""* Thus it will be seen that length of time 
 is no positive bar, but that it is proper evidence to be left to the jury 
 to aid in deciding on the presumption.^" This presumption of pay- 
 ment in reference to debts not embraced in the statute of limitations, 
 although just as important, is not a presumption of law, — one which 
 the court itself may apply,- — but one of fact, which shifts the burden 
 of proof. The presumption prima facie obliterates the debt and 
 shifts the burden of proof to the creditor, not to establish a new con- 
 tract as in a case where a debt is barred by the statute of limitations, 
 but to show that payment of the debt has not been made."' Although 
 
 delivery of property or the performance of other like duties. Phillips v. 
 Morrison, 3 Bibb (Ky.) 105, 6 Am. Dec. 638. In the case of a debt payable 
 by installments, the presumption applies to each Installment as it falls 
 due. State v. Loff, 3 Harr. (-Del.) 421. 
 
 ss Mayor of Kingston on Hull v. Homer, Cowp. 102; Livingston v. Liv- 
 ingston, 4 Johns. Ch. (N. Y.) 287, 8 Am. Dec. 562; "Wanmaker v. Van Bus- 
 kirk, 1 Saxt. Ch. (N. J.) 685, 23 Am. Dec. 748. 
 
 5* Allen V. Everly, 24 Ohio St. 97; Brobst v. Brock, 10 Wall, 519; Bailey 
 V. Jackson, 16 Johns. 210, 8 Am. Dec. 309; Alston v. Hawkins, 105 N. C. 3, 
 18 Am. St. Rep. 874; Shields v. Pringle, 2 Bibb (Ky.) 387; Howland v. 
 ShurtlefE, 2 Met. 26, 35 Am. Dec. 384; Bell's Appeal, 122 Pa. St. 486; Gu- 
 lick V. Loder, 1 Green (N. J.) 68, 23 Am. Dec. 711; Jackson v. Pierce, 10 
 Johns. 414. 
 
 65 King's Ex. V. Coulter's Ex., 2 Grant Cas. (Pa.) 77; Cope v. Hum- 
 phreys, 14 Serg. & R. (Pa.) 21; Brock v. Savage, 31 Pa. St. 410; Bellas v. 
 Levan, 4 Watts (Pa.) 294; Tilghman v. Fisher, 9 Watts (Pa.) 442. 
 
 66 Lesley v. Nones, 7 Serg. &. R. 410; Boardman v. De Forest, 5 Conn. 1; 
 Pickering v. Stamford, 2 Ves. Jr. 452; Jackson v. Sackett, 7 Wend. 94; 
 Stover & Barnes v. Duren, 3 Strob. (S. C.) 448, 51 Am. Dec. 634. 
 
 6T Stover & Barnes v. Duren, 3 Strob. (S. C.) 448, 51 Am. Dec. 634; Yar- 
 nell V. Moore, 3 Cold. (Tenn.) 173; Queen v. Fletcher, 4 Rich. Bq. (S. C.) 
 152; Courtney v. Staudenmeyer, 56 Kan. 392, 54 Am. St. Rep. 592; Jame 
 son V. Rixey, 94 Va. 342, 64 A.m. St. Rep. 726. 
 
68 THE LAW OP EVIDENCB. §' 67. 
 
 the court cannot make such a presumption, a new trial will usually 
 be granted if a jury disregard it."* 
 
 § 67(64). Mere lapse of time less than twenty years, not 
 enough. — ^From lapse of time alone, this presumption can never 
 arise, unless the full period of twenty years has expired. If a shorter 
 period, even a single day less than twenty years, has elasped, the pre- 
 sumption of satisfaction does not arise. A lapse of time less than 
 twenty years, in cases to which the statute does not apply, is only a 
 circumstance which may with others afford proof of payment, but is 
 of itself insufScient for that purpose."" And when by the expiration 
 of the full period the presumption of payment has acquired an arti- 
 ficial force, so that it stands in place of belief, even an admission 
 that the payment has not been made cannot of itself destroy the 
 effect which considerations of policy have given to a certain period 
 of time."" The presumption raised from a definite time, no more per- 
 mits a jury to give to a shorter time a force beyond its natural effi- 
 cacy in producing belief, than the bar under the statute of limita- 
 tions permits a near approach to the statutory period to avail ; and a 
 verdict found in contravention of this principle will be set aside.^^ 
 In estimating whether the twenty years have elapsed without pay- 
 ment the time, w which for amy reason the creditor has no legal 
 right to hring suit on the note, must be excluded.^'' The law gives to 
 the lapse of time an artificial and technical weight beyond that 
 
 88 stover & Barnes v. Duren, 3 Strob. (S. C.) 448, 51 Am. Dec. 634. 
 
 BO Calwell V. Prindle, 11 W. Va. 307 ; Sadler's Administrator y. Kenne- 
 dy's Administrator, 11 W. Va. 187; Thomas v. Hunnicutt, 54 Ga. 337; Les- 
 ley V. Lesley, 7 Serg. & R. (Pa.) 410. In regard to a mortgage, It was 
 held in Boon v. Pierpont, 28 N. J. Eq. 7, that no presumption arose from 
 the lapse of nineteen years, or of a less time, particularly where for a 
 part of the time the business of the courts is interfered with by war. 
 As seventeen years in case of promissory notes, Smithpeter v. Ison's 
 Adm'r, 4 Rich. L. (S. C.) 203, 53 Am. Dec. 732; or In case of a judgment, 
 Daby v. Ericsson, 45 N. Y. 786. See also Delaney v. Brunette, 62 Wis. 
 615. As to the general subject, see notes, 88 Am. Dec. 590, 18 Am. St 
 Rep. 879-888. 
 
 60 In considering admissions which rebut this presumption, the same 
 principles are applicable as In considering admissions to take a cause of 
 action out of the statute of limitations. Stover & Barnes v. Duren, 3 
 Strob. (S. C.) 448, 51 Am. Dec. 634. But It was held In Levers v. Van 
 Busklrk, 7 "Watts & Serg. (Pa.) 70, that It does not require so strong evi- 
 dence to rebut the presumption of pa.yment, arising after a lapse of 
 twenty years, as it does to take a case out of the statute of limitations. 
 
 ei Smithpeter v. Isons Adm'r, 4 Rich. L. (S. C.) 203, 53 Am. Dec. 732. 
 
 «2Criss V. Criss, 28 W. Va. 388; Mason v. Spurlock, 4 Baxt. (Tenn.) 
 
§' 68. PRESUMPTIONS. 69 
 
 which it would naturally have as a mere circumstance bearing on the 
 question of payment."' 
 
 § 68 (65). A less period than twenty years with other circum- 
 stances may suffice. — ^A shorter time than twenty years may, in 
 connection with other circumstances, warrant the inference that pay- 
 ment has been made."* The law does not and cannot define exactly 
 what these circumstances shall be ; the decision of the question must 
 necessarily depend upon the facts of each case. Among the circum- 
 stances which may be given in reference to aid lapse of time in af- 
 fording proof of payment are the character of the plaintiff for 
 strictness in the collection of debts that are due him ; "" the needy 
 circumstances of the creditor, and the easy and solvent condition of 
 the debtor."" When the time has nearly elapsed, very slight circum- 
 stances may be received as relevant and left to the jury. Still they 
 
 554; Boyce t. Lake, 17 S. C. 481, 43 Am. Rep. 618; Penrose v. King, 1 
 Yeates (Pa.) 344. 
 
 63 Walker v. Wright, 2 Jones (N. C.) 155. 
 
 siBrubaker's Adm'r v. Taylor, 76 Pa. St. 83; Henderson v. Lewis, 9 
 Serg. & R. (Pa.) 379, 11 Am. Dec. 733; Dennlston v. McKeen, 2 McLean 
 (IT. S.) 253; Hughes v. Hughes, 54 Pa. St. 240; Lelper v. Erwin, 5 Yerg. 
 (Tenn.) 97; Brlgg's Appeal, 93 Pa. St. 485; Calwell's Ex. v. Prlndle's 
 Adm'r, 19 W. Va. 604; Colsell v. Budd, 1 Camp. 27; 2 Greenl. Ev. § 528; 
 Diamond v. Tohlas, 12 Pa. St. 312. See note 18 Am. St. Rep. 879. 
 
 esLieper v. Erwln, 5 Yerg. (Tenn.) 97. 
 
 60 Hughes V. Hughes, 54 Pa. St. 240; Levers v. Van Buskirk, 4 Pa. St. 
 309; Morrison v. Collins, 127 Pa. St. 28, 14 Am. St. Rep. 827; Bean v. Ton- 
 nele, 94 N. Y. 381, 46 Am. Rep. 153. Such evidence received to fortify the 
 presumption after the lapse of twenty years. But see Daby v. Ericsson, 
 45 N. Y. 786. But proof of the easy circumstances of the debtor Is Irrele- 
 vant without proof of the needy circumstances c" the creditor. Morrison 
 V. Collins, 127 Pa. St. 28, 14 Am. St. Rep. 827. Where the complainant 
 was In needy circumstances and knew of the sale of the property and In- 
 solvency of the purchaser soon after the sale and did not file her bill to 
 enforce vendor's lien until twelve years after maturity of the debt, it 
 was held that the presumption of payment arose. May v. Wilkinson, 76 
 Ala. 543. But the pecuniary situation of the parties Is not enough. Alex- 
 ander V. Dutcher, 7 Hun, 439: Other facts held relevant to this Issue arf 
 that debtor and creditor had running accounts on which large payments 
 were made, and that they lived near each other. King's Bx'r v. Coulter's 
 Bx'r, 2 Grant Cas. (Pa.) 77; MUledge v. Gardner, 33 Ga. 397; as well as 
 the fact that no demand of payment or attempt to enforce the claim has 
 been made. McDanlel v. Goodall, 2 Cold. (Tenn.) 391; Jacobs v. State, 
 127 Ind. 77 (attorney services, no demand made for fourteen years); 
 Long V. Straus, 124 Ind. 84 (delay of nearly twenty years In presenting a 
 claim, with other facts) ; Semple Glenn, 91 Ala. '245, 24 Am. St. Rep, 
 894 (action on stock subscription). 
 
70 THE LAW OF EVIDENCE. §' 69. 
 
 must be such circumstances as aid the inference arising from lapse 
 of time; they must tend to show that the time would not have been 
 suffered to elapse had the debt remained unpaid."^ The probability 
 of payment strengthens as the time approaches to twenty years, and 
 the circumstances needed to establish it may be measured by the di- 
 minished scale. The further the time stops short of twenty years the 
 taore cogent and decisive must be the circumstances relied upon. 
 ' ' If CTidence be offered which in the judgment of the court will, in 
 connection with the lapse of time, reasonably tend to convince the 
 jury that the debt has been paid short of twenty years or that it has 
 not been paid, notwithstanding that period, it is the duty of the 
 court to receive it and to submit it to the jury with such instruction 
 as shall enable them to estimate it at what it is really worth. ' ' °' 
 
 § 69 (66). The presumption — How rebutted. — The presumption 
 of payment arising from the lapse of time may of course be rebutted 
 by satisfactory and convincing proof ; but in such case the burden of 
 proof rests upon the creditor.'" There are a great variety of facts 
 
 67 Blackburn v. Squib, Peck (Tenn.) 60; Hughes v. Hughes, 54 Pa. St 
 240; Wood v. Egan, 39 La. An. 684. 
 
 88 King V. Coulter, 2 Grant Cas. (Pa.) 77. On the general subject of this 
 section see extended note to Alston v. Hawkins, 18 Am. St. Rep. 879 et seq. 
 
 «9 Gregory v. Com., 121 Pa. St. 611, 6 Am. St. Rep. 804; Barker v. Jones, 
 62 N. H. 497, 13 Am. St. Rep. 586. On this general subject see note to Ash- 
 ton V. Hawkins, 18 Am. St. Rep. 887, 888. The following facts arising 
 within the period required to raise the presumption have been received, to 
 rebut it, part payment, Dickson v. Gourdin, 26 S. 0. 391, 29 S. C. 343; 
 Belo V. Spach, 85 N. C. 122; Hamlin v. Hamlin, 3 Jones Eq. (N. C.) 191; 
 notorious insolvency of debtor, McClellan v. Crofton, € Me. 334; Fladong v. 
 Winter, 19 Ves. 197; Kilpatrick v. Page, 2 Brock. (U. S.) 20; Farmer's 
 Bank v. Leonard, 4 Harr. (Del.) 536; McKinder v. Littlejohn, 4 Ired. (N. 
 C.) 198, in North Carolina the insolvency must be shown to have existed 
 during the whole statutory period; the issuing and return of an execution 
 nulla tona. Black v. Carpenter, 3 Baxt. (Tenn.) 350; the absence of debtor 
 from the state, Daggett v. Tallman, 8 Conn. 168; McClellan v. Crofton, 6 
 Me. 334; absence of creditor, Fladong v. Winter, 19 Ves. 197; Sheldon v. 
 Heaton, 88 Hun, 535, 34 N. Y. S. 856; Helm v. Jones, 3 Dana (Ky.) 86 (but 
 see Cox. v. Brown, 114 N. C. 422, 19 S. E. 365); tfie acTcnowledgment of the 
 debt by tfie debtor, Eby v. Eby, 5 Pa. St. 435; Bissell v. Jandon, 16 Ohio St 
 499; Stout v. Levan, 3 Pa. St. 235; Murphy v. Coates, 33 N. J. Eq. 424 
 (But not as to a co-obligor, Rogers v. Clements, 98 N. C. 180. An admis- 
 sion of non-payment may suffice though accompanied by a declaration that 
 the debtor does not intend to pay, Reed v. Reed, 46 Pa. St. 239) ; recogni- 
 tion of debt and promise to pay, Tucker v. Baker, 94 N. C. 162; Roberts v 
 Smith, 21 S, □. 455, acknowledgment of bond thirteen years after maturity,; 
 demands f<i paymeni. Shields v. Pringle, 2 Bibb (Ky.) 387; Wanmaker 
 
§' 70. PEESUMPTIONS. 71 
 
 which may be relevant to rebut this presumption, and it has beer 
 broadly declared that any facts and circumstances, which render ii 
 more probable than otherwise that payment has not in fact been 
 made, may be received. These facts should be such as will satisfy 
 the minds of the jury on that subject.'" While the same precision 
 of proof which is necessary to remove the bar of the statute of limi- 
 tations is not required, yet the presumption of payment after twenty 
 years is a strong one, binding alike upon court and jury until invali- 
 dated by proof. Hence the evidence to rebut the presumption should 
 be satisfactory and convincing.'''^ 
 
 § 70 (67). Presumptions of payment from usual modes of busi- 
 ness — Receipts. — There are certain other presumptions relating to 
 the payment of money which have often been recognized by the 
 court and which depend upon the known and usual modes of doing 
 business. A familiar illustration is that the production of a receipt 
 given by the creditor, raises a presumption of payment.'^ The fa- 
 
 V. Van Buskirk, 1 Saxt. Ch. (N. J.) 685, 23 Am. Dec. 748; existence of tvar 
 or other facts preventing creditor from bringing suit, Hale v. Pack, 10 
 W. Va. 145; Jackson v. Pierce, 10 Johns. 414; Bailey v. Jaqkson, 16 Johns.. 
 210, 8 Am. Dec. 209; Dunlop v. Ball, 2 Cranch 184; Crooker v. Crooker, 49 
 Me. 416, circumstances making It inconvenient for the one to pay and the 
 other to receive; agreements extending time of payment, Hall v. Pack, 10 
 W. Va. 145; insanity of debtor, McClellan v. Crofton, 6 Me. 334; relation- 
 ship of parties and distress or great inconvenience which collection would 
 have occasioned, Wanmaker v. Van Buskirk, 1 Saxt. Ch. (N. J.) 685, 23 
 Km. Dec. 748. 
 
 7oBuie V. Bule, 2 Ired. (N. C.) 87; Grantham v. Canaan, 38 N. H. 268; 
 Wood V. Dean, 1 Ired. (N. C.) 230; Arden v. Arden, 1 Johns. Ch. (iST. Y.) 
 313; Abbott v. Godfrey, 1 Mich. 178; Foulk v. Brown, 2 Watts (Pa.) 209; 
 Sutphen v. Cushman, 35 111. 186; Knight v. Macomber, 55 Me. 132; Wer- 
 bam V. Austin, 82 Ala. 498, recognition of trust by trustees; Wemet v. 
 Mississippi Lime Co., 46 Vt. 458, mistake in the acceptance of a security. 
 
 71 Gregory v. Com., 121 Pa. St. 611, 6 Am. St. Rep. 804. This is especially 
 true If suit is not brought until after the death of the debtor. It does 
 not suffice merely to show that a former suit has been commenced or 
 abandoned. Palmer v. Dubois, 1 Mill's Const. (S. C.) 178 (suit on bond on 
 which no interest had been paid for twenty-three years) ; or the poverty 
 of the debtor, Rogers v. Judd, 5 Vt. 236, 26 Am. Dec. 301; or an endorse- 
 ment of payment by the creditor without the privity of the debtor, Kirk- 
 Patrick v. Laughlin, 1 Cranch C. C. 85; or to show, as against the execu- 
 tor, part payment on a bond, by one of the heirs, Blake v. Quash, 3 Mc 
 Cord (S. C.) 340; Burnside v. Donnon, 34 S. C. 289; or admission of non- 
 payment to a stranger, Gregory v. Com., 121 Pa. St. 611, 6 Am. St. Rep. 
 1(04; Bentley's Appeal, 99 Pa. St. 500. 
 
 "Bish. Cont. § 176; Obart v. Letson, 17 N. J. L,. 78, 34 Am. Dec. 182; 
 
72 THE LAW OP EVIDENCB. §' 71. 
 
 miliar rule that receipts are not conclusive evidence of the matters 
 which they recite, but are open to rebuttal or explanation, is else- 
 where discussed.'^ Since, in the ordinary course of dealing, securi- 
 ties are delivered to the debtor when paid or discharged, possession 
 hy the debtor of the evidence of a debt, as a note, bond, bill or draft, 
 raises the presumption of payment,'* and so when a person produces 
 an order upon himself signed by another for the delivery of certain 
 articles, the presumption is that such articles have been delivered/^ 
 § 71 (68). Cancellation of instruments. — The same presumption 
 arises from the cancellation of a promissory note, cheek or other 
 instrument, as where the name of the maker is cancelled or torn off, 
 or where lines are drawn across its face '" or across the face of a 
 mortgage.''' Of course this presumption may be rebutted by any 
 competent proof that the cancellation was the result of a mistake 
 or an accident, or that some effect was designed by it different from 
 its ordinary import;'* and the presumption does not arise at all if 
 there is any ground for suspicion that the canaellation is the act of 
 the debtor. Thus where a son after the death of his father presented 
 a cancelled note which had been executed by the former, and it ap- 
 
 Marston v. Wilcox, 2 111. 270. Such receipt may be in the form of an in- 
 dorsement upon a note, order, check, account or written instrument. Egg 
 V. Bamett, 3 Bsp. 196; Graves v. Moore, 7 B. Mon. (Ky.) 341, 18 Am. Dec. 
 181; Shropshire v. Long, 68 Iowa, 537; Harrison v. Harrison, 9 Ala. 73; 
 "Wlooten V. Noll, 18 Ga. 609; Scruggs v. Bibb, 33 Ala. 481. As to a receipt 
 "in full of all claims," see Clark v. Simmons, 4 Port. (Ala.) 14. 
 
 f»See § 491 infra. 
 
 74Pedens v. Schumers, 112 111. 263; Chandler v. Davis, 47 N. H. 462; 
 Callahan v. First National Bank, 78 Ky. 604, 39 Am. Rep. 262; Star Loan 
 Ass'n V. Moore (Del.), 55 Atl. 946. For the rule as to a draft, see Con- 
 nelly V. McKean, 64 Pa, St. 113; Birkey v. McMakin, 64 Pa. St 343; Hayes 
 V. Samuels, 55 Tex. 560; Lane v. Farmer, 13 Ark. 63. For the rule as to 
 an order, see Zeigler v. Gray, 12 Serg. & R. (Pa.) 42; Kincaid v. Kincaid, 
 8 Humph. (Tenn.) 17. For the rule as to a note, see Dougherty v. Deeney, 
 41 Iowa, 19; Bracken v. Miller, 4 Watts & S. (Pa.) 102; Carroll v. Bowie, 
 7 Gill (Md.) 34; Stieger v. Bent, 111 111. 328; Potts v. Coleman, 86 Ala. 
 94; Hollenberg v. Lane, 47 Ark. 394. 
 
 76 Kincaid v. Kincaid, 8 Humph. (Tenn.) 17. 
 
 ToWaldrip v. Black, 74 Cal. 409; Gray v. Gray, 2 Lans. (N. Y.) 173; 
 Peavey v. Hovey, 16 Neb. 416; Conway v. Case, 22 111. 127; Powell v. 
 Swan, 5 Dana (Ky.) 1; Pitcher v. Patrick, 1 Stew. & P. (Ala.) 478; Bank. 
 V. Phoenix Ins. Co. (Neb.), 104 N. W. 1146 (where cancellation was by 
 agent for collection) . 
 
 « Trenton Bank v. Woodruff, 2 N. J. Eq. 117. 
 
 18 Pitcher V. Patrick, 1 Stew. & P. (Ala.) 478. 
 
§' 73. PRESUMPTIONS. 73 
 
 peared that he had a key which fitted his father's desk and thus had 
 access to the note, the court refused to presume that the note had 
 been discharged." But the possession of an uncancelled note by the 
 debtor, under circumstances free from suspicion, is a strong cir- 
 cumstance in favor of payment and should turn the scale if the other 
 testimony on the issue of payment is conflicting and evenly bal- 
 anced.*" The presumption is not overcome by showing payments by 
 the maker to the payee without further showing that there were no 
 other dealings between the parties upon which such payments might 
 have been made.'^ 
 
 § 72 (69). Same subject — ^Application of payments to debts 
 first due. — When payments are made by a debtor to one who is his 
 creditor upon distinct transactions or for __ distinct amounts, and 
 neither party makes an appropriation at the time, it is presumed 
 that the payments are applied to the liabilities of earliest date.*^ 
 From the ordinary course of doing business it is improbable that 
 former rents remain unpaid, when it appears that the last install- 
 ment of rent has been paid ; hence it is presumed when payment for 
 a given quarter or other period is shown that all former rents are 
 paid.*' This presumption obtains as well where several persons are 
 entitled to receive money as in an individual case, for they are all 
 presumed to be conusant of their rights.** 
 
 § 73 (70) . Settlement presumed from accepting note. — Where a 
 party takes up a note on which credits are endorsed and gives a new 
 note for the balance, a settlement of the amounts of the credits is 
 presumed.*" When payments are shown by the maker to the payee 
 of an outstanding note and the proof shows that there have been no 
 other dealings, proof of the payment of money by the maker to the 
 payee raises the presumption that such payments were made to ap- 
 ply on the note ;** and where a new note is given for a less amount 
 
 7» Gray v. Gray, 47 N. Y. 552. 
 
 80 Doty V. Janes, 28 Wis. 319. 
 
 81 Somervail v. Gillies, 31 Wis. 152. 
 
 82Cromptoii V. Pratt, 105 Mass. 255; National Park Bank v. Seaboard 
 Bank, 114 N. Y. 28, 110 Am. St. Rep. 612; Frazier v. Lanahan, 71 Md. 131, 
 17 Am. St. Rep. 516. 
 
 83 Decker v. Livingston, 15 Johns. 479; Attleborough v. Middleborough, 
 10 Pick. 378. See also Robbins v. Townsend, 20 Pick. 345; Best, Bv. 
 § 406. 
 
 84 Decker v. Livingston, 15 Johns. 479. 
 
 85 Greenwade v. Greenwade, 3 Dana (Ky.) 495. 
 88 SomervaH v. Gillies, 31 Wis. 152. 
 
74 THE LAW OP BVIDENOK §' 74. 
 
 than an old one, in renewal thereof, the presumption is that all the 
 differences between the parties were adjusted and settled by the 
 acceptance of a new note. But this presumption is of course subject 
 to rebuttal.^'' It is held in some states that the acceptance of a nego- 
 tiable note or bill of exchange by a creditor in consideration of a 
 pre-existing debt is presumed to be a payment of such debt iinless a 
 contrary intention is shown ;'^ but by the great weight of authority, 
 including the courts of England and the supreme court of the 
 United States, it is held that such acceptance of a note or bill is not 
 presumed to discharge the debt, and that there must be an agree- 
 ment to that effect before the acceptance of the security can operate 
 as payment. The creditor may return the note when it is dishonored 
 and proceed upon the original debt. The acceptance of the note is 
 considered as accompanied by the condition of its payment ;°® and 
 the burden of an express agreement as to payment is upon the pariy 
 asserting it.^" It is the rule which generally prevails that "proof of 
 the giving of a promissory note by one person to another, nothing 
 else appearing, is prima facie evidence of an accounting and a settle- 
 ment of all demands between the parties, and that the maker at the 
 date of the note was indebted to the payee upon such settlement to 
 the amount of such note. But this is a mere presumption which 
 may be repelled by proofs of the consideration of such note and of 
 the occasion and circumstances attending the giving of the same. ' ' "^ 
 But this view has in some cases been rejected."^ 
 
 § 74 (71). Presumption of ownership from possession. — ^It is an 
 ancient principle of law that when a person is shown to be in the pos- 
 session of property, such possession is presumed to be rightful. Po- 
 st piper V. Wade, 57 Ga. 223. 
 
 88 Ely V. James, 123 Mass. 36; Paine v. Dwinel, 53 Me. 52, 87 Am. Dec. 
 533; Mehlberg v. Tischer, 24 Wis. 607; Dickinson v. King, 28 Vt. 378; 
 Hoodless V. Reid, 112 111. 105; Tisdale v. Maxwell, 58 Ala, 40; Mason t. 
 Douglass, 6 Ind. App. 558, 33 N. E. 1009. 
 
 8» Clark v. Mundel, 1 Salk. 124; The Kimball, 3 Wall. 37; Peter v. Bev- 
 erly, 10 Peters, 532; Tyner v. Stoops, 11 Ind. 22, 71 Am. Dec. 341 and note; 
 Vail V. Foster, 4 N. Y. 312; Winsted Bank v. Webb, 39 N. Y. 325, 100 Am. 
 Dec. 435; Ward v. How, 38 N. H. 35; Matteson v. Ellsworth, 33 Wis. 488, 
 14 Am. Rep. 766; Berry v. Griffin, 10 Md. 27, 69 Am. Dec. 123 and note. 
 
 00 Tyner v. Stoops, 11 Ind. 22, 71 Am. Dec. 341; Nigbtengal v. Chaffer, 
 
 11 R. I. 609, 23 Am. Rep. 531. 
 
 01 Dan. Neg. Inst. (5th Ed.) § 71; Ankeny v. Pierce, Breese (111.) 289, 
 
 12 Am. Dec. 174. 
 
 82 Ankeny v. Pierce, Breese (111.) 289; 12 Am. Dec. 174; Crabtree t. 
 Rowland, 33 111. 421. 
 
§' 74. PEESUMPTIONS. 75 
 
 tior est conditio possidentis.^^ Among other grounds which have been 
 assigned for this presumption are these : that it is in accord with the 
 general principles of law to suppose, until the contrary is shown, 
 that possession is lawful rather than unlawful ; that since the right- 
 ful owners of property are not likely to consent that their property 
 remain in the continued possession of others who assert title thereto, 
 it is a natural conclusion that possession of this character is author- 
 ized by some grant or license ; and finally, as stated by Judge Story, 
 "presumptions of this character are adopted from the general in- 
 firmity of human nature, the difficulty of preserving the muniments 
 of title and the public policy of supporting long and uninterrupted 
 possession." °* A familiar English case illustrates the rule that one 
 having bare possession may raise a presumption of ownership and 
 sustain an action against a wrong doer: A chimney sweeper's boy, 
 having found a jewel, carried it to a goldsmith to ascertain its value, 
 but the goldsmith by his apprentice detained it and refused to re- 
 store it. The boy having brought trover, it was held that his posses- 
 sion was some evidence of property, good against any one except the 
 true owner; that he could maintain trover for it on such prima facie 
 proof of title, and that refusal to restore it on demand was evidence 
 of conversion.^'* But the presumption of title arising from posses- 
 
 »3 2 Inst. 391; Broom Leg. Max. p. 719. 
 
 »*Rlcard v. Williams, 7 Wheat. 109; University of Vermont v. Reynolds, 
 3 Vt. 542, 23 Am. Dec. 234; Bradshaw v. Ashley, 180 U. S. 59; Jackson 
 V. McCall, 10 Johns. 377, 6 Am. Dec. 343; Harland v. ESastman, 119 111. 28, 
 8 N. E3. 810; Doe v. Reed, 5 Barn. & Aid. 232. Peaceable possession of per- 
 sonal property has in many cases been held to raise the presumption, so 
 that one having hare possession may as against a stranger or wrongdoer, 
 maintain trespass, Hoyt v. Gelston, 13 Johns. 141; Graham v. Peat, 1 East. 
 244; Orser v. Storms, 9 Cow. 687, 18 Am. Dec. 543 and note; replevin, Schu- 
 lenberg v. Harriman, 21 Wall. 44; jRawley v. Brown, 71 N. Y. 85; Hor- 
 sey V. Knowles, 74 Md. 602 (the presumption is admitted and the burden 
 assumed by the plaintiff when he brings suit) ; and trover, Duncan v. 
 Spear, 11 Wend. 54; Orser v. Storms, 9 Cow. 687, 18 Am. Dec. 543 and 
 note; Magee v. Scott, 9 Cush. 148, 55 Am. Dec. 49; and it is sufficient evi- 
 dence of ownership in prosecutions for ro'b'bery, Howard v. People, 193 
 111. 615, 61 N. E. 1016; People v. Oldham, 111 Cal. 648, 44 Pac. 312. 
 
 05 Proof of possession in a bailee or other person having some special 
 title is prima facie evidence of title, Sutton v. Buck, 2 Taunt. 302; Faulk- 
 ner v. Brown, 13 Wend. 63 and cases; Cowing v. Snow, 11 Mass. 415. So 
 possession of negotiable paper payable to bearer and endorsed in blank 
 gives rise to this presumption, Rubey v. Culbertson, 35 Iowa, 264; Bachel- 
 lor v. Priest, 12 Pick. 399; Cone v. Brown, 15 Rich. (S. C.) 262; Mars v. 
 Mars, 27 S. C. 132; Jam^ v. Chalmers, 6 N. T. 209; Jackson v. Love, 82 
 
76 THE LAW OF EVIDENCE. § 75. 
 
 sion does not obtain in favor of one who unlawfully takes property 
 from the possession of another, when an action is brought for its re- 
 covery or conversion/^ nor does it apply in favor of one whose pos- 
 session is of a subordinate character, as that of an avowed agent, the 
 possession in that ease being that of the employer." From the na- 
 ture of this presumption it may be easily rebutted and it affords no 
 protection to one who purchases property or otherwise obtains it 
 from one who is not the real owner."^ 
 
 5 75 (72). The presumption of title from the possession of 
 lands. — Although as has been seen the presumption under discus- 
 sion is often applied in the law of personal property, its application 
 is far more important as affecting titles to land. Prom an early pe- 
 riod of the common law the courts seem to have delighted in some re- 
 laxation of the strict rules of evidence in favor of those who had long 
 been in the enjoyment of these easements and franchises which could 
 be created by grant without record. In later times the courts of this 
 country have indulged in similar favors to those in the possession of 
 corporeal hereditaments. One of the most common muniments of 
 title to real estate is the presumption, from long possession, that such 
 possession is lawful rather than unlawful, — in other words that it is 
 supported by a grant. It has become a well established rule that the 
 peaceable possession of real estate is presumptive evidence of title 
 until the contrary is shown."' When possession of real estate has 
 
 N. C. 405; Collins v. Gilbert, 94 U. S. 753; Perot v. Cooper, 17 Colo. 80, 31 
 Am. St. Rep. 258 and note. The rule is not the same, however, as to unin- 
 dorsed negotiable paper, Vastine v. Wilding, 45 Mo. 89, 100 Am. Dec, 
 347 and note. On this general subject see full note, 17 L. R. A. 326. A 
 bill of lading raises presumption of property in goods in consignee. Law- 
 rence V. Minturn, 17 How. 107. 
 
 Ks Cumberledge v. Cole, 44 Iowa, 181; Weston v. Higgins, 40 Me. 102; 
 Price V. Powell, 3 N. Y. 322. 
 
 87 Linscott v. Frask, 35 Me. 150; Succession of Boisblanc, 32 La. An. 
 109; Perkins v. Weston, 3 Cush. 549. Where one occupies the farm and 
 uses the farm implements and teams of another, no presumption arises 
 from such possession as to the ownership of the growing crops, Rawley 
 V. Brown, 71 N. Y. 85; Comer v. Comer, 120 111. 420; Stacy v. Graham, 3 
 Duer (N. Y.) 444; Bailey v. Steamer, 2 Cal. 370. 
 
 88Velsian v. Lewis, 15 Ore. 539, 3 Am. St. Rep. 184, and elaborate note. 
 
 09 Plume V. Seward, 4 Cal. 94, 60 Am. Dec. 599; Jackson v. Town, 4 Cow, 
 599, 15 Am. Dec. 405; Smith v. Lorillard, 10 Johns. 339; Austin v. Bailey, 
 37 Vt. 219, 86 Am. Dec. 703; Wausau Boom Co. v. Plumer, 35 Wis. 274; 
 Bagley v. Kennedy, 85 Ga. 703; Tuttle v. Jackson, 6 Wend. 213; 21 Am. 
 Dec. 306; Eakin v. Brewer, 60 Ala. 578; Hicks v. Davis, 4 Cal. 67; Jones 
 V. Nunn, 12 Ga. 472; Day v. Alverson, 9 Wend. 223; De Noon v. Morrison, 
 
§ K PRESUMPTIONS. 71 
 
 exisUli uninterruptedly for a long period of years the courtE 
 have uniformly regarded the presumption of ownership as greatly 
 strengthened. So strongly have the courts favored titles fortified by 
 long possession that it has been said : "An act of parliament, a grant 
 from the crown, a deed and in fact anything which will quiet a pos 
 session may be presumed from length of time where such act, grant 
 or deed would have been lawfully passed, made or given." * 
 
 § 76 (73.74). Presumptdlons as to grajits and other sources of 
 title. — Mr. Stephen in his work on evidence lays down the follow- 
 ing rule as to the presumption of lost grants: "When it has been 
 shown that any person, for a long period of time, exercised any pro- 
 prietory right which might have had a lawful origin by grant or 
 license from tlie Crown or from a private person, and the exercise of 
 which might and naturally would have been prevented by the per- 
 sons interested if it had not had a lawful origin, there is a presump- 
 tion that such right had a lawful origin and that it was created by a 
 proper instrument which had been lost." '^ Accordingly when it it 
 shown that there had been adverse possession for twenty years or for 
 
 86 Cal. 163, as to mining claims. Such possession is sufficient to main- 
 tain ejectment or trespass against a mere Intruder or wrongdoer. Plume 
 V. Seward, 4 Cal. 94, 60 Am. Deo. 599 and note; Moore v. Railway Co., 78 
 Wis. 120; Cain v. McCann, 2 Pen. (N. J.) 438, 4 Am. Dec. 384; Warner v. 
 Page, 4 Vt. 291, 24 Am. Dec. 607; McCall v. Doe, 17 Ala. 533; Jaris ^ 
 Dyer, 31 Ark. 334; Hutchinson v. Perley, 4 Cal. 33, 60 Am. Dec. 578; Doe t. 
 Lancaster, 5 Ga. 39; Mettler v. Miller, 129 111. 630; Kerr v. Farish, 52 Miss. 
 101; Murphy v. Loomis, 26 Hun. 659; Wilson v. Palmer, 18 Texas, 592; 
 Gradshaw v. Ashley, 180 TJ. S. 59; Sabeigo v. Marcrick, 124 Ui S. 261, anj 
 cases cited; and indeed is sufficient against every one who cannot show a 
 better title, Elliot v. Kempt, 7 M. & W. 312; Heath v. Williams, 25 Me. 209, 
 43 Am. Dec. 265; Hayward v.^edgley, 14 Me. 439, 31 Am. Dec. 64; Bvertson 
 V. Sutton, 5 Wend. 281, 21 Am. Dec. 217; Elofrson v. Lindsay, 90 Wis. 203- 
 63 N. W. Rep. 89. It has sometimes been said that possession gives rise 
 to the presumption of seisin in fee, Asher v. Whitlock, L. R. 1 Q. B. 1 ; Day 
 V. Alverson, 9 Wend. 223; but it is more accurate to say that this presump- 
 tion arises only when possession is accompanied by the claim of ownership 
 in fee. Ward v. Mcintosh, 12 Ohio St. 231; LaPrombois v. Jackson, 8 Cow. 
 603, 18 Am. Dec. 463; Adams v. Guice, 30 Miss. 397; Ricard y. Williams. 
 7 Wheat. 59; Jackson v. Porter, 1 Paine (U. S.) 457 In some states it ig 
 held that mere naked possession, unless continued for such time as gives 
 title under the statute of limitations, will not sustain ejectment. Doe v 
 Howell, 1 Houst. (Del.) 178; Breeding v. Taylor, 13 B. Mon. (Ky.) 47'f: 
 Alexander v. Campbell, 74 Mo. 142. 
 
 1 University of Vermont v. Reynolds, 3 Vt. 542, 23 Am. Dec. 234, Zin, 
 N-xon, v. Carco, 28 Miss. 414. 
 
 sSteph. Ev. art. 100. 
 
78 THE LAW OF EVIDENCE. §' 76. 
 
 the period fixed by the statute of limitations, though it be less than 
 twenty years, it will be presumed that the possessor or some grantor 
 had a deed and that all acts necessary to give it effect had been per- 
 formed." In such eases the grant is presumed on principles of pub- 
 lic policy, and not from any belief that a deed has actually been 
 made. Hence, where the evidence is sufficient to warrant the legal 
 inference of a grant the jury may presume such a grant, though 
 they may not believe that it was in fact made.* Acts of parliament 
 and of the legislature may be presumed to support a title after long 
 possession, even though the public records furnish no evidence of 
 such act ; but there could be no presumption of such an act if, under 
 the constitution of the state, no such act could be properly passed.'' 
 Where possession for the requisite time has been shown and also that 
 during the time certain conditions have been performed by those in 
 possession, it may be presumed that there was a grant on condition.^ 
 In ejectment, where the defendant has had long possession, the pre- 
 sumption is not limited to a grant from the plaintiff but it may be of 
 a grant from his remote grantor.'' After long possession of land 
 under a deed executed in the name of an agent it will be, presumed 
 that he had authority from the principal.' 
 
 aCourcies v. Graham, 1 Ohio, 330; Wallace v. Fletcher, 30 N. H. 434; 
 Downing v. Ford, 9 Dana (Ky.) 391; Brattle Square Church v. Bullard, 
 2 Met. 363; Rooker v. Perkins, 14 Wis. 79. The doctrine is illustrated hy 
 a great many cases where possession had been held for different periods: 
 Emans v. Turnhull, 2 Johns. 313, one hundred years; Strimpfler v. Rob- 
 erts, 18 Pa. St. 2S3, 57 Am. Dec. 606, twenty-one years; Doe v. Maxwell, 
 10 Ired. (N. C.) 110, 51 Am. Dec. 380, thirty years; Newman v. Studley, 5 
 Mo. 291, twenty-six years; McNair v. Hunt, 5 Mo. 300, thirty years. 
 
 4 Casey v. Inloes, 1 Gill (Md.) 430, 39 Ai^ Dec. 658; Fletcher v. Fuller, 
 120 U. S. 534 and cases cited. In such case it is sufficient if by legal possi- 
 bility a grant might have been made, Williams v. Donell, 2 Head (Tenn.) 
 695. So deeds of partition may be presumed to have been executed where 
 the joint owners have for a long time held possession of separate tracts, 
 Hepburn v. Auld, 5 Cranch, 262; Monroe v. Gates, 48 Me. 463; Russell v. 
 Marks, 3 Met. (Ky.) 37; Lloyd v. Gordon, 2 Har. & McH. (Md.) 254; Jack- 
 son v. Miller, 6 Wend. 228, 21 Am. Dec. 316; and when contracts of sale of 
 land have been made and vendee taken possession and paid purchase 
 price, conveyance has been presumed. Jackson v. Murray, 7 Johns. 5. 
 
 5 Attorney General v. Hospital, 17 Beav. 366; McCarty v. McCarty, 3 
 Strob. (S. C.) 6, 47 Am. Dec. 585; Lopez v. Andrew, 3 Man. & Ry. 329 and 
 note. 
 
 «Watkins v. Peck, 13 N. H. 360, 40 Am. Dec. 156; Mitchell v. Walker, 2 
 Aikens (Vt.) 266, 16 Am. Dec. 710. 
 ^ Casey v. Inloes, 1 Gill (Md.) 430, 39 Am. Dec. 658. 
 sjarboe v. McAtee, 7 B. Mon. (Ky.) 279; Farrow v. Edmundson, 4 B. 
 
§' 77. PRESUMPTIONS. 7D 
 
 § 77 (75). Presumption not superseded by statutes of limita- 
 tion. — Originally this presumption of title from possession was ap- 
 plied only to incorporeal hereditaments, but it is now well settled 
 that the same presumption wiU arise whether the grant relates to cor- 
 'poreal or incorporeal hereditaments.^ Nor is this rule changed by 
 the fact that, in most cases where possession is relied upon as a source 
 
 y:on. (Ky.) 605, 41 Am. Dec. 250; Stockbridge v. West Stockbridge, 14 
 Mass. 257. Other illustrations in which presumptions have been applied 
 Are, that after long user a ferry had a legal origin. Trotter v. Harris, 2 
 Younge & J. 285; Bird v. Smith, 8 Watts (Pa.; 434; Smith v. Hawkins, 
 3 Ired. Bq. (N. C.) 613, 44 Am. Dec. 83; that the record of a statute of 
 Sncorporation had been lost, Stockbridge v. West Stockbridge, 12 Mass. 
 WO; that after long enjoyment there had been a grant of fishery, Melvin 
 y. Whiting, 10 Pick. 295, 20 Am. Dec. 524; Carter v. Tinicum Fishing Co., 
 77 Pa. St. 310; or of the right of way, Hill v. Crosby, 2 Pick. 466, 13 Am. 
 Dec. 448; or of the right to hold meetings in a parish house, GofE v. Reho- 
 both, 12 Met. 26; that a vower of attorney had existed where a deed had 
 i'oen made by one purporting to be by an attorney, Buhols v. Boudous- 
 ■iiuie, 6 Mart. N. S. (La.) 153; Doe v. Campbell, 10 Johns. 475; or that a 
 lease in fee. Ham v. Schuyler, 4 Johns. Ch. (N. Y.) 1; or for life, Selliek 
 V. Starr, 5 Vt. 255; or a grant of water flowing through an aqueduct, had 
 been executed, Watkins v. Peck, 13 N. H. 360, 40 Am. Dec. 156. The pre- 
 sumption has often been applied in cases where there has been adverse 
 possession of water courses, not navigable, or of land overflowed on ac- 
 count of the erection of dams, Bealey v. Shaw, 6 East, 208; Magor v. Chad- 
 wick, 11 Adol. & Ell. 571; Watkins v. Peck, 13 N. H. 360, 40 Am. Dec. 156; 
 Bullen V. Runnels, 2 N. H. 255, 9 Am. Dec. 55; Strickler v. Todd, 10 Serg. 
 & R. (Pa.) 63, 13 Am. Dec. 649; Campbell v. Smith, 3 Halst. (N. J.) 140, 
 14 Am. Dec. 400 (but see Seidensparger v. Spear, 17 Me. 123, 35 Am. Dec. 
 234; Hall v. Augsbury, 46 N. Y. 622; Stiles v. Hooker, 7 Cow. 266; Tonk- 
 man v. Arnold, 3 Me. 120) ; but this rule has no application to under- 
 ground waters percolating or filtering through the earth, Frazier v. 
 Brown, 12 Ohio St. 294; Chasemore v. Richards, 7 H. L. Cas. 349. It is 
 also presumed that, where there are several in possession, the law refers 
 the possession to the one who has the title, Maples v. Maples, Rice Ch. 
 Cas. 300; that the soil of one owner is entitled to the natural support of 
 the adjoining soil, Humphries v. Brogden, 12 Q. B. 739; Harris v. Ryding, 
 5 M. & W. 60; Roberts v. Haines, 6 El. & B. 643; Rowbothem v. Wilson, 6 
 El. & B. 593; and that one who has allowed the continuous use of his 
 land as a highway has intended to dedicate the same, Wyman v. State, 13 
 Wis. 663; R,eg. v. East Mark, 11 Q. B. 877; Rex v. Petrie, 24 L. J. Q. B. 
 167; 2 Beach, Pub. Corp. § 1451 and cases. Grants may be presumed from 
 the government as well as from individuals and upon the same principle, 
 Oaksmlth v. Johnston, 92 XT. S. 343; United States v. Charez, 175 U. S. 
 509. As to adverse possession of public property, see note, 76 Am. St. Rep. 
 474. 
 
 oRicard y. Willlanr.s, 7 Wheat. 59; Fletcher v. Puller, 120 U. S. 534; 
 AmoiQ V. Stevens, 24 Pick. 106, 35 Am. Dec. 305. 
 
80 THE LAW OF EVIDENCE. §' 78. 
 
 of title to lands and tenements, the statute of limitations of the juris- 
 diction affords a sufficient guide.'^" The party relying on his posses- 
 sion may of course call to his aid the statute of limitations where it 
 is applicable and if he relies upon the statute the proofs must sho-?? 
 compliance with its provisions.^^ But the statutes of limitation do 
 not supersede the common-law presumption and, if this is relied 
 upon, possession for less than the period prescribed by the statute 
 may with other cogent circumstances sustain the claim of a convey- 
 ance or of a lost grant. The length of time which brings a given case 
 within the legal presumption of a grant or charter to validate s 
 right long enjoyed is not definite but depends on its peculiar circum- 
 stances.^^ It may be necessary to seek the aid of this presumption in 
 some cases where the statute of limitations does not apply, as where 
 it is urged against the state or when from some peculiar relations of 
 the parties there could not have been adverse possession originally, 
 or where the presumption may be relied upon to supply a convey- 
 ance or other missing link, or where it relates to an incorporeal 
 hereditament or to an easement.^^ 
 
 § 78 (76). Presumption that trustees have made proper convey- 
 ances. — On the same principle it may be stated as a rule of much 
 importance and of quite general application that, when a person ir 
 possession of any property is shown to be entitled to the beneficial 
 ownership thereof, there is a presumption that every instrument has 
 been executed which it was the legal duty of his trustees to execute 
 in order to perfect his title.^* The circumstances which should con- 
 cur to raise this presumption as to the trustee are the following: (1) 
 It must have been the duty of the trustee to convey. (2) There must 
 be sufficient reason to justify the presumption. (3) The object of 
 
 loRicard v. "Williams, 7 Wheat. 59; Fletcher v. Fuller, 120 U. S. 534. 
 "Lowe V. Carpenter, 6 Bxch. 825; Eldridge v. Knott, 1 Cowp. 214. 
 
 12 Bright V. Walker, 1 Cromp. M. & R. 211; Stamford v. Dunbar, 13 M. 
 & W. 822; Hanmer v. Chance, i De Gex, J. & S. 626; Fletcher v. Fuller, 
 120 U. S. 534; Ricard v. Williams, 7 Wheat. 59, 110. But see Townsend v. 
 Towner, 32 Vt. 183. 
 
 13 Cowen & Hill's notes to Phil. Ev. and cases, note 298; State v. Dick- 
 inson, 129 Mich. 238, 88 N. W. 621. 
 
 i4Steph. Bv. art. 101; Doe v. Cooke, 6 Bing. 174; Jackson v. Cole, 4 
 Cow. 587; Jackson V. Moore, 13 Johns. 513, 7 Am. Dec. 398; Majr v. Gil- 
 liam, 1 Cold. (Tenn.) 488; Tyler v. Herring, 67 Miss. 169, 19 Am. St Rep. 
 263, and note. For discussion of the rule with qualifications, see Doggett 
 V. Hart, 5 Fla. 215, 58 Am. Dec. 464 and note. See note, 100 Am. St Rep. 
 104. 
 
§' 79. PRESUMPTIONS. 81 
 
 the presumption must be to support a just title.^" la this class of 
 cases where the period has elapsed during which the trastees should 
 have conveyed, it is not necessa,ry that twenty years or any other 
 certain period should have expired." It is a familiar rule that in 
 general length of time is no bar to a trust whose existence has been 
 clearly proved ; and where fraud is imputed and proved, no length 
 of time ought to exclude relief. But as length of time obscures evi- 
 dence and deprives parties of the means of ascertaining the nature 
 of the original transactions it operates by way of presumption in 
 xavor of innocence and against the imputation of fraud. Accord- 
 ingly in a leading case it was held that the lapse of forty years, to- 
 gether with the death of all the original parties, wa^ sufScient to 
 warrant a presumption of the discharge and extinguishment of a 
 trust proved to have existed by strong circumstances. This is by 
 analogy to the rule of law which after a lapse of time presumes the 
 payment of a debt, the surrender of a deed and the extinguishment 
 of a trust where circumstances may reasonably justify it.^' 
 
 § 79 (77). Nature of the possession required. — ^It now becomes 
 necessary to discuss the nature of the possession which creates the 
 presumption that a grant has been made or that some other missing 
 link to the title has been supplied. Though as has been seen the 
 courts have been ready to relax the strict rules of evidence in favor 
 of long possession, they have sought to apply this presumption, not 
 capriciously, but in conformity with uniform rules. It is clear that 
 the burden is upon the one, who claims title by adverse possession 
 against a documentary title, to prove such possession for the requi- 
 site time by clear and satisfactory evidence. It will not be pre- 
 sumed.^' Indeed it has been said that the possession should be 
 proved beyond a reasonable doubt.^' But there seems to be no good 
 reason for requiring the strictness of proof demanded in the crimi- 
 nal law. The possession must be actual and not constructive in its 
 nature ; while the payment of taxes and similar acts of control may 
 be evidence of the claim of right, they are not alone sufficient evi- 
 
 iB Doggett V. Hart, 5 Fla. 215, 58 Am. Dec. 464, and note. 
 
 i« Jackson v. Woolsey, 11 Johns. 446; England v. Slade, 4 T. R, 682. 
 See cases and discussion, Cowen & Hill's notes to Phil. EJv. note 298. 
 
 17 Prevost V. Gratz, 6 Wheat. 481. 
 
 "Baldwin v. Buffalo, 35 N. Y. 375; Budd v. Brooke, 3 Gill (Md.), 198; 
 43 Am. Dec. 321; Casey v. Inloes, 1 Gill (Md.) 430, 39 Am. Deo. b5&; 
 Hurst's Lessee v. McNeil, 1 Wash. C. C. 70. 
 
 19 Rowland v. Updike, 28 N. J. L. 101. 
 
82 THE LAW OF EVIDENCE. §' 80. 
 
 dence of possession within the meaning of the rule.'"' Moreover, the 
 possession must be hostile in its inception and exclusive and it must 
 continue uninterruptedly under a claim of right to the boundaries 
 of the land claimed; ^^ and where the title is evidenced by possession 
 only, it must be limited to the claim asserted; ^^ so where a party is 
 in actual possession and has right to possession under a legal title 
 which is not adverse, but claims the possession under another title 
 which is adverse, the possession will not be presumed to be adverse.^' 
 The possession should be accompanied with such acts of ownership 
 as persons usually exercise over their own lands, such acts that the 
 owner knowing of them must be deemed to understand that a claim 
 is made adverse to his own.^* 
 
 § 80 (78). Same — Changes in possession — ^Possession by ten- 
 ant. — Where there is evidence of a prescriptive claim extending 
 over a long time, the presumption of right will not be defeated by 
 proof of slight, partial or occasional variations in the exercise or 
 the extent of the right claimed.^^ Slight changes in the nature or 
 extent of long possession are almost inevitable; and when by the 
 lapse of years the evidence is lost by which such changes or irregu- 
 larities might be explained, the courts cannot scrutinize such an- 
 cient possession as strictly as they might a modern grant. It has, 
 therefore, always been the well-estabished principle of our law to 
 presume everything in favor of long possession and it is everyday 
 practice to rest the title to the most valuable properties upon this 
 foundation.^" While the possession must be open and such as sub- 
 jects the premises to the dominion of the possessor, such control 
 may be exercised through the agency of a tenant or another recog- 
 Qizing the right of the one claiming control.^^ Although the exclu- 
 
 20 Jackson v. Myers, 3 Johns. 388, 3 Am. Dec. 504; Pharls v. Jones, 122 
 Mo. 125; Pendleton v. Snyder, 5 Tex. Civ. App. 427. 
 
 21 Brandt v. Ogden, 1 Johns. 156; Williams v. Donell, 2 Head (Tenn.), 
 695; Arnold v. Stevens, 24 Pick. 106, 35 Am. Dec. 305; Armstrong v. Rls- 
 teau, 5 Mich. 256, 59 Am. Dec. 115. As to slight interruptions not inter- 
 fering with the presumption, see Fletcher v. Puller, 120 U. S. 534. 
 
 22Ricard v. Williams, 7 Wheat. 59. 
 
 23 Nichols V. Reynolds, 1 R. I. 30, 36 Am. Dec. 239. 
 • 24 Doe V. Max-well, 10 Ired. (N. C.) 110, 51 Am. Dec. 380; Bailey v. Carle- 
 '.on, 12 N. H. 9, 37 Am. Dec. 190; Pownal v. Taylor, 10 Leigh (Va.) 172, 
 34 Am. Dec. 725; Colvin v. Warford, 20 Md. 357. 
 
 25 Reg. v. Archdall, 8 Adol. & Bll. 281; Welcome v. Upton, 6 M. & 'VP' 
 536; Fletcher v. Fuller, 120 TJ. S. 534. 
 
 26 Reg. V. Archdall, 8 Adol. & EU. 281. 
 
 27 Barstow v. Newman, 34 Cal. 90; McLawrin v. Salmons, 11 B. Mon 
 (Ky.) 96, 52 Am. Dec. 5G3. 
 
§■ 81. PRESUMPTIONS. 83 
 
 sive possession of one tenant in common is presumed not to be ad- 
 verse to the co-tenant, but rather for his benefit,'^ yet the ouster of 
 the co-tenant may be proved and may be inferred from such cir- 
 cumstances as claiming the whole rent, denying the right of the 
 other party or by abandonment by those not in possession ; in such 
 cases it may be a question for the jury whether the possession has 
 become adverse," and whether there has been a grant.^° A mere 
 tortious possession, however, obtained by violence is not possession 
 in the meaning of the rule before us; and, against such a wrong- 
 doer, the party wrongfully dispossessed may make out a prima 
 facie ease in an action of ejectment, on proof of a prior possession 
 however short." '^ 
 
 § 81 (79). The presumption, how rebutted. — It follows logi- 
 cally from the foregoing discussion that long-continued possession 
 of corporeal or incorporeal hereditaments only furnishes a pre- 
 sumption of a legal title, which may be repelled or rebutted by 
 other circumstances, as that the use was not exercised as a right,^^ 
 for example, that the use was permissive and accompanied by the 
 payment of rent ; ^' that it was under some written instrument in- 
 consistent with an adverse user ; ^* that the adverse use was not ac- 
 quiesced in and was contested, or that possession was taken by vir- 
 tue of some qualified interest or estate less than a claim of an ab- 
 solute title or subordinate to the rights of the owner.^° Where the 
 presumption of a grant is raised by parol evidence, it may be re- 
 butted by evidence of the same kind.^° 
 
 28 Coke Litt. 199; Colburn v. Mason, 25 Me. 434, 43 Am. Dec. 292; Mc- 
 Clung V. Ross, 5 Wiheat. 116; Dubois v. Campaw, 28 Mich. 304; Phillipps v. 
 Gregg, 10 Watts (Pa.) 158, 36 Am. Dec. 158. See also Wilcox v. Leo- 
 minster Bank, 43 Minn. 541, 19 Am. St. Rep. 259. 
 
 29 Meredith v. Andres, 7 Ired. (N. C.) 5, 45 Am. Dec. 504; Harmon v. 
 James, 7 Smedes & M. (Miss.) Ill, 45 Am. Dec. 296. See also Bolton v. 
 Hamilton, 5 Watts & Serg. (Pa.) 294, 37 Am. Dec. 509. 
 
 30 Hepburn v. Auld, 5 Cranch, 262; Kingston v. Lesley, 10 Serg. & R. 
 (Pa.) 383. 
 
 aiAsher v. Whitelock, L. R. 1 Q. B. 1; Clifton v. Lilley, 12 Tex. 130; 
 White V. Cooper, 8 Jones (N. C.) 48; Weston v. Higgins, 40 Me. 102. 
 
 32 Hall V. McLeod, 2 Met. (Ky.) 98, 74 Am. Dec. 400; Watkins v. Peck, 
 13 N. H. 360, 40 Am. Dec. 156. 
 
 ssMcCullough V. Wall, 4 Rich. L. (S. C.) 68, 53 Am. Dec. 715; -County 
 of Susquehanna v. Deans, 33 Pa. St. 131. 
 
 3*Nieto V. Carpenter, 21 Cal. 455; Field v. Brown, 24 Gratt. (Va.) V4. 
 
 36 Farrow v. Bdmundson, 4 B. Mon. (Ky.) 605, 41 Am. Dec. 250; Chiles 
 y. Conley, 2 Dana (Ky.) 21. 
 
 « English V. Doe, 7 Ga. 387. 
 
84 THE LAW OP EVIDENCE. § 83. 
 
 § 82 (80). Same— Disabilities— Nature of estate— What facts 
 are relevant. — This presumption does not arise when the owner 
 is under a disability from insanity or other cause ; ^' nor does it 
 arise against remainder-men or reversioners during the continu- 
 ance of the particular estate.'* An owner in possession is presumed 
 to hold under his fee until it is shown that he holds under an estate 
 adverse and not subordinate to his fee. Thus where a widow had 
 held long possession under a deed in fee from one of her husband's 
 heirs for an undivided part -of the land, it was held that no pre- 
 sumption could arise against the deed that she held as tenant in 
 dower.'' The possession of one defendant is of no avail to a co- 
 defendant as creating a presumption where they claim under dis- 
 tinct titles.*" There are various circumstances which may be rele- 
 vant as showing whether or not the possession has been hostile and 
 adverse, as the absence of the owner and his consequent ignorance 
 of the adverse claim, or the unsettled condition of the country and 
 consequent lack of notoriety of the claim.*^ But the presumption 
 is not necessarily defeated by the mere ignorance or inattention of 
 the owner as to the adverse claim, as the use may continue so long 
 without objection as to warrant the inference of an implied consent 
 or of a grant. ''^ And it has been held that the presumption of a 
 grant from long adverse possession was not rebutted by the fact 
 that there was a prevalent opinion in the neighborhood as to the 
 party's legal rights.*' 
 
 § 83 (81, 82). Presumption as to the law of sister states. — It 
 often happens that a question arises in the courts as to the law 
 prevailing in some other state than that of the forum, where no 
 evidence has been given on the subject. As appears from the dis- 
 cussion in another section the courts do not in such cases take judi- 
 
 87 Hunt V. Hunt, 3 Met. 175, 37 Am. Dec. 130; Watklns v. Peck, 13 N. H. 
 360, 40 Am. Dec. 156; Mitchell v. Owings, 2 Marsh. (Ky.) 312; Demarest 
 V. Wynkoop, 3 Johns. Ch. (N. Y.) 129, 8 Am. Dec. 467. 
 
 38 McCareny v. King, 3 Humph. (Tenn.) 267, 39 Am. Dec. 165; Tinney 
 V. Wolston, 41 111. 215. 
 
 39 Hale v. Portland, 4 Me. 77. 
 
 *o Casey v. Inloes, 1 Gill (Md.) 430, 39 Am. Dec. 658. 
 
 *i Mitchell V. Ownings, 3 Marsh. (Ky.) 312; Hurst's Lessee v. McNeil, 
 1 Wash. C. C. 70; Bethum v. Turner, 1 Greenl. (Me.) 115, 10 Am. Dec. 36. 
 
 42Reimer v. Stuber, 20 Pa. St. 458; Warren v. Jacksonville, 15 111. 236, 
 58 Am. Dec. 610. 
 
 ■18 Casey v. Inloes, 1 Gill (Md.) 430, 39 Am. Dec. 658. 
 
§ 83. PRESUMPTIONS. 85 
 
 cial notice of the foreign law.** It has been frequently declared 
 without qualification that, in such cases, the law of the sister state 
 will be presumed to hf. the same as the law of the forum.*^ It will 
 be found, however, that in many of the cases where this rule has 
 been declared the court was dealing with common-law doctrines 
 and not with statutory law.*^ Undoubtedly there are some limita- 
 
 **Ab to proof of laws of other states, see §§ 118 and 504 infra. 
 
 *5Rape V. HeatOtt, 9 Wis. 328, 76 Am. Dec. 269; MacCarthy v. Wiit- 
 comb, 110 Wis. 113; Cutler v. Wright, 22 N. Y. 472; Smith v. Whitaker, 
 23 111. 367; Kermott t. Ayer, 11 Mich. 181; Wliite v. Friedlander, 35 Ark. 
 52; In re Dumphy's Estate, 147 Cal. 95, 81 Pac. 315; Brimhall v. Van 
 Campen, 8 Minn. 13, 82 Am. Dec. 118; Campbell v. Campbell (la.), 105 
 N. W. 583; Petersen v. Chemical Bank, 32 N. Y. 21, 88 Am. Dec. 298; Com. 
 V. Graham, 157 Mass. 73, 34 Am. St. Rep. 255; Clark v. Elting, 38 Wash. 
 376, 80 Pac. 556; Iowa Loa,n & Trust Co. v. Schnose (S. D.), 103 N. W. 
 22. See full notes on the general subject, 89 Am. Dec. 658, 11 Am. Dec. 
 779, 21 L. R. A. 467. 
 
 4« It has been presumed in the absence of all proof that in another 
 state the common law prevails as to cfiampertT/, White v. Knapp, 47 Barb 
 649; Houghtaling v. Ball, 19 Mo. 84, 59 Am. Dec. 331; Miles v. Collins, 1 
 Met. (Ky.) 311; Thurston v. Percivil, 1 Pick. 415; as to the negotiabilitij 
 of promissory notes, Newton v. Cocke, 10 Ark. 169; Dunn v. Adams, 1 Ala 
 527, 35 Am. Dec. 42; Ellis v. Maxson, 19 Mich. 186, 2 Am. Rep. 81; White 
 V. Knapp, 47 Barb. 549; Houghtaling v. Ball, 19 Mo. 84, 59 Am. Dec. 331; 
 Forbes v. Scannell, 13 Cal. 242; Bundy v. Hart, 46 Mo. 460 (as to the law 
 of indorsement, see Dubois v. Mason, 127 Mass. 37, 34 Am. Rep. 335) ; as 
 to the effect of giving a note on a pre-existing deM, Ely v. James^ 123 
 Mass. 36; as to the allowance of days of grace on negotiable paper. Ruse 
 V. Mutual Benent Life Ins. Co., 23 N. Y. 516; Walsh v. Dart, 12 Wis. 635. 
 99 Am. Dec. 177; Lucas v. Sadew, 28 Mo. 342; as to notice of dishonor 
 to fix liability of endorser. Second Nat. Bank v. Smith, 118 Wis. 18; 
 as to the validity of a marriage solemnized by a priest and followed 
 by cohabitation. Com. v. Kenney, 120 Mass. 387; Raynham v. Canton, 
 3 Pick. 293; Hynes v. McDermott, 82 N. Y. 41, 37 Am. Rep. 538; 
 as to the invalidity of an insurance pplicy upon a life in which the 
 insurer had no interest. Ruse v. Mutual Benefit Life Ins. Co., 23 N. Y. 
 516; and as to the invalidity of a contract made witlioyi consideration. 
 Crouch v. Hall, 15 111. 263 (as to the rights of married women, State 
 v. Clay, 100 Mo. 571); as to the passing of title to personal property 
 \o the personal representaive, Reese v. Harris, 27 Ala. 301 (see also as to 
 thfi powers of administrators, Rogers v. Zook, 86 Ind. 237); as to statute 
 of frauds, Wilhite v. Skelton (Ind Ter.) 82 S. W. 932; as to forfeiture of 
 property for taxes, Edelman v. Edelman, 125 Wis. 270; as to law regulat- 
 ing action of replevin, Osborn v. Blackburn, 78 Wis. 209; as to the rights 
 of property, Connor v. Travick, 37 Ala. 289, 79 Am. Dec. 58; Silver v. Kan- 
 sas City Ry., 21 Mo. App. 5; Cressey v. Tatom, 9 Ore. 541; Richards v. 
 Marley, 80 Ind. 185; and as to the liaHlity of common carriers, Eureka 
 
86 THE LAW OF EVIDENCE. §' 83. 
 
 tions to be added to the general statement so often made, that the 
 law of the sister state will be presumed to be the same as that of the 
 forum,*' for example, it has been repeatedly held that there will be 
 no presumption in a state where penalties or forfeitures are im- 
 posed for usury, that similar laws exist in another state.** By the 
 greater number of decisions the rule seems to be maintained that 
 the law of a sister state, including the statutory law, in the absence 
 of proof, should be presumed to be the same as that of the forum ;*" 
 but we have seen that some limitations as to this rule exist, and 
 there is very high authority indeed for the view that while the pre- 
 sumption under discussion extends to the common-law rules it does 
 not apply to the statutory law of another state. It has often been 
 
 Springs Co. v. Timmans, 51 Ark. 459; and as to matters not covered iy 
 common law the presumption is that there is no right or liability unless 
 the contrary is made to appear by proof of a statute or agreement, Thomp- 
 son V. Morrow, 2 Cal. 99, 56 Am. Dec 318; Hudson v. Daily, 13 Ala. 722; 
 Palfrey v. Portland Ry. Co., 4 Allen, 55, injury in Maine, no statute 
 in either state creating the liability. So as to other actions for negligence. 
 Whitford V. Panama Ry. Co., 23 N. Y. 465; Leonard v. Columbia Co., 84 
 N. y. 48, 38 Am. Rep. 491; State v. Pittsburg Co., 45 Md. 41. 
 
 *T As to this general subject, see annotated cases cited in note 45 to last 
 section; also note, 37 Am. Rep. 583. 
 
 48 Gridler v. Driver, 46 Ark. 50; Cutler v. Wright. 22 N. Y. 472; Hull v. 
 Augustine, 23 Wis. 383. But the contrary has been held as to law of inter- 
 est, Crafts V. Clark, 3 Iowa, 77, 38 Iowa, 237; Cooper v. Reany, 4 Minn. 
 528; National Bank v. Lang, 2 N. Dak. 66; Thomas v. Beekman, 1 B. Mon. 
 (Ky.) 29. It will not be presumed that the law of another state requires 
 contracts for the sale of land to be in writing, since at common law parol 
 contracts of this character were valid. Ellis v. Maxson, 19 Mich. 186, 2 
 Am. Rep. 81. In an action in Massachusetts on a note made and deliv- 
 ered on Sunday In New York there is no presumption of similarity of laws 
 between the two states in the absence of proof since such a note was valid 
 at common law. Murphy v. Collins, 121 Mass. 6; Hill v. Wilker, 41 6a 
 449; Sayre v. Wheler, 31 Iowa, ^12; 32 Iowa, 559. Contra, Brimhall v. 
 Van Campen, 8 Minn. 13, 82 Am. Dec. 118. In the absence of proof of the 
 law of Virginia a contract made in New York to advertise in Virginia a 
 lottery to be drawn in that state will not be held invalid in New York, 
 although lotteries are illegal in New York, Ormes v. Dauchy, 82 N. Y. 
 4^3. 37 Am. Rep. 583. 
 
 iirHall V. Pillow, 31 Ark. 32; Juillard v. May, 130 111. 87; Hickman v. 
 Alpaugh, 21 Cal. 225; Mortimer v. Harder, 93 Cal. 172; Evans v. Cleary, 
 125 Pa. St 204; Rape v. Heaton, 9 Wis. 328, 76 Am. Dec. 269; Osborn v. 
 Blackburn, 78 Wis. 209; Haggin v. Haggin, 35 Neb. 375; Neese v. Insur- 
 ance Co., 55 Iowa, 604; Goodnow v. Litchfield, 67 Iowa, 691; First Nat. 
 Bank of Galva v. Nordstrom (Kan.), 78 Pac. 804. See also cases above 
 tited. 
 
§' 84. PEBSUMPTIONS. 87 
 
 declared, and witli much force, that it cannot be presumed that the 
 legislature of another state has adopted all the statutes of the state 
 of the forum, and that the court should have proof before it can 
 asstoie that such statutes have been passed/" But whatever may 
 be the presumptions to be indulged, the party who seeks to avail 
 himself of the statute of another state should prove it; otherwise 
 the court will apply the law of the jurisdiction." 
 
 § 84 (83). Same subject — Foreign law. — The presumption has 
 no application in respect to foreign countries having a system of 
 jurisprudence of their own, which has no connection with our own 
 or the common law, or to states which before becoming members of 
 the Union were not subject to the common law."^ But it has been 
 said that "Although courts do not, without proof, take notice of 
 foreign laws, yet they will assume that certain general principles, 
 consonant to reason and natural justice and of universal applica- 
 bility, are recognized by all civilized nations; as, for instance, the 
 right of self-preservation, the privileges and exemptions of ne- 
 
 60 Newton v. Cocke, 10 Ark. 169; Murphy v. Collins, 121 Mass. 6; Ellis 
 V. Maxson, 19 Mich. 186, 2 Am. Rep. 81; McCulloch v. Norwood, 58 N. Y. 
 562; Ufford v. Spaulding, 156 Mass. C5; Houghtaling v. Ball, 19 Mo. 84; 
 Forbes v. Scannell, 13 Cal. 242; Carpenter v. Railway Co., 72 Me. 388, 39 
 Am. Rep. 340; Bundy v. Hart, 46 Mo. 460, 2 Am. Rep. 525; Kelly v. Kelly, 
 161 Mass. Ill, 42 Am. St. Rep. 389; Harris v. White, 81 N. Y. 532; Ormes 
 V. Dauchy, 82 N. Y. 443, 37 Am. Rep. 583, and note with Illustrations. 
 
 51 Monroe v. Douglas, 5 N. Y. 447; Savage v. O'Neil, 44 N. Y. 298, and 
 cases already cited. Where the evidence discloses that the law of another 
 state is different but the law is not proved, the court cannot apply the 
 law of the former. Ufford v. Spaulding, 156 Mass. 65, 30 N. E. 360. 
 
 62 As to proof of foreign laws see §§ 502, 503 infrai. Also note, 113 Am. 
 St. Ry. 869-884. The common law is presumed to prevail in siaies judicially 
 known to he of common-law origin, Birmingham Water Works Co. v. 
 Kiime, 121 Ala. 168, 77 Am. St. Rep. 43; but there is no presumption that 
 it prevails in any state or country where English institutions have not 
 been established, Banco De Sonora v. Bankers, etc. Co., 124 la. 576, 100 
 N. W. 532, 104 Am. St. Re^. 367; thus it is not presumed to he in force 
 in Russia, feavage v. O'Neil, 44 N. Y. 298; nor in Turkey, Dainese v. Hiile. 
 91 U. S. 13: nor among the Cherokee Nation, Duval v. Marshall, 30 Ark. 
 230; Davison v. Gibson, 56 Fed. 443; nor in Texas, 58 Ark. 20, 22 S. W. 
 1022; nor in Louisiana, Peet v. Hatcher, 112 Ala. 514, 57 Am. St. Rep. 45; 
 nor in Mexico, Banco De Sonora v. Bankers, etc. Co., 124 la. 576, 100 N. W. 
 532, 104 Am. St. Rep. 367. Nor is there a presumption in New York that 
 by the law ot New Granada a civil action lies for the negligent killing 
 of another. Whitford v. Panama Ry. Co., 23 N. Y. 465. But see Murphy 
 V. IJurphy, 1*5 Cal. 482, 78 Pac. 1053, where the court held the law of 
 England as to interest the same as that of California. 
 
88 THE LAW OF EVIDENCE. § 85 
 
 cessity, the common duties of humanity, of more or less perfect 
 obligation, and those obligations, for the most part conventional, 
 upon which is based the modem system of international law. ' ' ^" 
 Where the rights of litigants are to be determined in this coun- 
 try, although those rights might be affected by proof of the law of 
 a foreign country where the contract was made or the right ac- 
 crued, in the absence of any such proof the law of the forum must 
 furnish the rule of decision ; ^^ so acts which are criminal by the 
 law of the forum and are malum in se will be presumed to be 
 crimes in a foreign state or country.'"' Another qualification has 
 been thus stated: Where a right is sought to be enforced in oni» 
 state in relation to a subject matter existing in another state, and 
 no foreign law is proved and no common-law rule was ever pre- 
 scribed and no contract exists, in such case the court will apply the 
 law of the state in which it is sitting.^" Where a contract is made 
 in one state or country to be performed in another, the presump- 
 tion is that the parties contracted with reference to the laws of the 
 latter." 
 
 § 85 (84). Contracts presumed to be legal. — The presumption 
 is never to be indulged that parties in making their contracts in- 
 tended to violate the law ; and if there are two laws vrith reference 
 to which they may contract, and the contract accords with one of 
 the laws, it must be presumed that the parties so intended because 
 they had their election to mould their contract according to either 
 law, and as the law presumes in favor of a contract and not against 
 it, the presumption must be that the parties had in view the law 
 which will give full effect to their contract.^* The law will not 
 presume an agreement void as illegal or against public policy when 
 
 63 state V. Morrill, 68 Vt. 60, 54 Am. St. Rep. 870. 
 
 64McBride v. The Farmers Bank, 26 N. Y. 450; Forbes v. Scannell, IS 
 Cal. 242; Carpenter v. Grand Trunk Ry., 72 Me. 388, 39 Am. Rep. 340; State 
 V. Morrill, 68 Vt. 60, 54 Am. St. Rep. 870; Lloyd v. Guibert, L. R. 1 Q. B. 
 115. As to the rights of married women in Russia, see Savage v. O'Neil, 
 44 N. Y. 298. 
 
 05 Cluff V. Mutual Benefit Life Ins. Co., 13 Allen, 308. 
 
 06 Crake v. Crake, 18 Ind. 156, holding that in an action on a justice judg- 
 ment rendered in another state it must be proved that the justice had jur- 
 isdiction of the subject matter since justices had no common law civil 
 jurisdiction. 
 
 or Ormes v. Dauchy, 82 N. Y. 443, 37 Am. Rep. 583, and cases cited. 
 
 08 Brown v. Freeland, 34 Miss. 181; Garrique v. Kellar, 164 Ind. 676, 108 
 Am. St. Rep. 324. As to the presumption of innocence see § 12 et seg, 
 supra. 
 
§'86. PRESUMPTIONS. 89 
 
 it is capable of a construction which would make it consistent with 
 the law and valid. The presumption of legality is stronger than 
 that of the identity of laws.'^" But the qualification is sometimes 
 added, that where a contract is declared void by the law of the 
 state or country where it is made, it cannot be enforced as a valid 
 contract in any other, though by its terms it was to have been per- 
 formed there."" 
 
 § 86 (85). Presumptions as to marriage. — It is a familiar ap- 
 plication of the general presumption in favor of the regularity of 
 official and other lawful acts, that, when a marriage ceremony is 
 shown to have been performed de facto, it is presumed to have 
 been properly and legally performed.^^ Thus the consent of pa- 
 rents, when essential to the validity of a marriage, is presumed 
 from the mere record of the marriage."^ So the publication of bans 
 and the procuring of a license will be presumed from the proof of 
 the solemnization of the marriage."' When a marriage ceremony 
 is shown, it will be presumed that the parties had legal capacity to 
 marry; that the formalities of the law of the place were complied 
 with, and that the marriage was a valid one."* "When persons live 
 and cohabit together as husband and wife and are generally re- 
 puted to be husband and wife there is a presumption- that they 
 have been married."^ The courts look upon this presumption with 
 
 69 0rmes v. Dauchy, 82 N. Y. 443, 37 Am. Rep. 583; Curtis v. Gokey, 68 
 N. y. 300. 
 
 60 Hyde v. Goodnow, 3 Comst. (N. Y.) 266. 
 
 61 Piers V. Piers, 2 H. L. Cas. 331; Sichel v. Lambert, 15 C. B. N. S. 781; 
 Harrod v. Harrod, 1 Kay & J. 4; R. v. Manwarring, 26 Law J. M. C. 10; 
 R. V. Cradock, 3 Fost. & F. 837. For full notes on the subject of this sec- 
 tion see 57 Am. Rep. 451; 14 L. R. A. 540. A divorce will be presumed in 
 order to sustain second marriage. Hadley v. Rash, 21 Mont. 170, 69 Am. St. 
 Rep. 649, and note. As to proof of marriage in criminal cases see full 
 note, 36 Am. Dec. 745. As to legitimacy see § 93 et seq. infra; see also 
 § 14 supra. 
 
 82 Milford V. Worcester, 7 Mass. 48. Contra, Rex v. James, Rus. & R. Cr. 
 Cas. 17; Rex. v. Butler, Rus. & R. Cr. Cas. 1; Rex v. Morton, Rus. & R. Cr. 
 Cas. n. 19. 
 
 63 Davis V. Davis, 7 Daly (N. Y.) 308; Murphy v. State, 50 Ga. 150; 
 Saunders, 10 Jur. 143; Lloyd v. Passingham, Coop. 152. 
 
 64 Sichel V. Lambert, 15 C. B. N. S. 781, 109 E. C. L. 781; Catherwood v. 
 Calson, 1 Car. & M. 431, 41 E. C. L. 237; United States v. DeAmador (N. 
 M.), 27 Pac. Rep. 488; United States v. DeLujan (N. M.), 27 Pac. Rep. 489; 
 United States v. Chavers (N. M.), 27 Pac. Rep. 489; Megginson v. Meg 
 ginson (Ore.), 14 L. R. A. 540 and full note. 
 
 ^!' Cargile v. Wood, 63 Mo. 501; Redgrave v. Redgrave, 38. Md. 93; Smith 
 
90 THE LAW OF EVIDENCE. §' 87. 
 
 great favor and it has been frequently held that a subsequent mar- 
 riage might be presumed from these facts although the parties 
 originally came together under a void contract. "^^ Mr. Bishop gives 
 the following instances in which such proof has been deemed suffi- 
 cient to, raise the presumption of marriage : ' ' Cohabitation and re- 
 pute are adequate in questions of legitimacy.^' So even it was 
 held where one sought to recover as heir of a deceased brother, dur- 
 ing the life of the father, who was not called as a witness.^' And 
 this evidence will suffice in a woman's action to have dower *" or to 
 inherit property as widow of the deceased ; '" in favor of husband 
 and wife who jointly, as such bring detinue,''^ or ejectment or any 
 other ordinary civil action;'^ in a husband's suit for the slander 
 of asserting that he is living in concubinage with the woman whom 
 he claims to be his wife ; '** in an action against husband and wife 
 for breach of the wife's promise, made before marriage, to marry 
 the plaintiff ; '* or to charge land held in the name of the wife, as 
 the property of the husband,'^ and also in settlement cases. ' ' " 
 
 § 87 (86). Cohabitation and reputation to concur — Weight of 
 presumption. — Both cohabitation and repute should concur in or- 
 der to raise the presumption of marriage; mere cohabitation is not 
 
 V. Fuller (la.), 108 N. W. 765; Hynes v. McDermott, 91 N. T. 451, 43 Am. 
 Rep. 677; Morris v. Davies, 5 Clark & P. 163; Piers v. Piers, 2 H. L. Cas. 
 331; Young v. Foster, 14 N. H. 114; Fleming v. Fleming, 8 Blackf. (Ind.) 
 234; Stover v. Boswell, 3 Dana (Ky.) 232; Magginson v. Magginson, 21 
 Ore. 387; Applegate v. Applegate, 45 N. J. Eq. 116; Coal Run Coal Co. v. 
 Tones, 127 111. 379. See full note, 57 Am. Rep. 451-463, and see also note, 
 22 Am. Dec. 156. 
 
 esBetsinger v. Chapman, 88 N. Y. 487, and cases cited; Williams v. Kil- 
 burn, 88 Mich. 279; Land v. I^and, 206 111. 288, 68 N. E. 1109, 99 Am. St. 
 Rep. 171. 
 
 67 1 Bish. Mar., Div. & Sep. § 943. 
 
 68 Fleming v. Fleming, 4 Bing. 266. 
 
 69 Young V. Foster, 14 N. H. 114; Smith v. Fuller (la.), 108 N. W. 765; 
 Sellman v. Bowen, 8 Gill & J. (Md.) 50, 29 Am. Dec. 524; Stevens v. Reed, 
 37 N. H. 49; Pearson v. Howey, 6 Halst. (N. J.) 12. 
 
 70 Stover v. Boswell, 3 Dana (Ky.) 232; Kuhl v. Knauer, 7 B. Mon. 
 (Ky.) 130. 
 
 71 Crozier v. Gano, 1 Bihb (Ky.) 257. 
 
 72Hammick v. Bronzon, 5 Day (Conn.) 290; Boatman v. Curry, 25 Mo, 
 433. 
 
 73 Hobdy V. Jones, 2 La. An. 944. 
 
 74 Pettingill v. McGregor, 12 N. H. 179. 
 
 76 Jenkins v. Bisbee, 1 Edw. Ch. (N. Y.) 377. 
 " Rex. v. Stockland, 1 W. Black. 367. 
 
§' 88. PRESUMPTIONS. 91 
 
 sufficient/'' nor is mere repute.'* This repute must be of a general 
 and not of a special character.''' Says Mr. Bishop: "These ele- 
 ments of proof — namely, cohabitation, reputation, declarations, 
 conduct and reception among friends and neighbors as married — 
 are commonly, in a perfect case, found in combination. All the 
 latter ones are shadows attending on cohabitation, and they should 
 be simultaneous therewith. Together they make a complete case; 
 while in legal doctrine there is no necessity of exhibiting all the 
 shadows in connection with that from which they fall, cohabita- 
 tion." *" Where the presumption of marriage has been created by 
 proof of cohabitation and repute, it is not to be lightly repelled; 
 on the contrary it is a presumption of great weight, and can 
 only be overcome by clear and satisfactory proof. Semper prae- 
 sumitur pro matrimonio. This is especially true in a case in- 
 volving legitimacy. The law presumes morality and not immor- 
 ality, marriage and not concubinage, legitimacy and not bas- 
 tardy. Where there is enough to create a foundation for the pre- 
 sumption of marriage, it can be repelled only by the most cogent 
 and satisfactory evidence.*^ The strength of the presumption in- 
 creases with the lapse of time during which the cohabitation and 
 reputation of marriage continue.^^ 
 
 § 88 (87). Presumption of marriage in civil and criminal is- 
 sues. — ^In an early ease it was held that, ia an action for erimi- 
 
 77 Com. V. Stump, 53 Pa. St. 132, 91 Am. Dec. 198; Cargile v. Wood, 63 
 Mo. 501; Foster v. Hawley, 8 Hun, 68; Hemingway v. Miller, 87 Minn. 123, 
 91 N. W. 428; Williams v. Herrick, 21 R. I. 401, 79 Am. St. Rep. 809, and 
 note; Bldred v. Eldred, 97 Va. 606, 34 S. E. 477. 
 
 TsGreenawalt v. McEnelly, 85 Pa. St. 352; Blair v. Howell, 68 Iowa, 619. 
 But see 1 Bish. Mar. & Div. § 936; Badger v. Badger, 88 N. T. 546, 42 
 Am. Rep. 263; Richard v. Brehm, 73 Pa. St. 140, 13 Am. Rep. 733. 
 
 70 Cunningham v. Cunningham, 2 Dow, 482; Barnum v. Barnum, 42 Md. 
 251; Jones v. Hunter, 2 La. An. 254. 
 
 80 1 Bish. Mar. & Div. § 939; Westfleld v. Warren, 3 Halst. (N. J.) 
 249; Smith v. Fuller (la.), 108 N. W. 765; Stevenson v. McReary, 12 
 Smedes & M. (Miss.) 956, 51 Am. Dec. 102; Com. v. Hurley, 14 Gray, 411; 
 Vincent's Appeal, 60 Pa. St. 228; Jones v. Reddick, 79 N. C. 290. 
 
 siHynes v. McDermott, 91 N. Y. 451, 43 Am. Rep. 677; Piers v. Piers, 2 
 H. L. Cas. 331. This is especially true in cases involving questions of legi- 
 timacy, Morris v. Davies, 5 Clark & F. 163. On the general subject see ex- 
 tended note, 57 Am. Rep. 451. 
 
 82Teter v. Teter, 101 Ind. 129, 51 Am. Rep. 742; Caujolle v. Ferrie, 23 
 N. Y. 90; Hiler v. People, 156 HI. 511, 47 Am. St. Rep. 221; Wilkie v. 
 Collins, 48 Miss. 496; Steadman v. Powell, 1 Add, Ec. 58; I.^geyt v. O'Brien, 
 Milw. 325; Else v. Else, Milw. 146; Smith v. Huston, 1 Phillm. 287. 
 
92 THE LAW OF EVIDENCE. §' 88. 
 
 aal conversation, proof of cohabitation and repute alone could not 
 raise a presumption of marriage ; *^ but by the vsreight of authority 
 the presumption of marriage may be created by proof of cohabita- 
 tion and by repute, where the action is for divorce on the ground 
 of adultery.^* For obvious reasons a stricter rule obtains when the 
 fact of marriage is in issue in a criminal case. Accordingly we find 
 a long line of cases holding that when in a criminal case the result 
 of proof of marriage would show the defendant to be guilty of big- 
 amy, polygamy, adultery, incest, lascivious cohabitation or other 
 crime there must be direct proof of actual marriage. ^^ These cases 
 proceed upon the theory that the presumption of marriage arising 
 from mere evidence of cohabitation and repute is counterbalanced 
 by the presumption of innocence.^^ On the other hand there are 
 cases which proceed upon the theory that one who cohabits with 
 another and appears to the world to live in the marriage relation 
 substantially admits or confesses that such relation exists, and 
 hence that such cohabitation and reputation and the conduct of 
 the defendant in introducing another as husband or wife may be 
 shown even in a criminal case.^' It seems to be generally conceded 
 
 83 Morris v. Miller, 4 Burr. 2057; 1 W. Black. 632. This case has been 
 constantly cited as authority, see Mr. Bishop's comments on its history, 1 
 Bish. Mar. & Div. §§ 1036 and 1042. For full note on the general sub- 
 ject, see 57 Am. Rep. 451. 
 
 «* Morris v. Morris, 20 Ala. 168; White v. White, 82 Cal. 427, 23 Pac. 
 276; Wright v. Wright, 6 Tex. 3; Trimble v. Trimble, 2 Ind. 76. But in 
 Collins V. Collins, 80 N. Y. 1, the court held such evidence insufficient 
 where the plaintiff did not testify that any marriage had taken place. 
 Action for divorce on ground of desertion, Purcell v. Purcell, 4 Hen. & M. 
 (Va.) 507; on the ground of cruelty, Harman v. Harman, 16 111. 85; Burns 
 V. Burns, 13 Fla. 369. 
 
 85 Cases for criminal conversation, Morris v. Miller, 1 W. Black. 632; 
 Birt V. Barlow, 1 Doug. 171; Catherwood v. Caslon, 13 M. & W. 261; for 
 bigamy or polygamy, Case v. Case, 17 Cal. 298; Henry v. McNealey, 24 
 Colo. 456, 50 Pac. 37; People v. Humphrey, 7 Johns. 314; Clayton v. War- 
 dell, 4 N. y. 230; for adultery, Com. v. Norcross, 9 Mass. 492; State 
 V, Hodgkins, 19 Me. 155, 36 Am. Dec. 742 and full note; for incest. State 
 V. Roswell, 6 Conn. 446; for lascivious cohabitation. Hopper v. State, 19 
 Ark. 143; Com. v. Littlejohn, 15 Mass. 163. A contrary rule prevails as to 
 prosecutions for abandonment. Poole v. People, 24 Colo. 510, 65 Am. St. 
 Rep. 245. As marriage must be proved beyond a reasonable doubt, like 
 other facts, a judgment of divorce is not admissible to show marriage. 
 State V. Starkey (N. J.), 63 Atl. 866. 
 
 88 Clayton v. Wardell, 4 N. Y. 230; Bailey v. State, 36 Neb. 808, 55 N. W. 
 241. 
 
 87 Com. V. Jackson, 11 Bush (Ky.) 679, 21 Am. Rep. 225; Cook v. State, 
 
§' 89. PRESUMPTIONS. 93 
 
 that the confessions of the defendant deliberately made afford 
 proof of marriage in criminal cases.^^ The rule seems to have been 
 declared by the greater number of decisions that in criminal cases 
 there must be direct proof of the marriage and that proof afforded 
 by the cohabitation, reputation and the conduct of the defendant 
 are not sufficient. But there is much reason and high authority for 
 the view that the jury may find proof of marriage by other testi- 
 mony than that of witnesses present at the ceremony ; and that they 
 may even in criminal eases determine whether cohabitation and 
 reputation and the acts and statements of the accused under all 
 the circumstances of the case constitute satisfactory proof.*" 
 
 § 89 (88). No presumption arising from illicit cohabitation. — 
 Since this presumption of marriege from cohabitation and repute 
 rests on the principle that the law presumes morality and inno- 
 cence rather than crime, the presumption does not arise, if it fol- 
 lows logically as a result of such presumption that one of the par- 
 ties has committed another equal or greater offense. For example, 
 if it be shown that during the cohabitation one of the parties was 
 cohabiting with another person, no presumption of marriage arises 
 in either case ; "^ and where the relation between a man and a 
 woman living together is illicit in its commencement, it is presumed 
 so to continue until a change is shown by evidence, showing the de- 
 sire of the parties to live in marriage and not in illicit inter- 
 
 11 Ga. 53; State v. Hughes, 35 Kan. 626, 57 Am. Rep. 195; State v. Brit- 
 ton, 4 McCord (S. C.) 256; Oneale v. Com., 17 Gratt. (Va.) 582; Williams 
 V. State, 44 Ala. 240. 
 
 88 State V. Hughes, 35 Kan. 626, 57 Am. Rep. 195; Dumas v. State, 14 
 Tex. App. 464, 46 Am. Rep. 241; Miles v. United States, 103 U. S. 304; 
 State V. Hilton, 3 Rich. (S. C.) 434; Cameron v. State, 14 Ala. 546; Wil- 
 liams V. State, 54 Ala. 131, 25 Am. Rep. 665; Wolverton v. State, 16 Ohio 
 173; Forney v. Hallacher, 8 Serg. & R. (Pa.) 159; Jockson v. People, 2 
 Scam. (111.) 231. 
 
 89 Miles V. United States, 103 U. S. 304; Langtry v. State, 30 Ala. 
 536; Finney v. State, 3 Head (Tenn.) 544; Ham's Case, 11 Me. 391; 
 Squire v. State, 46 Ind. 459; Reg. v. Simmonsto, 1 Car. & K. 164, 47 B. 
 C. L. 164; Halbrook v. State, 34 Ark. 511, 36 Am. Rep. 17 and, note; 
 Com. V. Jackson, 11 Bush (Ky.) 679, 21 Am. Rep. 225; George v. Thomas, 
 10 U. C. Q. B. 604; 2 Greenl. Ev. § 461; 1 "Whart. EV. § 85 et seq. 
 
 90 chamherlain v. Chamberlain, 71 N. Y. 423; Jones v. Jones, 48 Md. 391, 
 30 Am. Rep. 466; Houpt v. Houpt, 5 Ohio, 539; Stevens v. Joyal, 48 Vt. 291; 
 Hill V. State, 41 Ga. 484; Williams v. State, 44 Ala. 24; Harrison v. Lin- 
 coln, 48 Me. 205; Breakley v. Breakley, 2 U. C. Q. B. 349; Blanchard v. 
 Lambert, 43 Iowa, 228. 
 
94 THE LAW OF EVIDENCE. §' 89. 
 
 course." But the presumption of the continuance of the illicit in- 
 tercourse may of course he overcome by evidence shownig that the 
 character of the original connection has ceased. The fact that the 
 relation was at first unlawful does not prevent the parties from en- 
 tering into the contract of marriage when the impediment no longer 
 exists and, in the absence of statute, the contract may arise from 
 mere private agreement on the part of the parties.*- Although 
 there must be an agreement to marry, changing the illicit connec- 
 tion to a lawful one, it is not necessary to prove any formal cere- 
 mony; and the evidence showing the new agreement may be cir- 
 cumstantial in its character."^ While the evidence need not show 
 the exact time or place or the circumstances under which the 
 unlawful connection was changed to a lawful one,°* yet the circum- 
 stances should be such as to exclude the inference that the mere- 
 tricious connection still continues.'" And yet the courts should 
 look with favor upon any facts or circumstances which tend to 
 show that the union has become lawful. In numerous cases, the 
 courts in their desire to follow the maxim, semper praesumitur pro 
 matrimonio, have sustained the finding of juries in favor of mar- 
 riage although the probabilities were very strong that no new agree- 
 ment had actually taken place."' On the other hand there is an- 
 other class of decisions which apply a somewhat stricter rule; 
 which seem to lean toward the view that the continued connection 
 
 91 Appeal of Reading Trust Co., 113 Pa. St. 204, 57 Am. Rep. 448; 
 Badger v. Badger, 88 N. Y. 546, 42 Am. Rep. 263; Brinkley v. Brlnkley, 
 50 N. Y. 184, 10 Am. Rep. 460; Floyd v. Calvert, 53 Miss. 37; Jones v. 
 Jones, 45 Md. 144; State v. Worthingliam, 23 Minn. 528; Hunt's Appeal, 
 86 Pa. St. 294; Rose v. Rose, 67 Mich. 619; Williams v. ■Williams, 46 
 Wis. 464, 32 Am. Rep. 722, see note to this case by J. R. Berryman In 
 18 Law Reg. N. S. 639. See also note, 57 Am. Rep. 451-463. 
 
 »2De Thoren v. Attorney General, 1 App. Cas. 686, 17 Eng. Rep. 72; 
 Nathan's Case, 2 Brewst. (Pa.) 149; Dyer v. Brannock, 66 Mo. 391; Collins 
 V. Voorhees, 47 N. J. Eq. 315, 24 Am. St. Rep. 412. 
 
 93 Foster v. Hawley, 8 Hun, 68; Hynes v. McDermott, 91 N. Y. 451, 
 43 Am. Rep. 677; Donelly v. Donelly, 8 B. Mon. (Ky.) 113. 
 
 84 Badger v. Badger, 88 N. Y. 546, 42 Am. Rep. 263; Caujolle v. Perrie, 
 23 N. Y. 90; Hyde v. Hyde, 3 Bradf. Surr. (N. Y.) 509; Queen v. Millis, 
 10 Clark & F. 749. 
 
 85 Williams v. Williams, 46 Wis. 464, 32 Am. Rep. 722; Lapsley v. Grier- 
 son, 1 H. L. Cas. 498; Poster v. Hawley, 8 Hun, 68. 
 
 8oF6nton V. Reed, 4 Johns. 52, 4 Am. Deo. 244; Donelly v. Donelly, 8 
 B. Mon. (Ky.) 113; Wilkinson v. Paine, 4 T. R. 468; Piers v. Piers, 2 
 H, L. Cas. 331; Yates v. Houston, 3 Tex. 433; Hynes v. McDermott, 91 
 N. Y. 451, 43 Am. Rep. 677. 
 
§■ 90. PRESUMPTIONS. 95 
 
 will be referred to the eommeneement of the unlawful union be- 
 tween the parties, unless there is clear evidence showing the inten- 
 tion to change the nature of such union. Following the same ten- 
 dency these decisions require more direct or formal proof that a 
 marriage has taken place." Where the cohabitation has been illicit 
 by reason of one of the parties having a husband or wife living and 
 where the cohabitation continues after the death of such husband 
 or wife, it is generally for the jury to determine under proper in- 
 structions from the court whether a lawful -marriage may be in- 
 ferred."^ In determining the question it is relevant to show that 
 the original union, though unlawful, was in good faith; on the 
 contrary the knowledge or want of knowledge of the parties that 
 the impediment to marriage had been removed and the desire of the 
 parties to live in lawful matrimony or the reverse; all these and 
 other facts may have a material bearing in determining whether 
 the parties have agreed to change the illicit connection into legal 
 marriage or whether continued cohabitation is to be referred to its 
 unlawful inception."" Of course on such inquiry the circumstance 
 that the parties represented themselves to be husband and wife, 
 when they knew they were not, may be reasonably taken into ac- 
 count in estimating their subsequent conduct.^ 
 
 § 90 (89). Other presuijiptions growing out of marriage rela- 
 tion. — There are other presumptions growing out of the relation 
 of. husband and wife. Thus if a husband, temporarily absent from 
 home, leaves his wife in possession of his property and appoints 
 no one else as his agent, it will be presumed that he expects her to 
 act as his agent in respect to its care and protection ; '' so it is pre- 
 sumed when they are living together that the husband is the head 
 
 97 Appeal of Reading Trust Co., 113 Pa. St. 204, 57 Am. Rep. 448; Wil- 
 liams V. Williams, 46 Wis. 464, 32 Am. Rep. 722; Cartwright v. Mc- 
 Gown, 121 111. 388, 2 Am. St. Rep. 105; Voorhees v. Voorhees, 46 N. J. Eq. 
 411, 19 Am. St. Rep. 405. 
 
 98 State V. Worthingham, .23 Minn. 528; Hynes v. McDermott 91 N. Y. 
 451, 43 Am. Rep. 677; Lapsley v. Grierson, 1 H. L. Gas. 498. This is espec- 
 ially true if there is any evidence tending to show a change from the 
 unlawful union. 
 
 99 This is illustrated in most of the cases cited in this section. See 
 also Jackson v. Jackson, 94 Cal. 446; Land v. Land, 206 111. 288, 99 Am. 
 St. Rep. 171, and note. 
 
 > Campbell v. Campbell, L. R. 1 H. L. Sc. App. 182. .. 
 
 2 1 Bish. Mar. & Div. §§ 1206-1209 and cases; Stew. Mar. & Div. § 171; 
 Cheek v. Bellows, 17 Texas, 613, 67 Am. Dec. 686. But the agency of 
 the husband for the wife must be proved, it will not be presumed from 
 
96 THE LAW OF EVIDENCE. §' 91- 
 
 of the family; ^ and that the wife has the authority to bind the 
 husband for necessaries.* The simple fact that they are living 
 together is deemed sufficient to raise the presumption as to ordi- 
 nary purchases, that the wife is rightfully making such purchases 
 of necessaries as she may think proper ; ° but where it is shown 
 that the wife lives apart from the husband at the time of making 
 the contract, it is the presumption that she is not authorized by 
 him to purchase necessaries on his credit." The presumption of the 
 wife's authority to obtain credit for necessaries may be rebutted, 
 for example, by proof that the purchases were not made on the 
 credit of the husband, but on that of the wife's separate estate, or 
 on the credit of a third person,' or by proof that the husband had 
 notified the tradesman in advance not to give credit, in cases where 
 he himself is not delinquent.* So when the husband uses as his 
 own the property of the wife with her consent and acquiescence, a 
 gift from her will be presumed." 
 
 § 91 (90). Same — Of coercion by the husband. — ^Perhaps the 
 most important of these presumptions is the familiar rule of the 
 criminal law that acts of a criminal nature committed by the wife 
 
 the marital relation. Rust-Owen Lumber Co. v. Holt, 60 Neb. 80, 83 Am. 
 St. Rep. 512 and note. 
 
 3 Clinton v. Kidwell, 82 111. 427. 
 
 * Pickering v. Pickering, 6 N. H. 120; Stall v. Meek, 70 Pa. St. 181; 
 Bergh v. Warner, 47 Minn. 250, 28 Am. St. Rep. 362; Baker v. Carter, 83 
 Me. 132, 23 Am. St. Rep. 764; McGrath. v. Donnelly, 121 Pa. St 549; 1 
 Bish. Mar. & Div. § 1197. 
 
 5 1 Bish. Mar. & Div. § 1197; Montague v. Benedict, 3 Bam. & C. 
 631; Freestone v. Butcher, 9 Car. & P. 643; Bmmett v. Norton, 8 Car. & 
 P. 506; Jewsburg v. Newbold, 40 E. L.. & Eq. 518; PhlUlpson v. Hayter, 
 L. R. 6 C. P. 38. See also Debenham v. Mellon, L. R. 5 Q. B. 394. 
 
 8 Johnston v. Sumner, 3 Hurl. & N. 261; Walker v. Simpson, 7 Watts & 
 Serg. (Pa.) 83, 42 Am. Dec. 216; Mitchell v. Treanor, 11 Ga. 324, 56 Am. 
 Dec. 421; Rea v. Durkee, 25 111. 503; Stutevant v. Starin, 19 Wis. 268. 
 
 7 Pearce v. Darrington, 32 Ala. 227; Stammers v. Macomb, 2 Wend. 454; 
 Moses V. Fogartie, 2 Hill (S. C.) 335; Carter v. Howard, 39 Vt. 106; Swett 
 V. Penrice, 24 Miss. 416; Simmons v. MoElwain, 26 Barb. 419; Weisker 
 V. Lowenthal, 31 Md. 413; Holt v. Brien, 4 Barn. & Aid. 252; McMaJaon v. 
 Lewis, 4 Bush (Ky.) 138. 
 
 e 1 Bish. Mar. & Div. § 1196. 
 
 » Courtwright v. Courtwright, 53 Iowa, 57; Hamilton v. Lightner, 53 
 Iowa, 470; Sabel v. Slingluff, 52 Md. 132; Jacobs v. Hesler, 113 Mass. 157; 
 Reeder v. Flinn, 6 Rich. (S. C.) 216; Lishey v. Lishey, 2 Tenn. Ch. 5; 
 Kuhn V. Stansfield, 28 Md. 210, 92 Am. Dec. 681. This rule is based on 
 the disability of husband and wife to contract with each other and where 
 
§' 92. PRESUMPTIONS. 97 
 
 in the presence of her husband are presumed to be compelled by 
 him.^" The same principle applies in civil actions growing out of 
 torts by the wife in the presence of her husband. The presence of 
 the husband raises the presumption that the wrong was the result 
 of his eommand.^^ "The authorities are clear that, when a tort or 
 felony of an inferior degree is conunitted by the wife in the presence 
 and by the direction of the husband, she is not personally liable. 
 To exempt her from liability both of these concurrent circum- 
 stances must exist, to-wit, the presence and the command of the 
 husband. An ofEense by his direction, but not in his presence, 
 does not exempt her from liability, nor does his presence, if unac- 
 companied by his direction." ^'^ 
 
 § 92 (91). Same subject — ^Nature and limits of the presump- 
 tion. — Although the presumption does not arise unless the tor- 
 tious or criminal act is performed in the presence of the husband, 
 it is not necessary that he should be literally present; thus if he is 
 momentarily out of the room or otherwise out of her immediate 
 presence, but under such circumstances that his influence over her 
 
 the disability has been removed by statute no such presumption prevails. 
 In ra Nieman, 109 Fed. 113; Chadburne v. Williams. 45 Minn. 294, 47 
 N. W. 812; Stickney v. Stickney, 131 U. S. 227. 
 
 10 See extended note 92 Am. St. Rep. 164-170, Rex v. Price, 8 Car. & P. 
 19; Davis v. State, 15 Ohio, 72, 45 Am. Dec. 559; State v. Nelson, 29 Me. 
 329; Com. v. Trimmer, 1 Mass. 476; State v. "Williams, 5 N. C. 398; Com. 
 V. Neal, 10 Mass. 152, 6 Am. Dec. 105 and long note; Story v. Downey, 62 
 Vt. 243; State v. Miller, 162 Mo. 253, 85 Am. St. Rep. 498; Rex v. Con- 
 nolly, 2 Lew. Cr. 0. 229 (uttering counterfeit money) ; Rex v. Archer, 1 
 Moody Cr. C. 143 Cburglary and receiving stolen goods'); Rex v. Knight, 
 
 I Car. P. 116 (larceny) ; Com. v. Burk, 11 Gray, 437 (selling intoxicating 
 liquors); People v. Townsend, 3 Hill, 479 (nuisance); State v. Williams, 
 65 N. C. 398; Com. v. Neal, 10 Mass. 152, 6 Am. Dec. 106 and long note, 
 (assault and iat^ery). For illustrations of the extent to which the rule 
 was formerly carried, see notes to Rex v. Knight, 1 Car. & P. 116. This 
 presumption does not apply to cases of treason or murder, Miller v. State, 
 25 Wis. 84, and perhaps not In cases of highway rohiery, Rex. v. Staple- 
 ton, 1 Craw. & D. 163; Peojple v. Wright, 8 Mich. 744; Rex v. Torpey, 12 
 Cox Cr. C. 45; Bibb v. State, 94 Ala. 31, 33 Am. St. Rep. 88; felonious 
 wounding. Rex v. Smith, 8 Cox Cr. C. 27; or the keeping of 'bawdy houses, 
 Rex V. Dixon, 10 Mod. 335; Reg. v. Williams, 1 Salk, 384; State v. Bentz, 
 
 II Mo. 27. The presumption has been wholly abolished in Connecticut. 
 Blakeslee v. Tyler, 55 Com. 397, 11 Atl. 855. 
 
 iiCassin v. Delaney, 38 N. Y. 178, malicious prosecution; Brazil v. 
 Moran, 8 Minn. 236, 83 Am. Dec. 772 and note, assault and battery; Mc- 
 Keown v. Johnson, 1 McCord (S. C.) 578, 10 Am. Dec. 698, trespass. 
 
 laCassln V. Delaney, 38 N. Y. 178. 
 
 7 
 
98 THE liAW OP EVIDENCE. §' 93. 
 
 may be supposed to continue, the presumption may still arise.*' 
 Some of the cases have carried the doctrine far beyond the bounds 
 of reason and have applied the presumption to shield the wife 
 when she had actually engaged in crime in the absence of her hus- 
 band, or under such circumstances that the idea of coercion or 
 fear seemed absurd.'* The rule came to prevail at common law at 
 a time when the husband was the undoubted autocrat over the 
 property and person of the wife. But the husband no longer has 
 any such legal supremacy and there is every reason for applying 
 somewhat more cautiously this presumption which in a different 
 state of the law was highly favored. The presumption was never 
 conclusive; and the modern decisions have proceeded on the theory 
 that it may be easily rebutted. It will be seen by referring to the 
 decisions cited that the circumstances of the case may, without in- 
 dependent evidence, reiut the inference of coercion; or it may be 
 shown that the wife was the instigator or more active party, or 
 that the husband although present was incapable of coercion, or 
 that the wife was the stronger of the two.'^ It is error to exclude 
 the testimony of the husband that the wife acted of her own mo- 
 tion and without coercion.*' 
 
 § 93 (92). Presumption of legitimacy. — The law presumes that 
 every child is legitimate.*' In his work on evidence Mr. Stephen 
 thus states the modem English rule as to the presumption in favor 
 of legitimacy: "The fact that any person was born during the con- 
 tinuance of a valid marriage between his mother and any man, or 
 
 18 Com. V. Burk, 11 Gray, 437; Com. v. Munsey, 112 Mass. 287. So If the 
 crime is commenced in the absence of her husband but completed in his 
 presence, the presumption arises. State v. Miller, 162 Mo. 253, 85 Am. 
 St. Rep. 498. As to the status of the presumption under the married 
 women acts, see note 92 Am. St. Rep. 169. 
 
 14 Rex V. Knight, 1 Car. & P. 116 and cases cited in the note to this 
 case. Henley v. Wilson, 137 Gal. 273, 70 Pac. 211, 92 Am. Rep. 160. See 
 note 92 Am. St. Rep. 167. 
 
 IB Marshall v. Oakes, 51 Me. 308; Wagener v. Bill, 19 Barb. 321 ;_ Brazil 
 V. Moran, 8 Minn. 236, 83 Am. Dec. 772 and note; City Council v. Van 
 Roven, 2 McCord (S. C.) 465; Ferguson v. Brooks, 67 Me. 251-; Franklin's 
 Appeal, 115 Pa. St. 534, 2 Am. St. Rep. 583. 
 
 laCassin v. Delaney, 38 N. Y. 178; Brazil v. Moran, 8 Minn. 236, 83 
 Am. Dec.f772 and note. 
 
 17 Strode v. McGowan, 2 Bush (Ky.) 621; Gaines v. New Orleans, 6 
 Wall. 642; Gaines v. Herman, 24 How. 553; Zachmann v. Zachmann, 20 J 
 111. 380, 66 N. E. 256, 94 Am. St. Rep. 180, and note. On the general 
 subject of this section see note, 56 Am. Dec. 206. 
 
§■ 93. PEESUMPTIONS. 99 
 
 within such a time after the dissolution thereof and before the 
 celebration of another valid marriage, that his mother's husband 
 could have been Ms father, is conclusive proof that he is the legiti- 
 mate 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 hus- 
 band 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." " This presumption is the appli- 
 cation of a particular branch of the broader presumption in favor 
 of innocence. Odiosa et honesta non sunt in lege praesumenda. 
 At one time if it appeared that the husband was within the four 
 seas at any time during the pregnancy of the wife, the presump- 
 tion in favor of legitimacy was 'conchisi/ve}^ This absurd rule 
 could not long endure even in a system of jurisprudence which 
 abounded in legal fictions and after various attempted exceptions 
 and classifications, all of which were illogical and unsatisfactory, 
 the rule came to prevail in England substantially as stated by Mr. 
 Stephen, leaving the question of legitimacy to be determined by the 
 court or jury on the evidence presented as to the access or non- 
 access of the husband.^" Whenever the child is bom in lawful 
 wedlock, the husband not being separated from his wife by a sen- 
 tence of divorce, sexual intercourse is presumed to have taken place 
 between the husband and the wife, until the presumption is encoun- 
 
 18 Steph. Ev. art. 98. 
 
 19 Rex V. Alberton, 1 Ld. Raym. 395; Reg. x. Murray, 1 Salk. 122. But 
 see King v. LufEe, 8 Bast, 193. 
 
 20 2 Kent, Com. 211. For cases illustrating the various stages of tlie 
 doctrine on this subject, see Rex. v. Murray, 1 Salk. l22; Rex v. Alberton, 
 1 Ld. Raymt 395; King v. Luffe, 8 East, 193; Pendrell v. Pendrell, 2 Str. 
 925; Hargrave v. Hargrave, 9 Beav. 552; Head v. Head, 1 Sim. & St. 150; 
 Flower v. Bossey, 2 Drew. & S. 145, 31 L. J. Ch. 681; Atchley v. Sprigg, 
 33 L. J. Ch. 345. But see Zachmann v. Zachmanu) 201 111. 380, 66 N. E. 
 256, 94 Am. St. Rep. 180 As to presumption of marriage, see § 87 supra. 
 Shakespeare recognizes this rule: 
 
 "K. John: 
 
 Sirrah, your brother, is legitimate; 
 Your father's wife did after wedlock bear him; 
 And, if she did play false, the fault was hers; 
 Which fault lies on the hazard of all husbands 
 That marry wives." 
 
 — ^King John, Act 1, Scene 1. 
 
100 THE LAW OF EVIDENCE. § 94. 
 
 tered by such evidence as proves to the satisfaction of those who 
 are to decide the question that such intercourse did not take place 
 at any time, when by such intercourse the husband could be the 
 father of the child."^ To bastardize a child bom in lawful wedlock, 
 the most clear cmd conclusive evidence of non-access is required.^^ 
 It is a familiar rule that issue bom in wedlock, though begotten be- 
 fore, is presumptively legitimated^ 
 
 § 94(93). Same — How rebutted. — There has been much con- 
 troversy on the point whether, in order to rebut the presumption, 
 the proof should show that it is impossible or merely improbable 
 that the husband should be the father of the child. But the rule 
 seems now well established in England and in this country that the 
 non-access need not be shown beyond any possible doubt, but the 
 presumption of legitimacy is so highly favored that the proof of 
 non-access should he clear and- satisfactory."* And when access, 
 that is, an opportunity for sexual intercourse is shown, the pre- 
 sumption of legitimacy is very strong indeed,"^ though not conclu- 
 sive ; it still being a question for trial whether such intercourse has 
 actually taken place."® Thus it is open to proof, notwithstanding 
 
 21 Banbury v. Peerage, 1 Sim. & St. 153. 
 
 22 Steph. Bv. art. 98; Hynes v. McDermott, 91 N. T. 451, 43 Am. Rep. 677; 
 Watts V. Owens, 62 Wis. 512; In re Robbs Estate, 37 S. C. 19; Scott v. 
 Hlllenberg, 85 Va. 245. 
 
 23 Miller v. Anderson, 43 Obio St. 473, 54 Am. Rep. 823; Tioga Co. v. 
 South Creek, 75 Pa. St. 433; State v. Harman, 13 Ired. (N. C.) 502; 
 State V. Romaine, 58 Iowa, 46. 
 
 24 Wright V. Hicks, 15 Ga. 160, 60 Am. Dec. 687; Hargrave v. Hargrave, 
 9 Beav. 552. Some of the cases hold that the proof should be beyond 
 a reasonable doubt. Watts v. Owens, 62 Wis. 512; Phillips v. Allen, 2 
 Allen, 453; Plowes v. Bossey, 31 L. J. Ch. C81; Atchley v. Sprigg, 33 L. 
 J. Ch. 345; Van Aernam v. Van Aernam, 1 Barb. Ch. (N. Y.) ^75; Sullivan 
 V. Kelly, 3 Allen, 148. 
 
 25 Plowes V. Bossey, 31 L. J. Ch. 681; Wright v. Hicks, 15 Ga. 160, 60 
 Am. Dec. 687; Morris v. Davies, 5 Clark & F. 163; Cope v. Cope, 5 Car. & 
 P. 604; Bury v. Phillpot, 2 Mylne & K. 349; Van Aernam v. Van Aernam, 
 1 Barb. Ch. (N. Y.) 375. Where access is either expressly or impliedly 
 admitted proof of adulterous intercourse is ordinarily inadmissible, Goss 
 V. Froman, 89 Ky. 318, 12 S. W. 387. 
 
 26 Reg. V. Inhabitants of Mansfield, 1 Q. B. 444; Cope v. Cope, 5 Car. 
 & P, 604; Com. v. Shepherd, 6 Binn. (Pa.) 283, 6 Am. Dec. 449; Wright 
 V. Hicks, 15 Ga. 160, 60 Am. Dec. 687; Phillips v. Allen, 2 Allen, 453; 
 Dennison v. Page, 29 Pa. St. 420, 72 Am. Dec. 644. Proof that husband 
 and wife slept together is said to aitord an Irresistible inference of 
 sexual intercourse, Legge v. Edmonds, 25 L. J. Ch. 125. So where they 
 
§ 96. PEBSUMPTIONS. 101 
 
 the strong probabilities to the contrary, that there was not in fact 
 sexual intercourse, although the parties may have lived in the 
 same house. If notwithstanding such fact the evidence is satisfac- 
 tory that no such intercourse took place, the presumption may be 
 thus rebutted.''^ The presumption arises, though the parties live 
 apart by mutual consent, though not when they are separated by 
 the divorce of the court. They are then presumed to obey the judg- 
 ment of the court."' 
 
 § 95 (94). Same — Conclusive if sexual intercourse between 
 husband and wife is shown. — If such sexual intercourse is shown 
 between the husband and wife at a time, when by the laws of na- 
 ture the husband might be the father of the child, the presumption 
 is conclusive in favor of legitimacy. Even though the wife at the 
 time might have been living in adultery with another, her sexual 
 intercourse with others can not under such circumstances be given 
 in evidence.'"' The only evidence which can in such a case rebut 
 the presumption is that of the impotency of the husband.'" The 
 burden of proof of such fact is upon the one asserting it.'^ 
 
 § 96 (95). Same — ^Relevant facts when sexual intercourse be- 
 tween husband and wife is not shown. — Where sexual intercourse 
 
 lodge in the same house having frequent opportunity for sexual inter- 
 course, Shuman v. Shuman, 83 Wis. 250. The following language illus- 
 trates the strength of the presumption where access is shown: "If it 
 were proved that the wife slept every night with her paramour from the 
 period of her separation from her husband, I must still declare the children 
 to be legitimate." Sir John Leach in Bury v. Phillpot, 2 Mylne & K. 349. 
 
 27 Wright V. Hicks, 15 Ga. 160, 60 Am. Dec. 687; State v. Pettaway, 3 
 Hawks (N. C.) 623; Rex v. Inhabitants of Mansfield, 1 Q. B. 444; Cope v. 
 Cope, 5 Car. & P. 604; Com. v. Shepherd, 6 Binn. (Pa.) 283, 6 Am. Dec. 
 449. Compare Shuman v. Shuman, 83 Wis. 250. 
 
 28 St. George v. St. Margaret, 1 Salk. 123; Sidney v. Sidney, 3 Will. 
 (P.) 275; Hemmenway v. Towner, 1 Allen, 209. 
 
 29 Morris v. Davies, 5 Clark & F. 163; Cope v. Cope, 5 Car. & P. 604; 
 Hemmenway v. Towner, 1 Allen, 209; Cross v. Cross, 3 Paige Ch. (N. Y.) 
 139, 2.3 Am. Dec. 778. See Cannon v. Cannon, 7 Humph. (Tenn.) 410, an 
 exceptional case holding contrary view; and see also Hening v. Goodson, 
 43 Miss. 392. Proof may be given that the husband was impotent or ab- 
 sent when the conception took place, 1 Bish. Mar. & Div. § 1182. Proof 
 may also be given that it is contrary to the laws of nature that both 
 parents of a mulatto should be white, Bullock v. Knox, 96 Ala. 195. See 
 also Illinois Loan Co. v. Bonner, 75 111. 315. 
 
 30 Com. V. Shepherd, 6 Binn. (Pa.) 283, 6 Am. Deo. 449; Legge v. Ed- 
 monds, 25 L. J. Ch. 125. 
 
 31 State V. Broadway, 69 N. 0. 411; Gardner v. State, 81 Ga. 144. 
 
102 THE LAW OF EVIDENCE. § 97. 
 
 between the husband and wife is not shown, many circumstances 
 may be relevant to rebut the presumption that the child born in 
 wedlock is legitimate; for example, the conduct of the supposed 
 father and of the mother toward the child ; '" the relative situation 
 of the parties and their habits of life and reputation in the fam- 
 ily ; '' the adultery of the mother or other facts bearing on the 
 probabilities of the case.^* So it is relevant on the issue to show 
 that the wife had concealed the birth of the child from her 
 former husband and that the husband had acted as if no such child 
 had been bom.^"* Under the rule already stated, it would of course 
 be sufficient to establish the illegitimacy to prove that the wife was 
 living in adultery when the child was begotten, and that the hus- 
 band was residing at such a place that access was impossible.*' 
 
 § 97 (96). The husband or wife not allowed to deny sexual in- 
 tercourse. — It is well settled on grounds of public policy, affecting 
 the children bom during the marriage, as well as the parties them- 
 selves, that the presumption of legitimacy as to children born in 
 lawful wedlock cannot be rebutted by the testimony of the hus- 
 band or the wife to the effect that sexual intercourse has or has 
 not taken place between them ; *^ nor are the declarations of siieh 
 husband or wife competent as bearing on the question."* The rule 
 
 32 Morris v. Davies, 5 Clark & F. 163. 
 
 83 Wright V. Hicljs, 15 Ga. 160, 60 Am. Dec. 687; Stegall v. Stegall, 2 
 Brock. (U. S.) 256; Weatherford v. Weatherford, 20 Ala. 548, 56 Am. 
 Dec. 206 and long note. 
 
 84 Cope V. Cope, 5 Car. & P. 604; Wright v. Hicks, 15 Ga. 160, 60 Am. 
 Dec. 687. 
 
 35 Morris v. Davies, 5 Clark & P. 163. There are cases which have 
 adopted a practice of doubtful propriety, that of admitting evidence that 
 the child bore a resemblance to the husband or the contrary, Warlick 
 V. White, 76 N. C. 175; State v. Bowles, 7 Jones (N. C.) 579; State v. 
 Britt, 78 N. C. 439. So the jury has been allowed to compare the fea- 
 tures of the child with a photograph of the putative father. Shorten v. 
 Judd, 56 Kan. 43, 54 Am. St. Rep. 587. Contra, Jones v. Jones, 45 Md. 
 144; Clark v. Bradstreet, 80 Me. 454, 6 Am. St. Rep. 221; People v. Parney, 
 29 Hun, 47. See also 111. Land Co. x. Bonner, 75 111. 315. 
 
 86 The Barony of Saye v. Sele, 1 H. L. Cas. 507; Gurney v. Gurney, 32 
 L. J. Ch. 456. 
 
 37 Goodright v. Moss, 2 Cowp. 591 ; Abington v. Duxbury, 105 Mass. 
 287; In re Mills Estate, 137 Cal. 298, 70 Pac. 91; Rabeke v. Baer, 115 
 Mich. 328, 69 Am. St. Rep. 567, and note; Shuman v. Shuman, 83 Wis. 
 250; Scanlan v. Walshe (Md.), 31 Atl. Rep. 498; Steph. Ev. art. 98, and 
 cases cited below. 
 
 88 Steph. Ev. art 98. 
 
§ 98. PRESUMPTIONS. 103 
 
 not only excludes direct testimony concerning such intercourse, 
 but all testimony of such husband or wife which has a tendency to 
 prove or disprove legitimacy; for example, it was held incompe- 
 tent to ask the husband, for the purpose of proving non-access, 
 whether at a given time he did not live a hundred miles away from 
 his wife and whether at that time he was not cohabiting with an- 
 other person.'" Testimony of either party even tending to show 
 non-intercourse, or of any fact from which non-access may be in- 
 ferred, or of any collateral facts connected with the main fact, 
 should be sci-upulously excluded, and if the illegitimacy is to be 
 proved, it must be proved by other testimony.*" The rule rests not 
 only on the ground that it tends to prevent family dissension, but 
 on broad grounds of public policy; hence it applies when at the 
 time of the examination of the husband or wife the other spouse is 
 dead.*^ Nor is the rule affected by the provisions of the codes en- 
 larging the competency of the witnesses ; *^ nor does it depend upon 
 the form of action or the parties; on the contrary it obtains what- 
 ever the form of legal proceedings, or whoever may be the par- 
 ties.*^ But the rule does not prevent one acknowledged or proved 
 to be the parent of a child, whose legitimacy is in question, from 
 testifying that he or she was not married before the birth of the 
 child.** While the rule prevents the wife from testifying that she 
 has not had intercourse with her husband, it does not prevent the 
 wife from testifying that another person than her husband has 
 had or has not had connection with her.*" 
 
 § 98 (97). Presumptions as to infants — Capacity to commit 
 crime — Consent to sexual intercourse and marriage. — Among 
 other presumptions are those growing out of the law regulating 
 the rights and liabilities of infants. Perhaps there is no better il- 
 
 39 Rex V. Sourton, 5 Adol. & Ell. 180; Dennison v. Page, 29 Pa. St. 420, 
 72 Am. Dec. 644; People v. Overseers, 15 Barb. 286; Com. v. Shepherd, 6 
 Binn. (Pa.) 283, 6 Am. Dec. 449; State v. Pettaway, 3 Hawks (Tenn.) 623; 
 Cope V. Cope, 5 Car. & P. 604. 
 
 *oMink y. State, 60 Wis. 583; Shuman v. Shuman, 83 Wis. 250; Clapp 
 V. Clapp, 97 Mass. 531, an action for divorce, adultery charged. 
 
 41 Rex V. Kea, 11 Bast, 132. 
 
 42 Chamherlain v. People, 23 N. Y. 85, 80 Am. Dec. 255. 
 « Chamberlain v. People, 23 N. Y. 85, 80 Am. Dec. 255. 
 
 i* Haddock v. Boston & JIaine Ry. Co., 3 Allen, 298, 81 Am. Dec. 656. 
 
 45 Rex V. Luffe, 8 East, 193; Rex v. Rook, 1 Wils. 340; Rabeke v. Baer, 
 115 Mich. 328, 69 Am. St. Rep. 567, and note. This is often illustrated ifl 
 bastardy proceedings, 
 
104 THE LAW OF EVIDENCE. § 98. 
 
 lustration of a conclusive presumption of law than tlie well-known 
 rule of tlie common law that an infant under seven years of age is 
 presumed to be incapable of committing a crime. This rule applies 
 now as at common law to felonies and misdemeanors alike.**' At 
 common law it was also a conclusive presumption that males under 
 fourteen years of age could not commit rape; and no evidence was 
 allowed to prove that a defendant under fourteen years of age 
 was capable of committing the crime.*^ But in the United States 
 this offense is treated in this respect like other crimes.*' Persons 
 over seven and wilder fourteen years are presumed incapable of 
 committing any crime, but this presumption is rebutted by the 
 prosecution when the infant's capacity is satisfactorily estab- 
 lished.*" In other words, although the burden of proof is upon the 
 state to show that an infant between the age of seven and fourteen 
 is capax doli, yet it is a question of fact to be determined by the 
 circumstances of the case ; ^^ and there are several instances in 
 which juries have found persons under fourteen guilty of capital 
 offenses and where the death penalty has been inflieted.^^ There 
 need not be independent evidence on the question of capacity.^^ 
 At common law a female under ten years of age was deemed incap- 
 able of consenting to sexual intercourse.^^ This is generally regu- 
 lated by statute in the United States. In this country statutes 
 generally prescribe the age of consent to the marriage contract. 
 But at common law males under fourteen and females under twelve 
 
 "1 Hale P. C. 27; 1 Hawk, P. C. 2; 4 Bl. Com. 23; 1 Bish. Cr. L. § 468. 
 As to presumptions relating to the capacity of children to commit crimes, 
 see full note, 70 Am. Dec. 494; also note, 5 Crim. Law Mag. 213. 
 
 47 Rex V. Eldershaw, 3 Car. & P. 396; Rex v. Groombridge, 7 Car. & P. 
 582; Reg. v. Phillips, 8 Car. & P. 736; Reg. v. Jordan, 9 Car. & P. 118. 
 
 48 Williams v. State, 14 Ohio, 222, 45 Am. Dec. 536; Hiltabiddle v. State, 
 35 Ohio St. 52, 35 Am. Rep. 592; Com. v. Green, 2 Pick. 380; Heilman v. 
 Com., 84 Ky. 457, 4 Am. St. Rep. 207. Contra, State v. Sam, Winst. (N. C.) 
 390. 
 
 49 Stone V Goin, 9 Humph. (Tenn.) 175; State v. Pugh, 7 Jones (N. C.) 
 61: Com. V. Mead, 10 Allen, 398; People v. Kendall, 25 Wend. 399, 37 
 Am. Dec. 240; Martin v. State, 90 Ala. 602, 24 Am. St. Rep. 844; Allen v. 
 State (Tex.), 37 S. W. 757. 
 
 soWillet V. Com., 13 Bush (Ky.) 230; State v. Adams, 76 Mo. 355; State 
 V. Fowler, 52 Iowa, 103; Angelo v. People, 96 111. 209, 36 Am. Rep. 132; 
 Carr v. State, 24 Tex. App. 562, 5 Am. St. Rep. 905. 
 
 61 Spigurnel's Case, 1 Hale P. C. 26; Alice de Walborough's Case, 1 Hale 
 P. C. 26; EJmbyns Case, 1 Hale P. C. 25. 
 
 62 State V. Leonard, 41 Vt. 585; State v. Toney, 15 S. C. 409. 
 BsQ'Meara v. Sitate, 17 Ohio. St. 516; 3 Greenl. Ev. § 211; 4 Bl. Com. 212. 
 
§ 99. PEESUMPTIONS. 105 
 
 were conclusively presumed incapable of consent to the marriage 
 contract.^* 
 § 99 (98). Same subject — ^Testamentary capacity — Domicile — 
 
 Necessaries — Torts. — At common law male infants might make a 
 valid will of personal estate at the age of fourteen and females at 
 the age of twelve, but before those ages they were presumed in- 
 competent to make a will."" In the United States there are gener- 
 ally local statutes regulating the age at which infants are deemed 
 to be of testamentary capacity.^" The domicile of infants is pre- 
 sumed to be the same as the domicile of the parents.^' It is also pre- 
 sumed that persons under twenty-one years of age are not emanci- 
 pated but under parental control.'** Another presumption is that 
 when an infant lives with his father or mother or guardian, he is 
 properly supplied with necessaries; hence he is not liable for goods 
 furnished him in the absence of evidence rebutting the presump- 
 tion.^" When the infant is supplied with necessaries by his parent 
 or guardian or with money to purchase the same, it is presumed that 
 he does not need credit for such purpose."" Generally in actions for 
 tort the liability of the defendant does not depend upon the intent, 
 although the malice or intent may affect the measure of damages. 
 Hence in civil actions for tort there is no such presumption of inca- 
 pacity on the part of infants as is found in the criminal law; and 
 there are numerous cases in which judgments have been rendered 
 against infants for torts although under seven years of age.°^ "While 
 
 54 1 Bish. Mar. & Div. § 568; 1 Bl. Com. 436; Pool v. Pratt, 1 Chap. D. 
 (Vt.) 252; Arnold v. Barle, 2 Lee, 529; Governor v. Rector, 10 Humph. 
 (Tenn.) 57; Parton v. Hervey, 1 Gray, 119; Rex v. Gordon, Russ. & R. Cr. 
 Cas. 48. 
 
 65 1 Redf. Wills, § 4; Deane v. LIttlefleld, 1 Pick. 239; Campbell v. 
 Browder, 7 Lea (Tenn.) 240. 
 
 56 Sprague v. Litherberry, 4 McLean (U. S.) 442. 
 
 BTCraignish v. Hewitt (1892), 3 Ch. 180; In re Beaumont (1893), 3 Ch. 
 490. 
 
 58 Fitzwilliam v. Troy, 6 N. H. 166; Oxford v. Rumney, 3 N. H. 331; 
 Kubic V. Zeimke, 105 la. 269, 74 N. W. 748. See note, 18 Am. St. Rep. 652. 
 
 59 Assignees of Hull v. Connolly, 3 McCord (S. C.) 6, 15 Am. Dec. 612; 
 Jones V. Calvin, 1 McMuU. (S. C.) 14; Perrin v. Wilson, 10 Mo. 451; State 
 V. Cook, 12 Ired. (N. C.) 67; Freeman v. Brldger, 4 Jones (N. C.) 1, 
 67 Am. Dec. 258. But see Parsons v. Keys, 43 Tex. 557. See note, 18 
 Am. St. Rep. 652. 
 
 60 Nicholson v. Spencer, 11 Ga. 607; Nicholson v. Wilborn, 13 Ga. 467; 
 Rivers v. Gregg, 5 Rich. Bq. (S. C.) 274. 
 
 61 As an illustration, see Huchting v. Engel, 17 Wis. 230, 84 Am. Dec. 
 
106 THE LAW OP EVIDENCE. § 100. 
 
 in civil actions the law does not fix any arbitrary age when an infant 
 is deemed incapable of exercising judgment and discretion, there are 
 numerous instances in which courts have conclusively presumed 
 children of tender years incapable of contributory negligence and 
 have refused to submit the question to the jury."^ The cases show 
 that this presumption has been indulged in by the court respecting 
 children varying in age from one to seven years."^ Each case must 
 depend upon the intelligence and capacity of the child and the sur- 
 rounding facts rather than upon ai^ arbitrary rule. It cannot be 
 said on the one hand that a child just past seven years is sui juris 
 so as to be charged with negligence, nor on the other hand that a 
 child just under that age is wholly incapable of exercising care."* 
 It has generally been held that, since there is no exact period fixed 
 by the law at which there is no doubt as to whether the child is sui 
 juris, the question of intelligence and ability to exercise care is for 
 the jury under proper instructions from the court.°° But it has 
 been held that, in the absence of proof to the contrary, a child four- 
 teen years of age is presumed to have sufficient capacity ,to be sen- 
 sible of danger and to have the power to avoid it.*" 
 
 § 100 (99). Presumption as to identity from name. — Since 
 names are used for the very p^urpose of identifying persons, it is 
 frequently presumed that a given name identifies the person beam- 
 ing such name. Thus in proving title to land where the same name 
 appears in different conveyances as grantee and grantor the cir- 
 cumstance may be such as to reasonably create the presumption 
 
 741. See full notes on the subject, citing many cases, 33 Am. Dec. 179, 
 18 Am. St. Rep. 720. 
 
 «2 Chicago Ry. Co. v. Gregory, 58 111. 226; Gavin v. Chicago, 97 111. 66, 
 37 Am. Rep. 99; Walters v. Chicago Ry. Co., 41 Iowa, 71; Mangam v. 
 Brooklyn Ry. Co., 38 N. Y. 455, 98 Am. Dec. 66; Ihl v. Forty-second St. 
 Ry. Co., 47 N. Y. 317, 7 Am. Rep. 450; Kay v. Pennsylvania Ry. Co., 65 
 Pa. St. 269; Pennsylvania Co. v. James, 81 Pa. St. 194; Norfolk Ry. Co. 
 V. Ormsby, 27 Gratt. (Va.) 455; Gardner v. Grace, 1 Fost. & F. 359; Chi- 
 cago Ry. Co., V. Ryan, 131 111. 474. 
 
 63 See cases last cited. 
 
 6* Stone v. Dry Dock Co., 115 N. Y. 104; Indianapolis, etc., Ry. v. Pitzzer, 
 109 Ind. 179, 58 Am. Rep. 387. 
 
 65 Houston Ry. Co. v. Simpson, 60 Tex. 103; Strawbridge v. Bradford, 
 128 Pa. St. 200, 15 Am. St. Rep. 670; Dealey v. MuUer, 149 Mass. 432; 
 Birkett v. Knickerbocker Ice Co., 110 N. Y. 504; Railroad Co. v. Gladmon, 
 15 Wall. 401. 
 
 66 Nagle V. Allegheny Ry. Co., 88 Pa. St. 35, 32 Am. Rep. 413. 
 
§ 100. PEESUMPTIONS. 107 
 
 that they describe the same person." The weight to be attached to 
 this presumption of course varies greatly with the circumstances 
 of the case. If the name is a very common one, or if it appears 
 that there are several persons of the same name and location,*" 
 or that the presumption would establish an inconsistent relation,'^" 
 or impeach the record of a court,'" the identity of persons is not to 
 be inferred from identity of name.''^ But it is otherwise if the 
 name is unusual or if there is identity of name with corroborating 
 circumstances as similarity of age, occupation, place of abode.'^ 
 The fact that the family name and initials are the same raises no 
 presumption that the parties are the same." If father and son 
 have the same name, in the absence of proof, it will be presumed, 
 when the name is used without any addition of senior or junior, 
 that the father is intended.''* This has been illustrated in the case 
 
 87 Atchison v. McCuUocli, 5 Watts (Pa.) 13; Brown v. Metz, 33 111. 
 339, 85 Am. Dec. 277; Cross v. Martin, 46 Vt. 14; Givens v. Tidmore, 8 
 Ala. 566; Bogue v. Bigelow, 29 Vt. 179; Heacook v. Dubaker, 108 111. 
 641; Hunt v. Stewart, 7 Ala. 527; Campbell v. Wallace, 46 Mich. 320; 
 Oilman v. Sheets, 78 Iowa, 499; Smith v. Gillum, 80 Tex. 120. On this 
 general subject see note, 17 L. R. A. 824. A large number of cases 
 have also been collected in 6 Bncy. of Ev. 913-921. This presumption has 
 been applied in respect to letters, Harrington v. Poy, 1 Ryan & M. 90; 
 Mils of exchange and acceptances, Roden v. Ryde, 4 Q. B. 626; Warren 
 V. Anderson, 8 Scott, 384; Greenshields v. Crawford, 9 M. & W. 314; 
 power of attorney, Burford v. McCue, 53 Pa. St. 327; judgments, Douglas 
 V. Dakin, 46 Cal. 49; Mallory v. Riggs, 76 Iowa, 548; indictments. State v. 
 Kelsoe, 76 Mo. 505; names of witnesses in a record of conviction, People 
 V. Rolfe, 61 Cal. 541; Bayha v. Mumford, 58 Kan. 445, 49 Pac. 601; 
 State V. McGuire, 87 Mo. 642; and names in the service of process, Veasey 
 V. Brigman, 93 Ala. 548. 
 
 68 Jones V. Jones, 9 M. & W. 75; Altman v. Timm, 93 Ind. 158; Goodell 
 V. Hibbard, 32 Mich. 48; People v. Wong Sang Lung (Cal.), 84 Pac. 843. 
 But see Flowmoy v. Warden, 17 Mo. 436. 
 
 69 Cooper V. Poston, 1 Dunl. 92, maker and payee of note having 
 same name; Ellsworth v. Moore, 5 Iowa, 486. ^ 
 
 TOByan v. Kales, 3 Ariz. 423, 31 Pac. 517. 
 
 '1 Wickerhorn v. People, 2 111. 128; Cozzens v. Gillespie, 4 Mo. 82. 
 
 72 Hamilton v. Foy, 1 Ryan & M. 90; Janes v. Parker, 20 N. H. 31; Hodg- 
 kinson v. Willis, 3 Camp. 401; Smith v. Henderson, 9 M. & W. 798; Hennel 
 v. Lyon, 1 Barn. & Aid. 182; Sanberg v. State, 113 Wis. 578. The pre- 
 sumption does not apply If the transactions are very remote, Sitler v. 
 Gehr, 105 Pa. St. 577. 
 
 73 Jones V. Turnour, 4 Car. & P. 204; Loudon v. Walpole, 1 Ind. 319; 
 Bennett v. Libhart, 27 Mich. 489; Burford v. McCue, 53 Pa. St. 431; Houk 
 v. Barthold, 73 Ind. 22. 
 
 74 Sweeting v. Fowler, 1 Stark. 106; State v. Vittum, 9 N. H. 619; Jones 
 
108 THE LAW OF EVIDENCE. § 101. 
 
 of legacies, notes and other instruments; but it is a presumption 
 which may be easily rebutted by circumstances showing another 
 intention/" Indeed, most of the eases which have been cited are 
 a,uthority for the proposition that the presumption under discus- 
 sion is one which may be easily rebutted by satisfactory proof. 
 
 § 101 (100). Conflicting presumptions — That of innocence pre- 
 vails over other presumptions. — It frequently happens that one 
 presumption stands opposed to another, and that it becomes neces- 
 sary to determine which one shall prevail. Generally speaking 
 there is no legal presumption so highly favored as that of inno- 
 cence; and in numerous cases other presumptions have yielded to 
 this." Thus it has frequently been held that a jury might presume 
 the death of the husband or wife when the other spouse had married 
 a second time, allowing the presumption of innocence to prevail 
 over that of continuance of Ufe." It is not necessary in order that 
 the presumption of continuance of life be overcome in such cases, 
 that absence should continue over seven years; a much less period 
 of time has been held sufficient.'^ But it does not follow that the pre- 
 sumption of innocence will prevail in all eases where the presump- 
 tion of the continuance of life would impute crime ; '" by the weight 
 
 V. Newman, 1 "W. Black. 60; Kincald v. Howe, 10 Mass. 203; Padgett 
 V. Lawrence, 10 Paige Ch. 170, 40 Am. Dec. 232; Jarmain v. Hooper, 5 
 Man. & G. 827; Graves v. Colwell, 90 111. 613, it is error to exclude evi- 
 dence of tlie surrounding circumstances to explain the acts in question. 
 The addition of "Jr." is no part of the name, Clark v. Groce, 16 Texas 
 Civ. App. 453, 41 S. W. 668, and cases cited above. 
 
 TBLepiot V. Browne, 1 Salk. 7; Stebbing v. Spicer, 8 0. B. 827; Sweeting 
 V. Fowler, 1 Stark. 106. 
 
 78 But see discussion, Dunlop v. United States, 165 U. S. 486, 502. 
 77Cartwright v. McGown, 121 111. 388, 2 Am. St. Rep. 105; Johnson v. 
 
 Johnson, 114 111. 611, 55 Am. Rep. 883; Blanchard v. Lambert, 43 Iowa, 
 228, 22 Am. Rep. 245; Sneathen v. Sneathen, 104 Mo. 201, 24 Am. St. Rep. 
 326; Price v. Price, 124 N. Y. 589; Charles v. Charles, 41 Minn. 201; 
 Rex V. Twining, 2 Barn. & Aid. 386; Breiden v. Faff, 12 Serg. & R. (Pa.) 
 430; Hynes v. McDermott, 91 N. Y. 451, 43 Am. Rep. 677; In re Taylor, 
 9 Paige Ch. (N. Y.) 611; Fenton v. Reed, 4 Johns. (N. Y.) 52, 4 Am. 
 Dec. 244; Donnelly v. Donnelly, 8 B. Mon. (Ky.) 113; Yates v. Houston, 3 
 .Tex. 433; Dickerson v. Brown, 49 Miss. 357. As to negligence see § 15. 
 
 '8 Johnson v. Johnson, 114 111. 611, 55 Am. Rep. 883; and also cases 
 cited in Rex v. Twining, 2 Barn. & Aid. 386. As to presumptions of con- 
 tinuance of life and death, see § 60 et seq. supra; as to persumptlons of 
 innocence, see § 12 et. seq. supra. 
 
 79 Rex V. Harborne, 2 Adol. & Ell. 540, absence of only twenty days; 
 Johnson v. Johnson, 114 111, 611, 55 Am. Rep. 883. 
 
§ 102. PRESUMPTIONS. 109 
 
 of authority there is no rigid presumption in this case to be inflexi- 
 bly followed aside from the circumstances of the case. It is a ques- 
 tion of fact to be determined upon the evidence of the particular 
 case, including the length of time of absence and the age, condition, 
 health and habits of the absent party, as well as the other circum- 
 stances of the case.*" Of course where the absence has been long 
 continued and the absent party long unheard of, the presumption 
 of innocence may be held to prevail over the other as a matter of 
 law.,^^ On the same principle it has been presumed that a divorce 
 from a former marriage had been obtained, thus allowing the pre- 
 sumption of innocence to prevail over that of the continuance of 
 the existing state of things.'" In like manner the presumption of 
 innocence prevails over the presumption of payment *' and over 
 that of marriage arising from cohabitation and repute,'* but where 
 it is shown that a cohabitation was illicit in its origin, it is pre- 
 sumed to have continued of that character until rebutted." 
 
 § 102 (101). Continued — Presumption of innocence of a party 
 overcomes the presumption of innocence of a stranger. — The court 
 will indulge the presumption of innocence in favor of the accused, 
 when such presumption is met by a counter-presumption of inno- 
 cence on the part of a stranger. In a prosecution for bigamy it 
 became necessary for the state to prove a mg,rriage in Prussia. 
 There was evidence of a religious ceremony, but no proof of a civil 
 contract before a magistrate which the Prussian law required. It 
 was argued that as the religious ceremony was a violation of the 
 penal law without such prior contract, it should be presumed. But 
 the court refused to so hold on the ground that to do so would over- 
 come the presumj)tion of the prisoner's innocence by the no 
 stronger presumption of the innocence of a stranger in a proceed- 
 so Johnson V. Johnson, 114 111. 611, 55 Am. Rep. 883; Rex v. Harborne, 
 2 Adol. & Ell. 540; Greensborough v. Underhill, 12 Vt. 604; Northfleld v. 
 Plymouth, 20 Vt. 582. 
 
 81 Kelly V. Drew, 12 Allen, 107, sixteen years; Harris v. Harris, 8 
 Bradw. (111.) 57, nine years. This subject is discussed and many cases 
 cited in Johnson v. Johnson, 114 111. 611, 55 Am. Rep. 883. 
 
 82 Carroll v. Carroll, 20 Tex. 731 ; Blanchard v. Lambert, 43 Iowa, 228, 22 
 Am. Rep. 245. Divorce may be presumed in favor of innocence, although 
 there is no evidence of such divorce, see § 14 sitpra. 
 
 83 Potter V. Titcomb, 7 Me. 302. 
 
 8* Clayton v. Wardell, 4 N. Y. 230. For presumptions as to marriage 
 in actions for bigamy, adultery and the like, see §§ 14 and 86 et seq. supra. 
 86 See discussion of this subject, § 89 supra. 
 
110 THE LAW OF EVIDENCE. § 103. 
 
 ing in which the stranger was not on trial.** And in the prosecu- 
 tion for the seduction of a female of previous chaste character, the 
 accused is so far presumed innocent of the entire offense that the 
 state must prove the previous chaste character of the prosecutrix. 
 The presumption of chastity must yield to the presumption of in- 
 nocence.*' 
 
 § 103 (102). Innocence — Sanity — Weight of conflicting pre- 
 sumptions. — There has been and still is a great conflict of opinion 
 as to the relative weight to be given to the presumption of inno- 
 cence and to the presumption of sanity in criminal cases. It has 
 been held that the burden rests on the defendant who pleads in- 
 sanity to prove the insanity beyond a reasonable doubt.** But it 
 need hardly be argued that this view is contrary to sound principle 
 and the weight of authority. A more difficult question is whether 
 the burden is on the defendant to establish this proposition by the 
 preponderance of evidence or whether it is incumbent on the prose- 
 cution to prove the sanity of the defendant, like other facts, be- 
 yond a reasonable doubt.*' A considerable number of adjudicated 
 cases hold that in such case the burden is upon the defendant.'" It 
 is held by the weight of authority that when evidence is given in 
 a criminal case tending to show the insanity, the burden rests upon 
 the state to show beyond a reasonable doubt as one of the elements 
 
 86 Weinberg v. State, 25 Wia. 370. 
 
 87 West V. State, 1 Wis. 209. See, ho-vvever. State v. Wells, 48 Iowa 671; 
 Slocum V. People, 90 111. 274. But such proof is necessary only when the 
 statute makes previous chaste character an essential ingredient of the 
 crime of seduction, Caldwell v. State, 73 Ark. 139, 108 Am. St. Rep. 28. 
 See note 76 Am. St. Rep. 680-682. 
 
 88 Com. V. Eddy, 7 Gray, 583; State v. Redemeier, 71 Mo. 173, 36 Am. 
 Rep. 462; Baccigalupo v. Com., 33 Gratt. (Va.) 807, 36 Am. Rep. 795; 
 Lynch v. Com., 77 Pa. St. 205; State v. Lawrence, 57 Me. 574-; People v. 
 Cofeman, 24 Cal. 230; State v. Spencer, 1 Zab. (N. J.) 196; State v. De- 
 Rance, 34 La. An. 186, 44 Am. Rep. 426. For further discussion see § 188 
 infra. 
 
 80 Boiling V. State, 54 Ark. 588; People v. McNulty, 93 Cal. 427; State 
 V. Trout, 74 Iowa, 545, 7 Am. St Rep. 499; State v. Alexander, 30 S. C. 
 74, 14 Am. St Rep. 879; Parsons v. State, 81 Ala. 577, 60 Am. Rep. 193 
 and note; State v. McCoy, 34 Mo. 531, 86 Am. Dec. 121; Com. v. Rogers, 
 7 Met. 500, 41 Am. Dec. 458; Ortwein v. Com., 76 Pa. St 414, 18 Am. Rep. 
 420; O'Connell v. People, 87 N. Y. 377, 41 Am. Rep. 379. 
 
 Oft People V. Dillon, 8 Utah, 92; Com. v. Gerade, 145 Pa. St 289, 27 Am. 
 St Rep. 397; Kelch v. State, 55 Ohio St. 146, 45 N. E. 6, 60 Am. St Rep. 
 680, and note; People v. Allendor, 117 Cal. 81, 48 Pac. 1014; Phelps v. 
 Com. (Ky.). 32 S. W. 470. 
 
§ 104. PRESUMPTIONS. Ill 
 
 of guilt that the defendant is not insane." "The relative weight 
 of conflicting presumptions of law is, of course, to be determined 
 py the court or judge, — ^who should also direct the attention of the 
 jury to the burden of proof as affected by the pleadings and to the 
 evidence in each ease. And although the decision of questions of 
 fact constitutes the peculiar province of the jury, they ought, espe- 
 cially in civil eases to be guided by the rules regulating the bur- 
 den of proof and the weight of conflicting presumptions, which are 
 recognized by law and have their origin in natural equity and con- 
 venience. ' ' "^ 
 
 § 104 (103) . General rules as to presumptions, — We close this 
 subject by calling attention to certain rules of general application. 
 Perhaps the most important is that presumptions must be iased 
 upon facts and not upon inferences or upon other presumptions. 
 "No presumption can with safety be drawn from a presump- 
 tion. ' ' °^ The fact presumed should have direct relation with the 
 fact from which the presumption is drawn ; °* but when the facts 
 are established from which presumptions may be legitimately 
 drawn, it is the province of the jury to deduce the presumption or 
 inference of fact.'' If the connection is too remote or uncertain 
 it is the duty of the court to either exclude the testimony from 
 which the presumption is sought to be deduced or to instruct the 
 jury that the evidence affords no proper foundation for any pre- 
 sumption."" If however the facts are clearly established, forming 
 a proper basis for a presumption of law, the jury has no right to 
 disregard the presumption which the law raises. The presumption 
 
 »i Davis V. United States, 160 U. S. 469; Flake v. State, 121 Ind. 433, 
 16 Am. St. Rep. 408, and note; Hodge v State, 26 Fla. 11; People v. Gar- 
 butt, 17 Mich. 9, 97 Am. Dec. 162; Guetig v. State, 66 Ind. 94, 32 Am. Rep. 
 99; Snider v. State, 56 Neb. 309, 74 N. W. 574; Ford v. State, 73 Miss. 734, 
 19 So. 665. The New York court has held that a preponderance of evi- 
 dence Is sufficient, People v. Nino, 149 N. Y. 319, 43 N. E. 853. Nor need 
 the defendant prove insanity beyond a reasonable doubt, Armstrong v. 
 State, 27 Fla. 366, 26 Am. St. Rep. 72; Com. v. Gerade, 145 Pa. St. 289, 27 
 Am. St. Rep. 689. 
 
 92 Best, Ev. (10th Ed.) § 329. 
 
 03 United States v. Ross, 92 U. S. 281; Douglass v. Mitchell's Ex., 11 
 Casey (Pa.) 440. 
 
 04 United States v. Ross, 92 U. S. 281. 
 »« Ham v. Barrett, 28 Mo. 388. 
 
 »8 Manning v. Insurance Co., 100 U. S. 693; United States v. Ross, 92 
 U. S. 281; Philadelphia Passenger Ry. Co. v. Henrice, 92 Pa. St. 431, 37 
 Am. Rep. 699. 
 
112 THE LAW OF EVIDENCB. § 104. 
 
 in such case is one deriving its force from the law and not merely 
 from processes of reasoning.*^ When a disputable presumption 
 has been met by proofs and the burden shifted, the conflicting evi- 
 dence is to be weighed and the verdict rendered in civil cases in 
 favor of the party whose proofs have most weight; and in this lat- 
 ter process the presumption of law loses all that it had of mere ar- 
 bitrary power and must be regarded only from the stand-point of 
 logic and reason and valued and given effect only as it has eviden- 
 tial character."* 
 
 »7 Ham V. Barrett, 28 Mo. 388. 
 88 Graves v. Colwell, 90 111. 651. 
 
GHAPTEB 4. 
 
 JUDICIAL. NOTICE. 
 
 § 105. Meaning of term. 
 
 106. Existence of domestic governments. 
 
 107. Existence of foreign governments — Flags — Seals of State — Foreign 
 
 war. 
 
 108. Territorial extent and subdivision — Counties — ^Towns — Cities, etc. 
 
 109. Officers of the national and state government. 
 
 110. Subordinate officers in otber states — ^Notaries public. 
 
 111. Official signature and seals. 
 
 112. Laws of the forum — International law — ^Foreign treaties — ^Acts of 
 
 congress — Statutes of the state — Constitutions. 
 
 113. What are public statutes. 
 
 114. Bank and railway charters. 
 
 115. Municipal charters. 
 
 116. Ordinances and other acts of municipal bodies. 
 
 117. Character and existence of the statute, a question for the court. 
 
 118. Private statutes — ^Statutes of sister states. 
 
 119. Same — ^Exceptions to the rule. 
 
 120. Federal courts — state statutes. 
 
 121. The unwritten law. 
 
 122. Executive proclamations — ^Regulation of bureaus — Official reports 
 
 of public officers. 
 
 123. Customs and modes of business. 
 
 124. Courts — Officers of the court — Records — Terms. 
 
 125. Matters of history. 
 
 126. Facts relating to the currency. 
 
 127. Geographical features — Surveys — Plats — Distances — Modes of 
 
 Travel— Population — Local divisions of the state. 
 
 128. Matters of science and art — Nature and qualities of common sub- 
 
 stances. 
 
 129. Invariable course of nature— Time — Course of Seasons — Duration 
 
 of Life — Instincts. 
 
 130. Meaning of words and phrases. 
 
 131. Abbreviations. 
 
 132. Facts not within the memory of the judge. 
 
 133. Facts of which the judge has special knowledge. 
 
 134. Facts of which jurors take judicial notice. 
 
 § 105 (104). Meaning of the term. — It will be seen from the 
 
 illustrations given in this chapter that there is a great variety of 
 
 facts which may be safely assumed to be within the knowledge of 
 
 the court and which therefore need not be maintained by evidence. 
 
 8 
 
114 THE LAW OF EVIDENCE.. § 106. 
 
 "The maxim that what is known need not be proved, manifesta 
 {or notoria) non indigent probatione, may be traced far back in 
 the civil and the canon law; indeed, it is probably coeval with 
 legal procedure itself. We find it as a maxim in our own books, 
 and it is applied in every part of our law. It is qualified by an- 
 other principle, also very old, and often overtopping the former in 
 its importance, — non refert quid notum sit judici, si notum non sit 
 in forma judicii." * Of such facts the court is said to take judicial 
 notice. General rules have often been prescribed for determining 
 what facts are and what are not matters for judicial cognizance, 
 yet such rules are necessarily too vague and general in their char- 
 acter to afford very valuable aid to the practitioner. Certain 
 facts may be said to be the subject of judicial notice because they 
 are part of the law of the land, which is presumed to be generally 
 known. Other facts may be properly the subject of judicial notice 
 because they relate to the organization and duties of the court and 
 its officers, and hence may be said to be peculiarly within the cog- 
 nizance of the judge. But when we pass from facts of the charac- 
 ter already mentioned, the principal guide in determining what 
 facts may be assumed to be judicially known is that of notoriety; 
 and it is clear, especially in the realm of science and the arts, that 
 the circle of facts within the range of common knowledge is con- 
 stantly extending. In the early text-books on evidence a few para- 
 graphs sufficed to enumerate the facts of which the courts then as- 
 sumed to take judicial notice; but in the exercise of their discre- 
 tion, as individual cases have arisen, it will be seen that judges 
 have dispensed with proof of so large a variety of facts, that the 
 state of the law on the subject can only be shown by numerous il- 
 lustrations from the decided cases." 
 
 § 106 (105). Existence of domestic governments. — The propo- 
 sition that courts must recognize the existence of the governments 
 to which they owe their power is so obvious as to require little illus- 
 tration or discussion. This implies also knowledge of the principal 
 departments of government and of their respective powers and du- 
 
 1 Thayer's Preliminary Treatise on Evidence at Com. Law, p. 277. 
 
 2 Matter of Viemeister, 179 N. Y. 235, 103 Am. St. Rep. 859. See inter- 
 esting sketch of the growth of the rule, Thayer's Prel. Treatise of Ev. at 
 Com. Law, p. 277; also article on "Judicial Notice & Law of Evidence," 
 3 Harv. Law Rev. 285, by the same author. For exhaustive notes see 89 
 Am. Dec. 663, 694; 49 Am. Rep. 201-207, and 4 L. R. A. 33. It is not preju- 
 dicial error if the court admits evidence of facts of which it takes notice, 
 Wabash R. Co. v. Campbell, 219 111. 312, 76 N. E. 346. 
 
§ 107. JUDICIAL JJOTICB. 115 
 
 ties.' "When the king, long ago, sat personally in court, and, in 
 later times, when judicial officers were in a true and lively sense the 
 representatives and even mere deputies of the king, it was an ob- 
 vious and easily intelligible thing that courts should notice with- 
 out evidence whatever the king himself knew or did, in the exer- 
 cise of any of his official functions, whether directly or through 
 other high officers. The same usages of the courts have continued, 
 under the prevalence of legal and political theories very different 
 indeed from those just mentioned ; and it is not to be wished that 
 these usages should change. ' ' * Thus the courts require no proof 
 of the time of sessions of parliament or of congress or of state leg- 
 islatures or of the privileges of members and the usual course of 
 proceedings therein." "When two legislatures claim the power to 
 act, the courts will recognize the lawful one." 
 
 § 107(105,106). Existence of foreign governments — ^Plags — 
 Seals of state — Foreign war. — While the courts will take judicial 
 notice of the existence of foreign governments, the rule must be 
 taken with the qualification that it relates only to such govern- 
 ments as have been recognized by the home government. The 
 courts will not anticipate the action of the government in this re- 
 spect; and in case of a rebellion or a revolt in a foreign state, they 
 will consider the former state of things as existing until the proper 
 department of the government recognizes the change.' But it is 
 the duty of the judge to take notice whether a foreign power has 
 been "recognized by the government or not.' The courts not only 
 recognize foreign states and sovereigns acknowledged as such by the 
 home governments of such courts, but also their symbols of author- 
 
 s Prince v. Sklllln, 71 Me. 361. 36 Am. Rep. 325. 
 
 4 Thayer's Prel. Treat, on Evidence at Common Law, p. 300. 
 
 6 Lake v. King, 1 Saund. 131; Bjrt v. Rothwell, 1 Ld. Raym. 210, 343; 
 R. V. Wilde, 1 Lev. 296; Case of Sheriff of Middlesex, 11 Adol. & Ell. 273; 
 Cassldy v. Steuart, 2 Man. & G. 437. But see Coleman v. Dobbins, 8 Ind. 
 156. But courts do not take judicial notice of the privilege granted to 
 legislators exempting them from arrest and service of process. State v. 
 Polacheck, 101 Wis. 427. 
 
 6 Opinion of Justices, 70 Me. 609. 
 
 'City of Berme v. Bank, 9 Ves. 347; Taylor v. Barclay, 2 Sim. 213; 
 U. S. V. Palmer, 3 Wheat. 610; The Estrella, 4 Wheat. 298. So courts 
 will judicially notice the relations between this and other countries, 
 Neeley v. Henkel, 180 U. S. 109. 
 
 s Taylor v. Barclay, 2 Sim. 213; Underhill y. Hernandez, 168 U. S. 250. 
 But see Dalden v. Bank of England, 10 Ves. 345. 
 
116 THE LAW OP EVIDENCE. § 108. 
 
 ity, such as national flags and seals of state." The public seals of 
 such foreign states are of such public notoriety that no proof of 
 them is required. They import absolute verity;^" and when at- 
 tached to foreign judgments such judgments are sufficiently authen- 
 ticated.^^ In like manner no proof need be given of the seals of for- 
 eign maritime and admiralty courts.'^ The courts take judicial no- 
 tice of wars with foreign states, if a state of war has been declared 
 by the proper authorities ; ^^ but if no such declaration has been 
 made the fact of a state of war is one to be proved." A war between 
 foreign powers is not judicially noticed.^" 
 
 § 108 (107). Territorial extent and subdivisions — Counties — 
 Towns — Cities, etc. — The territorial extent of the nation and of 
 the several states and the division of the states into towns, counties 
 and other civil divisions are generally regulated by public laws and 
 are matters of general notoriety. On both of these grounds the 
 courts do not require proof of such facts. "All courts of justice 
 are bound to take judicial notice of the territorial extent of the 
 jurisdiction exercised by the government whose laws they adminis- 
 ter, or of its recognition or denial of the sovereignty of a foreign 
 power, as appearing from the public acts of the legislature and ex- 
 ecutive, although those acts are not formally put in evidence, nor 
 in accord with the pleadings." ^° In England the courts "notice the 
 territorial extent of the jurisdiction and sovereignty exercised de 
 facto by their own government and the local divisions of the coun- 
 try as states, provinces, counties, cities, towns, parishes and the 
 like, so far as the political government is concerned or affected; 
 
 »Greenl. Bv. § 8. In Lazier v. Westcott, 26 N. Y. 146, 82 Am. Dec. 
 404, the court took judicial notice that the province of Upper Canada is a 
 foreign government and that it has courts and that those courts proceed 
 according to the course of the common law. Chicago Co. v. Keegan, 152 
 111. 413. 
 
 locoit V. Milliken, 1 Den. 376, 4 Cowen & Hill's Notes to Phill. Ev., 
 p. 281. 
 
 11 Church V. Hobart, 2 Cranch, 187. 
 
 i^Croudson v. Leonard, 4 Cranch, 43,';: Rose v. Himely, 4 Cranch, 292; 
 Church v. Hobart, 2 Cranch, 187; Thompson v. Stewart, 3 Conn. 171, 8 
 Am. Dec. 168; Green v. Waller, 2 Ld. Raym. 891. 
 
 18 Dolder v. Lord Huntingfield, 11 Ves. 292; R. v. DeBerenger, 3 Maule 
 & S. 67; Tayl. Ev. § 18. 
 
 1* 1 Hale P. C. 164. 
 
 10 Dolder v. Lord Huntingneld, 11 Ves. 292. 
 
 18 Jones v. United States, 137 U. S. 214. 
 
§ 108. JUDICIAL NOTICE. 117 
 
 bat not the relative positions of such local divisions, nor their pre- 
 cise boundaries further than they may be described in public stat- 
 utes. " " In the United States the rule seems to have been car- 
 ried somewhat further in its application, as will appear from some 
 of the illustrations given below.** 
 
 17 Tayl. Ev. § 17. 
 
 18 Thus courts have taken judicial notice of the boundaries of the sev- 
 eral states, Thorson v. Peterson, 9 Fed. Rep. 517; Goodwin v. Appleton, 
 22 Me. 453; United States judicial and congressional districts. United 
 States V. Johnson, 2 Sawy. (U. S.) 482; and internal revenue districts. 
 United States v. Jackson, 104 U. S. 41; also of the division of states into 
 counties, towns and cities, Vanderwerker v. People, 5 Wend. 530; La 
 Grange v. Chapman, 11 Mich. 499; Lyell v. Lapeer County, 6 McLean 
 (U. S.) 446; Goodwin v. Appleton, 22 Me. 453; State v. Powers, 25 Conn. 
 48; Winnipiseogee Lake Co. v. Young, 40 N. H. 420; Dickenson v. Bree- 
 den, 30 111. 279; Mossman v. Forrest, 27 Ind. 233; People v. Breese, 7 
 Cow. 429; Chapman v. Wilber, 6 Hill, 475; State v. Mayor, 11 Humph. 
 (Tenn.) 217, and of the subdivision ot cities into hloclcs, Herrick v. Mor- 
 ill, 37 Minn. 256, 5 Am. St. Ry. 841; and the boundary lines of counties 
 and towns within the state, Ham v. Ham, 39 Me. 263; State v. Jackson, 
 39 Me. 291; Kansas City Ry. Co. v. Surge, 40 Kan. 736; Board of Com'rs 
 v. State, 147 Ind. 476, 46 N. E. 908; Rodgers v. Cady, 104 Cal. 288, 43 
 Am. St. Rep. 100; but not of counties not created by special enactment, 
 Burkingham v. Gregg, 19 Ind. 401; though a different rule has been ap- 
 plied to towns in certain cases. Temple v. State, 15 Tex. App. 304, 49 Am. 
 Rep. 200; Hopkins v. Kansas City Ry. Co., 79 Mo. 98 (the Texas court 
 declined to take notice that the meaning of "St. Louis, Mo." is St. Louis 
 In the state of Missouri, Ellis v. Park, 8 Tex. 205. The courts of Mis- 
 souri held that they could not judicially know that New Orleans is in 
 Louisiana, Riggin v. Collier, 6 Mo. 568) ; and of the area of counties, 
 Board of Commissioners v. State, 147 Ind. 476, 48 N. B. 908; of the geo- 
 graphical situation of counties within the state. State v. Pennington, 124 
 Mo. 388, 27 S. W. 1106; Lewis v. Rasp (Okla.), 76 Pac. 192; and of tovms 
 and cities in counties within the state. State v. Powers, 25 Conn. 48; State 
 V. Tootle, 2 Har. (Del.) 541; Martin v. Martin, 51 Me. 366; Vanderwerker 
 V. People, 5 Wend. 530; State v. Reader, 60 Iowa, 527; State v. Wabash 
 Paper Co., 21 Ind. App. 176, 51 N. B. 949; Solyer v. Romont, 52 Tex. 562 
 Kansas City Ry. Co. v. Surge, 40 Kan. 736; Clayton v. May, 67 Ga. 769 
 Schilling v. Territory, 2 Wash. 283; Wright v. Hawkins, 28 Tex. 452 
 Com. V. Desmond, 103 Mass. 445; Steinmetz v. Versailles Co., 57 Md. 457 
 State V. Reader, 60 Iowa, 527; Luck v. State, 96 Ind. 16; but not of lots 
 within a city. Gunning v. People, 189 111. 165, 82 Am. St. Rep. 433; and 
 of the county in which a town or city is situated. State v. Tootle, 2 Har. 
 (Del.) 541; Martin v. Martin, 51 Me. 366; Indiana Ry. Co. v. Stephens, 
 28 Ind. 429; Baily v. Sirkhofer, 123 Iowa, 59, 98 N. W. 594; Sullivan v. 
 People, 122 111. 385; Carson v. Dalton, 59 Tex. 500; Saukville v. State, 
 
118 THE LAW OP EVIDENCE. § 109. 
 
 § 109 (108, 109). Officers of the national and state govern- 
 ments. — The rule was declared in an English ease ^" that the 
 courts will recognize all public matters which affect the govern- 
 ment of the country. On this principle the accession and death of 
 the sovereign and principal officers of state are recognized; and in 
 the United States, in many cases, the courts have recognized the 
 rule and have so extended its application as to include many sub- 
 ordinate officers. Thus they recognize the chief magistrate of the 
 state and nation and the principal officers of the federal govern- 
 ment, the time of their accession to office, their terms of service, 
 their public duties and in some cases their public acts.^" Clearly 
 the rule would include the members of the cabinet. United States 
 senators, judges of the supreme and other federal courts, foreign 
 ministers, United States marshals ^^ and it has been held to include 
 the heads of bureaus; thus in a case where a patent was signed by 
 an acting commissioner of patents the court held it proper to take 
 
 69 Wis. 178; Morgan v. State, 64 Miss. 511; Hinckley v. Beckwith, 23 
 Wis. 328; Smither t. Hournoy, 47 Ala. 345; Rice v. Montgomery, 4 Blss. 
 (U. S.) 75; Pearce v. Langfit, 101 Pa. St. 512 (for instances where courts 
 refused to take notice of towns in other states, see Woodward v. Rail- 
 road Co., 21 Wis. 309; Riggin v. Collier, 6 Mo. 568); that a given county 
 Is or is not within the state, State v. Cleveland, 80 Mo. 108; Rock Island 
 V. Steele, 31 111. 543; and that there is but one county or township of a 
 given name within the state, Stoddard v. Sloan, 65 Iowa, 680; People v. 
 Thompson, 28 Cal. 214; of the boundaries of a judicial district and the 
 counties it contains, Railway Co. v. Hyatt, 48 Neb. 161, 67 N. W. 8; and 
 that a judicial district is within the limits of a given county, Swain v. 
 Comstock, 18 Wis. 463; that a county has adopted township organization, 
 People v. Robinson, 17 Cal. 363; Gilbert v. Moline Co., 19 Iowa, 319; but 
 not that any town is incorporated under the general law. Woodward v. 
 Chicago Ry. Co., 21 Wis. 309; Chapman v. Wilbur, 6 Hill, 475; Riggin v. 
 Collier, 6 Mo. 568. See extended note, 82 Am. St. Rep. 439-447. See 
 § 127, infra. 
 
 10 Taylor v. Barclay, 2 Sim. 21. As to proof of appointment of public 
 officers, see § 205, infra. 
 
 20 Major v. State, 2 Sneed (Tenn.) 11; York Railway v. Winans, 17 
 How. 30; Brown v. Piper, 91 U. S. 37; Hizer v. State, 12 Ind. 330; Linny 
 v. Attorney General, 33 Miss. 508; State v. Williams, 5 Wis. 308; Dewees 
 V. Colorado Company, 32 Tex. 570; Wells v. Company, 47 N. H. 235; El- 
 derton Case, 2 Ld. Raym. 980; Rex v. Jones, 2 Camp. 131; Lord Melville's 
 Case, 29 How. St. Tr. 707. 
 
 siWalden v. Canfield, 2 Rob. (La.) 466; Major v. State, 2 Sneed (Tenn.) 
 11; York Railway Company r. Winans, 17 How. 30; Brown v. Piper, 91 
 U. S. 37. 
 
§ 109. JUDICIAL NOTICE. 119 
 
 notice judicially of the persons who from time to time preside 
 over the patent ofiSce whether permanently or transiently.^^ 
 
 In like manner the state courts judicially notice similar facts as 
 to the principal officers of the state, executive, legislative and judi- 
 cial.^' It goes without saying that the courts take judicial notice of 
 what is prescribed by public law, as to the official character," du- 
 
 22 York Railway Company v. Winans, 17 How. 30. The same rule was 
 applied In Keyser v. Hitz, 133 U. S. 138, where the court took judicial 
 notice that a certain man was deputy comptroller of the currency at a 
 given time. 
 
 isDewees v. Colorado Co., 32 Tex. 570; State v. Williams, 5 Wis. 313; 
 Lindsey v. Attorney General, 33 Miss. 508; People v. Johr, 22 Mich. 461; 
 Gllliland v. Administrators of Sellers, 2 Ohio St. 223. See notes, 13 Am. 
 Dec. 192; 20 L. R. A. 382, on the general subject of this section. Thus 
 courts of last resort will judicially notice judges of subordinate courts, 
 Kilpatrick v. Com., 31 Pa. St. 198; Clark v. Com., 29 Pa. St. 129; Russell 
 V. Sargeant, 7 111. App. 98; Ex parte Peterson, 32 Ala. 74, (but the 
 supreme court of Ohio declined thus to recognize the duration of its own 
 sessions, Gllliland v. Administrators of Sellers, 2 Ohio St. 223); and in 
 North Carolina even the particular place where they are at a particular 
 time in the discharge of their duties, State v. Ray, 97 N. C. 510; but will 
 not judicially notice olBcers or attorneys of inferior courts, Clark v. Mor- 
 rison (Ariz.), 52 Pac. 985; nor of the change of residence of an at- 
 torney, Sutton V. Railway Co., 98 Wis. 157; they will also judicially 
 recognize the sheriff, Alexander v. Burnham, 18 Wis. 199; Martin v. Ault- 
 man Co., 80 Wis. 150; Thompson v. Haskell, 21 111. 215; Rayland v. 
 Wymas's Adm., 37 Ala. 32; State v. Megaarden, 85 Minn. 41, 89 Am. 
 St. Rep. 534; but not his deputies, Slaughter v. Barnes, 3 A. K. Marsh. 
 (Ky.) 412, 13 Am. Dec. 190; Hummelmann v. Hoadley, 44 Cal. 214; 
 State Bank v. Curran, 10 Ark. 142; Land v. Patterson, Minor (Ala.) 14; 
 Ward v. Henry, 19 Wis. 76; and the other county officers, Kilpatrick v. 
 Com., 31 Pa. St. 198; Russell v. Sargeant, 7 111. App. 98; Hummelmann 
 v. Hoadley, 44 Cal. 214; Joyce v. Joyce, 5 Cal. 449; Dyer v. Flint, 21 111. 
 80; Collins v. State, 58 Ind. 5; such as registers and recorders, Pancher v. 
 DeMonlegre, 1 Head (Tenn.) 40; Scott v. Jackson, 12 La. An. 640; tax col- 
 lectors, Burnet v. Henderson, 31 Tex. 588; Wetherbee v. Dunn, 32 Cal. 
 106; Templeton v. Morgan, 16 La. An. 438; clerks of court, White v. 
 Rankin, 90 Ala. 541; county clerks, Stinson v. Russell, 2 Overt. (Tenn.) 
 40; Burton v. Pettibone, 5 Yerg. (Tenn.) 442; Major v. State, 2 Sneed 
 (Tenn.) 11; State v. Cole, 9 Humph. (Tenn.) 626, and note, 13 Am. Dec. 
 192; and justices of the peace, Ede v. Johnson, 15 Cal. 53; Pox v. Com., 
 81 Pa. St. 511; Graham v. Anderson, 42 111. 514, 92 Am. Dec. 89; especially 
 officers of the county in which the court sits. Dyer v. Flint, 21 111. 80; 
 Thielmann v. Burg, 73 111. 293; Wetherbee v. Dunn, 32 Cal. 106; but not 
 of the locality of his office, Allen v. Scharrlnghausen, 8 Mo. App. 229. See 
 note, 89 Am. Dec. 682-685. 
 
 24 Fox V. Com., 81 Pa. St. 511. 
 
120 THE LAW OP EVIDBNCB. § HO. 
 
 ties, powers, jurisdiction," existence,"' times of election," expira^ 
 tion of terms of ofBce "' and terms of office of public officers."" 
 
 § 110 (110). Subordinate officers in other states— Notaries pub- 
 lic. — Although the seals of officers in foreign countries and sister 
 states are recognized when there is proper compliance with the 
 statutes for authenticating documents, the courts do not in other 
 cases generally recognize the acts of subordinate officers of other 
 states or countries.'" Thus the courts in Wisconsin refused to no- 
 tice judicially that there are county judges in New York author- 
 ized to administer oaths. '^ But in the interests of commerce the 
 ndes of evidence have been so extended that the acts of notaries 
 public in the discharge of their duties under the law merchant are 
 judicially noticed in all courts; and their proper official acts un- 
 der the law merchant are prima facie sufficiently authenticated by 
 their seals.'" In the discharge of duties other than under the law 
 merchant the acts of notaries will not be judicially noticed except 
 on principles common to other officers or pursuant to statutes. In 
 a case in Iowa where a notary had signed a jurat in that state sim- 
 ply as notary without designating his county and had affixed his 
 seal, the court required no proof that he was a notary for that 
 county.'' Judicial notice has been taken of a notary's term of'of- 
 
 2»lnglls V. State, 61 Ind. 212; People v. Lyman, 2 Utah, 30; County 
 of Sacramento v. Central Pacific Ry. Co., 61 Gal. 250; Stiles v. Stewart, 
 12 Wend. 473, 27 Am. Dec. 142; Masterson v. Matthews, 60 Ala. 260. 
 
 26 State V. Dahl, 65 Wis. 510, existence of school district^ and duties of 
 officers. 
 
 27 State V. Minnick, 15 Iowa, 123; United States v. Morrissey, 32 Fed. 
 Rep. 147. 
 
 28 Stubbs V. State, 53 Miss. 437. 
 
 29 Stubbs V. State, 53 Miss. 437; State v. Williams, 5 Wis. 308. 
 
 80 Morse v. Hewett, 28 Mich. 481. As to judicial notice of seals, see 
 § 107 infra. On this general subject see note, 58 Am. Rep. 440. 
 
 31 Fellows V. Menasha, 11 Wis. 558. But courts know judicially that 
 tribunals exist in other states for the administration of justice, Dozier 
 V. Joyce, 8 Port. (Ala.) 303. 
 
 32 Delafleld v. Hand, 3 Johns. 314; Pierce v. Indseth, 106 U. S. 546; 
 Browne v. Philadelphia Bank, 6 Serg. & R. (Pa.) 484, 9 Am. Dec. 463; 
 Bours T. Zachariah, 11 Cal. 281; Grand Rapids v. Hastings, 36 Mich. 
 123; Stephens v. Williams, 46 Iowa. 540; McKeller v. Peck, 39 Tex. 381; 
 Dale V. Wright, 57 Mo. 110; Second National Bank v. Chancellor, 9 W 
 Va. 69; Teutonia Loan, etc., Co. v. Turrell, 19 Ind. App. 469, 65 Am. St 
 Rep. 419, 74 Am. Dec. 367 and long note. 
 
 83 Stoddard v. Sloan, 65 Iowa, 680. 
 
§ 112. JUDICIAL NOTICB. 121 
 
 flee," and of the notaries in the county and of their seals and sig- 
 natures.^" 
 
 § 111 (111). Oflacial signatures and seals. — ^In England there are 
 many statutes providing that the courts shall take judicial notice 
 of the signatures of public officials; but in the absence of statutes 
 the signatures must be proved. In his work on evidence Mr. Tay- 
 lor suggests the view that the courts would not recognize the signa- 
 tures of the lords of the treasury and doubts whether the royal 
 sign manual would be thus noticed.^" A more liberal rule has pre- 
 vailed in the United States ; and courts wiU recognize the seals and 
 signatures of the chief magistrate, of the heads of departments 
 and principal officers of the government, state and national,'' and 
 of the officers of the court.'* As we have seen in the last section 
 the seals and signatures of other of the subordinate officers within 
 the state are thus often judicially noticed.'" 
 
 § 112(112,113). Law of the forum — ^International law — For- 
 eign treaties — Acts of congress — Statutes of the state — Constitu- 
 tions. — The law of the jurisdiction is peculiarly a matter of judi- 
 cial cognizance. It is only on the presumption that the law is 
 known to the court that there can be any proceedings whatever in 
 courts of justice. It is therefore elementary that the law of na- 
 tions, treaties with foreign powers, the constitution of the United 
 States and its amendments, the public statutes of the United States, 
 as well as the public statutes of the state and the common law will 
 
 84 Gary v. State, 76 Ala. 78. 
 
 soThlelman v. Bing, 73 111. 293; Cox v. Stern, 170 111. 442, 62 Am. St. 
 Rep. 385; Denmead v. Maack, 2 McArth. (D. C.) 475; Stoddard v. Sloan, 
 65 Iowa, 680. 
 
 88Tayl. Bv. § 14; R. v. Miller, 2 W. Black. 797; R. v. Gullly, 1 Leach 
 Cr. Cas. 98. As to judicial notice of seals, see § 107 infra. On this gen- 
 eral subject see note, 13 Am. Dec. 193. 
 
 ST Wells V. Company, 47 N. H. 235; People v. John, 22 Mich. 46; Ex 
 parte Patterson, 33 Ala. 74; 1 Greenl. Bv. § 5. 
 
 38 Dyer v. Last, 51 111. 179; State v. Postlewait, 14 Iowa, 446; Yell v. 
 Lane, 41 Ark. 53'; Henmann v. Mink, 99 Ind. 279; State v. Cole, 9 Humph. 
 (Tenn.) 626; Mackinnon v. Barnes, 66 Barb. 9; Major v. State, 2 Sneed 
 (Tenn.) 11; People v. Lyman, 2 Utah, 30; Norvell v. McHenry, 1 Mich. 
 227; Sacramento v. Cen. Pac. Ry. Co., 61 Cal. 250; Bishop v. State, 30 
 Ala. 34. 
 
 38 Other instances are those of justices of the peace, Bde v. Johnson, 
 15 Cal. 53; Pox v. Com., 81 Pa. St. 511; district attorneys. People v. 
 Lyman, 2 Utah, 30; clerks of the court, Bishop v. State, 30 Ala. 34; 
 Major v. State, 2 Sneed (Tenn.) 11; collectors, Wetherbee v. Dunn, 32 
 Cal. 106. See cases collected 7 Bncyc. of Ev. 981. 
 
122 THE LAW OF EVIDENCE. § 112. 
 
 be judicially noticed in all courts.*" "While foreign municipal laws 
 must be proved as facts, those rules which by the common consent 
 of mankind have been acquiesced in as law stand upon an entirely 
 different footing. The courts are presumed to know those rules of 
 conduct which have been generally adopted by the nations of the 
 world in their commercial or other intercourse; hence no proof 
 thereof is required.*^ By the constitution of the United States ' ' all 
 treaties made or which shall be made under the authority of the 
 United States shall be the supreme law of the land and the judges 
 in every state shall be bound thereby anything in the constitution 
 or laws of any state to the contrary notwithstanding."*'' The acts 
 of congress prove themselves both in the federal and state courts. 
 On the same general principle all courts, whether state or federal, 
 are bound to take notice of the public statutes of the state wherein 
 they are held.*^ There is no rule of evidence better established 
 than this; and differences of opinion have arisen, not in respect to 
 
 loThe Scotia, 14 Wall. 170; Lane v. Harris, 16 Ga. 217; Horn v. Chi- 
 cago Ry. Co., 38 Wis. 463; Dolph v. Barney, 5 Ore. 191; State v. Jarrett, 
 17 Md. 309; Pierson v. Baird, 2 G. Greene (Iowa) 215; State v. O'Connor, 
 13 La. An. 486; Jewell v. Center, 25 Ala. 498; Graves v. Keaton, 3 
 Cald. (Tenn.) 8; Gooding v. Morgan, 70 111. 275; Papln v. Ryan, 32 Mo. 
 21; Semple v. Hagar, 27 Cal. 163; Buchanan v. Whitham, 36 Ind. 257; 
 Bird V. State, 21 Gratt. (Va.) 800; Mlms v. Schwartz, 37 Tex. 13; Carson 
 V. Smith, 5 Minn. 78; wings v. Hull, 9 Peters, 607; Railroad Co. v. 
 Bank of Ashland, 12 Wall. 226; Jasper v. Porter, 2 McLean (U. S.) 
 579; Callsen v. Hope, 75 Fed. 758; Metropolitan Stock Bxch. v. Bank (Vt), 
 57 Atl. 101. As to proof of statutes and foreign lawa, see § 501 et seq. infra. 
 
 41 The Scotia, 14 Wall. 170, laws of navigation as to carrying lights. 
 
 «Art. 6 U. S. Const.; Hauenstein v. Lynham, 100 U. S. 483; Ware v. 
 Hylton, 3 Dall. 199. This rule is frequently applied as to treaties. Thus 
 by the Ashburton Treaty murder Is a crime In the British dominions 
 for the perpetration of which a'fugutive is liable to be claimed, Mont- 
 gomery V. Deeley, 3 Wis. 709; Godfrey v. Godfrey, 17 Ind. 6, 79 Am. 
 Dec. 448; Carson v. Smith, 5 Minn. 78; Dale v. Wilson, 16 Minn. 525; 
 Howard v. Moot, 64 N. Y. 262; Ubited States v. Reynes, 9 How. 127; 
 Lacrolx Plls v. Sarrazin, 15 Fed. Rep. 489. By treaty a portion of the 
 territory of New York was ceded to the State of Massachusetts, and 
 afterwards under authority of both states and of the nation the title of 
 the Indians thereto was extinguished. People v. Snyder, 41 N. Y. 397; 
 Howard v. Moot, 64 N. Y. 271. By the treaty of Paris between the U. S. 
 and Spain the Philippine Islands became a part of the territory of the 
 U. S., La Rue v. Insurance Co., 68 Kan. 539, 75 Pac. 494. 
 
 « Western & A. Ry. Co. v. Roberson, 61 Fed. 592; Barry v. Snowden, 
 106 Fed. 571; Loree v. Abner, 57 Fed. 159; Merchants Bank v. McGraw, 
 59 Fed. 972; Railway Co. v. Offield, 78 Conn. 1, 60 Atl. 740; People v. 
 
§ 113. JUDICIAL NOTICE. 123 
 
 the rule itself, but in determining what are public statutes within 
 its meaning.** 
 
 Of course public statutes need noi be offered in evidence. Al- 
 though they are constantly referred to by counsel in argument and 
 often read to the court, this is only a proper method of aiding the 
 court in the investigation he would have the right to make. Said 
 Baron Parke to counsel: "For the future, it would save time if, 
 when you founded an objection upon an Act of Parliament, you 
 had the Act here ; for, though we are supposed to keep the statutes 
 in our heads, we. do not." " 
 
 § 113 (114) . What are public statutes. — It is clear that statutes 
 are public within the meaning of the rule just stated, although 
 local in their character, where they contain an express provision 
 that they are public.*" The same rule applies when the law of the 
 state requires all statutes to be judicially noticed.*' There is some 
 difficulty in laying down a general rule by which the question may 
 in all cases be determined, from the nature of the subject matter 
 of the act. Provisions in statutes may lie very close to the border 
 line between those which are public and those which are private in 
 their nature. Again the same statute may contain provisions lim- 
 ited in their effect to a few persons or to a class and other provis- 
 ions which may affect a greater number. Public statutes are fre-- 
 
 Herkimer, 4 Cow. 345; Horn v. Chicago Ry. Co., 38 Wis. 463. And this 
 includes the laws of the country from which such state was formed, in 
 effect prior to such detachment, U. S. v. Chaves, 159 U. S. 452. The court 
 having knowledge of public statutes may even disregard the allegation 
 in a pleading in respect thei-eto. State v. Jarrett, 17 Md. 309. See note. 
 89 Am. Dec. 665. 
 
 **The rule has been applied to acts conferring claims to lands, Papln 
 v. Ryan, 32 Mo. 21; Temple v. Hogan, 27 Cal. 163; see note, 20 L. R 
 A. 382; for the survey and disposal of public lands, Dickenson v 
 Breeden, 30 111. 279; Buchanan v. Whitant, 36 Ind. 257; for the adjudi 
 cation of private land claims, Semple v. Hagar, 27 Cal. 163; the bank 
 rupt law and its operation, Morris v. Davidson, 47 Ga. 361; Mlms v 
 Schwartz, 37 Tex. 13; internal revenue laws, Kessel v. Alberts, 56 Barb 
 (N. Y.) 362; and acts in relation to the District of Columbia, Bayly's 
 Adm. v. Chubb, 16 Gratt. (Va.) 284, and to federal and state consti- 
 tutions, Graves v. Keaton, 3 Cold. (Tenn.) 8; De Chastellux v. Falrchild 
 15 Pa. 18. 
 
 *5 Frost's Trial, Gurney's Rep. 168. 
 
 46 Clark V. Janesville, 10 Wis. 182; Bowie v. Kansas, 51 Mo. 454; 
 Hammond v. Tulver, 4 Md. 138; Beaty v. Knowler's Lessee, 4 Peters, 164 
 See note 11 Am. Dec. 787. But see Case v. Kelly, 133 U. S. 21. 
 
 *7 Junction Ry. Co. v. Bank of Ashland, 12 Wall. 226. 
 
124 THE LAW OP EVIDENCE. § 113. 
 
 quently spoken of in this connection as synonymous with general 
 statutes and they were originally described as those which "relate 
 to the kingdom at large.** Clearly they do not include those 
 mere private acts which affect only a few individuals and which 
 are in the nature of a contract between the state and the benefici- 
 aries. *° Acts have been declared 'public if they "extend to all per- 
 sons within the territorial limits described in the statute.""" Mr. 
 Sedgwick defines them as "those that relate to or bind all within 
 the jurisdiction of the law-making power, limited as that power 
 may be in its territorial operation or by constitutional restraints. ' ' "^ 
 This definition is broad enough to include those acts which are de- 
 signed to affect primarily some locality or class and yet which con- 
 tain provisions that may affect the entire community or state."" 
 The federal supreme court quotes approvingly from an Indiana 
 case as follows: "Statutes incorporating counties, fixing their 
 boundaries, establishing court-houses, canals, turnpikes, railroads, 
 etc., for public uses, all operate upon local subjects. They are not 
 for that reason special or private acts." The court then adds: "In 
 this country the disposition has been on the whole to enlarge the 
 limits of this class of public acts and to bring within it all enact- 
 ments of a general character or which in any way affect the com- 
 Inunily at large."' It may be fairly inferred from the illustrations 
 given below that the public or private character of an act is de- 
 termined not so much by the extent of territory as by the number 
 of people it may affect."* 
 
 48 Clark V. Janesvllle, 10 Wis. 178; Mills v. Gleason, 11 Wis. 470. 
 
 4oLeland v. Wilkinson, 6 Peters, 317; Bank v. Gruber, 87 Pa. St. 468. 
 
 BO Levy v. State, 6 Ind. 284. 
 
 SI Sedg. Stat. Const. Law. J. p. 30. 
 
 52Bevens v. Baxter, 23 Ark. 387; Bretz v. Mayor, 6 Rob. (N. Y.) 325; 
 Burnbam v. Webster, 5 Mass. 266. Thus courts bave taken judicial 
 notice of statutes increasing the jurisdiction of a given county court, 
 Meshke v. Van Doren, 16 Wis. 319; establishing or changing a county 
 seat, State ex rel. Cothren v. Lean, 9 Wis. 279; regulating the sale of 
 liquor in a given place. Levy v. State, 6 Ind. 281; fixing or changing the 
 boundaries of a city or county, Com. v. Springfield, 7 Mass. 12; State 
 V. Jackson, 39 Me. 291; prohibiting fishing within given limits. Burn- 
 ham V. Webster, 5 Mass. 266; regulating the lumber traffic within a 
 stated district, Pierce v. Kimball, 9 Me. 54; and making it felony to 
 steal the note of a particular bank. United States v. Porte, 1 Cranch C. 
 C. 369. 
 
 63 Unity V. Burrage, 103 U. S. 447; West v. Blake, 4 Blatchf. (U. S.) 234. 
 
 Instate ex rel. Cothren v. Lean, 9 Wis. 279; Clark v. Janesville, 10 
 Wis. 136, See cases already cited. See note, 89 Am. Dec. 665-667. 
 
§ 115. JUDICIAL NOTICE. 125 
 
 § 114 (115). Bank and railway charters. — ^Although banks and 
 railroad companies are corporations organized for private gain, 
 their charters generally contain provisions which directly or indi- 
 rectly affect the entire community ; such charters are by the weight 
 of authority public acts of which the courts take judicial cogni- 
 zance."^ However, in some of the cases holding this rule the stat- 
 ute in question was by its terms declared to be public.'* The con- 
 trary rule has been maintained in other cases." For obvious rea- 
 sons courts do not take judicial notice of private corporations or- 
 ganized under general laws; and it may be remarked that under 
 the modem constitutional prohibitions against special legislation 
 the distinction between public and special or private acts is becom- 
 ing of less importance. 
 
 § 115 (116). Municipal charters. — ^Aets incorporating cities, vil- 
 lages and other municipal corporations may be regarded as inher- 
 ently public or, if local in their general character, as containing 
 certain provisions which may affect the general public. Whatever 
 may be the grounds of the rule the courts have generally taken ju- 
 dicial notice of such acts whether declared to be public or not.°* 
 Hence the corporate existence or powers of such bodies need not be 
 alleged nor proved.^" But the fact that a city or other community 
 
 65 Bank of Newberry v. Railroad Co., 9 Rich. L. (S. C.) 495; Shaw 
 V. State, 3 Sneed (Tenn.) 86; Davis v. Bank of Fulton, 31 Ga. 69; Bank 
 of Utica V. Smeedes, 3 Cow. 684; Buell v. Warner, 33 Vt. 570; Jones v. 
 Fales, 4 Mass. 245; Jackson .v. State, 72 Ga. 28; Hall v. Brown, 58 N. H. 
 93; Danville Company v. State, 16 Ind. 456; Smith v. Strong, 2 Hill, 241; 
 Bank of Commonwealth v. Spelman, 3 Dana (Ky.) 150; Case v. Kelly, 
 133 U. S. 27. But see Mayor, etc., of Jersey City v. Railway Co. 71 N. J. 
 L. 360, 57 Atl. 445. 
 
 68 See cases last cited. 
 
 B7 First National Bank v. Gruber, 87 Pa. St 468, 30 Am. Rep. 378; 
 Mandie v. Bousignore Savings Bank, 28 La. An. 415; Perry v. Railroad 
 Co. 55 Ala. 413; Atchison, T. & S. F. Railway v. Blackshire, 10 Kan. 477. 
 
 68 French v. Barre, 58 Vt. 567; Smith v. Janesville, 52 Wis. 680; 
 O'Connor v. The City of Fond du Lac, 101 Wis. 83; Stier v. City of Oska- 
 loosa, 41 Iowa, 353; Castello v. Landwehr, 28 Wis. 522; City of Janes- 
 ville v. Railway Co., 7 Wis. 484; Beasley v. Town of Beckley, 28 W. Va. 
 81; Alexander v. Milwaukee, 16 Wis. 247; Case v. Mobile, 30 Ala. 538; 
 Prell V. McDonald, 7 Kan. 426; State v. Murfreesboro, 11 Humph. (Tenn.) 
 217. But see Town of Butler v. Robinson, 75 Mo. 192; Bowie v. Kansas 
 City, 51 Mo. 454; Hard v. City of Decorah, 43 Iowa, 313; People v. Potter, 
 35 Cal. 110; Swails v. State, 4 Ind. 516. 
 
 6» It is not necessary to prove the power to improve streets, to sue 
 and to be sued and to pass ordinances and by-laws, Smith v. Janes- 
 
126 THE LAW OP EVIDENCE. § 116. 
 
 has become incorporated by performing the conditions prescribed 
 by a general law must be proved. It is not the duty of courts to 
 take judicial notice of the execution of statutes; the various modes 
 by which statutes are carried into effect by the executive govern- 
 ment or others are mere facts and must be proved as such.'" How- 
 ever when special legislation is forbidden and a statute permits a 
 city charter to be amended by ordinance of the city adopting stat' 
 utory provisions the court will take notice of such amendment by 
 ordinance."^ 
 
 § 116 (117). Ordinances and other acts of municipal bodies. — 
 It is sufficiently burdensome upon the court to be required to take 
 cognizance of aU acts creating municipal corporations and their 
 powers. They have uniformly refused to take cognizance of the 
 acts and ordinances of such bodies or of the time when such ordi- 
 nances take effect, except upon due proof.*'' In a Wisconsin ease 
 a village charter provided that all courts must take judicial notice 
 of the ordinances of the village. Although the decision was ren- 
 dered on other grounds, Judge Dixon thus expressed his views of 
 the act: "It is difficult to perceive how the legislature can thrust 
 knowledge into the heads of the judges in this way or what good 
 can come of the enactment unless parties interested bring the ordi- 
 
 ville, 52 Wis. 680; State v. Sherman, 42 Mo. 210; Janesvllle v. Milwau- 
 kee Ry. Co., 7 Wis. 484; Payne v. Treadwell, 16 Cal. 221; Case v. Mo- 
 bile, 30 Ala. 538; Macey v. Titcomb, 19 Ind. 135; nor need the repeaj of 
 such acts be proved, Belmont v. Morrill, -69 Me. 314; nor of supple- 
 mentary or amendatory acts, Newark Bank v. Assessors, 30 N. J. Xu 
 13; Unity v. Burrage, 103 U. S. 447. 
 
 «o State V. Cleveland, 80 Mo. 108; Johnson v. Common Council, 16 Ind. 
 227; Coe College v. City of Cedar Rapids, 120 la. 541, 95 N. W. 267; 
 Temple v. State, 15 Tex. App. 304, 49 Am. Rep. 200 and long note; Canal 
 Co. V. Railway Co., 4 Gill and J. (Md.) 1. If, however, it appear from 
 the record that a municipality has exercised corporate powers under a 
 general law the court may take notice of its organization, Doyle v. Brad- 
 ford, 90 111. 416. 
 
 01 Davey v. Janesville, 111 Wis. 628. 
 
 82 Garvin v. Wells, 8 Iowa, 286; New Orleans v. Labett, 33 La. An. 
 107; Luther v. Com., 4 Bush (Ky.) 440; Stittgen v. Rundle, 99 Wis. 78; 
 Mooney v. Kennet, 19 Mo. 551; Wilson v. State, 16 Tex. App. 497. As to 
 proof of the statutes of the state, see § 501 infra. Such for example as 
 ordinances establishing streets. Porter v. Waring, 69 N. Y. 251; the acts 
 of county boards, Indianapolis Ry. Co. v. Caldwell, 9 Ind. 397; regula- 
 tions of a canal board. Palmer v. Aldridge, 16 Barb. 131; and acts of 
 a county in adopting township organization. State v. Cleveland, 80 Mo. 
 108; Johnson v. Common Council, 16 Ind. 227. 
 
§ 117. JUDICIAL NOTICE. 127 
 
 nances or copies of them into court and put them in evidence in the 
 usual way." "^ The rule as to ordinances is subject to the qualifi- 
 cation that a municipal court may take judicial notice of the ordi- 
 nances of the municipality ; '* and on appeal therefrom it has been 
 held that the appellate court is governed by the same rule as the 
 municipal court. "^ But if statutes, purely private or of another 
 state, or municipal ordinances are incorporated into a puilic stat- 
 ute of the state or act of congress they thereby become public and 
 subjects of judicial notice."" 
 
 § 117 (118). Character and existence of the statute, a question - 
 for the court. — ^It is the province of the court to determine 
 whether a given act is a public or a private act, as well as whether 
 it has been legally enacted. For the latter purpose the powers of 
 courts in this country are much less restricted than in England. 
 When an act of parliament is duly and finally enrolled, such en- 
 rollment becomes a record importing absolute verity. No court can 
 question the power of parliament or listen to any impeachment of 
 the record. The only inquiry is, whether such record exists." In 
 this country it is usual for the state constitutions to prescribe cer- 
 tain modes of procedure in the enactment of statutes; and in such 
 eases, since the constitution is the fundamental law, there must be 
 compliance with the constitutional provision. When the constitu- 
 tion provides for the keeping of legislative journals, such journals 
 constitute a record. Although the laws published by authority are, 
 as a matter of course,"' presumed to be correct, yet in many decis- 
 
 espettit V. May, 34 Wis. 674; Cox v. City of St. Louis, 11 Mo. 131. 
 
 64 Incorporated Town of Scranton v. Danenbaum, 109 la. 93, 80 N. W. 
 221; Downing v. Miltonville, 36 Kan. 740, 14 Pac. 281; City of Portland 
 V. Yick, 44 Ore. 439, 75 Pac. 706; Town of Moundsville v. Velton, 35 W. 
 Va. 217, 13 S. E. 373. See note 4 L. R. A. 41. 
 
 «5 Clare v. State, 5 Iowa, 509; City of Portland v. Yick, 44 Ore. 439, 75 
 Pac. 706. But see Mcintosh v. City of Pueblo, 9 Colo. App. 460, 48 Pac. 
 969. 
 
 eepianigan v. "Washington Ins. Cq., 7 Barr (Pa.) 306; Canal Co. v. 
 Railroad Co., 4 Gill & J. (Md.) 1. 
 
 87 The Prince's Case, 4 Coke 145-194. 
 
 88 Opinions of the Justices, 52 N. H. 622; State v. Francis, 26 Kan. 
 724; State v. McLelland, 18 Neb. 236; People v. Briggs, 50 N. Y. 553; 
 M^illiams v. State, 6 Lea (Tenn.) 549; Miller v. State, 3 Ohio St. 476; 
 Supervisors v. People, 25 111. 181; Perry Co. v. Railroad Co., 58 Ala. 54G: 
 Bound V. Wisconsin Cent. Ry. Co., 45 Wis. 543; People v. Loewenthal, 
 93 111. 191; Speer v. Plank Road Co., 22 Pa. St. 376; Wise v. Bigger, 79 
 Va. 269. 
 
128 THE LAW OF EVIDENCE. § 117- 
 
 ions and probably by the weight of authority, it is held that the 
 court will, if it becomes necessary, take judicial cognizance of such 
 journals for the purpose of ascertaining whether the statute has 
 been enacted in the mode prescribed by the constitution. Accord- 
 ing to this view the due authentication and enrollment of the stat- 
 ute affords only prima facie evidence of its passage, which may be 
 overcome by examination of the legislative journals."" But there 
 is a series of decisions based on somewhat different constitutional 
 provisions which maintain that the court cannot go behind the en- 
 rollment which is authenticated by the proper officers of state.'" 
 Although it is proper for the parties to call the attention of the 
 court to the legislative journals when the inquiry as to the exist- 
 ence of the statute arises, this is not necessary; nor is it necessary 
 to form any issue on such question, for the question of the existence 
 of a statute is a judicial one, of which the court will take notice.'^ 
 Although the courts will take notice of the contents of the journals 
 of the two houses of the legislature far enough to determine whether 
 an act published as a law was actually passed in accordance with 
 the requirements of the constitution, they will go no further; when 
 it appears that an act h£is been so passed no inquiry will be permit- 
 ted to ascertain whether the two houses have or have not complied 
 strictly with their own rules in their procedure on the bill, inter- 
 mediate its introduction and final passage.'^ 
 
 The court will take judicial notice of the statutes and laws of the 
 state although they are in conflict with the allegations of the 
 
 «» See cases last cited; also Bo wen v. Missouri Pac. Ry. Co., 118 Mo. 
 541; Somers v. State, 5 S. D. 321, 58 N. W. Rep. 804; Gardner v. Col- 
 lector, 6 Wall. 499; In re Grainger, 56 Neb. 230, 76 N. W. 588. 
 
 70 Bender v. State, 53 Ind. 254; People v. Devlin, 33 N. Y. 269; People 
 V. Commissioners, 54 N. Y. 276; Green v. Weller, 32 Miss. 690; State 
 Lottery Co. v. Rlchoux, 23 La. An. 743, 8 Am. Rep. 602; Pacific Ry. Co. 
 V. The Governor, 23 Mo. 353; State v. Beck, 25 Nev. 68, 56 Pac. 1008; 
 Ritchie V. Richards, 14 Utah, 345, 47 Pac. 670; State v. Jones, 2 Wash. 
 662, 26 Am. St. Rep. 897; Field v. Clarke, 143 TJ. S. 649. In the report of 
 this case Is given a valuable list of the authorities upon the question 
 whether legislative Journals can be used to impeach the completely en- 
 rolled act duly recorded and authenticated. United States v. Ballin, 
 144 U. S. 1; Harwood v. Wentworth, 162 U. S. 547. See note 23 L. R. A. 340 
 et seq. 
 
 TiLarrlson v. Railroad Co., 77 111. 11; Post v. Supervisors, 105 U. S. 
 667; People v. Supervisors, 8 N. Y. 317; Gardner v. Collector, 6 Wall. 
 499; Dane Co. v. Reindahl, 104 Wis. 302. 
 
 T2 McDonald v. State, 80 Wis. 407. 
 
§ 118. JUDICIAL NOTICE. 
 
 129 
 
 pleadings," as well as of the fact that statutes are repealed or sus- 
 pended and of the time of such appeal." Accordingly those are not 
 facts on which issue can properly be joined." 
 
 § 118 (119). Private statutes^Statutes of sister states.— From 
 the preceding discussion and authorities it is evident that, in the 
 absence of statutory provisions, mere private statutes must be 
 proved by appropriate evidence like other facts. They relate to 
 only a limited number of persons and are not matters of such no- 
 toriety as to be presumed to be within the knowledge of the court." 
 In some states statutes have been enacted changing the rule in such 
 manner that private as well as public statutes must be judicially 
 noticed." The relations of the several states are those of foreign 
 states in close friendship ; and although the courts are presumed to 
 be cognizant of the domestic statutes, there is no such rule as to 
 the statutes of foreign countries or those of sister states. Hence if 
 a litigant desires to avail himself of any other statutes or laws than 
 those which govern in the state of the forum he must be prepared 
 to prove the same.'" 
 
 73 state V. Jarrett, 17 Md. 309. 
 
 '4 Inhabitants of Springfield v. Worcester, 2 CusU. 52; State v. O'Con- 
 nor, 13 La. An. 486; East Tenn. Iron Co. v. Gasliell, 2 Lea (Tenn.) 742. 
 
 76 Smith V. Janesville, 52 Wis. 680. 
 
 TsLeland v. Wilkinson, 6 Peters, 317; Horn v. Chicago & N. W. Ry. 
 Co., 38 Wis. 463; Portsmouth Livery Co. v. Watson, 10 Mass. 91; Perdi- 
 caris v. Trenton, etc., Co., 29 N. J. L. 367; Legrand v. Hampton-Sidney 
 College, 5 Munf. (Va.) 324; Broad Street Hotel Co. v. Weaver, 57 Ala. 
 26; Atchison Ry. Co. v. Blackshier, 10 Kan. 477; Hailes v. State, 9 
 Tex. App. 170; Workingmen's Bank v. Converse, 33 La. An. 963. 
 
 77 Collier v. Baptist Society, 8 B. Mon. (Ky.) 68; Durham v. Daniels, 
 2 G. Greene (Iowa) 518; State v. McAllister, 24 Me. 139; Hart v. Balti- 
 more Ry. Co., 6 W. Va. 336; Paine v. Schenectady Ins. Co., 11 R. I. 411; 
 Ohio V. Hinchman, 27 Pa. St. 479; People v. Hagar, 52 Cal. 171. As to 
 mode of proving statutes, see § 501 et seq. infra. See also extended note 
 21 L. R. A. 467. 
 
 78 Washburn-Croshy Co. v. Railway Co., 180 Mass. 252, 62 N. E. 590; 
 Railway Co. v. Stone, 174 Mo. 1, 73 S. W. 453; Peoples' Bldg. L. & S. 
 Ass'n V. Backus (Neb.), 89 N. W. 315; Murtey v. Allen, 71 Vt. 377, 76 
 Am. St. Rep. 779; Eastern Bldg. & L. Ass'n v. Williamson, 189 U. S. 
 122; Hllliard v. Outlaw, 92 N. C. 266; Shed v. Augustine, 14 Kan. 282; 
 Hunt V. Johnson, 44 N. Y. 27, 4 Am. Rep. 631; Nesse v. Farmers Ins. 
 Co., 55 Iowa, 604; Hoyt v. McNeil, 13 Minn. 390; McKnlght v. Oregon S. 
 L. R. Co. (Mont.), 82 Pac. 660; Rape v. Heaton, 9 Wis. 328; Chumasero v. 
 Gilbert, 24 111. 293; Hale v. New Jersey Nav. Co., 15 Conn. 539, 39 Am, 
 Dec. 398; Bufford v. Holliman, 10 Tex. 560, 60 Am. Dec. 223; Pelton v. 
 Platner, 13 Ohio, 209, 42 Am. Dec. 197; Phillip v.' Gregg, 10 Watts (Pa.) 
 
 9 
 
130 THE LAW OF EVIDENCE. § 119. 
 
 § 119 (120). Same — Exceptions to the rule. — The general rule 
 requiring proof of the law of a sister state or of a foreign country 
 is subject to the qualification that the courts of any state are 
 deemed to know the law which prevailed in the state or country, to 
 which its territory formerly belonged, prior to and at the time of 
 the separation. Thus the laws and customs prevailing in Louisiana 
 prior to the cession to the United States have been judicially no- 
 ticed ; '" and the courts of Kentucky have noticed judicially the 
 former laws of Virginia.'" So if the laws of one state recognize 
 official acts done in pursuance of the laws of another state, the 
 courts of the former state may likewise take judicial notice of such 
 laws in passing upon the validity of such acts.'* In determining 
 the validity of judgments rendered in a sister state it has been held 
 that the courts will take notice that the constitution of such state 
 creates courts having general and appellate jurisdiction.'" And in 
 a Wisconsin case it was held that the courts might without proof 
 take judicial notice that the circuit courts of the several states are 
 courts of general jurisdiction.*' 
 
 158, 36 Am. Dec. 158; Owen v. Boyle, 15 Me. 147, 32 Am. Dec. 143. See 
 note 67 L. R, A. 33 et seq. Thus proof must be given of the laws of 
 interest and usury at the place of contract, Hosford v. Nichols, 1 Paige 
 (N. Y.) 220; Ramsay v. McCauley, 2 Tex. 189; Holley v. Holley, Litt. 
 Sel. Cas. (Ky.) 505, 12 Am. Dec. 342; Campion v. Kille, 15 N. J. Eq. 
 476; Billingsley v. Dean, 11 Ind. 231; of the laws of usury, Phelps v. 
 American S. & L. Ass'n, 121 Mich. 343, 80 N. W. 120; of the statutes as 
 to the distribution of estates, McDaniel v. Wright, 7 J. J. Marsh. (Ky.) 
 475; or as to the estate of insolvents. Mobile Ry. Co. v. Whitney, 39 Ala. 
 468; of the liability of stockholders, Eastman v. Crosby, 8 Allen, 206, and 
 of the statute under which a foreign corporation is chartered, Ports- 
 mouth Livery Co. v. Watson, 10 Mass. 91. Some states have by statute 
 declared that judicial notice shall be taken of the statutes of sister 
 states, P. E. Creelman Lumber So. v. J. A. Lesh & Co. (Ark.), 83 S. W. 
 320; Wilson v. Phoenix Powder Mfg. Co., 40 W. Va. 413, 52 Am. St. Rep. 
 890. 
 
 70 United States v. Turner, 11 How. 663; Chouteau v. Pierre, 9 Mo. 3; 
 Ott v. Soulard, 9 Mo. 581; United States v. Perot, 98 U. S. 428; U. S. v. 
 Chaves, 159 U. S. 452; Liverpool Steam Co. v. Phenix Ins. Co., 129 U. S. 
 397, 445; Loree v. Abner, 57 Fed. 159. As to the mode of proving statutes 
 of sister states, § 504 infra. 
 
 80 Holley v. Holley, Litt. Sel. Cas. (Ky.) 505, 12 Am. Dec. 342. 
 
 51 Graham v. Williams, 21 La. An. 594; Carpenter v. Dexter, 8 Wall. £13. 
 
 52 Butcher v. Brownsville, 2 Kan. 70; Dodge v. Coffin, 15 Kan. 277. 
 
 83 Jarvis v. Robinson, 21 Wis. 523. It was even held in Pennsylvania 
 and Rhode Island that the courts would take notice of the local laws 
 of the state from which the records came, Paine v. Schenectady Ins. 
 
§ 120. JUDICIAL NOTICE. 131 
 
 § 120 (121). Federal courts — State statutes. — The judges of 
 the federal courts like those of the state courts recognize the dis- 
 tinction between public and private statutes.** But the federal 
 courts are not created by congress merely for the purpose of ad- 
 ministering the local laws of a single state ; and they are bound to 
 take notice of the public acts of the various states of the Union. 
 In this forum the laws of every state are presumed to be known to 
 the court.*" If by the statute or constitutional provision in any 
 state the courts are required to take notice of private statutes, the 
 United States courts sitting within that state will do the same.*" 
 In the exercise of its general appellate jurisdiction the supreme 
 court of the United States takes judicial notice of the laws of every 
 state ; but a different rule governs in a writ of error to the highest 
 court of a state. In that case the United States supreme court 
 does not take notice of such laws unless made a part of the record 
 sent up for revision.*^ Since the supreme court of the United 
 States takes judicial notice of the laws of the several states, it be- 
 comes necessary for that court to take cognizance of the judicial 
 decisions of the courts of last resort in such states; and it is a fa- 
 miliar rule that the supreme court will, as a general rule, follow 
 the construction placed upon the statute of the state by the su- 
 preme court of that state.** The federal courts will also take judi- 
 cial notice of such federal matters of general public importance as 
 the rules and regulations prescribed by the interior department in 
 respect to contests before the land ofBce, although they are not 
 public statutes within the strict meaning of the term;*" but state 
 
 Co., 11 R. I. 441; State v. Hinchman. 27 Pa. St. 479. But see Hanley v. Don- 
 ogliue, 116 U. S. 1, wliere these cases are criticized. 
 
 84 Covington Drawbridge Co. v. Shepard, 20 How. 227. 
 
 86 Swann v. Swann, 21 Fed. Rep. 299; Gormley v. Bunyan, 138 U. S. 
 623; Elwood v. Flannigan, 104 U. S. 562; Owlngs v. Hull, 9 Peters, 607; 
 Mewster v. Spalding, 6 McLean (U. S.) 24. 
 
 86 Hanley v. Donoghue, 116 TJ. S. 1; Junction Ry. Co. v. Bank of Ash- 
 land, 12 Wall. 226; Merrill v. Dawson, 1 Hemp. 563; Case v. Kelly, 133 
 U. S. 21. 
 
 87Gbrmley v. Bunyan, 138 U. S. 623; Jasper v. Porter, 2 McLean 
 (U. S.) 579; Smith v. Tallapoosa, 2 Wood. 574. 
 
 88 Hanley v. Donoghue, 116 U. S. 1; Renaud v. Abbott, 116 U. S. 277. 
 The same rule prevails although no reference was made to the statute 
 in the court below. Fourth Nat. Bank v. Francklyn, 120 U. S. 747; Christy 
 T. Pridgeon, 4 Wall. 196; Flash v. Conn., 109 U. S. 379. 
 
 8«Caha V. United States, 152 U. S. 211. 
 
132 THE LAW OP EVIDENCE. § 121. 
 
 courts do not uniformly take judicial notice of such rules and regu- 
 lations."" 
 
 § 121 (122). The unwritten law. — The rule as to judicial notice 
 applies to the unwritten as well as the written law. Our courts take 
 notice that the system of the common law prevailed in England on 
 our separation from that country; they treat the common law, not 
 as the law of a foreign country, but as our own law and as a system 
 which may be adapted to any condition of things, however new, 
 which may arise."^ "Notice of domestic law involves notice of all 
 the systems of jurisprudence by which such domestic law is limited 
 or otherwise affected. Hence a court is bound to take notice of 
 such subsidiary codes or systems of law as may enter into the law 
 by which it is governed. In submission to this principle judicial 
 notice will be taken by common-law courts of equity practice when 
 this is distinct from the common law.'"" It is under this rule that 
 the customs and rules of the law merchant and those other customs 
 and usages which prevail throughout the country and have become 
 the law are to be determined by the court and without proof ."^ So 
 the courts take judicial notice of the ecclesiastical law of Christen- 
 dom as part of the common law,** but they do not notice the stat- 
 utes of England enacted since the revolution.*^ It will be seen in 
 another section that if a party desires to have the court take cogni- 
 zance of the unwritten law of another state he should prove such 
 law like any other fact."" 
 
 soHensley v. Tarpey, 7 Cal. 288. But see United States v. Williams, 
 6 Mont. 379. 
 
 »i Owen V. Boyle, 15 Me. 147, 32 Am. Dec. 143; Ocean Ins. Co. v. Field, 
 2 Story (U. S.) 69; Stokes v. Macken, 62 Barb. 145; Conger v. Weaver, 6 
 Cal. 548; Maberley v. Robtiins, 5 Taunt. 625; Elliott v. Evans, 3 Bos. 
 & P. 181; Neeves v. Burroge, 14 Q. B. 504; Westoby v. Day, 2 El. & B. 
 624. See note 67 L. R. A. 37. 
 
 »2 Wliart. Ev. § 296. 
 
 B3 Jewell V. Center, 25 Ala. 498; Reed v. Wilson, 41 N. J. L. 29; Flem- 
 ing v. McClure, 1 Brev. (S. C.) 428, 2 Am. Dec. 671; Owen v. Boyle, 15 
 Me. 147, 32 Am. Dec. 143. 
 
 9* 1 Greenl. Ev. § 5. But not of the laws of the Catholic church, Katzer 
 V. City of Milwaukee, 104 Wis. 16. 
 
 06 Liverpool Steam Co. v. Phenix Ins. Co., 129 U. S. 397, 445; Spauld- 
 ing V. Chicago Ry. Co., 30 Wis. 110. 
 
 9« But the courts in order to ascertain what the common law would 
 be but for existing statutes may take notice of decisions in other states 
 and in other countries which have adopted the common law of England, 
 St Louis Ry. Co. v. Weaver, 35 Kan. 412. 
 
§ 123. JUDICIAL NOTICE. 133 
 
 § 122 (122). Executive proclamations — ^Regulations of bureaus. 
 Official reports of public officers. — The courts have recognized that 
 certain executive proclamations, regulations of bureaus and depart- 
 ments and reports of public officers are of such general notoriety 
 that they may be judicially noticed. A conspicuous illustration 
 was the proclamation of President Lincoln granting full amnesty 
 and pardon for the offense of treason to all persons who partici- 
 pated in the rebellion against the United States."' 
 
 § 123 (123, 133). Customs and modes of business. — ^Lord Holt, 
 Chief Justice, said: "The way and manner of trading is to be 
 taken notice of. " °* In another English case the judge took notice 
 of the law of the road to turn to the near hand and that it applied 
 to riding as well as to driving."" "The law-merchant forms a 
 branch of the law of England ; and those customs, which have been 
 universally and notoriously prevalent amongst merchants, and have 
 been found by experience to be of public use, have been adopted as 
 a part of it, upon a principle of convenience, and for the benefit of 
 trade and commerce; and when so adopted, it is unnecessary to 
 plead and prove them." ^ There are many other customs and usages 
 
 97 Armstrong v. United States, 13 Wall. 154. Thus courts take ju- 
 dicial notice of proclamations of peace or war. Dodder v. Huntingfleld, 11 
 Ves. 292; of proclamations as to the jurisdiction of the United States, 
 Jones V. United States, 137 U. S. 202; of executive documents printed 
 by authority of the federal senate, Whiton v. Albany Ins. Co., 109 Mass. 
 24; of public proclamations of the governor of the state, Dunning v. 
 New Albany Ry. Co., 2 Ind. 437; of offlcial reports published by au- 
 thority of the legislature, Kirby v. Lewis, 39 Fed. Rep. 66; of the rules 
 and regulations of the Land Department as to sale of public lands, 
 Cosmos Co. V. Gray Eagle Co., 190 U. S. 301; and as to contests on 
 lands, Caha v. United States, 152 U. S. 210, (but see Nagle v. United 
 States, 145 Fed. 302, where the court refused to take notice of the 
 rules and regulations of the postofflce department) ; of payments made 
 by the treasury department, Wilson v. Shaw, 204 U. S. 24; of rules for 
 the conduct of public business, Larson v. First Nat. Bank, 66 Neb. 595, 
 92 N. W. 729; but not of a military order, Burke v. Miltenberger, 19 
 Wall. 519, but see New Orleans Canal Co. v. Templeton, 20 La. An. 141. 
 
 88 Ford V. Hopkins, 1 Salk. 283. 
 
 ooTurley v. Thomas, 8 C. & P. 103. 
 
 1 Barnett v. Brandao, 6 M. & Gr. 630. Thus courts have judicially no- 
 ticed the custom of merchants as to protests and notice of non-pay- 
 ment of nils of exchange, Fleming v. McClure, 1 Brev. (S. C.) 428, 2 
 Am. Dec. 671; the custom of charging interest on accounts after six 
 months, Watt v. Hoch, 25 Pa. St. 411; that the usual method of cancelling 
 a signature is by drawing a line through it, Sanberg v. Am. Express 
 Co., 136 Mich. 639, 99 N. W. 879. 
 
134 THE LAW OF EVIDENCE. § 123. 
 
 of business which the courts have judicially noticed either on the 
 ground that they have become a part of the law or have become so 
 notorious that proof in respect of them seems unnecessary.^ The 
 observance of Sundays, and certain great festivals,^ the law of the 
 road,*' well-known methods adopted by common carriers,^ modes of 
 carrying the mails," well-known customs of hanlcs,'' are common il- 
 lustrations of the rule which is further illustrated in the notes." 
 
 2 But particular and local customs must be proved. Horn v. Chicago 
 & N. W. Ry. Co., 38 Wis. 463; Railway Co. v. Wood, 74 Ala. 449; Young 
 V. Ransom, 31 Barb. 49, customs of Protestant Episcopal church; Lewis 
 V. McClure, 8 Ore. 273, customs of mining camps; Meydenbauer v. Stevens, 
 78 Fed. 787, customs of mining camps; Turner v. Fish, 28 Miss. 306, 
 of an Indian tribe; Johnson v. Robertson, 31 Md. 476, usages of the print- 
 er's trade; Railroad Co. v. Wood, 74 Ala. 499, amount of grain con- 
 tained in a railroad car. 
 
 8 Sasser v. Farmer's Bank, 4 Md. 409. 
 
 * Tayl. Bv. § 35. 
 
 B Thus courts have judicially noticed the system of checking iaggage, 
 Isaacson v. New York Cent. Ry. Co., 90 N. Y. 278, 46 Am. Rep. 142; of the 
 transfer of loaded cars from one line to another for continuous trans- 
 portation over different lines, Burlington Ry. Co. v. Dey, 82 Iowa, 312; the 
 method of transporting cattle, Michigan Ry. Co. v. McDonough, 21 Mich. 
 194; the power of superintendents, Sacalaris v. Eureka & Palisade Ry. 
 Co., 18 Nev. 155, 51 Am. Rep. 737 (but not of the duties of the servants 
 of a company in majiaging trains, McGowan v. Railroad Co., 61 Mo. 5'25; 
 Highland Ry. Co. v. Walters, 91 Ala. 435) ; that railroads are controlled 
 by the owners. South and North Ala. Ry. Co. v. Pilgreen, 62 Ala. 305; 
 that the owner of logs furnishes the cars for shipping, John O'Brien Lum- 
 ber Co. V. Wilkinson, 123 Wis. 272. 
 
 8 Gamble v. Central Ry. Co., 80 Ga. 595, 12 Am. St. Rep. 276. 
 
 1 Courts have judicially noticed the ordinary powers of cashiers, Stur- 
 ges V. Bank of Circleville, 11 Ohio St. 153, (but see La Rose v. Logans- 
 port Nat. Bank, 102 Ind. 332); the custom to remit by draft instead of 
 specie. Bowman v. First Nat. Bank, 9 Wash. 614; that iankers have a 
 lien on deposits, Brandao v. Bamett, 12 Clark & F. 787, and the mode of 
 withdrawing deposits, Munn v. Burch, 25 111. 35. 
 
 8 Other illustrations are : courts have taken judicial notice of the 
 nature and business of mercantile agencies, E^ton v. Avery, 83 N. Y. 
 31, (but see Holmes v. Harrington, 20 Mo. App. 661) ; of the nature and 
 modes of business of lotteries, Lohman v. State, 81 Ind. 15, Saloman 
 V. State, 28 Ala. 83; of new methods of carrying on trade, Wiggins 
 Ferry Co. v. Chicago & Alton Ry. Co., 5 Mo. App. 347; Sacalaris v. Eureka 
 & Palisade Ry. Co., 18 Nev. 155, 51 Am. Rep. 737; that it is not neces- 
 sary to carry on the business of a barber on Sunday, State v. Frederick, 
 45 Ark. 347, 55 Am. Rep. 555; of the powers of agents In charge of 
 mines, Adams Co. v. Senter, 26 Mich. 73; that vacant buildings are more 
 exposed to fire than occupied ones; White v. Phoenix Ins. Co., 83 Me. 
 
§ 124. JUDICIAL NOTICE. 135 
 
 § 124 (124). Courts— Officers of the court — Records— Terms. — 
 
 There is a large class of facts of which courts take judicial notice 
 not merely by reason of their general notoriety, but because they 
 are of such a character that presiding judges have peculiar means 
 of knowledge with respect to them. Stated in general terms these 
 facts are such as relate, to the organization, terms, rules of prac- 
 tice, records and officers of the courts themselves. To illustrate 
 the subject more fully, judges are presumed to know the records 
 and officers of their own courts and their signatures," including the 
 attorneys and their signatures to admissions of service and plead- 
 ings used in the cause.^° Where attorneys have appeared in a case 
 and there has been no withdrawal of the appearance the court will 
 know judicially who have so appeared.'^ But such recognition 
 does not extend beyond professional acts as attorneys; nor does it 
 extend to the signature of a party to the cause.^^ In like manner 
 the courts take judicial notice of the judges of the other courts of 
 record within the state and of the seals of such courts; in each 
 United States circuit and district court the seal and clerk's certifi- 
 cate of every other such court are so recognized. "^^ The courts of 
 every state exist by virtue of public laws by which they are created ; 
 and on familiar principles the courts must take notice of such laws 
 
 279; that free masons form a charitable organization, Burdlni v. Grand 
 Lodge of Ala., 37 Ala. 478; as to the character of public institutions, as 
 court houses, state banks and public prisons; Shaw v. State, 3 Sneed 
 (Tenn.) 86; Buell v. "Warner, 33 Vt. 570; Davis v. Bank of Pulton, 31 
 Ga. 69; Terpr v. Merchants' Bank, 66 Ga. 177; see also § 124, supra; of 
 the results of the census, People v. Williams, 64 Cal. 87, and of the cus- 
 toms and usages governing the creation and existence of political par- 
 ties, 18 S. D. 393, 100 N. W. 923. 
 
 » Alderson v. Bell, 9 Cal. 315; State v. Cole, 9 Hump. (Tenn.) 626; Major 
 V. State, 2 Sneed (Tenn.) 1; Grace v. Ballou, 4 S. Dak. 333; HoUenbach 
 V. Schnabel, 101 Cal. 312; Searls v. Knapp, 5 S. D. 650, 58 N. W. Rep. 
 807. But not of the officers of other courts, see 89 Am. Dec. 683. 
 
 10 Ripley V. Burgess, 2 Hill, 360; People v. Nevins, 1 Hill, 154. 
 
 11 Symes v. Major, 21 Ind. 443. 
 
 i2Masterson v. LeClaire, 4 Minn. 163; Alderson v. Bell, 9 Cal. 315. 
 
 isTurnbull v. Payson, 95 TJ. S. 418; Mewster v. Spalding, 6 McLean 
 (U. S.) 24; Wornack v. Dennan, 7 Port. (Ala.) 513; Matter of Keeler, 
 Hemp. (IT. S.) 306, holding that United States courts cannot take ju- 
 dicial notice of justices of the peace of another state. The supreme court 
 of Vermont took judicial notice of what judges are presiding over sub- 
 ordinate courts created by the constitution at a given time, Hancocjc y, 
 TQvn of Worcester, 62 Vt. 106- 
 
136 THE LAW OF EVIDENCE. § 124. 
 
 and of the jurisdiction which they confer.^* On the same general 
 principle courts take notice of their own rules and mode of practice 
 and also of the rules and mode of practice of other courts of record 
 within the state.^° But an appellate court does not take such notice 
 of the rules of practice in the inferior courts, unless such rules are 
 prescribed by general law or unless justice -requires it in the revis- 
 ion of the judgments of such courts.^" The court in which a cause 
 is pending will take judicial notice of all its own records in such 
 cause and of the proceedings in the court relating thereto.^^ But 
 in a given case the court is not held to have judicial knowledge of 
 the pendency of proceedings in other causes in the same court much 
 less of those in other courts,^' for example, that there has been a 
 
 1* Tucker v. State, 11 Md. 322; Ellsworth v. Moors, 5 Iowa, 486; Ex 
 parte Peterson, 37 Ala. 74; Kllpatrick v. Com., 31 Pa. St. 198; Webb v. 
 Kelsey, 66 Ark. 180, 49 S. W. 819 (justices of the peace and their juris- 
 diction). 
 
 isCoutee v. Pratt, 9 Md. 67; Newell v. Newton, 10 Pick. 470. 
 
 i« Cherry v. Baker, 17 Md. 75; Scott v. Scott, 17 Md. 78; Cutler v. 
 Caruthers, 48 Cal. 178; Klndel v. Le Bert, 23 Colo. 385, 48 Pac. 641; March 
 V. Com., 12 B. Mon. (Ky.) 25. But as the terms of court are generally 
 prescribed by general laws the appellate courts take judicial notice of 
 them, Davison v. Peticolas, 34 Tex. 27; Spencer v. Curtis, 57 Ind. 221; 
 Moss V. Sugar Ridge Tp., 161 Ind. 417, 68 N. E. 896; State v. Hammeth, 
 7 Ark. 492; Lindsay v. Williams, 17 Ala. 229; Pugh v. State, 2 Head 
 (Tenn.) 227; as well as of the day of month and week on which a speci- 
 fied day of the term fell, Lewis v. Wentrode, 76 Ind. 13; Rodgers v. State, 
 50 Ala. 102; Simms v. Todd, 72 Mo. 288; that the day on which judgment 
 was taken was or was not a day of a term, Bethmy v. Hale, 45 Ala. 522; 
 that if a crime was committed at night, and the trial was had the next 
 day, the court could not have been in session for a finding of an indict- 
 ment, McGinnis v. State, 24 Ind. 500; but the supreme court of Ohio re- 
 fused to take notice of the duration of a particular session, Gilliland v. 
 Sellers, 2 Ohio St. 223, and that the judge of the lower court has resigned, 
 People V. McConnell, 155 111. 192. 
 
 17 Brucker v. State, 19 Wis. 539; Gay v. Gay, 146 Cal. 237, 79 Pac. 885; 
 State V. Bowen, 16 Kan. 475; Robinson v. Brown, 82 111. 279. Thus an 
 order or judgment entered in the same cause need not be proved, Pagett 
 V. Curtis, 15 La. An. 451; but orders which do not properly belong to the 
 record must be proved. Dines v. People, 39 111. App. 565; nor need it be 
 proved that a motion has been made when the facts lie within the knowl- 
 edge of the judge, Secrist v. Petty, 109 111. 188; nor that there has been 
 a former trial or verdict. State v. Bowen, 16 Kan. 475. 
 
 isEyster v. Gaff, 91 U. S. 521; National Bank of Monticello v. Bryant, 
 13 Bush (Ky.) 419; People v. DeLaGuerra, 24 Cal. 73; McCormick v. 
 Herndon, 67 Wis. 648. 
 
§ 125. JUDICIAL NOTICE. 137 
 
 former adjudication; " nor does the court take notice of the con- 
 tents of the record in another action then pending ; ^° nor, for ob- 
 vious reasons, will a state court take notice of proceedings in a fed- 
 eral court.^^ 
 
 § 125 (125). Matters of history. — It is plain enough under the 
 general rule of notoriousness that the courts will take cognizance 
 without proof of those great historical events which have affected 
 the fate of our own nation or of any other nations. In order to do 
 this they will take notice of the main events which have led up to 
 events of national importance and in respect to such matters the 
 court may resort to such documents or histories as may be at hand 
 and as. are deemed worthy of confidence.^'' As illustrations of the 
 rule, courts have taken judicial notice of the existence of our Civil 
 "War, of the acts of war which led to it and of the general social 
 and financial results which followed it,^^ of the existence of slavery 
 in Louisiana,^* of the separation of the Methodist Episcopal church 
 of this country into a northern and southern branch in 1844,^° of 
 the destruction of slavery in Alabama by act of war in September, 
 1865,^° of the fact that Missouri was not one of the states which 
 joined the Confederate cause,"' of Sherman's march to the sea,"' of 
 
 19 McCormIck v. Herndon, 67 Wis. 648. 
 
 aoAdler v. Lang, 26 Mo. App. 226; Bnix v. Miller, 54 Iowa, 557; Baker 
 V. Mygatt, 14 Iowa, 131. The courts will not take notice that the pending 
 case has connection with another formerly decided by the court. Banks 
 V. Burnam, 61 Me. 76; Daniel v. Bellamy, 91 N. C. 78; nor that in another 
 action there has been a conviction or an acquittal. State v. Edwards, 19 
 Mo. 674; nor that another action is pending involving similar questions. 
 Lake Merced Water Co. v. Cowles, 31 Cal. 215; In re Stewart, 78 Iowa, 482. 
 
 siVassaul v. Seitz, 31 Cal. 225; Habe v. Klanberg, 3 Mo. App. 342. 
 
 22 Swinnerton v. Columbia Ins. Co., 37 N. Y. 173; Prize Cases, 2 Black, 
 635-667; Ross v. Anstile, 2 Cal. 183; Lewis v. Harris, 31 Ala. 689; Payne 
 V. Treadwell, 16 Cal. 220; Douthitt v. Stinson, 63 Mo. 268; Williams v. 
 State, 64 Ind. 553; Humphrey v. Burnside, 4 Bush (Ky.), 215. Contra, 
 Gregory v. Baugh, 4 Rand. (Va.) 611; Morris v. Edwards, 1 Ohio, 189; 
 Ashley v. Martin, 50 Ala. 537. In McKinnon v. Bliss, 21 N. Y. 206, the 
 court refused to take judicial notice of matters contained in a local his- 
 tory not offered in evidence. 
 
 23 Swinnerton v. Columbian Ins. Co., 37 N. Y. 187 ; Cross v. Sabin, 13 
 Fed. Rep. 313; Rice v. Shook, 27 Ark. 137; Cuyler v. Fenill, 1 Abb. (U. S.) 
 169; Killebrew v. Murphy, 3 Heisk. (Tenn.) 546. 
 
 24 Jack V. Martin, 12 Wend. 328. 
 
 2B Humphrey v. Burnside, 4 Bush (Ky.) 215. 
 2« Ferdinand v. State, 39 Ala. 706. 
 
 27 Douthitt V. Stinson, 63 Mo. 268. 
 
 28 Williams v. State, 67 Ga. 260. 
 
138 THE LAW OF EVIDENCE. § 126. 
 
 the career of General Fremont ^'' in California and that in 1869 the 
 government of Texas was carried on by military authority under 
 the reconstruction acts.'" The courts of Louisiana have judicially 
 noticed military orders issued by the commanding general or mili- 
 tary governor while New Orleans was held by United States troops, 
 which affected proceedings in courts of the state.'^ On the same 
 principle courts have taken notice that in December, 1863, particu- 
 lar states were in rebellion ; '^ the courts of New York have taken 
 judicial notice of the history of the Six Nations as a part of the 
 general history of that state.'^ But although the dividing line is 
 not always easy to ascertain the courts will not take judicial notice 
 of those matters Vvhich are too uncertain in their character to have 
 passed into general history or which only concern individuals or 
 local communities.'* 
 
 § 126 (126). Facts relating to the currency. — The court has 
 taken judicial notice that during the Rebellion there .was great 
 financial embarrassment in the Confederate States and great diffi- 
 culty in making safe investments ; '° that the Confederate currency 
 was forced into circulation, and that it became greatly depreci- 
 ated,"" and that contracts were made with reference to this depre- 
 ciation ; '^ of the different classes of notes and bills and coins in 
 
 29 De Cills V. United States, 13 Ct. of CI. 117. 
 
 80 Yates v. Johnson County, 36 Tex. 144. 
 
 SI Lanfear v. Mestier, 18 La. An. 497, 89 Am. Dec. 658 and note; Taylor 
 V. Graham, 18 La. An. 656. 
 
 82 Hill V. Baker, 32 Iowa, 302, 7 Am. Rep. 193. The supreme court of 
 the United States has refused to take notice of the orders of the military 
 commanders In occupation of insurgent states, Burk v. Miltenberger, 19 
 Wall. 519. But see 89 Am. Dec. 670, and cases cited ahove. 
 
 33 Howard v. Moot, 64 N. Y. 262; McKinnon v. Bliss, 21 N. Y. 206. The 
 Illinois court has taken judicial notice of the fact that the Columbian 
 Exposition was located in Chicago, Givins v. City of Chicago, 186 111. 356, 
 57 N. E. 1043. 
 
 3* For example, the movements of certain troops and extent of territory 
 occupied by them in Tennessee at a given time, McDonald v. Kirby, 3 
 Heisk. (Tenn.) 607; Kelly v. Story, 6 Heisk. (Tenn.) 202; Bishop v. 
 Jones, 28 Tex. 294; also facts stated in cyclopedias or dictionaries, not 
 matters of general knowledge, Kaolatype Engraving Co. v. Hoke, 30 Fed. 
 Rep. 444. 
 
 85 Perkins v. Rogers, 35 Ind. 124, 9 Am. Rep. 639 ; Ashley v. Martin, 50 
 Ala. 537; Foscue v. Lyons, 55 Ala. 440. 
 
 8oKeppel V. Petersburg Ry. Co., Chase (U. S.) 167; Simmons v. Trimbo, 
 9 W. Va. 358. But not of the extent of the depreciation of the currency 
 during the Civil War, Modawell v. Holmes, 40 Ala. 391, 
 
 37 Buford T. Tucker, 44 Ala. 89, 
 
§ 127. JUDICIAL NOTICE. 139 
 
 circulation as money at a particular time, and of the meaning of 
 the popular language in reference to such currency,'* and of the 
 coins made at the United States mint and of foreign coins made 
 current by law at different times.'" 
 
 § 127(127,128). Geographical features— Surveys— Plats— Dis- 
 tances — ^Modes of Travel — Population — Local divisions of the 
 state. — ^It has appeared in a former section that the courts take 
 notice of the political subdivision created by law.*° They are also 
 accustomed to take judicial noticg of the leading geographical fea- 
 tures of the country; for example the existence and general loca- 
 tion of important ports, lakes, moufttains, large cities, and the 
 course, navigability and character of great rivers. No invariable 
 rule can be declared on the subject, nor can the cases all be har- 
 monized, as their action depends on the notoriousness of .the subject 
 in each case. A court in New England for example may properly 
 take judicial notice of some geographical fact well known within 
 its jurisdiction but of which a court in a western or southern state 
 might with good reason refuse to take cognizance.*^ Courts will 
 
 38 Lampton v. Haggard, 3 T. B. ,Mon. (Ky.) 149; Jones v. Overstreet, 
 4 T. B. Mon. (Ky.) 547; Hart v. State, 55 Ind. 599; Lumpkin v. Merrell, 
 46 Tex. 51; United States v. American Grold Coin, 1 Woolw. (U. S.) 217; 
 Johnston v. Hedden, 2 Johns. Cas. 274. 
 
 39 United States v. Burns, 5 McLean (U. S.) 23. But not of the value 
 ol the different forms of currency at a given time, Peemster v. Ringo, 5 
 B. Mon. (Ky.) 336. The value of Canadian currency and rate of interest 
 are not judicially known by courts of the United States, Kermott v. Ayer, 
 11 Mich. 181. Nor is the current rate of exchange between cities known, 
 Lowe V. Bliss, 24 111. 168, 76 Am. Dec. 742. 
 
 *» See § 108, supra. ' 
 
 *i Winnlpisiogee Lake Co. v. Young, 40 N. H. 420; Hinckley v. Beckwith, 
 23 Wis. 328; Martin v. Martin, 51 Me. 366; Goodwin v. Appleton, 22 Me. 
 453; People v. Brooks, 101 Mich. 98; Tewksbury v. Schulenberg, 41 Wis. 
 584; Neaderhouser v. State, 27 Ind. 257; Cash v. Auditor, 7 Ind. 227; 
 Hoyt T. Russell, 117 U.' S. 401. But not of the navigability of small 
 streams not named in the general map or histories of the state, Buffalo 
 Pipe Line Co. v. New York & W. Ry. Co., 10 Abb. N. C. (N. Y.) 107. The 
 courts have taken notice that the state of Missouri is east of the Rocky 
 Mountains, Price v. Page, 24 Mo. 65; of the location of the falls of the 
 Ohio river. Cash v. Auditor, 7 Ind. 227; of the fact that in Wisconsin the 
 capacity of many navigable streams has been increased for lumbering 
 purposes by a system of dams, Tewksbury v. Schulenberg, 41 Wis. 584; 
 that the gas fields In Indiana are nearly exhausted, State v. Indianapolis 
 Gas Co., 163 Ind. 48, 71 N. E. 139; of the distance between the well-known 
 cities of the United States and of the usual rate of speed of railvxiy trains 
 between them, Pearce v. Langfit, 101 Pa. St. 507, 47 Am. Rep. 737; Man- 
 
140 THE LAW OP EVIDENCE. § 127. 
 
 also take notice of the state or territory where they hold their ses- 
 sions and of the judicial districts within it. If the public surveys 
 have established the distance from its capital to any such subdivis- 
 ion, the court will take notice of the fact, and if private property 
 be shown to be within that subdivision, its distance from the capi- 
 tal will also be judicially noticed, — notice of the general fact em- 
 bracing all the facts included in it.*^ The surveys of the public 
 lands are made pursuant to statute and are proper subjects of ju- 
 dicial notice, as are the public statutes relating to such lands.*' In 
 
 nlng v. Gasharle, 27 Ind. 399; B^tzpatrick v. Papa, 89 Ind. 17; of the fact 
 that at a given time the region of Pike's Peak was within the territory 
 of Kansas, Carey v. Reeves, 46 Kan. 571; of the facilities for travel be- 
 tween points in determining whether due notice has been given for taking 
 a deposition, Gulf Ry. Co. v. State, 72 Tex. 404; of the location and gen- 
 eral routes of railroads within the state, Oppenheim v. Wolf, 3 Sand. Ch. 
 (N. Y.) 571; of the fact that several railroads run through a given city, 
 Texas & P. Ry. Co. v. Black (Tex.), 27 S. W. 118; that the state is tra- 
 versed in almost every direction by railroads. Railway Co. v. Powers, 201 
 U. S. 245, 300; of the usual duration of voyages across the Atlantic, Haw- 
 kins V. Thomas, 3 Ind. App. 399; of the population of cities and towns 
 according to the authorized census reports, State v. Braskamp, 87 Iowa, 
 588; Hinckley v. Beckwith, 23 Wis. 328; State v. County Court of Jack- 
 son County, 89 Mo. 237; People v. Williams, 64 Cal. 87, and for some pur- 
 poses of distances between cities in the same, Hoyt v. Russell, 117 U. S. 
 401; Brunson v. Clark, 715 111. 495; or in different states. Mutual Ben. 
 Life Ins. Co. v. Robison, 58 Fed. Rep. 723. Courts will take judicial no- 
 tice of the local divisions of the state into counties, cities and towns and 
 of the fact that certain cities are in such subdivisions. State v. Penning- 
 ton, 124 Mo. 388; Rogers v. Cady, 104 Cal. 288; Jones v. Town of Lake 
 View, 151 111. 663. See § 108, supra. But they are not bound to take ju- 
 dicial notice of the situation and distances of such divisions from each 
 other, Goodwin v. Appleton, 22 Me. 453; People v. Etting, 99 Cal. 577; 
 People V. Curley, 99 Mich. 238; Lewis v. State (Tex. Cr. App.), 24 S. W. 
 903; nor that a certain city is in a given county, when two counties are 
 referred to and the pleadings do not show clearly which is intended. Com. 
 V. Wheeler, 162 Mass. 429. 
 
 «2 Wright V. Phillips, 2 G. Greene (Iowa) 191; Atwater v. Schenck, 9 
 Wis. 160; Dickenson v. Breeden, 30 111. 279; Gardner v. Bberhardt, 82 111. 
 316. See also Allegheny v. Nelson, 25 Pa. St. 332. Judicial notice is not 
 taken of private surveys, Campbell v. West, 86 Cal. 197. The court does 
 not know without proof the quantity of land contained within given 
 courses and distances, TIson v. Smith, 8 Tex. 147. 
 
 43Houlton V. Chicago, St. P., M. & O. Ry. Co., 86 Wis. 59; Duren v. 
 Houston & T. C. Ry. Co., 86 Tex. 287; Caha v. United States, 152 U. S. 211. 
 The courts take cognizance of the situation of quarter sections under such 
 
§ 128. JUDICIAL NOTICE. 141 
 
 a few instances the courts have judicially noticed city plats and the 
 location of well-known streets in cities of the state as well as the 
 directions in which they run,** but they do not notice judicially such 
 things as the width of streets or side walks in a city.*' 
 
 § 128 (129). Matters of science and art — Nature and qualities 
 of common substances. — No proof is required of those facts in sci- 
 ence and the arts which are so generally known as to be matters of 
 common knowledge.*" Perhaps this principle has its most frequent 
 
 surveys, Prieger v. Exchange Ins. Co., 6 Wis. 89; Dickenson v. Breeden, 
 30 111. 279, and of their areas, Qulnn v. ■WlndmlUer, 67 Cal. 461; of the 
 areas of counties within the state and the boundary lines of such counties. 
 Board of Commissioners v. Spitler, 13 Ind. 235; Ham v. Ham, 39 Me. 263; 
 of the division of each section Into forty-acre tracts, Prieger v. Exchange 
 Ins. Co., 6 Wis. 89; Atwater v. Schenck, 9 Wis. 160; Hill v. Bacon, 43 111. 
 477; of grants by the United States to a state and of the Invalidity of a 
 patent to state lands. People v. Center, 66 Cal. 566; Houlton v. Chicago, 
 St. P., M. & O. Ry. Co., 86 Wis. 59; also that there can be no such de- 
 scription under the government survey as the "southeast side" of a quar- 
 ter section, Buchanan v. Whitman, 36 Ind. 257; that the land described 
 is in a given county when no other county contains a township and range 
 answering to the description, Bryan v. Scholl, 109 Ind. 367; that the south 
 lines of a given section and township are the same, Kile v. Town of Yel- 
 lowhead, 80 111. 208; that a particular legal subdivision of a section of 
 land in the state is not fractional. Peck v. Sims, 120 Ind. 345, and that 
 given lands are within an Indian reservation, French v. Lancaster, 2 Dak. 
 346. 
 
 4* Brady v. Page, 59 Cal. 52; Diggins v. Hartshorn, 108 Cal. 154, 41 Pac. 
 283; Walsh v. Railway Co., 102 Mo. 589, 15 S. W. 757; Whittaker v. Eighth 
 Ave. Ry. Co., 5 Rob. (N. Y.) 650; Ritchie v. Catlin, 86 Wis. 109. Contra, 
 Clcotte V. Ancleaux, 53 Mich. 227; Bally v. Birkhofer, 123 Iowa, 59, 98 
 N. W. 594. 
 
 reporter v. Waring, 69 N. Y. 250; Coe College v. City of Cedar Rapids, 
 120 Iowa, 541, 95 N. W. 267. Nor do the courts notice that a certain 
 street in the city of New York was likely to be deserted in the evening, 
 Lenahan v. People, 3 Hun, 164; or that a particular number of a street 
 is in a given ward, Allen v. Scharlnghausen, 8 Mjo. App. 229; nor will 
 courts notice judicially the point of intersection of a given street and a 
 railroad track, Pennsylvania Co. v. Frana, 13 111. App. 91. 
 
 46 Luke V. Calhoun Co., 52 Ala. 115; Adler v. State, 55 Ala. 16; Udder- 
 zook's Case, 76 Pa. St. 340; State v. Goyette, 11 R. I. 592; Consumers' 
 Gas Trust v. Littler, 162 Ind. 320, 70 N. E. 363; Sun Ins. Office of London 
 V. Western Woolen Mill Co., 72 Kan. 41, 82 Pac. 513; Warren v. City Elec- 
 tric Ry. Co. (Mich.), 104 N. W. 613; Com. v. Peckham, 2 Gray, 514. Such 
 as the use of the telephone and the processes employed in the art of 
 photography, together with their results and the principles on which they 
 are based. Globe Printing Co. v. Stahl, 23 Mo. App. 451; Luke v. Calhoun 
 
142 THE LAW OP EVIDENCE. § 128. 
 
 application in patent cases in whieli the courts constantly take ju- 
 dicial notice of the character and mode of use of well-kQown ar- 
 ticles.*^ The case of Brown v. Piper in the supreme court of the 
 United States furnishes a good illustration of the manner in which 
 the courts may act upon their own knowledge in this class of cases. 
 The controversy related to the novelty of a patent for preserving 
 fish and other articles in a close chamber by means of a freezing 
 mixture having no contact with the atmosphere of the preserving 
 chamber. Although the pleadings and proofs in the case were si- 
 lent on the subject, the court held that the alleged invention in- 
 volved no principle different from that long applied in the common 
 ice cream freezer, of which the court took judicial notice.** On the 
 same principle the courts take judicial notice that certain well 
 known liquors like whiskey, lager beer, wine, brandy, blackberry 
 brandy and ale are intoxicating drinks." It has sometimes been 
 
 Co., 52 Ala. 115; the fact that natural gas is an inflammable and explosive 
 substance intrinsically dangerous, Jamieson v. Indiana Gas Co., 128 Ind. 
 555, (see Miseissineva Co. v. Patton, 129 Ind. 472) ; of the nature and 
 Quality of toiacco, Jacobs' Case, 98 N. Y. 113; that tobacco and cigars 
 are not drugs and medicines. Com. t. Marzynski, 149 Mass. 68; of the de- 
 leterious effect of the use of cigarettes on health, 101 Tenn. 563, 70 Am. 
 St. Rep. 703; and of the variation of the magnetic needle, Bryan v. Beck- 
 ley, Litt. Sel. Cas. (Ky.) 91, 12 Am. Dec. 276; that Texas or splenitic 
 fever is infectious, 128 Iowa, 359, 103 N. W. 1003. 
 
 47 Brown v. Piper, 91 U. S. 37; King v. Gallun, 109 U. S. 99; Slawson v. 
 Railway Co., 107 U. S. 649; Phillips v. Detroit, 111 U. S. 606; Recken- 
 dorfer v. Faber, 92 U. S. 347; Hendy v. Iron "Works, 127 U. S. 375; Li- 
 gowski Clay Pigeon Co. v. Clay Bird Co., 34 Fed. Rep. 332. For example, 
 the inflammable character of coal oil. State v. Hayes, 78 Mo. 307 (but In 
 an action on an insurance policy the court refused to take judicial notice 
 that gin and turpentine were inflammable within the meaning of the con- 
 tract, Mosley V. Vermont Ins. Co., 55 Vt. 142) ; that kerosene oil Is a reflned 
 coal oil or a reflned earth oil are not facts to be taken notice of judicially, 
 Bennett v. North British & M. Ins. Co., 8 Daly (N. Y.) 471 (contra, Morse 
 V. Buffalo Ins. Co., 30 Wis. 534) ; that fine coal dust is explosive, Cherokee 
 Coal Co. V. Wilson, 47 Kan. 460. But in patent cases the courts will not 
 take judicial notice of facts because they are stated in cyclopedias or other 
 books, Dick v. Supply Co., 25 Fed. Rep. 105; Kaolatype Engrav. Co. v. 
 Hoke, 30 Fed. Rep. 444; New York Belt Co. v. Rubber Co., 30 Fed. Rep. 
 785; West v. Rae, 33 Fed. Rep. 45; nor of facts not generally known, 
 Kaolatype Engrav. Co. v. Hoke, 30 Fed. Rep. 444; nor of facts the reality 
 of which is in doubt, Blessing v. Copper Works, 34 Fed. Rep. 753. 
 
 *8 Brown v. Piper, 91 U. S. 37. 
 
 49 Briffitt V. State, 58 Wis. 39, 46 Am. Rep. 621 (beer) ; , Fenton v. State, 
 100 Ind. 598 (blackberry brandy); Watson v. State, 55 Ala. 158 (beer); 
 
§ 129. JUDICIAL NOTICE. 143 
 
 held otherwise as to beer."" A judge in Wisconsin had decided 
 views on the subject which he thus expressed to the jury: "I think 
 a man must be a driveling idiot who does not know what beer is. ' ' 
 The supreme court of the state affirmed the verdict." "Said Mr. 
 Justice Metcalf : "No jury can be supposed to be so ignorant as not 
 to know what gin is. Proof, therefore, that the defendant sold gin 
 is proof that he sold intoxicating liquor.'"^ 
 
 § 129 (130). Invariable course of nature— Time— Course of sea- 
 sons — Duration of life — Instincts. — Judicial notice will be taken 
 of facts which must invariably happen in the course of nature, 
 such as the recurrence of the seasons, public fasts and festivals, the 
 coincidence of the days of the week with the days of the month 
 and of the year,"* as that a certain day fell on Sunday, and the 
 court may so charge the jury; '** so the courts take judicial notice 
 of the difEerence of time between places having different longi- 
 tude ; ■"* of the time when the sun and moon rise and set on a given 
 day ; "° of the course of the heavenly bodies ; ■" of the meaning of 
 the word "month," and of the order of the months; "' of the gen- 
 eral course of agriculture, as the general time for planting and har- 
 
 State V. Goyette, 11 R. I. 592 (beer) ; Schlichl v. State, 56 Ind. 173 (whis- 
 key) ; Caldwell v. State, 43 Pla. 545, 30 So. 814 (wine) ; Starace v. Rossi, 
 69 Vt. 303, 37 Atl. 1109 (Italian sour wine); Com. v. Peckham, 2 Gray 
 514 (gin); State v. Church (S. Dak.), 60 N. W. Rep. 143 (beer); Thomas 
 V. Com., 90 Va. 92 (apple brandy). 
 
 00 People V. Hunt, 24 How. Pr. (N. Y.) 289; Shaw v. State, 56 Ind. 188; 
 Bell V. State, 91 Ga. 227. 
 
 51 Briffltt V. State, 58 Wis. 39, 46 Am. Rep. 621. 
 
 B2 Com. V. Peckham, 2 Gray, 514. 
 
 BsAUman v. Owen, 31 Ala. 167; Sprowl v. Lawrence, 33 Ala. 673. In 
 Philadelphia Ry. Co. v. Lehman, 56 Md. 209, it was held error for the 
 court to refuse to permit counsel to use an almanac in argument to the 
 jury to show that a witness had falsified as to a date, though the almanac 
 had not been used in evidence. See also Wilson v. Van Leer, 127 Pa. St. 
 371, 14 Am. St. Rep. 854. See notes, 39 Am. Rep. 416; 59 Am. Dec. 690, 
 on the general subject of this section. 
 
 B* Mcintosh V. Lee, 57 Iowa, 356, 10 N. W. 895; Swales v. Grubbs, 12C 
 Ind. 106, 25 N. E. 877; Bank v. Kingsley, 84 Me. Ill, 24 Atl. 794; Wilson 
 V. Van Leer, 127 Pa. St. 371, 17 Atl. 1097, 14 Am. St. Rep. 854. 
 
 BB Curtis V. March, 4 Jur. N. S. 1112. 
 
 B« People V. Chee Kee, 61 Cal. 404; Case v. Perew, 46 Hun, 57; Dayton 
 & W. Traction Co. v. Marshall (Ind. App.), 75 N. E. 824. 
 
 67 Tutton V. Drake, 5 Hurl. & N. 649 ; Tayl. Ev. § 20. 
 
 BsHoyle v. Lord Cornwallis, 1 Str. 387; Harry v. Broad, 2 Salk. 626; 
 Tayl. Ev. § 16. 
 
144 THE LAW OF EVIDENCE. § 129. 
 
 vest; " of the time of the maturity of the crops in the vicinity; '" 
 of the effect of dams upon streams of water ; "^ of the laws govern- 
 ing birth, as that one is not the father of a child when non-access 
 is proved until insufficient time before the birth ; '^ of the average 
 duration and expectancy of human life, and of the Northamton 
 and American tables of mortality."' In the same manner the courts 
 should recognize the existence of ordinary instincts and passions 
 which universally in a greater or less degree influence the actions 
 of mankind.®* In a New York ease the court of appeals applied 
 this branch of the law of judicial notice in a somewhat novel 
 manner. In an action by a brakeman against a railroad company 
 for personal injury, it was claimed that the injury had been re- 
 ceived by the plaintiff while sitting on top of a box car while going 
 through a tunnel; and the negligence claimed was that the com- 
 pany had not given him notice of a brick arch in the tunnel which 
 reduced its height to four feet, seven inches above the top of the 
 ear. No evidence was given at the trial as to the plaintiff's size or 
 height; but the appellate court took judicial notice of the fact that 
 the average height of men is less than six feet ; that, in view of the 
 usual proportions of the different parts of the human system, the 
 plaintiff's head could not have struck the obstruction while he was 
 
 69 Tomllnson v. Greenfield, 31 Ark. 557, 89 Am. Dec. 691; Floyd v. Ricks, 
 14 Ark. 286, 58 Am. Dec. 374; Ross v. Boswell, 60 Ind. 235; Abel v. 
 Alexander, 45 Ind. 523; Wetzler v. Kelly, 83 Ala. 440; Burwell v. Brodie 
 (N. C.), 47 S. E. 47. But the courts cannot take judicial notice that 
 the weather is such that on a certain date the lakes and streams are al- 
 ways closed, Haines v. Gibson, 115 Mich. 131, 73 N. W. 126. But the court 
 knows that the weather is cold in certain states in February, Pierce v. 
 Railway Co., 120 Cal. 156, 52 Pac. 302. 
 
 80 Floyd V. Ricks, 14 Ark. 286, 58 Am. Dec. 374; Ross v. Boswell, 16 
 Ind. 235; Brown v. Anderson, 77 Cal. 236; Haines v. Snediger, 110 Cal. 18, 
 42 Pac. 462. But not of the precise day a given crop reaches its ma- 
 turity, Culverhouse v. Worts, 32 Mo. App. 419. 
 
 61 Tewksbury v. Schulenberg, 41 Wis. 584. 
 
 82 Heathcote's Divorce, 1 Macq. 277; Rex v. Luffe, 8 Bast, 202; Whit- 
 man V. State, 34 Ind. 360; Tayl. Ev. § 16. 
 
 «» Johnson v. Hudson Ry. Co., 6 Duer (N. Y.) 633; Davis v. Standish, 
 26 Hun, 608; Gordon v. Tweedy, 74 Ala. 232, 49 Am. Rep. 813; North- 
 eastern Ry. Co. V. Chandler, 84 Ga. 37; Blair v. Madison Co., 81 Iowa, 
 313. The courts will also take notice of the ordinary limitations of human 
 life, Floyd v. Johnson, 2 Litt. (Ky.) 109. 
 
 »* 1 Whart. Ev. § 336. No proof Is necessary that the loss of an arm 
 will Interfere with ordinary business and cause pain, Chicago Ry. Co. v. 
 Warner, 108 111. 638. 
 
§ 130. JUDICIAL NOTICE. 145 
 
 in a sitting posture unless lie was nine feet in height.""* But the al- 
 leged laws or course of nature mu,st be of certain and unvarying 
 occurrence; "" hence the extraordinary vicissitudes of eUmate are 
 not so noticed; nor is the age of a tree judicially noticed from the 
 concentric layers as shown in the trunk."' 
 
 § 130 (131). Meaning of words and phrases — The scriptures. — 
 The meaning of current English words, phrases and idioms gener- 
 ally understood in the community need not be proven, even though 
 not contained in any dictionary."* The changes in the meaning of 
 words are judicially noticed."" A case often cited in illustration 
 of the rule that courts will take judicial notice of well known liter- 
 ary or classical allusions is that of Hoare v. Silverlock, in which it 
 was held that, where a libel charged that the friends of the plaint- 
 iff had "realized the fable of the frozen snake," the court would 
 take notice that the knowledge of that fable existed generally in 
 society.'" In a more recent case a less classical expression was ju- 
 dicially noticed. A newspaper published the statement that in a 
 pending election a large sum of money would be used to corrupt 
 voters and that "it is currently reported that B. is to have charge 
 of the sack." In an action for libel, it was held that the court 
 could not affect to be ignorant of the recent meaning which the 
 word "sack" had acquired when used in such connection, and that 
 no proof of such meaning need be given.'^ In like manner and for 
 
 65 Hunter v. New York, O. & W. Ry. Co., 116 N. Y. 615. 
 
 ee Dixon v. Nicholls, 39 III. 372. 
 
 8' Patterson v. McGausland, 3 Bland. (Md.) 69. Courts do not take 
 judicial notice that cattle are at certain seasons liable to communicate 
 disease, Bradford v. Floyd, 80 Mo. 207. 
 
 68 For example of the meaning of the words "squatter riot" in Cali- 
 fornia, Clarke v. Pitch, 41 Cal. 472; the words "Beecher business" used 
 of a minister, Bailey v. Kalamazoo Publishing Co., 40 Mich. 251; the 
 meaning of "whiskey" and "malt liquor," Frese v. State, 23 Fla. 267; 
 Adler v. State, 55 Ala. 16; the meaning of "f. o. b.", Vogt v. Sehienebeok, 
 122 Wis. 491; and the meaning of "gift enterprise," Lohman v. State. 
 81 Ind. 15. But the rule does not extend to words or their pronuncia 
 tion In a foreign language. State v. Johnson, 26 Minn. 316, 3 N. W. 982 
 Such notice extends only to the ordinary meaning, Martin v. Eagle 
 Creek Development Co., 41 Ore. 448, 69 Pac. 216. Eor other illustrations 
 see note, 89 Am. Dec. 663-692. 
 
 es Edgar v. McCutchen, 9 Mo. 759; Linck v. Kelley, 25 Ind. 278, 87 Am. 
 Dec. 362. 
 
 'oVanada v. Hopkins, 1 J. J. Marsh. (Ky.) 285, 19 Am. Dec. 92; Hoare 
 V. Silverlock, 12 Adol. & Ell. N. S. 624. 
 
 71 Edward v. San Jose Printing Co., 99 Cal. 431, 34 Pac. 129. 
 
 10 
 
146 THE LAW OF EVIDENCE. § 132. 
 
 stronger reasons the courts take judicial notice of the contents of 
 the Bible, of the numerous sects into which the religious world is 
 divided and also of the general doctrines maintained by each sect; 
 for example, that there are numerous organizations called Chris- 
 tians respectively maintaining different and conflicting doctrines 
 respecting predestination, eternal punishment, the infallibility of 
 the Scriptures and the like/" 
 
 § 131 (132). Abbreviations. — The courts take judicial notice 
 of the meaning of the common abbreviation of Christian names," 
 of abbreviations of the letters frequently used by administrators, 
 executors, justices of the peace, notaries and other officers to desig- 
 nate their official title ; ''* of the initials and abbreviations used in 
 the description of land in conveyances, judicial sales and assess- 
 ments for taxes and other public proceedings,^" and of the mean- 
 ing of abbreviations in very general use in business affairs, as the 
 letters C. 0. D.'« 
 
 § 132 (134). Facts not within the memory of the judge. — It 
 does not necessarily follow that the judge should refuse to take' ju- 
 dicial notice of a fact when his memory is at fault in respect to the 
 same. It frequently happens that it is necessary or proper for the 
 court to refer to sources of information concerning matters which 
 have not been referred to in the evidence. In a New York case the 
 opinion shows that the court had referred to various documents 
 and to Pollard's and Greeley's histories of the Civil War." In the 
 celebrated Dred Scott case. Chief Justice Taney evidently had re- 
 
 72 Taylor v. Barclay, 2 Sim. 221; State ex. rel. Weiss v. District Board, 
 76 Wis. 177, 191, 20 Am. St. Rep. 41; Hilton v. Roylance, 25 Utah, 129, 
 69 Pac. 660, 95 Am. St. Rep. 821. 
 
 73 Stephens v. State, 11 Ga. 225; Alsup v. State (Texas), 38 S. W. 174. 
 'iMoseley's Admr. v. Mastin, 37 Ala. 216. The letters "guar." is no 
 
 recognized abbreviation of guardian, O'Connor v. Decker, 95 Wis. 202, 
 See note, 89 Am. Dec. 692. 
 
 75 Kile V. Town of Yellowhead, 80 111. 208 ; Power v. Bowdle, 3 N. Dak. 
 107. Contra, Vivian v. State, 16 Tex. App. 262. See note, 89 Am. Dec. 692. 
 
 78 State T. Intoxicating Liquors, 73 Me. 278. But it was held otherwise 
 in McNichol v. Pacific Ex. Co., 12 Mo. App. 401. In Alcolo v. Chicago, 
 B. & Q. Ry. Co., 70 Iowa, 185, the court refused to take judicial notice ol 
 the meaning of the letters C, B. & Q. Ry. Co.; and the court declined to 
 take judicial notice of the meaning of printers' marks at the foot of an 
 advertisement in Johnson v. Robertson, 31 Md. 476. See note, 89 Am. 
 Dec. 692. 
 
 77 Swinnerton v. Columbia Ins. Co., 37 N. Y. 174. 
 
§ 132. JUDICIAL NOTICE. 147 
 
 sorted not only to judicial decisions, statutes, ordinances and works 
 of history, but to whatever sources were available to throw light 
 upon the social and political condition of the African race in the 
 early history of the country." Dr. Wharton illustrates the princi- 
 ple." "The judge may consult works on collateral sciences or arts, 
 touching the topic on trial. He may draw, for instance, on myth- 
 ology, in order to determine the meaning of similes in an ambigu- 
 ous writing.^" He may refer to almanacs ; *^ he may appeal to his 
 own memory for the meaning of a word in the vernacular ; *" he 
 may, as to the meaning of terms, refer to dictionaries of science of 
 all classes ; '^ he may determine the meaning of abbreviations of 
 Christian names and offices, and of other common terms ; °* as to a 
 point of political history (e. g. the recognition of a foreign govern- 
 ment) he may consult the executive department of the state ; *" he 
 may cause inquiry to be made as to the practice of other courts ; '° 
 and Lord Hardwicke went so far as to inquire of an eminent con- 
 veyancer as to a rule of conveyancing practice.*' And so the court 
 may have recourse to the legislative rolls to determine the construc- 
 tion of a statute." ^* It is hardly necessary to add that no evidence 
 need be given of those facts of which the court should take judicial 
 notice. If the memory of the judge is at fault he may refer to such 
 sources of information as have already been indicated or he may 
 refuse to take judicial notice of the matter in question, until the 
 party asking him to do so can produce some document at the trial 
 by which his memory may be refreshed. 
 
 '8 Dred Scott Case, 19 How. 393. 
 79 Whart. Ev. § 282. 
 
 so United States v. Teschmaker, 22 How. 392; Hoare v. Sllverlook, 12 
 Jur. 695, 12 Q. B. 624. 
 
 81 Page V. Faucet, Cro. El. 227; Tutton v. Darke, 5 Hurl. & N. 649; 
 AUman v. Owen, 31 Ala. 167; Sprowl v. Lawrence, 33 Ala. 674. 
 
 82 R. V. Woodward, 1 Moody Cr. C. 323; Clement! v. Gelding, 2 Camp. 
 25; Mouflet v. Cole, L. R. 7 Exch. 70; Com. v. Kneeland, 20 Pick. 229. As 
 to local idioms, see In re Bodmin Mines Co., 23 Beav. 370. 
 
 83 Clement! v. Gelding, 2 Camp. 25. 
 
 84 Stephen v. State, 11 Ga. 225; Moseley v. Mastin, 37 Ala. 216. But 
 see Russell v. Martin, 15 Tex. 238; Weaver v. McElhenon, 13 Mo. 89. 
 
 86 Taylor v. Barclay, 2 Sim. 221; Jones v. United States, 137 U. S. 202. 
 88 Doe V. Lloyd, 1 Man. & G. 685; Chandler v. Grieves, 2 H. Black, 
 
 606, note a. 
 
 87 Willoughby v. WlUoughby, 1 T. R. 772. 
 
 S8R. V. Jeffries, 1 Str. 446; People v. Mayes, 113 Cal. 618; Hilton v. 
 Raylance, 25 Utah, 129. 
 
148 THE LAW OF EVIDENCE. § 134. 
 
 § 133 (135). Facts of which the judge has special knowledge.— 
 
 It is hardly necessary to state that the judge has no right to act 
 upon his own personal or special knowledge of facts as distin- 
 guished from that general knowledge which might properly he im- 
 portant to other persons of intelligence. More than two hundred 
 years ago in Sir John Penwick's trial, it was said by the solicitor 
 general: "I do not say that a judge upon his private knowledge 
 ought to judge, he ought not. But if a judge knows anything 
 whereby the prisoner might be convicted or acquitted (not gener- 
 ally known), then I do say he ought to be called from the place 
 where he sate, and go to the bar and give evidence of his knowl- 
 edge. "^= 
 
 § 134 (135). Facts of which jurors take judicial notice. — At an 
 early stage of the common law jurors were selected because of their 
 supposed private knowledge of the facts in issue; and they were 
 expected to use such knowledge. "The law supposed them to have 
 knowledge of and capacity to try the Matter in Issue (and so they 
 must), though no Evidence were given on either side in court; but 
 to this the Judge is a stranger, i. e., he cannot Judge without evi- 
 dence though the Jury may.""" But this is not the modem rule. 
 Jurors cannot properly act upon their mere personal or private 
 knowledge of special facts without evidence; for example, they 
 cannot properly act upon their own private knowledge of the char- 
 acter of parties or of witnesses,"^ or of the prices of commodities, or 
 of the state of the weather at a time past."^ But they may act 
 upon and take notice of those facts which are of such notoriety as 
 to be matters of common knowledge."^ For example jurors may use 
 their own experience and knowledge of human nature in weighing 
 evidence and passing on the credibility of witnesses.** In consid- 
 
 89 13 How. St. Tr. 663, 667; Shafer v. City of Bau Claire, 105 Wis. 239; 
 Mayor of New Orleans v. Ripley, 5 La. 121, 25 Am. Dec. 175; Wheeler 
 V. Webster, 1 B. D. Smith (N. Y.) 1; State v. Edwards, 19 Mo. 674. See 
 interesting discussion Thayer, Prel. Treatise on Ev. p. 291. 
 
 »o Anonymous, Law of Evidence published in 1735, cited by Mr. Thayer 
 in 3 Harv. Law Rev. 300. See note, 31 L. R. A. 489-496. 
 
 91 Schmidt v. Insurance Co., 1 Gray, 529; Johnson v. Railway Co., 91 
 Wis. 233 ; Chattanooga R. L. R. Co. v. Owen, 90 Ga. 265, 15 S. E. 853. 
 
 92 McCormick Co. v. Jaoobson, 77 Iowa, 582. 
 
 93 Com. V. Peokham, 2 Gray, 514; Briffitt v. State, 58 Wis. 39; Head v. 
 Hargrave, 105 TJ. S. 45; State v. Maine Cent. Ry. Co., 86 Me. 309. 
 
 »* Jenny Electric Co. v. Branham, 145 Ind. 314, 41 N. B. 448. 
 
§ 134. JUDICIAL NOTICE. 149 
 
 ering the evidence they may bring to bear such general practical 
 knowledge as they may have had.°° 
 
 »5McGarrahan v. Railway Co., 171 Mass. 211, 50 N. B. 610; Wills v. 
 Lance, 28 Ore. 371, 43 Pac. 487; Springfield C. R. Co. v. Hoeffner, 175 111. 
 634, 51 N. B. 884. As to characteristics of domestic animals as to fright, 
 etc.. State v. Maine C. R. Co.^ 86 Me. 309; as to modes of stopping cars, 
 Swain v. Fourteenth St. Ry. Co., 93 Cal. 179; in determining value, Parks 
 V. Boston, 15 Pick. 198; Murdick v. Sumner, 22 Pick. 156; Head v. Har- 
 grave, 105 U. S. 45; as to the natural instinct of self-preservation, Chi- 
 cago & B. I. Ry. Co. V. Beaver, 119 111. 34, 65 N. E. 144; Hopkinson v. 
 Knapp Co., 92 Iowa, 328, 60 N. W. 653; Chase v. Railway Co., 77 Me, 262. 
 
CHAPTER 5. 
 
 RELEVANCY. 
 
 135. Relevancy — In general. 
 
 136. The terms "admissibility" and "relevant" not synonymous. 
 
 137. Logical connection between fact offered and fact to be proved. 
 
 138. Same — Illustrations of relevant facts. 
 
 139. Same, continued. 
 
 140. Acts between strangers or between a party and strangers. 
 
 141. Facts apparently collateral may become relevant — Custom — Cause 
 
 and effect. 
 
 142. Same — Knowledge — Intent. 
 
 143. Same — Proof of other crimes than the one in Issue. 
 
 144. Same, continued. 
 
 145. Same — Such evidence- — How limited. 
 
 146. Collateral facts to show good faith — Knowledge — Threats, etc. 
 
 147. Pacts apparently collateral to repel the inference of accident. 
 
 148. Character — ^When relevant. 
 
 149. Qualifications of the rule — ^Libel and slander. 
 
 150. Same — Nature of proof — Pleadings — Rumors. 
 
 151. Character — Actions for breach of promise of marriage. 
 
 152. Same — Seduction and criminal conversation. 
 
 153. Same — Actions for bastardy. 
 
 154. Character in actions for fraud. 
 
 155. Same, continued. 
 
 156. Same — Homicide. 
 
 157. Character — Action for malicious prosecution. 
 
 158. Proof of good character, 
 
 159. Proof of financial standing — Exemplary damages. 
 
 160. Same — Compensatory damages. 
 
 161. Same — Financial standing of plaintiff. 
 
 162. Mode of proving financial standing. 
 
 163. Relevancy of facts apparently collateral — ^Negligence cases. 
 
 164. Same, continued. 
 
 165. Same, continued. 
 
 166. Relevancy of disconnected facts to show defective machinery — 
 
 Railway fires. 
 
 167. Same, continued. 
 
 168. Facts apparently collateral — ^Value of lands. 
 
 169. Same — Personal property — Services. 
 
 170. Direct proof of intent, motives and belief. 
 
 171. Evidence made relevant by that of adverse party. 
 
 172. Same — ^Rebuttal or explanation of Irrelevant testimony. 
 
 173. General rules as to relevancy. 
 
 174. Province of judge and jury. 
 
 175. Same — Mixed questions of law and fact — Construction of writings- 
 
 Statutes, etc. 
 175o. The court decides questions of law — Criminal cases. 
 
§ 135. EELEVANCT. 151 
 
 § 135 (136) . Relevancy — In general. — ' ' Of all rules of evidence, 
 the most universal and most obvious is this, that the evidence ad- 
 duced should be alike directed and confined to matters which are 
 in dispute, or which form the subject of investigation. The theo- 
 retical propriety of this rule never can be a matter of doubt, what- 
 ever difficulties may arise in its application. The tribunal is cre- 
 ated to determine matters, which either are in dispute between con- 
 tending parties or otherwise require proof; and anything which is 
 neither directly nor indirectly relevant to those matters ought at 
 once to be put aside, as beyond the jurisdiction of the tribunal and 
 as tending to distract its attention and to waste its time. 'Frustra 
 probatur quod proiatum non relevat.' "^ Notwithstanding the 
 great importance of this rule it will not be necessary to give it so 
 elaborate a discussion as some of the other rules of evidence. Other 
 chapters of the work abound in illustrations of the subject. For 
 example, the subjects of admissions, opinion evidence, res gestcs, 
 hearsay, book entries and even other subjects might logically 
 enough be grouped under the general title of relevancy. But it is 
 deemed best to adopt the more usual classifications and therefore 
 under this heading we shall only illustrate the meaning of the gen- 
 eral rule and treat of certain classes of testimony, which form ap- 
 parent exceptions to the rule, and which are not discussed in other 
 chapters. According to Mr. Stephen, "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." " Mr. Wharton defines relevancy as "that which conduces 
 to the proof of a pertinent hypothesis. ' ' ' But in view of the com- 
 plexity of human affairs and the infinite variety which questions of 
 fact assume in courts of justice, it is obvious that no definition of 
 the term "relevancy" can be very satisfactory or afford any very 
 practical aid.* Eeforms in the rules of pleading have no doubt 
 simplified the subject, and it is no longer necessary in a work upon 
 
 1 Best, Ev. (10th ed.) § 251. 
 
 2 Stephen, Ev. art. 1, p. 4; Platner v. Platner, 78 N. T. 90; Cole v. Board- 
 inan, 63 N. H. 580. 
 
 3 1 Whart. Ev. § 20; Interstate Commerce Commiasdon v. Baird, 194 U. S. 
 25, 44. 
 
 * Thayer, Prelim. Tr. on Ev. p. 265; Plumb v. Curtis, 66 Conn. 154, 33 
 Atl. 998. 
 
152 THE LAW OP EVIDENCE. § 136. 
 
 evidence to elaborately discuss the different forms of issues, or the 
 subject of variance, or other subjects connected with the techni- 
 calities of pleading; But there is no definition or statute or theory 
 of relevancy which can very greatly aid in solving the constantly 
 recurring problem, whether a given fact offered in evidence is rele- 
 vant to prove the proposition in issue 
 
 § 136(136). The terms "admissibility" and "relevant" not 
 synonymous. — Since the chief object of introducing evidence is to 
 secure a rational entertainment of facts it is plain that facts should 
 not be submitted to the jury unless they are logically relevant to 
 the issues. But it is equally plain that logical relevancy does not in 
 all cases render proposed testimony admissible. For example, a 
 husband may not testify to the declarations of his wife, when she 
 is a party to the suit ; and an attorney may not testify to the com- 
 munications of his client made in confidence. In these and other 
 cases, which might be mentioned, the testimony is excluded, how- 
 ever relevant, by positive rules of law.'' So it is constant practice 
 for the courts to exclude circumstances which might tend toward 
 proof of the propositions at issue, for the reason that such facts are 
 too remote to be given probative effect in courts of justice.' The 
 difficulty of course lies in determining in each ease whether the 
 fact offered in evidence has such a natural or necessary connection 
 with the fact to be proved, as to be relevant in the. legal sense of 
 that term. The different senses in which the term relevancy may be 
 and often is used are well illustrated in an opinion by Gushing, 
 C. J. : " Although undoubtedly the relevancy of testimony is orig- 
 inally a matter of logic and common-sense, still there are many in- 
 stances in which the evidence of particular facts as bearing upon 
 particular issues has been so often the subject of discussion in 
 courts of law, and so often ruled upon, that the united logic of a 
 great many judges and lawyers may be said to furnish evidence of 
 the sense common to a great many individuals, and, therefore, the 
 best evidence of what may be properly called common-sense, and 
 thus to acquire the authority of law. It is for this reason that the 
 subject of the relevancy of testimony has become to so great an ex- 
 tent, matter of precedent and authority, and that we may with en- 
 tire propriety speak of its legal relevancy."^ 
 
 5 See infra, §§ 733, et seq. and §S 748, et seq. 
 
 See next section. 
 
 ' State V. Lapage, 57 N. H. 245, 288, 24 Am. Rep. 76. 
 
§ 137. BELEVANCY. 153 
 
 § 137 (137) . Logical connection between fact offered and fact to 
 be proved. — Although as a rule testimony should not be excluded 
 as irrelevant on the ground that it may have but little weight, yet 
 the law requires an open and visible connection between the prin- 
 cipal and evidentiary facts and the deductions from them and does 
 not permit a decision to be made on remote inferences.^ Thus the 
 fact that a party was hopelessly insolvent was held inadmissible on 
 the issue whether he had furnished money to pay a certain note. 
 So one's financial condition is irrelevant to the question whether 
 he agreed with a physician that he should not pay unless cured ; " 
 and in an action for money lent, it is irrelevant that the defendant 
 had money in the bank at that time.^° But evidence of the finan- 
 cial ability of the party to make the payments may be relevant as 
 bearing on the question of when payments were to be made.^^ 
 Where it is the contract that a fixed sum shaU be paid for goods 
 or services, it is irrelevant to prove the value or usual price ; " and 
 on a contention as to the proper amount of wages, evidence of the 
 amount of wages received in like employment in other towns in an- 
 other state is too remote.^' So evidence of the low price for which 
 goods were sold is too remote to be admissible to disprove the claim 
 of a warranty of quality.^* On the issue whether a certain partner 
 did or did not sign a note sued on by an endorsee, evidence that 
 the partners agreed among themselves that neither should sign such 
 a note is irrelevant, the plaintiff having no knowledge of the agree- 
 ment.^" The testimony of witnesses having no knowledge of the 
 
 sXenla Bank y. Stewart, 114 U. S. 224; United States v. Ross, 92 XT. S. 
 281; Durkee v. India Ins. Co., 159 Mass. 514. 
 » Holywood V. Reed, 55 Mich. 308. 
 
 10 Burke v. Kaley, 138 Mass. .464. 
 
 11 Beckley v. Janris, 55 Vt. 348. 
 
 12 Hamilton v. Protliingliam, 59 Micli. 253; Kvammen v. Meridean Mill 
 Co., 58 Wis. 399; Bright v. Metaire Ass'n, 43 La. An. 58; Board of Com- 
 missioners V. O'Connor, 137 Ind. 622. Held otherwise where the evidence 
 was conflicting as to whether a certain price was agreed upon. Saunders 
 V. Gallagher, 53 Minn. 422. 
 
 i»Noyes v. Fitzgerald, 55 Vt. 49. 
 
 1* Ockeshausen v. Durant, 141 Mass. 338. But the coat price may be 
 some evidence of value, Howver v. Bell, 141 N. Y. 140; so is the selling 
 price, Sanford v. Peck, 63 Conn. 486. 
 
 15 Bates V. Forcht, 89 Mo. 121. Other Illustrations where the inference 
 sought to be drawn was too remote, Swann v. Kidd, 78 Ala. 173; Kellogg 
 V. Thompson, 142 Mass. 76; Harris v. Howard, 56 Vt. 695; Hathaway. Vj 
 Tinkham, 148 Mass. 85; Patrick v. Howard, 47 Mich. 40. 
 
154 THE LAW OF EVIDENCE. § 138. 
 
 transaction should, of course, be rejected.^* Nor is it relevant to 
 ask a witness his reason for believing certain facts,^'' or his under- 
 standing based upon a conversation — the substance of the conversa- 
 tion should be given.^^ Obviously testimony collateral to the issues 
 which would merely tend to prejudice the jury should be rejected." 
 § 138 (138). Same — ^Illustrations of relevant facts. — ^But where 
 there is such logical connection between the fact offered as evidence 
 and the issuable fact that proof of the former tends to make the 
 latter more probable or improbable, the testimony proposed is rele- 
 vant, if not too remote. "The competency of a collateral fact to 
 be used as the basis of legitimate argument is not to be determined 
 by the conclusiveness of the inferences it may afford in reference 
 to the litigated fact. It is enough if these may tend, even in a 
 slight degree, to elucidate the inquiry or to assist, though remotely, 
 to a determination probably founded on truth. ' ' ^^ Among the 
 general rules given by Mr. Stephen for determining relevancy is 
 the following : ' ' 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 ; any subsequent conduct of such per- 
 son apparently influenced by the doing of the act, and any act 
 done in consequence of it or by the authority of that person." ^^ 
 For this purpose it is often competent to prove the malice or state 
 of mind of a party,^^ his mode of life, character or financial condi- 
 
 18 Chadwick v. Chadwick, 52 Mich. 545 ; Patrick v. Graham, 132 TJ. S. 
 627; Anderson v. Jordon, 15 S. D. 395, 89 N. W. 1015. 
 IT McDonald v. Jacobs, 77 Ala. 524. 
 
 18 Grubey t. National Bank of 111., 35 111. App. 354. 
 
 19 Galveston Ry. Co. v. Smith (Tex. Civ. App.), 24 S. W. Rep. 668; Rus- 
 sell V. Hearne, 113 N. C. 361; Tijerina v. State (Texas), 74 S. W. 913. 
 
 20 Holmes v. Goldsmith, 147 U. S. 150, 164; Interstate Commerce Com- 
 mission V. Baird, 194 TJ. S. 25, 44; Stevenson v. Stewart, 11 Pa. St. 307; 
 Wood V. Pinson, 91 Me. 280, 39 Atl: 1007; Chamberlain v. Chamberlain 
 Banking House, 4 Neb. 278, 93 N. W. 1021. ^Vhere there is a conflict of 
 testimony of witnesses evidence is admissible of collateral facts which 
 have a direct tendency to show that the testimony of one set of witnesses 
 is more probable than that of the other, Glassberg v. Olson, 89 Minn. 
 195, 94 N. W. 554; Philips v. Missouri, 91 Minn. 311, 97 N. W. 969. Like- 
 wise when the evidence is evenly balanced evidence of collateral facts is 
 admissible for the same reason, Lewis, Cooper & Hancock v. Utah Const. 
 Co., 10 Idaho, 214, 77 Pao. 336. 
 
 21 Steph. Ev. art. 7; Weaver y. State (Texas), 65 S. W. 534. See cases 
 cited below. 
 
 22 state v. Gates, 28 Wash. 689, 69 Pac. 385; R. v. Clews, 4 Car. & P, 
 
§ 138. RELEVANCY. 155 
 
 tion, when otherwise such testimony would have no bearing upon 
 the issue." Equally familiar is the practice of proving, as parts 
 of the chain of evidence, the opportunity, preparation, motive, de- 
 sire or the intention of the party to do the act in question.^* On 
 the other hand the party may show that by reason of physical or 
 mental inability or absence it is impossible that the act in question 
 should have been his act.^° On the same principle it is relevant to 
 prove misconduct of the party in respect to the pending case, such 
 as attempting to suppress or to fabricate testimony or bribe wit- 
 nesses or jurors ; ^^ and so it is relevant to prove the demeanor of a 
 party accused of a crime or tort,^^ his flight or concealment and his 
 falsehoods,"* his attempts to fasten the crime upon others, his pos- 
 session of property connecting him with the offense "" or statements 
 made in his presence likely to affect his conduct. So "whenever 
 any act may be proved, statements accompanying and explaining 
 that a^t made by or to the person doing it may be proved, if they 
 are necessary to understand it. In criminal cases (of rape) the 
 conduct of the person against whom the offense is said to have been 
 committed, and in particular the fact that (she) made a complaint 
 soon after the offense to persons to whom (she) would naturally 
 complain, are deemed to be relevant; but the terms of the com- 
 plaint itself seem to be deemed to be irrelevant. "When a person's 
 conduct is in issue or is, or is deemed to be, relevant to the issue, 
 
 221; Sayres v. Com., 88 Pa. St. 291; McCue v. Com., 78 Pa. St. 185; State 
 V. Dickson, 78 Mo. 438; State v. Hannett, 54 Vt. 83; Stone v. State, 118 
 Ga. 705, 98 Am. St. Rep. 145, 45 S. E. 630. See note 66 L. R. A. 384. 
 
 23 Com. V Perrigan, 44 Pa. St. 386; Pierson v. People, 79 N. T. 424, 35 
 Am. Rep. 524; Reinhart v. People, 82 N. Y. 607; Com. v. Webster, 5 Cush 
 295, 52 Am. Dec. 711 and long note; Com. v. Hudson, 97 Mass. 565; Com 
 V. Choate, 105 Mass. 451; Long v. Straus, 124 Ind. 84; Mann v. State 
 (Ala.), 32 So. 704. 
 
 2* Jewett V. Banning, 21 N. Y. 27; Com. v. Goodwin, 14 Gray, 55; Bruner 
 V. Wade, 84 Iowa, 698; Blakes v. Da Cnnha, 126 N. Y. 293. See § 350 et seg., 
 infra. 
 
 25 Moulton V. Aldrich, 28 Kan. 300, common practice of proving alibi. 
 
 28 Cruikshank v. Gordon, 118 N. Y. 178; Hastings v. Stetson, 130 Mass. 
 76; Chicago City Ry. Co. v. McMahon, 103 111. 485, 42 Am. Rep. 29; Dono- 
 hue V. People, 56 N. Y. 208. See further § 17 et seq., supra. 
 
 27 See subject of admissions, § 287 et seq., infra. 
 
 2S Com. V. Tolliver, 119 Mass. 312; Ryan v. People, 79 N. Y. 593; Murray 
 V. Chase, 134 Mass. 92; Com. v. Goodwin, 14 Gray, 55. 
 
 2» Linsday v. People, 63 N. Y. 143 ; Com. v. Parmenter, 101 Mass. 211 ; 
 Gardiner v. People, 6 Park. Cr. (N. Y.) 157. 
 
156 THE LAW OF EVIDENCE. § 139. 
 
 statements made in his presence and hearing by which his conduct 
 is likely to have been affected are deemed to be relevant. ' ' ^^ 
 
 § 139 (139), Same, continued. — Although the authorities are 
 agreed on the familiar proposition that the evidence must be con- 
 fined to the facts put in issue by the pleadings, the rule should not 
 be so arbitrarily or strictly construed as to exclude facts which 
 raise a reasonable inference or presumption as to the matter in is- 
 sue.'^ When a fact is in a legal sense relevant to the issue, it is not 
 to be excluded although apparently collateral. Under another head 
 the authorities are cited which show that it may be competent to ex- 
 plain the nature of objects by experiments and by comparison with 
 other objects, when preliminary proof is made that the conditions 
 are the same. On the same principle models, maps, photographs 
 and diagrams of objects under investigation are relevant to the 
 issue where proved to be correct representations.^'' So it is famil- 
 iar practice in arriving at the value of lands to receive testimony 
 as to sales of other lands similarly situated ; ^' and when the date 
 of an act is in dispute, it may be fixed by the contemporaneous oc- 
 currence of other acts, either notorious or distinctly remembered.'* 
 So it is relevant to prove notoriety in the neighborhood where the 
 parties reside to lay the foundation for an inference that one of the 
 parties was cognizant of the fact, such knowledge being material.'" 
 And it is familiar practice to prove the condition of machinery, of 
 a highway or other object or the condition of health or state of mind 
 at a given time by facts showing such condition at another time 
 when the circumstances are such as to raise a fair inference that 
 no change has taken place.'" In like manner when it is alleged that 
 an engine of defendant has caused a fire, evidence is received to 
 show that other similar engines owned by the same railroad com- 
 pany have scattered fire near the place in question." Other illus- 
 trations of the subject under discussion wiU be found under ap- 
 
 30 staph. Ev. art. 8. 
 
 31 But there must be proof of the similarity of conditions, Lake Erie 
 Ry. Co. V. Mugg, 132 Ind. 168; McCormick Co. v. Gray, 100 Ind. 285. 
 
 32 See § 411, infra. 
 83 See § 168, infra. 
 
 siRitter v. First Nat. Bank, 30 Mo. App. 652; Beakes v. Da Cunha, 126 
 N. Y. 293; Rollins v. Clement, 25 S. C. 661. 
 
 86 Kuglar V. Garner, 74 Ga. 765. 
 
 seMcCulloch v. Dobson, 133 N. Y. 114, condition of a mill; Shailer v. 
 Bumstead, 99 Mass. 112, .state of mind. 
 
 37 See §§ 166, 167, infra. 
 
§ 140. EBLEVANCY. 157 
 
 propriate titles in various parts of this work." It is impossible to 
 lay down any exact test for determining in all cases the question of 
 relevancy. The illustrations already given show the difficulty of 
 defining where probability ceases and mere speculation begins. It 
 is evident that, in the performance of this duty, something must be 
 left to judicial discretion. There may be evidence having a slight 
 probative effect, but so unimportant when compared with other 
 better evidence easily available as to be properly excluded. This is 
 especially so when the proposed testimony would unreasonably pro- 
 tract the trial and distract the attention of the jury by the investi- 
 gation of facts having very slight or remote bearing on the case.^'' 
 § 140 (140). Acts between strangers or between a party and 
 strangers. — The question of relevancy less frequently arises when 
 the offered proof relates to transactions which have transpired di- 
 rectly between the plaintiff and defendant ; but it is constantly aris- 
 ing when the effort is made to prove the acts and declarations of 
 strangers or of one of the parties to the action in his dealings with 
 strangers. Such evidence, in general, "it would be manifestly un- 
 just to admit, since the conduct of one man under certain circum- 
 stances or towards certain individuals, varying as it will necessarily 
 do according to the motives which infiuence him, the qualities he 
 possesses and his knowledge of the character of those with whom he 
 is dealing, can never afford a safe criterion by which to judge of 
 the behavior of another man similarly situated, or of the same man 
 toward other persons."*" Thus when the defendant wishes to 
 prove that a loan made to him by the plaintiff was for usurious 
 interest, it is irrelevant to show that the plaintiff has been in the 
 habit of making usurious loans to other persons.*^ In a case often 
 cited on this subject, the action was between landlord ^nd tenant 
 and the issue was whether the rent was payable quartely or half 
 yearly, it was held irrelevant to show in what way other tenants 
 
 38 Among others see §§ 146, 147, 163, 166, 167, infra, as to highways, 
 railroad fires, etc. For other cases see Harrington v. Keteltas, 92 N. Y. 
 40; Buswell Co. v. Case, 144 Mass. 350; Ayres v. Hubbard, 57 Mich. 322; 
 Mack V. Leedle, 78 Iowa, 164. 
 
 ssAmoskeag Co. v. Head, 59 N. H. 332; Temperance Ass'n v. Giles, 33 
 N. J. L. 260; Lenney v. Pinley (Ga ), 45 S. E. 317. 
 
 40 1 Tayl. Ev. (10th ed.) § 317, 
 
 41 Jackson v. Smith, 7 Cow. 718; Hartman v. Evans, 38 W. Va. 669. See 
 Ross V. Ackerman, 46 N. Y. 210. Other contracts are inadmissible to 
 prove the terms of the contract in issue, Walworth v. Barron, 54 vt 677. 
 
158 THK LAW OF KVIDENCB. § 140. 
 
 paid their rent.*'' In another leading case where the action was for 
 goods sold and delivered, it was held irrelevant for the defendant 
 to show on cross-examination by way of defense that the plaintiff 
 had entered into contracts with other persons in a particular form 
 for the purpose of proving that the contract sued on was not as 
 represented by the plaintiff. In this case in discussing the ques- 
 tion the learned judge said: "Does the fact of a person having 
 once or many times, in his life done a particular act in a particular 
 way make it more probable that he has done the same thing in 
 the same way upon another and different occasion ? To admit such 
 speculative evidence would, I think, be fraught with great danger; 
 . . . If such evidence were held admissible it would be difficult 
 to say that the defendant might not, in any case where the question 
 was whether or not there had been a sale of goods on credit, call 
 witnesses to prove that the plaintiff had dealt with other persons 
 upon a certain credit; or in an action for an assault, that the plaint- 
 iff might not give evidence of former assaults committed by the de- 
 fendant upon other persons, or upon other persons of a particular 
 class, for the purpose of showing that he was a quarrelsome individ- 
 ual and therefore that it was highly probable that the particular 
 charge of assault was well-founded. The extent to which this sort of 
 thing might be carried is inconceivable." *° Testimony is sometimes 
 received, however, of other contracts between the same persons for 
 the purpose of proving the contract in question provided the differ- 
 ent contracts were so connected as to illustrate a general plan.** 
 
 « Carter v. Pryke, 1 Peake, 95. 
 ■ «Willes, J., In Hollingliam v. Head, 4 C. B. N. S. 391, 93 B. C. h. 388. 
 It Is Irrelevant to show that the drawer has made other notes in a cer- 
 tain way where the issue is the form of the note. Iron Mt. Bank v. Mur- 
 dock, 62 Mo. 70; or the quality of goods sold at the same time where the 
 issue is the good quality of those sold to the plaintiff, Holcombe v. Hew- 
 son, 2 Camp. 391 (see also Harris v. Howard, 56 Vt. 695; Hathaway v. 
 Tinkham, 148 Mass. 85; Campbell v. Russell, 139 Mass. 278); or a failure 
 of consideration in similar transaction with other parties when the de- 
 fense is on entire failure of consideration, Altman v. Fowler, 70 Mich. 
 57; or a similar promise to another similarly situated to plaintiff, Kelley 
 V. Schupp, 60 Wis. 76; or an assault by defendant upon another at a 
 different time and place. People v. Gibbs, 93 N. Y. 470; or an assault with 
 intent to commit rape by defendant against other women. Ogle v. Brooks, 
 87 Ind. 600, 44 Am. Rep. 778 ; or as to habit of lying, Com. v. Kennon, 130 
 Mass. 39; or other similar frauds committed by defendant at about the 
 same time, Jordon v. Osgood, 109 Mass. 457, 12 Am. Rep. 731. 
 
 <* Livingston v. Stevens, 122 Iowa, 62, 94 N. W. 925; Zane v. Onatlno, 
 
§ 141. BELEVANOT. 159 
 
 But contracts with other persons are rejected as irrelevant, except 
 in exceptional cases." In all such instances, although there may 
 be a similarity between the transaction offered in evidence and the 
 one to be proved, there is no such logical or necessary connection 
 that the existence of one tends to prove that of the other. There 
 may also have been such dissimilar facts or circumstances, not of- 
 fered in evidence, as to render the transaction relied on of no proba- 
 tive value. Other illustrations without limit might be given of 
 transactions of this character which are held irrelevant as evidence, 
 on the ground that they are "res inter alios acta"; but the cases 
 already cited sufficiently illustrate the principle and we wiU now 
 discuss certain qualifications of the rule, one of which is suggested 
 in the case last cited. 
 
 § 141(141). Facts apparently collateral may become relevant. — 
 Custom — Cause and effect. — ^Facts which are apparently collateral 
 may become relevant on proof that they are connected by some link 
 with the matter in issue.*' Mx. Taylor gives numerous instances of 
 this exception to the general rule. Thus, although in general the 
 customs of one manor are not relevant to prove the customs of an- 
 other, yet if it be proved that the customs of the two manors are 
 identical or that the one was derived from the other, then the cus- 
 toms of each wiU become evidence.*'' Other illustrations given by 
 Mr. Taylor show that apparently collateral facts have been received 
 to establish the ownership of land, when proof has been made to 
 show such an unity of character between the spot in dispute and 
 other parcels over which acts of ownership had been exercised as to 
 lead to a fair inference that both were subject to the same rights 
 and constituted in fact but parts of an entire property.** It may 
 
 139 Cal. 328, 73 Pac. 856; Huntsman v. Nichols, 116 Mass. 521; Wood v. 
 Finson, 91 Me. 280, 39 AU. 1007. 
 
 *B Roberts v. Dixon, 50 Kan. 436, 31 Pac. 1083; Gill v. Staylor, 97 Md. 
 665, 55 Atl. 398; Davis v. Kneale 97 Mich. 72, 56 N. W. 220; MoLoghlen 
 V. Bank, 139 N. Y. 514, 34 N. E. 1095; Thompson v. Bxum, 131 N. C. Ill, 
 42 S. B. 543; Jones v. Ellis, 68 Vt. 544, 35 Atl. 488; Kelly v. Schupp, 60 
 Wis. 76, 18 N. W. 725. 
 
 <6 See note, 41 Am. Dec. 58. 
 
 4TTayI. Et. (10th ed.) § 320; M. of Anglesey v. Ld. Hatherton, 10 M. 
 
 6 W. 235. 
 
 48Brisco V. Lomax, 8 Adol. & EH. 198, 3 Nev. & P. 308; Doe v. Kemp, 
 
 7 Bing. 332, 2 Bing. N. C. 102, 2 Scott, 9; Bryan v. Winwood, 1 Taunt. 
 208; Dendy v. Simpson, 18 C. B. 831, 86 E. C. L. 831; Jones, v. Williams, 
 2 M. & W. 326; Stanley v. White, 14 East, 332; R. v. Brightside Bierlow, 
 13 Q. B. 933; Peardon v. Underhill, 16 Q. B. 120; Donegall v. Temple- 
 
160 THE LAW OF EVIDENCE. § 141. 
 
 be stated generally that, "when 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 is concerned, is deemed to be relevant. ' ' *° 
 
 "We have seen that contracts of a party with strangers are gen- 
 erally held irrelevant as evidence of the contract alleged, but other 
 contracts and dealings betiveen the same parties are sometimes re- 
 ceived to prove their course of dealing or intention or relations, or 
 the probability or improbability, of entering into the contract 
 claimed.'" In determining whether certain effects have been pro- 
 duced by the causes alleged it has frequently been held that the 
 testimony need not be confined to the effect in the case upon trial 
 but that proof of the effect upon other property similarly situated 
 may be received. Thus in an action for nuisance proof was ad- 
 mitted that defendants' mill threw dust and soot on other houses. 
 This tended to show that the mill was capable of inflicting the in- 
 jury complained of. If the deposit was general in the immediate 
 neighborhood and large quantities were deposited on other build- 
 ings similarly situated it would be a just inference that the same 
 was true of the house in question.'^ On the same principle the ef- 
 fect of escaping gases,'^ of the operation of elevated railroads,"' 
 and of water,"* upon other premises under like conditions has been 
 received. But it will be found that the cases admitting testimony 
 of this character have all recognized the rule that substantial simi- 
 larity of conditions must first be shown. In other cases testimony 
 of this character has been excluded on the ground that it would in- 
 volve the jury in a mass of collateral inquiries only to confuse.'" 
 
 more, 9 Ir. Law Rep. N. S. 374, 406; In re Belfast Dock Act, I. R. 1 Eq. 
 128, 142; Taylor v. Parry, 1 Man. & G. 604, 615, 1 Scott N. R. 576. 
 49 Steph. Ev. art. 12, and cases cited. See §§« 147, 166, 167, 184, infra. 
 
 60 Livingston v. Stevens, 122 Iowa, 62, 94 N. W. 925; Mabry v. Cheadle, 
 109 Iowa, 277, 80 N. W. 312; Holmes v. Goldsmitli, 147 XJ. S. 150, 162; 
 Huntsman v. Nichols, 116 Mass. 521; Tibbets v. Sumner, 19 Pick. 166. 
 
 61 Cooper v. Randall, 59 111. 320. 
 
 62Kopplan V. Gaslight Co., 177 Mass. 15, 58 N. B. 183; Evans v. Key- 
 stone Gas Co., 148 N. Y. 112, 42 N. B. 513, 51 Am. St. Rep. 681; Barrick- 
 man v. Mahon Oil Co., 42 W. Va. 634, 32 S. E. 327. 
 
 Bs Doyle v. Railway Co., 128 N. Y. 488, 28 N. E. 495; Hine v. Railway 
 Co., 149 N. Y. 154, 43 N. E. 414. 
 
 64 Roberts v. Dover, 72 N. H. 147, 55 Atl. 895; Hawks v. Charlemont, 110 
 Mass. 110. 
 
 66 Hughes T. General Electric L. & P. Co. (Ky.), 54 S. W. 722; Metro- 
 politan W. S. E. R. Co. T. DifikJnson, 161 lU. 22. 43 N. E. 700; Louisville 
 
§ 142. EBLEVAKCY. 161 
 
 § 142 (142). Same — Knowledge — Intent. — The largest class of 
 cases in which facts apparently collateral to the issue are admitted 
 is that in which it becomes material to prove knowledge or intent. 
 When it becomes material to show the motive or intent which in- 
 spired an act, or the knowledge under which one has acted, it is 
 relevant for such purpose, under certain limitations, to prove other 
 similar acts which explain such motive or bring home to the party 
 the knowledge sought to be proved. Mr. Stephen thus more fully 
 states the rule: "When there is a question whether a person said 
 or did something, the fact that he said or did something of the 
 same sort on a different occasion may be proved, if it shows the ex- 
 istence on the occasion in question of any intention, 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 
 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. " ^^ It frequently happens that such motive or intent can 
 be shown in no other way, while a single act might leave the secret 
 motives of the party in doubt. Such act, in connection with others 
 of the same character, may afford decisive proof and remove all 
 uncertainty.^^ It has often been held in civil cases that, on the 
 question of intent to defraud, other similar acts or representations 
 at about the same time as the one in question are relevant.^* Thus 
 where it is claimed that purchases were fraudulently made by one 
 knowing himself to be insolvent and with the preconceived intent 
 not to pay, it is relevant to show other purchases on credit at or 
 
 Water Co. v. Wels (Ky.), 76 S. W. 356; The Western Insurance Co. v. 
 Tobin, 32 Ohio St. 77. 
 
 68 Steph. Bv. art. 11. On the general subject of this section see ex- 
 tended note, 44 Am. Rep. 299-308. 
 
 67 State V. Lapage, 57 N. H. 245, 24 Am. Rep. 69 ; Wood v. United States, 
 16 Peters, 342. 
 
 osMcKenny v. Dingley, 4 Greenl. (Me.) 172; Whittler v. Varney, 10 
 N. H. 291; Bradley v. Obear, 10 N. H. 477; Nicolay v. Mallery, 62 Minn. 
 119, 64 N. W. 108; Nelms v. Steiner, 113 Ala. 562, 22 So. 435; Menfey v. 
 Brace, 23 Barb. 561; Allison v. Matthlew, 3 Johns. 235; Olmsted v. Hotail- 
 ing, 1 Hill, 317; Com. v. Tuokerman, 10 Gray, 173; Porter v. Stone, 62 
 Iowa, 442; Bancroft v. Heringhi, 54 Cal. 120; Lockwood v. Doane, 107 
 111. 235; Cook v. Perry, 43 Mich. 623. As to proof of similar negotiations 
 with other persons, see Butler v. Watkins, 13 Wall. 456; Castle v. Bullard, 
 23 How. 172; Mudsill Co. v. Watrous, 61 Fed. Rep. 163. 
 
 11 
 
162 THE LAW OP EVIDENCE. § 143. 
 
 about the same time."' In an action to set aside a sale of land on 
 the ground that the vendee has falsely represented himself to be a 
 man of property, it is relevant to show similar representations to 
 others at about the same time to show a general scheme to amass 
 property by fraud.^" So on the issue of fraudulent intent, it is 
 relevant to show other voluntary conveyances, conveyances to rela- 
 tives or similar transactions with others tending to show a common 
 fraudulent scheme.*'^ When it is claimed that the acceptor of a bill 
 knows the name of the payee to be fictitious, it is relevant to show 
 that he has accepted other bills drawn in the same manner before 
 ilhey could have been transmitted to him by the payee, if the payee 
 had been a real person.'^ If it is material to show a motive for a 
 particular line of conduct and a purpose to defraud the plaintiff, 
 it may be relevant to show similar conduct toivard another at about 
 the same time.^' But in cases of this character the evidence of 
 other transactions is irrelevant, unless such collateral acts are shown 
 to be so connected with the matters in litigation as to make it ap- 
 parent that the party to be charged had a common purpose in 
 both."* From the necessity of the case, where evidence is circum- 
 stantial in its nature and offered to prove motive or intent, consid- 
 erable latitude must often be allowed, since the force and effect of 
 circumstantial facts usually and almost necessarily depend upon 
 their connection with each other.''^ 
 
 § 143 (143). Same — Proof of other crimes than the one in issue. 
 It is a familiar rule that it is improper on the trial of a defendant 
 for a crime to prove that he has committed other crimes, having no 
 connection with the one under investigation. Such other acts of 
 criminality or immorality are not legally rdevant and should not be 
 dragged in to prejudice the defendant or to create a probability of 
 
 69Hennequin v. Naylor, 24 N. Y. 139; Turner v. Luning, 105 Cal. 124. 
 eoMcKenney v. Dingley, 4 Greenl. (Me.) 172; Wilson v. Carpenter (Va.), 
 21 S. E. Rep. 243; French v. Ryan (Mich.), 62 N. W. Rep. 1016. 
 
 61 Taylor v. Robinson, 2 Allen, 562; Kelliher v. Sutton, 115 Iowa, 632, 
 89 N. W. 26; Foster v. Hall, 12 Pick. 89, 22 Am. Dec. 400; Brownell v. 
 Briggs, 173 Mass. 529, 54 N. E. 251; Piedmont Bank v. Hatcher, 94 Va. 
 229, 26 S. E. 505. 
 
 62 Gibson v. Hunter, 2 H. Black. 288. 
 
 63 Butler V. Walking, 13 Wall. 456. 
 
 64 Williams v. Bobbins, 15 Gray, 590; Jordan v. Osgood, 109 Mass. 457, 
 12 Am. Rep. 731; Hardy v. Moore, 62 Iowa, 65, 17 N. W. 200. 
 
 66 Moore v. United States, 150 XI. S. 57; Alexander v. United States, 138 
 U. S. 353; Castle v. Bullard, 23 How. 172; Hendrlckson v. People, 10 
 N. Y. 13. 
 
§ 143. RELEVANCY. 163 
 
 guilt. The rule is so elementary that it is only necessary to discuss 
 the exceptions which tend to illustrate the general rule."" In crimi- 
 nal cases the conduct of the prisoner on other occasions is some- 
 times relevant, where such conduct has no other connection with 
 the charge under inquiry than that it tends to throw light on what 
 were his motives and intentions in doing the act complained of. 
 Thus on trials for uttering counterfeit tills or coin and forged in- 
 struments, it has long been the practice to admit evidence of the 
 uttering of similar counterfeit money or forgeries to other per- 
 sons about the same time,'^ for while in a single case the uttering 
 of counterfeit money might be perfectly consistent with innocence, 
 the probabilities of guilty knowledge rapidly increase on proof of 
 a continued dealing in the unlawful money. On an accusation for 
 receiving stolen property, knowing it to have been stolen, evidence 
 that the accused has frequently received similar articles under like 
 circumstances from the same thief and stolen from the same person 
 or place, knowing that they were stolen, is relevant to show guilty 
 knowledge.'* The same rule has been applied in actions for con- 
 spiracy; for example, where the proof tended to show that the ac- 
 cused and a deputy collector had conspired to defraud the revenue 
 by entering goods at an undervaluation, evidence of other transac- 
 tions in furtherance of the common enterprise was held relevant."" 
 On the same principle in trials for embezzlement, other previous 
 acts of the defendant of a similar character so intimately connected 
 with the one under investigation as to show common criminal intent 
 are relevant.'" 
 
 «e Paulson v. State, 118 "Wis. 89, 94 N. W. 771; People v. McLaughlin, 
 150 N. Y. 365, 44 N. B. 1017. See valuable notes on the subject of this 
 secton, 44 Am. Rep. 299-308; 62 L. R. A. 193-357; 20 L. R. A. 609. When 
 defendant takes witness stand evidence of other crimes admissible to 
 affect his credibility. State v. Hummer, 72 N. J. L. 325, 62 Atl. 388. 
 
 67 Com. V. Stone, 4 Met. 43; Com. v. Bigelow, 8 Met. 235; People v. 
 Farrell, 30 Cal. 316. As to forgeries, People v. McGlade, 139 Cal. 66, 72 
 Pac. 600; but see State v. Prins, 113 Iowa, 72, 84 N. W. 980. 
 
 68 Copperman v. People, 56 N. Y. 591; Dunn's Case, 1 Moody Cr. C. 146; 
 Coleman v. People, 58 N. Y. 555; State v. Ward, 49 Conn. 429; Kilrow 
 V. Com., 89 Pa. St. 480; Schriedly v. State, 23 Ohio St. 130; Com. v. Jen- 
 kins, 10 Gray, 485. 
 
 68 Bottomley v. United States, 1 Story, 135. The same rule holds in con- 
 spiracy for fraudulent purchase of goods, Com. v. Eastman, 1 Gush. 189, 
 48 Am. Dec. 596, and note; Rex v. Roberts, 1 Camp. 399; Packer v. United 
 States, 106 Fed. 906. 
 
 70 Com. v. Tuckerman, 10 Gray, 173; Com. v. Shepard, 1 Allen, 575; 
 Rex V. Ellis, 6 Bam. & C. 145. 
 
164 THE LAW OP EVIDENCE. § 144 
 
 § 144 (143). Same, continued. — On the issue of adultery evi- 
 dence of other acts of adultery or of familiarity between the same 
 persons is relevant to show the adulterous disposition of the par- 
 ties at the time of the act of which complaint was made.''^ For 
 prosecutions of a rape or attempt to commit rape it is the prevail- 
 ing rule that evidence" of previous attempts by the accused to com- 
 mit the crime upon the same person is admissible, but evidence of 
 such attempts upon others is rejected.'^ On a charge of arson it is 
 relevant to show that the defendant had made other attempts to 
 set fire to the buildings in question, when such attempts were suffi- 
 ciently near to the time of the commission of the offense charged to 
 justify the inference that the defendant then had a settled purpose 
 to commit the offense.'^ There has been considerable discussion 
 whether, on the criminal charge of obtaining goods or money on 
 false pretenses, it is relevant to show that the defendant has made 
 other similar pretenses at another time and place. While it has 
 been held in some courts that such evidence is irrelevant,'* yet by 
 the weight of authority evidence of such other representations or 
 transactions is received, when they show a common motive or intent 
 and when the transactions are so connected in point of time and so 
 similar in their other relations, that the same motive may reasonably 
 be imputed to all.'^ So courts have received evidence of other of- 
 fenses, when so connected as to form part of one entire transaction 
 or a connected plan, in prosecutions for robbery, larceny, burglary, 
 extortion, abortion, gambling, keeping a lottery, and fraudulent vot- 
 ing.'" Applying the same principle the courts have often received 
 
 71 Com. V. Nichols, 114 Mass. 285, 19 Am. Rep. 346; In another county, 
 Thayer v. Thayer, 101 Mass. Ill, 100 Am. Dec. 110 and note; In another 
 state, Com. v. Merriam, 14 Pick. 518, 25 Am. Dec. 420, and note. 
 
 72 See cases collected in 1 Wigmore Ev. § 357. Although Mr. Wlgmore 
 urges that such evidence should be received, this view is not sustained 
 by the authorities. 
 
 73 Com. V. Bradford, 126 Mass. 42; Com. v. McCarthy, 119 Mass. 354; 
 R. V. Long, 6 Car. & P. 179 ; R. v. Cobden, 3 Fost. & F. 833. 
 
 ^^ Strong v. State, 86 Ind. 208, 44 Am. Rep. 292 and full note; Reg. v. 
 Holt, Bell's Cr. Cas. 280. See also Com. v. Jackson, 132 Mass. 16. 
 
 75 Mayer v. People, 80 N, Y. 364; People v. Shulman, 80 N. Y. 373; 
 Trogdon v. Com., 31 Gratt. (Va.) 862; Com. v. Eastman, 1 Gush. 189, 48 
 Am. Dec. 596 and note. See also Com. v. Jackson, 132 Mass. 16. 
 
 78 As to rottlery, R. y. Ellis, 6 Barn. & C. 145; R. v. Winkworth, 4 
 Car. & P. 444; Com. v. Scott, 123 Mass. 222, 25 Am. Rep. 81; State v. 
 Spray (Mo), 74 S. W. 846; Hope v. People, 83 N. Y. 419, 38 Am. Rep. 460; 
 larceny, R. v. Ellis, 6 B. & C. 145; R. v. Bleasdale, 2 C. & K. 765; People 
 
§ 145. RELEVANCY. 165 
 
 evidence of other similar offenses in the trial of indictments for 
 homicide or homicidal assaults, as tending to show a deliberate 
 plan or to repel the inference of accident." 
 
 § 145 (144). Same — Such evidence — How limited. It is to be 
 observed that in the many cases which have been cited on the sub- 
 ject under discussion, the familiar principle is recognized that evi- 
 dence tending to prove a similar but distinct offense, for the pur- 
 pose of raising an inference or presumption that the accused com- 
 mitted the particular act with which he is charged, is not relevant. 
 Such evidence is only allowed to show the knowledge or intent of 
 the party or to repel the inference of accident, and then only when 
 the proof shows such a connection between the different transac- 
 tions as raises a fair inference of a common motive in each." In 
 the course of a very elaborate discussion of this subject a learned 
 judge stated the law in the following propositions: "(1) It is not 
 permitted to the prosecution to attack the character of the prisoner, 
 unless he first put that in issue by offering evidence of his good 
 character. (2) It is not permitted to show the defendant's bad 
 character by showing particular acts. (3) It is not permitted to 
 show in the prisoner a tendency or disposition to commit the crime 
 with which he is charged. (4) It is not permitted to give in evi- 
 dence other crimes of the prisoner, unless they are so connected by 
 circumstances with the particular crime in issue as that the proof 
 of one fact with its circumstances has some bearing upon the issue 
 on trial other than such as is expressed in the foregoing three prop- 
 
 V. Pehrenbacli, 102 Cal. 394, 36 Pac. 678; Honsh v. People, 24 Colo. 262, 
 50 Pac. 1036; Baldwin v. State (Fla.), 35 So. 220; Bebersteln v. Terri- 
 tory, 8 Okl. 467, 58 Pac. 641; State v. Savage, 36 Ore. 191, 60 Pac. 610; 
 'burglary, Prazier v. State, 135 Ind. 38, 34 N. B. 817; Long v. State (Tex.), 
 47 S. W. 363; State v. Norris, 27 Wash. 453, 67 Pac. 983; State y. Connell, 
 12 Nev. 337; extortion, Glover v. People, 204 111. 170, 68 N. E. 464; State 
 V. Lewis, 96 Iowa, 286, 65 N. W. 295; Wallace v. State, 41 Fla. 547, 20 
 So. 713; abortion, Com. v. Corken, 136 Mass. 429; People v. Abbott, 116 
 Mich. 263, 74 N. W. 529; Lamb v. State, 66 Md. 285, 7 Atl. 399; People 
 V. Seaman, 107 Mich. 348, 65 N. W. 203, 61 Am. St. Rep. 326; gambling. 
 Com. v. Perry, 146 Mass. 209, 15 N. B. 484; Toll v. State, 40 Fla. 169, 23 
 So. 993; keeping a lottery, Clark v. State, 47 N. J. L. 556, 4 Atl. 327; MH- 
 ler v. Com. (Ky.), 13 Bush, 737; Thomas v. People, 59 111. 162; and 
 fraudulent voting. People v. Shea, 147 N. Y. 78, 41 N. E. 508. 
 
 fTZoldoske v. State, 82 Wis. 580; People v. Wilson, 117 Cal. 688, 49 
 Pac. 1054; State v. Merkley, 74 Iowa, 695, 39 N. W. Ill; State v. Roper, 
 141 Mo. 327, 42 S. W. 935; People v. Jones, 99 N. T. 667, 2 N. E. 49. 
 
 78 See cases already cited. 
 
166 THE LAW OF EVIDENCE. § 146. 
 
 ositions."^' In most of the eases cited the fact, apparently collat- 
 eral, occurred at about the same time as the principal fact in ques- 
 tion. But if the fact offered is otherwise relevant, it is immaterial 
 whether it occurred before or after the one under investigation. 
 And in some of the cases there had been an interval of several 
 months; each case, as to the application of this rule, must depend 
 largely upon its own circumstances and not unfrequently the limit 
 must rest largely in the discretion of the judge presiding at the 
 trial.'" The real test is that the evidence should be sufficiently sig- 
 nificant in character and sufficiently near in point of time to have 
 a- tendency to lead the guarded discretion of a reasonable and just 
 man to belief in the intent or motive sought to be proved.'"^ 
 
 § 146 (145). Collateral facts to show good faith — Knowledge, 
 threats, etc. — Most of the illustrations which have been given un- 
 der this head have been instances in which it was the object to prove 
 malice, intent, bad faith or guilty knowledge. But of course on 
 the same principle facts apparently collateral may be proved, if 
 they show good faith or prudence or the knowledge or information 
 on which a person has acted when such fact is in issue. Thus in 
 an action for fraudulent representations as to the solvency of a 
 person, the defendant may show, as bearing on his good faith, the 
 general repute as to the solvency of such person at the time the 
 representations were made.'*^ The same principle is often illus- 
 trated in actions for homicide where proof is allowed of threats 
 made by the deceased against the accused and communicated to him 
 for the purpose of showing that he had reasonable ground to fear 
 violence; and to show that he acted in self-defense.*' .Even when 
 the threats were not communicated to the deceased they may be 
 proved when self-defense is the defense, as tending to show that 
 the deceased was in fact the aggressor. "Evidence of communi- 
 cated threats is intended to shed light upon the mental attitude of 
 the prisoner towards the deceased when homicide occurred; un- 
 
 '9 State V. Lapage, 57 N. H. 245, 24 Am. Rep. 75. See note 62 L. R. A. 
 193-357. 
 
 80 Mayer v. People, 80 N. Y. 364, 373, note; Thayer v. Thayer, 101 Mass. 
 Ill, 100 Am. Dec. 110 and note. 
 
 SI Thayer v. Thayer, 101 Mass. Ill, 100 Am. Dec. 110 and note. See 
 also extended note, 44 Am. Rep. 299-308. 
 
 82 Skeen v. Bumpstead, 1 Hurl. & C. 358. 
 
 83 Camphell v. People, 16 111. 17, 61 Am. Dec. 49, and note, with full dis- 
 cussion of the subject; Gunter v. State, 111 Ala. 23, 20 So. 632, 56 Am. 
 St. Rep. 17. 
 
§ 147. HELEVANCT. 167 
 
 communicated threats are evidence of the mental attitude of the 
 deceased toward the prisoner. ' ' ** When the good faith of a party 
 is in issue, the proof is not confined to circumstances from which 
 such good faith maj be inferred, but the witness may state directly 
 that he acted in good faith." 
 
 § 147 (146) . Facts apparently collateral to repel the inference 
 of accident. — There is another class of cases, perhaps hardly dis- 
 tinct in principle from those already referred to, in which it be- 
 comes necessary to show that the act under inquiry was not acci- 
 dental; and in which it may be relevant to show that such act 
 formed a part of a series of similar occurrences in each of which 
 the person doing the act was concerned.*" Thus in actions of homi- 
 cide by poison or other secret mode it has been held admissible, in 
 order to repel the inference of accident, to prove other mysterious 
 or unexplained deaths in the same household.*' On an indictment 
 for malicious shooting, it has been held relevant to show that the 
 accused had twice shot at the prosecutor on the same day.** On 
 the charge of turning a house for the insurance money, it is rele- 
 vant to show that the accused had previously lived in several other 
 houses in which fires had occurred for which he had received the in- 
 surance money.*' On the trial of an indictment for keeping a 
 bawdy-house, it is relevant to show repeated arrests and convic- 
 tions of girls at the house of the accused on the charge of being 
 prostitutes.'" 
 
 84 State V. Evans, 33 W. Va. 426, 10 S. E. 792; People v. Arnold, 15 
 Cal. 481; Stokes v. People, 53 N. Y. 174; Roberts v. State, 68 Ala. 163; 
 Wilson V. State, 30 Pla. 242, 11 So 556; May v. State, 90 Ga, 793, 17 S. E. 
 108; Young v. Com. (Ky.), 42 S. W. 1141; Johnson v. State, 54 Miss. 430; 
 State V. Smith, 164 Mo. 567, 65 S. W. 270; State v. Tartar, 26 Ore. 38, 
 37 Pac. 53; State v. Gushing, 14 Wash. 527, 45 Pac. 145, 53 Am. St. Rep. 
 883; Wiggins v. People, 93 U. S. 465. 
 
 85 Snow V. Paine, 114 Mass. 520. See § 108, infra, and cases." 
 
 86 State V. Lapage, 57 N. H. 245, 249, 24 Am. Rep, 69, and note; People 
 v. Shulman, 80 N. Y. 373, note; Com. v. Bradford, 126 Mass. 42; Goersen 
 V. Com., 99 Pa. St. 388; Hope v. People, 83 N. Y. 418, 38 Am. Rep. 460; 
 Steph. Bv. art. 12. 
 
 87 Reg. V. Roden, 12 Cox Cr. C. 630, suffocation of children; Reg. v. 
 Cotton, 12 Cox Cr. C. 400, poison; R. v. Geering, 18 Law J; M. C. 215, 
 poison; Zoldoske v. State, 82 Wis. 580, poison. See § 143, infra. 
 
 88 R. v. Yoke, Russ. & R. Cr. C. 531. 
 8» R. V. Gray, 4 Fost. & F. 1102. 
 
 90 Harwood v. People, 26 N. Y. 190, 84 Am. Dec. 175, 
 
168 THE LAW OF EVIDENCE. § 148. 
 
 § 148 (147). Character — When relevant. — Under vrhat circum- 
 stances is the character of a litigant relevant as evidence? If 
 it is charged that a party has been guilty of an unlawful or of an 
 immoral act, the fact that he is known to have many times commit- 
 ted similar acts would no doubt be a circumstance which would in 
 the ordinary affairs of life weigh heavily against him. In popular 
 estimation few facts are more potent in determining the merits of 
 any claim than the character of the respective litigants; and yet 
 it is the general rule of law that in civil actions the character of 
 the parties is irrelevant. However just the inferences, which might 
 in many cases be drawn as to the merits of the controversy from 
 the character of the parties, such inferences are too vague and un- 
 reliable for that degree of certainty which should prevail in legal 
 tribunals."^ If in all cases of contract and tort such evidence were 
 to be received, the result would be more dependent on the popular- 
 ity of the party than on the merits. The testimony would consist 
 largely of matters of opinion and be greatly affected by bias and 
 partisanship and would cause intolerable delay and expense. In a 
 civil action for assault the proof was offered of defendant's char- 
 acter as a quarrelsome man. The court said, "The general charac- 
 ter is not in issue. The business of the court is to try the case, and 
 not the man; and a very bad man may have a very righteous 
 cause." '" For still more obvious reasons the character of the par- 
 ties is generally irrelevant in actions on contracts.*' We have al- 
 
 91 Morgan v. Barnhill, 118 Fed. 24; Adams v. Blseffer, 132 Mich. 100, 
 92 N. W. 772. See extended note, 20 L. R. A. 609^19, on the general sub- 
 ject of proof of character discussed in this and in the succeeding sections. 
 Character is not relevant in civil action for assault and battery, Pahey 
 v. Crathy, 63 Mich. 383, 6 Am. St. Rep, 305; Elliott v. Russell, 92 Ind. 526; 
 Thompson v. Church, 1 Root (Conn.) 312; Givins v. Bradley, 3 Bibb. (Ky.) 
 192, 6 Am. Dec. 646; Willis v. Forrest, 2 Duer (N. Y.) 310; Porter v. 
 Seller, 23 Pa. St. 424, 62 Am. Dec. 341; Barton v. Bruley, 119 Wis. 326; 
 nor in actions for trespass, Cummins v. Crawford, 88 111. 312, 30 Am. Rep. 
 558; or trover, Wright v. McKee, 37 Vt. 161; or negligence. Com. v. Wor- 
 cester, 3 Pick. 462; Boggs v. Lynch, 22 Mo. 503; or divorce, Ward v. Hera- 
 don, 5 Port. (Ala) 382; Humphrey v. Humphrey, 7 Conn. 116; Berdell 
 V. Berdell, 80 111. 604; Washburn v. Washburn, 5 N. H. 19& (contra, 
 O'Bryan v. O'Bryan, 13 Mo. 16, 53 Am. Dec. 128, and note) ; nor In an ac- 
 tion by physician for fees, Jeffries v. Harris, 3 Hawks (N. C.) 105; nor 
 Is evidence of plaintiff's had repute relevant in civil action for assault and 
 battery, Bruce v. Priest, 5 Allen, 100; Corning v. Corning, 6 N. Y. 97; 
 Drohn v. Brewer, 77 111. 280. 
 
 92 Thompson v. Church, 1 Root (Conn.) 312. 
 »3 Battles V. Landenslager, 84 Pa. St. 446. 
 
§ 149. RELEVANCY. 169 
 
 ready seen that in actions based on negligence it is irrelevant to 
 prove that the plaintiff or the defendant has on similar occasions 
 been careful or negligent; in like manner it is irrelevant to show- 
 that either party has hitherto had the reputation of being prudent 
 or negligent."* 
 
 § 149 (148). Qualifications of the rule— Libel and slander.— 
 Although in civil actions evidence of chEiracter is not admissible to 
 sustain the cause of action or defeat a recovery, there is a class of 
 actions in which, from the nature of the issue, evidence of charac- 
 ter is relevant as to the measure of damages. Perhaps this is most 
 frequently illustrated in actions for slander or libel. Lord BUen- 
 borough long since tersely stated the doctrine which still prevails: 
 "Certainly a person of disparaged fame is not entitled to the same 
 measure of damages with one whose character is unblemished, and 
 it is competent to show that by the evidence. ' ' "^ But in such cases 
 the evidence must be confined to the general reputation of the 
 plaintiff; and such reputation can not be shown by specific in- 
 stances of his misconduct. "Character grows out of special acts, 
 but is not proved by them. Indeed, special acts do very often in- 
 dicate frailties and vices that are altogether contrary to the char- 
 acter actually established; and sometimes the very frailties that 
 may be proved against a man may have been regarded by him in 
 so serious a light as to have produced great improvement of char- 
 acter. ' ' "" Thus where slanderous words charged a physician with a 
 want of skill, it was held inadmissible to show by way of mitigation 
 specific instances of malpractice."' 
 
 8*Tenney v. Tuttle, 1 Allen, 185; Hays v. Millar, 77 Pa. St. 238, 18 Am. 
 Rep. 445; Hall v. Snyder, 44 Mich. 318; Dunhorn v. Rackllff, 71 Me. 345. 
 
 95 V. Moore, 1 Maule & S. 284; Georgia v. Bond (Minn.), 72 N. W. 
 
 232; Sickra v. Small, 87 Me. 493, 47 Am. St. Rep. 344; Hearne v. De 
 Young, 132 Cal. 357, 64 Pac. 576; Howland v. Blake Co., 156 Mass. 543. 
 
 86 Frasier v. Pennsylvania Ry. Co., 38 Pa. St. 104, 80 Am. Dec. 467, 469 ; 
 Andrews v. Vanduzer, 11 Johns. 38; Dewlt v. Greenfield, 5 Ham. (Ohio) 
 225; Lamos v. Snell, 6 N. H. 413, 25 Am. Dec. 468; Wilson v. Noonan, 35 
 Wis. 321; Burke v. Miller, 6 Blackf. (Ind.) 155; Davis v. Hamilton, 88 
 Minn. 64, 92 N. W. 512; Thibault v. Sessions, 101 Mich. 279; Freeman v. 
 Price, 2 Bailey (S. C.) 115* Ridley v. Perry, 16 Me. 21; Matthews v. Davis, 
 4 Bibb. (Ky.) 173; Sanford v. Rowley, 93 Mich. 119; Parkhurst v. 
 Ketchum, 6 Allen, 406, 83 Am. Dec. 639; Jones v. Duckow, 87 Cal. 109; 
 Hanners v. McClelland, 74 Iowa, 318. 
 
 97 Swift V. Dickerman, 31 Conn. 285. In an action for slander other 
 instances of perjury cannot be submitted to the jury from which they 
 are to make an estimate of the plaintiff's character, Luther v. Skeen, 8 
 
170 THE LAW OF EVIDENCE. § 150. 
 
 § 150 (149). Same— Nature of proof— Pleadings— Rumors.— 
 
 Although the prevailing rule is as stated in the last section there 
 has been some conflict and it has sometimes been maintained that 
 this class of evidence should be rejected."* More difficulty has 
 arisen in determining whether the testimony should relate to the 
 general bad reputation or to the trait referred to in the slanderous 
 words. Although many of the eases use language which would 
 seem broad enough to open the door to proof of bad reputation it 
 would seem the safe rule to confine the testimony to reputation as 
 to the particular traits alluded to in the charge.'* Under the 
 former system of pleading proof of the reputation of the plaintiff 
 before and at the time of publication could be given in mitigation 
 under the general issue ; ^ and it has been held under the reformed 
 procedure that, while in general mitigating circumstances must be 
 specially pleaded, the bad reputation of the plaintiff may be 
 proved under the general denial. This on the theory that a 
 party must always be prepared to sustain his general reputa- 
 tion when it is in issue. ^ So it is presumed that he will always 
 be able to defend his character in reference to that matter wherein 
 he alleges it to have been wrongfully assailed." There is little 
 conflict of opinion as to whether, in mitigation of damages, the 
 defendant in such actions may prove other reports or rumors of 
 a nature to raise a belief in his mind that the statements were 
 true. On the one hand it is urged that the rumors themselves may 
 have originated in slander and that character could not be pro- 
 Jones (N. C.) 356. In an action for slander proof that others spoke the 
 same words, that the report was current, is not admissible in mitigation 
 of damages, Anthony v. Stephens, 1 Mo. 254, 13 Am. Dec. 497, and note. 
 
 08 Foot V. Tracy, 1 Johns. 46. 
 
 09 Post Pub. Co. V. Hallam, 59 Fed. 530; Meyer v. Meyer, 49 Pa. 210; 
 Anthony v. Stephens, 1 Mo. 254; Wilson v. Noonan, 35 Wis. 321; Powell 
 V. Harper, 5 C. & P. 590, 592. The contrary rule has been applied In 
 some jurisdictions, Steinman v. McWilliams, 6 Pa. St. 175; Thibault v. 
 Sessions, 101 Mich. 279, 59 N. W. 624 ; and some courts admit both classes 
 of testimony, Sickra v. Small, 87 Me. 493, 47 Am. St. Rep. 344; Clark v. 
 Brown, 116 Mass. 509; Lames v. Small, 6 N. H. 413; Builord v. M'Luny, 
 1 Nott & M. (S. C.) 268, 270; M'Nutt v. Youn^, 8 Leigh (Va.) 542. See 
 cases collected, 1 Wigmore, Ev. § 73. 
 
 1 Stone V. Varney; 7 Met. 86, 39 Am. Dec. 762; Hamer v. McFarlin, 4 
 Den. 509. 
 
 2 Wilson V. Noonan, 35 Wis. 321; B v. I , 22 Wis. 372, 94 Am. 
 
 Dec. 604, and note. 
 
 3 Clark V. Brown, 116 Mass. 504. 
 
§ 150. RELEVANOT. 171 
 
 tected if the defendant could defend himself or reduce the dam- 
 ages on the ground that he only gave more publicity and added the 
 weight of his character to a calumny originated by others. It is 
 also urged that the admission of such evidence renders it easy, by 
 collusion in procuring such rumors, to deprive the plaintiff of any 
 possible mode of redress. According to this view such evidence is 
 held irrelevant* On the other hand it is urged in those cases, which 
 allow such evidence, that one who only gives currency to a report 
 already in existence is not guilty of the same degree of malignity 
 and does not cause so great an injury as one who is the prime au- 
 thor of the scandal." Although perhaps by the weight of authority 
 this class of evidence is held inadmissible, there is certainly much 
 force in the reasoning of the cases which hold that the prevalence 
 of general rumors of the character of those uttered by the defend- 
 ant is relevant as bearing both on the question of punitory and 
 compensatory damages. This is especially true in those cases where 
 the reports or suspicions of the plaintiff's guilt have become so gen- 
 eral as to affect his general character; and a distinction should be 
 made between evidence of special rumors and evidence of general 
 belief and suspicion in the community that the plaintiff was guilty 
 of the charge made.' Where the defendant at the time of publish- 
 ing or repeating the charge, names the person or persons from 
 whom he has received the information, it has been held that he may 
 show in mitigation that the sources of his information were as 
 
 *Bodwell V. Swan, 3 Pick. 376; Anthony v. Stephens, 1 Mo. 254, 13 
 Am. Dec. 497, and note; Moberly v. Preston, 8 Mo. 462; Scott v. McKin- 
 nish, 15 Ala. 662; Dame v. Kenney, 25 N. H. 318; Pellet v. Sargent, 36 
 N. H. 496; Alderman v. French, 1 Pick. 1, 11 Am. Dec. 114, and note; 
 Peterson v. Mofgan, 116 Mass. 350; Morey v. Morning Journal, 123 N. Y. 
 207; Knight y. Poster, 39 N. H. 576; Young y. Bennett, 4 Scam. (111.) 43; 
 Sheham v. Collins, 20 111. 325; Wilson v. Pitch, 41 Cal. 363; Chamberlain 
 V Vance, 51 Cal. 75; Pease v. Shippen, 80 Pa. St. 513, 21 Am. Rep. 116; 
 Haskins v. Lumsden, 10 Wis. 359; Mahoney v. Belford, 132 Mass. 393; 
 Preston v. Prey, 91 Cal. 107, 27 Pac. 533; Wallace v. Homestead Co., 117 
 Iowa, 348, 90 N. W. 835; Newell on Defamation, § 70. 
 
 5 Calloway v. Middleton, 2 A. K. Marsh. (Ky.) 372, 12 Am. Dec. 409 ; 
 Cook V. Barkeley, 1 Pen. (N. J.) 169, 2 Am. Dec. 343; Treat v. Browning, 
 40 Conn. 408, 10 Am. Dec. 156, and note; Easterwood v. Quin, 2 Brev. 
 (S. C.) 64, 3 Am. Dec. 700; Case v. Marks, 20 Conn. 248; Morris v. Barker, 
 4 Har. (Del.) 520; Alderman v. French, 1 Pick. 1, 11 Am. Dec. 114, and 
 note. 
 
 6Bowen V. Hall, 20 Vt. 232; Gray v. Bllzroth (Ind. App.) 37 N. E. Rep. 
 551, and cases cited; Nicholson v. Merritt, 109 Ky. 369; Ledgerwood v. 
 BUiotf (Tex.), 51 S. W. 872. See cases cited above. 
 
172 THE LAW OF BVIDENCB. § 151. 
 
 stated.' But the defendant can not shpw for the purpose of rebut- 
 ting the charge of malice the prevalence of reports similar to those 
 repeated by him, unless he shows that such reports were known and 
 believed by him at the time of uttering the slanderous words.' 
 
 § 151 (150). Character — Actions for breach of promise of mar- 
 riage. — In actions for breach of promise of marriage the bad char- 
 acter of the plaintiff is clearly in issue. If the plaintiff has been 
 guilty of criminal intercourse with another, and such fact is un- 
 known to the defendant at the time of the contract, he may prove 
 it as a defense." The same is true if without his fault she becomes 
 unchaste after the promise;^" and if without the fault of the 'de- 
 fendant the plaintiff by her subsequent indelicate conduct injures 
 her reputation, this may be shown in mitigation of damages.^"^ So 
 if the plaintiff prior to the promise was a person of poor character, 
 this fact is relevant in mitigation of damages.''^ But if she has 
 been seduced first by the defendant under promise of marriage, he 
 cannot be heard to prove her bad character. The rule was thus 
 stated by a learned judge : " It appears from the declaration in this 
 case, that the plaintiff had been seduced by the defendant and that 
 pregnancy was the consequence of the seduction. This, of itself, 
 would degrade her in the estimation of the .public; and the defend- 
 ant wishes to avail himself of this degradation, a consequence of 
 his own misconduct, to avoid the plaintiff's action or to reduce the 
 sum she may recover in damages. No argument can show the ab- 
 
 'Heilman t. Shanklin, 60 Ind. 424; Young v. Slemons, Wright (Ohio) 
 124; Evans v. Smith, 5 T. B. Mon. (Ky.) 363, 17 Am. Dec. 74, and note. 
 Rex V. Burdett, 4 Barn. & Aid. 95; Mullett v. Hulton, 4 Esp. 248; Hunt 
 V. Algar, 6 Car. & P. 245; Story v. Early, 86 111. 461; Galloway v. Court- 
 nay, 10 Rich. (S. C.) 414; Bennett v. Bennett, 6 Car. & P. 588; Mills v. 
 Spencer, Holt N. P. 533; Williams v. Greenwade, 3 Dana (Ky.) 432; Ed- 
 wards V. Kan. City Times, 32 Fed. Rep. 813. 
 
 8 Hatfield v. Lasher, 81 N. Y. 246; Hastings v. Stetson, 130 Mass. 76; 
 Larrabee v. Minnesota Tribune Co., 36 Minn. 141. 
 
 8 Johnson v. Caulkins, 1 Johns. Cas. (N. Y.) 116, 1 Am. Dec. 102; Boyn- 
 ton V. Kellogg, 3 Mass. 189; Foster v. Hanchelt, 68 Vt. 319, 54 Am. St. 
 Rep. 886; note 40 Am. St. Rep. 172. 
 
 10 Palmer v. Andrews, 7 Wend. 142, citing Boynton v. Kellogg, 3 Mass. 
 189. 
 
 11 Palmer v. Andrews, 7 Wend. 142. 
 
 12 Palmer v. Andrews, 7 Wend. 142; Boynton v. Kellogg, 3 Mass. 189; 
 Clement v. Brown, 57 Minn. 314, 59 N. W. 198. When proof of character 
 is admissible, latitude as to time is allowed, Rathburn v. Ross, 46 Barb. 
 133. 
 
§ 152. KBLEVANCT. 173 
 
 surdity of sucn a proposal in a stronger light than the bare state- 
 ment of it."" 
 
 § 152 (151). Same — Seduction and criminal conversation. — Id 
 actions for seduction and criminal conversation the character of 
 the woman seduced is in issue. In such actions one element of dam- 
 age is the wounded sensibility of the injured party, and another 
 is the loss of society of the daughter or wife. Hence the damage is 
 manifestly less if the daughter or wife was a person of disparaged 
 fame before the wrong.^* In such cases evidence is admissible not 
 only of general bad character for chastity, but of speeific acts of 
 intercourse with other men,^^ even though such former acts of un- 
 chastity were not known to the defendant or to the public.^" In 
 actions of this kind it has been held that the bad character of the 
 husband or father, bringing the action, is relevant to the issue 
 when it affects him in his marital relations or in the character in 
 which he sues.^' But in other cases, in actions for seduction 
 brought by the father, such evidence has been rejected. In render- 
 ing a decision upon this subject a judge of the court of appeals of 
 New York used the following language: "But to justify evidence 
 of bad reputation in general or in a particular respect, it must first 
 be shown that the sensibilities of such a parent are less acute and 
 that the society and affections of a virtuous daughter are to him 
 less valuable than to other men. This cannot be affirmed in fact, 
 and there is no such presumption in law."^' 
 
 § 153 (152). Same — Actions for bastardy. — ^It has sometimes 
 been held relevant to prove the bad reputation of the prosecutrix 
 
 18 Boynton v. Kellogg, 3 Mass. 189. 
 
 14 Carder v. Forehand, 1 Mo. 704, 14 Am. Dec. 317, and note; White v. 
 Murtland, 71 111. 250, 22 Am. Rep. 100; Weaver v. Bachert, 2 Pa.' St. 52, 
 44 Am. Dec. 159, and note; Rea v. Tucker, 51 111. 110, 99 Am. Dec. 539. 
 See note, 25 Am. Deo. 422. 
 
 15 Love V. Masoner, 6 Baxt. (Tenn.) 24, 32 Am. Rep. 522; White v. 
 Murtland, 71 111. 250, 22 Am. Rep. 100; Smith v. Milburn, 17 Iowa, 30; 
 Torre v. Summers, 2 Nott & McC. (S. C.) 267, 10 Am. Dec. 597; Barter 
 V. Grill, 33 Barb. 283; Sanborn v. Neilson, 4 N. H. 501; Clouser v. Clapper, 
 59 Ind. 548; Conway v. Nicol, 34 Iowa, 533. 
 
 16 Love v. Masoner, 6 Baxt. (Tenn.) 24, 32 Am. Rep. 522; Verry v. Wat- 
 kins, 7 Car. & P. 308. 
 
 17 Harrison v. Price, 22 Ind. 165; Norton v. Warner, 9 Conn. 172. 
 
 18 Dain V. WyckofC, 18 N. Y. 45, 7 N. Y. 191, 72 Am. Dec. 493, and note; 
 Robinson v. Burton, 5 Har. (Del.) 355. So in an action for enticing away 
 husband or wife the bad character of the plaintiff may be shown In miti- 
 gation of damages. Hardwick v. Hardwick, 130 Iowa, 220, 106 N. W. 39. 
 
174 THE LAW OP EVIDENCE. § 154. 
 
 for chastity in actions for bastardy.^' But the better rule is that 
 such testimony is inadmissible. In such cases the very nature of 
 the proceeding is at least to some extent an admission of unehastity 
 on the part of the prosecutrix; and the testimony of witnesses- as to 
 her general character would only divert attention from the princi- 
 pal question to be tried. ^° For similar reasons it is irrelevant in 
 such actions to prove the reputation of the prosecutrix as a com- 
 mon prostitute. ^^ Of course, like that of any other witness, the 
 reputation of the prosecutrix for truth and veracity may be im- 
 peached; and evidence is relevant which tends to show that, at or 
 about the time the child was begotten, she had sexual intercourse 
 with some other person than the accused.''^ 
 
 § 154 (153). Character in actions for fraud. — The doctrine has 
 been announced in a few cases that, if a party is charged with fraud 
 or other act involving moral turpitude and the charge is based only 
 on circumstantial evidence, he may rebut the charge by proof of his 
 good character.^' Said Mr. Greenleaf : "And generally in actions 
 of tort, wherever the defendant is charged with fraud from mere 
 circumstances, evidence of his general good character is admissible 
 to repel it.'"'* But this view is contrary to the clear weight of au- 
 thority and does not seem to be based upon any recognized princi- 
 ple of the law of evidence. Instances are constantly arising, both 
 in actions in tort and contract, where the motives of parties are 
 called in question ; but this fact does not, in any legal sense, render 
 
 19 Short V. State, 4 Harr. (Del.) 568; Sword v. Nestor, 3 Dana (Ky.) 452. 
 
 zoRawles V. State, 56 Ind. 433; Spevis v. Forrest, 15 Vt. 435; Com. v. 
 Moore, 3 Pick. 194; Olson v. Peterson, 33 Neb. 358; BooKhout v. The State, 
 G6 Wis. 415, 28 N. W. 179. 
 
 21 Morse V. Pineo, 4 Vt. 281; Sidelinger v. BuoWln, 64 Me. 371; Duffrles 
 V. State, 7 Wis. 672; Com. v. Churchill, 11 Met. 538, 45 Am. Dec, 229, and 
 note. 
 
 22 State V. Reed, 45 Iowa, 469; Falls v. Overseers, 3 Munf. (Va.) 495; 
 Walker v. State, 6 Blackf. (Ind.) 1; Good wine v. State, 5 Ind. App. 63; 
 Bookhout v. The State, 66 Wis. 415, 28 N. W. 179; State v. Seevers, 108 
 Iowa, 738, 78 N. W. 755, general bad character but not specific acts. In 
 actions for indecent assault, the inquiry cannot extend beyond acts of 
 lewdness which quite necessarily evidence looseness In sexual morals. 
 Barton v. Bruley, 119 Wis. 326, 96 N. W. 815; Gore v. Curtis, 81 Me. 403, 
 17 Atl. 314, 10 Am. St. Rep. 265. 
 
 23 Henry v. Brown, 2 Heisk. (Tenn) 213; State v. Beebe, 17 Minn. 241; 
 Townsend v. Graves, 3 Paige, 455; Walker v. Stephenson, 3 Esp. 284; 
 Ruan v. Perry, 3 Calnes (N. Y.) 120 (overruled In later cases). 
 
 2< Greenl. Ev. S 54. 
 
§ 155. EBLEVANCY. 175 
 
 the general character of such parties relevant to the issue. It is a 
 far safer rule that, in conformity to general rules of evidence in 
 civil cases, each transaction should be ascertained by its own cir- 
 cumstances and not by the character of the parties.^" 
 
 § 155 (154). Same, continued. — The view stated in the last sec- 
 tion is that which now prevails and many illustrations might be 
 given in which such evidence has been held inadmissible, although 
 fraud or other misconduct is imputed.^" In many of the cases 
 below cited the evidence was circumstantial in its nature and it is 
 evident that in many of them the charges of fraud or other miscon- 
 duct were so serious, if believed, as to seriously affect the reputa- 
 tion of the litigants. To some extent the reputation of parties is 
 liable to be affected by any litigation; but this is not ground on 
 which evidence of character is held material in such actions as 
 slander, seduction and others which have already been referred to. 
 
 2s Rosenagel v. Handl, 157 Pa. St. 107, 25 Atl. 42. See cases cited next 
 section. 
 
 20 This evidence has been held irrelevant in actions for roMery, Morris 
 V. Hazelwood, 1 Bush (Ky.) 208; to set aside the prolate of a will on the 
 ground o£ fraud. Potter v. Webb, 6 Greenl. (Me.) 14; on an insurance 
 policy, when the defense was overvaluation. Fowler v. Aetna Ins. Co., 6 
 Cow. 673, 16 Am. Dec. 460; for fraudulent burning of the property, Mun- 
 kers V. Insurance Co., 30 Ore. 211, 46 Pac. 850; Schmidt .v. New York Ins. 
 Co., 1 Gray, 529; for false representation as to the solvency of another. 
 Gough V. St. John, 16 Wend. 646; for incurring a debt or other obliga- 
 tion, Dudley V. McCluer, 65 Mo. 241, 27 Am. Rep. 273; for maliciously 
 hurning property, Barton v. Thompson, 56 Iowa, 571, 41 Am. Rep. 119, 
 and note; Gebhart v. Burkett, 57 Ind. 378, 26 Am. St. Rep. 61; for assault 
 and battery, Markey v. Angell, 22 R. I. 343, 47 Atl. 882; Anthony v. 
 Grand, 101 Cal. 235, 35 Pac. 859; Day y. Ross, 154 Mass. 14, 27 N. E. 676; 
 for emhezzlement, Adams v. Elsetfer, 132 Mich. 100, 92 N. W. 772; White 
 v. McKee, 37 Vt. 161; for malicious mischief, Thayer v. Boyle, 30 Me. 475; 
 for fraudulent conveyance of property. Van Sickle v. Shenk, 150 Ind. 413, 
 50 N. E. 381; for criminal oonversation, Pratt v. Andrews, 4 N. Y. 493, 
 for false arrest and imprisonment, Geary v. Stevenson, 169 Mass. 23, 47 
 N. E. 508; for malicious prosecution, Rogers v. Lamb, 3 Blackf. (Ind ) 
 155; Baker v. Hopkins, 1 A. K. Marsh. (Ky.) 587; for divorce on the 
 ground of adultery, Humphrey v. Humphrey, 7 Conn. 116; for fraudulent 
 appropriation of property, Smets v. Plunket, 1 Strob. (S. C.) 372, and in 
 an action on contract for labor, Munroe v. Godkin, 111 Mich. 183, 69 N. W. 
 244. Contrary view: Hein v. Holdridge, 78 Minn. 468, 81 N. W. 522; Wa.v- 
 ner v. Warner, 69 N. H. 137, 44 Atl. 908; Continental Bank v. First Na- 
 tional Bank, 108 Tenn. 374, 68 S. W. 497; Hilker v. Hilker, 153 Ind. 425, 
 55 N. B. 811, where wife's character for chastity is attacked she may 
 give evidence of general reputation. 
 
176 THE LAW OP EVIDENCE. § 157. 
 
 Other objections to the class of evidence under discussion were 
 well stated in a South Carolina case : "If in every case where an act 
 of dishonesty is imputed the imputation may be met by such evi- 
 dence, then there are few eases into which such evidence might not 
 be introduced; trials would be insupportably tedious and the re- 
 sult of a trial would as often depend upon the popularity of a 
 party as upon the merits of his ease."^' It may be added that 
 since the general adoption of the rule allowing witnesses to testify 
 fully in their own behalf, there is even less reason than formerly 
 for admitting testimony of this class. 
 
 § 156 (154), Same — Homicide. — In actions for homicide or as- 
 sault where the issue of self defense was raised testimony has been 
 sometimes received as to the quarrelsome or turbulent or violent 
 character of the deceased. Such evidence may be admitted when 
 it is shown that the accused had knowledge of the fact, when it 
 rests in doubt as to who was the aggressor. Under these circum- 
 stances such evidence throws light upon the intention of the ac- 
 cused, the reasonableness of his acts and may tend to establish his 
 innocence or the degree of built."' 
 
 § 157 (155). Character — Actions for malicious prosecution.— 
 In actions for malicious prosecution it is relevant for the defend- 
 ant to show that he had probable cause for the prosecution he 
 commenced, and also that he acted without malice. As bearing on 
 both of these questions and also in mitigation of damages, he may 
 show the general bad reputation of the plaintiff."" And although 
 the prevalence of reports that the plaintiff in the action for mali- 
 cious prosecution had committed the offense charged would not 
 alone justify a proceeding against him, yet the existence of such re- 
 ports in the community and the fact that they were known and be- 
 lieved by the defendant may be shown as tending to prove his pru- 
 
 2' Smets V. Plunket, 1 Strob. (S. C.) 372. 
 
 28 Fields V. State, 47 Ala. 603; State v. Mclver, 125 N. C. .645, 34 S. B. 
 438; State v. Spendlove, 44 Kan. 1, 24 Pac. 67; Com. v. Hoskins (Ky.) 35 
 S. W. 284; People v. Druse, 103 N. Y. 224, 8 N. E. 733; Copeland v. State 
 (Tenn.), 7 Humph. 479. 
 
 28 Roderiguez v. Tadmire, 2 Esp. 721; Bacon r. Towns, 4 Cush. 217; 
 Barron v. Mason, 31 Vt. 189; Gregory v. Chambers, 78 Mo. 294; Hiersche 
 V. Scott (Neb.), 95 N. W. 494; Drummond v. Henderson, 62 Ohio, 136, 56 
 N. E. 650. But in this last case it is doubted whether such evidence is 
 relevant to the question of probable cause. See also Eschbacli T. Hurtt, 
 47 Md. 61. 
 
§ 158. EELEVANCY. 177 
 
 dence and good faith.'" But on obvious grounds the defendant 
 cannot in such cases prove oiher specific offenses on the part of the 
 plaintiff.^^ There is high authority for the view that in actions for 
 malicious prosecution of a criminal action the plaintiff may in the 
 first instance prove his own good character. This is an exception 
 to the general rule that in civil cases proof of good character can- 
 not be received until it is attacked ; and such testimony is deeemed 
 relevant in such cases as bearing directly on the issue of probable 
 eause.^* 
 
 § 158 (156), Proof of good character. — Upon the principles al- 
 ready stated, it is evident that in civil actions it is generally irrele- 
 vant to show the good character of either party. In most of the cases 
 where the proof of the bad character of the plaintiff is allowed, it 
 is only in mitigation of damages. There is no such ground for ad- 
 mitting testimony of good character. It has indeed been sometimes 
 held that when the character is attacked iy cross-examination, im- 
 puting misconduct or by proof of specific acts of misconduct, his 
 good character becomes involved and may be shown as part of the 
 main case or defense.'' The doctrine has even been maintained that 
 in actions for slander and libel the plaintiff's character is put in 
 issue by the very nature of the proceeding; that the plaintiff need 
 not await the movements of the defendant, but may in the first in- 
 stance prove his good character whether it is attacked or not ; '* but 
 by the weight of authority and the better reasoning, such evidence 
 
 30 Pullen v. Glidden, 68 Me. 559; Barron v. Mason, 31 Vt. 189. 
 
 31 Tillotson V. Warner, 3 Gray, 574; Sutton v. McConrell, 46 "Wis. 269. 
 32McIntire v. Levering, 148 Mass. 546; Woodworth v. Mills, 61 Wis. 44; 
 
 Blizzard v. Hays, 46 Ind. 166; Israel v. Brooks, 23 111. 575; Miller v. 
 Brown, 3 Mo. 127. 
 
 33Sheehey v. Cokley, 43 Iowa, 183, 22 Am. Rep. 236; Williams v. Haig, 
 3 Rich. L. 362, 45 Am. Dec. 774; Bennett v. Hyde, 6 Conn. 24; Adams 
 V. Lawson, 17 Gratt. (Va.) 258, 94 Am. Dec. 455, and note; Shroyer v. Mil- 
 ler, 3 W. Va. 158; Sample v. Wynn, Busb. (N. C.) 319; Williams v. Green- 
 wade, 3 Dana (Ky.) 432; King v. Waring,, 5 Esp. 13; Rogers v. Clifton, 
 3 Bos. & P. 583; Burton v. March, 6 Jones (N. C.) 409. See also note, 
 14 Am. St. Rep. 480. As to good character in malicious prosecution, see 
 last section. 
 
 34 Earl of Leicester v. Walter, 2 Camp. 251; Lamed v. Buffington, 3 
 Mass. 546, 3 Am. Dec. 185; Stone v. Varney, 7 Met. 86, 39 Am. Dec. 762 
 and note; Burnett v. Simpkins, 24 111. 264; Miller v. Miller, 3 W. Va. 161; 
 Adams v. Lawson, 17 Gratt. (Va.) 250, 94 Am. Dec. 455 and note; Williams 
 V. Haig, 3 Rich. L. (S. C.) 362, 45 Am. Dec. 774 and note. See note, 13 
 
 12 
 
178 THE LAW OF EVIDENCE. § 159. 
 
 should not be received unless the reputation has been attacked by 
 general evidence of bad character in those actions where character 
 is in issue. The lavif presumes the character of a party to be good 
 until the contrary is shown and he can safely rest on that presump- 
 tion.'" 
 
 § 159 (157). Proof of financial standing — Exemplary dam- 
 ages. — We have seen that in exceptional cases character becomes 
 relevant in civil actions; and that generally, when admitted, such 
 evidence is received to affect the measure of damages. Under or- 
 dinary circumstances the financial situation and standing of the 
 parties are wholly irrelevant. The amount of damages depends 
 upon the terms of the contract or, in action of tort, upon other cir- 
 cumstances wholly independent of the wealth or poverty of the 
 parties ; " but it is. well settled that there is a class of cases in 
 which the wealth of the defendant becomes a material fact, which 
 may be proved on the question of the amount of damages. For ex- 
 ample, in those cases where exemplary or punitory damages are al- 
 lowed, this testimony becomes relevant on the ground that a ver- 
 dict, which might sufficiently punish one of limited means, would 
 seem insignificant to a defendant having a large fortune. ^^ On this 
 ground proof of the financial standing of the defendant has been 
 
 Am. Dec. 499. Contra, Rhodes v. Ijames, 7 Ala. 574, 42 Am. Dec. 604. 
 See also Houghtaling v. Kilderhouse, 1 N. T. 530. 
 
 35 Cornwall v. Rictiardson, Ryan & M. 305; Matthews v. Huntly, 9 N. H 
 146; Stow V. Converse, 3 Conn. 325, 8 Am. Dec. 189; Miles v. Vanhorn, 17 
 Ind. 245, 79 Am. Dec. 477; Houghtaling v. Kilderhouse, 2 Barb, 149, 1 N. Y. 
 530; Gough v. St. John, 16 Wend. 646; Lamagdelalne v. Tremblay, 162 
 Mass. 339; Anderson v. Long, 10 Serg. & R. (Pa.) 55; Hitchcock v Moore, 
 70 Mich. 112, 14 Am. St. Rep. 474, and cases there cited in the decision 
 and in the note; Poler v. Poler, 37 Wash. 400, 73 Pac. 372; Howland v. 
 Blake Co., 156 Mass. 543. 
 
 so Myers v. Malcom, 6 Hill, 292, 41 Am. Dec. 744, and nots; Kn ffen v. 
 McConnell, 30 N. Y. 285; Hutchins v. Hutchins, 98 N. Y. 56; Brown v. 
 Klock, 117 N, Y. 340, 22 N. E. 944; Marshall v. Mitchell (S. C), 38 S. E. 
 158; Harris v. Tyson, 24 Pa. .St. 347, 64 Am. Dec. 661. On the general 
 subject of this section, see note 67 Am. Dec 562-568. 
 
 s'' See the cases cited below. But a different rule prevails in Iowa, 
 Hunt V. Chicago & N. W. Ry. Co., 26 Iowa, 364; Guengerech v. Smith, 34 
 Iowa, 348. To the point that the defendant can offer proof on the same 
 subject, though the plaintiff does not, see Johnson v. Smith, 64 Me. 553. 
 But where there are several defendants and a verdict of a lump sum 
 against all is to be rendered, evidence of the wealth of one is not admis- 
 sible, Washington Gaslight Co. v. Lamsden, 172 XJ. S. 534. 
 
§ 160. RELEVANCY. 179 
 
 received in actions for slander and libel," assault and battery,^" 
 malicious prosecution,*" seduction,** criminal conversation,*" negli- 
 gence and trespass.*' 
 
 § 160 (158). Same — Compensatory damages. — Evidence of the 
 wealth or standing of the defendant is sometimes relevant for the 
 purpose of determining compensatory damages. This is for the 
 reason that the financial standing of the defendant is one of the 
 elements contributing to his influence in society; and there are in- 
 juries which are aggravated or increased by the fact that the per- 
 sons responsible for them are persons of rank or influence. ' ' So far 
 as the cause of action rests upon an injury to the character or an 
 insult to the person, compensatory damages may be increased by 
 proof of the wealth of the defendant. This is upon the ground that 
 wealth is an element which goes to make up his rank and influence 
 in society, and thereby renders the injury or insult resulting from 
 wrongful acts the greater."** On this principle evidence of the 
 financial standing of the defendant has been received in actions for 
 seduction.*^ And in the case of slander or libel it is very clear that 
 
 38 Hayner v. Cowden, 27 Ohio St. 292, 22 Am. Rep. 303; Barkley v. Cope- 
 land, 74 Cal. 1, 5 Am. St. Rep. 413; McAlmont v. McClelland, 14 Serg. & 
 R. (Pa.) 362; Fry v. Bennett, 4 Duer (N. Y.) 247; Buckley v. Knapp, 48 
 Mo. 152; Burckhalter v. Coward, 16 S. C. 435; Lamed v. Buffington, 3 Mass. 
 546, 3 Am. Dec. 185; Kidder t. Bacon, 74 Vt. 263, 52 Atl. 322. Contra, 
 Palmer v. Haskins, 28 Barb. 90. 
 
 39Rowe V. Moses, 9 Rich. L. (S. C.) 423, 67 Am. Dec. 560, and note; 
 Brown v. Evans, 8 Sawy. (U. S.) 488, 17 Fed. Rep. 912; Jones v. Jones, 71 
 111. 562; Johnson v. Smith, 64 Me. 553; Gaither v. Blowers, 11 Md. 530; 
 Sloan V. Edwards, 61 Md. 89; Bell y. Morrison, 27 Miss. 68; Harris v. 
 Marco, 16 S. C. 575; Brown v. Swineford, 44 Wis. 282, 28 Am. Rep. 582. 
 
 40Whitefleld v. Westbrook, 40 Miss. 311; Winn v. Peckham, 42 Wis. 
 493; Bump v. Betts, 23 Wend. 85. 
 
 4iRea v. Tucker, 51 111. 110, 99 Am. Dec. 539, and note; McAulay v. 
 Birkhead, 13 Ired. (N. C.) 28, 55 Am. Dec. 427; Herring v. Jester, 2 Houst. 
 (Del.) 66; Robinson v. Burton, 5 Harr. (Del.) 335; Clem v. Holmes, 33 
 Gratt. (Va.) 722, 36 Am. Rep. 793; Grable v. Margrave, 3 Scam. (111.) 
 372, 38 Am, Dec. 88; Lavery v. Crooke, 52 Wis. 612; Lee v. Hammond, 
 114 Wis. 550. Contra, Daln v. Wycoff, 7 N. Y. 191. 
 
 42 Rea V. Tucker, 51 III. 110, 99 Am. Dec. 539, and note; Peters v. Lake, 
 66 III. 206, 16 Am. Rep. 593. 
 
 isMcBride v. McLaughlin, 5 Watts (Pa.) 375, malicious prosecution; 
 Meibus v. Dodge, 38 Wis. 300, 20 Am. Rep. 6, injury caused by a dog. 
 
 "Johnson v. Smith, 64 Me. 555. 
 
 "Grable v. Margrave, 3 Scam. (111.) 372, 38 Am. Dec. 88; Wilson v. 
 
180 THE LAW OF EVIDENCE. § 161. 
 
 the degree of the injury to the plaintiff may largely depend upon 
 the financial and social standing of the defendant.^* In actions for 
 breach of promise of marriage the participation in the home and 
 property of the defendant is among the things of which the plaint- 
 iff by the breach of contract is deprived ; hence evidence of the de- 
 fendant 's financial standing is admissible as affording some stand- 
 ard by which to estimate the plaintiff's disappointment and the ex- 
 tent of the loss.*' 
 
 § 161 (159). Same — Financial standing of plaintiff. — In those 
 actions in which only compensatory damages are allowed, the finan- 
 cial standing of the plaintiff is irrelevant. For example, evidence 
 cannot be received in an action for negligence against a railroad 
 company that the plaintiff is of limited means, and that since the in- 
 jury he has not been able to support his family. The evidence should 
 be confined to the plaintiff and his capacity for business and to the 
 nature of his injuries and the probability of recovery. The damages 
 in such cases are not at all dependent upon his condition as to 
 wealth or poverty.*^ But in those actions where exemplary dam- 
 ages are awarded proof is allowed not only of the condition in life 
 and of the circumstances of the defendant, but also of those of the 
 plaintiff. Although in some of the decisions asserting this rule the 
 expressions of opinion are obiter and in others the reasons assigned 
 are not very satisfactory, yet the doctrine is supported by much 
 
 Shepler, 86Jnd. 275; McAulay v. Birkhead, 13 Ired. (N. C.) 28, 55 Am. Dec. 
 427; La very v. Crooke, 52 Wis. 612, 38 Am. Rep. 768. 
 
 46 Bennett v. Hyde, 6 Conn. 24; Hosley v. Brooks, 20 111. 115; Humphries 
 V. Parker, 52 Me. 507; Stanwood v. Whitmore, 63 Me. 209; Shute v. Bar- 
 rett, 7 Pick. 82; Lewis v. Chapman, 19 Barb. 252; Botsford v. Chase, 108 
 Mich. 432, 66 N. W. 325; Taylor v. Pullen, 152 Mo. 434, 53 S. W. 1086; 
 Fowler V. Wallace, 131 Ind. 347, 31 N. B. 53. See note, 67 Am. Dec. 565. 
 Contra, Guengerech v. Smith, 34 Iowa, 348; Young v. Kuhn, 71 Tex. 645, 
 9 S. W. 860; Enos v. Enos, 135 N. Y. 609, 32 N. E. 123. Such evidence is 
 inadmissible as against a corporation, Randall v. Evening News Ass'n, 
 47 Mich. 136, 56 N. W. 361. 
 
 47 James v. Biddington, 6 Car. & P. 590; Reed v. Clark, 47 Cal. 194; 
 I-Iunter v. Hatfield, 68 Ind. 416; Lawrence v. Cook, 56 Me. 187, 96 Am. 
 Dec. 443; Miller v. Rosier, 31 Mich. 475; Bennett v. Beam, 42 Mich. 346, 
 36 Am. Rep. 442, and note; Allen v. Baker, 86 N. C. 91, 41 Am. Rep. 444; 
 Horam v. Humphreys, Lofft, 80 ; Holloway v. Griffith, 32 Iowa, 409, 7 Am. 
 Rep. 208; Royal v. Smith, 40 Iowa, 615. See extended review of the au- 
 thorities in 63 Am. Dec. 545-47. 
 
 48 Pennsylvania Ry. Co. v. Roy, 102 U. S. 451; Pitts Ry. Co. v. Powers, 
 74 111. 343; Chicago v. Brennan, 65 111. 160; Missouri Pao. Ry. Co. v. Lyde, 
 57 Tex. 505; Dreiss v. Frederick, 70 Tex. 70; Barbour v. Horn, 48 Ala. 566. 
 
§ 162. EELEVANCT. 181 
 
 authority.*' Thus evidence of the circumstances and financial 
 standing and rank in life of the plaintiff has been allowed in ac- 
 tions for assault and hattery,^" slander and libel,^^ and malicious 
 prosecution.^^ In actions for seduction the rule is so far extended 
 that proof may be given not only of the standing and rank of the 
 plaintiff and of the person seduced, but as to the rank and stand- 
 ing of her family in the conununity.^^ But in an Iowa case, where 
 the plaintiff in the court below was permitted to show that she was 
 a poor girl and had no means of support as well as other similar 
 facts, the judgment was reversed."* In actions of this nature it 
 has been held admissible for the defendant in the first instance to 
 offer proof of his financial condition to reduce damages on the 
 ground that his pecuniary standing is a material element."^" The 
 financial condition of the plaintiff may be shown in actions for 
 breach of contract of marriage. In announcing this rule Judge 
 Cooley used the following language: "When the suit is for the loss 
 of a marriage and of an expected home, the fact that the plaintiff is 
 without the means to provide an independent home for herself is 
 not entirely unimportant. It may be supposed to be one of the 
 facts which both parties had in mind in making their arrange- 
 ments ; and it is not improper that the jury should know of it also 
 and take it into account in making up their verdict." °° 
 
 § 162 (160) . Mode of proving financial standing. — The mode of 
 proving the wealth of defendant for the purpose of increasing dam- 
 's See cases cited below. 
 
 60 Sloan V. Edwards, 61 Md. 69; Gaithers v. Blowers, 11 Md. 536; Coch- 
 ran V. Armor, 16 111. 316; McNamara v. King, 2 Gilm. (111.) 432; Eltring- 
 ham V. Earkard, 67 Miss. 488, 7 So. 346, 19 Am. St. Rep. 319. See § 159, 
 supra. 
 
 BiMcAlmont v. McClelland, 14 Serg. & R. (Pa.) 363; Clements v. Ma- 
 honey, 55 Mo. 352; Shute v. Barrett, 7 Pick. 82; Larned v. Bufflngton, 3 
 Mass. 546. See § 159, supra. 
 
 62 Bump V. Betts, 23 Wend. 85. See § 159, supra. 
 
 63 Wilson V. Sproul, 3 Pa. 49; Parker v. Monteith, 7 Ore. 277; McAulay 
 V. Birkhead, 13 Ired. (N. C.) 28, 55 Am. Dec. 427, and note; Thompson v. 
 Clendenning, 1 Head (Tenn.) 287. But not of the individuals in the fam- 
 ily, Thompson v. Clendenning, 1 Head (Tenn.) 287; general good charac- 
 ter of the plaintiff and family are not admissible in absence of impeach- 
 ing testimony on the part of the defense, Haynes v. Sinclair, 23 Vt. 108. 
 
 64 West V. Druff, 55 Iowa, 335. 
 
 56 Holliday v. Griffith, 32 Iowa, 409. Contra, Wilbur v. Johnson, 58 Mo. 
 600. 
 ooVanderpool v. Richardson, 62 Mich. 336. 
 
182 THE LAW OF EVIDENCE. § 163. 
 
 ages depends upon the question whether the damages to be allowed 
 are compensatory or exemplary in their nature. In the former case 
 the damages are enhanced by the reputation of the defendant as 
 to his circumstances and standing; and therefore the evidence 
 should relate to his reputed wealth and standing.^^ In the other 
 case the inquiry should be as to his actual pecuniary ability, hence 
 the amount of hia property should be stated by persons having 
 knowledge of the subject.^* It need hardly be added that counsel 
 have no right to comment in their argument upon the wealth or 
 poverty of a party in the absence of any evidence on the subject.''" 
 § 163 (161). Relevancy of facts apparently collateral — Negli- 
 gence cases. — In actions for negligence the question often arises 
 as to what extent facts apparently collateral to the issue may be re- 
 ceived. For example in actions for personal injury on a highway 
 it may become relevant to show, for the purpose of proving notice 
 on the part of the municipality, that other persons have received 
 injuries at the same place.^" There is a class of decisions in which 
 it is held that in suits for injuries caused by defective streets it is 
 relevant for the plaintiff to prove other similar accidents for the 
 purpose of showing the dangerous character of the street."^ Al- 
 though this view seems to be sustained by numerous eases, it is open 
 
 57 Stan wood v. Whitmore, 63 Me. 209; Johnson v. Smith, 64 Me. 555; 
 Knlffen v. McConnell, 30 N. Y. 285; Rea v. Harrington, 58 Vt. 181. But 
 see Bggett v. Allen, 106 Wis. 633. 
 
 58 Sloan V. Edwards, 61 Md. 101. 
 
 59 Brown v. Swineford, 44 Wis. 282, 28 Am. Rep. 582. 
 
 60 District of Columbia v. Armes, 107 TJ. S. 519 ; Chicago v. Powers, 42 
 111. 169; Delphi v. Lowe, 74 Ind. 520, 39 Am. Rep. 98; Smith v. Sherwood, 
 62 Mich. 159; Goshen v. England, 119 Ind. 368; Collins v. Dorchester, 6 
 Gush. 396; Richards v. Oshkosh, 81 Wis. 226; Phillips v. Willow, 70 Wis 
 6, 5 Am. St. Rep. 114; Lombar v. Tawas, 86 Mich. 14; Osborne v. Detroit, 
 32 Fed. Rep 36. Contra, Blair v. Pelham, 118 Mass. 421, an accident a 
 year before; Mathews v. Cedar Rapids, 80 Iowa, 459, nor even that de- 
 fendant had had actual knowledge of prior accidents of the same place. 
 
 ("District of Columbia v. Armes, 107 TJ. S. 519, 525; Augusta v. Hafers, 
 Gl Ga. 48, 34 Am. Rep. 95; Taylorwith v. Stafford, 196 111. 288, 63 N. E. 
 624; Kent v. Lincoln, 32 Vt. 591; Retain v. Railroad Co., 94 Mich. 146, 53 
 N. W. 1094; Dow v. Weare, 68 N. H. 345, 44 Atl. 489; Darling v. West- 
 moreland, 52 N. H. 401, 13 Am. Rep. 55, elaborate discussion; Smith v. 
 Des Moines, 84 Iowa, 685; Lombar v. Tawas, 86 Mich. 14; Gillrie v. Lock- 
 port, 122 N. Y. 403; Fordham v. Gouverneur, 160 N. Y. 541, 55 N. B. 290; 
 Scott V. New Orleans, 75 Fed. 373; Elstec v. Seattle, 18 Wash. 304, 51 
 Pac. 394; House v. Metcalf, 27 Conn. 631, proof that other horses had 
 been frightened by same object allowed. 
 
§ 163. RELEVANCY. 183 
 
 to the obvious objection that it permits the- introduction of numer- 
 ous collateral issues whereby the attention of the jury may be di- 
 verted from the main question. The contrary view has the support 
 of very high authority and, in the opinion of the author, is sus- 
 tained by the better reasoning."^ A similar conflict has arisen as to 
 whether in actions against railroad companies, proof of other simi- 
 lar accidents under similar conditions may be received. In some 
 cases of this character such evidence has been received,"' in others 
 it has been rejected."* It is not relevant to show that other persons 
 have passed over the same walk or street without injury; "" nor that 
 a crossing complained of is not different from other crossings of 
 that character in the same city."" So it is not relevant to show the 
 condition 6f the ways in other parts of the county, or to show the 
 practice of towns or counties in respect to them."' Nor in an ac- 
 tion against a railroad company is it relevant to show that acci- 
 dents have not happened on other railroads under similar condi- 
 tions ; "' nor is it competent to prove the custom of other railroad 
 
 62 Richard v. Oshkosh, 81 Wis. 226; Dubois v. Kingston, 102 N. Y. 219; 
 Collins V. Dorchester, 6 Cush. 396; Aldrich v. Pelham, 1 Gray, 510; Phil- 
 lips V. Willow, 70 Wis. 6, 5 Am. St. Rep. 114; Mathews v. Cedar Rapids, 
 80 Iowa, 459; Kidder v. Dunstable, 11 Gray, 342; Hubbard v. Railway Co., 
 39 Me. 506; Parker v. Publishing Co., 69 Me. 173, 31 Am. Rep. 262; Elliot, 
 Roads & Streets, 463, 646. As to admissibility of testimony as to subse- 
 quent repairs, see § 288, infra. 
 
 63 Hill V. Portland Ry. Co., 55 Me. 438, 92 Am. Dec. 601; Pittsburg Ry. 
 Co. V. Ruby, 38 Ind. 294; Brady v. Manhattan Ry. Co., 127 N. Y. 46; Kelly 
 V. Southern Minn. Ry. Co., 28 Minn. 98; Mansfield C. & C. Co. v. McEnery, 
 91 Pa. 185, 36 Am. Rep. 662; Illinois C. R. Co. v. Treat, 179 111. 576, 54 N. 
 E. 290. 
 
 64 Hubbard v. Railway Co., 39 Me. 506; Hudson v. Chicago & N. W. Ry. 
 Co., 59 Iowa, 581, 44 Am. Rep. 692; Dye v. Delaware, L. & W. Ry. Co., 
 130 N. Y. 671; Schloff v. Railway Co., 100 Ala. 377, 14 So. 105; Hurd v. 
 Railway Co., 8 Utah, 241, 30 Pae. 982. 
 
 65 McGrail v. Kalamazoo, 94 Mich. 52; Bauer v. Indianapolis, 99 Ind. 
 56; Branch v. Libbey, 78 Me. 321, 57 Am. Rep. 810, and note; Temp. Hall 
 Ass'n V. Giles, 33 N. J. L. 260; Marvin v. New Bedford, 158 Mass. 464, 33 
 N. B. 605; Kidder v. Dunstable, 11 Gray, 342; Anderson v. Taft, 20 R. I. 
 362, 39 Atl. 191. Contra, Calkins v. Hartford, 33 Conn. 57, 87 Am. Dec. 
 194; Smith v. Oilman, 38 111. App. 393. 
 
 86 Bauer v. Indianapolis, 99 Ind. 56. But it may be shown on the ques- 
 tion of care that the sidewalk on the opposite side of the street was also 
 defective, Hoffman v. North Milwaukee, 118 Wis. 278. 
 
 «■? Hinckley v. Barnstable, 109 Mass. 126; Kenworthy v. Ironton, 41 Wis, 
 647. But see Packard v. New Bedford, 9 Allen, 200. 
 
 68 Louisvilte Ry. Co- v. Com., 80 Ky. 143, 44 Am. Rep. 468. 
 
184 THE LAW OP EVIDENCE. § 164. 
 
 companies as to keeping their turntables locked, "' or as to the blow- 
 ing of whistles,'" or as to the employment of watchmen for bridges.'^ 
 But although a custom cannot be proved as an excuse for a negli- 
 gent act, there are numerous cases in which, under peculiar circum- 
 stances, usage has been held relevant to show what constitutes neg- 
 ligence -or as bearing on the question of negligence in the given 
 case.'^ So when the question relates to the degree of care used 
 at the time of a given accident, the evidence must be confined 
 to that issue and it is irrelevant to show that the party is ordi- 
 narily careful or otherwise ; '' although, in exceptional cases and 
 contrary to the weight of authority, it has been held relevant 
 to show former and similar acts of negligence for the purpose of 
 proving the negligence alleged.'* 
 
 § 164 (161). Same, continued. — "When ,the issue -was raised 
 whether a given effect has teen produced or can be produced by 
 the causes alleged the courts have frequently admitted evidence ap- 
 parently collateral, when the facts presented such points of similar- 
 ity as to afford reasonable data for a conclusion ; for example, evi- 
 dence has been received that other property than that in question 
 similarly situated and not too remote has been damaged by the es- 
 cape of smoke or gas or dust or by the flow of water or by other 
 causes where the circumstances are such as tend to show that the 
 same cause has or has not produced a similar result in the case on 
 trial."* It has often been urged that such testimony leads to many 
 collateral issues and necessarily it is often rejected.'" But some- 
 
 6»Koons V. St. Louis Ry. Co., 65 Mo. 592; G., C. & Santa Fe Ry. Co. v. 
 Evansich, 61 Tex. 3. 
 10 Hill V. Portland Ry. Co., 55 Me. 438, 92 Am. Dec. 601. 
 '1 Grand Trunk Ry. Co. v. Richardson, 91 TJ. S. 454. 
 
 72 Houston Ry. Co. v. Cowsen, 57 Tex. 293 ; Aldrich v. Monroe, 60 N. H. 
 118; Kolsti V. Minneapolis Ry. Co., 32 Minn. 133; Kelly v. Southern Ry. 
 Co., 28 Minn. 98; Coates v. Burlington Ry. Co., 62 Iowa, 486; Jeffrey v. 
 Keokuk Ry. Co., 56 Iowa, 546. 
 
 73 Thompson v. Bowie, 4 Wall. 463; Tenny v. Tuttle, 1 Allen, 185; 
 Gahagan v. Boston Ry. Co., 1 Allen, 187, 79 Am. Dec. 724, and note; Rob- 
 inson V. Fitchburg Ry. Co., 7 Gray, 92; McDonald v. Savoy, 110 Mass. 49; 
 Hatt T. Nay, 144 Mass. 186. 
 
 7* State V. Manchester Ry. Co., 52 N. H. 528. 
 
 75 Doyle V. Railway Co., 128 N. Y. 488, 28 N. E. 495; Hine v. Railway Co , 
 149 N. Y. 154, 43 N. B. 414; Bradley v. Railway Co., Ill Iowa, 562, 82 N. W. 
 996; Roberts v. Dover (N. H.), 55 Atl. 895; Eidt v. Cutter, 127 Mass. 522; 
 Evans v. Gas Co., 148 N. Y. 112, 42 N. E. 513, 51 Am. St. Rep. 681. 
 
 70 Metropolitan W. S. E. R. Co. v. Dickinson, 161 111. 22, 43 N. E. 706; 
 
5 165. EEIiEVANOT. 185 
 
 thing must be left to the discretion of the trial judge in determin- 
 ing whether the conditions are too dissimilar/^ 
 
 § 165 (162). Same, continued. — The general rule does not ex- 
 elude proof of the habits of animals when such habits become ma- 
 terial. Such habits are held to be in their nature continuous and 
 may be proved by successive acts of a similar kind.''' Thus if it is 
 material to show at the time of an accident that a horse had a habit 
 of shying, instances may be proved of such shying both before and 
 after the time of the accident.^' "Where the evidence was conflict- 
 ing as to the rate of speed at which the plaintiff was driving his 
 horse at the time of an accident, it was held relevant as tending to 
 show the capacity of the hoi'se for speed that before and after the 
 accident he had been driving at a certain rate of speed on the race 
 track.'" In several cases it has been vigorously contended that 
 where the plaintiff seeks to prove that an object is calculated to 
 frighten horses, it is relevant to show that on other occasions the 
 same object has frightened other horses. This view has been urged 
 on the grounds that actual experiment of this character affords 
 satisfactory, if not the most satisfactory, proof of the real issue to 
 be tried.'^ On the other hand and by another line of authorities 
 proof of this character is held to be excluded as collateral to the 
 issue. It is open to the same objections as the form of proof al- 
 ready mentioned — that of other accidents at the same place.'^ In 
 an action where it is claimed that the defendant is liable on account 
 of the negligence of a servant, it is not relevant to show specific 
 acts of negligence on the part of such servant not connected with 
 the act in question.'' But when the general fitness and capacity of 
 
 Hughes v. General Electric L. & P. Co. (Ky.), 54 S. W. 722; Louisville 
 Water Co. v. Weis (Ky.), 76 S. W. 356; Pitzsimons & Connell Co. v. Braun, 
 199 111. 390, 65 N. E. 249; Timothy v. State, 130 Ala. 68, 30 So, 339; Lake 
 Erie & W. R. Co. v. Mugg, 132 Ind. 168, 31 N. E. 564; Com. v. Piper, 120 
 Mass. 185. 
 
 77 See cases already cited. 
 
 78 See cases cited below. 
 
 79 Todd V. Rowley, 8 Allen, 51. 
 
 so Whitney v. Leominster, 136 Mass. 25. 
 
 «i Darling v. Westmoreland, 52 N. H. 401, 13 Am. Rep. 55; Crocker v. 
 McGregor, 76 Me. 282, 49 Am. Rep. 611; Bemis v. Temple, 162 Mass. 342, 
 38 N. E. 970. 
 
 82 Cleveland Ry. Co. v. Wynant, 114 Ind. 525, 5 Am. St. Rep. 644; Bloor 
 V. Delafield, 69 Wis. 273. 
 
 83 Michigan Cent. Ry. Co. v. Gilbert, 46 Mich. 176, yardmaster; Maguire 
 V. Middlesex Ry. Co., 115 Mass. 239, car driver; Baulec v. New York Ry. 
 
186 THE LAW OF EVIDENCE. § 166. 
 
 a servant are involved, his prior acts and conduct on specific occa- 
 sions are relevant when it is proven that the principal had knowl- 
 edge of such acts and when the principal is charged with negli- 
 gence in retaining the servant.** 
 
 § 166 (163). Relevancy of disconnected facts to show defective 
 machinery — Railroad fires. — Where the negligence complained of 
 consists in the use by tie defendant of machinery or other agencies 
 alleged to be dangerous or unfit for use, it has frequently been 
 found necessary to admit evidence of disconnected facts showing 
 such unfitness or the capacity or tendency of the machine. This 
 has been often illustrated in cases against railroad companies for 
 the setting of fires by means of engines. Since knowledge of the 
 condition of such engines is confined for the most part to the agents 
 of the company, it would often be difficult for the opposite party 
 to prove their condition unless evidence of prior facts and circum- 
 stances should be received. Owing to the apparent necessities of 
 the case, the courts seem to have somewhat relaxed the general rule, 
 and they have in this class of cases received evidence that the same 
 or other engines of similar construction on the same road had be- 
 fore or after the accident in qxiestion thrown out sparks or coals 
 near the place in question.*^ After the plaintiff has refuted other 
 probable causes evidence that engines were so managed near the 
 location of the fire as to be likely to set on fire objects not more 
 
 Co., 59 N. Y. 356, 17 Am. Rep. 325, switchman; Warner v. New York Ry. 
 Co., 44 N. Y. 465, flagman. Contra, State v. Manchester Ry. Co., 52 N. H. 
 528. 
 
 8* Bauleo v. New York Ry. Co., 59 N. Y. 356, 17 Am. Rep. 325. See also 
 Frazier v. Pennsylvania Ry. Co., 38 Pa. St. 104, 80 Am. Dec. 467. 
 
 85 Piggot V. Eastern Counties Ry. Co., 3 Man., G. & S. 230, 54 E. C. L. 
 229; Liverpool L. & G. Ins. Co. v. Railway Co., 125 Cal. 434, 58 Pac. 55; 
 Webb V. Rome, W. & O. Ry. Co., 49 N. Y. 420, 10 Am. Rep. 389; Longa- 
 baugh v. Virginia City & T. Ry. Co., 9 Nev. 271; Philadelphia & R. Ry. 
 Co. V. Schultz, 93 Pa. St. 341; Cleveland v. Grand Trunk Ry. Co., 42 Vt. 
 449; Annapolis & E. Ry. Co. v. Gantt, 39 Md. 115; Grand Trunk Ry. Co, 
 V. Richardson, 91 U. S. 454; Ross v. Boston & W. R. Ry. Co., 6 Allen, 87; 
 Spauldlng v. Chicago & N. W. Ry. Co., 30 Wis. 110; Smith v. Old Colony 
 & N. Ry. Co., 10 R. I. 22; St. Joseph & D. C. Ry. Co. v. Chase, 11 Kan. 47; 
 Gandy v. Chicago & N. W. Ry. Co., 30 Iowa, 420, 6 Am Rep. 682; Patteson 
 V. Railway Co., 94 Va. 16, 26 S. E. 393; Brusberg v. Railway Co., 55 Wis. 
 106; Alabama G. S. R. Co. v. Clark (Ala.), 34 So. 917; McGinn v. Piatt, 
 177 Mass. 125, 58 N. E. 175. See note, 38 Am. Dec. 73-76. As to consti- 
 tutionality of statutes making persons liable without respect to negligence, 
 aee Campbell v. Missouri Pac. Ry. Co., 121 Mo. 340, 42 Am. St Rep, 530, 
 and note. 
 
§ 167. RELEVANCY. 187 
 
 remote than the property burned not only renders it probable that 
 the fire was set by the defendant's engine, but raises an inference 
 that there was something improper in the construction or manage- 
 ment of the engine' which caused the fire.*" But the presumption 
 in such case is only prima facie, not conclusive, and is of course 
 subject to rebuttal by competent evidence.'' 
 
 § 167 (164). Same, continued. — The view has been maintained 
 by very high authority that this evidence may be allowed witho\it 
 any proof of similarity in construction of the engines. This view 
 rests on the theory that the business of running trains on a rail- 
 road presupposes a unity of management and a general similarity 
 of the engines, and that the evidence in question tends to show a 
 negligent habit of the officers and agents of the corporation.** bat 
 the leading case supporting this view has been vigorously criticised ; 
 and the rule is held in some jurisdictions that testimony of the 
 character under discussion should be rejected where the specific en- 
 gine claimed to have done the damage is known and identified.*" 
 Of course the other facts relied on in such cases must not be so re- 
 mote in time or place as not to lead to a fair inference that the 
 same conditions still exist at the time and place under inquiry. 
 But it has been held proper to receive such evidence as to former 
 fires happening a considerable time before that in question."" 
 
 86 Sheldon v. Hudson River Ry. Co., 14 N. Y. 218, 221, 67 Am. Dec. 155, 
 and note; Henderson v. Philadelphia & R. Ry. Co., 144 Pa. St. 461; 
 Thatcher v. Maine Cent. Ry. Co., 85 Me. 502. 
 
 87 Chicago & A. Ry. Co. v. Juaintance, 58 111. 389 ; Toledo, W. & W. Ry. 
 Co. V. Larmon, 67 111. 68; Kenny v. Hannibal & St. J. Ry. Co., 70 Mo. 243; 
 Libby v. Chicago, R. I. & P. Ry. Co , 52 Iowa, 92. 
 
 88 Railroad Co. v. Richardson, 91 TJ. S. 454; Sheldon v. Railroad Co., 14 
 N. Y. 218; Koontz v. Railway Co. (Ore.), 23 Pac. Rep. 820; Field v. Rail- 
 road Co., 32 N. Y. 339; Thatdher v. Maine Cent Ry. Co., 85 Me. 502, 27 
 Atl. 519; Webb v. Rome Ry. Co., 49 N. Y. 420, 10 Am. Rep. 389, and note; 
 Hoskison v. Railway Co., 66 Vt. 618, 30 Atl. 24; Dunning v. Railway Co., 
 91 Me. 87, 39 Atl. 352, 64 Am. St. Rep. 208; Matthews v. Railway Co., 142 
 Mo. 645, 44 S. W. 802; Longabaugh v. Railway Co., 9 Nev. 271; Koontz 
 V. Railway Co., 20 Ore. 3, 23 Pac. 820. As to general subject, see note, 
 38 Am. Dec. 70. 
 
 88 Henderson v. Philadelphia Ry. Co., 144 Pa. St. 461, 27 Am. St. Rep. 
 652; Noland v. Railway Co., 31 Wash. 430, 71 Pac. 1098; Lessor Cotton Co. 
 V. Railway Co., 114 Fed. 133; St. Louis I. M. & S. R. Co. v. Lawrence 
 (Ind. T.), 76 S. W. 254; Gibbons v. Wisconsin Valley Road, 58 Wis. 335. 
 
 80 Field v. New York Cent. Ry. Co., 32 N. Y. 339; Sheldon v. Hudson Ry. 
 Co., 14 N. Y. 221, 67 Am. Dec. 155, and note; Longabough v. Virginia City 
 Ry. Co., 9 Nev. 271; Henderson v. Philadelphia Ry. Co., 144 Pa. St. 461. 
 
188 THE LAW OP EVIDENCE. § 168. 
 
 § 168 (165). Facts apparently collateral— Value of lands.— The 
 
 question has frequently arisen in the courts whether the values of 
 lands can be shown by testimony as to actual sales of other lands 
 in the neighborhood. It is very clear that the value of land may be 
 shown by proving the market value and that the knowledge of the 
 witness as to such market value may be based upon his knowledge 
 of other sales. And it is generally held that when a vntness testi- 
 fies as to the value of land he may be cross-examined to test his 
 knowledge and credibility as to other sales under similar condi- 
 tions."^ But it is urged that direct proof of other sales and of the 
 prices paid gives to the agreements of such third parties the effect 
 of evidence, without giving any opportunity for cross-examination 
 to show that the price paid was inadequate or excessive. It is also 
 objected that the reception of such evidence would lead to many 
 collateral issues for which the respective parties could not be pre- 
 pared. For these and other reasons, it has been held in some states 
 that the values of land cannot be thus shown on direct examination 
 by evidence as to particular sales of similar tracts ; °^ but an en- 
 tirely different rule is maintained in other states."' In those juris- 
 dictions where such evidence is admitted, the courts are agreed that 
 the proof of other sales must be limited to those in the vicinity. In 
 determining this question, however, the nature of the land must be 
 taken into consideration. If the lands are thinly settled or are 
 used for agricultural purposes, it might be proper to receive evi- 
 
 27 Am. St. Rep. 652, 22 Atl. 851; Thatcher v. Maine Cent. Ry. Co., 85 Me. 
 502, 27 Atl. 519. 
 
 »iEast Pa. R. Co. v. Hlester, 40 Pa. 53; Ladd v. Ladd, 121 Ala. 583, 25 
 So. 627; Central P. R. Co. v. Pearson, 35 Cal. 247; Kansas C. & T. R. Co. 
 V. Vickroy, 46 Kan. 248, 26 Pac. 698; Board v. Dillard, 76 Miss. 641, 25 
 So. 292. 
 
 02 Railroad Co. v. Hlester, 40 Pa. St. 53 ; Railroad Co. v. Bunnell, 81 Pa. 
 St. 414; Railroad Co. v. Benson, 36 N. J. L. 557; Railroad Co. v. Ziemer, 
 124 Pa. St. 414; Stinson v. Railway Co., 27 Minn. 284, 6 N. W. 784; In re 
 Thompson, 127 N. Y. 463, 28 N. B. 389; Robinson v. Railway Co., 175 N. 
 Y. 219, 67 N. B. 431; Railroad Co. v. Pearson, 35 Cal. 247. 
 
 83'chicago Ry. Co. v. Maroney, 95 111. 179; Paducah v. Allen (Ky.), 63 S. 
 W. 981; Lailin v. Chicago Ry. Co., 33 Fed. Rep. 415; Sawyer v. Boston, 
 144 Mass. 470, 11 N. E. 711; Armory v. Melrose, 162 Mass. 556, 39 N. E. 
 276; Teele v. Boston, 165 Mass. 88, 42 N. E. 229; Patterson v. Boom Co., 
 3 Dill. (U. S.) 465, and note; Stevens v. Springer, 23 Mo. App. 375; St. 
 Louis, K. & N. W. R. Co. v. Clark, 121 Mo. 169, 25 S. W. 192; Gardner v. 
 Brookline, 127 Mass. 358; Packing Co. v. Chicago, 111 111. 651; Railroad 
 Co. V. Greeley, 23 N. H. 237; Washburn v. Railroad Co., 59 Wis. 364; 
 Town of Cherokee v. Land Co., 52 Iowa, 279, 3 N. W. 42. 
 
§ 169. EELEVANOY. 189 
 
 dence of the sales of other lands several miles away; while if the 
 lands were city lots, a distance of several blocks might render the 
 evidence improper.^* It is equally clear that evidence of other 
 sales should not be received if it appear that they were too remote in 
 point of time to afford any aid in determining the real question in 
 issue.*' In determining this question the court will consider 
 whether or not the land is so situated that rapid changes have taken 
 place in the value."' It is another condition of the reception of 
 such testimony that the other property should be similar in cluirac- 
 ter. Thus it would be clearly incompetent, on the question of the 
 values of farming lands, to prove the prices for which city prop- 
 erty had been sold."' 
 
 § 169(166). Same — Personal property — Services. — If testi- 
 mony of this character is to be admitted at all, it is evident that 
 while the conditions surrounding the different sales should be simi- 
 lar they need not be exactly the same. In those courts where such 
 evidence is received, it is held to be very largely a question of judi- 
 cial discretion whether the requisite similarity of conditions has 
 been established."^ And obviously the court in its discretion may 
 so limit such testimony as to prevent the trial of too many coUat- 
 
 84 Paine v. Boston, 4 Allen, 168; Cemetery Ass'n v. Railroad C!o., 121 
 111. 199; Ham t. Salem, 100 Mass. 350, evidence as to sale of ice privilege 
 seven or eight miles distant held too remote, the issue being the value 
 of a similar privilege. 
 
 95 Hunt V. City of Boston, 152 Mass. 168; Washburn v. Railway Co., 59 
 Wis. 364; Everett v. Union Pacific Ry. Co., 59 loyra, 243, sales ten or 
 twelve years before held too remote; Lanquist v. City of Chicago, 200 111. 
 69, 65 N. E. 681, sale seven years before held too remote; Sullivan v. Rail- 
 way Co. (Texas), 68 S. W. 745, a sale ten years before held too remote; 
 Gardner v. Brookline, 127 Mass. 358, sales three or four years before ad- 
 mitted. 
 
 9« Gardner v. Brookline, 127 Mass. 358; Benham v. Dunbar, 103 Mass. 
 365; Dietrichs v. Lincoln & N. W. Ry. Co., 12 Neb. 225; Chandler v. Ja- 
 maica Pond Co., 122 Mass. 305. See also Kerr v. Commissioners, 117 U. 
 S. 379. 
 
 97 Cemetery Ass'n v. Railroad Co., 121 111. 199; Kansas City & Topeka 
 Ry. V. Spitlog, 45 Kan. 68, 25 Pac. 202; Patch v. Boston, 146 Mass. 52, in 
 this case testimony was held competent, although one piece of land had 
 buildings while the other had not; Sawyer v. Boston, 144 Mass. 471, the 
 lots need not be of the same size. 
 
 98 Shattuck V. Railroad Co., 6 Allen, 115; Little Rock J. R. Co. v. Wood- 
 ruff, 49 Ark. 381, 55 S. W. 792; Sawyer v. Boston, 144 Mass. 471; Presbrey 
 T. Railroad Co., 103 Mass. 1; Ham v. Salem, 100 Mass. 350; Lanig v. Rail- 
 way Co., 59 N. J. L. 576, 25 Atl. 409; Paine v. Boston, 4 Allen, 168; Stolze 
 T. Term. Co., 100 Wis. 208, 75 N. W. 987. 
 
190 THE LAW OP EVIDENCE. § 169. 
 
 eral issues.®' When testimony of this character is received, it is a 
 requisite, as already stated, that the lands should be shown to be 
 similar in character, situation and value.^ It is also necessary that 
 the witness should have personal knowledge of the other sales; 
 hence mere hearsay or recitals in deeds of the consideration are 
 not competent to prove the facts. ^ Clearly evidence should not 
 be received to prove what offers have been made to sell or what 
 prices have been asked or refused ; ' although it is obvious that the 
 declarations of the party to the suit concerning the land in ques- 
 tion, including offers to sell, may be received when such statements 
 are in the nature of admissions.* Nor is it admissible to prove the 
 amount received by way of compromise or settlement on condemna- 
 tion proceedings.^ Although the question under consideration has 
 caused most discussion in respect to sales of land, testimony has in 
 a few instances been received to show value of sales of similar per- 
 sonal property under similar conditions,'' and also to show the value 
 of services, by the amount paid for other services.' 
 
 »» Amoskeag Co. v. Head, 59 N. H. 332 
 
 1 See cases cited above. 
 
 2 Rose V. Taunton, 119 Mass. 99; Spaulding v. Knight, 116 Mass. 148; 
 Esch V. Chicago, M. & St. P. Ry. Co., 72 Wis. 229. 
 
 3 Spring Valley Works v. Drinkhouse, 92 Cal. 528; Lehmicke v. Railroad 
 Co., 19 Minn. 464; Davis v. Charles River Ry. Co., 11 Cush. 506; Win- 
 nisimmet Co. v. Grueby, 111 Mass. 543; Montclair Ry. Co. v. Benson, 36 
 N. J. L. 557; Sherlock v. Railroad Co., 130 111. 403, 42 N. B. 844; Atkinson 
 V. Railway Co., 93 Wis. 362, 67 N. W. 703; Sharpe v. United States, 112 
 Fed. 893; Tennessee Coal & Iron Co. v. State (Ala.), 37 So. 433. Evidence 
 as to the assessed valuation is not admissible, Anthony v. New York, P. 
 & B. Ry. Co., 162 Mass. 60; nor as to the amount of assessments paid, 
 Nelson v. Village of West Duluth, 55 Minn. 497. 
 
 * Railroad Co. v. Andrews, 37 Kan. 641; Springfield v. Schmook, 68 Mc. 
 394; East Brandywine & W. Ry. Co. v. Ranck, 78 Pa. St. 454; Power v. 
 Savannah, S. & S. Ry. Co., 56 Ga. 471. 
 
 5 Howard v. Providence, 6 R, I. 514; Railroad Co. v. McLaren, 47 Ga. 
 546; Bennett v. New Bedford Ry. Co., 110 Mass. 433; Springfield v. 
 Schmook, 68 Mo. 394; Howe v. Howard, 158 Mass. 278; Wyman v. Rail- 
 way Co., 13 Mete. 316. 
 
 eWhorley v. Tennessee C. Expos. Co. (Tenn.), 62 S. W. 346; Davis v. 
 Cotey, 70 Vt. 120, 39 Atl. 628; Norton v. Willis, 73 Me. 580] State v. 
 Meysenburg, 171 Mo. 1, 71 S. W. 229; Carr v. Moore, 41 N. H. 131. 
 Contra, Atkinson & N. R. Co. v. Harper, 19 Kan. 529; Gouge v. Roberts, 
 53 N. Y. 619; In re Thompson, 127 N. Y. 463, 28 N. E. 389. 
 
 7 Crusoe v. Clark, 127 Cal. 341, 59 Pac. 700; Louisville, N. A. & C. R. Co. 
 v. Wallace, 136 111. 87, 26 N. B. 493; Stanton v. Embery, 53 U. S. 548; 
 Vilas v. Downer, 21 Vt. 419; Nathan v. Brand, 167 111. 607, 47 N. B. 771; 
 
§ 170. RELEVANCY. 191 
 
 § 170 (167). Direct proof of interest, motives and belief. — It is 
 
 evident that the most satisfactory mode of proving the motives or 
 intent with which an act is done is to show the facts and circum- 
 stances accompanying the act. It is not relevant for a witness to 
 state the motives or intentions of another person.' It has been 
 held in a few cases that a party cannot state directly his own mo- 
 tives or intent; that such testimony cannot be directly contradicted 
 and because it must often be of little value, the proof must consist 
 of the surrounding circumstances which illustrate the nature of the 
 act.* But it is the prevailing rule, sustained by the great weight of 
 authority, that whenever the motive, intention or belief of a person 
 is relevant to the issue it is competent for such person to testify 
 directly upon that point, whether he is a party to the suit or not. 
 To state the rule in another form, when the motive of a witness in 
 performing a particular act or in making a particular declaration 
 becomes a material issue in a cause or reflects important light upon 
 such issue, he may himself be sworn in regard to it, notwithstand- 
 ing the diminished credit to which his testimony may be entitled as 
 coming from the mouth of an interested witness.^" It is hardly 
 
 Eggleston V. Boardman, 37 Mich. 14; Swain v. Cheney, 41 N. H. 232, 
 Contra, Thompson v. GafCey, 52 Neb. 317, 72 N. W. 314; Kelley, Maus & 
 Co. V. La Crosse Carriage Co., 120 Wis. 84. 
 
 sCihak v. Kleke, 117 111. 643; Manufacturers' Bank v. Koch, 105 N. Y. 
 630; State v. Kilburn, 16 Utah, 187, 52 Pac. 277; State v. Carrington, 15 
 Utah, 480, 50 Pac. 526; Durrene v. Bank, 117 Ga. 385, 43 S. E. 726; State 
 V. Pierce, 85 Minn. 112, 88 N. W. 417. 
 
 9 McKown V. Hunter, 30 N. Y. 625; Alabama Co. v. Reynolds, 79 Ala 
 497; McCormick v. Joseph, 77 Ala. 236; Whizenant v. State, 71 Ala. 383; 
 Burke v. State, 71 Ala. 377; Wheles v. Rhodes, 70 Ala. 419; Leland v. 
 Canerse, 181 Mass. 487, 63 N. B. 939; Bolen v. State, 26 Ohio St. 371; 
 Haywood v. Poster, 16 Ohio, 88. 
 
 10 As to fraud upon creditors, see Gardom v. Woodward, 44 Kan. 758, 21 
 Am. St. Rep. 314, and note; Seymour v. Wilson, 14 N. Y. 567; Wilson v. 
 Clark, 1 Ind. App. 182; Stearns v. Gosselin, 58 Vt. 38; Watkins v. Wallall, 
 19 Mich. 57; Thatcher v. Phinney, 7 Allen, 146; Forbes v. Waller, 25-.N. 
 Y. 430; Snow v. Paine, 114 Mass. 520; as to fraud in chattel mortgage. 
 Frost V. Rosecrans, 66 Iowa, 405; as to good faith and knowledge in exe- 
 cution of papers, Frost v. Rosecrans, 66 Iowa, 405; Thatcher v. Phinney, 
 7 Allen, 146; Phelps v. Georges Creek Co., 60 Md. 536; Thurston v. Cor- 
 nell, 38 N. Y. 281; Perry v. Porter, 121 Mass. 522; as to maXidous prosecu- 
 tion, Garrett v. Mannheimer, 24 Minn. 93; Heap v. Parish, 104 Ind. 36; 
 McKown V. Hunter, 30 N. Y. 625; as to intend in selling liquors to minors, 
 Ross V. State, 116 Ind, 497, 19 N. E. 451; as to intent in usury, Thurston 
 V. Cornell, 38 N. Y. 281; as to exemplary damages in trespass, Norris v. 
 Narrill, 40 N. H. 395; as to domicile, Kennedy v. Ryall, 67 N. Y. 379; 
 
192 THE LAW OF EVIDENCE. § 171. 
 
 necessary to add that such testimony is not conclusive as against 
 the facts and circumstances which tend to illustrate the motive or 
 intent." It is an important qualification of the rule that testimony 
 of this character should not be received to change the import of a 
 contract, as to the terms of which there is no dispute, or in violation 
 of the rule which forbids, the admission of parol testimony to vary 
 written instruments.^^ The cases already cited show that the rule 
 under discussion applies alike to civil and criminal cases. 
 
 § 171 (168). Evidence made relevant by that of the adverse 
 party. — In determining whether questions are relevant or not the 
 judge should take into consideration not only the issues as shown by 
 the pleadings, but also the line of proof which has been resorted to 
 by the respective parties. Testimony which would be clearly irrele- 
 vant or incompent if offered by one party in the first instance may 
 become very pertinent in reiuttal or explanation of evidence of- 
 fered by the adversary. Perhaps this is most frequently illus- 
 trated by cases arising under the rule elsewhere discussed, — ^that 
 where parts of a conversation or act or writing are proved, other 
 connected parts should be received.^^ In such cases, although a 
 plaintiff might not in the first instance offer his own statements 
 and thus make testimony in his own behalf, he may, if his state- 
 ments are partially proved by the defendant's evidence, give the 
 statement in full.^* On the same general principle where testimony 
 is adduced against a party which tends to raise an inference of 
 
 Lombard v. Oliver, 7 Allen, 155; Fisk v. Chester, 8 Gray, 506; Albion v. 
 Maple Lake, 71 Minn. 503, 74 N. W. 282; as to felonious assault, Greer v. 
 State, 53 Ind. 420; Kerrains v. People, 60 N. Y. 221, 19 Am. Rep. 158; as 
 to homicide, State v. Harrington, 12 Nev. 126; Com. v. Woodward, 102 
 Mass. 155; Alexander v. State (Ga.), 44 S. B. 851; State v. Harrington, 12 
 Nev. 135; as to rape, Greer v. State, 53 Ind. 420; Brown v. State, 127 
 Wis. 193; as to false pretenses, Over v. Schiffling, 102 Ind. 191; People v. 
 Baker, 96 N. Y. 340; as to belief, Atlanta Co. v. Beauchamp, 93 Ga. 6; in 
 assumpsit, Delano v. Goodwin, 48 N. H. 203, 97 Am. Dec. 601; as to Uiel, 
 Over V. Schiffling, 102 Ind. 191. 
 
 11 People V. Farrell, 31 Cal. 576; Anderson v. Wehe, 62 Wis. 402; Wil- 
 son v. Noonan, 35 Wis. 355; Plank v. Grimm, 62 Wis. 251; Griffin v. Mar- 
 quardt, 21 N. Y. 121. 
 
 12 Dillon V. Anderson, 43 N. Y. 231 ; Cake v. Pottsville Bank, 116 Pa. St. 
 264; Spencer v. Colt, 89 Pa. St. 314; Browne v. Hickie, 68 Iowa, 330; 
 Qulmby v. Morrill, 47 Me. 470; Thomas v. Loose, 114 Pa. St. 35. 
 
 13 Rouse v. Whited, 25 N. Y. 170, 82 Am. Dec. 337, and full note. See 
 §§ 822, 871, infra. 
 
 14 See cross references and notes last cited. 
 
§ 172. RELEVANCY. 193 
 
 some improper motive or conduct or when some act is shown which 
 might be deemed prejudicial to his case, it may be relevant and im- 
 portant for him to give an explanation which might otherwise be 
 clearly inadmissible.^^ Thus if the testimony raises the inference 
 that a party has made improper advances to a witness, the whole 
 facts and the language used-may be shown in explanation." If it 
 is proved that a party has destroyed his account books he may state 
 such reasons and facts as tend to repel the inference that they 
 were destroyed from some improper motive.^^ On the principle 
 under discussion where a party introduces a witness who swears 
 positively to an important fact and on full examination it appears 
 that he can swear to this fact only as an inference from the exist- 
 ence of another fact, the other party may show that the pretended 
 fact or practice so relied on as a basis of knowledge did not exist.^' 
 So where testimony is admitted tending to show that the facts 
 claimed by a party are a physical impossibility, specific facts may 
 be proved showing the contrary.^" Where a party has himself pro- 
 duced fragmentary parts of confidential communications he so far 
 surrenders the privilege that the other party may ofEer the remain- 
 ing parts. ^° 
 
 § 172 (169). Same — Rebuttal or explanation of irrelevant testi- 
 mony. — If one party is allowed against objection to introduce ir- 
 relevant testimony, it is manifestly unjust to prevent the other 
 party from rebuting or explaining such testimony.''^ There is, how- 
 ever a class of decisions which hold that if the irrelevant testimony 
 
 loEdgell V. Francis, 86 Mich. 232; Mack v. State, 48 Wis. 271; Smith 
 V. State, 51 Wis. 615; Marietta v. Lieux, 41 La. Ann. 528; Merritt v. New 
 York Ry. Co., 162 Mass. 326; Poster's Executor v. Dickinson, 64 Vt. 233. 
 Thus courts have permitted explanation of the absence of witnesses. 
 Railway Co. v. Duncan, 88 Tex. 63, 32 S. W. 878; Pease v. Smitt, 61 N. Y. 
 477; Hard v. Walker, 100 Mich. 406, 59 N. W. 174; Richmond v. Gardner, 
 91 Ga. 27. 
 
 16 Lynch v. Coffin, 131 Mass. 311. 
 
 17 Gage v. Cheseboro, 49 Wis. 486. 
 isWentworth v. Eastern Ry. Co., 143 Mass. 248. 
 
 10 Ross v. Boston Ry. Co., 6 Allen, 87; Lorlng v. Worcester Ry. Co., 131 
 Mass. 469, the claim was that sparks from the engine could not reach the 
 premises In question and proof was received that on a former occasion 
 sparks from the same engine had fallen there. 
 
 20 Western Union Tel. Co. v. Baltimore Tel. Co., 26 Fed. Rep. 55. 
 
 21 Ingram v. Wackernagel, 83 Iowa, 82; Bogk v. Gassert, 149 U. S. 17. 
 But see Esch v. Railway Co., 72 Wis. 229, where the admission of such 
 rebutting evidence over objection was held reversible error. 
 
 13 
 
194 THlB LAW OF EVIDENCE. § 173. 
 
 is not objected to by the party against whom it is offered, he has no 
 right to offer similar testimony against objection by way of ex- 
 planation or rebuttal.^^ As the view has been stated, a party can 
 not, by permitting irrelevant evidence to be introduced, rightfully 
 claim that because of such fact similar evidence can be introduced 
 by him.^" The court is not bound to receive irrelevant testimony 
 even though toth parties consent; "* and where such testimony has 
 been received without objection, it is not error for the court to ex- 
 clude it from the consideration of the jury ; ^^ and so where a party 
 has offered irrelevant testimony without objection, he can not claim 
 the right to introduce further evidence of the same kind to explain 
 the former.^' There is a class of decisions which hold that where 
 a party voluntarily offers testimony which is unnecessary or irrele- 
 vant to the issue, it is too late for him to object to rebutting testi- 
 mony offered by the adversary upon the same subject, and that it 
 should be received. ^^ There is another class of decisions which 
 hold that the introduction or exclusion of immaterial evidence to 
 meet immaterial evidence is within the discretion of the presiding 
 judge.''^ 
 
 § 173 (170). General rules as to relevancy. — There is no more 
 familiar principle in the law of evidence than this, that if the 
 
 22 Farmers' Bank v. Wlnfleld, 24 Wend. 421; San Diego Land Co. v. 
 Neale, 88 Cal. 50; Davis v. Keyes, 112 Mass. 436. But the rule does not 
 apply where there was no opportunity to object. People v. Barone, 161 
 N. T. 451, 55 N. B. 1083. 
 
 28 Manning v. Railway Co., 64 Iowa, 240; Phelps v. Hurd, 43 Conn. 194; 
 Wlckenkamp v. Wickenkamp, 77 111. 92; Maxwell v. Durkin, 185 111. 546, 
 57 N. B. 433 ; People v. Dowling, 84 N. Y. 478 ; Stringer v. Young's Lessee, 
 3 Peters, 336. Clearly so where the proffered testimony does not tend 
 to disprove that so received, Gorsuch v. Rutledge, 70 Md. 272. The same 
 rule holds where the testimony is Incompetent, McCurtney v. Territory, 
 1 Neb. 121. 
 
 24 Farmers' Bank v. Winfield, 24 "Wend. 421. 
 
 25 Lutton V. Town of Vernon, 62 Conn. 1, in which case the testimony 
 was excluded at the request of the party offering it. 
 
 26 Brand v. Longstreet, 4 N. J. L. 325. 
 
 27 Brown v. Perkins, 1 Allen, 89; Scattergood v. Wood, 79 N. Y. 263; 
 Sherfey v. Evansville Ry. Co., 121 Ind. 427; Spaulding v. Railway Co., 98 
 Iowa, 205, 67 N. W. 227; Dodge v. Kiene, 28 Neb. 216; Mclntyre v. White 
 (Ala.), 26 So. 937; Stevenson v. Gunning's Estate, 64 Vt. 601; Sider v. 
 Shaffer (W. Va.), 28 S. E. 721; McElheny v. Pittsburg Ry. Co., 147 Pa. 
 St. 1, where the objecting party introduced the subject on cross-examina- 
 tion. 
 
 28 Treat v. Curtis, 124 Mass. 348; Fusbush v. Goodwin, 25 N. H. 425; 
 Morgan v. State, 88 Ala. 223, 6 So. 761; Sherwood v. Titman, 55 Pa. 77. 
 
§ 173 EELEVANCT. 195 
 
 testimony proposed is relevant and is not forbidden by some one of 
 the exclusionary rules of evidence, it should be received.^' It is not 
 a sufficient objection that the evidence proposed is of little weight, 
 since that is a matter addressed solely to the jury ; "" nor is the 
 proposed testimony to be necessarily rejected because it may not 
 bear directly upon the issue. If it forms a link in the chain of tes- 
 timony '^ or tends in any degree to establish the fact in controversy, 
 it should be received.^^ But since the court is compelled to rule 
 upon the admission of testimony when it is offered, the offer of the 
 evidence should contain information as to the manner in which the 
 evidence is to become relevant."^ Although the evidence may be 
 irrelevant for one purpose, it may be relevant as to other facts in 
 issue ; and, if so, it should be received ; but in such case it is proper 
 that the court should explain to the jury the purpose for which it 
 is admitted and restrict its application.^* But if the testimony 
 is legally insufficient for the purpose for which it is offered it 
 may be properly rejected. So testimony which is competent as 
 to one party should not be excluded because not competent against 
 another party to the suit. In such case the effect of the evi- 
 dence may be limited by proper instruction?.^' Evidence which 
 
 28 This is illustrated by most of the cases cited in this section. Such 
 testimony should be received even though obtained by improper means, 
 Cluett v. Rosenthal, 100 Mich. 193. 
 
 so Holmes v. Goldsmith, 147 TJ. S. 150; Sanders v. Stolces, 30 Ala. 432; 
 Belden v. Lamb, 17 Conn. 441; Sample v. Lipscomb, 18 Ga. 687; Slack v. 
 McLagan, 15 111. 242; Farwell v. Tyler, 5 Iowa, 535; Trull v. True, 33 
 Me. 367; Richardson v. Milburn, 17 Md. 67; Jones v. Letcher, 13 B. Mon. 
 (Ky.) 363; Tucker v. Peaslee, 36 N. H. 167; Pitzwater v. Stout, 16 Pa. 
 St. 22. In Isbue v. New York Ry. Co., 25 Conn. 556, the qualities of an 
 object in dispute were allowed to be shown by comparison thereof with 
 the known qualities of an object not in dispute. 
 
 81 Hunter v. Harris, 131 111. 482; Tarns v. Bullitt, 35 Pa. St. 308; Schuch- 
 ardt V. Aliens, 1 Wall. 359; Remy v. Olds (Cal.), 34 Pac. Rep. 216. 
 
 82 Jones V. Letcher, 13 B. Mon. (Ky.) 363; Johnson v. State, 14 Ga. 55; 
 Colglazier v. Colglazier, 124 Ind. 196; People v. Hare, 57 Mich. 505; 
 Cleveland, C. C. & I. Ry. Co. v. Closser, 126 Ind. 348; Copp v. Hardy, 32 
 Mo. App. 588; Huntington v. Attrill, 118 N. Y. 365; Com. v. Robinson, 146 
 Mass. 571., 
 
 asWeidlers v. Farmers' Bank, 11 Serg. & R. (Pa.) 134; McCurry v. 
 Hooper, 12 Ala. 823; Austin v. Robertson, 25 Minn. 431, 
 
 3* Webster v. Enfield, 10 111. 298; Brewin v. Farrell, 39 Vt. 206; Mc- 
 Clelland V. Lindsay, 1 Watt* & S. (Pa.) 360; Marshall v. Haney, 4 Md. 
 498; Head v. Selleck, 76 Conn. 706, 57 Atl. 281. 
 
 ssMcTavish v. Carroll, 13 Md. 429; State v. Neville, 6 Jones (N. C.) 
 423; O'Brien v. Hilburn, 22 Tex. 616. 
 
 88 Owens V. State, 94 Ala. 97. 
 
196 THE LAW OP EVIDENCE. § 173. 
 
 may not seem to bear directly upon the contested matters of 
 fact may illustrate the conduct of a party by throwing light on 
 his motives; and if this is a material inquiry such evidence should 
 not be rejected.^'' It is not always necessary that evidence should 
 appear at the time to ie relevant. It is sometimes impossible to 
 anticipate exactly what questions may arise in the course of the 
 trial; aijd testimony should be received if it would be relevant and 
 competent in view of the questions which may be reasonably ex- 
 pected to arise upon the issue joined.'' If testimony is introduced 
 with the understanding that it will be shown to be relevant by 
 connecting acts and no such facts are proved, it should not request 
 be withdrawn from the consideration of the jury by the instruc- 
 tion of the court.'^ To state the rule more broadly, — ^where illegal 
 testimony has been admitted by the court against objection, nothing 
 short of a direct and unequivocal cHarge to the jury, that they must 
 disregard the illegal proof, can cure the error of its admission.*" 
 It is the general rule that it should be left to the discretion of the 
 presiding judge to determine whether he will require proof of con- 
 necting or preliminary facts before deciding the question of rele- 
 vancy or whether he will admit the testimony on the statement of 
 counsel that he expects to show the relevancy by other faets.*^ It 
 often happens that certain preliminary questions of fact must be 
 determined before it can appear whether the proffered testimony is 
 relevant or competent. In such cases the duty devolves upon the 
 trial judge to decide such preliminary matters of fact without the 
 assistance of the jury.*^ It sometimes happens, however, that the 
 fact upon which the admissibility of evidence depends is a material 
 and issuable fact in the case; for example, the admissibility of a 
 deed may depend upon whether it has been executed, that being a 
 
 37 Parsons v. Hooper, 16 Gratt. (Va.) 64. 
 
 S8 Bedell v. Janney, 9 111. 193; Harris v. Holmes, 30 Vt. 352; Mosely V. 
 Gordon, 16 Ga. 384; State v. McAllister, 24 Me. 139. 
 
 39 Rogers V. Brent, 10 111. 573; Doe ex dem. Davenport v. Harris, 27 
 Ga 68. 
 
 40 Carlisle v. Hunley, 15 Ala. 623; Florey v. Plorey, 24 Ala. 241; Dela- 
 ware Canal Co. v. Barnes, 31 Pa. St. 193. 
 
 41 Downing v. DeKlyn, 1 E. D. Smith (N. Y.) 563; State v. Cherry, 63 
 N. C. 493. 
 
 42 Com. V. Coe, 115 Mass. 481; as to admissibility ot confessions. State 
 V. Carson, 36 S. C. 524; as to the privilege "or competency of a witness, 
 Childs v. Merrill, 66 Vt. 302; see also § 796, infra; as to admissibility oi 
 documents, Com. v. Coe, 115 Mass. 481; see also § 714 supra. 
 
§ 174. EELEVANCY. 197 
 
 material disputed fact. In such cases the judge does not decide 
 the preliminary issue peremptorily, but submits the testimony tend- 
 ing to prove such fact to the jury, leaving it to them to pass upon 
 its weight.*' "When the preliminary question of fact is for the 
 judge his decision must be final, if there is any proper evidence to 
 support it. As in aU questions of that nature, exceptions to the 
 ruling at the trial will be sustained only when they show clearly 
 that there was some erroneous application of the principles of law 
 to the facts of the case or that the evidence was admitted without 
 proper proof of the qualifications requisite for its competency.*" 
 The admission of testimony which at the time is irrelevant is cured 
 by the subsequent admission of proper testimony which shows the 
 former to be admissible.** It is a famiHar rule which may be im- 
 plied from all the authorities cited in this section that if the evi- 
 dence proposed is clearly irrelevant it should be rejected. And the 
 judge may reject such evidence on his own motion, whether ob- 
 jected to or not.*" 
 
 § 174 (171). Province of judge and jury.— It is a familiar rule 
 that the judge is to determine all questions of law that arise in the 
 trial of a case and that the jury are to find the facts from the evi- 
 dence introduced. But as a matter of fact judges frequently de- 
 cide questions of fact and jurors apply the law as given by the 
 court to the questions of fact involved. The jury decide upon the 
 weight of the evidence and upon the credibility of witnesses. The 
 judge passes upon the competency of the witnesses and upon the 
 admissibility of the evidence offered. The sphere of the jury as 
 compared with that of the judge is a limited one.*^ The judge in 
 a large degree controls and guides the actions of the jury from the 
 beginning to the end of the trial. The work of the jury is con- 
 fined to the determination of the ultimate facts which are the sub- 
 
 *3 Swearinger v. Leach, 7 B. Mon. (Ky.) 287; Funk v. Kincaid, 5 Md. 
 405, 1 Tbomp. Trials, § 676. 
 
 « Com. V. Coe, 115 Mass. 481. 
 
 *6 Scott V. State, 30 Ala. 503; Bell v. Chambers, 38 Ala. 660; Tilton v. 
 Tilton, 41 N. H. 479. 
 
 *s Cooper V. Barber, 24 Wend. 105. 
 
 *7 Thrasher v. Overly, 51 Ga. 91; Com. v. Coe, 115 Mass. 481; Jones v. 
 Thatcher, 41 N. H. 546; Doe v. Davis, 10 Q. B. 314. On the functions of 
 the judge and the jury in the trial of a case see a valuable article In 
 4 Harv. L. Rev. 147, by Prof. Thayer, and also § 6, Thay. Cas. Ev. See 
 extended notesi on this general subject, 72 Am. Dec. 538-549; 14 Am. St. 
 Rep. 36-48; 86 Am. Dec. 327-331, 
 
198 THE LAW OP EVIDENCE. § 174. 
 
 ject of the issue. The preliminary issues of fact that arise during 
 the trial are with few exceptions determined by the judge. In the- 
 ory the judge only determines those questions of fact which are 
 preliminary in their nature and incidental to a decision upon the 
 questions of law which are presented to him in passing on the ad- 
 mission of evidence and upon Uke questions. But in fact in various 
 ways in the exercise of their right to guide the course of the trial, 
 judges have come to exercise important functions in co-operation 
 with the jury in determining even the ultimate facts in issue. In 
 applying the various presumptions which constantly limit the judg- 
 ment of juries, in defining the meaning of the terms which juries 
 are called upon to consider, in excluding from their consideration 
 testimony which may be deemed too remote and in many other 
 ways judges impose restraints upon juries which very materially 
 limit their power.*' It is also in the province of the judge to de- 
 termine whether there is sufficient evidence in the case to warrant 
 its submission to the jury. If there is such evidence as would 
 cause reasonable men to draw different conclusions, the case should 
 be submitted to the jury. But a mere scintilla of evidence or mere 
 surmise will not sustain a refusal on the part of the judge to take 
 the case from the jury and to grant a nonsuit. The recent decis- 
 ions have extended the province of the judge in such cases and have 
 completely exploded the old doctrine by which a judge was com- 
 pelled to submit the case to the jury if there was a scintilla of evi- 
 dence to support the claim of the plaintiff. In place of the old rule 
 has come the more reasonable one that in every case there is a pre- 
 liminary question for the judge whether there is evidence upon 
 which the jury may properly proceed to find a verdict.*" When 
 
 48Bartlett v. Smith, 11 M. & W. 483; Gorton v. Hadsell, 9 Gush, 508, 
 511. 
 
 «Dwight V. Germania Ins. Co., 103 N. Y. 341, 359; Baulec v. New York 
 & H. Ry. Co., 59 N. Y. 356, 366; Hyatt v. Johnson, 91 Pa. St. 200; Im- 
 provement Co. v. Munson, 14 Wall. 442; Commissioners v. Clark, 94 U. S. 
 278, 284; Griggs v. Houston, 104 U. S. 553; Bailey v. Cleveland Rolling 
 Mills, 21 Fed. Rep. 159; Witherbee v. Wasson, 71 N. C. 451; Toomey v. 
 Railway Co., 3 C. B. N. S. 146, 91 B. C. L. 146; Sioux City Ry. Co. v. Stout, 
 17 Wall. 657, 663; Langhoff v. Milwaukee Ry. Co., 19 Wis. 489; Pitts v. 
 Cream City Ry. Co., 59 Wis. 323; Mynning v. Railway Co., 64 Mich. 93, 
 8 Am. St. Rep. 804; Sidney Co. v. School District, 122 Pa. St. 494, 9 Am. 
 St. Rep. 124; Carter v. Oliver Co., 34 S. C. 211, 27 Am. St. Rep. 815; Lin- 
 kauf v. Lombard, 137 N. Y. 417, 33 Am. St. Rep. 743; Woolwine's Admr. 
 V. Railway Co., 36 W. Va. 329, 32 Am. St. Rep. 859. 
 
§ 174. EELEVANOT. 
 
 199 
 
 the evidence with all the inferences that the jury can justifiably 
 draw from it is insufScient to support a verdict for the plaintiff, it 
 is the duty of the court to take the case from the jury and to 
 direct a verdict or grant a nonsuit ag the facts of the case may war- 
 rant.°° It is proper for the court to so instruct the jury when the 
 evidence has been too loose and inconclusive to establish the facts 
 sought to be proved without indulging in mere conjecture or specu- 
 lation." But the judge should not in so doing encroach upon the 
 province of the jury by dictating or influencing their verdict when 
 there is any sufficient evidence which tends to show that there are 
 two sides to the controversy. In a recent case in the federal su- 
 preme court Justice Swayne said : ' ' Though the duties of the court 
 and jury are correlative, they are distinct; and it is important to 
 the right administration of justice that they should be kept so. It 
 is as much within the province of the jury to decide questions of 
 fact as of the court to decide questions of law. The jury should 
 take the law as laid down by the court and give it full effect. But 
 its application to the facts — and the facts themselves — it is for 
 them to determine. These are the checks and balances which give 
 to the trial by jury its value. Experience has proved their impor- 
 tance. They are indispensable to the harmony and proper efficacy 
 of the system.'"'* The judge, however, may exercise a reasonable 
 discretion in reviewing the evidence to aid the jury in arriving at a 
 just conclusion. It does not necessarily follow that it is error for 
 the judge to so charge the jury that they are able to infer the view 
 entertained by him as to the facts in issue. If the language of the 
 
 60 Hunt V. Chosen Friends, 64 Mich. 671, 8 Am. St. Rep. 855; Beard v. 
 Railway Co., 79 Iowa, 518, 18 Am. St. Rep. 381; Anthony v. Wheeler, 130 
 III. 128, 17 Am. St. Rep. 281; Deyo v. Railway Co., 34 N. Y. 9, 88 Am. 
 Dec. 418; Achtenhagen v. Watertown, 18 Wis. 331; Metropolitan- Ry. Co. 
 V. Moore, 121 U. S. 558; Ellis v. Ohio Life Ins. Co., 4 Ohio St. 628, where 
 it was contended by counsel that a nonsuit infringed on the constitutional 
 right of trial by jury. 
 
 61 Spring Gardens Ins. Co. v. Evans, 9 Md. 1, 66 Am. Dec. 308; Sprigg 
 V. Moale, 28 Md. 497, 92 Am. Dec. 698; Alexander v. Harrison, 38 Mo. 258, 
 90 Am. Dec. 431; Satterwhite v. Hicks, Busb. (N. C.) 105, 57 Am. Dec. 
 577; Riggin v. Insurance Co., 7 Harr. & J. (Md ) 279, 16 Am. Dec. 302. 
 See notes, 72 Am. Dec. 538-549; 14 Am. St. Rep. 36-48. 
 
 62 Hickman v. Jones, 9 Wall. 197, 201, 202; Houghtallng v. Ball, 19 
 Mo. 84, 59 Am. Dec. 331; White v. Hass, 32 Ala. 430, 70 Am. Dec. 548; 
 Wilson V. Huston, 13 Mo. 146, 53 Am. Dec. 138; Trovillo v. Tilford, 6 
 Watts (Pa.) 468, 31 Am. Dec. 484; Claflin v. Rosenberg, 42 Mo. 439, 97 
 Am. Dec. 336; Garner v. State, 28 Pla. 113, 29 Am. St. Rep. 232. 
 
200 THE LAW OF EVIDENCE. § 175. 
 
 court is merely advisory and not intended to fetter the exercise of 
 the judgment of the jury he may recapitulate the evidence calling 
 their attention to undisputed facts, refreshing their memory as to 
 important matters and thus directing their attention to the real 
 points in issue.^' The control of the judge over the part in the 
 trial taken by the jury does not end when the verdict is rendered; 
 for it is the duty of the court to set the verdict aside if unwarranted 
 by the evidence and to grant a new trial."* 
 
 § 175 (172). Same — Mixed questions of law and fact — Con- 
 struction of writings — Statutes, etc. — The blending of questions 
 of law and fact often makes it difficult to apply the rule that ques- 
 tions of fact are to be determined by the jury and questions of law 
 by the judge. Many actions, such as those for malicious prosecu- 
 tion, for fraud and for negligence,'"' arise from causes involving 
 both questions of law and of fact.^° In such cases it is the general 
 rule that the question is to be left to the jury to decide after they 
 have been properly instructed by the judge as to the law applica- 
 ble to the case.''' The most perplexing of these mixed questions of 
 
 63Nudd V. Burrows, 91 U. S. 426, 439; Wright v. Mulvaney, 78 Wis. 89; 
 Cobb V. Covenant Ass'n, 153 Mass. 176; Hurlburt v. Hurlburt, 128 N. T. 
 420; McCIain v. Com., 110 Pa., St. 263. 
 
 6* This is elementary and cases need not be cited. 
 
 65 Fraud, Dowd v. McCraw, 8 Ark. 83, 46 Am. Dec. 301; negligence, Wa- 
 bash Ry. Co. V. Locke, 112 Ind. 404, 2 Am. St. Rep. 193 ; malicious prosecu- 
 tion. Gulf Ry. Co. V. James, 73 Tex. 12, 15 Am. St. Rep. 743. 
 
 66 The province of the judge and jury relative to questions of mixed 
 law and fact is stated in the following eases: Minor v. Edwards, 12 Mo. 
 137, 49 Am. Dec. 121; Martin v. Broach, 6 Ga. 21, 50 Am. Dec. 306; 
 Roth v. Railway Co., 34 N. Y. 548, 90 Am. Dec. 736. 
 
 5? Hutchinson v. Bowker, 5 M. & W. 535; Townsend v. State, 2 Blackf. 
 (Ind.) 151; Beaman v. Russell, 20 Vt. 205, 49 Am. Dec. 775; Gulf Ry. Co. 
 v. James, 73 Tex. 12, 15 Am. St. Rep. 743. The distinction between ques- 
 tions of law and of fact as drawn by the courts is illustrated by the fol- 
 lowing cases: Question of law for the court — the term when a judgment 
 was entered, Adams v. Betz, 1 Watts (Pa.) 425, 26 Am. Dec. 29; what are 
 the general customs of a country, Bodfish v. Pox, 23 Me. 90, 39 Am. Dec. 
 611; what is a waiver, Spring Gardens Ins. Co. v. Evans, 9 Md. 1, 66 Am. 
 Dec. 308; what acts constitute an abandonment of a contract, Dula v. 
 Cowles, 7 Jones (N. C.) 290, 75 Am. Dec. 463. Questions of fact for the 
 jury — what are appurtenances, Hall v. Benner, 1 Pen. & W. (Pa.) 402, 
 21 Am. Dec. 394; whether a party had notice of an assignment, Marr v. 
 Hanna, 7 J. J. Marsh. (Ky.) 642, 23 Am. Dec. 449; existence of boundary, 
 Newman v. Poster, 3 How. (Miss.) 383, 34 Am. Deo. 98; existence of 
 custom or usage that is not general, that is confined to one locality, 
 Farnsworth v. Chase, 19 N. H. 534, 51 Am. Dec. 206; Bodflsh v. Fox, 23 
 
§ 175. EELEVANCT. 201 
 
 law and fact are those arising in the decision of cases involving 
 questions of what is reasonable care or reasonable time. The au- 
 thorities in order to promote uniformity and certainty in the law 
 are inclined to leave the determination of such questions to the 
 court, if the particular case can be decided according to settled 
 legal principles without passing judgment on the facts. But many 
 of the cases involve such complicated questions of fact as to make 
 it impossible to separate them from the questions of law and in 
 those cases the whole matter has to be left to the jury for decision.''* 
 It is firmly established and universally recognized that the judge is 
 to construe and interpret the contracts and other written instru- 
 ments of every description that are offered in evidence. Their con- 
 struction and interpretation are governed by the established rules 
 of law of which knowledge on the part of the jury cannot be pre- 
 sumed. And hence the question must be left to the court.^" "Of 
 a great part of the writings brought under judicial consideration, 
 it is true that they were made, as Bracton says, to eke out the short- 
 ness of human life, ad perpetuam memoriam, propter brevem homi- 
 num vitam. Such things, so important, so long enduring, should 
 
 Me. 90, 39 Am. Dec. 611; delivery, Atwell v. Miller, 6 Md. 10, 61 Am. Dec, 
 294; rescission of contract. Blood v. Enos, 12 Vt. 625, 36 Am. Dec. 363; 
 whether a contract was made for illegal purposes. Bellows v. Russell, 20 
 N. H. 427, 51 Am. Dec. 238; whether a deed has been delivered, Hannah 
 V. Swarner, 8 Watts (Pa.) 9, 34 Am. Dec. 442. 
 
 osAymar v. Beers, 7 Cow. 705, 17 Am. Dec. 538; Gilmore v. Wilbur, 12 
 Pick. 120, 22 Am. Dec. 410; Morse v. Bellow, 7 N. H. 549, 28 Am. Dec. 
 372 ; Dwinel v. Veazie, 44 Me. 167, 69 Am. Dec. 94 ; Luckhart v. Ogden, 
 30 Cal. 547; Howe v. Huntington, 15 Me. 350; Tindal v. Brown, 1 T. R. 
 167; Spoor v. Spooner, 12 Met. 281, 284; Gammon v. Abrams, 53- Wis. 
 323; Lamb v. Camden Ry. Co., 2 Daly (N. Y.) 454, 473; Cochran v. Toher, 
 14 Minn. 385, 389; Magee v. Carmack, 13 111. 289, 291; Nudd v. Wells, 
 11 Wis. 407. See extended note in 17 Am. Dec. 544-549, showing the ap- 
 plication of the rule to a large variety of cases. 
 
 69 Sidwell V. Evans, 1 Pen. & W. (Pa.) 383, 21 Am. Dec. 387; Drew v. 
 Towle, 30 N. H. 531, 64 Am. Dec. 309; Hamilton v. Liverpool Ins. Co., 136 
 U. S. 255; Randall v. Thornton, 43 Me. 226, 69 Am. Dec. 56; Levy v. 
 Gadsby, 3 Cranch, 180; Smith v. Clayton, 29 N. J. L. 357; Illinois Central 
 Ry. Co. V. Cassell, 17 III 389; Snyder v. Kurtz, 61 Iowa, 593; McKlnzie 
 V. Sykes, 47 Mich. 294; Welsh v. Dusar, 3 Binn. (Pa.) 329; Neilson v. 
 Hartford, 8 M. & W. 832; Goddard v. Poster, 17 Wall. 123; Luckhart v. 
 Ogden, 30 Cal. 547; Auffmordt v. Stevens, 46 Conn. 411; Russell v. Arthur, 
 17 S. C. 477; United States v. Shaw, 1 Cliff. (U. S.) 317; Begg v. Forbes, 
 30 Bng. L. & Eq. 508; Reissner v. Oxley, 80 Ind. 580; Warner v. Milten- 
 berger, 21 Md. 264, 83 Am. Dec. 573; Bedard v. Bonville, 57 Wis. 270. See 
 extended note, 69 Am. Dec. 454, on this general topic. 
 
202 THE LAW OP EVIDENCE. § 175. 
 
 have a fixed meaning; should not be subject to varying interpreta- 
 tions; should be interpreted by whatever tribunal is most perma- 
 nent, best instructed, most likely to adhere to precedents. ' ' "'' The 
 legal effect and scope of written instruments often involve intricate 
 questions of law which can only be properly passed upon by one 
 well versed in the principles of the law, so that their construction 
 is always a question for the court rather than for the jury.*^ But 
 when a written instrument cannot be construed without the aid of 
 parol evidence or the reference to facts outside the writing itself ^- 
 or when its construction involves questions of fact, the instrument 
 should be submitted to the jury rather than to the judge to find the 
 facts. But the legal effect of the contract is still a question of law 
 for the judge. ^' The rule is the same when the instrument con- 
 tains technical terms or words peculiar to some particular occupa- 
 
 «o Thayer, Cas. EIv. p. 148. 
 
 «i Warren y. Miltenberger, 21 Md. 264, 83 Am. Dec. 573 ; Stevens v. Hol- 
 lister, 18 Vt. 294, 46 Am. Dec. 154; Peterson v. Lark, 24 Mo. 541, 69 Am. 
 Dec. 441; Hurley v. Morgan, 1 Dev. & B. (N. C.) 425, 28 Am. Dec. 579; 
 Adams v. Betz, 1 Watts (Pa.) 425, 26 Am. Dec. 79. See note, 69 Am. Dec. 
 454, 460. Tkls is true of the construction of statutes, city ordinances, and 
 by-laws, Barnes y. Mayor, 19 Ala. 707; Fairbanks v. Woodhouse, 6 Cal. 
 433; Denver Ry. Co. v. Olsen, 4 Colo. 239; Peoria v. Calhoun, 29 111. 317; 
 Maltus v. Shields, 2 Met. (Ky.) 553; Bonine v. Richmond, 75 Mo. 437; 
 and of such written and unwritten law of foreign countries as have been 
 proved, Sidwell v. Evans, 1 Pen. & W. (Pa.) 383, 21 Am. Dec. 387; Cecil 
 V. Barry, 20 Md. 287, 83 Am. Dec. 553; Consequa v. Willings, 1 Peters 
 C. C. 225; Kline v. Baker, 99 Mass. 253; Charlotte v. Chouteau, 33 Mo. 
 194; State v. Jackson, 2 Dev. (N. C.) 563; Ennis v. Smith, 14 How. 400; 
 Ufflord V. Spaulding, 156 Mass. 65; Insurance Co. v. Wright, 60 Vt. 522; 
 Alexander v. Pennsylvania Co., 48 Ohio St. 623; Hawes v. State, 88 Ala. 
 37; note Thayer, Cas. Ev. p. 154; as well as of treaties, Harris v. Doe, 4 
 Blackf. (Ind.) 369. 
 
 62 Watson V. Blaine, 12 Serg. & R. (Pa.) 131, 14 Am. Dec. 669; Edelman 
 V. Yeakel, 27 Pa. St. 26; School District v. Lynch, 33 Conn. 330; Symmes 
 V. Brown, 13 Ind. 318; Ganson v. Madigan, 15 Wis. 144, 82 Am. Dec. 659; 
 Bedard v. Bonville, 57 Wis. 270; Etting v. Bank, 11 Wheat. 59; Gibbs v. 
 Gilead Society, 38 Conn. 153; First National Bank v. Dana, 79 N. Y. 108; 
 Wheeler v. Schroeder, 4 R. I. 383; Taylor v. McNutt, 58 Tex. 71; Brad- 
 ford V. Railway Co., 7 Rich. L. (S. C.) 201, 62 Ain. Dec. 411. 
 
 83 Sidwell V. Evans, 1 Pen. & W. (Pa.) 383, 21 Am. Dec. 387; Fagen v. 
 Connoly, 25 Mo. 94, 69 Am. Dec. 450, and extended note; Miller v. Ford, 
 4 Rich. L. (S. C.) 376, 55 Am. Dec. 087; Atwell y. Miller, 6 Md. 10, 61 
 Am. Dec. 294. This proposition is also sustained by the great majority of 
 the cases cited in note 59, supra, to this section. 
 
§ 175a. EELEVANCT. 203 
 
 tion or business °* or when it is obscure or ambiguous because poorly 
 written or partly erased.^' 
 
 § 175a (173). The court decides questions of law — Criminal 
 cases. — "While occasionally a case holds that the jury have the 
 right to determine the law of the case,*" yet the great weight of au- 
 thority establishes the rule that questions of law are to he decided 
 by the court. The real exceptions to this rule are mostly cases de- 
 cided under constitutional or statutory provisions that make the 
 jury judges of the law and of the fact in certain criminal actions. 
 Some cases also hold that the jury are to determine the law in 
 criminal cases, but this is contrary to the great weight of authority. 
 Many of the cases that seem to sustain this rule really depend upon 
 the fact that in case of acquittal in a criminal prosecution no new 
 trial can be granted whether the jury have taken the interpreta- 
 tion given to the law by the judge or not. This is, however, not 
 because the jury have the right to finally decide the law, but be- 
 cause no man can be tried for an offence of which he has once been 
 acquitted."'' 
 
 6* Lucas v. Groning, 7 Taunt. 164; Rees v. Warwick, 2 Barn. & Aid. 
 113; Smith v. Thompson, 8 C. B. 44; Brown v. McGran, 14 Peters, 479; 
 Simpson v. Margitson, 11 Adol. & Ell. N. S. 23, 63 B. C. L. 23; Bowes v. 
 Shand, L. R. 2 App. Gas. 530; Alexander v. Vanderzee, L. R. 7 C. P. 530; 
 Goddard v. Foster, 17 Wall. 123; McAvoy v. Long, 13 111. 147; Williams 
 V. Woods, 16 Md. 220; Prather v. Ross, 17 Ind. 495; Eaton v. Smith, 20 
 Pick. 150; Silverthorne v. Powle, 4 Jones (N. C.) 362. 
 
 65 Holland v. Long, 57 Ga. 36; Paine v. Ringold, 43 Mich. 341. But where 
 the ambiguity is in the words themselves, the court will determine their 
 meaning, if possible, itself. Morrell v. Frith, 3 M. & W. 402. 
 
 6« Many of these cases are in such actions as those for libel. See the 
 case of King v. Dean of St. Asaph, 3 T. R. 428. 
 
 87 Maryland, Louisiana, Illinois, Indiana and Georgia have such a pro- 
 vision in their constitutions. For an excellent and exhaustive review of 
 the authorities, see State v. Burpee, 65 N. H. 1, 36 Am. St Rep. 775. See 
 also Com. v. Porter, 10 Met. 263, a leading case. 
 
CHAPTER 6, 
 
 BURDEN OP PROOF. 
 
 § 176. Burden of proof — On whom does it lie? 
 
 177. Same — Shifting of the burden. 
 
 178. Same — Form of pleadings. 
 
 179. Same — Plaintiff generally has the burden — Exceptions. 
 
 180. How affected by form of issue — Whether affirmative or negative. 
 
 181. Burden as to particular facts lying peculiarly within the knowl- 
 
 edge of a party. 
 
 182. Actions against common carriers — Telegraph companies. 
 
 183. Same, continued. 
 
 184. Same — Negligence — Setting of fires, etc 
 
 185. Contributory negligence. 
 
 186. Burden in cases of bailment. 
 
 187. Innkeepers. 
 
 188. Insanity — Civil cases — Criminal. 
 
 189. Burden in probate of wills — Testamentary capacity. 
 
 190. Burden of proof as between persons in a fiduciary relation. 
 
 191. Same — ^In respect to wills. 
 
 192. Burden as to crimes — Fraud. 
 
 193. Burden in quo warranto proceedings. 
 
 194. Burden as to statutes of limitation. 
 
 195. Burden and weight of proof where crime is In issue in civil cases. 
 
 196. Statutes as to burden of proof. 
 
 197. The right to begin and reply. 
 
 198. Same, continued 
 
 § 176 (174). Burden of proof— On whom does it lie?— Mr. Step- 
 hen thus states the rule which prevails in England for determin- 
 ing on whom the general burden of proof 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 proceedings go 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. "^ This rule has been quite generally approved in this 
 
 1 Steph. Ev. art. 95. 
 
§ 176. BURDEN OF PROOF. 205 
 
 coimtiy.' Whenever litigation exists somebody must go on with it ; 
 the plaintiff is the first to begin ; if he does nothing, he fails. If he 
 makes a prima facie case and nothing is done to answer it, the de- 
 fendant fails. The test, therefore, as to the burden or onus of 
 proof is simply to consider which party would be successful if no 
 evidence were given, or if no more evidence were given than has 
 been given at a particular point of the case; for it is obvious that 
 during the controversy in the litigation there are points at which 
 the onus of proof shifts and at which the tribunal must say, if the 
 ease stopped there, that it must be decided in a particular manner. 
 Such being the test, the burden cannot rest forever upon the one 
 on whom it is first cast; but as soon as he in his turn brings evi- 
 dence which prima facie rebuts the evidence against which he is 
 contending, the burden shifts again until there is evidence which 
 once more turns the scale.' That being so, the question as to onus 
 of proof is only a rule for deciding on whom the obligation rests of 
 going further, if he wishes to win. The words "burden of proof" 
 are so often used by different parties to convey such widely differ- 
 ent ideas that no very satisfactory statement of their meaning can 
 be made. A learned author in a very able discussion has well 
 pointed out the confusion of ideas upon the subject and shown that 
 the phrase "burden of proof" is used in three ways: (1) to indi- 
 cate the duty of bringing forward argument or evidence in support 
 of a proposition at the beginning or later; (2) to mark that of es- 
 tablishing a proposition as against all counter argument or evi- 
 dence; (3) an indiscriminate use ia which it may mean either or 
 both of the others.* 
 
 ^1 Whart. Ev. § 357; Poster v. Reld, 78 Iowa, 205, 16 Am. St. Rep 
 437, and note; Wetherell v. Hollister, 73 Conn. 622, 48 Atl. 826; Mclntyre 
 V. Ajax Min. Co., 20 Utah, 323, 60 Pac. 552; McFerran v. McFerran (Ky.), 
 51 S. W. 306. This is illustrated by many cases cited in this chapter. 
 See notes, 37 Am. Rep. 148; 28 Am. Rep. 308, for a discussion of burden 
 of proof in general. 
 
 3 Albrath v. Northeastern Ry. Co., L. R. 11 Q. B. Div. 79, 11 App. 
 Cas. 247. 
 
 4 Thayer, Prel. Treat, on Ev. p. 355 et seq.; Supreme Tent v. Stensland, 
 206 111. 124, 99 Am. St. Rep. 137. Refusal to charge as to the burden of 
 proof, if not covered by the main charge, has been held reversible error 
 in civil cases. Schillinger v. Town of Verona, 88 Wis. 317, 321; Cleve- 
 land, C. C. & St. L. Ry. Co. v. Richey, 43 111. App. 247; Gordon v. Rich- 
 mond, 83 Va. 436; Texas Ry. Co. v. Ayres, 83 Tex. 268. The rule is the 
 same In criminal cases. Reeves v. State, 29 Pla. 527; Hurd v. State, 94 
 
206 THE LAW OF EVIDENCE. § 177. 
 
 § 177 (175). Same — Shifting of the burden. — ^In Massachusetts 
 there is a line of judicial decisions in which the attempt hasi been 
 made to clearly distinguish between the terms "burden of proof" 
 and "weight of evidence;" it is there insisted that, while the latter 
 shifts from side to side in the progress of a trial according to the 
 nature and strength of the proof offered, the burden of proof does 
 not shift or change in any aspect of the case.° "While the Massa- 
 chusetts casies are sometimes quoted with approval on this point 
 in other states, this attempt to thus restrict the meaning of the 
 term "burden of proof" does not seem to have met with general 
 approval ; " and the labored distinctions which in numerous casies 
 have been made between the "weight of evidence" and the "bur- 
 den of proof" have been of but little practical value. In those 
 cases where the answer is a mere general denial and the defendant 
 only assumes to rebut the plaintiff's proof, it may be properly said 
 that the burden of proof is upon the plaintiff throughout and that 
 it never shifts.' Nor is the burden of proof shifted by the mere 
 fact that evidence is offered against the defendant of his admission 
 of the breach of duty charged against him. In an action for negli- 
 gence where it was claimed that the default was admitted, the 
 court said: "Upon this question the plaintiffs held the affirmative 
 throughout the trial; and their relation to the question never 
 -changed. During the progress of a trial it often happens that a 
 party gives evidence tending to establish his allegation, sufficient 
 it may be to establish it prima facie, and it is sometimes said that 
 the burden of proof is then shifted. AH that is meant by this is 
 that there is a necessity of evidence to answer the prima facie case 
 or it will prevail, but the burden of maintaining the affirmative of 
 
 Ala. 100; State v. Graham, 96 Mo. 120; Pierce v. State (Tex.), 22 S. W. 
 Rep. 587. 
 
 Central Bridge Co. v. Butler, 2 Gray, 132 ; Powers v. Russell, 13 Pick. 
 76; Gay v. Bates, 99 Mass. 263; Nichols v. Munsel, 115 Mass. 567; Rupp 
 V. Sarpy County (Neb.), 102 N. W. 242; Klunk v. Hocking Valley Ry. Co.. 
 74 Ohio St. 125, 77 N. E. 752; Gibbs v. Bank, 123 Iowa, 742, 99 N. W. 705; 
 4 Harv. L. Rev. 4'5; Heinemann v. Heard, 62 N. Y. 448; Clark v. Hills, 
 07 Tex. 141. 
 
 8 See discussion, Thayer, Prel. Treat, on Ev. p. 355 et seg., and cases 
 cited. 
 
 'Rothrock v. Perkinson, 61 Ind. 39; Jarboe v. Sohreb, 34 Ind. 350; 
 Lafayette Ry. Co. v. Ehman, 30 Ind. 83; Beringer v. Lake Superior Iron 
 Co., 41 Mich. 305; Ingals v. Eaton, 25 Mich. 32; Lafayette v. Wortman, 
 107 Ind. 404; Wilder v. Cowles, 100 Mass. 487; Tennessee Coal, Iron & 
 Ry. Co. T. Hamilton, 100 Ala. 252. 
 
§ 178. BURDEN OP PROOF. 207 
 
 the issue involved in the action is upon the party alleging the fact 
 which constitutes the issue; and this burden remains throughout 
 the trial. " * It is held that the burden of proof does not shift after 
 the formal proof of a will is made where the issue is the sanity of 
 the testator, but throughout the case the issue is the same and the 
 burden of proof is upon the proponent. And in criminal cases it is 
 the prevailing rule that the burden of proving the defendant's 
 guilt upon the whole testimony remains on the prosecution through- 
 out the case. The application of this general rule in cases where 
 insanity is urged as a defense is discussed elsewhere. Where a de- 
 fendant introduces proof that he was not present when the alleged 
 offense was committed, the burden of proof is not changed; it is 
 the duty of the jury to consider all the evidence in the case includ- 
 ing that relating to the alibi and to determine from the whole evi- 
 dence whether it is shown beyond a reasonable doubt that the de- 
 fendant committed thie crime charged." The same reasoning ap- 
 plies when the defendant offers evidence of self-defense.^'^ 
 
 § 178 (176). Same— Form of pleadings.— In actions for tort the 
 burden is clearly upon the plaintiff to prove the charge, including 
 the extent of the injury and the malice or other acts of aggrava- 
 tion, if exemplary damages are claimed; and throughout the trial 
 the onus remains upon him to prove the acts complained of .^^ But 
 if the defendant pleads a release, a discharge in bankruptcy or 
 other substantive defense,^' the burden is shifted upon him to prove 
 such affirmative defense. On the other hand if the formal execu- 
 tion of such release is admitted by the plaintiff, and if he claims 
 
 8 Helnemann v. Heard, 62 N. Y. 448. 
 
 » See §§ 188, 192. As to aliU, Schultz v. Territory, 5 Ariz. 239, 52 Pac. 
 352; People v. Roberts, 122 Cal. 377, 55 Pac. 137; McNamara v. People, 24 
 Colo. 61, 48 Pac. 541; Peyton v. State, 54 Neb. 188. 74 N. W. 597. 
 
 loHenson v. State (Ala.), 21 So. 79; State v Shea, 104 Iowa, 724, 74 
 N. W. 687; Gravely v. State, 38 Neb. 877, 57 N. W. 751. Contra, Tucker 
 V. State, 89 Md. 471, 43 Atl. 778; State v. Barringer, 114 N. C. 840, 19 
 S. E. 275. 
 
 11 Morrissey v. Chicago, B. & Q. Ry. Co., 38 Neb. 406. 
 
 12 Robinson v. Hitchcock, 8 Met. 64; Blanchard v. Young, 11 Cush. 341; 
 Moore v. Barber Asphalt Co. (Ala.), 23 So. 798; Johnson v. Berdo (Iowa), 
 106 N. W. 609; Molaske v. Ohio Coal Co., 86 Wis. 220; Thomas v. Funk- 
 hauser, 91 Ga. 478, local custom; Blunt v. Barrett, 124 N. Y. 117, permis- 
 sion; Alabama, G. S. Ry. Co. v. Frazier, 93 Ala. 45, necessity; Moffat v. 
 Moffat (Iowa), 57 N. W. 954, payment to agent; Shmit y. Day (Ore.), 39 
 Pac. 870, assignment of contract for work under which an injury oc- 
 curred. 
 
208 THE LAW OP EVIDENCE. § 179. 
 
 that the release was obtained hy fraud, the burden is again shifted 
 upon him to prove the fraud vrhich he alleges.^^ So where the 
 plaintiff replies to the plea of former recovery that the same was 
 a voluntary nonsuit, the burden of proving this allegation is shifted 
 back to the plaintiff.^* In actions against a common carrier the 
 burden is first upon the passenger or shipper to prove injury or 
 loss, but the onus then shifts to the other side to show that the loss 
 or injury happened under such circumstances that no liability 
 arose.^^ So in actions upon contract the burden is in the first in- 
 stance upon the plaintiff to prove its execution unless it is admit- 
 ted, but the burden then shifts upon the defendant to prove any 
 substantive defense he may have.^" 
 
 § 179 (177). Same — Plaintiff generally has the burden — Excep- 
 tiops. — Of course the pleadings are the guide in the first instance ; 
 and pleadings are so framed that in most cases the plaintiff is the 
 actor who must take the initiative and the one on whom the burden 
 of proof rests. Ordinarily, in the absence of any evidence on either 
 side, the plaintiff's action would fail, but this is not necessarily 
 true. For example, in an action on contract the defendant may 
 
 i» Robinson v. Hitchcock, 8 Met. 64 ; Dalrymple v. Hillenbrand, 62 N. Y. 
 5, 20 Am. Rep. 438; Reeve v. Liverpool Ins. Co., 39 Wis. 520; Peldman 
 V. Gamble, 26 N. J. Eq. 494. 
 
 1* Bernard v. Babbitt, 54 111. App. 62; Meeh v. Railway Co., 61 Kan. 
 630, 60 Pac. 319. 
 
 15 See § 183, infra. 
 
 i«Sucli as usury. Cutter v. Wrigbt, 22 N. Y. 472; Hough v. Hamlin, 57 
 Iowa, 359; payment, Crowninshield v. Crowninshield, 2 Gray, 524; Powers 
 V. Russell, 13 Pick. 69; De Land v. Dixon Nat. Bank, 111 111. 323; Harris 
 V. Merz Iron Works, 82 Ky. 200; Smith's Appeal, 52 Mich. 415; North 
 Pennsylvania Ry. Co. v. Adams, 54 Pa. St. 94; McCormick v. Sadler 
 (Utah), 40 Pac. 711; settlement, Baumier v. Antiau, 79 Mich. 409; record 
 of instrument, Warner v. Warner, 30 Ind. App. 578, 66 N. E. 760; warranty, 
 Johnston v. Johnston, 26 Neb. 745; release, Blanchard v. Young, 11 
 Cush. 341; set off or counter-claim, McQuinn v. People's Nat. Bank, 111 
 N. C. 509; Davis-Colby Ore-Roaster Co. v. Rogers, 191 Pa. St. 229, 43 Atl. 
 567; Liberty- Wall Paper Co. v. Stoner Wall Paper Mfg. Co., 178 N. Y. 
 219, 70 N. E. 501; rescission, Webber v. Dunn, 71 Me. 331; Gibson v. Vet- 
 ter, 162 Pa. St. 26; Sparks v. Sparks, 51 Kan. 195; Coffin v. President 
 Grand Rapids Hydraulic Co., 136 N. Y. 655; false imprisonment. Ward 
 V. Tucker, 7 Wash. 399; non-fulfillment of contract, Henderson v. City of 
 Louisville (Ky.), 4 S. W. 187; Bliley v. Wheeler (Colo. -App.), 38 Pac. 
 603; mistake in written contract, Church of Christ v. Beach, 7 Wash. 65; 
 trespass — plea of title in defendant, Ballard v. Carmichael, 83 Tex. 355; 
 loant of authority to execute a note. Temple St. Ry. Co. v. Hellman, 103 
 Cal. 634. 
 
§ 180. BURDEN OF PROOF. 209 
 
 admit the due execution of the contract but set up an independent 
 defense. In such eases he becomes the actor ; and it is incumbent 
 upon him to establish the affirmative defense which he alleges." 
 This is well illustrated in actions on insurance policies where the 
 answer admits the issuing of the policy and the loss and damages 
 claimed, but alleges a breach of conditions ; in such cases the plaint- 
 iff is entitled to a verdict unless the defendant satisfies the jury- 
 that the conditions have been broken. ^ Nor is the rule changed in 
 eases where the complaint alleges that none of the conditions of the 
 policy have been broken and where the answer denies such allega- 
 tion, since that is an allegation which it is not necessary for the 
 plaintiff to make or prove.^' In the instances above cited it ap- 
 peared from the state of the pleadings that the burden of proof 
 rested, not with the plaintiff, but with the defendant. When the 
 form of the pleadings is such that at the beginning the burden ia 
 cast upon the plaintiff and he establishes his prima facie case, the 
 burden of answering such case must then be met by the defendant 
 or the plaintiff prevails. 
 
 § 180 (178). How affected by form of issue— Whether affirma- 
 tive or negative. — The early text writers declared the burden of 
 
 IT Such as want of consideration, Delano v. Bartlett, 6 Cush. 364; Pratt 
 V. Langdon, 97 Mass. 97, 93 Am. Dec. 61; Cook v. Noble, 4 Ind. 221; Topper 
 V. Snow, 20 111. 434; Emery v. Bstes, 31 Me. 155; Craig v. Proctor, 6 
 R. I. 547; accord and satisfaction, American v. Rimpert, 75 111. 228; war- 
 ranty, Johnston v. Johnston, 26 Neb. 745; Gile v Sawtelle, 94 Me. 46, 46 
 Atl, 786; Tacoma Coal Co. v. Bradley, 2 Wash. 600, 26 Am. St. Rep. 890, 
 and note; fraud, DaWymple v. Hillenbrand, 62 N. Y. 5, 20 Am. Rep. 438; 
 Reeve v. Liverpool Ins. Co., 39 Wis. 520; Peldman v. Gamble, 26 N. J. Eq 
 494; Continental Life Ins. Co. v. Rogers, 119 111. 474; illegality, Bennett v. 
 Covington, 22 Fed. 816; Jones v. Ames, 135 Mass. 431; usury, Cutter v. 
 Wright, 22 N. Y. 472; Hough v. Hamlin, 57 Iowa, 359; release by discharge 
 in insolvency or bankruptcy, Blanchard v. Young, 11 Cush. 341; Cooper 
 v. Cooper, 9 N. J. Eq. 566; payment. Tootle v. Maben, 21 Neb. 617, and 
 cases cited in note 16 to the last section; settlement of the matters in 
 controversy, Baumier v. Antiau, 79 Mich. 509; alteration. Wing v. Stew- 
 ard, 68 Iowa, 13, or rescission of contract, Webster v. Dunn, 71 Me. 331. 
 
 IS Murray v. N. Y. Life Ins. Co., 85 N. Y. 236; Jones v. Brooklyn Ins. 
 Co., 61 N. Y. 79; Van Valkenburg v. American Ins. Co., 70 N. Y. 605; 
 Supreme Tent v. Stensland, 206 111. 124, 68 N. E. 1098, 99 Am. St. Rep. 
 137; National Benev. Ass'n v. Grauman, 107 Ind. 288; Jones v. U. S. 
 Mutual Ace. Ass'n (Iowa), 61 N. W. 485. On the same ground as well as 
 on the ground of the presumption in favor of innocence, if the company 
 claims that the plaintiff has burned his property, it must assume the 
 burden of proof on that subject, Murray v. N. Y. Ins. Co., 85 N. Y. 236. 
 
 14 
 
210 THE LAW OF EVIDENCE. § 180. 
 
 proof to be on the party who asserts the afftrmative of the issue or 
 question in dispute. "Ei inmimbit prohatio qui dicit, non qui 
 negat."^" But it will be seen that the exceptions to this proposi- 
 tion are numerous ; and later writers have questioned the accuracy 
 of the rule. They have urged that the burden of proof does not 
 depend upon the form of the proposition, but that the burden of 
 proving any given claim or defense rests upon the one who asserts 
 it.^° "Whoever desires any court to give judgment as to any legal 
 right or liability dependent on the existence or non-existence of 
 facts which he asserts or denies to exist, must prove that those facts 
 do or do not exist. ' ' ^^ But perhaps the controversy is of little im- 
 portance, since it is conceded by those who assert the ancient rule 
 that it has exceptions, and that the burden is upon him who asserts 
 the affirmative in substance, rather than in mere form.^^ It is rea- 
 sonable that the one who asserts a fact necessary to the claim or de- 
 fense should prove such fact; and in the great majority of cases it 
 will be found that the fact to be proved is a proposition affirmative 
 in form. But it is well settled that whoever asserts a claim or a de- 
 fense which depends upon a negative must, as in other cases, estab- 
 lish the truth of the allegation by a preponderance of evidence. ^^ 
 
 "Best, Ev. (10th Ed.) § 269; Piper v. Matkins (Kan.), 55 Pac. 487. 
 
 MSteph. Ev. art. 93; Whart. Ev. sec. 353-357; Prince v. Kennedy (Cal.), 
 85 Pac. 859; Burford v. Fergus, 165 Pa. St. 310; Shattuck v. Rogers, 54 
 Kan. 66. 
 
 21 Steph. Ev. art. 93. , 
 
 22 Phil. Ev. p. 493; Greenl. Ev.'§ 74. 
 
 23 Thus the burden is upon the one asserting thfe negative where the 
 allegation is that another did not build according to certain specifica- 
 tions. Smith V. Da vies, 7 Car. & P. 307; that proper care had not been 
 used, Heineman v. Heard, 62 N. Y. 448; that certain work had not been 
 done In a worTcmanlike manner, Amos v. Hughes, 1 Moody & Rob. 464; 
 that there were no liens outstanding against a building, Turner v. Wells, 
 64 N. J. L. 269, 45 Atl. 641; that a note was without consideration, Tow- 
 sey V. Shook, 3 Blackf. (Ind.) 267, 25 Am. Dec. 108; that a note had not 
 been taken in payment for an antecedent deM, Smith v. Bettger, 68 Ind. 
 254, 34 Am. Rep. 256; Gibson v. Tobey, 46 N. Y. 637, 7 Am. Rep. 397; 
 that a pretended deed was never executed, Kerr v. Freeman, 33 Miss. 292; 
 that defendants were not legally elected directors, Carmel National Gas 
 & Imp. Co. V. Small, 150 Ind. 427, 50 N. E. 476; that an Insured person 
 was not in good health as represented in his application, Geach v. Ingall, 
 
 ' 14 M. & W. 95 ; Ashley v. Betes, 15 M. & W. 589 ; that a tenant had not 
 made repairs according to the covenants of the lease. Doe v. Rowlands, 
 9 Car. & P. 734; that a person was not a legal voter, Beardstown v. Vir- 
 ginia, 76 111. 34; that goods were not according to warranty. Dorr v. 
 
§ 181. BUEDEN OP PROOF. 211 
 
 Cases illustrating the same principle might be multiplied almost 
 indefinitely. In some of the cases cited the allegation, negative in 
 form was made by the plaintiff, in others by way of defense ; they 
 all illustrate the rule that where a claim or defense rests upon a 
 negative allegation, the one asserting such claim or defense is not 
 relieved of the onus prohamdi by reason of the form of the allega- 
 tion or the inconvenience of proving a negative. But in such cases 
 a less amount of proof than is usually required may avail. Such 
 evidence as renders the existence of the negative probable may 
 change the burden to the other party." 
 
 § 181 (179). Burden as to particular facts lying peculiarly 
 within knowledge of a party. — On principles already discussed 
 the burden of proof as to any particular fact rests upon the party 
 asserting such fact.^^ The burden of proof may during the course 
 of the trial be shifted froni one side to the other; and where the 
 fact is one peculiarly within the knowledge of one of the parties 
 slight evidence may suffice for that purpose. Many illustrations in 
 this chapter clearly show that where the facts lie solely within the 
 knowledge of one party, this is an important consideration in de- 
 termining the amount of evidence necessary to be produced by the 
 other party.^' "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 
 
 Fisher, 1 Cush. 271; that property was taken without the owner's con- 
 sent. Little V. Thompson, 2 Me. 228; R. v. Hazy, 2 Car. & P. 458; that a 
 solicitor had not used due diligence, Shilcock v. Passman, 7 Car. ,& P. 
 289; that an insured person had not used due care to avoid accident. 
 Freeman v. Travelers Ins. Co., 144 Mass. 572 (see, also, Redman v. 
 Aetna Ins. Co., 49 Wis. 431; Grangers' Life Ins. Co. v. Brown, 57 Miss. 
 308, 34 Am. Rep. 446; Geimain v. Brooklyn Life Ins. Co., 30 Hun, 535); 
 that goods entrusted to a common carrier had not been delivered, Rob- 
 erts V. Chittenden, 88 N. Y. 33, and that, in an action for malicious prose- 
 cution, there was not probable cause in the former suit, Good v. French, 
 115 Mass. 201. In actions for penalties given by statutes, where the 
 statutes contain negative matter, there must he prima facie proof to sup- 
 port the negative allegations of the complaint. Com. v. Maxwell, 2 Pick. 
 139. 
 
 2*Vigus V. O'Bannon, 118 111. 334; Beardstown v. Virginia, 76 111. 34; 
 Kelly V. Owens (Cal.), 30 Pac. Rep. 59G; Greenl.,Ev. § 78. For other 
 illustrations as to burden of proof where the allegations are negative in 
 form, see 1 Greenl. Ev. §§ 80, 81. 
 
 26 Smith V. Roach, 59 Mo. App, 115; Green v. Maloney, 7 Houst. (Del.) 22. 
 
 26 Robinson v. Robinson, 51 111. App. 317; Nunez v. Bayhi (La.), 28 So. 
 349; United States v. Denver & R. G. R. R. Co., 191 U. S. 84. 
 
212 THE LAW OF EVIDENCE. § 182. 
 
 fact shall lie on any particular person; but the burden may in 
 the course of a case be shifted from one side to the other; and in 
 considering the amonnt 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. ' ' ^^ This is often illustrated in prosecu- 
 tions for selling liquor or doing other acts without the license re- 
 quired by law. By a few authorities the rule is prescribed that in 
 such cases the prosecution must offer some slight proof of the fact 
 that no license has been granted, for example, by producing the 
 book in which licenses are recorded; and if the book fails to show 
 that a license has been granted, the burden is shifted upon the de- 
 fendant to prove the fact claimed by him ; ^^ but the greater num- 
 ber of authorities hold that where a license would be a complete de- 
 fense, the burden is upon the defendant to prove the fact so clearly 
 within his own knowledge.^'' 
 
 § 182 (180). Actions against common carriers — Telegraph com- 
 panies. — Questions have often arisen as to the burden of proof in 
 actions against railroad companies, express companies and other 
 common carriers for the loss of goods. The plaintiff must first 
 show the default of the carrier by some proof of damage or of loss 
 or of non-delivery of the goods,^" although slight evidence suf&ces.'^ 
 
 " Steph. Ev. art. 96. This is illustrated by most of the cases cited in 
 this chapter. See, also, Nicodemus v. Young, 90 Iowa, 423 57 N. W. 906, 
 where it was held that the proponent of a deed is not required to show 
 that the grantor was single or, if married, that the deed was not a deed 
 of the homestead. 
 
 28Hepler v. State, 58 Wis. 46; Com. v. Thurlow, 24 Pick. 374; State v. 
 Richison, 45 Mo. 575; Mehan v. State, 7 Wis. 670; State v. Kuhuke, 26 
 Kan. 405; State v. Nye, 32 Kan. 201. 
 
 ■2s United States v. Nelson, 29 Fed. Rep. 202 ; State v. Foster, 23 N. H. 
 348, 55 Am. Dec. 191; Com. v. Tuttle, 12 Gush. 502; State v. Bach, 36 Minn. 
 234; State v. Crowell, 25 Me. 171; State v. Emery, 98 N. 0. 668; State 
 V. Camden, 48 N. J. L. 89; Com. v. Rafferty, 133 Mass. 574; Sharp v. 
 State, 17 Ga. 290; Thomas v. State, 37 Miss. 353; Williams v. State, 35 
 Ark. 530; Haskill v. Com., 3 B. Mon. (Ky.) 342; Noecker v. People, 91 
 111. 468; Smith v. Adrian, 1 Mich. 495. In Massachusetts by statute the 
 burden of proving the license is on the defendant. Com. v. Curran, 119 
 Mass. 206. 
 
 so Baltimore Ry. Co. v. Schumacher, 29 Md. 168, 96 Am. Dec. 510; Wood- 
 bury V. Prink, 14 111. 279; Dow v. Portland Steam P. Co., 84 Me. 490, 24 
 Atl. 945; Day v. Ridley, 16 Vt. 48, 42 Am. Dec. 489; South & N. R. Ry. 
 Co. V. Wood, 71 Ala. 215, 46 Am. Rep. 309; Chicago Ry. Co. v. Northern 
 Line Packet Co., 70 111. 217. 
 
 81 Day V. Ridley, 16 Vt. 48, 42 Am. Dec. 489; Woodbury v. Frink, 14 
 
§ 182. BURDEN OF PEOOP. 213 
 
 Thereupon a prima facie case is established ; and it becomes incum- 
 ient on the carrier to prove that the loss arose from some cause for 
 which he is not liable.^^ For example, in such case the burden is 
 upon the defendant to show, if he so claims, that a given loss was 
 caused by the act of God or of the public enemy ; or that owing to 
 some other rule of law he is not liable therefor ; '" or that, by rea^ 
 son ,of the contract as expressed in the bill of lading or other form 
 of contract, the liability has been limited, and that the loss arose 
 from some cause exempted or excepted in the contract,^* or that 
 the receipt or contract limiting the liability was made under cir- 
 cumstances indicating fairness and good faith.^' It is well settled 
 that even when the contract exempts the carrier from liability in 
 certain cases, as for example fire and perils of the sea, he is still 
 liable on grounds of public policy, if the loss by reason of such 
 cause is the result of his negligence." A conflict has arisen over 
 
 111. 279; Chicago & N. W. Ry. Co. v. Dickinson, 74 111. 249; Hinkle v. Rail- 
 way Co., 126 N. C. 932, 36 S. E. 348, 78 Am. St. Rep. 685; Hudson R. L. 
 Co. V. Wheeler Cond. & Bng. Co., 93 Fed. 374; Griffiths v. Lee, 1 Car 
 & P. 110, 12 E. C. L. 74. See, also. Lamb v. Western Ry. Corp , 7 Allen, 98. 
 
 32 Nelson V. Woodruff, 1 Black. (U. S.) 156; Clark v. Barnwell, 12 How. 
 272; The Mohler, 21 Wall. 230; Boies v. Hartford Ry. Co., 37 Conn. 272, 
 9 Am. Rep. 347; Cass v. Boston Ry. Co., 14 Allen, 448; Claflln v. Meyers, 
 75 N. Y. 260, 31 Am. Rep. 467; Wilson v. Southern Pac. Ry. Co., 62 Cal. 
 164; Van Winkle v. S. C. Ry. Co., 38 Ga. 32; Little v. Boston Ry. Co., 66 
 Me. 239; Swindler v. Hilliard, 2 Rich. L. (S. C.) 286, 45 Am. Dec. 732; 
 United States Ex. Co. v. Backman, 28 Ohio St. 144; Gray v. Mobile Trade 
 Co., 55 Ala. 387; Chicago Ry. Co. v. Moss, 60 Miss. 1003, 45 Am. Rep. 
 428; Little Rock Ry. Ce. v. Talbot, 39 Ark. 523; Brown v. Adams Ex. 
 Co., 15 W. Va. 812; Mitchell v. United States Ex. Co., 46 Iowa, 214; Kirk 
 V. Folsom, 23 La. An. 584; Levering v. Union Co., 42 Mo. 88, 97 Am. Dec 
 320, and note; Hall v. Cheney, 36 N. H. 26; Shrlver v. Sioux City Ry. 
 Co., 24 Minn. 506, 31 Am. Rep. 353; Mann v. Birchard, 40 Vt. 326; Ayres 
 V. C. & N. W. Ry. Co., 71 Wis. 372, 5 Am. St. Rep. 226; Turney v. Wil- 
 son, 7 Yerg. (Tenn.) 340, 27 Am. Dec. 515; Bwart v. Street, 2 Bailey 
 (S. C.) 157, 23 Am. Dec. 131; Hunt v. Morris, 6 Mart. (La.) 676, 12 Am. 
 Dec. 489. See also notes, 53 Am. Dec. 672; 97 Am. Dec. 409. 
 
 33 Railroad Co. v. Reeves, 10 Wall. 176. 
 
 siGleeson v. Virginia Midland Ry. Co., 140 U. S. 435; Clark v. Barn- 
 well, 12 How. 272; Western Trans. Co. v. Newhall, 24 111. 466, 76 Am. 
 Dec. 760; Gaines v. Union Trans. Co., 28 Ohio St. 418; Verner v. Sweitzer, 
 32 Pa. St. 208; Bennett v. Pilyaw, 1 Pla. 403; Alden v. Pearson, 3 Gray, 
 342; Swindler v. Hilliard, 2 Rich. L. (S. C.) 286, 45 Am. Dec. 732; Ameri 
 en. Trans. Co. v. Moore, 5 Mich. 379; Browning v. Goodrich Trans. Co., 
 78 Wis. 391; Johnson v. Alabama Ry. Co., 69 Miss. 171. 
 
 36 Adams Ex. Co. v. Guthrie, 9 Bush (Ky.) 78. 
 
 36 Railroad Co. v. Lockwood, 17 Wall. 357; South. & N. Ry. Co. v. Hen- 
 leln, 52 Ala. 606, 23 Am. Rep. 578; Mich. Ry. Co. v. Heaton, 37 Ind. 448, 
 
214 THE LAW OP EVIDENCE. § 182. 
 
 the question whether the burden is on the carrier, after proof that 
 the loss resulted from an excepted risk, to also prove that there has 
 been no negligence on his part. Mr. Greenleaf thus states the view 
 maintained by one class of authorities, which in the opinion of the 
 author is the better reasoning: "And if the acceptance of the goods 
 was special, the burden of proof is still on the carrier to show, not 
 only that the cause of the loss was within the terms of the excep- 
 tion, but also that there was on his part no negligence or want of 
 due care."^' These authorities base their opinions on the ground 
 that in S;Uch cases the proof is generally in the hands of the com- 
 mon carrier; that he or his servants know or at least ought to know 
 the circumstances of the loss, while the plaintiff has no such knowl- 
 edge and consequently, if the plaintiff were required to furnish 
 proof of negligence, it would practically operate as a denial of jus- 
 tice.'° Those who maintain this view hold that the common carrier 
 can not by special contract relieve himself to any extent from losses 
 occasioned by his own negligence; that common carriers are such 
 by virtue of their occupation and not by virtue of the responsi- 
 bilities under which they rest, and that although their responsibili- 
 ties may vary the character of their employment is not changed.^" 
 But there are numerous adjudications holding that in such cases, 
 
 10 Am. Rep. 89; Kallman v. United States Ex. Co., 3 Kan. 205; Louis- 
 ville Ry. Co. V. Brownlee, 14 Bush (Ky.) 590; Newman v. Smoker, 25 La. 
 An. 303; PlUebrown v. Grand Trunk Ry. Co., 55 Me. 462, 92 Am. Dec. 606; 
 Shriver v. Sioux City Ry. Co., 24 Minn. 506, 31 Am. Rep. 353; South. Ex. 
 Co. V. Moon, 39 Miss. 822; School Dist. v. Boston Ry. Co., 102 Mass. 552, 
 3 Am. Rep. 502; Clark v. St. Louis Ry. Co., 64 Mo. 440; Knowlton v. Erie 
 Ry. Co., 19 Ohio St. 260; Pennsylvania Ry. Co. v. Butler, 57 Pa. St. 335; 
 Virginia Ry. Co. v. Sayers, 26 Gratt. (Va.) 328. 
 
 37 2 Greenl. Ev. § 219 ; Missouri Pac. Ry. Co. v. China Mfg. Co., 79 
 Tex. 26; Swindler v. Hilliard, 2 Rich. L. (S. C.) 286, 45 Am. Dec. 732; 
 Davidson v. Graham, 2 Ohio St. 131; Mears v. Railway Co., 75 Conn. 171, 
 52 Atl. 610, 96 Am. St. Rep. 192; Hinton v. Railway Co., 72 Minn. 339, 75 
 N. W. 373; Erie Ry. Co. v. Lockwood, 28 Ohio St. 358; Hays v. Kennedy, 
 41 Pa. St. 378, 80 Am. Dec. 627; Berry v, Cooper, 28 Ga. 543; Grey v. 
 Mobile Trade Co., 55 Ala. 387, 28 Am. Rep. 729; Chicago, St. L. & N. 
 Ry. Co. V. Moss, 60 Miss. 1003, 45 Am. Rep. 428; Mitchell v. Carolina C. 
 R. Co., 124 N. C. 236, 32 S. E. 671; Shea v. Railway Co., 63 Minn. 228, 65 
 N. W. 458; The Beeche Dene, 55 Fed. 525. 
 
 3s Riley v. Home, 5 Bing. 217; Berry v. Cooper, 28 Ga. 543; Cumins v. 
 Wood, 44 111. 416; Mitchell v. Railway Co., 124 N. C. 236, 32 S. B. 671; 
 Collins V. Bennett, 46 N. Y. 490, and cases just cited above. 
 
 '39 Davidson v. Graham, 2 Ohio St. 131; Steele v. Townsend, 37 Ala. 
 247, 79 Am. Dec. 49; Brown v. Adams Ex. Co., 15 W. Va. 812. 
 
§ 183. BUEDBN OF PROOF. 215 
 
 when there is proof bringing the loss within an excepted peril, the 
 burden of proof is shifted to the plaintifE to prove negligence.'"' 
 When it is shown that the loss is the result of the act of God or of 
 the public enemy, the carrier is not bound to give proof of due care ; 
 the burden of proving negligence in such ease is upon the plaint- 
 iff.*^ When a telegraph company undertakes to transmit a message, 
 it is implied that the message will be sent correctly; and if error 
 occurs, the means of proof and explanation are almost wholly 
 within the reach of the company and equally beyond the reach of 
 the other party. Owing to these ponsiderations it is the rule that, 
 where the plaintifE proves a failure to transmit the message in the 
 form in which it was received and that damage has resulted, there 
 is a case of prima facie negligence for which the company is liable, 
 unless there is proof offered rebutting the presumption of negli- 
 gence.*" But a different rule may obtain where the liability is re- 
 stricted by contract.*^ 
 
 § 183 (181). Same, continued. — ^In actions for negligence the 
 general rule obtains that the person asserting the negligence or 
 other wrong has the burden of proof; but as we have seen ia ac- 
 tions for negligence slight proof sometimes suffices to raise a pre- 
 sumption of negligence, and the burden is thus cast upon the other 
 party to overcome this presumption.** Thus in actions against 
 
 40 Clark V. Barnwell, 12 How. 272; Bankard v. B. & O. Ry. Co., 34 Md 
 197; Lamb v. Camden Ry. Co., 46 N. Y. 271, 7 Am. Rep. 327; Patterson 
 V. Clyde, 67 Pa. St. 500; Kansas Co. v. Reynolds, 8 Kan. 623; Witting 
 V. St. Louis & S. P. Ry. Co., 101 Mo. 631, 20 Am. St. Rep. 636; Brauer v. 
 The Almoner, 18 La. An. 266; Mitchell v. United States Ex. Co., 46 Iowa, 
 214; Davis v. Wabash Ry. Co., 89 Mo. 340; Whitworth v. Brie Ry. Co., 87 
 N. T. 413; Louisville & N. Ry. Co. v. Manchester Mills, 88 Tenn. 653; 
 Schaller v. Railway Co., 97 Wis. 31; Can v. T. & P. Ry. Co., 194 U. S. 427. 
 
 "Railroad Co. v. Reeves, 10 Wall. 176. 
 
 *2 Telegraph Co. v. Griswold, 37 Ohio St. 301, 41 Am. Rep. 500; Bart- 
 lett V. Western Union Tel. Co., 62 Me. 209, 16 Am. Rep. 437; Rlttenhouse 
 V. Independence Line of Tel., 44 N. Y. 263, 4 Am. Rep. 673; Tyler v. 
 Western Union Tel. Co., 60 111. 421, 14 Am. Rep. 38; Baldwin v. United 
 States Tel. Co., 45 N. Y. 744, 6 Am. Rep. 165; Western Union Tel. Co. v. 
 Carew, 15 Mich. 525; De la Grange v. Southwestern Tel. Co., 25 La. An. 
 383; Western Union Tel. Co. v. Meek, 49 Ind. 53; Turner v. Hawkeye Tel. 
 Co., 41 Iowa, 458, 20 Am. Rep. 605. See note, 45 Am. Rep. 499. See also 
 § 210, infra. 
 
 43Sweetland v. Illinois Tel. Co., 27 Iowa, 433, 1 Am. Rep. 285; Baldwin 
 V. United States Tel. Co., 45 N. Y. 744, 6 Am. Rep. 165. But see Western 
 Union Tel. Co. v. Blanchard, 68 Ga. 299, 45 Am. Rep. 480, and long note . 
 
 a See | X5, supra, and cases cited. 
 
216 THE LAW OP EVIDENCE. § 183. 
 
 common carriers for personal injuries received by a passenger, the 
 burden is upon him to show that he received the injury while a 
 passenger and by reason of the negligence of the carrier; but a 
 prima facie ease is made out when it appears that an accident oc- 
 curred to the plaintiff without fault on his part while he was a 
 passenger by reason of the failure of some portion of the machin- 
 ery or other means provided for transportation.*'^ For example, 
 when the injury is shown to be the result of the breaking of an 
 axletree of a coach, or the upsetting of a coach, or the collision of 
 cars on the road of the defendant, or of their running off the track, 
 or of the falling of a berth of a vessel or in a railroad car ; *" in all 
 
 « Railroad Co. v. Pollard, 22 Wall. 341; Stokes v. SaltonstaH, 13 Peters, 
 181; Meier v. Pennsylvania Ry. Co., 64 Pa. St. 225, 3 Am. Rep. 581; To- 
 ledo Ry. Co. V. Beggs, 85 111. 80, 28 Am. Rep. 613; Smith v. St. Paul City 
 Ry. Co., 32 Minn. 1, 50 Am. Rep. 550; Bowen v. New York Cent. Ry. Co., 
 18 N. Y. 408, 72 Am. Dec. 529, and note; Peital y. Middlesex Ry. Co., 109 
 Mass. 398, 12 Am. Rep. 720; St. Louis Ry. Co. v. Mitchell, 57 Ark. 418; 
 Spellman v. Lincoln Transit Co., 36 Neb 890; Philadelphia Ry. Co. v. An- 
 derson, 72 Md. 519, 20 Am. St. Rep. 483; Alabama Ry. Co. v. Hill, 93 Ala. 
 514, 30 Am. St. Rep. 65, and note; Pullman Palace Car Co. v. Lowe, 28 
 Neb. 239, 26 Am. St Rep. 325, and full note; Furnish v. Missouri Pac. 
 Ry. Co., 102 Mo. 438, 22 Am. St. Rep. 781, and note; Levering v. Union 
 Transportation Co., 42 Mo. 88, 97 Am. Dec. 320, and note; Wolf v. Am. 
 Express Co., 43 Mo. 421, 97 Am. Dec. 406, and note; Marquette Ry. Co. 
 V. Kirkwood, 45 Mich. 51, 40 Am. Rep. 453, and note; Cameron v. Rich, 
 4 Strob. (S. C.) 168, 53 Am. Dec. 670, and note; Stockton v. Prey, 4 Gill 
 (Md.) 406, 45 Am. Dec. 138, and note; Burroughs v. Housatonic Ry. Co., 
 15 Conn. 124, 38 Am. Dec. 64, and note; Ingalls v. Bills, 9 Met. 1, 43 Am. 
 Dec. 346, and note; Bassett v. Los Angeles Traction Co., 133 Cal. 19, 65 
 Pac. 470; Denver & R. G. R. Co. v. Fotheringham (Colo.), 68 Pac. 978; 
 St. Louis & S. F. R. Co. v. Burrows, 62 Kan. 89, 61 Pac. 439; Whalen v. 
 Consolidated Traction Co., 61 N. J. L. 606, 40 Atl. 645, 68 Am. St. Rep. 
 723; Davis v. Paducah R. & L. Co., 24 Ky. L. Rep. 135, 68 S. W. 140; 
 Le Blanc v. Sweet, 107 La. 355, 31 So. 766, 90 Am. St. Rep. 303. See 
 notes, 64 Am. Dec. 505, 62 Am. Dec. 679, 20 Am. St. Rep. 490, 43 Am. Rep. 
 73, 50 Am. Rep. 550, 49 Am. Dea 538, 75 Am. Dec. 267; 6 Am. St. Rep. 
 792, 2 L. R. A. 820. 
 
 46 Christie v. Griggs, 2 Camp. 79; Stokes v. Saltonstal, 13 Peters, 181; 
 Bush V. Barnett, 96 Cal. 202; Skinner v. London Ry. Co., 5 Exch. 787; 
 Railroad Co. v. Pollard, 22 Wall. 341; Smith v. St. Paul Ry. Co., 32 
 Minn. 1, 50 Am. Rep. 550; Green v. Pacific L. Co., 130 Cal. 435, 62 Pac. 747; 
 Curtis v. Rochester Ry. Co., 18 N. Y. 534, 75 Am. Dec. 258; Murphy v. 
 Coney Island Ry. Co., 36 Hun, 199; Smith v. British Packet Co., 86 N. Y. 
 408. See also note, 15 L. R. A. 38; Railroad Co. v. Walrath, 38 Ohio 
 St. 461, 43 Am. Rep. 433. For further illustrations, see 2 Encyo. of Et. 
 pp. 912-920. 
 
§ 183. BUEDBN OP PROOF. 217 
 
 such cases the contract of the carrier implies that the means of 
 transportation are proper and adequate; that the appliances of 
 the defendant in every respect are fit for the purpose, and that 
 its servants are competent. Since the defendant is in a situation 
 to ascertain and explain the cause of the injury, while the plaintiff 
 is not, it is reasonable that the burden of such explanation should 
 rest upon the defendant." It follows that, when the plaintiff in 
 such cases shows that an accident has happened to him as a pas- 
 senger by reason of some defect or failure in the vehicle or by 
 reason of some mismanagement, it is not necessary for him to prove 
 the specific defect or mismangement ; an inference of a want of 
 care arises from the injury and surrounding circumstances, and 
 the burden of explanation is thrown upon the carrier.** The rule 
 was thus stated in an English case: "There must be reasonable 
 evidence of negligence; but where the thing is shown to be under 
 the management of defendant or his servants and the accident is 
 such as in the ordinary course of things does not happen if those 
 who have the management use proper care, it affords reasonable 
 evidence, in the absence of explanation by the defendants, that the 
 accident arose from want of care. ' ' *° The rule laid down in the 
 foregoing cases grows out of the peculiar relation between the car- 
 rier and the passenger and of the contract to carry safely; and, un- 
 less such relation exists, the plaintiff in an action against a common 
 carrier must furnish other proof of negligence than the fact of the 
 injury."" Where there is no such contract for the special care and 
 safety of the plaintiff on the part of the carrier, the prosecutor must 
 establish more than a prima facie case; and the burden of proof 
 rests on him to show due care on his part. It devolves upon him to 
 trace the cause of his injury directly to the fault or neglect of the 
 defendant; and to do this he must establish by evidence circum- 
 stances from which it may be fairlj' inferred that there is reason- 
 able probability that the accident resulted from the want of some 
 
 *7 Delaware, L. & W. Ry. Co. v. Napheys, 90 Pa. St. 135; Gillespie v. 
 St. Louis, K. C. & N. Ry Co., 6 Mo. App. 554; Ware v. Barataria & L. 
 Canal Co., 15 La. 169, 35 Am. Dec. 189, and note. 
 
 « Meier v. Pennsylvania Ry. Co., 64 Pa. St. 225, 3 Am. Rep. 581; Peital 
 V. Middlesex Ry. Co., 109 Mass. 398, 12 Am. Rep. 720; Holbrook v. Utioa 
 Ry. Co., 12 N. Y. 236, 64 Am. Dec. 502; Smith v. St. Paul Ry. Co., 32 
 Minn. 1, 50 Am. Rep. 550; Railroad Co. v. Pollard, 22 Wall. 341; Skinner 
 V. London Ry. Co., 5 Excli. 787. See note, 15 L. R. A. 35. 
 
 *» Scott V. London Dock Co., 3 Hurl. & C. 593. 
 
 »o Nitro Glycerine Case, 15 Wall. 524. 
 
218 THE LAW OF EVIDENCE. § 184. 
 
 precaution which the defendant might and ought to have resorted 
 to ; and further the plaintiff should also show with reasonable cer- 
 tainty what particular precautions should have been taken to avoid 
 the accident.''^ The same is true in other -accidents where cattle or 
 horses are killed or other damage is done to property when the 
 property is not being transported by the defendant."'' 
 
 § 184(182). Same — Negligence — Setting of fires, etc. — The 
 principle under discussion is not confined in its application to com- 
 mon carriers. For example, in an English case already cited the 
 plaintiff was injured by bags of sugar falling from a crane in 
 which they were being lowered to the ground from the warehouse 
 of the defendant ; °' so where the wall of a cistern which is being 
 constructed by a city falls by its own weight or by the pressure of 
 gravel and earth behind it, whereby a person is injured, the bur- 
 den of explanation is cast upon the city."* On the same principle 
 it has been held that, from the mere fact of the explosion of a steam 
 ioiler within the control of the defendant, it is competent for the 
 jury to infer some negligence in the management of the boiler or 
 some defect in its condition ; ^° but by the weight of authority such 
 evidence does not shift the burden of proof upon the defendant."" 
 The question has often arisen as to the burden of proof in actions 
 against railroad companies for injuries caused by fires communi- 
 cated from their engines. The prevailing rule is that it is incum- 
 bent upon the plaintiff to show that the fire was caused by the 
 engine; the onus then rests upon the defendant to show that the 
 engine was properly constructed and managed."' This rule rests 
 
 61 Louisville Ry. Co. v. Allen, 78 Ala. 494; State v. Maine Cent. Ry. Co., 
 76 Me. 357, 49 Am. Rep. 622, and note; Philadelphia Ry. Co. v. Stebbmg, 
 62 Md. 504; Daniel v. Metropolitan Ry. Co., 3 C. B. 591. See note, 8 L. R. 
 A. 636, as to injury to a servant. 
 
 »2 Savannah, Fla. & West. Ry. Co. v. Geiger, 21 Pla. 669, 58 Am. Rep. 
 697, and note. See notes, 17 L. R. A. 339, 15 L. R. A. 39, as to injury to 
 live stock; 13 L. R. A. 33, as to injury to other property. 
 
 63 Scott V. London Dock Co., 3 Hurl. & C. 596. See § 15. 
 
 6* Mulcairns v. Janesville, ,67 Wis. 24. 
 
 66 Rose V. Transportation Co., 11 Fed, Rep. 438; Kalm v. Trlest-Rosen- 
 berg Cap Co., 139 Cal. 340, 73 Pac. 164; Pay v. Davidson, 13 Minn. 523. 
 See note on injury by explosion, 15 L. R. A. 35. 
 
 6«Hu£e V. Austin, 102 Ind. 435; Spencer v. Campbell, 9 Watts & S. (Pa.) 
 32; Mullen v. St. John, 57 N. Y. 567, 15 Am. Rep. 530; Marshall v. Well- 
 wood, 38 N. J. L. 339, 20 Am. Rep. 394; Somers v. Railway Co., 7 Lea 
 (Tenn.) 204; Railroad Co. v. Walrath, 38 Ohio St. 461, 43 Am. Rep. 433. 
 See note on injury in a highway, 15 L. R. A. 33. 
 
 67 Spaulding v. Chicago & N. W. Ry. Co., 30 Wis. 110, 11 Am. Rep. 550; 
 
§ 184. BURDEN OP PEOOP. 219 
 
 upon the principle to which we have already called attention that 
 when the facts lie peculiarly within the knowledge of one of the 
 parties, this is an important consideration in determining the 
 amount of evidence necessary to shift the burden of proof.'" There 
 is, however, a conflict of opinion on this subject ; and in some states 
 mere proof that the fire has been communicated from the engine 
 of the defendant does not constitute a prima facie case.'*" Of course 
 the prima facie ease is repelled by proof that the engine was pro- 
 vided with the best appliances to prevent the communication of 
 fire, and that it was properly managed."" The principle under 
 discussion has been often illustrated by other cases brought for 
 injuries caused by fallen or broken telephone or other electric 
 wires or by the falling of other articles under the care and control 
 of the defendant."^ 
 
 Green Ridge Ry. Co. v. Brinkman, 64 Md. 52; Eddy v. Lafayette, 49 Fed. 
 Rep. 807; TJnioii Pac. Ry. Co. v. Keller, 36 Neb. 189, 54 N. W. 420; Cleve 
 lands V. Grand Trunk Ry. Co., 42 Vt. 449 ; Baltimore & S. Ry. Co. v. Wood 
 ruff, 4 Md. 242, 59 Am. Dec. 72; Field v. New York Cent. Ry. Co., 32 N. Y 
 339; Coates v. Missouri, K. & T. Ry. Co., 61 Mo. 38; Woodson v. Chicago, M 
 St. P. Ry. Co., 21 Minn. 60; St. Loui^, A. & T. H. Ry. Co. v. Strotz, 47 III 
 App. 342; Louisville, N. O. & T. Ry. Co. v. Natchez, J. & C. Ry. Co., 67 
 Miss. 399; White v. Chicago, M. & St. P. Ry. Co., 1 S. Dak. 326; Koontz 
 V. Oregon Ry. & Nav. Co., 20 Ore. 3, 23 Pac. 820; Jacksonville, T. & K. W. 
 Ry. Co. v. Peninsular Land, Transp. & Mfg. Co., 27 Pla. 1. See also 
 Hagen v. Chicago, D. & C. G. T. J. Ry. Co., 86 Mich. 615. See notes, 38 
 Am. Dec. 71, 15 L. R. A. 40. As to proof of other fires, see § 166, supra. 
 
 68 Pittsburg Ry. Co. v. Campbell, 86 111. 443 ; Slosson v. Burlington Ry. 
 Co., 51 Iowa, 294; Annapolis Ry. Co. v. Gantt, 39 Md. 115; Anderson v. 
 W. & J. V. Ry. Co., 2 Utah, 518; Laird v. Railroad, 62 N. H. 254, 13 Am. 
 St. Rep. 564, and note. See also City of Port Smith v. Dodson, 51 Ark. 
 447, 14 Am. St. Rep. 62, and note, and cases above cited. See § 181 et seq 
 supra. In some states the burden of proof is imposed upon the defendant 
 in such cases by statute. 
 
 69 Indianapolis Ry. Co. v. Paramore, 31 Ind. 143; Jefferis v. Philadelphia, 
 W. & B. Ry. Co., 3 Houst. (Del.) 447; Ruffner v. Cincinnati, H. & D. Ry. 
 Co., 34 Ohio St. 96; Albert v. N. C. Ry. Co., 98 Pa. St. 316; Henderson v. 
 Philadelphia Ry. Co., 144 Pa. St. 461, 27 Am. St. Rep. 652, and note. 
 
 eo Chicago & A. Ry. Co. v. Quaistance, 58 111. 389 ; Toledo, W. & W. Ry. 
 Co. V. Larmon, 67 111. 68; Kenny v. Hannibal Ry. Co., 70 Mo. 243; Llbby 
 V. Chicago, R. L & P. Ry. Co., 52 Iowa;, 92; Small v. Chicago, R. I. & P 
 Ry. Co., 50 Iowa, 338; Savannah Ins. Co. v. Pelzer Co., 60 Fed. Rep. 39; 
 Toledo, St. L. & K. C. Ry. Co. v. Kingman, 49 111. App 43 ; Meyer v. "Vicks- 
 burg, S. & P. Ry. Co., 41 La. An. 639 ; Koontz v. Oregon Ry. Co., 20 Ore. 31, 
 23 Pac. 820. When the engine is shown to be in perfect condition the 
 plaintiff has the burden of proving that a newer pattern of engine in use 
 at that time is more safe, Babcock v. Fitchburg Ry. Co., 140 N. Y. 308. 
 
 «i As to falling of electric and telephone vnres, Arkansas Tel. Co. v. 
 
220 THE LAW OF EVIDENCE. § 185. 
 
 § 185 (183). Contributory negligence. — It is very clear that 
 when it appears from the plaintiff 's own showing that he has been 
 guilty of negligence which, as a proximate cause, contributed to the 
 injury, he cannot recover, and a nonsuit should be granted; and 
 where the plaintiff's own evidence raises an inference of negligence 
 against him, he is required to overcome this inference in order to 
 establish his prima facie ease.'^ But assume that the plaintiff's 
 evidence raises no such inference of negligence on his part and that 
 the inference is that he has suffered injury by reason of the negli- 
 gence of the defendant — is the plaintiff then bound to prove affirma- 
 tively that he has been guilty of no negligence? The affirmative of 
 this proposition has been maintained in many cases, and in several 
 states this rule is adhered to. This view rests upon the ground that 
 there can be no recovery unless two conditions concur, to-wit: neg- 
 ligence of the defendant, and freedom of the plaintiff from con- 
 tributory fault ; these courts hold that it is incumbent on the plain- 
 tiff to show the existence of both conditions.*' The greater weight 
 
 Ratteree, 57 Ark. 429, 21 S. W. 1059; Ngyla v. West End St. Ry. Co., 160 
 Mass. 351, 35 N. B. 1126; Newark B. L. & R. Co. v. Ruddy, 62 N. J. L. 505, 
 41 Atl. 712; Haynes v. Raleigh Gas Co., 114 N. C. 203, 19 S. E. 344, 41 Am. 
 St. Rep. 786; Chaperon v. Portland Gen'l Electric Co, 41 Ore. 39, 67 Pac. 
 928; Snyder v. Wheeling Electric Co., 43 W. Va. 661, 28 S. B. 733, 64 Am. 
 St Rep. 922; tools, Dixon v. Pluns, 98 Cal. 385, 33 Pac. 268, 35 Am. St. 
 Rep. ISO; falling of ties from moving train, Howser v. Railway Co., 80 
 Md. 146, 30 Atl. 906; explosion, Judson v. Giant Powder Co., 107 Cal. 549, 
 4U Pac. 1020, 48 Am. St. Rep. 146; Bradford Glycerine Co. v. Klzer, 113 
 Fed. 894; falling of brick arch, Chenall v. Palmer Brick Co., 117 Ga. 106, 
 43 S. E. 443.- 
 
 62 Atchtenhagen v. Watertown, 18 Wis. 331, 86 Am. Dec. 769; Milwau- 
 kee Ry. Co. v. Hunter, 11 Wis. 160, 78 Am. Dec. 699, and note; Missouri 
 Pac. Ry. Co. v. Foreman, 73 Tex. 311, 15 Am. St. Rep. 785; Ryan v. Louis-, 
 ville Ry. Co., 44 La. An. 806; State v. Maine Cent. Ry. Co., 76 Me. 357, 
 49 Am. Rjep. 622, and note; Gahagan v. Boston Rj"-. Co., 1 Allen, 187, 79 
 Am. Dec. 724, and note; Buesching v. St. Louis Gas Co., 73 Mo. 219, 39 
 Am. Rep. 503, and long note; Rupp'v. Sarpy County (Neb.), 102 N. W. 
 242. See also Waterman v. Chicago & Alton Ry. Co., 82 Wis. 613; Indian- 
 apolis & St. L. Ry. Co. V. Horst, 93 U. S. 291. 
 
 «3Lane v. Crombie, 12 Pick. 177; Lane v. Atlantic Works, 107 Mass. 
 104; Kepperley v. Ramsden, 83 111. 354; Fox v. Glastenbury, 29 Conn. 204; 
 Engrer v. Railway Co<, 142 Ind. 618, 42 N. E. 217; Vicksburg v. Hennessy, 
 54 Miss. 391, 28 Am. Rep. 354; Detroit Ry. Co. v. Van Stelnburg, 17 Mich. 
 99; Cincinnati Ry. Co. v. Butler, 103 Ind. 31; Hawes v. Burlington Ry. Co., 
 04 Iowa, 315; Teipel v. Hilsendegen, 44 Mich. 461; Wendell v. New York 
 Ry. Co., 91 N. Y. 420; Lesan v. Maine Cent. Ry. Co., 77 Me. 85; Bover v. 
 
§ 185. BURDEN OF PROOF. 221 
 
 of authority sustains the contrary rule. Where the plaintiff shows 
 that he has suffered injury by reason of the negligence of the de- 
 fendant he has made out a prima facie case ; and the burden is upon 
 the defendant to prove the contributory negligence which he as- 
 serts."* This rule seems not only to be sustained by the greater 
 weight of authority, but to more nearly accord with the general 
 principle that the burden of proving a given fact rests upon the 
 one who asserts such fact. Moreover it is a familiar rule that neg- 
 ligence will not be presumed. To call upon the plaintiff to prove 
 that he has been guilty of no negligence would seem to reverse the 
 order of proof which this presumption usually and logically estab- 
 lishes. The rule does not apply to a case in which the proofs on 
 behalf of the plaintiff show or tend to show his contributory negli- 
 gence. If such negligence conclusively appears, the court will non- 
 suit the plaintiff or direct the jury to find for the defendant ; if the 
 evidence only tends to show such contributory negligence, the ques- 
 tion must go to the jury to be determined, like any other question of 
 fact, upon a preponderance of the evidence. "^ It should be observed 
 that in some of those decisions which declare that the burden of 
 proving due care is cast upon the plaintiff, it is held that the plain- 
 tiff need not in the first instance give evidence for the direct and 
 special object of establishing the observance of due care, but that it 
 is enough if the proof introduced of the negligence of the defendant 
 and of the circumstances of the injury, prima facie establishes the 
 
 Danville, 53 Vt. 183; Owens v. Richmond Ry. Co., 88 N. C. 502; Guggen- 
 heim T. Lake Shore & M. S. Ry. Co., 66 Mich. 150. 
 
 61 Inland Coasting Co. v. Tolson, 139 U. S. 551; Railroad Co. v. G-lad- 
 mon, 15 Wall. 401; Indianapolis & St. L. Ry. Co. v. Horst, 93 U. S. 291; 
 McQullken v. Central Pac. Ry. Co., 50 Cal. 7; St. Paul v. Kuby, 8 Minn. 
 154; Alabama Ry. Co. v. Frazier, 93 Ala. 45, 30 Am. St. Rep. 28, and note; 
 Thompson v. North Mo. Ry. Co., 51 Mo. 190, 11 Am. Rep. 443; Union Stock 
 Yards Co. v. Conoyer, 41 Neb. 647, 59 N. W. 950; Rupp v. Sarpy County 
 (Neb.), 102 N. W. 242; Cleveland Ry. Co. v. Rowan, 66 Pa. St. 393; St. 
 Louis & S. P. Ry. Co. v. Weaver, 35 Kan. 412; Mitchell v. Clinton, 99 
 Mo. 153; Prideaux v. Mineral Point, 43 Wis. 513, 28 Am. Rep. 550, and 
 note; Georgia Pac. Ry. Co. v. Davis, 92 Ala. 300; Sanders v. Reister, 1 
 Dak. 151; Baltimore Traction Co. v. Oppel, 80 Md. 603, 31 Atl. 965; John- 
 ston V. Railway Co., 95 Ga. 685, 22 S. B. 694; Bradwell v. Pittsburg & W. 
 B. Ry. Co., 139 Pa. St. 404; Washington Ry. Co. v. Harmon, 147 U. S. 571; 
 Merrill v. Eastern Ry, Co., 139 Mass. 252. See also Goshen v. England, 
 119 Ind. 368; Dugan v. Chicago, St. P., Minn. & O. Ry. Co., 85 Wis. 609; 
 Lormer v. St. Paul Ry. Co., 48 Minn. 391; Waterman v. Chicago & Alton 
 Ry. Co., 82 Wis. 613. See note, 2 L. R. A.' 521. 
 
 OB Hoyt y. Hudson, 41 Wis. 105, 22 Am. Rep. 714. See cases above cited. 
 
222 THE LAW OP EVIDENCE. § 186 
 
 fact that the injury was caused by the negligence of the defendant, 
 as such evidence would exclude the idea of the want of due care by 
 the plaintiff."' Among other circumstances which may be considered 
 in this connection are the natural instinct of self-preservation and 
 the general disposition of men to avoid danger.*^ This subject has 
 often arisen in cases relating to the death of a person where it is 
 claimed that he has been killed hy the negligence of another; and 
 in such cases where there is no evidence as to how the accident oc- 
 curred, it has frequently been declared that the deceased should be 
 presumed to have exercised due care and the court will not assume 
 that the deceased came to his death through his own contributory 
 negligence."* But where the circumstances of the accident are not 
 sufficiently shown to warrant any inference on the question of care 
 or negligence, there can be no recovery ; "" of course if there is di- 
 rect testimony of contributory negligence, the presumption of due 
 care is rebutted; '" and the very circumstances of the accident may 
 be such as to negative any presumption of due care.'^ 
 
 § 186 (184). Burden in cases of bailment. — Ordinary bailees for 
 hire are not insurers of goods entrusted to their keeping and are 
 only required to use ordinary care, hence a bailor who alleges neg- 
 ligence on the part of the bailee must offer some proof of his claim. 
 But when he shows a total default in delivery or accounting for the 
 goods on demand, and when the bailee has had the exclusive pos- 
 session and it appears that the loss or injury would not ordinarily 
 happen without negligence he makes out a prima facie case of neg- 
 
 «« Button v. Hudson Riv. Ry. Co., 18 N. Y. 248; Jolinson v. Hudson Riv, 
 Ry. Co., 20 N. T. 65, 75 Am. Dec. 375; Texas Ry. Co. v. Crowder, G3 Tex. 
 502. 
 
 OT Button V. Hudson R!v. Ry. Co., 18 N. Y. 248; Baltimore & Potomac 
 R. R. Co. V. Landrigan, 191 TJ. S. 961; Lillstrom v. Northern Pac. R. Co,53 
 Minn. 464, 55 N. W. 624. See elaborate note on this subject citing many 
 cases, 16 L. R. A. 261. 
 
 68 Guggenheim v. Lake Shore Ry. Co., 66 Mich. 150; Phillips v. Milwau- 
 kee & Northern Ry. Co., 77 Wis. 349; Longenecker v. Pennsylvania Ry. 
 Co., 105 -Pa. St. 328; Plynn r. Kansas City Ry. Co., 78 Mo. 195; Morrison 
 V. New York Cent. Ry. Co., 63 N. Y. 643. Contra, Chase v. Maine Cent. 
 Ry. Co., 77 Me. 62, 52 Am. Rep. 744. 
 
 «» Crafts V. Boston, 109 Mass. 519; Corcoran v. Boston Ry. Co., 133 Mass. 
 507. 
 
 10 Reading Ry. Go. v. Ritchie, 102 Pa. St. 425. 
 
 71 Connelly v. New York Cent. Ry. Co., 88 N. Y. 346; Riceman v. Have- 
 meyer, 84 N. Y. 647; State v. Maine Ry. Co., 76 Me. 357, 49 Am. Rep. 622, 
 and note; Brown V. Milwaukee & St. P. Ry. Co., 22 Minn. 165. 
 
§ 186. BUEDEN OP PROOF. 223 
 
 ligence which imposes upon the bailee the burden of explaining tha 
 non-delivery." "Where, however, the refusal of the bailee to deliver 
 is explained by the fact appearing that the goods have been lost, 
 destroyed by fire or stolen and the bailee is therefore unable to de- 
 liver them, there is no prima facie evidence of his want of care; 
 and the court will not assume, in the absence of proof on the point, 
 that such loss, fire or theft was the result of his negligence.'^ But 
 in such eases the burden of proof to show the loss is upon the other 
 party, and he must prove such loss with reasonable, certainty.'* 
 On the same principle where the bailee returns the goods in a dam- 
 aged condition and gives no explanation of their injury, it has been 
 held that the burden is upon him to show that he had used due 
 care.'" This rule is illustrated in a New York case where the owner 
 of a horse brought an action for conversion against one who had 
 hired the horse and returned it in a foundered condition. The 
 court said: "Here, it will be observed, this horse was in the exclu- 
 sive possession of the defendant. He had charge and care of him 
 for hire. During that charge he was injured in a way that ordi- 
 narily does not occur without negligence, usually not without the 
 horse having been used and then neglected. This may be safely said 
 on the evidence and upon human experience. In such case the bur- 
 den rests with the custodian to show how the injury occurred, and 
 that he was not guilty of the negligence that caused it. This rests 
 upon the defendant for two reasons: first, because the facts are 
 within the defendant's peculiar knowledge, and he should, there- 
 
 72Clafliii'v. Meyer, 75 N. Y. 260, 31 Am. Rep. 467; Dieterle v. Bekin, 
 143 Cal. 683, 77 Pac. 684; First Nat. Bank v. Bank, 116 Ala. 520, 22 So. 
 976; Davis v. Printing Co., 70 Minn. 95, 72 N. W. 808; Schmidt v. Blood, 
 9 Wend. 268, 24 Am. Dec. 143, and note; Boles v. Hartford Ry. Co., 37 
 Conn. 272, 9 Am. Rep. 347; Brown v. Waterman, 10 Cush. 117; McDaniels 
 V. Robinson, 26 Vt. 316, 62 Am. Dec. 574; Punkhouser v. Wagner, 62 111. 59. 
 So the bailee is liable when the goods are delivered by him to the wrong 
 person, Hawkins v. Hoffman, 6 Hill. 586; Purman v. Union Pac. Ry. Co., 
 106 N. Y. 579. 
 
 73 Claflin V. Meyer, 75 N. Y. 260, 31 Am. Rep. 467; Knights v. Piella, 
 111 Mich. 9, 69 N. W. 92, 66 Am. St. Rep. 375; Buswell v. Fuller, 89 Me. 
 600, 36 Atl. 1059; Lamb v. Camden Ry. Co„ 46 N. Y. 271, 7 Am. Rep. 327. 
 
 74 Claflin V. Meyer, 75 N. Y. 260, 31 Am. Rep. 467; Clark v. Spence, 10 
 Watts (Pa.) 335; Dinsmore v. Abbott, 89 Me. 373, 36 Atl. 621. 
 
 76 Collins V. Bennett, 46- N. Y. 490; Logan v. Mathews, 6 Pa. St. 417; 
 Cummins v. Wood, 44 111. 416; Burlingame v. Home, 30 111. App. 330; 
 Wiser v. Chesaey, 53 Mo. 547; Hildebrand v. Carroll, 106 Wis. 324, 80 Am. 
 St. Rep. 29. 
 
224 THE LAW OF EVIDENCE. § 187. 
 
 fore, prove them; second, such injury does not usually occur with- 
 out negligence on the part of the custodian of the animal."'* It 
 frequently happens that the very circumstances of the loss are such 
 as to afford proof of negligence, as where goods are Stolen the cir- 
 cumstances may be such as to show that the bailee has not kept such 
 wat^-h over the goods as was commensurate to their value.'' 
 
 § 187 (185). Innkeepers. — The general principle under discus- 
 sion is illustrated by the common-law liability of innkeepers. If 
 the goods of a guest disappear the guest cannot ordinarily be pre- 
 sumed to know the party whose guilt or negligence has' caused the 
 loss ; and he is not bound to prove the negligence or misconduct of 
 the landlord or his servants in order to recover." Where the loss 
 is shown, the burden is cast upon the innkeeper to show that it was 
 due to the negligence of the guest or to some other cause relieving 
 the innkeeper of the liability ; " it is not enough to show that the 
 loss or damage did not happen through his negligence or that of 
 his servants.*" But this rule, it seems, does not apply to the loss 
 or to the damage of the goods of permanent hoarders and other 
 parties who have a special contract as to board.*^ The rule has 
 been thus stated in a leading case: "The general doctrine deduc- 
 ible from the authorities, ancient and modern, is that keepers of 
 public inns are bound well and safely to keep the property of their 
 guests accompanying them at the inn ; and in case such property is 
 lost or injured, the innkeeper can only absolve himself from liabil- 
 ity by showing that the loss or injury occurred without any fault 
 on his part, or by the fault of the guest, his companions or servants 
 or by superior force ; and the burden of proof to exonerate the inn- 
 keeper is upon him, for in the first instance the law will attribute 
 the loss or injury to his fault." ^^ 
 
 10 Collins V. Bennett, 46 N. Y. 490. 
 
 TTSafe Deposit Co. v. Pollock, 85 Pa. St. 391, 27 Am. Rep. 660; Brown 
 V. Waterman, 10 Cush. 117; Wintringham v. Hayes, 144 N. Y. 11, 43 Am. 
 St. Rep. 725. 
 
 '8 2 Thomp. Trials, § 1843. 
 
 7»Dunbler v. Day, 12 Neb. 596; Norcross v. Norcross, 53 Me. 163; 
 Howell y. De Wald, 2 Ind. App. 303, 50 Am. St. Rep. 240; Baehr v. Downey, 
 133 Mich. 163, 94 N. W. 750, 103 Am. St. Rep. 444. 
 
 80 Shaw V. Berry, 31 Me. 478; Sibley v. Aldrich, 33 N. H. 553; Piper T. 
 Manny, 21 Wend. 282. But see Howth v. Franklin, 20 Tex. 798, 802. 
 
 81 Chamberlain v. Masterson, 26 Ala. 376; Manning v. Wells, 9 Humph. 
 (Tenn.) 746. For discussion of distinction between a "guest" and a 
 "boarder," see Meacham v. Galloway, 102 Tenn. 415, 73 Am. St. Rep. 886. 
 Also note, 105 Am. St. Rep. 932-940. 
 
 •a Johnson v. Richardson, 17 111. 302, 63 Am. Dec. 369, 371; Hill v. Owem, 
 
§ 188. BUBDEN OP PBOOP. 225 
 
 § 188 (186). Insanity — Civil cases — Criminal. — ^It is a familiar 
 rule that he who asserts insanity as a defense to a contract or who 
 relies upon insanity to maintain his action or defense in civil pro- 
 ceedings must assume the burden of proof. Although this is a 
 mooted question in respect to the proof of wills, there is no such 
 controversy in other civil proceedings." There have been wide dif- 
 ferences of judicial opinion as to the burden of proof where insan- 
 ity is urged as a defense in criminal cases. The extreme rule has 
 sometimes been declared that in such cases it is incumbent on the 
 prisoner to prove the insanity beyond a reasmidble doubt; '* but 
 manifestly no such rule can be upheld. It is now maintained by 
 one line of authorities that, in order to overcome the presumption 
 of sanity, the burden is upon the defendant to prove to the satisfac- 
 tion of the jury by a preponderance of the whole evidence upon 
 that issue that at the time of the alleged crime he was not of sane 
 mind."* While this is the rule which formerly prevailed and which 
 still obtains in the greater number of states, it has been abandoned 
 in some of those states in which it was formerly recognized. And 
 
 6 Blackf. (Tnd.) 323, 35 Am. Dec. 124, and note; Laird v. Blchold, 10 Ind. 
 212, 71 Am. Dec. 323o and note; Russell v. Pagan (Del.), S Atl. Rep. 258; 
 Bowell V. De Wald, 2 Ind. App. 303; Coskery v. Nagle, 83 Ga. 696, 20 Am. 
 St. Rep. 333, and note; Dunbier v. Day, 12 Neb. 596; Norcross v. Nor- 
 cross, 53 Me. 163; Baehr v. Downey, 133 Mich. 163, 94 N. W. 750, 103 Am. 
 St. Rep. 444; Cunningham v. Bucky, 42 W. Va. 671. 
 
 88 Weed V. Mutual Life Ins. Co., 70 N. Y. 561; Wright v. Wright, 139 
 Mass. 177; Titlow v. TitloW,, 54 Pa. St. 216, 93 Am. Dec. 691; Brown v. 
 Brown, 39 Mich. 792; Youn v. Lament, 56 Minn. 216; Nonnemacher v. 
 Nonnemacher, 159 Pa. St. 634. As to burden of proof in will cases, see 
 next section. See note, 36 L. R. A. 731-733. 
 
 8* State V. Danby, 1 Houst. Cr. Cas. (Del.) 175; State v. Pratt, 1 Houst. 
 Cr. Cas. (Del.) 269; State v. DeRance, 34 La. An. 186, 44 Am. Rep. 426, 
 and note; State v. Paulk, 18 S. C. 514. See cases cited In Boswell v. 
 State, 63 Ala. 307, 35 Am. Rep. 20 and note. 
 
 86 Ford v. State, 71 Ala. 385; Dejarnette v. Com., 75 Va. 869; State v. 
 Hoyt, 47 Conn. 518; State v. Lawrence, 57 Me. 574; Com. v. Eddy, 7 Gray, 
 583; State v. McCoy, 34 Mo. 531, 86 Am. Dec. 121, and note; Com. v. 
 Gerade, 145 Pa. St. 289, 27 Am. St. Rep. 689, and note; State v. Holme, 54 
 Mo. 153; Coyle v. Com., 100 Pa. St. 573, 45 Am. Rep. 397; State v. Rede- 
 meler, 71 Mo. 173, 36 Am. Rep. 462, and note; People v. Messersmith, 61 
 Cal. 246; Boswell v. State, 63 Ala. 307, 35 Am. Rep. 20, and note; Mc- 
 Kenzie v. States 26 Ark. 334; Ortwein v. Com., 76 Pa. St. 414, 18 Am. Rep. 
 420; Holsenbake v. State, 45 Ga. 43; Com. v. Heath, 11 Gray, 303; Par- 
 sons V. State, 81 Ala. 577, 60 Am. Rep. 193, and note; Chase v. People, 40 
 ni 352; Llch v. State (Ala.), 31 So. 953; State v. Austin, 71 Ohio St. 317, 
 73 N. E. 218; People v. Snesser, 142 Cal. 354, 75 Pac. 1093; Com. v. Heid- 
 ler, 191 Pa. St. 375. 43 AO. 211; Carlisle v. State (Tex.), 56 S. W. 365; 
 
 15 
 
226 THE LAW OP EVIDKNCB. § 189. 
 
 the tendency of judicial decisions is no doubt in the direction of a 
 less stringent rule. Numerous authorities of the highest character 
 now maintain that upon this, as upon other issues, the burden is 
 upon the state, and that the prisoner should be acquitted if there 
 is any well founded or reasonable doubt as to his sanity.'* These 
 authorities rest upon the consideration, which is no doubt entitled 
 to great weight, that from the beginning to the end of the case the 
 prisoner is entitled to iavoke the presumption of innocence. Said 
 Cooley, 0. J. : " There is no such thing in law as a separation of the 
 ingredients of the offense so as to leave a part to be established by 
 the prosecution, while as to the rest the defendant takes upon him- 
 self the burden of proving a negative. The idea that the burden of 
 proof shifts in these cases is unphilosophical and at war with fun- 
 damental principles of criminal law. The presumption of inno- 
 cence is a shield to the defendant throughout the proceedings, imtil 
 the verdict of the jury establishes the fact that beyond a reason- 
 able doubt he not only committed the act, but that he did so with 
 malicious intent."" According to this view, although the law 
 raises the presumption of sanity which stands as evidence tending 
 to establish the prima facie case, if further evidence is offered by 
 either party tending to repel the presumption, when the whole evi- 
 dence is before the jury, the burden is with the prosecution to show 
 that the accused was sane.*' 
 
 § 189 (187). Burden in probate of wills — Testamentary ca- 
 pacity. — It would be a hopeless task to undertake to reconcile the 
 
 State V. Cole, 2 Cen. (Del.) 344, 45 Atl. 391; State v. Humbles, 126 Iowa, 
 462, 102 N. W. 409; Kelch v. State, 55 Ohio St. 151, 45 N. E. 6, 60 Am. St.' 
 Rep. 680; Parrish v. State (Ala.), 36 So. 1012; State v. Clark, 34 Wash. 
 485, 76 Pao. 98. But see State v. Marler, 2 Ala. 43, 36 Am. Dec. 398, and 
 note. See note, 10 L. R. A. 576. See note, 36 L. R. A. 727-729. 
 
 86 People V. Garbutt, 17 Mich. 9, 97 Am. Dec. 162, and note; State v. 
 Bartlett, 43 N. H. 224, 80 Am. Dec. 154; State v. Jones, 50 N. H. 369, 9 
 Am. Rep. 242; O'Connell v. People, 87 N. Y. 377, 41 Am. Rep. 379; Brown 
 V. State (Fla.), 25 So. 63; Maas v. Territory, 10 Okl. 714, 63 Pac. 916; 
 Snider v. State, 56 Neb. 304, 76 N. W. 574 ; Brotherton v. People, 75 N. Y. 
 159; Cunningham v. State, 56 Miss. 269, 31 Am. Rep. 360, and note; State v. 
 Crawford, 11 Kan. 32; Guetig v. State, 66 Ind. 94, 32 Am. Rep. 99; State v. 
 Jones, 64 Iowa, 349; Walker v. People, 88 N. Y. 81. In some states stat- 
 utes regulate the subject. Davis v. United States, 160 XJ. S. 469, full dis- 
 cussion. See note, 36 L. R. A. 729. 
 
 87 People V. Garbutt, 17 Mich. 9, 97 Am. Dec. 162. See also People v. 
 Plnly, 38 Mich. 482. 
 
 ssHopps V. People, 31 111. 385; State v. Bartlett, 43 N. H. 224, 80 Am. 
 Dec. 154. 
 
§ 189. BURDEN OF PROOF. 227 
 
 decisions which relate to the burden of proof in respect to the pro- 
 bate of wills. By one line of reasoning it is maintained that inas- 
 much as prior to the statute in the time of Henry VIII one could 
 not make a will, and that by that statute persons making wills were 
 required to be of sound mind, it follows that the person offering 
 a will for probate must assume the lurden of proving that the statu- 
 tory formalities have been complied with, that the testator was of 
 sound mind and that he was such a person as the statute author- 
 izes to make a will. These courts also hold that the heirs of the de- 
 ceased may rest secure in their inheritance, until it is proved that 
 a will has been legally executed by a competent person.*" On the 
 other hand it is insisted that testators, like other persons, are pre- 
 sumed to be sane until the contrary appears, and that the iurden 
 of proof is upon the one allegvng insanity.^" The latter view is per- 
 haps supported by the greater numerical authority, but it is by no 
 means clear that it is sustained by the better reasoning. The rule 
 prevails in some jurisdictions that the party asserting the validity 
 of the will is required in the first instance to make a prima facie 
 case of the testator's sanity, but when this has been done and con- 
 tradictory testimony is offered, the proof of sanity will prevail, 
 unless the rebutting testimony is sufficient to overcome or neutral- 
 ize the presumption of sanity as well as the afiSrmative testimony 
 in support of the will." Some of the authorities which place the 
 
 89DelafieId v. Parish, 25 N. Y. 9; Crownlnshleld v. Crowninshleld, 2 
 Gray, 524; Cilley v. Cilley, 34 Me. 162; Barnes v. Barnes, 66 Me. 286; 
 Williams v. Robinson, 42 Vt. 658, 1 Am. Rep. 359; Knox's Appeal, 26 Conn. 
 20; McGinness v. Kempsey, 27 Mich. 363; Beazley v. Denson, 40 Tex. 416; 
 Evans v. Arnold, 52 Ga. 169; Tingley v. Cogwill, 48 Mo, 291; McMechen 
 V. McMechen, 17 W. Va. 683, 41 Am. Rep. 682; Layman's Will, 40 Minn. 
 371; Appeal of Livingston, 63 Conn. 68; the same is true on appeal from 
 probate court, Seebrock v. Pedawa, 30 Neb. 424. See note, 17 L. R. A. 
 494. Foi; the rule where fiduciary relations exist, see §§ 190, 191, infra. 
 
 90Whitenack v. Stryker, 2 N. J. Eq. 8; Lee's Will, 46 N. J. Eq. 193; 
 Duffleld V. Robeson, 2 Har. (Del.) 375; Grubbs v. McDonald, 91 Pa. St. 
 236; Allen v. GrifHn, 69 Wis. 529; Taylor v. Cresswell, 45 Md. 422; Rush 
 V. Magee, 36 Ind. 69; Cbrlsman r. Chrisman, 16 Ore. 127; Bastis v. Mont- 
 gomery, 93 Ala. 293; Ford v. Ford, 7 Hump. (Tenn.) 92; Will of CofEman, 
 12 Iowa, 491; McDaniel v. Crosby, 19 Ark. 533; Burton v. Scott, 3 Rand. 
 (Va.) 399; Stephenson v. Stephenson, 62 Iowa, 163; .Mullins v. Cottrell, 
 41 Miss. 291; Perkins v. Perkins, 39 N. H. 163; Will of Cole, 49 Wis. 179; 
 Pendlay v. Eaton, 130 111. 69; Fee v. Taylor, 83 Ky. 259; McCoon v. Allen, 
 45 N. J. Eq. 708. See note, 36 L. R. A. 733-740. 
 
 •1 Pendlay v. Easton, 130 111. 69; Wilbur v.' Wilbur, 129 111. 392; Will ol 
 
228 THE LAW OF EVIDENCE. § 190. 
 
 burden of proof upon the proponent of the will do not deny that 
 the ordinary presumption in favor of sanity may have some appli- 
 cation in such cases, but they urge that the presumption cannot 
 have the force of an independent fact to serve as a make-weight 
 against counter-proof, at least that the presumption only aids to 
 make out a prima facie case ; °^ while other cases deny that under 
 the statute of wills any such presumption exists.'' The usual prac- 
 tice is for the proponent to produce the subscribing witnesses, make 
 the formal proof of compliance with the statutory formalities and 
 give some proof of testamentary capacity. But he is not thereby 
 precluded from calling witnesses after the contestant has given evi- 
 dence tending to show insanity.'* Here the conflict arises, one 
 line of authority holding that the burden remains upon the pro- 
 ponent throughout the case ; °° the other insisting that after the 
 formal proofs are made the burden shifts to the contestant.'" On 
 the issue of fraud or undue influence the ordinary rule obtains that 
 the burden of proof is upon the party asserting a fact, hence the 
 burden in such cases is upon the contestant.'^ 
 
 § 190 (188). Burden of proof as between persons in a fiduciary 
 relation. — There is a well recognized qualification of the general 
 rule that the burden of proof is upon the party alleging a fraud. 
 ^^Tien a question arises between a trustee and a beneficiary or be- 
 tween other parties who are in a fiduciary relation as to the good 
 faith of transactions between them, a peculiar burden is imposed 
 upon the one in whom the trust is reposed. "When the complaining 
 party proves such relation, the burden of proof is cast upon the 
 
 Silverthorn, 68 Wis. 372; Will of Cole, 49 Wis. 179; Allen v. Griffin, 69 
 Wis. 529. See long note, 31 Am. St. Rep. 681, et seq. 
 
 02McGinness v. Kempsey, 27 Mich. 363; Taft v. Hosmer, 14 Mich. 309;. 
 Growninshield t. Crownlnshield, 2 Gray, 524. 
 
 «3 Evans v. Arnold, 52 Ga. 169; Beazley v. Denson, 40 Tex. 425; Williams 
 v. Robinson, 42 Vt. 658, 1 Am. Rep. 359. 
 
 »4 Layman's Will, 40 Minn. 371; Will of Silverthorn, 68 Wis. 372; Allen 
 v. Griffin, 69 Wis. 529; Appeal of O'Brien, 100 Me. 156, 60 Atl. 880. 
 
 »5 See cases above cited. 
 
 08 See cases above cited. Also note, 36 L. R. A. 735. 
 
 STMcMechen v. McMechen, 17 W. Va. 683, 41 Am. Rep. 682; Webber 
 V. Sullivan, 58 Iowa, 260; Seebrock v. Fedawa, 30 Neb. 424; Appeal of 
 O'Brien, 100 Me. 156, 60 Atl. 880; King v. King (Ky.), 42 S. W. 347; Mal- 
 low V. Walker, 115 Iowa, 238, 88 N. W. 452, 91 Am. St. Rep. 158; Salter 
 V. Ely, 56 N. J. L. 357, 39 Atl. 365. But where will is drawn by legatee 
 the burden rests on proponents, Bush v. Delano, 113 Mich. 321, 71 N. W. 
 628. 
 
§ 190, BUEDEN OP PROOF. 229 
 
 trustee or other person holding the relation of trust to show that 
 the transaction is fair and reasonable and that all proper informa- 
 tion has been given to the other party. To state the rule more 
 broadly, when confidential relations exist between two persons, re- 
 sulting in one having an influence over the other, and a business 
 transaction takes place between them, resulting in a benefit to the 
 person holding the influential position, the law presumes every- 
 thing against the transaction and casts the burden of proof upon 
 the person benefited to show that the confidential relation has been, 
 as to that transaction at least, suspended and that it was as fairly 
 conducted as if between strangers."' This rule applies, for example, 
 to agents,*' attorneys,^ clergymen,'' physicians,' partners,* trustees,'' 
 guardians* and to executors and administrators.^ A similar rule 
 is applied in the dealings of a parent with his child, when the cir- 
 cumstances are such that undue influence may naturally be in- 
 ferred,' and to the dealings of a child with an old or infirm parent, 
 when the circumstances are such that the former assumes a fiduci- 
 ary relation.* And generally when contracts are executed by per- 
 sons of very weak minds arising from age or sickness, intoxication 
 
 08 Atkins V. Withers, 94 N. C. 581; Jones v. Lloyd, 117 IlL 597; Porter 
 V. Woodruff, 36 N. J. Bq. 174; Cumberland, C. & I. Co. v. Parish, 42 Md. 
 598; Street v. Goss, 62 Mo. 226; Pironl v. Corrlgan, 47 N. J. Eq. 135. 
 
 08 Gardner v. Ogden, 22 N. Y. 327, 78 Am. Dec. 192. 
 
 1 Pacific Ry. Co. v. Ketchum, 101 TJ. S. 289; Post v. Mason, 91 N. Y. 539, 
 43 Am. Rep. 689; Whitehead v. Kennedy, 69 N. Y. 462; Cowee v. Cornell, 
 75 N. Y. 91, 31 Am. Rep. 428; Holman v. Loynes, 18 Jur. 839; Little v. 
 Knox, 96 Ala. 179, 11 So. 443. 
 
 2 Good V. Zook, 116 Iowa, 582, 88 N. W. 376. 
 
 » Cadwaallader v. West, 48 Mo. 483; Woodbury v. Woodbury, 141 Mass. 
 329, 55 Am. Rep. 479, and note. 
 
 * Maddeford v. Austrick, 1 Sim. 89. 
 
 Jones V. Lloyd, 117 111. 597; Porter v. Woodruff, 36 N. J. Eq. 174. 
 
 « Meek v. Perry, 36 Miss. 190; Ash ton v. Thompson, 32 Minn. 25. 
 
 T Humphreys v. Burleson, 72 Ala. 1; Statham v. Ferguson, 25 Gratt. 
 (Va.) 28; Warner v. Warner, 18 App. Cas. (N. Y.) 151. 
 
 sBradshaw v. Yates, 67 Mo. 221; Ashton v. Thompson, 32 Minn. 25; 
 Miskey's Appeal, 107 Pa. St. 611; Miller v. Simonds, 72 Mo. 669; Wood 
 V. Rabe, 96 N. Y. 414. But see Towson v. Moore, 173 U. S. 17. 
 
 Martin v. Martin, 1 Heisk. (Tenn.) 644; Highberger v. Stiffler, 21 
 Md. 338; Simpler v. Lord, 28 Ga. 52; Jacox v. Jacox, 40 Mich. 473; Thorn 
 V. Thorn, 51 Mich. 167; Day v. Day, 84 N. C. 408; Smith v. Loafman, 145 
 Pa. St. 628; Glover v. Hayden, 4 Cush. 580; Harrington v. Grant, 54 Vt. 
 236; Deem v. Phillips, 5 W. Va. 168. But see Slaybrick v. Witt, 151 Ind 
 376, 50 N. E. 389. 
 
230 THE LAW OF EVIDENCE. § 191. 
 
 or any other cause, although not amounting to absolute disqualifi- 
 cation, undue influence by the person benefited by the transaction 
 will be readily inferred; the burden of showing that the transac- 
 tion is fair is placed upon the one so benefited.^" 
 
 § 191 (189). Same — In respect to wills. — On a somewhat analo- 
 gous principle it has been held that, when the draughtsman of a 
 will is a stranger to the blood of the testator and there is a pro- 
 vision in the will giving him a considerable legacy, there is the pre- 
 sumption that the testator does not know the contents of the will, 
 and that the burden is upon the proponent to rebut this presump- 
 tion.*^ But the mere fact that the writer of a will is a beneficiary 
 under it does not defeat the will; and it may well be doubted 
 whether such fact changes the burden of proof. The burden of 
 proving capacity and the fact of execution are upon the proponent ; 
 and from these facts the knowledge and assent of the testator are 
 generally implied.*" Probably by the weight of authority there is no 
 presumption of fraud or undue influence from the mere fact that 
 the will contains provisions beneficial to the scrivener, although he is 
 the attorney,*^ spiritual adviser ** or other person who holds some 
 confidential or fiduciary relation with the testator ; and in such cases 
 it is incumbent upon the person attacking the wiU to give some evi- 
 dence tending to show fraud or undue influence.*" But when the 
 draughtsman of a wUl provides for a legacy for himself, it is a sus- 
 
 10 Moore v. Moore, 56 Cal. 89; Allore v. Jewell, 94 U. S. 506; Fishburn 
 V. Ferguson, 84 Va. 87; Hale v. Brown, 11 Ala. 87; Samuel v. Marshall, 3 
 Leigh (Va.) 567; Harroway v. Harroway, 136 Ala. 499, 34 So. 836; Lewis 
 V. McGrath, 191 111. 401, 61 N. E. 135. For general discussion, see long 
 note, 21 Am. St. Rep. 94. 
 
 "Hughes V. Meredith, 24 Ga. 325, 71 Am. Dec. 127; Tompkins v. Tomp- 
 kins, 1 Bailey (S. C.) 92, 19 Am. Dec. 656. See long note, 21 Am. St. Rep. 
 94. As to burden of proof as to testamentary capacity, see § 189, supra. 
 
 12 Barry v. Butlin, 1 Curt. Bcc. 637; Post v. Mason, 91 N. Y. 539, 43 
 Am. Rep. 689. 
 
 18 Post V. Mason, 91 N. Y. 539, 43 Am. Rep. 689; Rusling v. Rusling, 36 
 N. J. Eq. 603; Carter v. Dixon, 69 Ga. 82; Montague v. Allan, 78 Va. 592, 
 49 Am. Rep. 384. This is especially true where an attorney and confiden- 
 tial friend was appointed executor, but was not named as legatee, Appeal 
 of Livingston, 63 Conn. 68. Contra, Yardley v. Cuthbertson, 108 Pa. St. 
 395, 56 Am. Rep. 218. See, also, Delafield v. Parish, 25 N. Y. 9; Rich- 
 mond's Appeal, 59 Conn. 226, 21 Am. St. Rep. 85, and note. 
 
 "Kerrigan v. Lernard (N. J.), 8 Atl. 503. 
 
 IB Montague v. Allan, 78 Va. 592, 49 Am. Rep. 384; Carter v. Dixon, 
 69 Ga. 82; Rusling v. Rusling, 30 N. J. Eq. 603; Horah v. Knox, 87 N. 
 0. 483; Critz V. Peerce, 106 111. 167. 
 
§ 191. BURDEN OP PROOF. 231 
 
 picious circumstance of more or less weight according to the degree 
 of relationship, the amount of the legacy and aU the other circum- 
 stances of the case.^° It is a circumstance which calls for the scru- 
 tiny of the court and which may have great weight on the question 
 of undue influence, or in leading to the conclusion that the testator 
 did not know the real nature of the instrument.^^ The same rule ob- 
 tains although the wiU is not written by the beneficiary, if he pro- 
 cures it to be drawn and dictates its contents. Qui facit per alium, 
 facit per se.^' Although in the class of cases under consideration 
 stronger proof of the knowledge of the contents of a wiU on the part 
 of the testator may be required, such evidence may be circumstantial 
 in its nature.^' The courts have presumed that undue influence had 
 been used and have thrown upon the legatees or devisees the burden 
 of rebutting the presumption in numerous cases where the benefi- 
 ciaries were in a situation to take advantage of a confidential rela- 
 tion sustained toward the testator, as where the testator excluded the 
 natural objects of his bounty and then made bequests to his attor- 
 ney,"" to a spiritual adviser,^^ to a guardian ^* or to other persons in 
 such confidential relations."' But as a rule the burden of proof is 
 not changed hy the fact that there are inequalities or injustice in 
 respect to some of the testator's children ;"* nor by reason of feelings 
 
 loBeall V. Mann, 5 Ga. 456; Garrett v. Heflin, 98 Ala. 615, 13 So. 
 326, 39 Am. St. Rep. 89; Rusllng v. Rusling 36 N. J. Eq. 603; Hughes 
 V. Meredith, 24 Ga. 325, 71 Am. Dec. 127; In re Barney's Will, 70 Vt. 352, 
 40 Atl. 1027. , 
 
 17 See cases last cited and also cases cited In note, 71 Am. Dec. 129-134. 
 
 isDelafleld v. Parish, 25 N. Y. 9. 
 
 IS Raworth v. Marriott, 1 Mylne & K. 643; Nexsen v. Nexsen, 3 Abb. 
 Dec. (N. Y.) 360. 
 
 20 Post T. Mason, 91 N. Y. 539, 43 Am. Rep. 689; Yardley v. Cuth- 
 bertson, 108 Pa. St. 395, 56 Am. Rep. 218; Richmond's Appeal, 59 Conn. 
 226, 21 Am. St. Rep. 85 and long note. See also, Riddell v. Johnson's 
 Ex., 26 Gratt. (Va.) 152. 
 
 21 Marx V. McGlynn, 88 N. Y. 357; Schofield v. Walker, 58 Mich. 96; 
 Thompson v. Hawks, 14 Fed. 902, where the bequest was to a spiritual 
 adviser. 
 
 ■ 22 Breed v. Pratt, 18 Pick. 115; Meek v. Perry, 36 Miss. 190; Garvin 
 V. Williams, 44 Mo. 465, 100 Am. Dec. 314 and note; Budwell v. Swank, 
 84 Mo. 455. 
 
 23 Gay V. Gillilan, 92 Mo. 250, 1 Am. St. Rep. 712; Greenwood t. 
 Gline, 7 Ore. 18, where under peculiar circumstances children received 
 the whole Inheritance to the exclusion of others; Byard v. Conover, 39 
 N. J. Bq. 224, where the bequest was to a housekeeper. 
 
 24Turnure v. Tumure, 35 N. J. Eq. 437; Kise v. Heath, 33 N. J. Eq. 
 239; Bundy v. McKnight, 48 Ind. 503, 
 
232 THE LAW OF EVIDENOE. § 192. 
 
 of resentment whicli the testator may have entertained.^' There- 
 is no presumption of undue influence affecting the burden of proof 
 arising from the fact that bequests are made by a husiand to his 
 wife or by a wife to her husband, even though such bequests may 
 have been to some extent the result of persuasion and importun- 
 ity,^" or the result of influence acquired over the testator by means 
 of kind treatment and intimate intercourse ;^' nor is there any such 
 presumption from the fact that a husband changed his will to grat- 
 ify his wife,^' or that he revoked a former will without any known 
 reason.'" No presumption of undue influence arises from the fact 
 that a bequest is made by the testator to one with whom he is living 
 in illicit intercourse.'" "While any one of these facts standing alone 
 is not enough to raise a presumption of undue influence and to 
 change the general burden of proof, yet such circumstances are to 
 he considered va. connection with other facts; and when taken in 
 connection with facts tending to show improper influence, they may 
 have great weight. 
 
 § 192 (190). Burden as to crimes — Fraud. — On the general prin- 
 ciple that the burden of proof is upon the actor, the one asserting 
 a fact, he who alleges that another has committed a crime or wrong- 
 ful act assumes the onus profundi in respect to such issue. But 
 there is an additional reason for the application of the principle 
 in such cases, which is that innocence and right conduct are to be 
 presumed rather than delinquency or crime — Odiosa et inhonesta 
 non sunt in lege prcesumenda. It is beyond the scope of this work 
 to discuss the principle in its application to the criminal laiv. It 
 suffices to call attention to the familiar rule that in criminal pro- 
 cedure the state has not only the burden of proving its claim by a 
 preponderance of evidence, but heyond a reasonable doubt. In 
 other words, if after the comparison and consideration of all the 
 evidence the minds of the jurors are in that condition that they 
 cannot say they' feel an abiding conviction to a moral certainty of 
 the truth of the charge, the prosecution fails.'^ On its civil side 
 
 25 Dale v. Dale, 36 N. J. Eq. 269. 
 
 28 will of Nelson, 39 Minn. 204; Armstrong v. Armstrong, 63 Wis. 162. 
 
 2TW111 of Gluspln, 26 N. J. Eq. 523; Kise v. Heath, 33 N. J. Eq. 239; 
 Will of Jackman, 26 Wis. 104. 
 
 28 Rankin v. Rankin, 61 Mo. 295. 
 
 2»W111 of Nelson, 39 Minn. 204. 
 
 so Dickie V. Carter, 42 111. 376; Wainrlght's Appeal, 89 Pa. St. 220: 
 Porschet v. Porschet, 82 Ky. 93, 56 Am. Rep. 880; Monroe v. Barkley, 
 17 Ohio St. 302, 93 Am. Dec. 620; Main v. Ryder, 84 Pa. St. 217; Will of 
 Donelly, 68 Iowa, 126, where the wife was testatrix. 
 
 »iCom. V. Webster, 5 Cush. 320, 52 Am. Dec. 711; Davis v. State. 
 
§ 192. BURDEN OF PROOF. 233 
 
 the law furnishes abundant illustrations that the burden of proof 
 is upon the one who asserts that a wrong has been committed. As 
 we have already seen, it is a familiar principle that the burden of 
 proof is on him who complains of negligence. "He must not only 
 show that he suffered harm in such a manner that it might be 
 caused by the defendant's negligence, he must show that it was so 
 caused; and to do this he must prove facts inconsistent with due 
 diligence on the part of the defendant. " '^ The principle is equally 
 familiar in the law of fraud. Thus, while it is error to charge 
 the jury that fraud must be proved "beyond reasonable doubt" 
 by the party alleging it,'' or by "clear and undoubted proof" '* or 
 by "irresistible" evidence, still parties are presumed to be free 
 from fraud until the contrary is proved, and the burden rests upon 
 him who asserts fraudulent conduct to make good the charge by 
 clear and satisfactory proofs.'" Thus the burden is upon the party 
 plaintiff or defendant, who asserts that a contract °° or conveyance 
 was obtained by fraudulent representations," or that a will was ob- 
 tained by fraud or undue influence," or that property has been con- 
 veyed in fraud of creditors," or when false representations of any 
 kind are alleged as a defense.*" Although the evidence of fraud 
 
 54 Neb. 177, 74 N. W. 599; State v. Kavanaugh, 4 Cen. (Del.) 131, 53 
 Atl. 335; State v. Newton, 39 Wash. 491. 81 Pac. 1002. See §§ 177. 186 
 supra. 
 
 S2 Pollock. Torts (7th Ed.), p. 434; Cooley, Torts (3rd Ed.), p. 1439. 
 For cluallflcation of the rule where facts are peculiarly within the 
 knowledge of the party, see § 181 supra, and also § 183 supra, as to 
 negligence cases. 
 
 33.ffitna Ins. Co. v. JoTinson, 11 Bush (Ky.) 587, 21 Am. Rep. 223; 
 Kane v. Hibernia Ins. Co., 39 N. J. L. 697, 23 Am. Rep. 239; Lee v. 
 Pearce. 68 N. C. 76; Sparks v. Dawson, 47 Tex. 138; Washington Ins, 
 Co. V. Wilson, 7 Wis. 169; Blaeser v. Milwaukee M. M. I. Co., 37 Wis. 
 31, 19 Am. Rep. 747. 
 
 3* Abbey v. Dewey, 25 Pa. St. 413. 
 
 36 Carter v. Gunnels, 67 111. 270; Turner v. Younker, 76 Iowa. 258; 
 Marsh v. Cramer, 16 Colo. 331; Louisville Ry. Co. v. Thompson, 107 
 Ind. 442. 
 
 88 Bank v. Lampriere, 4 P. C. 572, 5 Moak Rep. 137; Hill v. Reif- 
 snider, 46 Md. 555; Tompldns v. Nichols, S3 Ala. 197; Bowden v. 
 Bowden, 75 111. 143; Wallace v. Mattice, 118 Ind. 59; Nichols v. Patton, 
 18 Me. 231, 36 Am. Dec. 713; Beaty v. Fishel, 100 Mass. 448; Smith v. 
 Ogilvie, 127 N. Y. 143. 
 
 8T Welborn v. Tiller, 10 Ala. 305. 
 I ss Baldwin v. Parker, 99 Mass. 79, 96 Am. Deo. 697. 
 
 39 Nichols V. Patton, 18 Me. 231, 36 Am. Dec. 713. See notes. 90 Am 
 St. Rep. 550-556; 36 L. R. A. 361-363. 
 
 «) Campbell v. New England Ins. Co., 98 Mass. 381; Briggs v. Hum- 
 phrey. 5 Allen. 314. 
 
234 THE LAW OP EVIDBNCE. § 193. 
 
 must be satisfactory and convincing, it need not be direct in char- 
 acter, but may consist of circumstantial or presumptive evidence 
 from which the fraud may be inferred.** 
 
 § 193 (191). Burden in quo warranto proceedings. — ^Attention 
 should be called to the fact that the ordinary rules as to the bur- 
 den of proof do not apply in quo ivarranto proceedings. One who 
 is exercising the privilege of a public ofiSce is considered an usurper 
 unless he can maintain his title; and in a proceeding by the 
 public, the burden of showing his right to the office is cast upon 
 the respondents^ If the defendant is unable to show good title 
 to the office the people are entitled to a judgment of ouster.*' It is 
 no defense to the incumbent that a relator who seeks to assert his 
 right may fail to establish such claim; judgment of amotion may 
 nevertheless be rendered;** but where the proceeding is on the re- 
 lation of a person claiming title, he has the burden of proof to 
 establish his claim.*' In quo warranto proceedings undertaken by 
 the people the burden is so far east upon the respondent that he 
 cannot rely upon presumptions, but he must prove the continued 
 existence of every qualification necessary to the enjoyment of 
 the office.*" Although the proper official certificate is prima facie 
 evidence of the election to an office,*' it is a familiar rule that the 
 
 «iRea V. Missouri, 17 Wall. 532; ICaine v. Welghley, 22 Pa. St. 179; 
 Reed v. Noxon, 48 111. 323; Lowry v. Beckner, 5 B. Mon. (Ky.) 43; Burch 
 V. Smith, 15 Tex. 219, 65 Am. Dec. 154; Marsh v. Cramer, 16 Colo. 331. 
 
 *2Rex V. Leigh, 4 Burr. 2143; State ex rel. Swenson v. Norton, 46 
 Wis. 332; People v. Mayworm, 5 Mich. 146; People ex rel. Saunier v. 
 Stratton, 33 Colo. 464, 81 Pac. 245; State ex rel. Southev v. Lasher, 
 71 Conn. 540, 42 Atl. 636; People v. Thacher, 55 N. Y. 525, 14 Am. Rep. 
 312; People v. Niles, 2 Mich. 348. Contra, People v. Lacoste, 37 N. Y. 
 192; State v. Hunton, 28 Vt. 594. 
 
 43 People V. Ridgley, 21 111. 67; People v. Utica Ins. Co., 15 Johns. 
 353, 8 Am. Dec. 243; State v. Harris, 3 Ark. 570,- 36 Am. Dec. 460, and 
 cases cited above. 
 
 44 State ex rel. Swenson v. Norton, 46 Wis. 332 ; Relender v. State ex 
 rel. Utz, 149 Ind. 283, 49 N. E. 30; Clark v. People, 15 111. 217. Nor 
 does a failure of defendant prove the title of relator to the office. Peo- 
 ple v. Thacher, 55 N. Y.* 525, 14 Am. Rep. 312. 
 
 « People V. Thacher, 55 N. Y. 525, 14 Am. Rep. 312; People v. 
 Lacoste, 37 N. Y. 192; Miller v. English, 21 N. J. L. 317; State ex re!. 
 Blessing v. Davis, 64 Neb. 499, 90 N. W. 232; Ellis v. May, 99 Mich. 
 538, 58 N. W 483; People v. Nostrand, 46 N. Y. 375. 
 
 Instate V. Beecher, 15 Ohio, 723; People v. Mayworm, 5 Mich. 148; 
 State ex rel. Blessing v. Davis 64 Neb. 499, 90 N. W. 232; Tillman v. 
 Otter, 93 Ky. 600, 20 S. W. 1036, 29 L. R. A. 110. 
 
 «7 State ex rel. Swenson v. Norton, 46 Wis. 332; People v. Thacher,' 
 
§ 195. BURDEN OF PROOF. 235 
 
 certificate and returns on which it is based are open to investigation 
 and that judgment will be rendered according to real facts.*' 
 
 § 194 (192). Burden as to statutes of limitation. — Cases arising 
 under statutes of limitation have presented an apparent exception 
 to the general rules. It was held in numerous early cases that when 
 an issue is raised as to the statute, the burden of proof is upon the 
 plaintifE to show that the action accrued within the statutory pe- 
 riod.*? On the other hand it has been held, and with much force, 
 that since the plea of the statute of limitations is an affirmative 
 defense, the burden should rest upon the defendant to prove the 
 facts which entitle him to its benefit."" It is clear that one who 
 claims the benefit of any exception to the statute must prove the 
 facts upon which he relies; and if on the plaintiff's own showing 
 the statute stands in the way, he must prove such facts as are nec- 
 essary to take the case out of the operation of the statute."^ 
 
 § 195 (193). Burden and weight of proof where crime is in is- 
 sue in civil cases. — ^By the English rule "if the commission of a 
 crime is directly in issue in any proceeding, criminal or civil, it 
 must be proved beyond a reasonable doubt. '"^ In the earlier au- 
 thorities the same rule was sometimes declared in this country, and 
 it has been preferred in a limited number of states more recently."' 
 
 55 N. Y. 525, 14 Am. Rep. 312; State ex rel. Leonard v. Rosenthal, 123 
 Wis. 442, 102 N. W. 49 
 
 48 People V. Thacher, 55 N. T. 525, 14 Am. Rep. 312; People v. La- 
 coste, 37 N. T. 192; State ex rel. Swenson v. Norton, 46 Wis. 332. 
 
 ■*» Taylor v. Spears, 1 Eng. (Ark.) 381, 44 Am. Dec. 519; Leigh v. 
 Evans, 64 Ark. 26, 41 S. W. 427; Pond v. Gibson, 5 Allen, 19, 81 Am. 
 Dec. 724 and note; Hurst v. Parker, 2 Chit. 249; Slocum v. Riley, 145 
 Mass. 370; Robinson v. State, 20 Pla. 804; Moore v. Garner, 101 N. C. 
 374; Graham v. O'Bryon, 120 N. C. 463, 27 S. E. 122; Apperson v. 
 Pattison, 11 Lea (Tenn.) 484; Stansbury v. Stansbury, 20 W. Va. 23. 
 
 BO Wise T. Williams, 72 Cal. 544; Campbell v. Laclede Gas Co., 84 Mo. 
 352; Lewis v. Mason, 84 Va. 731; Duggan v. Cole, 2 Tex. 381; Combs v. 
 Smith, 78 Mo. 32; Goodells' Ex'rs v. Gibbons, 91 Va. 608, 22 S. B. 504. 
 See note, 81 Am. Dec. 725. 
 
 61 Davenport v. Wynne, 6 Ired. (N. C.) 128, 44 Am. Dec. 70; Apper- 
 son V. Pattison, 11 Lea (Tenn.) 484; Gross v. Disney, 95 Tenn. 592, 32 
 S. W. 632; Yell v. Lane, 41 Ark. 53; Vail v. Halton, 14 Ind. 344; 
 Dessaunier v. Murphy, 33 Mo. 184, that one was a feme covert; Phillips 
 V. Holman, 26 Tex. 276, absence from the state; Knight v. Clements, 45 
 Ala. 89, 6 Am. Rep. 693, part payment; Moore v. Leseur, 18 Ala. 606, 
 new promise; Spuryer v. Hardy, 4 Mo. App. 573, fraudulent concealment.' 
 
 62Steph. Ev. art. 94; Thurtell v. Beaumont, 1 Bing. 339, 8 Moore, 612; 
 WlUmett V. Harmer, 8 Car. & P. 695; Chalmers v. Shackell, 6 Car. & 
 P. 475; see article 10 Am. Law Rev. 642, 656. 
 
 BsCorbley v. Wilson, 71 111. 209, 22 Am. Rep. 98; Merk v. Gelzhaeuser, 
 
236 THE lAW OP BVIDENCB. § 195. 
 
 But undoubtedly the prevailing rule in ttis country is that, in 
 civil actions, it is sufficient to prove the issue whether civil or crim- 
 inal by a preponderance of testimony.'* In several states in which 
 the earlier decisions leaned toward the English rule the courts have 
 since adopted the American rule on this subject. The following 
 quotation from a decision of the supreme court of Maine indicates 
 the reason for the old rule and the reason of its abandonment: 
 ""We think it time to limit the application of a rule, which was 
 originally adopted in favorem vitae in the days of a sanguinary 
 penal code, to cases arising on the criminal docket, and no longer 
 to suffer it to obstruct or incumber the action of juries in civil suits 
 sounding only in damages.""" In a few courts it has been held 
 
 50 Cal. 631; Tucker v. Call, 45 Ind. 31; Polston v. See, 54 Mo. 291; 
 Williams v. Gtmnels, 66 Ga. 521; Steinman v. McWilliams, 6 Barr (Pa) 
 170; Lanter v. McEwen, 8 Blackf. (Ind.) 495; Coulter v. Stuart, 2 Terg. 
 (Tenn.) 225; Shultz v. Pacific Ins. Co., 14 Fla. 73. See also, Sprague 
 V. Dodge, 48 111. 142, 95 Am. Dec. 523 and extended note. 
 
 64 Bell V. McGinness, 40 Ohio St. 204, 48 Am. Rep. 673; Brown v. 
 Tourtelotte, 24 Colo. 204, 50 Pac. 195; Nebraska Nat. Bank v. Johnson, 
 
 51 Neb. 546, 71 N. W. 294; Bell v. State, 124 Ala. 94, 27 So. 414; Camp- 
 bell V. Burns, 94 Me. 127, 46 Atl. 812; Folsom v. Brown, 25 N. H. 114; 
 People V. Evening News, 51 Mich. 11; Blaeser v. Milwaukee Ins. Co., 37 
 Wis. 31, 19 Am. Rep. 747; Kane v. Hibernia Ins. Co., 39 N. J. L. 697, 23 
 Am. Rep. 239'; Rothschild v. Amer. Ins. Co., 62 Mo. 356; Behrens v. 
 Germania Ins. Co., 58 Iowa, 26; Seybolt v. New York Ry. Co., 95 N. T. 
 562, 47 Am. Rep. 75; Heiligmann v. Rose, 81 Tex. 222, 26 Am. St Rep. 
 804 and note; Schmidt v. N. Y. Ins. Co., 1 Gray, 529; Robergs v. B.urn- 
 ham, 124 Mass. 277; Thoreson v. Northwestern Ins. Co., 29 Minn. 107; 
 Weston v. Gravlin, 49 Vt. 507; Munson v. Atwood, 30 Conn. 102. 
 
 so Ellis V. Buzzell, 60 Me. 209, 11 Am. Rep. 204; Adams v. Thornton, 
 78 Ala. 489, 56 Am. Rep. 49; Kane v. Hibernia Ins. Co., 39 N. J. L. 
 697, 23 Am. Rep. 239. It is sufficient in a civil case to prove by a pre- 
 ponderance of evidence the charge of false representations, Munson v. 
 Atwood, 30 Conn. 102; Coit v. Churchill, 61 Iowa, 296; Gordon v. Par- 
 melee, 15 Gray, 413; Hough v. Dickinson, 58 Mich. 89; Thoreson v. 
 Northwestern Ins. Co., 29 Minn. 107; Jones v. Greaves, 26 Ohio St. 2, 
 20 Am. Rep. 752; the wilful burning of property in Insurance cases, 
 Continental Ins. Co. v. Jachnlchen, 110 Ind. 59, 59 Am. Rep. 194; 
 Berhens v. Germanla Ins. Co., 58 Iowa, 26; ^tna Ins. Co. v. Johnson, 
 11 Bush (Ky.) 587, 21 Am. Rep. 223; Wightman v. Western Ins. Co., 8 
 Rob. (La.) 442; Decker v. Somerset Ins. Co., 66 Me. 406; Schmidt v. 
 N. Y. V. M. P. I. Co., 1 Gray, 529; Rothschild v. Am. Ins. Co., 62 Mo. 356; 
 Kane v. Hibernia Ins. Co., 39 N. J. L. 697, 23 Am. Rep. 239; Blaeser v. 
 Milwaukee M. M. I. Co., 37 Wis. 31, 19 Am. Rep. 747 (contra, Ger- 
 manla Ins. Co. V. Klewer, 129 111. 599; McConnell v. Delaware Co., 18 111- 
 
§ 195, BUEDEN OF PROOF. 237 
 
 that a criminal offense charged in the pleadings in a civil case must 
 be proved beyond a reasonable doubt, but that the same rule does 
 not apply where the charge comes only incidentally in issue." But 
 it will be found that, while in many of the eases already cited to 
 support the general rule, the charge was directly in issue by the 
 pleadings, no such distinction was recognized; and it seems plain 
 that on principle no distinction exists. But where the issue in- 
 volves a charge of moral turpitude, the presumption of innocence 
 obtains in civil as well as in criminal cases; hence when in a civil 
 action a party is charged with a crime, the evidence should be suffi- 
 cient to overcome the presumption of innocence ; and for this pur- 
 pose more evidence may be necessary than in ordinary cases."^ 
 When fraud or criminal conduct is imputed the decisions fre- 
 quently declare that something more than a mere preponderance of 
 evidence must be produced, and that the proof must be clear and 
 satisfactory."* 
 
 228; Barton v. Thompson, 46 Iowa, 30, 26 Am. Rep. 134; Schultz v. 
 Pacific Ins. Co., 14 Fla, 73) ; the charge of hastardy, Mann v. People, 35 
 111. 467; People v. Chrlstman, 66 111. 162; Knowles v. Scribner, 57 Me. 
 495; Young v. Makepeace, 103 Mass. 50; Semon v. People, 42 Mich. 141; 
 State V. Nichols, 29 Minn. 357; that the money found In defendant's 
 possession belonged to the plaintiff. United States Express Co. v. Jen- 
 kins, 73 Wis. 471. The same rule prevails in actions for slander and 
 Wbel where the charge Is that a criminal offense has been committed, 
 Riley v. Norton, 65 Iowa, 306; Sloan v. Gilbert, 12 Bush. (Ky.) 51, 23 
 Am. Rep. 708; Ellis v. Buzzell, 60 Me. 209, 11 Am. Rep. 204; Folsom v. 
 Brown, 25 N. H. 114; Kincade v. Bradshaw, 3 Hawks (N. C.) 63; 
 McBee .V. Pulton, 47 Md. 403, 28 Am. Rep. 465 (contra, Tucker v. 
 Call, 45 Ind. 31; Tolston v. See, 54 Mo. 291; Corbley v. Wilson, 71 111. 
 209, 22 Am. Rep. 98; Merk v. Gelzhaeuser, 50 Cal. 631; Williams v. 
 Gunnels, 66 Ga. 521) ; and in actions for divorce on the ground of 
 adultery, Poertner v. Poertner, 66 Wis. 644; Allen v. Allen, 101 N. Y. 
 658; Chestnut v. Chestnut, 88 111. 548; Smith v. Smith, 5 Ore. 186 (contra, 
 Berckmans v. Berckmans, 17 N. J. Eq. 453). 
 
 B8 Hahnemannian Ins. Co. v. Beebe, 48 111. 87, 95 Am. Deo. 519; 
 Schmidt r. New York Ins. Co., 1 Gray, 529. See also, Kane v. Hibernia 
 Ins. Co., 38 J. L. 441, 20 Am. Rep. 409; 39 N. J. L. 697, S3 Am. Rep. 239. 
 
 BT Decker v. Somerset Ins. Co., 66 Me. 406; Jones v. Graves, 26 Ohio 
 St. 2, 20 Am. Rep. 752; Hills v. Goodyear, 4 Lea (Tenn.) 233, 40 Am. 
 Rep. 5; Bradish t. Bliss, 35 Vt. 326. See extended note, 95 Am. Dec. 528. 
 
 58 Kansas M. O. M. Ins. Co. v. Rammelsberg, 58 Kan. 531, 50 Pac. 446; 
 proof must be "convincing", Conner v. Groh, 90 Md. 674, 45 Atl. 1024; 
 "clear and satisfactory", Laone v. U. S., 164 U. S. 255; Dohmen Co. v. 
 Ins. Co., 96 Wis. 38, 71 N. W. 69; "clear, unequivocal and convincing," 
 U. S. T. Bell Tel. Co.. 167 U. S. 224, 241. 
 
238 THE LAW OF EVIDENCE. § 196. 
 
 § 196 (194). Statutes as to burden of proof. — Statutes exist in 
 some jurisdictions changing the general rule as to the burden of 
 proof. For example, in England many statutes have been enacted 
 which in certain criminal proceedings place upOn the defendant the 
 burden of explaining the possession of counterfeit money or tools 
 or implements used in housebreaking. And in respect to many other 
 offences statutes in a similar manner both in England and in this 
 country regulate the burden of proof as to certain facts peculiarly 
 within the knowledge of the defendant. Owing to the difficulty of 
 obtaining direct evidence of violations of statutes with respect to 
 gambling and similar offences, statutes in some jurisdictions have 
 declared that if any of the implements or devices commonly used 
 by gamblers in gambling houses are found in any house, it shall 
 be prima facie evidence that such house is kept for gambling pur- 
 poses."* Similar statutes have been enacted making the possession 
 or delivery of intoxicating liquors under certain conditions prima 
 facie evidence of their unlawful sale."" Although the constitution- 
 ality of legislation of this character has been attacked, the clear 
 weight of authority sustains the view that it is competent for the 
 legislature to prescribe rules of evidence both in civil and criminal 
 eases and to regulate the burden of proof by statute. In criminal 
 cases the limitation has been imposed that the acts declared prima 
 facie evidence of the crime must have some relation to the crim- 
 inal act and tend to prove the crime, and that the accused must 
 have an opportunity to rebut the presumption created by the stat- 
 ute." Even conclusive presumptions regulating ,the burden of 
 prQof have been created by statutes and upheld by the courts in 
 respect to tax proceedings, and it has been held that the legislature 
 may make a tax deed conclusive evidence of the regularity of the 
 prior preceedings as to all non-essentials or as to matters of routine 
 which rest in mere expediency, acts which need not have been re- 
 quired by the statute in the first place and which the legislature 
 may, by a curative act, excuse when omitted."" The cases sustain- 
 
 BKWooton V. State, 24 Fla. 335; Morgan v. State, 117 Ind. 569. As 
 to the general subject of this section, see extended note, 36 Am. St. 
 Rep. 682-689. 
 
 60 Com. V. Rowe, 14 Gray, 47; Board of Com. v. Merchant, 103 N. Y. 
 143, 57 Am. Rep. 705; Edwards v. State, 121 Ind. 450; State v. Morgan, 
 40 Conn. 44; Lincoln v. Smith, 27 Vt. 328; State v. Cunningham, 25 
 Conn. 195; State v. Hurley, 54 Me. 562; State v. Mellor, 13 R. I. 666. 
 
 81 Com. V. Wallace, 7 Gray, 222, and cases cited above. 
 
 •2 Phelps T. Meade, 41 Iowa, 470; De Treville v. Smalls, 98 V. S. 517; 
 
§ 197. BURDEN OF PROOF. 239 
 
 ing this view, however, imply that it would not be competent for 
 the legislature, by prescribing rules of evidence, to deprive parties 
 of their vested rights.'^ Statutes quite generally exist creating a 
 presumption of fraud as against creditors in the sale of goods in 
 possession, unless accompanied by immediate delivery, and placing 
 the burden of proving good faith upon the person claiming under 
 such sale; other statutes place the burden of showing good faith 
 upon the holders of chattel mortgages in contests between such mort- 
 gagees and the creditors of the debtor. For other statutes on the 
 subject of which these are only illustrations the practitioner should 
 consult the statutes of his jurisdiction. 
 
 § 197 (195). The right to begin and reply. — Closely connected 
 with the subject of burden of proof is the very practical question 
 as to who has the right to begin the introduction of evidence, and 
 the right to open and reply in the argument to the court or jury. 
 This is for the determination of the court on inspection of the 
 pleadings.^* The rule which has come to prevail is that "the 
 plaintiff should bring his own cause of complaint before the court 
 and jury in every case where he has anything to prove, either as 
 to the facts necessary for his obtaining a verdict or as to the amount 
 of damages to which he conceives the proof of such facts may en- 
 title him.""' The defendant who may wish to take the right 
 
 Turpln v. Lemon, 187 tJ. S. 51; Ensign v. Barse, 107 N. Y. 329; Matter of 
 OrlofC Lake, 40 La. An. 142; Rollins v. Wright, 93 Cal. 397. But some 
 cases hold that such tax deed can be conclusive only as to minor matters 
 of irregularity, but not as to essentials, Marx v. Hanthorn, 30 Fed. 579; 
 Abbott V. Llndenbower, 42 Mo. 162. 
 
 8s state V. Beswick, 13 R. I. 211, 43 Am. Rep. 26; Little Rock & Ft Scott. 
 Ry. Co. v. Payne, 33 Ark. 816. 
 
 e*Dahlman v. Hammel, 45 Wis. 466; Richards v. Nixon, 20 Pa. St. 19. 
 See note 61 L. R. A. 513-526. The admission of facts at the opening of 
 the trial by the defendants does not change the rule. Lake Ontario Bank 
 V. Judson, 122 N. Y. 278. 
 
 86 Lord Denman in Mercer v. Whall, 5 Q. B. 447, 5 Adol. & Ell. N. S. 
 447; Fry v. Bennett, 28 N. Y. 324, libel; Lake Ontario Bank v. Judson, 
 122 N. Y. 638; Dorr v. Tremont Nat. Bank, 128 Mass. 349; Cunningham 
 V. Gallagher, 61 Wis. 170, slander; Welsh v. Burr, 56 Neb. 361, 76 N. W. 
 905; Sorensen v. Sorensen, 68 Neb. 483, 94 N. W. 540; Bates v. Forcht, 
 89 Mo. 121, execution of a note; Robinson v. Hitchcock, 8 Met. 64; Per- 
 kins V. Ertmel, 2 Kan. 325; Rahm v. Deig, 121 Ind. 283; Pierce v. Lyman, 
 28 Ark. 550; Johnson v. Josephs, 75 Me. 544; Love v. Dickerson, 85 N. C. 
 5; DUle V. Lovell, 37 Ohio St. 415, assault, plea of justification; Yoimg 
 V. Highland, 9 Graft. (Va.) 16, assault and battery, plea of justification; 
 Graham v. Gautier, 21 Tex. 112, action for physician's bill, counterclaim 
 
240 THE LAW OF EVIDENCE. § 197. 
 
 of opening and concluding the trial must so frame his pleading as 
 to present no issue upon any allegation of the complaint essential 
 to the plaintiff's alleged cause of action. If the defendant fails 
 to do that, no matter how little proof the remaining issues require 
 or how easily or in what manner it may be established by evidence, 
 the right of the plaintiff to open and close is not denied him. 
 The test is whether the plaintiff, upon the pleadings without any 
 proof, is entitled to recover upon the causes of action alleged in 
 his complaint. If he is so entitled to recover and if the defendant 
 alleges any counterclaim, controverted by the plaintiff's pleading, 
 or any affirmative matter of defense in avoidance of the plaintiff's 
 alleged cause of action which is the subject of trial, the defendant 
 has the right to open and close, otherwise not."' Accordingly in 
 all actions where the damages are unliquidated and the amount is 
 not admitted, whether in tort " or contract °' the plaintiff opens the 
 proof and has the right to open and close the argument. But 
 in those actions where the pleadings are so framed that the allega- 
 tions of the complaint are admitted and the answer consists of a 
 
 for want of skill; Camp v. Brown, 48 Ind. 575, where proof was neces- 
 sary to show reasonable attorney fee In a note; Wright v. Abbott, 85 Ind. 
 154, action on account, cause of action denied, plea of payment; Dahlman 
 V. Hammel, 45 Wis. 466, action on gua,ranty of notes, answer denying 
 indebtedness and setting up fraud; Buzzell v. Snell, 25 N. H. 474, goods 
 sold, plea general issue and tender. Contra, Ransom v. Christian, 56 Ga. 
 351, slander; Moses v. Gatewood, 5 Rich. L. (S. C.) 234, libel and slander; 
 Downey v. Day, 4 Ind. 531, assault; Goldsberry v. Stuteville, 3 Bibb (Ky.) 
 345, assault; McKenzle v. Milligan, 1 Bay (S. C.) 248, assault; Page v. 
 Carter, 8 B. Mon. (Ky.) 192. In Massachusetts the tendency of the de- 
 cisions is to allow the plaintiff to open and close In all cases, Dorr v. 
 Tremont Bank, 128 Mass. 349. 
 
 88 Lake Ontario National Bank v. Judson, 122 N. T, 278, 25 N. B, 367; 
 Mercer v. Whall, 5 Adol. & Ell. N. S. 447. 
 
 87 Cunningham v. Gallagher, 61 Wis. 170; Vifqualn v. Finch, 15 Neb. 
 505; Burckhalter v. Coward, 16 S. C. 435; Pry v. Bennett, 28 N. T. 324; 
 St. Louis Ry. Co. V. Taylor, 57 Ark. 136. Cases in slander and libel. 
 Young V. Highland, 9 Gralst. (Va.) 16; Johnson v. Josephs, 75 Me. 644; 
 Shulse V. Mc Williams, 104 Ind. 512. Contra, Louisville Journal v. Weaver 
 (Ky.), 17 S. W. Rep. 1018. Assault, Lunt v. Wormell, 19 Me. 100. Tres- 
 pass, Ayer v. Austin, 6 Pick. 225. Contra, Cheeseman v. Hart, 42 Fed. 98. 
 
 88 Mercer v. Whall, 5 Q. B. 447, 5 Adol. & Ell. N. S. 447, action for dis- 
 missing a servant; Graham v. Gautier, 21 Tex. Ill, action for pay for 
 physician's services; Camp v. Brown, 48 Ind. 575, action on notes pro- 
 viding for reasonable attorney's fees. But the admission of the cause of 
 action, except as to questions of value, does not give defendant thia right, 
 Sanders v. Bridges, 67 Tex. 93. 
 
§ 198. BURDEN OF PEOOF. 241 
 
 substantive defense, and where the damages are liquidated, the 
 defendant takes the initiative and has the opening and the close 
 in introducing evidence as well as in the argument.*' 
 
 § 198 (196). Same, continued. — The rule is not changed by the 
 fact that there are admissions in the answer of the facts allegft<l 
 in the eomplaiut, unless such admissions were such that the plain- 
 tiff is not required to introduce any evidence in the first instance 
 to entitle him to judgment.^" Where there are several issues as 
 to one of which only the defendant has the affirmative, the plaintiff 
 has both the opening and the closing, as "it is not usual to divide 
 the issues and allow them to be argued piecemeal.'"^ The right 
 
 SB Donahoe v. Rich, 2 Ind. App. 540, action for rent and attorney's fees 
 under a lease; Piss v. Warren, 26 N. Y. S. 75, action on a note, the de- 
 fendant, by claiming and being allowed the affirmative, assumes the bur- 
 den of proof, and the same is held on the reverse state of facts In Burgess 
 v. Burgess (Neb.), 62 N. W. 242, where, without objection, one party as- 
 sumes the burden of proof, he also has the right to open and close to the 
 Jury. This is true in actions on notes and bills, Warner v. Haines, 6 Car. 
 & P. 666; List v. Kortepeter, 26 Ind. 27; Harvey v. Ellithorpe, 26 111. 418; 
 Tipton V. Triplett, 1 Met. (Ky.) 570; Hudson v. Weatherington, 79 N. C. 3; 
 Blackledge v. Pine, 28 Ind. 466; Fairbanks v. Irvin, 15 Colo. 366; Mont- 
 gomery V. Himt, 93 Ga. 438; insurance policies, Viele v. Germania Ins. 
 Co., 26 Iowa, 9, 96 Am. Dec. 83; Young v. Newark Fire Ins. Co., 59 Conn, 
 ti; Murray v. New York Life Ins. Co., 85 N. Y. 236; check, Elwell v. 
 Chamberlin, 31N. Y. 611; in actions where defendant sets up an affirma- 
 tive defense or counterclaim, as usury. Suiter v. Park Nat. Bank, 35 Neb. 
 372; Harvey v. Ellithorpe, 26 111. 418; Elwell v. Chamberlin, 31 N. Y. 611; 
 Seekell v. Norman, 78 Iowa, 254; tender, Auld v. Hepburn, 1 Cranch, C. C. 
 122; discharge in bankruptcy or insolvency, Richard v. Nixon, 20 Pa. St. 
 19; failure of consideration of a note, Towsey v. Shook, 3 Blackf. (Ind.) 
 267, 25 Am. Dec. 108; want of jurisdiction, Tipton v. Triplett, 1 Met. 
 (Ky.) 570; List v. Kortepeter, 26 Ind. 27; fraud or duress, Elwell v. 
 Chamberlin, 31 N. Y. 611; Hoxie v. Greene, 37 How. Pr. (N. Y.) 97; ivant 
 of consideration, Crabtree v. Atchison, 93 Ky. 156; action on judgment, 
 plea of satisfaction, Penson v. Packett, 35 S. C. 178. The plaintiff has the 
 right to open and close when answer consists of general denial, Dahlman 
 V. Hammel, 45 Wis. 466; Stayner v. Joyce, 120 Ind. 99; Leib v. Craddock, 
 87 Ky. 525; or of specific allegations constituting a denial, Amos v 
 Hughes, 1 Moody & R. 464; Ayer v. Austin, 6 Pick. 225; Toppan v. Jen- 
 ness, 21 N. H. 232; Robinson v. Hitchcock, 8 Met. 64; Cox v. Vickers, 35 
 Jnd. 27; Perkins v. Ermel, 2 Kan. 325; Judge v. Stone, 44 N. H. 593; Car- 
 penter V. First Nat. Bank, 119 111. 352; but waiver by plaintiff of opening 
 argument does not waive close. If defendant makes an argument, Trask 
 V. People, 151 111.. 523. 
 
 ToRahm v. Deig, 121 Ind. 283; Seymour v. Bailey, 76 Ga. 338. See note, 
 61 L. R. A. 513-563. 
 
 n Dixon, C. J., In Central Bank v. St. John, 17 Wis. 166; Curtis v 
 
 16 
 
242 THE LAW OF EVIDENCE. § 198 
 
 of the plaintiff to open and close is not necessarily defeated by 
 the act of tie defendant in setting up some special plea or defence. 
 Such special defence may be in effect a denial of the plaintiff's 
 title or of some of the allegations of the complaint, and not an ad- 
 mission.'" Thus, where the plaintiff's right of action depends upon 
 proof of iona fide ownership, his right to open and close is not 
 taken away by allegations in the answer that his title is fraudu- 
 lent.'* It is held in some jurisdictions that the determination of 
 this question by the court does not affect the merits of the case, 
 and that an erroneous decision is not a ground for reversal in the 
 appellate court, although it may be a ground for granting a 
 new trial by the trial judge.'* But the rule which more generally 
 prevails is that the denial of a right to a party who is entitled 
 to open and reply so far affects the merits as to afford ground 
 for reversal on appeal when the question is presented by the bill 
 of exceptions.'" In other states the question is deemed one of 
 judicial discretion, and the decision of the trial judge will not be 
 disturbed, except in cases of manifest abuse, where it appears that 
 the complaining party has been injured by the erroneous ruling." 
 
 Wheeler, 4 Car. & P. 196, 1 Moody & M. 493; Comstock v. Hadlyme, S 
 Conn. 254, 20 Am. Dec. 100; Churchill v. Lee, 77 N. C. 341; Jackson v. 
 Plttsford, 8 Blackf. (Ind.) 194; Bertrand v. Taylor, 32 Ark. 470; BoweE 
 V. Spears, 20 Ind. 146; Viele v. Germanla Ins. Co., 26 Iowa, 9, 96 Am. 
 Dec 83: Montgomery v. Swindler, 32 Ohio St. 224; Buzzell v. Snell, 25 
 N. H. 474; Lake Ontario Bank v. Juason, 122 N. Y. 278; Johnson v. Max- 
 well, 87 N. C. 18; Sorensen v. Sorensen, 68 Neb. 483, 94 N. W. 540. 
 
 72 Beatty v. Hatcher, 13 Ohio St. 115, answer admitted an assignment, 
 but alleged to be fraudulent. 
 
 73 Churchill v. Lee, 77 N. C. 341. 
 
 74 Lancaster v. Collins, 115 U. S. 222; Day v. Woodworth, 13 How. 363; 
 Cothran v. Forsyth, 68 Ga. 560; Reichard v. Manhattan Ins. Co., 31 Mo. 
 518; Aultman v. Falkum, 47 Minn. 414, by statute; Lexington Ins. Co. v. 
 Paver, 16 Ohio, 324; Hall v. Weare, 92 U. S. 728; Carpenter' v. First Nat 
 Bank, 119 111. 352. See also Montgomery v. Swindler, 32 Ohio St 224. 
 
 75 Davis V. Mason, 4 Pick. 156; Merriam v. Cunningham, 11 Cush. 40; 
 Royal Ins. Co. v. Swing, 87 Ky. 410; Millerd v. Thorn, 56 N. T. 402; 
 Porter v. Still, 63 Miss. 357; Benham v. Rowe, 2 Cal. 387; Johnson v 
 Maxwell, 87 N. C. 18; Blackledge v. Pine, 28 Ind. 466; Young v. Highland 
 9 Gratt. (Va.) 16. 
 
 76Kaime v. Trustees of Omro, 49 Wis. 371; Ney v. Rothe, 61 Tex. 374; 
 Viele V. Germanla Ins. Co., 26 Iowa, 9; Gran v. Spangenberg, 53 Minn. 42, 
 Farrell v. Brennan, 32 Mo. 328; State v. Waltham, 48 Mo. 55. 
 
CHAPTER 7. 
 BEST BVIDBNCB. 
 
 § 199. Rule as to best evidence. 
 
 200. Primary and secondary evidence. 
 
 201. Application of the rule — Private writings. 
 
 202. The rule does not exclude evidence unless objection is made. 
 
 203. Qualifications of the rule — Independent and collateral facts. 
 
 204. Same — Corporate acts. 
 
 205. Appointment and acts of public officers — ^Writings not producible, 
 
 etc. 
 
 206. Multiplicity of documents — General results. 
 
 207. Parol proof of admissions concerning writings — ^English rule. 
 
 208. Same — ^Rule in the United States. 
 
 209. Same — Copies not the best evidence — Duplicates. 
 
 210. The general rule as applied to telegrams — Mode of proof. 
 
 211. Communications by telephone. 
 
 212. Proof of lost instruments. 
 
 213. Same — Diligence necessary before secondary evidence is allowed. 
 
 214. Same — ^Further illustrations. 
 
 215. Importance of documents as affecting diligence — Time of search. 
 
 216. Mode of proving loss — Hearsay admissions — Affidavit. 
 
 217. Documents beyond the jurisdiction of tl;ie court — Destruction of 
 
 documents, etc. 
 
 218. Effect of notice to produce. 
 
 219. Object of notice to produce. 
 
 220. Requisites of notice. 
 
 221. Notice to produce-^On whom served. 
 
 222. Effect of non-production. 
 
 223. When notice to produce is not necessary. 
 
 224. Same, continued. 
 
 225. Duplicates — Recorded deeds. 
 
 226. Effect of the production of papers upon notice. 
 
 227. Proof of the contents of lost documents. 
 
 228. Degrees of secondary evidence. 
 
 229. Same — Cases illustrating the American rule. 
 
 230. Same — Parol evidence not allowed when the law requires copies — 
 
 Original always admissible. 
 
 231. Cross-examination of witnesses as to writings. 
 
 § 199 (197). Rule as to best evidence. — The best attainable evi- 
 dence should be adduced to prove every disputed fact. There 
 are few rules of evidence more frequently invoked in the trial of 
 
244 THE LAW OF EVIDENCE. § 199. 
 
 causes than tMs, and there certainly is no rule more strongly sup- 
 ported by adjudicated cases. It rests upon the presumption that 
 one who withholds testimony of a higher grade and seeks to substi- 
 tute therefor testimony of an inferior kind, does so from some im- 
 proper motive, and because he is conscious that his claim would 
 not be supported by the testimony which he declines to produce. 
 The enforcement of the rule serves the double purpose of afford- 
 ing the court satisfactory rather than unsatisfactory evidence, 
 and of preventing the innumerable frauds which would be at- 
 tempted, if parties were at liberty at any time to prove the con- 
 tents of writings by parol.^ There is another obvious reason for 
 the rule. If copies are to be used there is the possibility, often the 
 strong probability, of error in copying. If the memory is relied 
 on for the reproduction in court of written instruments, mistake 
 is almost certain and in important documents the change of a word, 
 or phrase might result in great injustice. The rule relating to best 
 evidence does not mean that the most satisfactory evidence, or 
 that which in a given case might be most convincing, must al- 
 ways be produced. It relates to the quality or grade of the 
 testimony rather than to its strength or quantity. Thus if two per- 
 sons witnessed an assault, one in close proximity to the act and the 
 other from a long distance, neither would be excluded from testi- 
 fying by this rule. A bystander who has listened to a conversation 
 may be called as a witness as well as the participants.' If the 
 condition of clothes or of other articles is to be shown they need 
 not be produced in court, but may be described ;' and one who wit- 
 nessed where the lines of a private survey were run, though not a 
 surveyor may state the fact.* So handwriting may be proved, 
 not only by the writer, but by another who is familiar with it." 
 Many other instances might be given as illustrations that this rule 
 does not exclude evidence merely because it is not of the most con- 
 clusive character or because it is not all of the evidence which might 
 be offered." The words "best evidence," as used in the rule, have 
 
 iSlatbam v. Poolm, 6 M. & W. 664; Taylor v. RIggs, 1 Pet. 591; Se- 
 curity Trust Co. V. Robb, 142 Fed. 78. 
 
 2 Richardson v. Milburn, 17 Md. 67. 
 
 s Com. V. Pope, 103 Mass. 440. 
 
 * Richardson v. Milburn, 17 Md. 67. 
 
 BAinsworth v. Greenlee, 1 Hawks (N. C.) 190; Falrlie v. Hastings, 10 
 Ves. Jr. 123; Rex v. Benson, 2 Camp. 508. See § 545, et seq. infra. 
 
 «3 Phil. Ev. p. 436; 1 Greenl. Ev. § 82; United States v. Reybum, 6 
 Peters, 352, 367. 
 
§ ■ 200. BEST EVIDENCE. 245 
 
 thus gained a legal signification as distinguished from their popular 
 meaning. Testimony is not excluded by reason of the rule requiring 
 the best evidence unless it shows upon its face that there is a higher 
 grade of testimony, in other words that there is an attempted sub- 
 stitution of an inferior for a better class of testimony.^ 
 
 § 200 (198, 199). Primary and secondary evidence. — ^It wiU be 
 found that the cases illustrating the application of the rule under 
 discussion generally relate in some way to written evidence, or to 
 the attempted substitution of parol for documentary evidence. In- 
 deed the term iest evidence has been described as a convenient short 
 description of the rule as to proving the contents of a writing." 
 
 There may be infinite discussion as to the relative weight of 
 different kinds of oral testimony, but there is no room for doubt 
 but that a deed affords better evidence of its own contents 
 than the statements of a person who has read it. The deed itself 
 is not only more convincing and satisfactory evidence, but a 
 higher grade of evidence." When an original document is placed 
 in evidence, it affords what is known as primary evidence of its 
 contents. In the case just mentioned the deed is such primary 
 evidence and is in a strict legal senre the best evidence of what it 
 contains. As distinguishd from this class, any evidence of a lower 
 degree, as for example a copy or the recollection of the witness, is 
 secondary evidence. It is the most important application of the 
 general rule under discussion that secondary evidence of the con- 
 tents of written instruments cannot be given, unless some legal ex- 
 cuse is shown for failing to produce the original. "What constitutes 
 such legal excuse will be discussed hereafter; but it is very clear 
 that mere neglect or inattention constitutes no such excuse. It is 
 incumbent on litigants to prepare their testimony in advance; and 
 if it is discovered during the trial for the first time that the 
 best evidence of the fact to be proved is a writing, the rule that 
 the writing must be produced wiU nevertheless be enforced.^" The 
 wide application of the rule under discussion will be best shown 
 by giving instances in which it has been held that the original 
 
 7 This Is Illustrated by the cases already cited. 
 
 8 Thayer, Prel. Treatise on Ev. p. 497. 
 
 » State V. McDonald, 65 Me. 467; Elliott v. Van Buren, 33 Mich. 50, 53. 
 Clifton V. United States, 4 How. 242. 
 
 10 Scarborough v. Reynolds, 12 Ala. 252; Hoitt v. Moulton, 21 N. H. 586. 
 This is illustrated by many of the cases below cited. See also §§ 213, 214, 
 intra. 
 
246 THE LAW OF EVIDENCE. § 200. 
 
 documents must be produced in evidence or their absence excused 
 m some of the .modes hereafter explained.^* 
 
 11 The best evidence of the conviction of a criminal offense is the 
 record thereof, State v. Edwards, 19 Mo. 674; People v. Benjamin, 2 Park. 
 Cr. (N. Y.) 201; Rathbun v. Ross, 46 Barb. 127; People v. Reinhart, 39 
 Cal. 449; Baltimore & O. Ry. Co. v. Rambo, 59 Fed. 75; Southern Ins. Co. 
 V. White, 58 Ark. 277; of a judgment, the judgment itself. Mills v. Barnes, 
 4 Blackf. (Ind.) 438; Northrop v. Chase, 76 Conn. 146, 36 Atl. 518; Strom- 
 burg V. Earick, 6 B. Mon. (Ky.) 578; McNiel v. Donahue, 44 111. App. 42; 
 of an adoption, the Instrument of adoption, McCollister v. Yard, 90 Iowa, 
 621, 57 N. W. 447; of the ballots cast, the ballots, Hartman v. Young, 17 
 Ore. 150, 11 Am. St. Rep. 787, and note; of how a man voted, the ballot 
 if it can be identified, Lane v. Bailey, 29 Mont. 549, 75 Pac. 191; of o 
 subscription for stock, the subscription list, Taussig v. Glenn, 51 Fed. 409. 
 The record, or, in proper cases, certified copies of the record should bp 
 produced to show transactions in judicial proceedings, snch as the order of 
 a court nunc pro tunc, Ludlow v. Johnson, 3 Ohio, 553, 17 Am. Dec. 609; 
 or other orders. State v. Longinean, 6 La. An. 700; State v. Smith, 12 La. 
 An. 349; a plea in abatement, Woodard v. Stark, 4 S. Dak. 588; former 
 recovery, Inman v. Jenkins, 3 Ohio, 271; contents of a verdict, Abrams v. 
 Smith, 3 Blackf. (Ind.) 95; record pt a former proceeding, Spencer v. 
 Spencer, 31 Mont. 631, 79 Pac. 320; proiate of a will or letters of admin- 
 isration, Jones v. Goodrich, 5 Moody, P. C. 16; Allen v. Dundas, 3 T. R. 
 125; Ryves v. Wellington, 9 Beav. 579; Hood v. Barrlngton, 6 Eq. 218; 
 Graham v. Whitely, 26 N. J. L. 254; Cogswell v. Butrls, 1 HofE. Oh. (N. Y.) 
 198; Elden v. Keddell, 8 East, 187; Davis v. Williams, 13 East, 232; plead- 
 ings. Beach V. Baldwin, 9 Conn. 476; discontinuance of suit, Sheldon v. 
 Frink, 12 Pick. 568; the levy of an execution, McKee v. McKee, 16 Md. 
 516; West v. St. John, 63 Iowa, 287; mode of serving process, Reilly v. 
 Cavanaugh, 29 Ind. 435; the filing of papers with the clerk of the court, 
 Peterson v. Taylor, 15 Ga. 483, 60 Am. Dec. 705; the binding over of a 
 prisoner for trial. Smith v. Smith, 43 N. H. 536; a sale of land by order 
 of court, Phillips v. Costley, 40 Ala. 486; discharge in bankruptcy, Regan 
 V. Regan, 72 N. C. 195; decree of divorce, Tice v. Reeves, 30 N. J. L. 314; 
 issue joined In a former suit, State v. Thompson, 19 Iowa, 299; Dygert 
 V. Coppernoll, 13 Johns, 210; pardon, Spalding v. Saxton, 6 Watts (Pa.) 
 338; tax title under sale of execution. Sharp v. Spier, 4 Hill (N. Y.) 76; 
 Whitney v. Thomas, 23 N. Y. 281; McKee v. McKee, 16 Md. 516; Wynne 
 V. Aubuchon, 23 Mo. 30; Shiver v. Bentley, 78 Ga. 537. But proof of loss 
 of certified copy of judgment rendered in another state does not admit 
 parol evidence, the original still being in existence, Kentzler v. Kentzler, 
 3 Wash. 166, 28 Am. St. Rep. 21, and note. Unless proper foundation is 
 laid for secondary evidence the original must be produced in order to 
 show the contents of writs. Brush v. Taggart, 7 Johns. 19; executions, 
 Perry v. Whipple, 38 Vt. 278; Wells v. Bourne, 113 N. C. 82; processes 
 and the returns thereof, Pendexter v. Carleton, 16 N. H. 482; Glascock 
 V. Nave, 15 Ind. 457; warrants, Ross v. Pleasants, 3 Pa. St. 408; awards, 
 Scarborough t. Reynolds, 12 Ala 252; the examinatUM of a prisoner be- 
 
§ 201. BEST EVIDENCE. 247 
 
 § 201 (200). Application of the rule — Private writings,— It 
 will be observed that most of the illustrations given in the notes to 
 the last section relate to matters more or less public in their nature, 
 matters as to which the law generally requires some record to be 
 kept. But the rule is by no means limited in its application to 
 writings of this character. The paper in question may be of a pri- 
 vate character, as a contract, memorandum or letter. If it becomes 
 necessary to prove the contents of the document, it must be pro- 
 duced or its absence accounted f or.^^ Many of the cases cited below 
 
 fore a magistrate when required to be written down, State v. Grove, Mart. 
 (N. C.) 43; O'Connell v. State, 10 Tex. App. 567; Wright v. State, 50 Miss. 
 332, and the authority In writing to draw a draft, Tlnsley v. Penniman, 
 83 Tex. 54. When It is a matter of record, parol evidence Is not admis- 
 sible to prove the enlistment, Atwood v. Winterport, 60 Me. 250; or the 
 desertion of a soldier, Terrell v. Colebrook, 35 Conn. 188; the fact that 
 a person has been in the penitentiary, State v. Lewis, 80 Mo. 110; the 
 vacation of a public street, Lathrop'v. Central Iowa Ry. Co., 69 Iowa, 105; 
 the established grade of a street, Pittsfield v. Bamstead, 38 N. H. 115; 
 Farrar v. Fesenden, 39 N. H. 268; Livingston v. Hudson, 85 Ga. 835; the 
 conformity of a plat to the statute, Bemis v. Beclter, 1 Kan. 226; the 
 contents of iooks and records in public offices, Angell v. Rosenbury, 12 
 Mich. 241; Bartlett v. Patton, 33 W. Va. 71; the sale of public land, Chi- 
 cago V. McGraw, 75 111. 566; the proceedings of private and municipal 
 corporations of which records are kept. Ferryman v. Greenville, 51 Ala. 
 507; Owings v. Speed, 5 Wheat. 424; Bradley v. McKee, 5 Cranch, C. C. 
 298; Coffin y. Collins, 17 Me. 440; Methodist Chapel v. Herrick, 25 Me. 
 354; Smith V. Natchez Steamboat Co., 2 Miss. 479; Haven v. New Hamp- 
 shire Asylum, 13 N. H. 532, 38 Am. Dec. 512; Pittsburg Ry. Co. v. Clarke 
 29 Pa. St. 146; Slack v. Norwick, 32 Vt. 818; Children v. Huntington, 34 
 W. Va. 457; the records of proceedings of a county board, Yavapai County 
 V. O'Neil (Ariz.), 29 Pac. 430; State v. Central Ry. Co., 17 Nev. 259; or of 
 a school ioard, Kane v. School District, 48 Mo. App. 408; Whitehead 
 V. School District, 145 Pa. St. 418; the contents of articles of corporate 
 organisation, Warner v. Daniels, 1 Wood. & M. (U. S.) 90; city ordinances 
 establishing fire limits. Miller v. Sergeant (Ind. App.), 37 N. E. 418; the 
 heading of a hotel register, Grauley v. Jermyn, 163 Pa. St. 501. 
 
 12 The rule has been held applicable to deeds, Marriner v. Denlson, 78 
 Cal. 202; Ebersole v. Rankin, 102 Mo. 488; Bell v. Kendrick, 25 Fla. 778; 
 Terpening v. Holton, 9 Colo. 306; Georgia Pac. Ry. Co. v. Strickland, 80 
 Ga. r76, 12 Am. St. Rep. 282, and note; Phillips v. O'Neal, 87 Ga. 727; 
 Collar V. Collar, 86 Mich. 507; wills, Morrill v. Otis, 12 N. H. 466; In re 
 Jones' Estate (la.), 106 N. W. 610; leases, Dikes v. Miller, 24 Tex. 417; 
 Burks V. Bragg, 89 Ala. 204; Wallace v. Wallace, 62 Iowa, 651; notes and 
 mortgages, Solomon v. Creech, 82 Ga. 445; as to the filing of a chattel 
 mortgage, Curtis v. Wilcox, 91 Mich. 229; contracts. Clow v. Brown, 134 
 Ind. 287; Taft v. Little, 178 N. Y. 187, 70 N. B. 211; letters, Brown v. 
 Jowett, 18 N. H. 23i); King v. Worthington, 73 111. 161; Watkins T. Paine. 
 
248 THE LAW OP EVIDENCE. § 201. 
 
 are those in which one of the parties to the contract or other 
 writing was also a party in the action. For the most obvious and 
 cogent reasons those who have voluntarily reduced their agreement 
 to writing for the express purpose of avoiding mistakes or uncer- 
 tainty ought not to be allowed to prove that agreement by inferior 
 evidence. But the rule has a much wider application. It is said by 
 a leading text writer on the subject that "oral evidence cannot be 
 substituted for any writing the existence of which is disputed and 
 which is material either to the issue between the parties or to the 
 credit of witnesses and is not merely the memorandum of some other 
 fact."" 
 
 57 Ga. 50; Goodrich v. Weston, 102 Mass. 362, 3 Am. Rep. 469; Watson 
 V. Roode, 30 Neb. 264; Mugge v. Adams, 76 Tex. 448; Moore v. Dickinson, 
 39 S. C. 441; Rumbaugh v. Improvement Co., 112 N. C. 751; Smith v. 
 Brown, 151 Mass. 338; telegrams, Durliee v. Vermont Central Ry. Co., 29 
 Vt 127; Anheuser-Busch Ass'n v. Hutmacher, 127 111. 652; Nichols v. 
 Howe, 43 Minn. 181; written or printed rules of a railway company. Price 
 V. Richmond & D. Ry. Co., 38 S. C. 199; Louisville & N. Ry. Co. v. Orr, 
 94 Ala. 602; Boofcs of account, Phillips v. Trowbridge Co., 86 Ga. 699; 
 Mendel v. Boyd (Neb.), 99 N. W. 493; Brayton v. Sherman, 119 N. Y. 
 623 (original books of entry are best evidence, instead of the ledger, 
 Bennett v. Bennett, 37 W. Va. 396; Roden v. Brown (Ala.), 15 So. 538; 
 State V. Nevada C. R. Co., 28 Nev. 186, 81 Pec. 99; Gould v. Hartley, 187 
 Mass. 561, 73 N. E. 656); receipts, Jackson v. Lewis, 29 S. C. 193; insur- 
 ance policy. Waller & Edmonds v. Cockfield (La.), 35 So. 778; report ot 
 examination by physician, Taylor v. Modern Woodmen of America, 42 
 Wash. 304, 84 Pac. 867, and plans, Bi<yant v. Stillwell, 24 Pa. St. 314. But 
 a depositor in a bank may testify of his own knowledge as to the amount 
 deposited, Simmons Hardware Co. v. Bank of Greenwood, 41 S. C. 177; 
 Davis V. Alston, 61 Ga. 225; Steed v. Knowles, 97 Ala. 573; State v. 
 Reed, 45 La. An. 162. While occupancy under a lease may be shown by 
 parol, the terms of the lease must be shown by the written contract, if 
 there be one. Rex v. Merthyr Tydvil, 1 Bam. & Adol. 29; Augustein v. 
 Challis, 1 Exch. 279; Brewer v. Palmer, 3 Esp. 213; Penn v. Griffith, 6 
 Bing. 533; Thunder v. Warren, 8 Ir. Law R. 181. Parol evidence cannot 
 be given that a certain letter, not produced, was a letter of credit. Raw- 
 son V. Curtis, 19 111. 456; nor that a former iill of less amount than a 
 later on had been presented, Startford v. Ames, 8 Allen, 577; nor as to 
 the terms of a wager reduced to writing, Frazee v. State, 58 Ind. 8; nor 
 that complaints had been made by a letter, not produced, Beall v. Poole, 
 27 Md. 645; nor as to the contents of an article In a newspaper. Bond v. 
 Central Bank, 2 Ga. 92; nor of looks of accounts. State v. RosenflelQ, 35 
 Mo. 472; Hall v. Lyons, 29 W. Va. 410; Thompson v. Fry, 7 Blackf. (Ind.) 
 608; nor of the contents of an invoice of goods. Coder v. Statts, 51 Kan. 
 382; nor as to the transfer of stock on corporate books; Skowhegau Bank 
 V. Cutler, 49 Me. 315; nor. In criminal prosecution, that a person is a 
 pensioner of the government, United States v. Scott, 25 Fed 470. 
 i« 1 Greenl. Bv. § 88. 
 
§ 203. BEST EVIDENCE. 249 
 
 § 202 (201). The rule does not exclude evidence unless objec- 
 tion is made. — The rule excluding secondary evidence, when that 
 which is primary is attainable, is not so rigid as to be enforced if 
 no objection is made by the party against whom the inferior evi- 
 dence is offered. It frequently happens that secondary evidence is 
 admitted, and thus becomes primary, when it might have been ex- 
 cluded if proper objection had been taken.'* If a prima facie case 
 or defense can be made without the use of a document relating 
 thereto, it is no sufficient answer that there is such writing, unless 
 the other party produces it in evidence.'" But it is the common 
 practice, when a witness is testifying as to a fact or contract, for the 
 opposite counsel to interpose and ask the preliminary question 
 whether such agreement is in writing, and if it so appears, the 
 writing must be produced or its absence legally accounted for. It 
 is the province of the presiding judge to pass upon all preliminary 
 questions relating to the admissibility of secondary evidence and 
 to determine the facts necessary to the decision of such questions. 
 If the judge admits secondary evidence, it is presumed that 
 he has found as facts all such "preliminary matters; and such 
 finding is conclusive unless the exceptions are preserved according 
 to the practice of the jurisdiction.'* Mr. Stephen thus states the 
 rule: "Questions as to the existence of facts rendering secondary 
 evidence of the contents of documents admissible are to be decided 
 by the judge, unless in deciding such a question the judge would, 
 in effect, decide the matter in issue." ''' 
 
 § 203 (202). Qualifications of the rule — Independent and col- 
 lateral facts. — ^It often happens that parol testimony as to a fact 
 may be primary evidence although there is written evidence of the 
 same fact. If the essential fact to be proved is not the contents 
 of a written instrument, but an independent fact to which the writ- 
 ing is merely collateral or of which it is merely an incident, there 
 is no reason for the application of the rule under discussion. In 
 
 i*Magnay v. Knight, 1 Man. & G. 944; Stephens v. Pinney, 8 Taunt. 
 327; Marston v. Deane, 7 Car. & P. 13; Pry v. Chapman, 5 Dowl. 265; 
 R. V. Padstow, 4 Bam. & Adol. 208; Reed t. Deere, 7 Barn. & C. 261; 
 Hattersley v. Burrows, 4 Colo. App. 538; Orr & Lindsley Shoe Co. v. Vance, 
 44 Mo. App. 461; Lehigh Valley Coal Co. v. Ward, 149 Pa. St. 119; O'Brien 
 V. City of Woburn, 184 Mass. 598, 69 N. B. 350. 
 
 1" See cases cited above. 
 
 isWitcher v. McLaughlin, 115 Mass. 167; Mason v. Libbey, 90 N. Y. 
 683, where the instrument has been destroyed. See § 214, infra; and also 
 I 174, suvra. 
 
 17 Steph. Ev. art. 71, p. 139. 
 
250 THE LAW OF EVIDBNCE. § 203. 
 
 such, cases the contents of the document are no part of the issua 
 and there is no agreement that the writing shall be the sole repos. 
 itory of the fact. "When the parol evidence is as near to thfl 
 fact testified as to the writing itself, then each is primary and 
 the act or oral statement may be proved. This is frequently illus- 
 trated in the parol proof of such facts as that indebtedness has 
 been paid, although the debt may be in the form of notes or 
 even judgments. Parol proof of the payment may be made even 
 though a receipt is given contemporaneously. On the same princi- 
 ple the time of marriages and births may be shown by persons hav- 
 ing Imowledge of the facts without resort to the record evidence 
 which the statutes may require.*' 
 
 IS It may be shown by parol that an account was paid, although there Is 
 a receipt, Meade v. Keane, 3 Cranch, C. C. 51; Berry v. Berry, 17 N. J. L. 
 440; Kingsbury v. Moses, 45 N. H. 222; Page v. Einstein, 7 Jones (N. C.I 
 147; Wolf V. Poster, 13 Kan. 116; the actual receipt of rents and profits, 
 though books were kept, Wilcox v. Bates, 58 Wis. 128; that new notes 
 were taken in payment of a debt, Daniel v. Johnson, 29 Ga. 207; that cer- 
 tain personalty was listed for taxation, Hewitt v. State, 121 Ind. 245; that 
 a judgment has been paid, Planters' Bank v. Borland, 5 Ala. 531; that 
 a tax has been paid, Davis v. Hare, 32 Ark. 386; that a third person owes 
 a debt, when notes evidencing the same are not produced, DuflBe v. Phil- 
 lips, 31 Ala. 571; that a claim was settled before suit was begun, Arnold 
 V. Arnold, 20 Iowa, 273; the consideration of a guaranty, Nichols v. Bell, 
 1 Jones (N. C.) 32; that a telegram had been received, Connor v. State, 23 
 Tex. App. 378; Western Union Tel. Co. v. Cline, 8 Ind. App. 364; the 
 transactions at an auction, Austin v. Boyd, 23 Mo. App. 317; the value 
 of goods, although the witness has a bill showing their cost, Savannah 
 Ry. Co. V. Hoffmayer, 75 Ga. 410; that a sale was made and of the time 
 of the sale, although the contract was in writing, Thompson v. Mapp, 6 
 Ga. 260; Martin v. Bowie, 37 S. C. 102; Gallagher v. London Assurance 
 Corp., 149 Pa. St. 25; as to an execution sale, its validity not being in 
 question, Stanley v. Sutherland, 54 Ind. 339; that the witness held a 
 mortgage on certain property. File v. Springel, 132 Ind. 312; as well as 
 the amount of the same, Hyde v. Shank, 93 Mich, 535; that a verbal sale 
 was made, although a written bill of sale is subsequently accepted, San- 
 ders V. Stokes, 30 Ala. 432; that a purchase at a sheriff's sale was for the 
 benefit of a third person, Hoagland v. Hoagland, 2 N. J. Bq. 501; that 
 there was a fraudulent combination at a sale of land, Miltenberger v. 
 Morrison, 39 Mo. 71; that a deed was executed and delivered after an 
 execution sale, Uhl v. Moorhous, 137 Ind. 445; Armstrong v. McCoy,. 8 
 Ohio, 128, 31 Am. Dec. 435; the time of hirih, though there is a written 
 ♦amily record of births, Beeler v. Yoimg, 3 Bibb (Ky.) 520; Central Ry. 
 Co. v. Coggin, 73 Ga. 689; Morrison v. Emsley, 53 Mich. 564; Evans v. 
 Morgan, 2 Cromp. & J. 453; R. v. Man waring. Dears. & B. Cr. C. 132; 
 Morris v. Miller, 4 Burr. 2057; Carskadden v. Poorman, 10 Watts (Pa.) 
 
§ 204. BEST EVIDENCE. 251 
 
 § 204 (203) . Same — Corporate acts. — Cases have arisen where 
 references to written instruments have been allowed as mere in- 
 ducements to more material parts of the testimony, and where wit- 
 nesses have properly been allowed to speak of the execution of deeds 
 
 82, 36 Am. Dec. 145; State v. Woods, 49 Kan. 237; Dobson v. Cothran, 34 
 S C. 518, and thougli a registry is required by law, Com. v. Noroross, 
 9 Mass. 492; Nixon v. Brown, 4 Blackf. (Ind.) 157; Com. v. Dill, 156 Mass. 
 226; State v. Hodgskins, 19 Me. 155, 36 Am. Dec. 742, and important note; 
 tenancy and occupancy, though under a written lease, Rayner v. Lee, 20 
 Mich. 384; Central R. Co. v. Whitehead, 74 Ga. 446; Hammon v. Sexton, 
 69 Ind. 37; Twyman v. Knowles, 13 C. B. 222; ownersJiip, Wolfe v. Un- 
 derwood, 97 Ala. 375, 12 So. 234; the fact of the leasing of a railway, 
 Central Ry. Co. v. Whiteland, 74 Ga. 441; that certain land was sold for 
 a given sum, Robinson v. Tipton, 31 Ala. 895; that a person was omitted 
 in a will, Bulger v. Ross, 98 Ala. 267; that a road is a highway though 
 never laid out, Woburn v. Henshaw, 101 Mass. 193, 3 Am. Rep. 333; that 
 certain lands are used by a railroad for depot grounds, Fowler v. Farmers' 
 Loan Co., 21 Wis. 77; of the terms of a ver'bal contract, though a writ- 
 ten memorandum thereof was made and read at the time, Lathrop v. 
 Bramhall, 64 N. T. 365; of a verbal demand, though accompanied by a 
 written one. Smith v. Young, 1 Camp. 439; or of the fact that A. is a 
 hotel-lceeper, although he has a license, Owings v. Wyant, 3 Har. & McH. 
 (Md.) 393; of the time at which trains are due, though there is a printed 
 time-table, Chicago Ry. Co. v. George, 19 111. 510, 71 Am. Dec. 239; that 
 a passenger bought a ticket over several roads having coupons attached. 
 Central Ry. Co. v. Wolff, 74 Ga. 664; of the issues determined in a former 
 suit where the record is not conclusive. Justice v. Justice, 3 Ired. (N. C.) 
 58; Lander v. Amo, 65 Me. 26; Hickerson v. Mexico, 58 Mo. 61; Rake v. 
 Pope, 7 Ala. 161; State v. DeWitt, 2 Hill (S. C.) 282; or where the 
 declaration was lost, Butler v. Slam, 50 Pa. St. 456. Parol evidence may 
 be given that a suit has been tried, Johnston v. Hamburger, 13 Wis. 195; 
 that an arbitrator has been substituted by agreement for one appointed 
 by the court, Douglas v. Brandon, 6 Baxt. (Tenn.) 58; that an agent has 
 been appointed, though the appointment is in writing, Whitfield v. Brand, 
 
 16 M. & W. 282; the attendance of witnesses and jurors at court. Baker v. 
 Brill, 15 Johns. 260; Massey v. Westcott, 40 111. 160; that two records 
 relate to the same cause of action, Perkins v. Walker, 19 Vt. 144; Com. v. 
 Sutherland, 109 Mass. 342; Davlsson v. Gardner, 10 N. J. L. 289; Butler v. 
 Slam, 50 Pa. St. 456; Fed. Hill Co. v. Mariner, 15 Md. 224; Porter v. State, 
 
 17 Ind. 415; Rake v. Pope, 7 Ala. 161; Shirley v. Fearne, 33 Miss. 653, 
 69 Am. Dec. 375; the time of issuing a writ. Den v. Hamilton, 12 N. J. L. 
 109; that copies of an ordinance produced had been posted, the fact of 
 publication and not the contents being in issue, Teft v. Size, 10 111. 432; 
 that town officers were duly sworn, the record being silent on the subject. 
 Pease v. Smith, 24 Pick. 122; the identity or genuineness of a writing. 
 Scott V. Jones, 4 Taunt. 865; Read v. Gambly, 10 Adol. & Ell. 597; 
 Bucher v. Jarratt, 3 Bos. & P. 145; How v. Hall, 14 East, 275; Darby v. 
 Ouseley, 1 Hurl. & N. 1; Com. v. Messinger, 1 Binn. (Pa.) 274, 2 Am. Dec. 
 
252 THE LAW OF EVIDENCE. § 205. 
 
 or other papers without producing the documents referred to.^' 
 But of course if the testimony involves the construction or contents 
 of the document, the general rule applies.'"' The general rule has 
 not been applied in some instances where such facts as ownership 
 of land or chattels or tenancy or the identity of documents have been 
 involved."* Incidental and collateral facts connected with the 
 transactions of corporations are often proved by parol without vio- 
 lation of the general rule.^" 
 
 § 205 (204). Appointment and acts of public oflacers — Writ- 
 ings not producible, etc. — ^Although persons become officers by 
 election or appointment, the record of such election or appointment 
 is not the only evidence that they are such officers. The usual pre- 
 sumption that the written evidence is withheld from some improper 
 motive does not apply in such cases. Moreover the public conve- 
 nience requires that parol evidence should be allowed to prove 
 
 441; McLean T. Hartzog, 6 Serg. & R. (Pa.) 154; McGinnis v. State, 24 
 Ind. 500; Ross v. Bruce, 1 Day (Conn.) 100; the contents of a writing to 
 show Its identity with or diversity from another writing, West v. State, 22 
 N. J. L. 212; Myer's Estate, 111 la. 584, 82 N. W. 961. 
 
 IB Gallagher v. London Assur. Corp., 149 Pa. 25, 24 Atl. 115; Baltes 
 Land, Stone & Oil Co. v. Sutton, 32 Ind. App. 14, 69 N. E. 179, 
 
 aoGoodson v. Brothers, 111 Ala. 589, 20 So. 443; Primrose v. Brownrig, 
 56 Ga. 369; Thompson v. Richards, 14 Mich. 172. 
 
 21 Wolfe T. Underwood, 97 Ala. 375, 12 So. 234; Myer's Estate, 111 la. 
 584, 82 N. W. 961; Lingenfelser v. Simon, 49 Ind. 82. 
 
 22 Parol proof has been received of acts of a corporation, Bay View 
 Ass'n v. Williams, 50 Cal. 353; and notes, 13 Am. St. Rep. 550, 74 Am. Dec. 
 309; of the election of directors. Partridge v. Badger, 25 Barb. 146; of the 
 fact that siocfc had been distriiuted and a large number of bills issued. 
 Banks v. Darden, 18 Ga. 318; that subscriptions to stock in a large amount 
 were solicited and obtained by an agent, I^ow v. Connecticut Ry. Co., 45 
 
 •N. H. 370; that no vote of a given character had even been taken by the 
 corporation. Smith v. Richards, 29 Conn. 232; of the acts done in organiz- 
 ing a corporation, but not of the contents of its articles. Miller v. Wild 
 Cat Co., 52 Ind. 51; of filing articles of Incorporation, that being no part 
 of tte articles, Johnson v. Crawfordsville Ry Co., 11 Ind. 280 ; of the pub- 
 lication of an ordinance, Teft v. Size, 16 111. 432; Des Moines v. Casady, 
 21 Iowa, 570; or the intention of a corporation to dedicate a road to the 
 public. People v. Ell River & E. Ry. Co., 98 Cal. 665; or to make certain 
 improvements. New York, N. H. & H. R. Co. v. Offleld, 78 Conn. 1, 60 
 Atl. 740. By failing to keep a record of its proceedings a corporation may 
 be estopped from objecting to parol evidence of its acts, Scott v. Jackson 
 Methodist Church, 50 Mich. 528; Pickett v. Abney, 84 Tex. 645. When the 
 records of a corporation are excluded because the corporation was not 
 legally organized, oral evidence Is admissible to show who are acting 
 officers. People v. Leonard, 106 Cal. 302, 39 Pac. 617. 
 
§ 205. BEST EVIDENCE. 253 
 
 that public officers are such officers.^' It is a well recognized ex- 
 ception to the general rule that secondary evidence may be given 
 of writings which cannot be produced in court. For example, of 
 inscriptions which are traced upon mural monuments, walls and 
 stones, as well as surveyors' marks on trees. As an illustration, 
 parol evidence was allowed to be given of the handwriting of 
 one who had vn-itten a libel on the wall of the jail f* but the evi- 
 dence must show that the writing cannot without great difficulty be 
 removed or produced in court.''" It is on the samp general principle 
 and on grounds of public convenience that the existence and con- 
 tents of judicial and other public records required by law to be 
 kept may be proved by an examined copy. It is also in recognition 
 of the same principle that state and federal statutes make many 
 special provisions for the proof of public records by properly 
 authenticated copies. The risk of loss from removal of records, the 
 public convenience and the absence of any motive in public officers 
 to make false copies, are all considerations, that lead to these excep- 
 tions to the general rule.^° In England in a few instances it was 
 
 23 Proof tliat one has acted notoriously as a public officer is prima facie 
 evidence of his official character, Wilcox v. Smith, 5 Wend. 231, 21 Am. 
 Dec. 213; Plymouth v. Painter, 17 Conn. 585, 44 Am. Dec. 574; Burke v. 
 Elliott, 4 Ired. (N. C.) 355, 42 Am. Dec. 142; McCoy v. Curtice, 9 Wend. 
 17, 24 Am. Dec. 113; Cabot v. Given, 45 Me. 144; State v. Row, 81 Iowa, 
 138; Rex v. Gordon, 2 Leach Cr. C. 515; Bank of United States v. Dan- 
 dridge, 12 Wheat. 70; Cannell v. Curtis, 2 Bing. N. C. 228; Burke v. 
 Cutler, 78 Iowa, 299; James v. State, 41 Ark. 451; North v. People, 139 111. 
 21; see § 109 et seq. supra, as to judicial notice of existence and duties of 
 officers. The same rule prevails both in civil and in criminal actions and 
 whether the oflScer Is or is not a party to the record. Rex v. Gordon, 2 
 Leach Cr. C. 515; Berryman v. Wise, 4 T. R. 366; McGahey v. Alston, 2 
 M. & W. 206; Radford v. Mcintosh, 3 T. R. 632; Doe ex dem. James v. 
 Brawn, 5 Barn. & Aid. 243; Rex v. Jones, 2 Camp. 131; courts have per 
 mitted proof by parol that a person taking an- acknowledgment was at the 
 time a justice, Rhoades v. Salin, 4 Wash. 715; Bank of United States v, 
 Benning, 4 Cranch C. C. 81; Shultz v. Moore, 1 McLean (U. S.) 520; State 
 v. McNally, 34 Me. 210, 56 Am. Dec. 650; or deputy clerk, Taton v. White, 
 95 N. C. 453; that A. was a magistrate, in an action on a recognizance 
 taken before him, Webber v. Davis, 5 Allen, 393; that B. was president of 
 a corporation, Brown v. La Crosse City Gas Co., 21 Wis. 51, and that one 
 was admitted to practice as a land attorney, Bourke v. Whiting, 19 Colo. 1. 
 
 2* Mortimer v. M'Callan, 6 M. & W. 67. 
 
 26 Jones V. Tarleton, 9 M. & W. 675. 
 
 leAs to judicial record, Fouke v. Ray, 1 Wis. 104; Dupont v. Downing, 6 
 la. 173; Winans v. Dimham, 5 Wend. 47; as to official documents. In re 
 
254 THE LAW OP EVIDENCE. § 206. 
 
 held that the original books of private companies might be proved 
 by copies, vrhen the removal of the originals would cause great 
 inconvenience.^' In this country the rule has not generally been 
 applied to private business or in favor of private corporations, but 
 many statutes have been enacted in the different states permitting 
 proof by copies of the books of tanks, insurance companies and 
 the iike.^' There is a class of writings of so transient a nature that 
 the court may readily assume they cannot be produced in court 
 and as to which seeondary evidence may be allowed.^' In a few in- 
 stances proof by parol has been admitted of the non-existence of 
 particular entries.^" 
 
 § 206 (205) . Multiplicity of documents — General results. — ^An- 
 other relaxation of the rule based on the necessity of the case may 
 be thus stated. "Where the originals consist of numerous docu- 
 ments which cannot be conveniently examined in court, and the 
 fact to be proved is the general result of an examination of the 
 whole collection, evidence may be given as to such result by any 
 person who has examined the documents and who is skilled in 
 such matters, provided the result is capable of being ascertained 
 by calculation.*^ This has been permitted when another course 
 
 McClellan's Estate (S. D.), 107 N. W. 681; Coons v. Reincli, 11 Tex. 134; 
 Smitliers v. Lawrence (Tex.), 79 S. W. 1088. 
 
 2' Mortimer v. M'Callan, 6 M. & W. 58, 67; Boyle v. Wiseman, 10 
 Exch. 647. 
 
 28 See statutes of jurisdiction. Rule relaxed as to banks In People v. 
 Hurst, 41 Mich. 328, 1 N. W. 1027; Crawford v. Brand Bank, 8 Ala. 79. 
 
 28 Such as inscriptions on flags and banners at public meetings. Rex v. 
 Hunt, 3 Barn. & Aid. 566; Sheridan & Kerwin's Case, 31 How. St. Tr. 672; 
 notices which have been posted, State v. Credle, 91 N. C. 640; Teft v. 
 Size, 10 111. 432; Polley v. McCall, 37 Ala. 20; Kelly v. Taylor, 23 Cal. 11; 
 McMillan v. Baxley, 112 N. C. 578 ; and the writing on a trunk tag. Com. v. 
 ■ Morrell, 99 Mass. 542. It has been held that the contents of resolutions 
 read at a public meeting may be proved by parol as they are of the nature 
 of speeches. Rex v. Himt, 3 Barn. & Aid. 566; Sheridan & Kerwin's Case, 
 31 How. St. Tr. 672; when documents although existing have become 
 illegible they may be proved by secondary evidence. Dunning v. Rankin, 
 19 Cal. 640; Duffln v. People, 107 111. 113; Little v. Dunning, 37 N. H. 355. 
 
 30 People V. Eppinger, 105 Cal. 36, 38 Pac. 538; Vizard v. Moody, 117 Ga. 
 67, 43 S. B. 426; Fisher v. Betts, 12 N. D. 197, 96 N. W. 132; McPhelemy 
 V. McPhelemy, 78 Conn. 180, 61 Atl. 477. Contra, Aspinwall v. Chisholm, 
 109 Ga. 437, 34 S. B. 568; Chicago v. McGraw, 75 111. 566; Sykes v. Beck, 12 
 N. D. 242, 96 N. W. 844. 
 
 31 Burton v. Driggs, 20 Wall. 125, 136; Holbrook v. Jackson, 7 Cush. 136; 
 Steph. Ev. art. 71. Where it appeared that the witness had examined the 
 accounts he will be permitted to give oral testimony as to balances, 
 
§ 207. BEST EVIDENCE. 255 
 
 would cause great loss of time and tend to confuse the jury; and 
 competent witnesses have been allowed to summarize the accounts 
 and to state conclusions as to balances, solvency or insolvency, and 
 the like.°^ Of course the court may require the production of the 
 originals of this is deemed necessary. 
 
 § 207 (206). Parol proof of admissions concerning writings — 
 English rule.— Since the celebrated case of Slatterie v. Pooley'' 
 it has been regarded as the settled doctrine in England that the 
 admissions of a party are evidence against himself, although they 
 relate to the contents of formal vwitten instruments in issue in 
 the case. Mr. Stephen without qualification lays down the rule 
 that the admission of one whose testimony is relevant is primary 
 evidence, though relating to the contents of written instruments.'* 
 Mr. Taylor, however, in his work on Evidenoe questions the cor- 
 rectness of the reasoning on which the English doctrine rests and 
 
 Roberts v. Doxon, Peake, Ad. Cas. 83; Wolford v. Farnram, 47 Minn. 95, 
 (see also, Dupuy v. Truman, 2 Younge & C. 34. Clearly tMs is the rule in 
 respect to experts. Culver v. Marks, 122 Ind. 554) ; solvency and insolvency 
 as shown by the books, Meyer v. Sefton, 2 Stark. 274; and the result of 
 his examination. Burton v. Drlggs, 20 Wall. 125. But in other cases such 
 evidence has been rejected, Ritchie v. Kinney, 46 Mo. 298; McCombs v. 
 Railroad Co., 67 N. C. 193; Fox v. Baltimore Co., 34 W. Va. The manner 
 of drawing 'bills of exchange if a settled mode of business may be shown 
 by parol but not if the mode of business has varied, Spencer v. Billings, 
 3 Camp. 310; nor is it competent for witness to state general contents of 
 letters when object is to show the feeling toward witness by a party to the 
 action, Topham v. McGregor, 1 Car. & K. 320. 
 
 B2 Burton v. Driggs, 20 Wall. 125, 136; San Pedro L. Co. v. Reynolds 
 121 Cal. 74, 53 Pac. 410; Rititer v. State, 70 Ark. 472, 69 S. W. 262; Elmira 
 Roofing Co. V. Gould, 71 Conn. 629, 42 Atl. 1003; Chicago St. L. & P. R. Co. 
 V. Wolcott, 141 Ind. 267, 39 N. E. 451; Lynn v. Cumberland, 77 Md. 449. 
 26 Atl. 1001; State v. Clements, 82 Minn. 434, 85 N. W. 229; Von Sachs v. 
 Kretz, 72 N. Y. 548; Louisiana Purchase Exposition Co. v. Kuenzel, 108 
 Mo. App. 105, 82 S. W. 1099. 
 
 33 Slatterie v. Pooley, 6 M. & W. 664. 
 
 34 Steph. Ev. art. 64. In the English courts parol admissions have been 
 received to prove a deit, although the debt was based on a written agree- 
 ment, Newhall v. Holt, 6 M. & W. 662; to prove the contents of a deed, 
 Slatterie v. Pooley, 6 M. & W. 664; King v. Cole, 2 Exoh. 632; or the 
 terms of a written lease, Howard v. Smith, 3 Man. & G. 254; In embezzle- 
 ment cases, the prisoner's election to office and the terms of his official 
 bond, R. V. Welch, 1 Den. Cr. C. 199 ; the acts and conduct of the overseers ' 
 of the poor in one parish have been held competent as constituting an ad- 
 mission of the contents of a certain certificate which was required to settle 
 a pauper in such parish, Reg. & Baringstoke, 14 Q. B. 611. 
 
256 THE LAW OF EVmENCK § 208. 
 
 calls attention to the fact that the courts of Ireland, where the 
 subject has undergone much discussion, have disapproved the 
 English rule.°° 
 
 § 208 (207). Same — Rule in the United States.— In the United 
 States there is an irreconcilable conflict in the decisions on this 
 subject. "While some of the cases unqualifiedly approve the Eng- 
 lish rule, others emphatically dissent. In the leading case sus- 
 taining the English doctrine the plaintiff was allowed to prove 
 the admissions of the defendant to the effect that he had prosecuted 
 to final judgment a former action against the defendant. The 
 court used the following language: "The admissions of a party 
 are not open to the same objection which belongs to parol evidence 
 from other sources. A party's own statements and admissions 
 are, in all cases, admissible in evidence against him, though such 
 statements and admissions may involve what must necessarily be 
 contained in some writing, deed or record. Thus, the statements 
 of a party that certain land had been conveyed might be admitted, 
 though the conveyance must be by recorded deed. The general prin- 
 ciple as to the production of written evidence as the best evidence, 
 does not apply to the admissions of parties, as what a party admita 
 against himself may be reasonably taken as true. The weight and 
 value of the statements and admissions will vary according to the 
 circumstances and must be determined by the jury.""' On 
 the other hand there have been numerous decisions which have 
 maintained the view that there is no principle in the law of evi- 
 dence authorizing the substitution of the declarations of a party 
 even as against himself for record or written evidence. They 
 point out the danger of mistake or misconception as to the terms 
 of written evidence and also the danger of falsehood or fabrication 
 and the difficulty of detection and the danger of allowing record 
 titles to be lost by testimony so uncertain in character. They 
 lay down the rule that admissions rank only with oral testimony 
 and that, unless made in open court, they are competent only where 
 
 »s Tayl. Ev. (10th Ed.) §§ 411 et seq. 
 
 80 Smith V. Palmer, 6 Cush. 513. The admissions of a party have been 
 received to prove the contents o£ letters, Loomis v. Wadhams, 8 Gray, 557; 
 Moray v. Hoyt, 62 Conn. 542, 26 Atl. 127; the existence of a partnership 
 based on a written contract, Edwards v. Tracy, 62 Pa. St. 374; the terms of 
 a lease in writing, Taylor v. Peck, 21 Gratt. (Va.) 11; the footings of an 
 account, Butler v. Cornell, 148 111. 276; the contents of a telegram, Wil- 
 liams y. Brickell, 27 Miss. 682; the contents of a deed, Loomis v. V/ad- 
 hams, 8 Gray, 557. 
 
§ 209. BEST EVIDENCE. 257 
 
 parol evidence would be admissible to establish the same facts.'^ 
 While there are undoubtedly serious objections to the practice of 
 admitting the oral or even the written admissions of a party in 
 respect to the contents of written instruments, yet the weight of 
 authority both in England and America seemLS to sustain the 
 view that such proof may be received without accoxmting for the 
 absence of the written instrument." 
 
 § 209 (208). Same — Copies not the best evidence — Dupli- 
 cates. — ^It is hardly necessary to cite authorities to the proposition 
 that as a rule written instruments cannot be proved by copies. 
 They are mere secondary evidence and are inadmissible under 
 the general rule unless a basis is laid for the reception of secondary 
 evidence under some of the rules hereafter stated." Thus if the 
 originals can be obtained letter press copies *" and photographs of 
 
 sTWelland Canal Co. v. Hathaway, 8 Wend. 480, 24 Am. Dec. 51; Mason 
 V. Park, 4 111. 532; Jameson v. Conway, 10 111. 227; Blvlns v. McElroy, 11 
 Ark. 23; Threadgill v. White, 11 Ired. (N. C.) 591; Roberts v. Roberts, 82 
 N. C. 29. But evidence of this character has been held Inadmissible to 
 prove corporate organisation, Welland Cana,l Co. v. Hathaway, 8 Wend. 
 480, 24 Am. Dec. 51; the fact that attachment proceedings are pending, 
 Jenner v. Joliffe, 6 Johns. 9; the fact that a party had been subpoenaed 
 as a witness, Hasbrouck v. Baker, 10 Johns. 248; the existence of a bond, 
 Fox V. Rell, 3 Johns. 477; the legal effect of a deed, Morrill v. Robinson, 
 71 Me. 24, and the contents of a mortgage, Sherman v. People, 13 Hun 
 (N. Y.) 575. 
 
 88 See cases already cited in this section; also Morey v. Hoyt, 62 Conn. 
 542; Barnett v. Wilson, 132 Ala. 375, 31 So. 521; Clark v. Warwick C. M. 
 & Co., 174 Mass. 434, 54 N. E. 887; Dunbar v. U. S., 156 U. S. 185, 186; 
 Hoefllng V. Hambleton, 84 Tex. 517; Taylor v. Peck, 21 Giatt. (Va.) 11; 
 Edwards v. Tracy, 62 Pa. St. 374; Edgar v. Richardson, 33 Ohio St. 581; 
 Blacklngton, v. Rockland, 66 Me. 332; Loomis v. Wadhams, 8 Gray, B57; 
 Earle v. Ploken, 5 Car. & P. 542; Slatterie y. Pooley, 6 M. & W. 664; 
 Qiieen v. Baringstoke, 14 Q. B. 611. 
 
 3» Robinson v. Beall, 20 Ga. 275; Wallace v. Bradshaw, 6 Dana (Ky.) 
 382; Halstead v. Cuppy, 67 Iowa, 600; Bird v. Bird, 40 Me. 392; Putman v. 
 Goodall, 31 N. H. 419; Torrey v. Puller, 1 Mass. 524; Hass v. Chubb, 67 
 Kan. 787. 74 Pac. 230; Knight v. Knight^ 12 La. An. 396; Marriner v. 
 Dennlson, 78 Cal. 202; Solomon v. Creech, 82 Ga. 445. 
 
 40 Packing Co. v. Cannon, 31 Fed. 313; King v. Worthington, 73 111. 161; 
 Watklns v. Paine, 57 aa.'50; Nodin v. Murray, 3 Camp. 228; Chapin v. 
 Slger, 3 MeLean (U. S.) 378; Marsh v. Hand, 35 Md. 123; Foot v. BenUey, 
 44 N. Y. 166, 4 Am. Rep. 652; Com. v. Jeffries, 7 Allen, 548, 83 Am. Dec. 
 712; Nowlen v. Lyon, 73 Mich. 434; Whitney Wagon Works v. Moore, 61 
 Vt 230; Smith v. Brown, 151 Mass. 338; State v. Sterling, 41 La. An. 679; 
 Ford V. Cunningham, 87 Cal. 209; Watson v. Roode, 30 Neb. 264. It has 
 been held that a copy of a letter press copy of a lost Instrument can be 
 17 
 
258 THE LAW OF EVIDENCB. § 210. 
 
 writings " are not admissible. Where a document is executed 
 in duplicate or triplicate each one is primary evidence of the 
 contents of the document, and the other need not be produced. 
 In such cases each is deemed an original.*^ But where a document 
 is executed in counterpart, each party signing only the part by 
 which he is bound, each counterpart is the best evidence against 
 the party signing it and his privies.*^ As to the other party 
 it is only secondary evidence.** Obviously the rule as to best 
 BAddence may apply to a copy as well as to an original when 
 it becomes necessary to prove the contents of the copy. Thus 
 if a biU is rendered and is to be proved that paper is the one 
 to be proved whether it is an original or a copy.*" 
 
 § 210 (209). The general rule as applied to telegrams — ^Mode 
 of proof. — The modern authorities establish the rule that tele- 
 grams are admissible in evidence, but not without proof that they 
 are genuine.*" Their authenticity may be shown by proof of the 
 
 produced as evidence without producing the press copy itself, Goodrich v. 
 Weston, 102 Mass. 362. Letter press copies of records of weather bureau, 
 the originals being sent to Washington, treated as original, Chicago & B. 
 I. R. Co. V. Zapp, 209 111. 339, 70 N. B. 623. 
 
 *iDuffln V. People, 107 111. 113, 47 Am. Rep. 431; Leathers v. Salvor 
 Co., 2 Wood (U. S.) 680; Maclean v. Scripps, 52 Mich. 214; Foot v. 
 Bentley, 44 N. Y. 166. 
 
 *2 Lewis V. Payn, 8 Cow. 71, 18 Am. Dec. 427; Hayes v. Wagner, 220 111. 
 256, 77 N. B. 211; Totten v. Bucy, 57 Md. 446; State v. Gurnee, 14 Kan. 
 Ill; Gardner v. Eberhart, 82 111. 316; Grossman v. Grossman, 95 N. T. 
 145; Weaver v. Shipley, 127 Ind. 526. But a letter press copy is not a 
 duplicate, Foote v. Bentley, 44 N. Y. 166; Seibert v. Ragsdale, 103 Ky. 206, 
 44 S. W. 653; State v. Halstead, 73 la. 376, 35 N. W. 457. 
 
 43 Roe V. Davis, 7 East, 362; Loring v. Whittemore, 13 Gray, 228; NlcoU 
 V. Burke, 8 Abb. N. C. (N. Y.) 213; Cleveland & T. Ry. Co. v. Perkins, 17 
 Mich. 296; Colling v. Treweek, 6 Barn. & C. 398; Brown v. Woodman, 6 
 Car. & P. 206. 
 
 4*Munn V. Godbold, 3 Bing. 292; Packing Co. v. Cannon, 31 Fed. 
 313. And all duplicates must be accounted for before secondary evidence 
 is admissible. Peaks v. Cobb (Mass.), 77 N. B. 881. 
 
 " Vinal V. Burrill, 16 Pick. 401. This rule has been applied to physician's 
 Mil rendered, Missouri P. R. Co. v. Palmer, 55 Neb. 559, 76 N. W. 169: 
 copy of letters attached to contract. Corner v. Corner, 120 111. 420, 11 N. E. 
 848; where the libel alleged was the publishing of a song, the loss of th« 
 particular copy published had to be established before copies were ad- 
 mitted, Johnson v. Morgan, 7 A. & E. 233. 
 
 «Burt V. Winona Ry. Co., 31 Minn. 472; Lewis v. Havens, 40 Conn. 363; 
 Smith V. Easton, 54 Md. 138; Cobb v. Glenn Boom & L. Co., 57 W. Va. 4,9 
 110 Am. St. Rep. 734 and note pp. 764-771; Yeiser v. Gathers (Neb.), 97 
 N. W. 840; Reynolds v. Hendricks, 16 S. D. 602, 94 N. W. 694. 
 
§ 210. BEST EVIDENCE. 259 
 
 handwriting of some person employed in the telegraph ofSce 
 at the time the telegram was received at the ofSce or of that of the 
 sender,*^ or by any other suitable means.*' The same rule pre- 
 vails in regard to telegrams as in regard to other writings, 
 tliat secondary evidence of their contents can not be received un- 
 til it has been shown that the original can not be produced.*" 
 Thus if the original is heyond the jurisdiction of the court, the 
 copy of the message received at the destination may be intro- 
 duced as secondary evidence."" The same rule holds where it 
 is shown to be the custom of the company to destroy messagles 
 received by it after a given period; secondary evidence may then 
 be received as to the contents of the telegram."^ But, although 
 the general rule applies to telegrams as well as to other writings, 
 there has been some difficulty in determining what are original 
 telegrams within the meaning of the rule that the best evidence 
 must be produced. By the decided weight of authority the ques- 
 tion whether the communication sent in or the one received is to 
 be deemed the original depends upon which party is respon- 
 sible for its transmission, in other words upon the question for 
 whom the telegraph company is agent. If there is but a single 
 communication, the dispatch as delivered at the place of destina- 
 tion is the best evidence."^ And generally in controversies arising 
 
 iTRlchla V. Bass, 15 La. An. 668; Orgeon Steamship Co. v. Otis, 100 
 N. Y. 446, 53 Am. Rep. 221; Smith v. Easton, 54 Md. 138, 39 Am. Rep. 355. 
 
 48 Dunbar v. United States, 156 U. S. 185. 
 
 ■«»McCormick v. Joseph, 83 Ala. 401; Durliee v. Vermont C. Ry. Co., 29 
 Vt. 127; Cairo & St. L. Ry. Co. v. Mahoney, 82 III. 73; Williams v. Brlckell, 
 37 Miss. 682; Western Union Tel. Co. v. Kapp (Tex.) 80 S. W. 840; Brownlee 
 V. Reiner, 147 Cal. 641, 82 Pac. 324; Nickerson v. Spindell, 164 Mass. 25, 
 41 N. E. 105; Whilden v. Merchants Bank, 64 Ala. 1, 38 Am. Rep. 1 and 
 note; Barons v. Brown, 25 Kan. 410; Western Union Tel. Co. v. Hines, 94 
 Ga. 4?0; Blair v. Brown, 116 N. C. 631. 
 
 BO Barons v. Brown, 25 Kan. 410; Whilden v. Merchants Bank, 64 Ala. 
 1, 38 Am. Rep. 1 and note; Elwell v. Mersick, 50 Conn. 272; Western Union 
 Tel. Co. V. Smith (Tex.), 26 S. W. 216. 
 
 »i Flint V. Kennedy, 33 Fed. 820; Riordan v. Guggerty, 74 Iowa, 688, 39 
 N. W. 107; Smith v. Easton, 54 Md. 138; Ward v. Railway Co. (Tenn.), 
 57 S. W. 193; Western U. T. Co. v. Collins, 45 Kan. 88, 25 Pac. 187. 
 See also, Oregon Steamship Co. v. Otis, 100 N. Y. 446, 53 Am. Rep. 221; 
 Western Union Co. v. Kemp, 55 111. App. 583. 
 
 62Durkee v. Vermont C. Ry. Co., 29 Vt. 127; Anheusser Brew. Co. v. 
 Hutmacher, 127 111. 652; Trevor v. Wood, 30 N. Y. 307, 93 Am. Dec. 511; 
 Sareland v. Green, 40 Wis. 431; Nickerson v. Spindell, 164 Mass. 25, 41 N. 
 E. 105. In an Alabama case it was held unnecessary to decide this que* 
 
260 THE LAW OF EVIDENCE. § 210 
 
 between the sender and the receiver, when the company can be con- 
 sidered the agent of the sender of the message, the message re- 
 ceived at the place of destination is to be deemed the original."^ 
 One who sends an order by telegraph makes the company hia 
 agent for the delivery of the same, and is bound by the mes- 
 sage as delivered. The receivir may put in evidence the message 
 as received.'* This is upon the principle that any mistake of 
 the company in the act of transmission or delivery is the mistake 
 of the principal in the same manner as if a mistake should be made 
 by any agent in the delivery of any verbal message. Qui facit pei 
 almm, facit per se. But in England a different rule prevails, 
 the message delivered to the company being deemed the primary 
 evidence;"' and a few cases in this country seem to hold this view."^' 
 "While this is true if the ansvrer is a mere acceptance or answer 
 to an offer, yet if the message sent in reply contains new condi- 
 tions or offers, the company would, probably be deemed the agent 
 of the one replyiug and in that case the message as received 
 would be the original on the principle first stated."'' Of course 
 there must be competent proof that the alleged sender did actually 
 send or authorize the sending of the message in question."* Al- 
 though such proof may consist of circumstantial evidence," yet 
 the fact of the delivery of a telegraphic dispatch to a person 
 at a given time and place is not proved by producing an alleged 
 reply signed by him, received at the sending office later on the 
 same day and addressed to the sender of the former dispatch.'" 
 In controversies between the sender and the telegraph company, 
 
 tion where tlie telegrams In question were at the time in another state, 
 this being held suflacient to admit secondary evidence, Shorter v. Shepard, 
 33 Ala. 648. 
 
 BSDurkee v. Vermont C. Ry. Co., 29 Vt. 127; Trevor v. Wood, 36 N. T. 
 307, 93 Am. Dec. 511; Bond v. Kurd, 31 Mont. 314, 78 Pac. 579; State v. 
 Hopkins, 50 Vt. 316; Saveland v. Green, 40 Wis. 431 and cases cited. 
 
 6*Saveland v. Green, 40 Wis. 431; Western Union Tel. Co. v. Shatter, 
 71 Ga. 760. 
 
 55 Henkel v. Pape, L. R. 6 Ex. 7. 
 
 iseMatteson v. Noyes, 25 111. 592; Williams v. Brickell, 37 Miss. 682, 75 
 A.m. Dec. 88. 
 
 BTRedf. Car. § 546; Durkee v. Vermont C. R. Co., 29 Vt. 127. 
 
 08 Smith v. Easton, 54 Md. 138, 39 Am. Rep. 355; Oregon Steamship 
 Co. V. Otis, 100 N. Y. 446, 53 Am. Rep. 221, the primary evidence of thia 
 fact Is the telegram delivered to the company. 
 
 B» Flint V. Kennedy, 33 Fed. 820. 
 
 «o Howley v. Whipple, 48 N. H. 487. 
 
§ 211. BEST EVIDENCE. 261 
 
 for example, in an action for failure to properly transmit 
 the message, the primary evidence of the dispatch is the message 
 left with the company for transmission."' In proving a contract 
 by telegram the best evidence is the telegram containing the 
 offer as received at the point of destination and the dispatch 
 containing the acceptance as delivered for transmission. This 
 is in analogy to the making of contracts by letter where the 
 contracts is consummated when the acceptance is delivered for 
 transmission.'" 
 
 § 211 (210). Communications by telephone. — In connection 
 with the subject treated in the last section it may be best to 
 discuss the subject of telephonic communications, although strictly 
 speakiiig the rule as to the best evidence has little, if any ap- 
 plication to such communications. As. business expands by the aid 
 of new inventions wider scope must be given to the rules of evi- 
 dence. In several instances the courts have acted upon this view 
 in receiving as evidence the statements made at the telephone or 
 to telephone operators and intended to be communicated to another 
 party. In such case the operator may be regarded as the agent 
 of ioth parties to make and receive such communications."' But 
 there are cases holding the stricter rule that, where evidence of the 
 substance of such conversation is sought to be introduced, it must 
 first be shown that the party speaking was recognized either by 
 his voice or in some other manner,"* while it is asserted in other 
 
 61 Western Union Tel. Co. v. Hopkins, 49 Ind. 223; Redf. Car. § 546. 
 In Conyers v. Postal Cable Co., 92 Ga. 619, It was held admissible 
 in such an action to offer the message as delivered to the sender without 
 first calling for or showing inability to obtain the original message. The 
 same was held in Western Union Tel. Co. v. Blance, 94 Ga. 431, and also in 
 Western Union Tel. Co. v. Smith (Tex. Civ. App.), 26 S. W. 216, oa 
 proof that the original is out of the jurisdiction, or that it is lost. Western 
 Union Tel. Co. v. Williford (Tex. Civ. App.) 27 S. W. 700. 
 
 «2Durkee v. Vermont C. Ry. Co., 29 Vt. 127; Howley v. Whipple, 48 N 
 H. 487; Wilson v. Minneapolis & N. Ry. Co., 31 Minn. 481; Saveland v 
 Green, 40 Wis. 431; Smith v. Easton, 54 Md. 138, 39 Am. Rep. 355; Beach 
 v. Raritan & D. B. Ry. Co., 37 N. Y. 457; Cobb v. Glenn Boom L. Co., 51 
 W. Va. 49, 49 S. E. 1005, 110 Am. St. Rep. 734. 
 
 «3 Sullivan v. Kuykendall,. 82 Ky. 483, 56 Am. Rep. 901-906; Oskamp v 
 Gadsden, 35 Neb. 7, 37 Am. St.' Rep. 428 and note, 17, L. R. A. 440 and note, 
 See notes, 17 L. R. A. 440; 10 Am. St. Rep. 135. 
 
 64 0berman Brewing Company v. Adams, 35 111. App. 540; Murphy v. 
 Jack, 58 N. Y. S. 458; Shawyer v. Chamberlain, 113 la. 742, 84 N. W. 661; 
 Lord Electric Co. v. Morrill, 178 Mass. 309, 59 N. B. 807; Deeilng & Co. 
 T. Shumpik, 67 Minn. 348, 69 N. W. 1088; Davis v. Walter, 70 la. 466, 30 N 
 
262 THE LAW OP EVIDENCE. § 212 
 
 cases that the circumstances tending to establish the identity of 
 the speaker are to be considered in determining the weight of 
 evidence, not its admissibility."^ So an acknowledgment of a notary 
 taken by telephone should not be set aside when it appears that 
 the nature and contents of the instrument were correctly stated 
 to a party executing it and there is no pretence of fraud;*' and 
 where communication was had by telephone with a railroad com- 
 pany's of6.ce, it was presumed that an authorized agent of the 
 company attended to the message and, it not being shown that 
 the conversation was carried on by an intruder, the company 
 was bound by the statements coming from its office."^ The auth- 
 orities are, however, not agreed as to the question of the admis- 
 sibility of conversations over the telephone which have been taken 
 by some third person and repeated to a party to the action. A 
 Kentucky case has held such evidence competent on the ground 
 that the third person was an agent of the party. This seems to 
 be the trend of the authorities, alhough in a Georgia case such 
 communications were rejected on the ground that they were pure 
 hearsay.** An Illinois case holds that a third party may testify 
 to that portion of the conversation over a telephone which is 
 spoken in his presence, although he could not hear the replies 
 and did not know with whom the conversation was held." 
 
 § 212 (211). Proof of lost instruments. — We have already seen 
 that the rule as to the best evidence has various qualifications and 
 limitations. The requirements of this rule are satisfied if the 
 hest attainable evidence is produced. If it is shown by satisfac- 
 tory proof that the original instrument has been lost or de- 
 stroyed, or that it is beyond the jurisdiction of the court or in 
 the possession of the adverse party who refuses to produce it, 
 one of the principal objections to secondary evidence at once 
 disappears and such evidence becomes admissible.''" It is hardly 
 
 W. 804. So also In criminal cases. People v. Ward, 3 N. Y. Crim. R. 483; 
 Stepp V. State, 31 Tex. Crim. R. 349, 20 S. W. 753. 
 
 86 Missouri Pac. Ry. Co. v. Heidenheimer, 82 Tex. 195, 27 Am. St. Rep 
 861; Wolfe v. Missouri Pac. Ry. Co., 97 Mo. 473, 3 L. R. A. 539, 10 Am 
 St. Rep. 331; Globe Printing Co. v. StaW, 23 Mo. App. 451. 
 
 »8 Banning v. Banning, 80 Cal. 271. 
 
 «TReed V. Burlington Ry. Co., 72 Iowa, 166, 2 Am. St. Rep. 243; Roek 
 Island Ry. Co. v. Potter, 36 111. App. 590. 
 
 68 Sullivan v. Kuykendall, 82 Ky. 483, 56 Am. Rep. 901; Wilson v. Cole- 
 man, 81 Ga. 297. But see German Bank v. Citizens' Bank, 101 la. 530, 70 
 N. W. 769. 
 
 «» Miles V. Andrews, 153 111. 262. 
 
 7» Georgia Pacific Ry. Co. v. Strickland, 80 Ga. 776, 12 Am. St Ren 
 
§ 212. BEST EVIDENCK 263 
 
 necessary to cite cases illustrating this rult as to the introduction 
 of secondary evidence. The decisions ha-\e often declared that 
 before secondary evidence is received, there must not <yniy be 
 proof of the existence '^ but of +.he due -execution ot the document.'"' 
 This proposition is not entirely e ear, and if such proof involves 
 proof of the contents or tenor of the document, 'it is obviously 
 improper. Although the correct order of proof is as follows: 
 Existence, execution, loss, contents, this order may be changed 
 when necessary in the discretion of the court.'" 
 
 282 and note. For cases on the general subject of this section see notes, 
 28. Am. St. Rep. 24; 24 Am. St. Eep. 822. See §§ 205 supra, 218 infra. 
 It has been applied to deeds, Huzzard v. Trego, 35 Pa. St. 9; Terpening v. 
 Holton, 9 Colo. 306; Stewart v. Scott, 57 Ark. 153; Rullman v. Barr, 54 Kan. 
 643; lorits, Fowler v. Moore, 4 Ark. 570; pleadings, Peirce v. Bank of Tenn. 
 1 Swan (Tenn.) 265; specialties, Kelly v. Riggs, 2 Root (Conn.) 126; 
 judgments, Stokes v. Prescott, 4 B. Mon. (Ky.) 37; Forsayth v. Vehmeyer, 
 55 111. App. 223; other records, Williams v. Kerr, 113 N. C. 306; Gore v. 
 ■ Elwell, 22 Me. 442 ; Thayer v. Stearns, 1 Pick. 109 ; Stockbridge v. West 
 Stockbridge, 12 Mass. 400; Dillingham v. Snow, 5 Mass. 547; Ravenscroft 
 V. Gibony, 2 Mo. 1; Farmers' Bank v. Gibson, 6 Pa. St. 51; Clark v. 
 Trindle, 52 Pa. St. 492; Brown v. Griffith, 70 Gal. 14; agreements, Mor- 
 rison V. Chapin, 97 Mass. 72; Tanner v. Page (Mich.), 63 N. W. 993; 
 banknotes, Bank of United States v. Sill, 5 Conn. 106, 13 Am. Dec. 44 and 
 note; books of account, Mayson v. Beazley, 27 Miss. 106; McCrady v. 
 Jones, 36 S. C. 136; patents, 'Laxiey v. Davis, 4 Mich. 140, 66 Am. Dec. 524; 
 Ross V. Goodwin, 88 Ala. 390; wills. Smith v. Carter, 3 Rand. (Va.) 167; 
 Reeves v. Booth, 2 Mill's Const. (S. C.) 334, 12 Am. Dec. 679 and note; 
 time Mils for work done, McDonnell v. Ford, 87 Mich. 198; and releases. 
 Conant v. Jones (Ga.), 48 S. E. 234. 
 
 Ti Weatherhead v. Baskerville, 11 How. 329; Stocking v. St. Paul T. Co., 
 39 Minn. 410; Hanna v. Price, 23 Ala. 826; Gunther v. Bennett, 72 Md. 384; 
 Thompson v. Thompson, 9 Ind. 323, 68 Am. Dec. ,638; Hayden v. Mitchell, 
 163 Ga. 431, 30 S. B. 287; Dickenson v. BreedeH, 25 111. 186; Lomerson v. 
 Hoffman, 24 N. J. L. 674; Baskin v. Seechrist, 6 Pa. St. 154; Wells v. 
 Pressy, 105 Mo. 164; Wiseman v. North Pacific Ry. Co., 20 Ore 425, 23 Am. 
 St. Rep. 135 and note. 
 
 T2ElmondorfE v. Carmichael, 3 Lltt. (Ky.) 472, 14 Am. Dec. 86; Shrouder 
 V. Harper, 1 Har. (Del.) 444; Smith v. Smith, 106 Ga. 303, 31 S. E. 762; 
 Kimball v. Morrell, 4 Me. 386; Atwell v. Lynch, 39 Mo. 519; Jack v. 
 Woods, 29 Pa. St. 375; Goodier v. Lake, 1 Atk. 446; Jackson v. Frier, 16 
 Johns. 193; Hughes v. Southern Warehouse Co., 94 Ala. 613; Reynolds v. 
 Gourdan, 6 Cal. 108; Calhoun v. Calhoun, 81 Ga. 91; McPherson v. Rath- 
 bone, 7 Wend. 216; Stocking v. St. Paul T. Co., 39 Minn. 410; Sloane v. 
 Thomas, 12 Pa. St. 209; Gunther v. Bennett, 72 Md. 384; Combs v. Com 
 (Ky.), 25 S. W. 590; Stevens v. State, 50 Kan. 712; Wiseman v. North 
 Pacific Ry. Co., 20 Ore. 425, 23 Am. St. Rep. 135 and note. 
 
 's Fitch V. Bogue, 19 Conn. 285; Den v. Pond, 1 N. J. L. 379; Culpepper 
 
264 THE lAW OF EVIDENCE. § 213. 
 
 § 213 (212). Same — Diligence necessary before secondary evi- 
 dence is allowed. — ^It is the general rule that before secondary evi- 
 dence of a v?riting alleged to be lost can be given there must be 
 proof that a diligent search has been made in the place wheiv 
 it is most likely to be found and that the search has not been 
 successful.''* The courts have often undertaken to lay down 
 definite rules for determining what constitutes a diligent search. 
 These tests vnll be given but it must be borne in mind, as will 
 later appear, that much must be left to the discretion of the court.'" 
 When the paper from its nature has some particular place of de- 
 posit or is shown by the evidence to have been in some particular 
 place or in the custody of some particular person, that place should 
 be searched in the utmost good faith, or the person in whose cus- 
 tody it is shown to have been should be produced.^" While an 
 honest and diligent search is sufScient, there is no reasonably certain 
 proof of the loss until it appears by their ovm testimony that it is 
 not in the hands of any of those where it might reasonably be 
 supposed to be.'"' The testimony of the last custodian of the paper ' 
 
 V. Wheeler, 2 McMuU. (S. C.) 66; Bonds v. Smith, 106 N. C. 553; Smith v. 
 Brown, 151 Mass. 338; Allen v. Parish, 3 Oh. 107, 121; Groff v. Ramsey, 19 
 Minn. 44, 60; see § 17 supra. 
 
 74 Armstrong v. Simmons, 3 Har. (Del.), 342; Everett v. Hart, 20 Colo. 
 App. 93, 77 Pac. 254; Mortgage Trust Co. v. Elliott (Colo.), 84 Pac. 980,- 
 Holbrook v. Trustees, 28 111. 187; Dickerson v. Talbot, 14 B. Mon. (Ky.) 
 60; Kidder v. Blalsdell, 45 Me. 461; Glenn v. Rogers, 3 Md. 312; Doe v. 
 McCaleb, 3 Miss. 756; Barton v. Murrain, 27 Mo. 235, 72 Am. Dec. 259; 
 Jackson v. Root, 18 Johns. 60; Poignand v. Smith, 8 Pick. 272; Parke v. 
 Bird, 3 Pa. St. 360; Avery v. Stewart (N. C), 46 S. E. 519; Fletcher v. 
 Jackson, 23 Vt. 581, 56 Am. Dec. 98; Foot v. Silliman, 77 Tex. 268; Wise- 
 man v. North. Pac. Ry. Co., 20 Ore. 425, 23 Am. St. Rep. 135 and note;* 
 Powell V. Wallace, 44 Kan. 656; Niland v. Murphy, 73 Wis. 326; Perrlne v. 
 State, 81 Wis. 135; Com. v. Jeffries, 7 Allen, 548, 83 Am. Dec. 712; Tanner 
 V. Hall, 89 Ala. 628; Coffing v. Camahan, 122 Ind. 427; Shouler v. Bon- 
 ander, 80 Mich. 531; Brown v. Harklns, 131 Fed. 63. 
 
 76 Avery v. Stewart (N. C), 46 S. E. 519; Llles v. Liles (Mo.), 81 S. W. 
 1101; Cooley v. Collins, 186 Mass. 507, 71 N. E. 979. This is illustrated by 
 most of the cases cited to this section. 
 
 78Sturgls V. Hart, 45 111. 103; R. v. Stourbridge, 8 Barn. & C. 96; 
 Mlnshall v- Lloyd, 2 M. & W. 450; McGahy v. Alston, 2 M. & W. 206; 
 Fernley v. Worthington, 1 Man. & G. 491; Singer Mfg. Co. v. Riley, 80 
 Ala. 314; Jernigan v. State, 81 Ala. 68; McColllster v. Yard, 90 la. 621, 57 
 N. W. 447: Susquehana Mut. Fire. Ins. Co. v. Mordorf, 152 Pa. St. 22; 
 Bascom v. Toner, 5 Ind. App. 229. 
 
 77 Doyle V. Wiley, 15 111. 576; Patterson v. Keystone Co., 30 Cal. 360; 
 Kennlfr v. Canfield, 140 Cal. 34, 73 Pac. 803; Hemphill v. McCUmana, 24 
 
§ 213. BEST EVIDENCB. 265 
 
 or record should be produced^' and, if dead, his representative 
 or siiceesor should be called '* If the paper is so traced that the 
 possession may be in the hands of either of two persons, both 
 should be sworn before secondary evidence will be allowed." But 
 it is not necessary to call the last custodian with whom a document 
 was left when the office had been searched by another person 
 under the former's direction and the latter has testified. "^ 
 A reference to some of the adjudicatd cases will best illustrate 
 the degree of diligence required.'* 
 
 Pa. St. 367; Harper v. Hancock, 6 Ired. (N. C.) 124; Hammond v. Ludden, 
 47 Me. 447. 
 
 Tsjudson V. Eslava, Minor (Ala.) 71, 12 Am. Dec. 32 and note; Llnd- 
 berg V. Mackenheuser, 4 111. App. 603; Mullanphy Bank v. Schott, 135 
 111. 655, 26 N. E. 640; Brock v. Cottingham, 23 Kan. 383; Prusslng v. Jack- 
 son, 208 111. 85, 69 N. B. 771; Darrow v. Pierce, 91 Mich. 63; Trimble v. 
 Edwards, 84 Tex. 497. 
 
 T» Floyd V. Mintrey, 5 Rich. L. (S. C.) 361; Stanley v. Anderson, 107 
 Mich. 384, 65 N. W. 247; Gray v. Thomas, 83 Tex. .^46; Bald:vTin v. Gold- 
 frank (Tex. Civ. App.), 26 S. W. 155; Blalick v. Miland, 87 Ga. 573. 
 
 80 Patterson v. Keystone Co., 30 Cal. -360; Cruise v. ClaCiy, 6 Ir. Eq. R. 
 552; Richards v. Lewis, 11 C. B. 1035; Hall v. Ball, 3 Man. & G. 242; R. v. 
 Hinckley, 32 L. J. (M. C.) 158. 
 
 81 Waggoner v. Alvord, 81 Tex. 365; Buchanan v. Wise, 34 Neb. 695. 
 
 82 Wo foundation is laid for secondary evidence by testimony that the 
 witness had not the papers with him. Large v. Vandorn, 14 N. J. Bq.>208; 
 that the attorney and client each supposed the other would bring the 
 letters and neither made a special search, Simpson v. Dall, 3 Wall. 460; 
 that a letter which could not be found was received either by the witness 
 or a director of the bank, though both had searched, Taunton Bank v. 
 Richardson, 5 Pick. 436; that a party has sent a paper to a public officer 
 for record, Hawkins v. Rice, 40 Iowa, 435; McCollister v. Yard (Iowa), 57 
 N. W. 447; Pitch v. Randall (Mass.), 40 N. E. 182; that a search for a 
 letter received by a firm, since dissolved, which did not include an Inquiry 
 of the principal member of the firm was made. Hill v. Aultman, 68 Iowa, 
 630; that the witness had looked for the paper at home and could not 
 find it, Crowe v. Capwell, 47 Iowa, 426; that it was lost or destroyed, 
 Anglo-American Packing & Provision Co. v. Cannon, 31 Fed. 313; Echols 
 V. Hubbard, 90 Ala. 309; Angell v. Loomis, 9 Mich. 5; and if there Is no 
 cross-examination it will be implied that search had been made, Smith v. 
 Brown, 151 Mass. 338; that he had made search and could not find it, 
 Bartlett v. Wilbur, 53 Md. 485; that he had lost the paper or delivered it 
 to his attorney, Clement v. Ruckle, 9 Gill. (Md.) 3.'?6; that the receiver 
 of letters did not know where they were, Howe Machine Co. v. Stiles, 53 
 Iowa, 424; and that the witness supposed the paper to be In a safe, though 
 he had not seen it for several years, Post v. School District, 19' Neb. 135; 
 Burk« V. Bragg, 89 Ala. 204; that the witness had given a paper containing 
 a dying declaration to a grand jury and that he could find It neither among 
 
266 THE LAW OP EVIDENCE. § 214. 
 
 § 214 (213, 214). Same — Further illustrations. — ^In cases where 
 there is a presumption that papers are in a certain custody or in 
 a certain oiSce, search must be made there to rebut the presump- 
 tion.*' In some of the eases above cited secondary evidence was re- 
 jected because the details of the search were not given. It may be 
 stated generally that the court should be put in possession of the 
 facts showing the diligence used, as the general statement that the 
 witness had used diligence does not suffice.'* It will be seen by a 
 comparison of the illustrations given that it would be impossible 
 to prescribe any single rule which would determine in all eases 
 the sufficiency of the proof of the loss. In every case the testi- 
 mony should show that the party has ui good faith exhoMsted all 
 the sources of information and means of discovery which the nature 
 of the case would naturally suggest and which were accessible 
 to him.*° But the degree of diligence to be used must largely 
 depend upon the circumstances of the ease. The inquiry is of a 
 preliminary nature addressed to the court in each case; and the 
 decision is largely in the discretion of the court, and not subject 
 to review unless the decision is based upon an error of law or upon 
 evidence, which as a matter of law, is insufficient to sustain it." 
 
 his own papers nor among those of the grand jury, Boulden v. State, 102 
 Ala. 78; that the witness, an attorney, had made diligent search and in- 
 quiry for a writ prepared by him but could not find it, and that when he 
 last saw it it was in the hands of the officer was held insufficient, Phillips 
 V. Purington, 15 Me. 425; nor is the affidavit of the attorney alone suf- 
 ficient as it does not exclude the idea that the client might produce the 
 paper, Kauffman v. Shellworth, 64 Tex. 179. 
 
 83Wylie V. Smitherman, 8 Ired. (N. C.) 236; Davenport v. Harris, 27 
 Ga. 68; Adams v. Fitzgerald, 14 Ga. 36; Stow v. People, 25 111. 81. 
 
 siShepard v. Pratt, 16 Kan. 209; Booth v. Cook, 20 111. 129; Wilburn 
 V. State, 60 Ark. 141; Burr v. Kase, 168 Pa. St. 81; Pox v. Lambson, 8 
 N. J. L. 275; Preslar v. Stallworth, 37 Ala. 402; Rankin v. Crow, 19 111. 
 626; Doe v. Kind, 4 Miss. 125; Viles v. Moulton, 13 Vt. 510; Gould v. 
 Trowbridge, 32 Mo. 291; Owen v. Paul, 16 Ala. 130; Harven v. Hunter, 
 8 Ired. (N. C.) 464; Hanson v. Kelly, 38 Me. 456; Bray v. Aiken, 60 Tex. 
 688; Billin v. Henkel, 9 Colo. 394. 
 
 85 Ellis y. Smith, 10 Ga. 253; Polsim v. Scott, 6 Cal. 460; Wiseman v. 
 Northern Pac. Ry. Co., 20 Ore. 425, 23 Am. St. Rep. 135, and note; Rob- 
 erts V. Dixon, 50 Kan. 436. 
 
 86 Doe V. Aiken, 31 Fed. 393; Milford v. Veazie (Me.), 14 Atl. 730; Juzan 
 V. Toulmin, 9 Ala. 662, 44 Am. Dec. 448; Waller v. School District, 22 
 Conn. 306; Wineton v. Prevost, 6 La. An. 164; Witter v. Latham, 12 
 Conn. S92; Vaughn v. Blggers, 6 Ga. 188; Schrowders v. Harper, 1 Uar. 
 (Del.) 444; Poulet v. Johnson, 25 Ga. 403; Fisk v. Klssane, 42 lU. ii7; 
 
§ 214. BEST EVIDENCE. 267 
 
 Lord Denman thus expressed this view: "The question in every 
 case is, whether there has been evidence enough to satisfy the court 
 before which the trial is had, that to use the words of Bayley, J., 
 in R. v. Denio 'a Jowcs fide and diligent search was made for the 
 instrument where it was likely to be found. ' But this is a question 
 much fitter for the Court which tries than for us. They have to 
 determine whether evidence is satisfactory, whether the search has 
 been made bona fide, whether there has been due diligence, and 
 so on. It is a mere waste of time on our part to listen to special 
 pleading on the subject. To what employment shall we be devoted, 
 if such questions are to be broaght before us as matters of law." *'' 
 The rule undoubtedly is that the loss or destruction of the docu- 
 ment sieed not be proved beyond the possibility of mistake. It 
 is enough if the testimony satisfies the court of the fact with 
 reasonable certainty.^^ The loss or destruction may be proved by 
 circumstantial evidence.^^ Illustrations of facts which have been 
 held to be sufilcient proof of loss or destruction will be found cited 
 in the no+es."" 
 
 Adams V. Leland, 7 Pick. 62; Bachelder v. Nuttin?, 16 N. H. 261; Stafford 
 V, Stafford, 1 N. J. Bq. 525; Woodworth v. Barker, 1 Hill, 172; Ben v. 
 Peete, 2 Rand. (Va.) 539; Boyle v. Arledge, 1 Hemp. (U. S.) 620; Bonds 
 V. Smith, 106 N. C. 553; Leak v. Covington, 99 N. C. 599; Inhabitants of 
 Milford v. Veazie (Me.), 14 Atl. 730; Smith v." Brown, 151 Mass. 338; 
 Kearney v. New York, 92 N. Y. 617; Mason v. Libhey, 90 N. Y. 683, and 
 cases cited; Gorgas v. Hertz, 150 Pa. St. 538, unless manifestly insuffi- 
 cient; Bain V. Walsh, 85 Me. 108, unless there is an apparent abuse of 
 discretion. 
 
 87 R. V. Kenelwith, 7 Q. B. 642, 649. 
 
 88 United States v. Sutter, 21 How. 170; Bartlett v. Smith, 11 M. & W. 
 483. 
 
 8» Wells V. Jackson Mfg. Co., 48 N. H. 491; Taunton Bank v. Richard- 
 son, 5 Pick. 436; Central Turnpike v. Valentine, 10 Pick. 142; Witler v. 
 Latham, 12 Conn. 392; Clark v. Hornbeck, 17 N. J. Eq. 430; Blair v. Flack, 
 141 N. Y. 53; Howd v. Breckenridge, 97 Mich. 65; Parks v. Dunkle, 3 
 Watts & S. (Pa.) 291. 
 
 90 The search has been held sufficient when it is shown that a paper 
 whose custody belongs to a particular office cannot be found in that 
 office, Bralntree v. Battles, 6 Vt. 395; Poe v. Dorrah, 20 Ala. 288, 56 Am. 
 Dec. 196; Carter v. Edwards, 16 lad. 238; New York, etc. Co. v. Richmond. 
 6 Bosw. (N. Y.) 213; Johnson v. Powell, 30 Ala. 113; Daniels v. Creek- 
 more, 7 Tex. Civ. Appj 573 (see also Williams v. Kerr, 113 N. C. 306); 
 that the paper was left on the table and though diligent search was made 
 it could not be found, Tyler v. Dyer, 13 Me. 41; that a search was made 
 among the papers saved from a fire, Thayer v. Barney, 12 Minn. 502; 
 Daniels v. Oreekmore, 7 Tex. Civ. App. 573. Bnrt v. Long, 106 Mich. 210, 
 
268 THE LAW OP EVIDENCB. § 215. 
 
 § 215 (215). Importance of documents as affecting diligence — 
 Time of search. — The strictness of the rule requiring search for 
 documents and proof of their loss varies iu proportion to the 
 importance and value of the documents. If the document be 
 one of importance, such as is generally carefully preserved, or if 
 there is any reason to suspect that it may be withheld for some 
 improper reason, very strict proof may be properly required.'^ 
 But if there is no ground for suspicion as to the existence of the 
 writing or that it is designedly withheld, all that should be re- 
 quired is a reasonably diligent search for the original. If on 
 the other hand, the document is only of transitory interest or 
 little value as, for instance, an envelope, a newspaper or such 
 private letters as are not usually preserved very slight evidence 
 may suffice, as in such case the loss would be very readily in- 
 ferred."" So if no direct issue is made upon the fact, less 
 
 64 N. W. 60; that the note was offered In evidence before the witness, a 
 justice, and that he had made diligent search among his' papers, Conkey 
 V. Post, 7 Wis. 131; that the note in question had either been lost by 
 being picked from the pocket of the witness or by being mislaid, Mc- 
 Millan V. Bethold, 35 111. 250; that an unsuccessful search was made in 
 the clerk's office for an execution, the sheriff who once had possession 
 of the office being dead and his house having been burned, and inquiry 
 made of members of his family, Leland v. Cameron, 31 N. T. 115; that 
 the deed had been deposited In the postoffioe by the grantee directed to 
 another, who testified that he had not received it, and that inquiry had 
 been made at the office of deposit and delivery, McRae v. Pegnes, 4 Ala. 
 158; that a certain letter was stamped and addressed and left in a letter 
 box In a store and an employee testified that, if so left, he had mailed it, 
 Sanborn v. Cunningham (Cal.), 33 Pac. 894; that the paper was ten- 
 dered to the defendant who threw it aside, and that it was not seen 
 again, Stoddard v. Mix, 14 Conn. 12; that the letters of which no copies 
 had been made had been mailed to a foreign country and replies re- 
 ceived In due course of mail, Zeeterbach v. Allenberg, 99 Cal. 57; that 
 search had been made in vain by the proper custodian in vaults where 
 the plats were kept, also In every other likely place, was held sufficient. 
 McDonald v. Stark, 176 111. 456, 52 N. E. 37. 
 
 81 Juzan V. Toulmin, 9 Ala. 662, 44 Am. Dec. 448 ; Waller v. School Dist., 
 22 Conn. 326; Sexton v. McGill, 2 La. An. 190; Winston v. Prevost, 6 La. 
 An. 164; Beirne v. Rosser, 26 Gratt. (Va.) 537; Wiseman v. Northern 
 Pac. Ry. Co., 20 Ore. 425, 23 Am. St Rep. 135, and note; Minor v. Tillot- 
 son, 7 Pet. 99; Johnson v. Am wine, 42 N. J. L. 451. 
 
 »2 Spaulding v. Bank of Susquehana County, 9- Pa. St. 28; Beirne v. 
 Rosser, 26 Gratt. (Va.) 537; Gathercole v. Miall, 15 M. & W. 319; Brewster 
 V. Sewell, 3 Barn. & Aid. 296; Kensington v. Myles, 8 East, 273; R. v. 
 East Parleigh, 6 Dowl. & R. 147; Freeman v. Aikell, 2 Barn. & C. 494; 
 Rhode V. McLean, 101 111. 467. 
 
§ 216. BEST EVIDENCE. 269 
 
 strictness will be required." So after the execution of a deed 
 by the vendor, his title bond is presumed to have been given 
 up and destroyed.** A search for documents is not necessary 
 where, from the nature of the case, it is evident that it would 
 he un<wailimg, as where there is positive proof that the paper 
 had been lost.'" The same is true if the paper had never been 
 in the custody or control of the person wishing to give testimony 
 of its contents."' No precise rule can be stated as to the time when 
 the search should have been made. Applying the general rule the 
 search should have been made so recently as to satisfy the court 
 that every reasonable effort has been mad6 in good faith to furnish 
 the best evidence. In an English case a search among proper 
 papers three years before the trial was held sufScient."'' Though 
 Mr. Taylor cites this case as authority for the proposition that 
 the search need not be recent nor for the purposes of the cause, 
 he adds that it would have been more satisfactory had the papers 
 been again examined.** In a Pennsylvania case it was held 
 that a search made more than a year before the trial was not suffi- 
 cient for the admission of secondary evidence ;°° this rule was ad- 
 hered to in a later case in the same state where search had not 
 been made for three years.* 
 
 § 216 (216>. Mode of proving loss — Hearsay admissions — 
 AfiBdavit. — The rule forbidding hearsay testimony precludes the 
 admission of the mere declarations of third persons who have had 
 the custody of documents.^ In such cases the person should 
 be served with a subpoena duces tecum or their depositions should 
 in proper cases be taken.' But in England in a few instances such 
 declarations seem to have been received although clearly hearsay 
 evidence, apparently on the theory that, as the evidence was of a 
 
 »» Doe V. Aiken, 31 Fed. 393. 
 »4 wmiams V. Mitchell, 30 Ala. 299. 
 
 »'Postel V. Palmer, 71 Iowa, 157; Mattson v. Minnesota & N. W. R. Co. 
 (Minn.), 108 N. W. 517. 
 98 Wells V. Miller, 37 111. 276. 
 •I Fltz v. Rabbits, 2 Moody & Rob. 60. 
 08 Tayl. Ev. § 435. 
 »» Porter v. Wilson, 13 Pa. St. 641. , 
 
 1 Burr V. Kase, 168 Pa. St. 81. 
 
 2 Governor v. Barkley, 4 Hawks (N. C.) 20; Justice v. Luther, 94 N. C. 
 793; Rex v. Denlo, 7 Barn. & C. 620; Walker v. Beauchamp, 6 Car. & P. 
 552; Masterson v. Jordan (Tex. Civ. App.), 24 S. W. 549. 
 
 « Reg. v. Saffron Hill, 22 L. J. (M. C.) 22, 1 El. & B. 93. 
 
270 THE LAW OP EVIDENCE. " § 217. 
 
 preliminary fact and addressed to the court only, the ordinary rule 
 should be relaxed.* The admissions of a party, or of his attorney 
 or agent that a document has been lost are sufficient proof of loss.' 
 Before the adoption of statutes allowing parties to testify in their 
 own behalf it was the common practice for the court to receive 
 the ex parte affidavit of the party as evidence on this question,' 
 but the affidavit was not admissible as evidence of any other fact' 
 In such cases of course the affidavit had to show due diligence in 
 the search and compliance with the other requirements already 
 stated.* Since parties are allowed to testify in their own behalf 
 there would seem no good reason for admitting ex parte affidavits 
 as evidence. The party should give his evidence in open court or 
 by deposition as upon other issues. 
 
 § 217 (217) . Documents beyond the jurisdiction of the court- 
 Destruction of documents, etc. — ^It frequently becomes necessary 
 to prove the contents of documents which are in the possession 
 of persons in another state. The supreme court of the United States 
 has declared the rule in such cases very broadly as follows: "It 
 is weU settled that if books or papers necessary as evidence in a 
 court in one state be in the possssion of a person living in another 
 state, secondary evidence without further showing may be given 
 to prove the contents of such papers, and notice to produce them is 
 unnecessary. " ' It has been held, however, in several states that 
 
 4Tayl. Ev (lOthEd.) § 430; R. v. Kenilworth, 2 Ses. Cas. 72, 7 Q. B. 642; 
 R. V. Braintree, 27 L. J. (M. C.) 1; Smith v. Smith, Ir. Rep. 10 Eq. 273. 
 
 5 Stebbins v. Duncan, 108 U. S. 32 ; Indianapolis Ry. Co. v. Jewett, 16 
 rnd. 273; Cooper v. Maddan, 6 Ala. 431; Pentecost v. State, 107 Ala. 81, . 
 18 So. 146; Rex v. Haworth, 4 Car. & P. 254; Shortz v. Unangst, 3 Watts 
 & S. (Pa.) 45; Mandeville v. Reynolds, 68 N-. Y. 528; Diehl v. Emig, 65 
 Pa. St. 320. 
 
 s Patterson v. Winn, 5 Peters, 233; Ward v. Ross, 1 Stew. (Ala.) 136; 
 Skinker v. Flohr, 13 Cal. 638; Porter v. Ferguson, 4 Fla. 102; Smith v. 
 Atwood, 14 Ga. 402; Mitchell v. Shanley, 12 Gray, 206; Stevens v. Reed, 
 37 N. H. 49; Wells v. Martin, 1 Ohio St. 386; Wallace v. Wilcox, 27 Tex. 
 60; Cleveland v. Worrell, 13 Ind. 545; Beachbord v. Luce, 22 Mo. 168. 
 
 7 Mason v. Tallman, 34 Me. 472. 
 
 s Palmer v. Logan, 4 111. 56; Carter v. Vaulx, 2 Swan (Tenn.) 639; 
 Mason v. Tallman, 34 Me. 472. 
 
 » Burton V. Driggs, 20 Wall. 134; Mattocks v. Stearns, 9 Vt. 326; Smith 
 V. Traders' Nat. Bank, 82 Tex. 368; First Nat. Bank v. Willis, 82 Tex. 
 141; Bonner v. Home Ins. Co., 13 Wis. 677; Elwell v. Mersick, 50 Conn. 
 272; Tucker v. Woolsey, 6 Lans. (N. Y.) 482; Beattie v. Hilliard, 55 N. H. 
 428; Fosdick v. Van Horn, 40 Ohio St. 459; Ware v. Morgan, 67 Ala. 461; 
 Rhodes t. Seibert, 2 Fa. St 18; Memphis & C. Ry. Co. t. Hembree, 84 
 
§ 217. BEST EVIDENCE. 271 
 
 the mere fact that documents are outside the state does not warrant 
 the admission of secondary evidence. These courts hold that effort 
 should be made in such case to obtain the best evidence.^" Cer- 
 tainly the safer practice in such cases is to take the deposition of 
 the person having possession of such documents. When a deposi- 
 tion is thus taken, as there is no mode of compelling a non-resident 
 witness to attach the original to his deposition, a copy may be 
 attached and thus becomes competent evidence.^^ In such a case 
 secondary evidence as to the contents of a document may be given, 
 if the witness out of the jurisdiction refuses to produce it upon 
 proper notice being given.^^ If a paper is accidentally destroyed 
 by the party -and without fault, secondary evidence may be given 
 of its contents.^' And even though the destruction of the instru- 
 aient is voluntary, secondary evidence of its contents may be given, 
 if the circumstances accompanying the act are consistent with an 
 honest purpose or show some mistake or misapprehension.** But 
 
 Ala. 182; Miles v. Stevens, 142 Mass. 571; Bowden v. Achor (Ga.), 22 
 S. E. 254; Dwyer v. Salt Lake City Copper Mfg. Co., 14 Utah, 339, 47 Pac. 
 311; Hagaman v. Gillis, 9 S. D. 61, 68 N. W. 192. 
 
 10 Floyd v. Mintrey, 5 Rich. L. (S. C.) 361; Waite v. High, 96 Iowa, 742, 
 35 N. W. 397; Wood v. Cullen, 13 Minn. 394; Deaver v. Rice, 2 Ired. (N. C.) 
 280; McGregor v. Montgomery, 4 Pa. St. 237; Shaw v. Mason, 10 Kan. 
 184; Forrest v. Forrest, 6 Duer, 104; Justice v. Luther, 94 N. C. 793; 
 Knowltou V. Knowlton, 84 Me. 283; Farrell v. Brenan, 32 Mo. 328; Kirch 
 ner v. Laughlin (N. M.), 28 Pac. 505; Wiseman v. Northern Pac. Ry. Co., 
 20 Ore. 425, 23 Am. St. Rep. 135, and note; Pringey v. Gass, 16 Okl. 82, 
 86 Pac. 292. This is especially true where the documents in question 
 are in the possession of the party seeking to introduce the secondary evi- 
 dence, Mandel v. Swan Land & C. Co., 154 III. 177. 
 
 "Amherst Bank v. Conkey, 4 Met. 459; Tenn. & 0. Ry. Co. v. Dan- 
 forth, 99 Ala. 331; Binney v. Russell, 109 Mass. 55; PhUlips v. United 
 States Benef. Society, 120 Mich. 142, 79 N. W. 1; Bailey v. Johnson, £ 
 Cow. 115; Kearney v. Mayor, 92 N. C. 617. 
 
 12 Thompson-Houston Elect. Co. v. Palmer, 52 Minn. 174. 
 
 isRiggs V. Tayloe, 9 Wheat. 483; Tobin v. Shaw, 45 Me. 331, 71 Am. 
 Dec. 547; Stoddard v. Mix, 14 Conn. 12; Holford v. James, 136 Fed. 553; 
 Sturtevant v. Robinson, 18 Pick. 175; Orne v. Cook, 31 111. 238; Adams 
 V. Guill, 30 Miss. 397; Bagley v. McMickle, 9 Gal. 430; People v. Dennis, 
 4 Mich. 609, 69 Am. Dec. 338; Baldwin v. Threlkeld, 8 Ind. App. 312, re- 
 jected where the destruction is voluntary. 
 
 "Tobin V. Shaw, 45 Me. 331, 71 Am. Dec. 547; Rudolph v. Lane, 57 Ind. 
 115; Rodgers v. Crook, 97 Ala. 722; Murphy v. Olberding, 107 Iowa, 547. 
 78 N. W. 205; Wright v. State, 88 Md. 436, 41 Atl. 795; Davis v. Teach 
 out's Estate, 125 Mich. 135, 85 N. W. 475; Riggs v. Tayloe, 9 Wheat. 483; 
 Nelson V. National Drill Mfg. Co. (S. D.), 105 N. W. 630; Gibbs v. PottM 
 
272 THE LAW OP EVIDENCB. § 218, 
 
 in such cases every inference of fraud must be overcome.** Sec- 
 ondary evidence may be given as to the contents of a document in 
 the possession of a stranger or third party, if the legal remedies for 
 its production have been exhausted and have proved unavailing. 
 This has been Ultistrated in cases where attorneys refused after 
 service of a suhposna duces tecum to produce documents belong- 
 ing to their clients which they have the right to withhold;*" and 
 also where a witness refuses to prodiice a documnt on the ground 
 that it may criminate him •" or when for other reasons of privilege 
 the one possessing the document can properly withhold it.*' 
 
 § 218 (218). Effect of notice to produce. — One of the well rec- 
 ognized excuses for the non-production of primary evidence is that 
 the document is in the possession or power of the adversary and 
 that he has not produced it after due notice to do so.*' It is very 
 clear that the mere fact that the document is in the hands of the 
 opposite party does not warrant the admission of copies or of other 
 secondary evidence. It must also be shown that the one offering 
 the secondary evidence has done all in his power to secure the best 
 evidence by giving the adversary notice to produce the document 
 desired.^' Although it is necesary to show that the document in 
 
 (Ind.), 77 N. E. 942, where a deed was altered. See other cases collected, 
 2 Wlgmore, Bv. § 1198. 
 
 " Blake v. Fash, 44 111. 302 ; Joannes v. Bennett, 5 Allen, 169, 81 Am. 
 Dec. 738, and note; Steele v. Lord, 70 N. Y. 280, 26 Am. Rep. 602; Bagley 
 V. McMickle, 9 Cal. 430; Jones v. Knaus, 31 N. J. Eq. 609; Shields v. 
 Lewis (Ky.). 49 S. W. 803. 
 
 16 People V. Benjamin, 9 How. Pr. (N. Y.) 419; Baum v. Sauer, 117 Mo. 
 460; Kemp v. King, 2 Moody & Rob. 437; Reg. v. Hankius. i Uar. & K. 
 823. 
 
 IT State V. Gurnee, 14 Kan. 111. 
 
 "Phelps V. Prew, 3 B. & B. 430; State v. Curham, 121 N. C. 546, 28 
 S. B. 22. , 
 
 i» Morse v. Woodworth, 155 Mass. 233; Grimes T. Fall, 15 Cal. 63; 
 Richards v. Richards, 37 Pa. St. 228; Stephen v. Faus (S. D.), 106 N. W. 
 56; City Bank v. Thorp, 78 Conn. 211, 61 Atl. 428. 
 
 20 Harris v. Whitcomb, 4 Gray, 433. In an action against the selectmen 
 of a town for refusing the vote of an inhabitant, parol evidence that the 
 plaintiff's name was on the voting list was refused, there being no notice 
 to produce the list, Harris v. Whitcomb, 4 Gray, 433. An extract of a 
 lost letter could not be given In evidence without calling upon the writer 
 of the letter to produce his letter book, Denis v. Barber, 6 Serg. & R. (Pa.) 
 420. This rule has been applied generally in the case of letters, Foster v. 
 Newbrough, 58 N. Y. 481; Oberman Co. v. Adams, 35 111. App. 540; Mort- 
 lock V. Williams, 76 Mich. 568; Burlington Co. v. Whitebreast Coal Co., 
 66 Iowa, 292; Phillips v. Scott, 43 Mo. 86; Home Protection v. Whiddei. 
 
§ 219. BEST EVIDENCE. 273 
 
 qux.vition is in the custody or under the control of the party who is 
 called on to produce it, very slight evidence of this fact will suffice 
 if it appears that the document belongs to him, or in the usual 
 course of business ought to be under his control,^^ or if the docu- 
 m?nt was last seen in his possession.^^ Presumptively the document 
 is in the possession of the one to whom it belongs.^^ Thus, the 
 c;rantee is presumed to have the custody of his deed,^* but not nec- 
 fcasarily of prior title deeds.^' On the presumption of regularity 
 it is sufficient evidence of possession if the letter or document has 
 been sent to the opi>onent by due course of maiU" The document 
 }s presumed to continue in the possession of a party after notice 
 to produce, unless he apprises the opposite party of the change 
 of possession so that proper steps may be taken for the produc- 
 lion." 
 
 § 219 (219, 220). Object of notice to produce— Time of giving. 
 — A party is generally under i;o obligation to produce a pap.r 
 needed by the adversary, unless full notice has been given to pro- 
 duce the same for use at the trial."' Some of the English authori- 
 ties for a time maintained that the object of the notice to produce 
 was not only to enable the adverse party to have the document 
 
 (Ala.), 15 So. 567; Hunter v. Lanius, 82 Tex. 677; Dunbar v. United 
 States, 156 TJ. S. 185; telegrams, Brownlee v. Reiner, 147 Cal. 641, 82 Pae. 
 324; Western Union Tel. Co. v. Kapp, 35 Tex. Civ. App. 663, 80 S. W. 840; 
 contracts, Dupey v. Ashley, 2 A. K. Marsh. (Ky.) 11; Roberts v. Dixon, 50 
 Kan. 436; powers of attorney. Rusk v. Sowerwine, 3 Harr. & J. (Md.) 97; 
 receipts, Ledbetter v. Morris, 1 Jones (N. C.) 545; wills, Murehison v. 
 i.lcLeod, 2 Jones (N. C.) 239; demands, Muller v. Hoyt, 14 Tex. 49; proofs 
 of loss of insurance, Hanover Ins. Co. v. Lewis, 23 Fla. 193; corporate 
 records, Narragansett Bank v. Atlantic Silk Co., 3 Met. 282; deeds a'kS 
 other instruments. Gist v. McJunkin, 2 Rich. It. (S. C.) 154; Newsom v. 
 Davis, 20 Tex. 419; Com. v, Emery, 2 Gray, 80. 
 
 21 Henry v. Leigh, 3 Camp. 502: Robb v. Starkey. 2 Car. & K. 143; Rosa 
 V. Winnsboro Nat. Bank, 41 S. C. 191; Greenl. Ev. | 560 and note. 
 
 22 Rex V. Thistlewood, 33 How. St. Tr. 757; Harvey v. Mitchell, 2 Moodj 
 & Rob. 366; Smith v. Sleap, 1 Car. & K. 48. 
 
 28 Rex. v. Stoke Golding, 1 Barn. & Aid. 173. 
 
 2* Lord Buckhurst's Case, 1 Coke Rep. 1; Cooke v. Hunter, 2 Overt. 
 <Tenn.) 113; Nicholson v. Hllliard, 1 N. C. 253; Jackson v. Woolsey, 11 
 Johns. 446; Florence Co. v. Warren, 91 Ala. 533. 
 
 25 See authorities last cited. 
 
 26 Shields v. Lewis (Ky.), 49 S. W. 803; Rosenthal v. Walker, 111 U. S. 
 185; Augar S. A. & G. Co. v. Whittier, 117 Mass. 451; Sugar Pine D. & L. 
 Co. V. Garrett, 28 Ore. 168, 42 Pac. 129. 
 
 2T Jackson v. Shearman, 6 Johns. 19. 
 28 Waring v. Warren, 1 Johns. 340. 
 
 18 
 
274 THE LAW OF EVIDBNCB. § 219. 
 
 in court, but to enable Mm to prepare evidence to explain, weaken 
 or confirm it.^' But the rule now obtains in England that the sole 
 object of the notice is to obtain the docniment for use as evidence 
 and in ease of its non-production to admit secondary evidence.^" 
 The notice is necessary "merely to exclude the argument that the 
 party has not taken all reasonable means to procure the original; 
 which he must do before he can be permitted to make use of sec- 
 ondary evidence."*^ It was accordingly held in the case which 
 settled this rule that where the party or his attorney had the docu- 
 ment in court, it might be called for without previous notice and 
 that, if not produced, secondary evidence might be given." The 
 same rule prevails in this country and if the document is proved 
 to be in court °^ or easy of access, notice given at the trial is suffi- 
 cient;^* and the attorney or party may be compelled to state 
 whether he has the document in court."' That the document is in 
 court may sometimes be presumed from its nature and its connec- 
 tion with the case, but of course this presumption may be rebutted 
 by the oath of the attorney or party.'" It is impossible to lay down 
 any precise rule as to the requisite length of tiyne of notice in those 
 cases where notice to produce is necessary. It is a subject which 
 rests very largely in the sound discretion of the court ;''' and in the 
 exercise of such discretion the court should determine whether 
 
 2» Cook V. Heam, 1 Moody & Rob. 201; Roe t. Harrey, 4 Burr. 2482. 
 30 Dwyer v. Collins, 7 Exch. 639. 
 81 Dwyer y. Collins, 7 Exch. 639. 
 
 52 Dwyer v. Collins, 7 Exch. 639. 
 
 53 Brown v. Isbell, 11 Ala. 1009; McPh arson ▼. Rathbone, 7 Wend. 216; 
 Danar v. Boyd, 2 J. J. Marsh. (Ky.) 58¥; Griffin v. Sheffield, 38 Miss. 359, 
 77 Am. Dec. 646; McGregor v. Wail, 10 Gray, 72; Hauselman v. Doyle, 90 
 Mich. 142, 51 N. W. 195; Hampton v. Ray, 52 S. C. 74, 29 S. E. 637; 
 Choteau v. Raitt, 20 Ohio, 132. That the document Is in court may he In- 
 ferred from the conduct of the attorney or party. Barker v. Barker, 14 
 Wis. 131. 
 
 a^Atwell V. Miller, 6 Md. 10, 61 Am. Dec. 294; Board of Justices v. 
 Fennimore, 1 N. J. L. 242; Hammond v. Hopping, 13 Wend. 505; Morrison 
 y. Whiteside, 17 Md. 452, 79 Am. Dec. 661. But not if the document is in an- 
 other state, Dade v. Mtna, Ins. Co., 54 Minn. 336. 
 
 ss Brandt v. Klein, 17 Johns. 335. 
 
 38 Hammond v. Hopping, 13 Wend. 505. 
 
 37 Bourne v. Buffington, 125 Mass. 481; Cummlngs v. McKinney, 5 111.57; 
 Utica Ins. Co. v. Caldwell, 3 Wend. 290 ; Gorham v. Gale, 7 Cow. 739, 17 Am. 
 Dec. 549; McPherson v. Rathbone, 7 Wend. 216; Barlow v. Kane, 17 Wis. 
 38, 84 Am. Dec. 728. 
 
§ 220. BEST EVIDENCE. 275 
 
 under all the pireuinstanees of the case the notice has been reason- 
 able and suoh aa could have been complied with.'* 
 
 § 220 (221). Requisites of notice. — The notice to produce need 
 not be repeated at each succeeding term, if there are several 
 trials. In such case or if the trial is postponed several terms, 
 a single notice is sufficient.^^ And a notice to produce at the trial 
 given in a justice's court is operative in the superior court on 
 appeal.*" A notice to a party to produce a paper in his possession 
 is sufficient to authorize the admission of parol evidence, if the 
 notice is so framed that there can be no reasonable doubt as t« 
 
 s8 The notice has been held sufBclent where It was given the evening 
 before the trial where the residence of the party was near the place of 
 trial, Shreve v. Dulany, 1 Cranch. C. C. 499; or several days before the 
 trial though the plaintiff resided out of the state, Jefford v. Ringgold, 
 6 Ala. 544 (see also, Mortlock v. Williams, 76 Mich. 568) ; or after the 
 term commenced, but four days previous to the trial where the residence 
 of the party served was twelve miles away, Hammond v. Hopping, 13 
 Wend. 505; although the cause was partly tried. It appearing that there 
 was still time for the production of the document, Sturm v. Jeffree, 
 2 Car. & K. 442; or after the trial has been commenced, where the docu- 
 ment is easy of access, XJtica Ins. Co. v. Caldwell, 3 Wend 296; where 
 there had been a verbal notice to nrnduce at the hearing before the referee 
 and where the materiality of the document was clear and each party 
 was presumed to have present the papers bearing on the case, Kerr v. 
 McGuire, 28 N. Y. 446; two days upon a solicitor, although his client had 
 ^one abroad, Bryan v. Wagstaff, Ryan & M. 327, 2 Car. & P. 125; or a 
 SiTort notice for the production of letters where from long litigation it 
 might be presumed the letters had been returned, Sturge v. Buchanan, 
 10 Adol. & Ell. 598; nine days where the paper was one hundred and 
 eighty miles away, Jackson v. Marsh (N. Y.), 1 Caines, 153. Notice has 
 been held insufficient where it was given one day before trial, the paper 
 called for being in possession of a person eighty miles away, Cody v. 
 Hough, 20 111. 43; and generally if given during the progress of the trial, 
 Choteau v. Raitt, 20 Ohio, 132; the general rule is that notice should be 
 served in time to give reasonable opportunity to produce the paper; At- 
 kinson V. Carter, 2 Chit. 403; Bevan v. Waters, 1 Moody & M. 235; Sims 
 v. Kitchen, 5 Esp. 46; Houseman v. Roberts, 5 Car. & P. 394; McDonald 
 V. Carson, 95 N. C. 377; Lawrence v. Clark, 14 M. & W. 250; Pitt v. 
 Emmons, 92 Mich. 542; DeWitt v. Prescott, 51 Mich. 298; Byrnes v. Har- 
 vey, 2 Moody & Rob. 89; Bushnell v. Bishop Hill Colony, 28 111. 204; Morfr 
 lock V. Williams, 76 Mich. 568; Julius King Co. v. Treat, 72 Mich. 599. 
 
 so State V. Kimbrough, 2 Dev. (N. C.) 431; Jackson v. Shearman, 6 
 Johns. 19; Patten v. Goldsborough, 9 Serg. & R. (Pa.) 47; Rawsoa t. 
 Knight, 73 Me. 340; Battaglln v. Thomas, 5 Tex. Civ. App. 563. 
 
 *o Wilson V. Gale, 4 Wend. 623; Reab v. Moore, 19 Johns. 337. 
 
276 THE 14 W OF EVIDENCE. § 221. 
 
 what papers are meant.*^ Mistakes which do not actually tend to 
 mislead do not vitiate the notice; for example, when an alleged 
 copy of an instrument attached to the notice to produce was 
 inaccurate,*" and where the notice was entitled in the wrong court, 
 it was held sufficient.*' In several English cases it has been held 
 rot necessary to specify the exact documents required, but that it 
 is sufficient if the notice is so framed that the party served may 
 reasonably believe that a certain document is required. Thus, 
 general notices calling for all letters written to the party relating 
 to the matters in dispute or for letters received by the plaintiff 
 from the defendant within certain specified dates have been held 
 sufficient.** In an early case notice to produce "all letters, papers 
 and documents touching or concerning the bill of exchange" sued 
 on was held too general.*" In England, prior to the adoption of 
 rules of court requiring the notice to be in writing, it might be 
 either written or parol.*" Doubtless the better practice is to serve 
 a written notice, but, in the absence of a statute or rules of court, 
 it is believed that verbal notice, if timely and explicit, would be 
 sufficient. 
 
 § 221 (222). Notice to produce — On whom served. — The no- 
 tice to produce may be directed to and served on the party or on 
 his attorney.*^ Notice on the attorney has been held good, although 
 he was only the attorney for the nominal plaintiff, and the suit 
 was being prosecuted for the benefit of another party.** And the 
 
 *i Bemis v. Charles, 1 Met. 440; Walden t. Davison, 11 Wend. 65, 25 Am. 
 Dec. 602. 
 
 42 Bogart V. Brown, 5 Pick. 18; Justice v. Elstob, 1 Fost. & F. 266. 
 
 43 Lawrence v. Clark, 14 M. & W. 250. 
 
 44 Rogers V. Custance, 2 Moody & Rob. 179; Jacobs v. Lee, 2 Moody & 
 Rob. 33; Conybeare v. Farries, L. R. 5 Exeh. 16; Morris v. Hauser, 2 
 Moody & Rob. 392; McDowell v. Ins. Co., 164 Mass. 444, 41 N. E. 665; 
 Nelson V. National Drill Mfg. Co. (S. D.), 105 N. W. 630. See also, Jones 
 V. Parker, 20 N. H. 31. But see, Walden v. Davison, 11 Wend. 65, 25 Am. 
 Dec. 602; Amsteine v. Treat, 71 Micb. 561. 
 
 45 Prance v. Lucy, Ryan & M. 341; Jones v. Edwards, 1 McClel. & Y. 
 139. See ilso, Parish v. Weed Machine Co., 79 Ga. 682, where an ad- 
 journment was allowed because the notice was too vague. 
 
 46 Smith v. Young, 1 Camp. 439. 
 
 47 Rogers V. Custance, 2 Moody & Rob. 179; Den v. M'Allister, 7 N. X 
 L. 46; Lagow v. Patterson, 1 Blackf. (Ind.) 327; Boyd v. Leith (Tex. Cl« 
 App.), 50 S. W. 618. 
 
 48 Brown v. Littlefield, 7 Wend. 454; Lagow v. Patterson, 1 Blackf 
 (Ind.) 327. 
 
§ 222. BEST EVIDENCE. ■ 277 
 
 notice on a solicitor remains good, although a change is subse- 
 quently made and another solicitor takes his place.*" In order, 
 however, to admit secondary evidence there must be some proof 
 diat the party on whom the notice was served had control of the 
 instrument in question. But presumptive proof is sufficient." It 
 has been held immaterial that the document may be in the pos- 
 session of some third person, provided it may be deemed within the 
 control of the party. Thus, in an early case it was held that in 
 an action against the owner of a vessel, service on him was, suffi- 
 cient, though the document was in the possession of the captain.'^ 
 On the same principle notice to the party to produce a check drawn 
 by him and in possession of his banker is sufficient."^ So the pos- 
 session of an attorney is deemed the possession of the client."' 
 "Where the document was last seen in the hands of the party in 
 interest, though he was not a party to the record, notice served on 
 him was held good."* Notice to the attorney of record of a cor- 
 poration to produce its records is sufficient."" But where the pos- 
 session is in some third person the fact of privity between him 
 and the party, in other words that the document is within the con- 
 trol of the party, must clearly appear. If it does not so appear, 
 the person in possession of the document should be served with 
 a subpoena duces tecum.''^ If the party notified to produce the docu- 
 ment proves that it is lawfully out of his possession, it is for the 
 judge to determine whether secondary evidence can be given of 
 its contents."' 
 
 § 222 (223). Effect of non-production.— After the neglect or re- 
 fusal of the party notified to produce the primary evidence, sec- 
 
 «9Doe V. Martin, 1 Moody & Rob. 242. 
 
 50 Norton v. Heywood, 20 Me. 359; Birkbeck v. Tucker, 2 Hall (N. Y.) 
 121, declarations of a third party not enough; Lovejoy v. Howe, 55 Minn. 
 353. 
 
 51 Birkbeck v. Tucker, 2 Hall (N. Y.) 121. 
 
 82 Partridge v. Coates, Russ. & M. 153; Burton v. Payne, 2 Car. & P. 
 520; Sinclair v. Stevenson, 1 Car. & P. 582. 
 
 BsRex V. Hunter, 4 Car. & P. 128; Morehead Bkg. Co. v. Walker, 121 
 N. C. 115, 28 S. E. 253. 
 
 0* Norton v. Heywood, 20 Me. 359. 
 
 »5 Thayer v. Middlesex Mut. Fire Ins. Co., 10 Pick. 326. Other causes 
 illustrating the rule, Baldney v. Ritchie, 1 Stark. 338; Suter v. Burrell. 2 
 Hurl. & N. 867; Rush v. Peacock, 2 Moody & Rob. 162. 
 
 e« Birkbeck v. Tucker, 2 Hall (N. Y.) 121; Evans v. Sweet, Ryan & M. 
 83; Whltford v. Tutin, 10 Bing. 395. 
 
 " Harvey v. Mitchell, 2 Moody & Rob. 366. 
 
278 THE LAW OF EVIDENCE. § 223, 
 
 ondary evidence can be given."' As has been already stated, in such 
 cases every reasonable intendment will be in favor of the sec- 
 ondary evidence, if it is vague or uncertain. And it is then too 
 late for the party having possession of the primary evidence to use 
 it in rebuttal or to meet the secondary evidence of the other party 
 with like evidence."" When the paper is produced, it is, of course, 
 the best evidence, and an alleged copy cannot be received as evi- 
 dence in the first instance on the part of him who has called for 
 the original, although after the introduction of the original as evi- 
 dence, it might be shown to be defective or to have been tam- 
 pered with.*" 
 
 § 223 (224). When notice to produce is not necessary. — The 
 general rule that notice to produce must be given before secondary 
 evidence can be received of the contents of a paper in the posses- 
 sion of the adverse party does not apply in those cases where the 
 nature of the proceeding and the pleadings are such as to notify 
 the party that he is charged with the possession of the instru- 
 ment and that its production is necessary."^ So the rule is the same 
 
 68 Dunbar v. United States, 156 U. S. 185. This is also il'ustrated by 
 most of tlie cases cit»d on the general subject under discussion. See 
 § 19, supra. 
 
 69 Thompson v. Hodgdon, 12 Adol. & Ell. 135; Doon v. Donahue, 113 
 Mass. 151; Gage v. Campbell, 131 Mass. 566; Barnes v. Lynch, 9 Okl. 11, 
 59 Pac. 995; Cahen v. Life Ins. Co., 69 N. Y. 300; Piatt v. Piatt, 58 N. Y. 
 646. In some states this is declared to be the rule by statutes, Fleming v 
 Lawless, 56 N. J. L. 138, 38 Atl. 864. It has been held, however, that the 
 contumacy of the party in not producing the document is no ground foi 
 rejecting his evidence and no ground of estoppel, especially since he ma> 
 be compelled by sutpoena duces tecum to produce such i>aper, Molton v. 
 Mason, 21 Mich. 364. 
 
 60 Stitt v. Huidekopers, 17 Wall. 384. 
 
 «i No notice to produce is necessary in an action of trover for a umtten 
 instrument, Hayes v. Riddle, 1 Sandf. (N. Y.) 248; How v. Hall, 41 Bast, 
 274; Colling v. Trewick, 6 Barn. & C. 394; Wilson v. Gale, 4 Wend. 623; 
 Hotchkiss V. Mosher, 48 N. Y. 478; Rose v. Lewis, 10 Mich. 483; in as- 
 sumpsit for non-delivery of papers, Jolley v. Taylor, 1 Camp. 143; on the 
 trial of an indictment for stealing bank notes, McGinnis v. State, 24 Ind. 
 500; Com. v. Messinger, 1 Binn. (Pa.) 273, 2 Am. ilec. 441; for stealing or 
 forging promissory notes, Aickle's Case, 1 Leach Cr. C. 330; Butler's Case, 
 13 How. St. Tr. 1254; Spragge's Case, 14 East, 276; in an action to recover 
 the amount of a forged hank note which had been returned to the de- 
 fendant, Tuckett v. Clark, Litt. Sel. Cas. (Ky.) 178; Bruce v. Ross, 1 Day 
 (Conn.) 100; in an action against a carrier for the non-delivery of a writ- 
 ing, Jolley V. Taylor, 1 Camp. 143; in an action against a telegraph com- 
 pany for failing to deliver a telegram, Reliance Lumber Co. v. Westers 
 
§ 224. BEST EVIDENCE. 279 
 
 where the writing is a proper matter of defense and the adverse 
 party must understand that it will come in question,'"' or where 
 the action is brought on a written contract in the possession of de- 
 fendant which is fully described in the complaint."^ The same 
 principle has been applied in criminal cases where the charge itself 
 notifies the defendant of the contents of the document, as in cases 
 of forgery and larceny.'* It is not necessary to give notice to pro- 
 duce, if the adverse party has wrongfully or fraudulently obtained 
 possession of the document. For example, where a lease which has 
 once been used in evidence in the litigation was sent out of the 
 state by the counsel of the party against whom it was used 
 without the consent of the other party,°° or when it appears that 
 the adverse party has obtained possession of the original from a 
 person subpoenaed to produce it,*° or if the document was obtained 
 by the adverse party from the one seeking to use it by fraudulent 
 or forcible means of any character,*' it is not necessary to give 
 notice to produce the writing. In case the adverse party has intro- 
 duced a letter, such notice is not necessary before secondary 
 evidence can be introduced to show that such letter is not a part 
 of the communication leading up to the contract."' 
 
 § 224 (225). Same, continued. — No notice to produce a docu- 
 ment is necessary where the paper to be produced is itself a no- 
 tice."^ This rule dispensing with notices to produce papers that 
 
 trnion Tel. Co., 58 Tex. 394, 44 Am. Rep. 620 {contra, Western Union Tel. 
 Co. V. Hopkins, 49 Ind. 227); in an action against a constable for neglect- 
 ing to return an execution, Wilson v. Gale, 4 Wend. 623; in an action for 
 conspiracy in restraint of trade, no notice to produce Illegal agreement 
 necessary. State v. Dreany, 65 Kan. 292, 69 Pac. 182, in action tor ^breach 
 of warranty of machinery, Nichols & S. Co. ■v. ChaWebois, 10 N. D. 446, 
 88 N. W. 80; in an action in contract pleadings imply not'ce as to orders 
 and letters, Zipp v. Colchester R. Co., 12 S. D. 218, 80 N. W. S67. 
 
 82Kellar v. Savage, 20 Me. 199; Brown v. Com., 63 N. C. 514. 
 
 «!• Dana v. Conant, 30 Vt. 246. 
 
 ?*McGlnnis v. State, 24 Ind. 500; People v. Swetland, 77 Mich. 53, 43 
 K. W. 779; People v. Holbrook, 13 Johns. 90. 
 
 «« Mitchell V. Jacobs, 17 111. 235. 
 
 68 Leeds v. Cook, 4 Bsp. 256; Bonesteel v. Lynde, 8 How. Pr. (N. Y.) 
 226; Scott v. Pentz, 5 Sandf. (N. Y.) 572. 
 
 87 Gray v. Kernaham, 2 Mill's Const. (S. C.) 65; State v. Mayberry, 48 
 Me. 218; Neally v. Greenough, 25 N. H. 325; Hamilton v. Rice, 15 Tex. 
 382; Garlock v. Geortner, 7 Wend. 198. 
 
 88 Robinson v. Cutter (Mass.), 40 N. B. 112. 
 
 «» Atwell jr. fij-apt. IX Md. 101; Central Bank v. Allen. 16 Me. 41; Farl- 
 
280 THE LAW OP EVIDENCE. § 224. 
 
 are mere notices has been given very wide application. "For if it 
 were otherwise, the notice to produce the original could be prover^ 
 only in the same way as the original itself ; and thus a fresh nec- 
 essity would be constantly arising ad infinitum, so that the party 
 would be at every step receding instead of advancing."'" Id 
 England there has been some conflict on this question; some deci 
 sions holding that where notices form part of the cause of action 
 they cannot be proved by parol except after notice to produce." 
 But the weight of authority seems to be in favor of the rule first 
 stated. In the United States there have been also a few cases- 
 dissenting from the general doctrine.''^ No notice to produce i? 
 necessary, if the adversary has admitted the loss of the paper or its 
 loss is otherwise proved, as the notice would be useless." Nor is it 
 necessary if the adverse party testifies that he never had possession 
 of the document,^*^ nor if he has voluntarily offered to produce 
 
 bault V. Ely, 2 Dev. (N. C.) 67; Eagle Bank v. Chapin, 3 Pick. 180; 
 Christy v. Horn, 24 Mo. 242; Leavltt v. Simes, 3 N. H. 14; Morrow 
 V. Com., 48 Pa. St. 305; Reliance L. Co. v. West. Union Tel. Co., 58 Tex. 
 39, 44 Am. Rep. 620; Quinley v. Atkins, 9 Gray, 370; Gethin v. Walker, 
 59 Cal. 502; Rose v. Lewis, 10 Mich. 483. The rule has been applied to 
 notices to quit, Eisenhart v. Slaymaker, 14 Serg. & R (Pa) 153; Palkner 
 V. Beers (Mich), 2 Doug. 117; Hawley v. Robinson, 14 Neb. 435, 16 N. W. 
 438; to the filing of interrogatories for taking out a commission, Quinley 
 V. Atkins, 9 Gray, 370; to a notice to an Indorser, Eagle Bank v. Chapin, 
 3 Pick. 180; notices of action and of demands, Jory v. Orchard, 2 Bos. & P. 
 39; notices of dishonor provided the action be brought upon the bill, but 
 not otherwise, Swain v. Lewis, 2 Comp., M. & R. 261; Kine v. Beaumont, 
 3 Brod. & B. 288; notice of request to repair fences, Willoughby v. Carle- 
 ton, 9 Johns. 136; notices generally served In the progress of a cause, 
 M'Fadden v. Kingsbury, 11 Wend. 667; notice of assessment, Williams v. 
 Ins. Co., 68 111. 387; Waterman v. Davis, 66 Vt. 83, 28 Atl. 604; notice of 
 injury allowed by statute, McLenon v. Railway Co., 69 Iowa, 320, 28 N. W. 
 619; notice of sale, McMillan v. Bonley, 112 N. C. 578, 16 S. B. 845. 
 
 TO Eisenhart v. Slaymaker, 14 Serg. & R. (Pa.) 153. 
 
 Ti Grove v. Ware, 2 Stark. 174; Langdon v. Hulls, 5 Esp. 156; Shaw v. 
 Markham, Peake, 165; Lanauze t. Palmer, Moody & M. 31; 4 Phil. Ev. p. 
 432, note 239. 
 
 '2M'Fadden v. Kingsbury, 11 Wend. 667; Faribault v. Eiy, 2 Dev. 
 <N. C.) 67; Crawford v. Hodge, 81 Ga. 728, 8 S. B. 208. 
 
 TsRex v. Haworth, 4 Car. & P. 254; Foster v. Pointer, 9 Car & P. 718; 
 How V. Hall, 14 East. 276; McCreary v. Hood, 5 Blackf. (Ind.) 316; Mc- 
 lulay V. Earnhart, 1 Jones (N. C.) 502; Safe Deposit & T. Co. v. Turner, 
 98 Md. 22, 55 Atl. 1023; Barmby v. Plummer, 29 Neb. 64, 45 N. W. 277. 
 
 T* Foster v. Pointer, 9 Car. & P. 718; How >. Hall, 14 East, 276; Bickley 
 T. Bickley, 136 Ala. 548, 34 So. 946; Pecos Valley Bank v. Evans-Snider 
 
§ 225. BEST EVIDENCE. 281 
 
 it, nor if he has admitted that he has destroyed it {"^ nor does the 
 rule apply where the writing is a mere memorandum of figures or 
 calculation of amounts.'" But if it is sought to give secondary evi- 
 dence of a document which has been traced to the adverse party 
 on the ground that it has been destroyed, the usual notice should 
 be given to meet the contingency that the destruction may be 
 disputed.'' Of course there may be a waiver of the notice by ex- 
 press or modified agreements.'* 
 
 § 225 (226). Duplicates — Recorded Deeds. — Since duplicates 
 are primary evidence, it is clear that one may be offered in evi- 
 dence without notice to produce the other.'* "Where a paper was 
 made in duplicate and one of the originals is shown to be lost and 
 the other in the rightful possession of a person on trial for an 
 offense, sufficient foundation is laid for secondary evidence, as 
 there is no power in the court to compel the accused to produce the 
 paper as evidence against himself.^" Since each duplicate is treated 
 as an original, copies cannot be received until the non-production 
 of both duplicates is accounted for.*' In this country under its 
 registration system statutes very generally permit proof of a large 
 class of recorded documents by means of certified copies or other 
 substituted proof.'^ "When the production of the original is thus 
 dispensed with it has been held that there need be no notice to 
 produce.*' Letter press copies and similar reproductions are not 
 duplicates or originals, and cannot be received without the pre- 
 liminary proof.** 
 
 Buel Co., 107 Fed. 654; Continental Ins. Co. v. Chew (Ind. App.), 38 N. B. 
 417; Dunbar v. United States, 156 U. S. 185. 
 
 " Dwinnell v. Larrabee, 38 Me. 464 ; Baldwin v. Threlkeld, 8 Ind. App. 
 312. 
 
 78 WeaTer v. Crocker, 49 111. 461; Fuller v. Hoyt, 14 Tex. 49. 
 
 77 Doe ex dem. Phillips v. Morris, 3 Adol. & Ell. 46. 
 
 TsDurnigh v. Moschins, 93 Ind. 495; Dwinell v. Larrabee, 38 Mo. 464. 
 
 'oTotten v. Bucy, 57 Md. 446; Waterman v. Davis, 66 Vt. 83. 
 
 so State V. Gurnee, 14 Kan. 111. 
 
 81 Cincinnati N. 0. & T. R. R. Co. v. Desbrow, 76 Ga. 253; Porgnard v. 
 Smith, 8 Pick. 272; Abel v. Levy (Tex. Civ. App.), 61 S. W. 937. 
 
 82 Cunningham v. Cunningham, 75 Conn. 64, 52 Atl. 318; Glos v. Cary, 
 194 111. 214, 62 N. B. 555; Neosho V. F. Co. v. Hannum, 63 Kan. 621, 66 
 Pac. 631; Egan v. Horrlgan, 96 Me. 46, 51 Atl. 246; Samuel v. Borrowscale, 
 104 Mass. 207; Chase v. Caryl, 57 N. J. L. 545, 31 Atl. 1024; Jackson v. 
 Rice, 3 "Wend. 180; Rattiff v. Rattlff, 131 N. C. 425, 42 S. E. 887. See 
 also, 2 Wigmore, Bv. pp. 1459-1471. 
 
 83 Winter y. Laird, 27 Tex. 616. 
 
 »*Ford V. Cunningham, 87 Cal. 209, 25 Pac. 403; SsiViurt ', Ragsdale. 
 
282 THE LAW OF EVIDENCE. § 22€. 
 
 § 226 (227). Effect of the production of papers upon notice. — 
 
 Wlien a paper is produced by the adverse party on notice it does 
 not thereby iecome evidence, for it may not be material or com- 
 petent, and does not become evidence unless, from its character, 
 it is entitled to be so treated.'" Moreover, the party who has called 
 for the document may waive offering it as evidence." But he can 
 not so waive the introduction of the writing and give secondary 
 evidence of its contents.*^ As a general rule the document must 
 be proved like any other instrument. But if a party to a suit 
 in pursuance of a notice produces an instrument to which he is 
 party and under which he claims a beneficial estate, it is not' nec- 
 essary for the other party to call any attesting witness. In such 
 cases the custody of the paper affords high presumptive evidence 
 that it is held as a muniment of title and is prima facie sufficient 
 proof of execution.*' There is a rule relating to the inspection of 
 documents produced on notice which has been stated in numerous 
 cases to the effect that though the party calling for the document 
 may waive it, yet when he inspects the document produced 
 pursuant to the notice and becomes acquainted with its contents, 
 the instrument becomes evidence for both parties; and the party 
 who produces the paper has the right to insist on its being read. 
 It is urged that any other rule would give one party an unfair 
 advantage over the other. He would have the privilege of look- 
 ■ng into the private documents of the other party without any 
 corresponding obligation or risk.'^ This rule has been vigorously 
 
 103 Ky. 206, 44 S. W. 653; Heilman v. Milling Co. (Ky.), 53 S. W. 655; 
 Smith V. Brown, 151 Mass. 338, 24 N. E. 31; Traber v. Hicks, 131 Mo. 180, 
 32 S. W. 1145; Westinghouse Co. v. Tilden, 56 Neb. 129, 76 N. "W. 416; 
 Foot V. Bentley, 44 N. Y. 166, 4 Am. Rep. 652. 
 
 S6 Penobscot Boom Cor. v. Lamson, 16 Me. 224, 33 Am. Dec. 656; Austin 
 V. Thompson, 45 N. H. 113; Hylton v. Brown, 1 Wash. C. C. 343. 
 
 88 Blight V. Ashley, Peters C. C. 15; Kenny v. Clarkson, 1 Johns. 385; 
 Morrison v. Whiteside, 17 Md. 452, 79 Dec. 661. 
 
 87 Stitt V. Huidekopers, 17 Wall. 384. See also, Gllmore v. Whltcher. 
 6 Allen, 113. 
 
 88 Herring v. Rogers, 30 Ga. 615; Betts v. Badger, 12 Johns. 223, 7 Am. 
 Dec. 309; Jackson v. Kingsley, 17 Johns. 158. 
 
 80 Calvert v. Flower, 7 Car. & P. 386; Clark v. Fletcher, 1 Allen, 53; 
 Reed v. Anderaon, 12 Cush. 481; Com. v. Davidson, 1 Cush. 33, 45; Long 
 V. Drew, 114 Mass. 77; Sanders v. Duval, 1 Bxch. 467; Randal v. Canal 
 Co., 1 Har. (Del.) 233; Blake v. Russ, 33 Me. 360; Penobscot Boom Cor. 
 V Lamson, 16 Me. 224, 33 Am. Dec. 656; Anderson v. Root, 16 Miss. 362; 
 Withers v. Glllespy, 7 Serg. & R. (Pa.) 10; Wooten v. Nale, 18 Ga. 609; 
 liorriaon v. Whitefside, 17 Md. 452, 79 Am. Dec. 661. 
 
I 227. BEST EVIDENCE. 283 
 
 attacked in a New Hampshire ease which comments at some length 
 upon the English cases claiming that they do not, when scruti- 
 nized, support the rule; and that the dicia of the English cases 
 have been followed in the United States without careful consid- 
 eration. The same rule is accepted by the courts of several 
 of the states."" It is urged by this line of authorities that the no- 
 tice to produce a paper and calling for its inspection ought to be 
 considered as analogous to a bill of discovery, where the ansiver 
 is not evidence except for the adverse party. It is further urged 
 with much force that a party who has in his possession book* or 
 papers which may be material to the ease of his opponent has no 
 moral right to conceal them; and that the party calling for the 
 inspection of books and papers would be subjected to undue hazard 
 if an inspection merely would make them evidence in the case, 
 and further that such a rule would tend to the suppression rather 
 than the discovery of the truth. 
 
 § 227 (228). Proof of the contents of lost documents.— The rule 
 has been declared that the proof of the contents of a lost docu- 
 ment should be such as to leave no reasonable doubt as to the 
 substantial parts of the paper."^ There seems, however, no legiti- 
 mate reason for insisting upon the extreme strictness implied by 
 such a rule. There are cogent reasons for requiring that lost doc- 
 ments should be proved clearly and in a satisfactory manner, 
 when secondary evidence is resorted to, but in the opinion of the 
 author this is- all that should be required. The weight of authority 
 seems to be that when secondary evidence is admissible to prove 
 the contents of documents, the fact to be established should be 
 proved by a fair preponderance of evidence, and with reasonable 
 certainty. It is not to be expected that witnesses can recite 
 the contents of written instruments word for word. It is enough, if 
 intelligent witnesses have read the paper and can state substan- 
 tially its contents and import with reasonable accuracy.'^ The 
 court of appeals of New York used this language in respect to a 
 lost deed: "The evidence in such cases, however, should show 
 
 80 Austin V. Thompson, 45 N. H. 113; Witliers v. Gillespy, 7 Serg. & 
 R. (Pa.) 10; Smith v. Rentz, 131 N. Y. 169; Kenny v. Clarkson, 1 Johns. 
 385; Sager v. Kitchen, 1 Esp. 209. 
 
 siRenner v. Bank of Columbia, 9 Wheat. 581; Bennett v. Walker, 23 
 111. 97. 
 
 92 Camden v. Belgrade, 78 Me. 204; Laster v. Blackwell, 128 Ala. 143, 
 30 So. 663; Posten v. Rassette, 5 Cal. 467; Clark v. Houghton, 12 Gray, 38; 
 Hulls V. Kimball, 52 111. 391; Rhode v. McLean, 101 HI. 407; Parks v. 
 CJandle, 58 Tex. 216. 
 
284 THE LAW OF EVIDENCE. § 228. 
 
 that the deed was properly executed with the formalities reqaired 
 by law and should show all the contents of the deed, not literally, 
 but substantially. If anything less than these requirements would 
 suffice, evil practices which it was the object of the statute of 
 frauds to prevent would be encouraged."' Hence the testimony of 
 one who has heard a deed read some years before and who can 
 give only a small portion of its contents is insufficient.'* So when 
 a witness had only a hasty glance at a letter and heard only a 
 part of its contents read, it was held that he was not a competent 
 witness to testify to the contents."" The substance of the document 
 should be proved satisfactorily. The witness should speak from 
 recollection of the writing and not give his impressions drawn from 
 conversations and negotiations preliminary to the contract."' But 
 it is not a valid objection to the testimony of one who knows 
 the contents of a letter that the one who wrote the letter is not 
 produced as a witness."' 
 
 § 228 (229). Degrees of secondary evidence. — The rule has be- 
 come well settled in England that when documents are lost or when 
 they are under the control of the adverse party and are not pro- 
 duced after due notice, parol evidence may be given of their eon- 
 tents, even though there may be a copy or an abstract of the same 
 which might be produced, in other words, it is there held that there 
 are no degrees of secondary evidence."^ But in most of the states 
 in this country, where the question has arisen, this rule has been 
 rejected. In those states it has been considered more consistent with 
 the general rule requiring the best evidence that a party should 
 not be allowed to give parol evidence of a document, if it is prac- 
 ticable to obtain a correct copy and this fact appears in evidence. 
 This is generally called the American rule as distinguished from 
 that which has come to prevail in England on this subject. This 
 view may be said to have been adopted by the supreme court of the 
 United States,** as well as by those of Alabama,^ Georgia,^ IIU- 
 
 »3 Edwards v. Noyes, 65 N. Y. 125. 
 
 »4 Edwards v. Noyes, 65 N. Y. 125; Appeal of Richards, 122 Pa. St. 547. 
 
 M Coxe V. England, 65 Pa. St. 212. 
 
 »« Richardson v. Robblns, 124 Mass. 105; Tayloe v. Riggs, 1 Peters, 591. 
 
 »7 Liebanan v. Pooley, 1 Stark. 1G7. 
 
 98 Doe V. Ross, 7 M. & W. 102, 106; Hall v. Ball, 3 Man. & G. 242; Broom 
 V. Woodman, 6 Car. & P. 205, 25 E. C. L. 396. 
 
 »»Cornett v. Williams, 20 Wall. 226; Renner v. Bank of Columbia, 9 
 Wheat. 581. 597. 
 
 1 Harvey v. Thorpe, 28 Ala. 250, 65 Am. Dec. 344. 
 
 » Williams V. Waters, 36 Ga. 454. 
 
§ 229. BEST EVIDENCE. 285 
 
 nois,* Maine,* Missouri," Pennsylvania," Arkansas,^ Wisconsin,* 
 Iowa,' and New York.^* While the English rule prevails in Mas- 
 sachusetts,^^ Indiana,^^ Michigan,^' and Nebraska.^* Although the 
 so-called American rule seems likely to prevail in this country, it 
 is by no means a settled question. There has been but very little 
 discussion of the subject; and in several of the decisions, most 
 frequently cited in its support, the subject was either not discussed 
 or the decision on this point was obiter dictum. As illustrations 
 of the view that there are no degrees of secondary evidence, it has 
 been held that a party may give parol evidence of a lost deed or 
 letter, though it be shown that he has a copy in his possession;^' 
 that after notice to the adversary to produce the original letter. 
 a copy sworn to be correctly made from a press copy of a letter 
 is admissible to prove the contents without producing the press 
 copy," and that if the testimony of a deceased witness is to be 
 proved, any person who heard the testimony may be called, al- 
 though the testimony was accurately taken down by a steno- 
 grapher.*^ 
 
 § 229 (230). .Same — Cases illustrating the American rule. — 
 The following cases among others illustrate the so-called American 
 rule: Where it was proved that a copy of a note could be pro- 
 duced, parol evidence was held improper.** The same rule was held 
 
 » Illinois Land Co. v. Bonner, 75 111. 315. 
 
 * Nason v. Jordan, 62 Me. 480. 
 
 « Martin v. Brand (Mo.), 81 S. W. 443. 
 
 « Stevenson v. Hoy, 43 Pa. St. 191. 
 
 1 Davies v. Petitt, 11 Ark. 349. 
 
 « Johnson v. Ashland Lumber Co., 52 Wis. 458. 
 
 » Higgins V. Reed, 8 Iowa, 298, 74 Am. Dec. 305. 
 
 10 Blade v. Noland, 12 Wend. 173, 27 Am. Dec. 126; New York Co. ▼. 
 Richmond, 6 Bosw. (N. Y.) 213. 
 
 "Goodrich v. Weston, 102 Mass. 362, 3 Am. Rep. 469; Com. v. Smith 
 151 Mass. 491, 24 N. B. 677. 
 
 12 Carpenter v. Dame, 10 Ind. 125. 
 
 "Eslow V. Mitchell, 26 Mich. 500; People v. Christian, 144 Mich. 247. 
 107 N. W. 919. 
 
 14 Rawlings v. Y. M. C. A., 48 Neb. 216, 66 N. W. 1124. 
 
 "Brown v. Woodman, 6 Car. & P. 206; Doe v. Ross, 7 M. & W. 102; 
 Hall V. Ball, 3 Man. & G. 242; People v. Christian, 144 Mich. 247, 107 N, 
 W. 919. 
 
 i» Goodrich v. Weston, 102 Mass. 362, 3 Am. Rep. 469. 
 
 17 Jeans v. Wheedon, 2 Moody & Rob. 486; Rex v. Christopher, 4 Cox, 76. 
 See also. State v. McDonald, 65 Me. 466. 
 
 "United States v. Britton, 2 Mason (U. S.) 464. 
 
286 THE liAW OF EVIDENCE. § 230 
 
 to apply in the case of a lost will, there heing a certified copy," 
 as well as to lost deeds and records.^" In another case it was held 
 that after the destruction of a record of conviction, oral proof 
 of the contents was improper as the law required a transcript of 
 such convictions to be filed in the court of exchequer which 
 transcript, properly authenticated, the law made good evidence of 
 the conviction.^"^ So it was held that an extract from a lost letter 
 cannot be given in evidence without calling for the writer to pro- 
 duce his letter book;^^ that the plaintiff could not prove by parol 
 the contents of a letter when it appeared that he had in his pos- 
 session a fae-simile of the original,^^ and that a copy of a certified 
 copy of a lost original is not admissible to prove the contents 
 of the original.^* But even under the American rule it has been 
 held that when the nature of the case does not itself disclose the 
 existence of such better evidence the objector must prove its .exist- 
 ence."' 
 
 § 230 (231). Same — Parol evidence not allowed when the law 
 requires copies — Original always admissible. — ^It is not claimed 
 by the advocates of either rule that all classes of secondary evi- 
 dence are equally satisfactory. For example, it is not contended 
 that the recollection of one who has read a document is as likely 
 to be correct as a carefully made copy of it. Those who assert 
 that there are no degrees of secondary evidence admit that the jury 
 may draw an unfavorable inference against a party who should 
 give parol evidence of the contents of a document, if he has a 
 correct copy under his control. But they contend that such evi- 
 dence would be legally competent and that any other theory de- 
 stroys all the distinctions between the weight and the admissibility 
 of evidence. Even though the rule that there are no degrees of sec- 
 ondary evidence should prevail, it is not claimed that it applies in 
 those cases where the law has expressly substituted certain kinds 
 of copies for primary evidence. For example, certified or exam- 
 
 10 Illinois Land Co. v. Bonner, 75 111. 315. 
 
 20Marimer v. Saunders, 10 111. 113; Lowry v. Cady, 4 Vt. 504, 24 Am. 
 Dec. 628; Cornett v. Williams, 20 Wall. 226; Hilts v. Colvin, 14 Johns. 
 182; Piatt v. Haner, 27 Micli. 167; Ellis v. Huff, 29 111. 449; Harvey T 
 Thorpe, 28 Ala. 250, 65 Am. Dec. 344. 
 
 21 Hilts V. Colvin, 14 Johns. 182. 
 
 22 Dennis v. Barber, 6 Serg. & R. (Pa.) 420. 
 
 23 Stevenson v. Hoy, 43 Pa. St. 191. 
 2* Dyer v. Hudson, 65 Cal. 372. 
 
 25 Minneapolis Times Co. v. Nimocks, 53 Minn. 381. 
 
j 231. BEST EVIDENCE. 28? 
 
 ■x>eA copies of puhlio records should be offered, if obtainable, rather 
 than parol evidence ; "' and in such case parol evidence will 
 not be received, unless it is shown that no copy can be obtained.^' 
 Of course it must not be inferred that any of the rules laid down 
 in this chapter exclude originals since they if relevant are always 
 admissible. It would be absurd to reject originals simply because 
 copies may be made competent by statutes or otherwise.^* 
 
 § 231 (232). Cross-examination of witnesses as to writings. — It 
 was long a mooted question in England whether the ancient rule, 
 that written instruments, if in existence, should be proved by 
 the instruments themselves, should be so relaxed as to allow wit- 
 nesses on cross-examination to be asked their contents. It is be- 
 yond the scope of this work to state fully the conclusions on 
 this subject which were announced in the celebrated case known 
 as Queen Caroline's case. The judges, in answer to questions 
 propounded to them by the House of Lords, stated as their 
 conclusions that, in their judgment, a party on cross-examination 
 could not represent in the statement of a question the contents of 
 a letter and ask the witness whether he wrote such letter, without 
 having first shown it to the witness and having received an affirma- 
 tive answer to the question whether the witness had written the 
 letter. They further held that when a writing is produced and a 
 witness is shown a part of the same, he may be asked whether he 
 wrote such part shown him. But that if he should not admit that 
 he did or did not write such part, he could not be examined as to 
 the contents of the writing. And thirdly it was held that when 
 a letter is produced and the witness admits that he wrote it, he 
 can not be asked whether or not such and such statements are con- 
 tained therein. And that, if the letter is read in evidence, it should 
 be offered by the cross-examining counsel as part of his evidence 
 after the opening of his case, unless he suggests to the court that 
 he desires to have it read at once as a basis for cross-examination. 
 And finally it was held that, if a witness is asked on cross-examina- 
 
 26 Tayl. Ev. (10th Ed.) § 552 and cases cited. 
 
 2' Tayl. Ev. (10th Ed.) § 552; Doe v. Ross, 7 M. & W. 106; MacDougal v. 
 Young, Ryan & M. 392; Culver v. Uthe, 133 U. S. 655; Robertson v. 
 DuBolse, 76 Tex. 1; Redd v. State, 65 Ark. 475, 47 S. W. 119; MarUn v. 
 Brand (Mo.), 81 S. W. 443; Sexsmith v. Jones, 13 Wis. 631. 
 
 28 McAllister v. People, 28 Colo. 150, 63 Pac. 308; Perrell v. State 
 (Fla.), 34 So. 220; Sawyer v. Garcelon, 63 Me. 25; Bradley F. Co. v. 
 White, 121 Fed. 779; Smith v. Veysey, 30 Wash. 18, 70 Pao. 94; Weisbrod 
 T. R. Co.. 21 Wis. 602. 
 
288 THE LAW OF BVIDEKCB. § 231, 
 
 tion whether he has made representations of a particular nature 
 without specifying whether the question refers to representations 
 in writing or in words, the question should be divided into parts 
 and the counsel be directed to ask whether the representation 
 had been made in writing or in words; and if it appeared to be 
 in writing the testimony would be inadmissible.^^ It will be ob- 
 served that these answers adhered to the old rule that the contents 
 of written instruments should be proved by the instruments them- 
 selves. Although this rule has been so changed by statute in 
 England that a witness may be now cross-examined as to previous 
 written statements made to him without showing him the writing, 
 it is still the rule in this country that the writing should be first 
 produced and shown the witness so that he may have an oppor- 
 tunity for inspection and examination.'" 
 
 2i> Queen's Case, 2 Brod. & B. 284, 292. See full discussion of objection* 
 to the rule, 1 Wigmore, Ev. § 259 et seq. 
 80 See § 847, infra, and the authorities there cited. 
 
CHAPTER 8. 
 SUBSTANCE OP ISSUE. 
 
 § 232. Common-la-w rules as to substance of issue. 
 
 233. The modern rules as to substance of the issue — ^Amendments. 
 
 234. Same, continued. 
 
 § 232 (233). Commoii law rules as to substance of the issue. — ^It 
 was one of tte established rules of the common law that only the 
 substance of the issue need be proved. This rule gave rise to 
 constant discussion, and courts differed widely upon the subject. 
 It was often a question of the greatest importance, becaxise a vari- 
 ance, — that is a disagreement between the allegation and the 
 proof in some matter which in point of law is essential "to the 
 charge or claim,^ — ^was as fatal to the case of the party who 
 had the burden of proof as was a total failure of evidence, 
 for the jury was bound to render a verdict against him in case 
 of such a variance.^ As the plaintiff had the privilege of setting 
 forth his claim in such terms as he chose when he framed his com- 
 plaint, the courts often gave this rule a very technical construction 
 and forced him to prove his case exactly as he had set it forth 
 in the complaint. The courts were favorably inclined to this tech- 
 nical rule because of the fact that the object of the pleadings was 
 to inform the court and the parties of the real issue and to so 
 perfect the record that at any future time the exact point de- 
 cided could be found. But the rule was so far relaxed that the 
 agreement between the allegations and the proofs was required 
 only in those particulars legally essential to support the charge 
 or claim. Nor did the court require proof of all that was alleged 
 in the pleadings. If any of the allegations could be stricken out 
 without destroying the plaintiff's right of action, they were treated 
 as mere surplusage; and no proof of them was required. Utile 
 non delet per inutile vitiari? But the courts adhered with ex- 
 
 1 Greenl. Ev. § 63. 
 
 2Steph. PI. (Tyler's Ed.) p. 118; Tayl. Ev. (lOth Ed.) § 218. 
 s Gibbs V. Cannon, 9 Serg. & R. (Pa.) 198; Panton v. Holland, 17 Johns. 
 92; Twiss v. Baldwin, 9 Conn. 291; Livingstone v. Swanwick, 2 Dall. 300. 
 19 
 
290 THE LAW OF EVIDENCE. § 232. 
 
 treme technically to the rule that all allegations that could not be 
 stricken out without removing feets essential to the cause of action 
 must be strictly proved as alleged. To prove a certain parish 
 to be St. Ethelhurga which was alleged as St. Ethelhurg in the 
 pleadings,* or to prove a prosecution before Baron "Waterpark of 
 WaterparJc, when it was alleged as before Baron Waterpa'rk of 
 Waterforh ° were both held to be fatal variances under the old 
 common law rule. So it was held a fatal variance to allege that 
 one partner was the owner of partnership goods that had been 
 stolen, and the accused was acquitted on this ground." Prob- 
 ably the greatest injustice arising from this technical ride of 
 the common law was in the case of writings where a mere literal 
 variance in setting forth the essential parts in the pleadings 
 was fatal to the action, for the court had no power of recon- 
 ciling the record with the evidence.'' Although the instances here 
 given to illustrate the strictness of the old rule were for the 
 
 4 Wilson V. Gilbert, 2 Bos. & P. 281. 
 
 6 Walters v. Mace, 2 Barn. & Aid. 756. 
 
 6 Com. V. Trimmer, 1 Mass. 476. It is a fatal variance to allege a Joint 
 liability against four when only one Is liable, Hibberd v. Hubbard, 211 
 Pa. 331, 60 Atl. 911; to allege the ownership of a house in a feme covert, 
 State V. Martin, 3 Murph. (N. C.) )523; or an absolute contract where the 
 proof showed it to be in the alternative, Penny v. Porter, 2 Bast, 2; or 
 to describe a woman as a "widow", when it was proved that she had 
 never been married, Rex v. Deeley, 1 Moody Cr. C. 303; or as "Ann Good- 
 ing", when her full name was "Sarah Ann Gooding," Reg. v. Gooding, Car. 
 & M. 297; or to describe a wood as "The old Walk", its real name being 
 "The Long Walk," Rex v. Owen, 1 Moody Cr. C. 181; or to describe a 
 "heifer" as a "cow," Cook's Case, 1 Leach Cr. C. 105; or a "lamb" as a 
 "sheep," Rex v. Loom, 1 Moody Cr. C. 160, or as a "ewe," Rex v. Puddlfoot, 
 
 1 Moody Cr. C. 247; so the presence of one letter "s" too many at the 
 end of a word created a doubt as to whether this ought not to be con- 
 sidered a fatal variance, Jones v. Mars, 2 Camp. 305. So if the plead- 
 ings described matters connected with the cause of action with unneces- 
 sary particularity, the plaintiff was obliged to prove each detail if it 
 could be considered essential to the cause of action, Bristow v. Wright, 
 
 2 Dougl. 665, 1 Smith, Lead. Cas. 1417; State v. Jackson, 30 Me. 29. 
 'Bristow V. Wright, 2 Dougl. 665; 1 Smith, Lead. Cas. 1417; Sauls v. 
 
 Ledger, 2 Ld. Raym. 792; State v. Caffey, 2 Murph. (N. C.) 321; Sheehy 
 V. Mandeville, 7 Cranch 208, 217; Com. v. Stow, 1 Mass. 54; Saxton v. 
 Johnson, 10 Johns. 418. Even such a trivial mistake as using the word 
 "nor" for "not" has been held a fatal variance, Drake's Case, 2 Salk. 660. 
 In Olin V. Chipman, 2 Tyler (Vt.) 148, it was held a fatal variance to 
 use the word "our" in place of the word "the." Browning v. Berry, 107 
 N. C. 231, 12 S. E. 195; Yock v. Fortenbury, 15 Colo. 129, 25 Pac. 163. 
 
§ 233. SUBSTANCE OF ISSUE, 291 
 
 most part criminal cases, it is hardly necessary to cite authority 
 to the familiar rule of the common law that in both civil and 
 criminal cases every material and essential allegation in the charge 
 or the defense and every circumstance descriptive of anything so 
 alleged, if disputed, had to be proved in substance as averred.' 
 § 233 (234). The modern rules as to substance of the issue — 
 Amendments. — Any extended discussion of the old rule is not 
 within the scope of this work, nor is it of any very great import- 
 ance, since this old common law rule has been rendered obsolete 
 in most jurisdictions by statutes making it possible to amend the 
 pleadings. The statutes by allowing the correction of slight and 
 non-essential mistakes in pleadings, — of variances between the 
 pleadings and the proof, — prevent the injustice that came from the 
 technical enforcement of the old rule. Often the party would be 
 nonsuited or the real point at issue would not be determined and 
 the parties would be excluded from all further remedy because of 
 the technical enforcement of the rule. A series of acts have been 
 passed in England abrogating the old rales in both civil and crim- 
 inal cases. Similar statutes have been adopted throughout this 
 country.* These statutes make radical changes, modifying the 
 rules which so long prevailed. They not only allow amendments 
 before, but also after, final judgment, when justice seems to de- 
 mand. These statutes in most of the states contain similar provis- 
 ions, but the practitioner must refer to the law of his own jurisdic- 
 tion in order to settle details. In general they provide that in both 
 civil and criminal cases the court may, either before or after judg- 
 ment, in furtherance of justice and on such terms as may be jiist, 
 amend any process, pleading or other proceeding by conforming the 
 pleadings or other proceedings to the facts proved. This may be 
 done by any amendment that does not substantially change the 
 claim or defense and thus prejudice the rights of the adverse party. 
 It is usually provided that no process shall be quashed for any de- 
 fect or want of form, if this defect can be remedied by an amend- 
 ment; and the statutes usually direct the court to disregard 
 such errors or defects in the pleadings or other proceedings as do 
 
 sGreenl. Ev. § 66^ 
 
 9 A concise historical discussion of the changes in the law relating to 
 variance and a review of the authorities will be found in 1 Smith, L. C. 
 1420. See also note to, Stevenson v. Mudgett, 10 N. H. 338, 34 Am. Dec. 
 158. An exhaustive discussion of the subject of amendments will be 
 found in 1 Bncy. PI. & Prac. 458-701. 
 
292 THE LAW OP EVIDENCK § 233. 
 
 not affect the rights of the adverse party.'" Many of the statutes 
 allow each pleading to be amended once as a matter of course with- 
 out special application to the courts. A judgment will not be re- 
 versed for a defect in the pleading, when the record shows that 
 there has been a full trial of the case; that substantial justice has 
 been done, and that neither party has been prejudiced by the de- 
 fect.*' With scarcely a single dissent the authorities hold that 
 these statutes should be liberally construed by the courts to further 
 the ends of substantial justice.'" Notwithstanding the similarity 
 of the provisions of the codes relating to amendments to pleadings, 
 there is a wide difference in the rule established by the courts of 
 the different states as to amendments which alter or vary the cause 
 of action. The authorities in a majority of the code states hold 
 that courts do not have the power to change the form or vary 
 the nature of an action by an amendment substituting a wholly new 
 and distinct cause of action, not connected with that embraced in 
 the original pleading." They hold, for example, that a cause of 
 action cannot be changed from one at law to one in equity or vice 
 versa,^* nor can the cause of action be changed from tort to contract, 
 nor from contract to tort.^" These rules have reference to the 
 
 10 See the statutes of the jurisdiction. 
 
 11 Doniphan v. Street, 17 Iowa, 317. 
 
 12 Saint V. Guerrerio, 17 Colo. 448, 31 Am. St. Rep. 320; Reeder v. Sayre, 
 70 N. Y. 180; Tieman v. Woodruff, 5 McLean, 135; Hayden v. Hayden, 46 
 Cal. 332; Reyburn v. Mitchell, 106 Mo. 365; Burns v. Scooffy, 98 Cal 271; 
 Miller v. Pollock, 99 Pa. St. 202; Brown v. Bosworth, 62 Wis. 542; Phelps 
 V. Enz, 19 Conn. 58; Baldock v. Atwood, 21 Ore. 73; Beecher v. Wayne 
 Circuit Judges, 70 Mich. 363; Drake v. Drake, 83 111. 526; Solon v. Perry> 
 54 Me. 493. 
 
 laRutledge V. Vanmeter, 8 Bush (Ky.) 354; People y. Circuit Judge, 
 
 13 Mich. 206; Wyman v. Kilgore, 47 Me. 184; Little v. Morgan, 31 N. H. 
 499; Williams v. Hollis, 19 Ga. 313; Sumner v. Brown, 34 Vt. 194; Ward v. 
 Patton, 75 Ala. 207; Tatham v. Ramey, 82 Pa. St. 130; Royse v. May, 93 
 Pa. St. 454; Shenandoah Ry. Co. v. Griffith, 76 Va. 913; Ogleshy v. Attrlll, 
 
 14 Fed. 214; Mahan v. Smitheman, 71 Ala. 563; Peck v. Sill, 3 Conn. 157; 
 State V. Morgan, 35 La. An. 1139; Snyder v. Harper, 24 W. Va. 206; Brodek 
 V. Hirschfleld, 57 Vt. 12; Supervisors v. Decker, 34 Wis. 378. See note, 
 34 Am. Dec. 160; Freeman v. Grand, 132 N. Y. 22, 30 N. B. 247; Norwich 
 V. Oregon, etc. Co., 41 Ore. 177, 69 Pac. 928. 
 
 "Shinners v. Brill, 38 Wis. 648; Carmichael v. Argard, 52 Wis. 607; 
 White V. Morse, 67 Ga. 89; Bockes v. Lansing, 74 N. Y. 437. But some 
 courts hold that this may be done if the identity of the subject matter of 
 the suit remains the same, Cook v. Chicago Ry. Co., 75 Iowa, 69; Duff 
 V. Snider, 54 Miss. 245. 
 
 "Neudecker v. Kohlburg, 81 N. Y. 296; Hackett v. Bank, 57 Cal. 335; 
 
§ 233. BUBSTANCB OF ISSUB. 293 
 
 the substance rather than to the form of the action, as the nice 
 distinctions between the mere forms of action existing at common 
 law have been abolished by the codes, and the facts showing the 
 cause of action are now all that are essential.^" The statutes of a few 
 of the states even permit certain amendments that change the form 
 of the action. From the multitude of decisions on the subject 
 the cases already cited will serve to indicate the line drawn by the 
 courts. As a general rule when it is within the power of- the court 
 to allow an amendment, leave to amend ought not to be refused 
 unless the court is satisfied that the party is acting in bad faith 
 or that the mistake has caused such injury to the other party 
 that the proposed amendment would operate unjustly, if allowed.^'' 
 Allegations as to names, time, value, quantity or place may be 
 corrected, changed, added to or stricken out so long as the cause of 
 action remains the same.^' So such changes can be made by amend- 
 ment as will prevent the failure of an action in such cases as those 
 where the action is quantum meruit and the proof shows an agreed 
 price, or vice versa.^" Most states allow the addition of a new de- 
 fense or a new cause of action, when this does not change the 
 nature of the action or defense.^" In general any amendment may 
 be made that in the discretion of the court seems just, provided 
 the whole nature and scope of the action is not changed. Equity 
 courts were much more liberal than those at common law in al- 
 
 Sumner v. Rogers, 90 Mo. 324; Barnes v. Quigley, 59 N. Y. 265; Degraw v. 
 Elmore, 50 N. Y. 1; People v. Dennison, 84 N. Y. 272; Lockwood v. Quack- 
 .enbush, 83 N. Y. 607; Rothe v. Rothe, 31 Wis. 570; Pierce v. Carey, 37 
 Wis. 232; Ramirez v. Murray, 5 Cal. 222; Lane v. Cameron, 38 Wis. 603; 
 Steed V. Mclntyre, 68 Ala. 407; Peck v. Still, 3 Conn. 157; Goss v. Boulder 
 County, 4 Colo. 468; Front v. Hardin, 56 Ind. 165. See Illustrations in note, 
 34 Am. Dec. 15. 
 
 18 Crother v. Acock, 43 Mo. App. 318, 323. ' 
 
 iTKirstein v. Madden, 38 Cal. 158; Bradley v. Parker (Cal.), 34 Pac. 
 234; Balch v. Smith, 4 Wash. St 497, 504; Blankhorn y. Penrose, 43 X,aw 
 T. 668. 
 
 18 State V. Smith, 12 Ark. 622; Mlllee v. Pollock, 99 Pa. St. 202; Bank 
 of Cooperstown v. Woods, 28 N. Y. 645; State Ins. Co. v. Schreck, 27 Neb. 
 527; Houston B. & W. T. Ry. Co. v. Blagge, 73 Tex. 24; Thalhelmer v. 
 Crow, 13 Colo. 397; People v. Toneilli, 81 Cal. 275; Wentworth v. Sawyer, 
 76 Me. 434; Diettrich v. WolfEsohn, 136 Mass. 335; Ward v. Stevenson, 15 
 Pa. St. 21; Elliot v. Clark, 18 N. H. 421; South Alabama Ry. Co. v. Small, 
 70 Ala. 499; Place v. Minster, 65 N. Y. 89. 
 
 18 Ludlow V. Dole, 62 N. Y. 617; Sussdorft v. Schmidt, 55 N. Y. 319. 
 
 20 See statutes of the jurisdiction. Brown v. Bosworth, 62 Wis. 542; 
 Jones v. Hitter, 56 Ala. 270; Stevens v. Matthewson, 45 Kan. 594. 
 
294 . THE LAW OP EVIDENCE. § 234. 
 
 lowing amendment. But the same rales now govern the amend- 
 ment of pleadings both in equity and in law."^ The discretion 
 of the judge in allowing or refusing these amendments will not 
 be reviewed by any other court, unless in case of manifest abuse 
 of this discretionary power. ^^ 
 
 § 234 (235). Same, continued. — These code provisions have not 
 changed the old common law rule that the cause of action or de- 
 fense proved must correspond with that averred in the pleadings. 
 The important difference between the old and the new rale, as these 
 statutes are interpreted by the courts of a majority of the states, 
 is that the codes have introduced a new rule for determining 
 what a variance is and what its consequences are.^' The plaintiff 
 cannot recover under the codes when the evidence establishes a 
 wholly different case from that alleged any more than he could 
 under the old common law.^* But a substantial, not a literal, agree- 
 ment is all that is required.^^ The courts in treating the discrep- 
 ancies between the allegations and the proof usually distinguish 
 three degrees of discrepancy under the codes, — ^namely, immaterial 
 variance, material variance and the failure of proof. These codes 
 usually provide that a variance shall be considered material when 
 it has actually misled the adverse party to his prejudice. If the 
 variance has not so misled the adverse party, it is to be deemed im- 
 material.^* The practical bearing of the distinction drawn between 
 
 21 Curtis V. Leavitt, 11 Paige (N. Y.) 386; Rodgers v. Atkinson, 14 Ga. 
 320; Larklns v. Biddle, 21 Ala. 252; Fenno v. Coulter, 14 Ark. 39. 
 
 22"Wixon V. Devine, 91 Cal. 477; Palmer v. Utah Ry. Co., 2 Idaho, SSQrt 
 Llndley v. Sullivan, 133 Ind. 588; Donnelly v. Pepper, 91 Ky. 363; Burke 
 V. Baldwin, 54 Minn. 514; Johnson v. Swayze, 35 Neb. 117; Brock v. Bate- 
 man, 25 Ohio St. 609; Garrison v. Goodale, 23 Ore. 307; Mellish v. Richard- 
 son, 9 Bing. 125; Jenkins v. Phillips, 9 Car. & P. 766; Merrlam v. Langdon, 
 10 Conn. 460; Chirac v. Reinecker, 11 Wheat. 278; Brown v. Bosworth, 62 
 Wis. 542. It, however, is reversible error to refuse to exercise this dis- 
 cretion on ground of want of power when the court really has the power, 
 Russell V. Conn, 20 N. Y. 81. 
 
 23 Carpenter v. HufCsteller, 87 N. C. 273 ; Neudecker v. Kohlberg, 81 N 
 Y. 296; Louisville & N. R. Co. v. Guyton (Pla.), 36 So. 84; Moss v. North 
 Carolina R. Co., 122 N. C. 889, 29 S. E. 410. 
 
 24 Fountain v. Fountain, 23 111. App. 529. See Pom. Rem. & Rem. R. 
 § 534, for illustrations of fatal disagreement. 
 
 25 Moore v. Lake Co., 58 N. H. 254. 
 
 soKopplekom v. Huffman, 12 Neb. 95; Crane v. Ring, 48 Kan. 61; Rob- 
 bins V. Diggings, 78 Iowa, 521; Chewacla Works v. Dismukes, 87 Ala. 345; 
 Brown v. Sullivan, 71 Tex. 470; Moore v. Douglas, 132 Cal. 399, 64 Pac. 
 706; Salt Lake City v. Smith, 104 Fed. 457; Robertson v. Moris (N. D.), 
 
§ 234. suBSTAjsrcE of issue. 295 
 
 material and immaterial variances is that in the case of a material 
 variance the codes usually provide that an amendment may be al- 
 lowed on such terms as the courts deem just, while if the variance is 
 immaterial the court may order an immediate amendment or, what 
 amounts to the same thing, disregard the variance and allow the 
 case to be decided upon the evidence.^^ Among the many vari- 
 ances that have been held immaterial are slight errors in the amount 
 or description of property ^^ or in dates that are not of the gist 
 of the action.^" The variance is immaterial where the pleading al- 
 leges an express agreement or warranty and the evidence shows 
 an implied one;'" or where a sale in writing is averred and the 
 proof shows a sale by parol,'^ or where there is some slight mistake 
 in the names of either party to a civil or criminal action.''' Ob- 
 jection must be made to the variance between the allegations and 
 the proof before final judgment, or the variance will be remedied 
 by the verdict." Where the proof fails to support the allegations, 
 not in some particulars only, but in their entire scope and mean- 
 ing, and if the divergence extends to such an important fact or 
 group of facts that the cause of action or defence as proved would 
 be another than that set up in the pleadings, it is not a variance but 
 
 108 N. W. 788; Woodford v. Kelley, 18 S. D. 615, 101 N. W. 1069; Lewis, 
 Cooper & HanCock v. Utah Construction Co., 10 Idaho, 214, 77 Pac. 336; 
 Toy V. McHugh, 62 Neb. 820, 87 N. "W. 1059. 
 
 27 Carpenter v. Huffstell^r, 87 N. C. 273; Duke v. Huntington, 130 Cal. 
 272, 62 Pac. 510; Coleman v. Playsted, 36 Barb. (N. Y.) 26; Pratt v. Hud- 
 son R. Ry. Co., 21 N. Y. 305; Lucas v. Smith, 42 Ind. 103; Griffith v. Rid- 
 path, 38 Wash. 540, 80 Pac. 820; Glffert v. West, 33 Wis. 617. 
 
 28 People V. Eatom, 41 Cal. 657; Bank of Cooperstown v. Woods, 28 N. 
 Y. 545. 
 
 29 United States v. LeBaron, 4 Wall. 642; Wilier v. Bergenthal, 50 Wis. 
 474. 
 
 M Smith V. Llppincott, 49 Barb. (N. Y.) 398; Giffert v. West, 33 Wis. 
 617; Farrell v. Palmer, 36 dal. 187. 
 SI Patterson v. Keystone Jliniag Co., 30 Cal. 360, 364. 
 
 82 Long V. Campbell, 37 W. Va. 668; Milk v. Christie, 1 Hill (N. Y.) 
 102; Bratton v. Seymour, 4 Watts (Pa.) 329; Thompson v. Lee, 21 111. 242; 
 McKay v. Speak, 8 Tex. 376; O'Brannan v. Saunders, 24 Gratt. (Va.) 
 138; Tucker v. People, 122 111. 583; Choen v. State, 52 Ind. 347; People v. 
 Ferris, 56 Cal. 442; Dabneys v. Knapp, 2 Gratt. (Va.) 359. 
 
 83 Coates V. Bank, 91 N. Y. 20, 31; Russell v. Loomls, 43 Wis. 545; O'Con- 
 nor V. Delaney, 53 Minn. 247; Tognlni v. Kyle, 17 Nev. 209; Home Ins. 
 Co. V. Bethel, 42 111. App. 475; The City of Lincoln, 19 Fed. 460; LIddell 
 V. Fisher, 48 Mo. App. 499. A general objection to evidence Is not suffi- 
 cient to raise the question of variance, Richards v. Bestor, 90 Ala. 352. 
 
296 THE LAW OF EVIDENCK. § 234. 
 
 a failure of proof which cannot be cured by amendment and the 
 action must be dismissed.'* 
 
 »*Pom. Rem. & Rem. R. § 554; Carpenter v. Huffsteller, 87 N. C. 273 
 Cincinnati Ry. Co. v. Bunnell, 61 Ind. 183; Johnson v. Moss, 45 Cal. 515 
 Volkenlng v. DeGraaf, 81 N. Y. 268; Pendleton v. Dalton, 96 N. C. 607 
 Faulkner v. Faulkner, 73 Mo. 327. It is fatal to allege tort and prove 
 contract, even If allowed by the court to so amend, as it is a failure of 
 proof, Hackett v. Bank, 57 Cal. 335; Rothe v. Rothe, 31 Wis. 570; Bank v. 
 Schultz, 2 Ohio, 471; DeGraw v. Elmore,-50 N. Y. 1. So it is fatal to al- 
 lege fraud and prove breach of warranty or of contract, Ross v. Mather, 
 51 N. Y. 108, 10 Am. Rep. 562; Watts v. McAllister, 33 Ind. 264; or to 
 allege a contract and prove a tort, Johannesson v. Borschenius, 35 Wis. 
 131; Ramirez v. Murray, 5 Cal. 222; Beard v. Yates, 2 Hun, 466. But a 
 failure of proof as to facts not essential to constitute a cause of action 
 will not defeat the plaintiff's action, Nolte v. Hill, 36 Ohio St. 186. 
 
CHAPTER 9. 
 ADMISSIONS. 
 
 S 235. Admissions — Confessions — Declarations by party In his own behalf 
 inadmissible. 
 
 236. Such statements are evidence for the adverse party — ^Why admis- 
 
 sions competent. 
 
 237. Admissions by real and nominal parties. 
 
 238. Admissions may be made by those not parties If Identified In Inter- 
 
 est. 
 
 239. Admissions by those In privity of interest — Grantor and grantee. 
 
 240. Same, continued. 
 
 241. Same — Limitations upon the rule. 
 
 242. Admissions of ancestor against heir. 
 
 243. Admissions — Landlord and tenant. 
 
 244. Admissions by former owners of personal property. 
 
 245. Same — Real and personal property. 
 
 246. Same — Strict rule in some jurisdictions. 
 
 247. Same — ^Declarations of former owners of choses in action. 
 
 248. Declarations of persons having a joint Interest— Partners. 
 
 249. Same — Statutes of limitation as affecting admissions of partners. 
 
 250. Admissions after dissolution of partnership. 
 
 251. Partnership to be proved before admissions are received. 
 
 252. Admissions by joint contractors, not partners. 
 
 253. Declarations by persons having a mere community of interest. 
 
 254. Declaration by wrong-doers — Conspiracy. 
 
 255. Declarations of agents. 
 
 256. Same — Effect of such declarations. 
 
 257. Admissions by attorneys. 
 
 258. Same — Casual statements — Informal admissions. 
 
 259. Same — Different actions or trials. 
 
 260. Admissions of husband and wife. 
 
 261. Same — Power to make admissions — ^How Inferred. 
 
 262. Same — In actions for divorce. 
 
 263. Admissions by persons referred to. 
 
 264. Effect of consenting to pay on condition affidavit 1b made. 
 
 265. Admissions by interpreters. 
 
 266. Declarations by persons acting In representative capacity. 
 
 267. Admissions by public corporations. 
 
 268. Admissions by private corporations. 
 
 269. Written admissions — Letters. 
 
 270. Other writings — Corporate records. 
 
 271. Same — Partnership books. 
 
298 THE LAW OF EVIDENCE. § 235. 
 
 272. Admissions In pleadings. 
 
 273. Same, continued. 
 
 274. Admissions in pleadings — When conclusive. 
 
 275. Estoppel by conduct. 
 
 276. Same — Corporations — Copartners — Husband and wife. 
 
 277. Same — ^Wtiere admissions are in good faith and by mistake. 
 
 278. Same — Erection of improvements — Boundary lines. 
 
 279. Same — The act must be calculated to mislead and actually mislead. 
 
 280. Who may claim benefit of estoppel. 
 
 281. Estoppel by deed. 
 
 282. Same — Title subsequently acquired — Mutuality and privity. 
 
 283. Qualifications as to mere general recitals — Other qualifications of 
 
 general rule. 
 
 284. As between landlord and tenant. 
 
 285. As between others holding subordinate title — Bailee, etc 
 
 286. Acceptance of bills of exchange. 
 
 287. Admissions implied from conduct. 
 
 288. Same — Repairing defective machinery or highways. 
 
 289. Admissions may be implied from silence. 
 
 290. Same— No admission from silence at judicial proceeding. 
 " 291. Offers of compromise. 
 
 292. Effect of paying money Into court. 
 
 293. The whole statement or admission to be received. 
 
 294. Same — Written admissions. 
 
 295. Weight of admissions. 
 
 296. Same, continued. 
 
 § 235.(236). Admissions — Confessions — ^Declarations of a party 
 in his own behalf inadmissible. — ^An admission is defined by Mr. 
 Stephen to be "a statement, oral or written, suggesting any in- 
 ference as to any fact in ispue or relevant or deemed to be relevant 
 to any such fact, made by or on behalf of any party to any 
 proceeding.'" "A confession is a person's declaration of his 
 agency or participation in a crime."* It has been uniformly 
 held indispensable to show that such confessions were freely and 
 voluntarily given, for without such proof confessions cannot be 
 received. But as the subject of confessions belongs more prop- 
 erly to the criminal law it is not treated in this work.* It would 
 be obviously unsafe if parties to litigation were without re- 
 striction allowed to support their claims by proving their own 
 
 1 Steph. Ev. Art. 15. An able review of the authorities on the subject 
 treated in this chapter will be found in 95 Am. Dec. 51-76. 
 
 2 People V. Parton, 49 Cal. 632, 637. 
 
 s A full review of the authorities will be found in notes, 6 Am. St. 
 Rep. 242-251: 41 Am. St. Rep. 522-524. 
 
§ 236. ADMISSIONS. 299 
 
 statements made out of court. Such a practice would be open 
 not only to all the objections which exist against the admission 
 of hearsay in general, but would also open the door to fraud 
 and to the fabrication of testimony. Of course when the statements 
 of a party become relevant on other grounds, as when they form 
 part of the act or contract to be proven or where they constitute 
 part of the res gestw, they are admissible whether favorable or un- 
 favorable to his interest. But it is a general rule of broad 
 application that the declarations of a party in his own favor are 
 not admissible in Ms behalf* 
 
 § 236 (237). Such statements are evidence for the adverse 
 party — Why admissions competent. — The objections which have 
 been pointed out in the last section do not hold against the recep- 
 tion of the statements of one party as evidence when such state- 
 ments are offered by his adversary. "Whatever a party volun- 
 tarily admits to be true, though the admission be contrary to 
 his interest, may reasonably be taken for the truth. The same 
 rule it will be seen applies to admissions by those who are so 
 indentified in situation and interest with a party that their dec- 
 
 4 Martin V. Williams, 18 Ala, 190; Hazen v. Henry, 6 Ark. 86; Rice v. 
 Cunningham, 29 Cal. 492; North Stonlngton v. Stonington, 31 Conn. 412; 
 Heard v. McKee, 26 Ga. 332; Scobey v. Armington, 5 Ind. 514; Murray v. 
 Cone, 26 Iowa, 276; Tipper v. Com., 1 Met. (Ky.) 6; Handley v. Call, 30 
 Me. 9; Hogan v. Hendry, 18 Md. 177; Carter v. Gregory, 8 Pick. 165; Hog- 
 sett V. Ellis, 17 Mich. 351; Moore v. Sanbourin, 42 Mo. 490; Judd v. Brent- 
 wood, 46 N. H. 430; State v. Jefferson, 6 Ired. (N. C.) 305; Graham v. 
 Hollinger, 46 Pa. St. 55; Barber v. Bennett, 62 Vt. 50; Cohn v. Helmbauch, 
 86 Wis. 176; Baker v. Kelly, 41 Miss. 696, 93 Am. Dec. 274 and note. De- 
 clarations of one accused of crime when such declarations form no part 
 of the act are incompetent, Oliver v. State, 17 Ala. 587; United States v. 
 Milburn, 2 Cranch C. C. 501; Golden v. State, 19 Ark. 590; Dukes v. 
 State, 11 Ind. 557, 71 Am. Dec. 370; Com. v. Cooper, 5 Allen, 495, 81 Am. 
 Dec. 762; State v. Hildreth, 9 Ired. (N. C.) 440, 51 Am. Dec. 369; so are 
 letters written by a party asserting facts favorable to himself, Freeborn 
 V. Smith, 2 Wall. 160; Towle v. Stevenson, 1 Johns. Cas. (N. Y.) Ill; 
 Champlin v. Tilly, 3 Day (Conn.) 303; letters written to the adverse party, 
 there being no proof of any answer or acquiescence. Fearing v. Kimball, 
 4 Allen, 125, 81 Am. Dec. 690; letter of plaintiff making claim for dam- 
 ages against a railway company for personal injuries, Howard v. Savan- 
 nah Ry. Co., 84 Ga. 711; so Is a report to a city by an expert as to the con- 
 dition of a plant. Manning v. School District, 124 Wis. 84. Death does not 
 render Incompetent conduct, admissions and declarations of a party in his 
 own interest competent. Ward v. Ward, 37 Mich. 253; Jilsum v. Stebbins, 
 41 Wis. 235; Pym v. Pym, 118 Wis, 662, 96 N, W. 429. 
 
300 THE L ' W OP EVIDENCE. § 236. 
 
 laration may be considered to have been made by himself. As to 
 such evidence the ordinary tests of truth are properly dispensed 
 with ; they are inapplicable. An oath is administered to a witness 
 in order to impose an additional obligation on his conscience and 
 so to add weight to his testimony, and he is cross-examined to 
 ascertain his means of knowledge, as well as his intention to 
 speak the truth. But where a man voluntarily admits a debt 
 or confesses a crime, there is little occasion for confirmation; 
 the ordinary motives of human conduct are sufSeient warrants for 
 belief. ' ' ° Although admissions have sometimes been treated as 
 competent evidence under the head of one of the exceptions to 
 hearsay evidence, yet they are open to but few of the objections 
 which may be urged against hearsay testimony. They are, it is 
 true, declarations made out of court and without the sanction 
 of an oath, yet they are statements, not of third persons, but of a 
 party to the litigation; and when offered against him it is only fair 
 to presume, until the contrary is shown, that they are correct. 
 But it does not necessarily follow that whatever a party may say, 
 though remotely connected with the litigation, may be offered as 
 an admission against him. The statement or act should be self- 
 disserving or of such a character that from it some inference 
 may be fairly drawn to the party's prejudice." If testimony is 
 of such a character as to constitute an admission of the party, 
 it is not necessary to lay a foundation for its reception by first ask- 
 ing the party if he has made such statements.'' Nor is it necessary 
 that the statement should at the tim,e of making it appear to be 
 against the interest of the party. The statement is admissible 
 if at the time of the trial it is inconsistent with the contention of 
 the party who made it.' "When a party to a civil action has made 
 admissions of facts material to the issue, they are as a rule admis- 
 sible against him. So far as affects their competency it is imma- 
 terial whether they are oral or written, or to whom they were 
 addressed, or when they were made.' 
 
 « Stark. Bv. (9th ed.) p. 52; German Nat. Bank v. Leonard, 40 Neb. 
 676; Southern Ins. Co. v. White, 58 Ark. 277; Potter v. Ogden, 136 N. Y. 
 384; Larrison v. Pa,yne, 52 Hun (N. Y.) 612; Riha v. Pelnar, 86 Wis. 408. 
 
 sDreich v. Nicolai, 16 Ore. 512; Gartner v. Beller, 54 Mich. 333; Flem- 
 ing V. City of Springfield, 154 Mass. 520; Kinney v. Folkerts, 78 Mich. 687. 
 
 'Planing Mill Co. v. Schuda, 72 Wis. 277; Brown v. Calumet River Ry. 
 Co., 125 111. 600. 
 
 estate v. Willis, 71 Conn. 293, 41 Atl. 820; State v. lAnderson, 10 Ore. 
 448; State v. Mowry, 21 R. I. 376, 43 Atl. 871. 
 
 » Cook V. Barr, 44 N. Y. 156. See § 266 infra. 
 
§ 237. ADMISSIONS. 301 
 
 § 237 (238). Admissions by real and nominal parties. — The sub- 
 ject is presented in its simpliest form when the admissions are 
 made by one who is a party to the record and who is also the 
 real party in interest. In such case it is very clear that the state- 
 ments and acts of the party, when they afford any presumption 
 against him, may be received in behalf of the adverse party.*' Un- 
 der the ancient practice it often happened that the party to the 
 record was only a nominal party; and it was sometimes held that 
 in such cases his admissions were competent as against the real 
 party in interest. Thus, the admissions of an assignor, the nominal 
 plaintiff, that the debt had been paid might be given against 
 his assignee.** But the rule came to prevail both in equity and in 
 law that where the assignee was obliged in good faith to sue in 
 the name of the assignor, the admissions of the assignor sub- 
 sequent to the assignment were not admissible to affect the rights 
 of the assignee;*'' and where in such case a receipt of payment in 
 full from the assignor is produced, the assignee may show that 
 the assignment was previously made.*' Where the practice pre- 
 vails that actions must be brought in the name of the real party 
 in interest, it is clear that the admission in order to be competent 
 must have been made by the party or by some one whose interest 
 
 i»McFadden v. Wallace, 38 Cal. 51; Duncan v. McMahln, 37 Ind. 241; 
 Simons v. Villcan Oil Co., 61 Pa. St. 202, 100 Am. Dec. 628; Greer v. Hfg- 
 gins, 8 Kan. 519; Secor v. Pestance, 37 111. 525; BuUard v. BuUard, 112 
 la. 423, 84 N. W. 513; Maurice v. Warden, 54 Md. 233, 39 Am. Rep. 3^84; 
 Leach v. Wilbur, 9 Allen, 212; Snow v. Paine, 114 Mass. 520; Carlton v. 
 Patterson, 29 N. H. 580; Phelan v. Bonham, 9 Ark. 389; Harvey v. Ander- 
 son, 12 Ga. 69; Tenney v. Evans, 14 N. H. 343, 40 Am. Dec 194; Doyle v. 
 St James Church, 7 Wend. 178; State v. Littlefleld, 3 R. I. 124; Hardy 
 v. DeLeon, 5 Tex. 211; Goodnow y. Parsons, 36 Vt. 46. 
 
 "Moriarity v. L. C. & D. Co.. L. R. 52 Q. B. 320; Tenney v. Evans, 14 
 N. H. 343, 40 Am. Dec. 194; Dillon v. Chouteau, 7 Mo. 386; Johnson v. 
 Kerr, 1 Serg. & R. (Pa.) 25. 
 
 i2Timan v. Leland, 6 Hill, 237; Owlngs v. Low, 5 Gill & J. (Md.) 134; 
 Dunn V. Snell, 15 Mass. 481; Chapman v. Shattuck, 8 111. 749; Scott v. 
 Hall, 6 B. Mon. (Ky.) 285; Palmer v. Cassin, 2 Cranch C. C. 66; State v. 
 Jennings, 10 Ark. 428; Patrick v. McWilliams, 23 Ga. 348; Gillighan v. 
 Tebbetts, 33 Me. 360; Cooke v. Cooke, 29 Md. 538; Garland v. Harrison, 17 
 Mo. 282; Frear v. Bvertson, 20 Johns. 142. See §§ 244-247, infra. 
 
 i» Henderson v. Wild, 2 Camp. 561; Alner v. George, 1 Camp. 392; Frear 
 V. Evertson, 20 Johns. 142. See also, Payne v. Rodgers, 1 Doug. 407; 
 Winch V. Keeley, 1 T. R. 619; Tiernan v. Jackson, 6 Peters, 580; Head T. 
 Shaver, 6 Ala. 791. 
 
302 THE LAW OF EVIDENCE. § 238. 
 
 in the matter in controversy is identified with that ol the party 
 as of an agent, a joint owner or a predecessor.^* 
 
 § 238 (239). Admissions may be made by those not parties, if 
 identified in interest. — ^Admissions may be made by persons not 
 parties to the record, provided they have a substantial interest in 
 the result.^" For example, the admissions and acts of the cestui 
 que trust are admissible, although he is not a party to the record, 
 on the ground that he is the real party in interest.^" In an action 
 against a sheriff for the default of his deputy the letters and dec- 
 larations of the deputy are competent, since the deputy is answer- 
 able over to the sheriff in another action in which the record 
 of the former action may be used as evidence.^'' And where the 
 effect of a contract is that a surety shall be responsible for the 
 acts and admissions of the principal, such admissions are competent 
 evidence against the surety.^* But ordinarily where a principal 
 is not a party to the suit, his declarations are not admissible, un- 
 less they are made while the employment in which the principal 
 was engaged continued, and in such manner as to be part of the 
 res gestce.^" Before the declarations of one not a party to the rec- 
 ord can be received on the ground that he is the real party in 
 interest, such inte-rest must be shown by competent evidence. And 
 the declarations of one who is neither a party nor a witness are 
 inadmissible for this purpose.'" It is also a requisite that the state- 
 
 "Van Gelder v. Van Gelder, 81 N. Y. 625; Downing v. Mayes, 153 111. 
 330; Goldthorp v. Goldthorp (Iowa), 62 N. W. 845; H. C. Judd fi) Root v. 
 New York & T. S. S. Co., 128 Fed. 7. See also, § 239 et seq. infra. 
 
 loFiekett v. Swift, 41 Me. 65, 66 Am. Dec. 214; Benjamin v. Smith, 4 
 Wend. 332, 12 "Wend. 404; Tyler v. Ulmer, 12 Mass. 163; Robinson v. Hutch- 
 ison, 31 Vt. 443; Milton v. Hunter, 13 Bush (Ky.) 163; Pike v. Wiggin, S 
 N. H. 356; Fourth Nat. Bank v. Albaugh, 188 U. S. 734. 
 
 ioE[anson v. Parker, 1 Wils. 257; Harrison v. Vallance, 1 Bing. 45; Doe 
 V. Wainwright, 3 Nev. & P. 598. 
 
 17 Tyler v. Ulmer, 12 Mass. 163. 
 
 18 Blair v. Perpetual Ins. Co., 10 Mo. 559, 47 Am. Dec. 129; Snell v. Allen, 
 1 Swan (Tenn.) 208; Casky v. Haviland, 13 Ala. 314; United States t. 
 Cutter, 2 Curt. (U. S.) 617; Lancashire Ins. Co. v. Callahan, 68 Minn. 277, 
 71 N. "W. 261, 64 Am. St. Rep. 475; Bank of Brighton v. Smith, 12 Allen, 
 243, 90 Am. Dec. 144 ; Guarantee Co. v. Phoenix Ins. Co., 124 Fed. 170. 
 
 19 Cheltenham Fire Brick Co. v. Cook, 44 Mo. 29; Bailey v. McAlpin 
 (Ga.), 50 S. B. 388; Knott v. Peterson, 125 la. 404, 101 N. W. 173; Chelms- 
 ford Co. V. Demarest, 7 Gray, 1; Com. v. Brassfield, 7 B. Mon. (Ky.) 447; 
 Shelby v. Governor, 2 Blackf. (Ind.) 289; Lee v. Brown, 21 Kan. 458; 
 Cassitys v. Robinson, 8 B. Mon. (Ky.) 279; Hatch v. Elkins, 65 N. Y. 489; 
 White T. German Nat Bank, 9 Heisk. (Tenn.) 475. 
 
 20 Ryan v. Merrlam, 4 Allen, 77. 
 
§ 240. ADMISSIONS. 303 
 
 ments should have been made during the continuance of the inter- 
 est. Declarations made after the declarant has ceased to have any 
 interest in the matter are not admissions, but mere hearsay.''^ 
 
 § 239 (240). Admissions by those in privity of interest — Grantor 
 and grantee. — We shall elsewhere discuss the rule by which judg- 
 ments are made binding, not only upon parties to the record, 
 but also upon those in privity with such parties.^^ It is on the 
 same general principle that admissions may be competent when 
 made by any one who is privy in law, in blood or in estate 
 to any party to the proceeding.^" In either case the judgment 
 or admission is received on the theory that the person upon whom 
 it operates is identified in interest with the party to the suit. 
 Where one person succeeds to the same rights of property formerly 
 enjoyed by another, there is often such privity that the rights of 
 the owner in such property may be affected by the statements 
 of the latter. It will be seen that this principle has often been 
 applied both in respect to real and personal property. In either 
 case where the successor in title claims under a former owner, 
 near or remote, he may be charged, subject to the limitations here- 
 after mentioned, with the admissions of his predecessor qualifying 
 or limiting his rights in respect to such property.-^ For example, 
 it is admissible as against the grantee to prove the declarations of 
 the grantor, while in possession, that his deed had been antedated."" 
 
 § 240 (241). Same, continued. — The conduct and declarations 
 of the grantor, before the conveyance, respecting the estate con- 
 veyed, which tend to prove a fraudulent intention on his part, are 
 
 21 Deady v. Harrison, 1 Stark. 60; Clarke v. Waite, 12 Mass. 439; Bridge 
 V. Eggleston, 14 Mass. 245, 7 Am. Dec. 209; Phoenix v. Day, 5 Johns. 
 (N. Y.) 412; Patton v. Goldsborough, 9 Serg. & R. (Pa.) 47; Babb v. 
 Clemson, 10 Serg. & R. (Pa.) 419, 13 Am. Dec. 684. 
 
 22 See § 587, et seq. infra. 
 
 23 Steph. E^r. art. 16 ; 1 Greenl. Ev. § 189. For definitions and illustra- 
 tions of different classes of privies see § 587, infra; see also full note as to 
 declarations of persons in possession, 95 Am. Dec. 70. 
 
 24Chadwick v. Ponner, 69 N. Y. 404; McFadden v. Bllmaker, 52 Cal. 
 348; Gidney v. Logan, 79 N. C. 214; Cunningham v. Fuller, 35 Neb. 58; 
 Norton v. Pettibone, 7 Conn. 319, 18 Am. Dec. 116; Gage v. Eddy, 179 111. 
 492, 53 N. E. 1008; Taylor v. Hess, 57 Minn. 96; Blake v. Everett, 1 Allen, 
 248; Beasley v. Clark, 102 Ala. 254; Graham v. Busby, 34 Miss. 272; 
 Doughty V. McMillan, 92 Ga. 817; Fry v. Feamster, 36 W. Va. 454; Baker 
 v. Haskell, 47 N. H. 479, 93 Am. Dec. 455; Pierce v. Roberts, 57 Conn. 31; 
 Miller v. Ternane, 50 N. J. L. 32; Dow v. Jewell, 18 N. H. 340, 45 Am. Dec. 
 S71, 381 and note; Coughran v. Alderete (Tex.), 26 a W. 109. 
 
 M Jackson v. Bard, 4 Johns. 230, 4 Am. Dec. 267. 
 
304 THE LAW OP EVIDKNCE. § 240. 
 
 proper upon an inquiry into the validity 'of such conveyance by a 
 creditor or subsequent purchaser who alleges it to be fraudulent.*' 
 So admissions made by one, who at the time held the legal title, 
 to the effect that he had contracted by parol to sell the same 
 to another and had received the pay therefor are competent evi- 
 dence against all persons claiming title under or through him." 
 The principle on which such evidence is received is that the declar- 
 ant was so situated that he probably knew the truth, and his in- 
 terests were such that he would not have made the admissions 
 to the prejudice of his title or possession, unless they were true. 
 The regard which one so situated would have to his interest is 
 considered sufficient security against falsehood.^* But in such 
 a case there must be proof of notice to the grantee of such fraudu- 
 lent intent.** 
 
 28 Jackson v. Myers, 11 Wend. 533; Bridge v. Eggleston, 14 Mass. 245, 
 7 Am. Dec. 209; VIsher v. "Webster, 8 Cal. 109; Hoose v. Robins, 18 La. 
 An. 648; "Wadsworth v. Williams, 100 Mass. 126; Bwing v. Gray, 12 Ind. 
 64; Alexander v. Caldwell, 55 Ala. 517; Tibbals v. Jacobs, 31 Conn. 428; 
 Robinson v. Pitzer, 3 W. Va. 335; Venatile v. United States Bank, 2 Peters, 
 107; Pettibone v. Phelps, 13 Conn. 445, 35 Am, Dec. 88; Guidry v. Givot, 
 2 Mart. N. S. (La.) 13, 14 Am. Dec. 193; Foster v. Hall, 12 Pick. 89, 22 Am. 
 Dec. 400; Chadwiok v. Fonner, 69 N. Y. 404; Reicbart v. Castator, 5 Binn. 
 (Pa.) 109, 6 Am. Dec. 402. See extended note on tbis general subject In 
 42 Am. Dec. 631. 
 
 27 Chadwick v. Fonner, 69 N. Y. 404. 
 
 28 Chadwick v. Fonner, 69 N. Y. 404. 
 
 2» Bridge v. Eggleston, 14 Mass. 245, 7 Am. Dec. 209; Den ex dem. Pickett 
 V. Pickett, 3 Dev. (N. C.) 6. For tbe application of the rule as against a 
 sub-vendee, see Taylor v. Webb, 51 Miss. 36. The declarations of the 
 grantor are admissible against the vendee to show that his possession was 
 not adverse, Betts v. Davenport, 3 Conn. 286; to show the source of title, 
 and that tbe grantor had only a lite estate, Dooley v. Barnes, 86 Va. 644; 
 that another person of the same name bad the legal title, McDuflSe v. 
 Clark, 39 Hun, 166; or the eguitahle title, Walker v. BUedge, 65 Ala. 51; 
 that he held as trustee merely, even though he be alive at the time of trial, 
 Gibblehouse v.- Strong, 3 Rawle (Pa.) 437; that there was a mistake in 
 the deed, Allen v. McGaughly, 31 Ark. 252; a statement in disparagement 
 of a homestead interest, Anderson v. Kent. 14 Kan. 207; statements as to 
 boundaries, Flagg v. Mason, 141 Mass. 64; Fry v. Stowers, 92 Va. 13, 22 S. 
 B. 500; Deming v. Carrington, 12 Conn. 1; Rix v. Smith, 145 Mich. 203, 108 
 N. W. 691; or as to the limits of a highway. State v. Vale Mills, 63 N. H. 4; 
 that in purchasing at a tax sale he purchased as the agent of another, 
 Baucum v. George, 65 Ala. 259. Declarations made by a deceased owner, 
 while In possession, as to the corners and lines are admissible, Gratz t. 
 Beates, 45 Pa. St. 495; Daggett v. Shaw, 6 Met. 223; Weldman v. Kohr, 4 
 
§ 241. ADUissioKS. 305 
 
 § 241 (242). Limitations upon the rule. — ^It may be stated more 
 generally that when one person takes an estate as su'ceessor to 
 another, claiming under him, he takes such estate cum onere. The 
 rule has often been stated that in such cases the declarations of 
 the grantor against his title, while in possession of the premises, 
 are always admissible, not only against him, but against those who 
 claim under him.'" It has often been held "that the conduct and 
 declarations of the grantor, respecting the estate conveyed, and 
 tending to prove a fraudulent intention on his part before the con- 
 veyance, are proper evidence for the jury upon an inquiry into 
 the validity of such conveyance, by a creditor or subsequent pur- 
 chaser, who alleges it to be fraudulent.'"^ It is not necessary, when 
 the declarant is living, to call him as a witness ; his statements may 
 be shown by third person.'^ But the declarations of the grantor 
 are not to be treated as admissions, and are not competent, if made 
 tefore his interest in the property in question was acquired,^^ 
 or after he has conveyed it away, since the acts and declarations 
 of the grantor after he has divested himself of his estate cannot 
 be admitted to impeach the title of the grantee,'* unless there is 
 
 Serg. & R. (Pa.) 174; Davis v. Jones, 3 Head (Tenn.) 603; Hurt v. Evans, 
 49 Tex. 311. See also extended note, 95 Am. Dec. 70. 
 
 so Beers v. Hawley, 2 Conn. 467; Davis v. Pierce, 2 T. R. 53; Williams v. 
 Barter, 121 Cal. 47, 53 Pac. 405; Harp v. Harp, 136 Cal. 421, 69 Pac. 28; 
 Gage V. Eddy, 179 111. 492, 53, N. E. 1008; Boynton v. Miller, 144 Mo. 681, 
 46 S. W. 754; Downs v. Lyman, 3 N. H. 486; Reed v. Dickey, 1 Watts 
 (Pa.) 152; Jackson v. Myers, 11 Wend. 533; Norton v. Pettibone, 7 Conn. 
 319, 18 Am. Dec. 116; Jackson v. Davis, 5 Cow. 123, 15 Am. Dec. 451; 
 Padgett V. Lawrence, 10 Paige (N. Y.) 170, 40 Am. Dec. 232; Rattiff v 
 Rattiff, 131 N. C. 425, 42 S. E. 887; Kreckeberg v. Leslie, 111 Wis. 462, 87 
 N. W. 450; Fall v. Fall, 100 Me. 98, 60 Atl. 719; Hays v. Hays, 66 Tex. 606; 
 Simpson v. Dix, 131 Mass. 179. 
 
 81 Bridge v. Eggleston, 14 Mass. 245, 9 Am. Dec. 209; Beers v. Ayles- 
 worth, 41 Ore. 251, 69 Pac. 1025 ; Robson v. Hamilton, 41 Ore. 239, 69 Pac. 
 651; Winchester v! Charter, 97 Mass. 140. 
 
 82 Jackson v. Myers, 11 Wend. 533. 
 
 88Eckert v. Cameron, 43 Pa. St. 120; Stockwell v. Blamey, 129 Mass. 
 312. See also extended note, 42 Am. Dec. 631. See § 352, et seq. infra. 
 
 84 Stockwell V. Blamey, 129 Mass. 312; Chase v. Horton, 143 Mass. 118; 
 Pringle v. Prlngle, 59 Pa. St. 281; Chadwick v. Fonner, 69 N. Y. 404; 
 Randegger v. Ehrhardt, 51 111. 101; Carpenter v. Carpenter, 8 Bush (Ky.) 
 283; Taylor v. Webb, 54 Miss. 36; Howell v. Howell, 47 Ga. 492; Hills v. 
 Ludwlg, 46 Ohio St. 373; Cost v. Pry, 33 W. Va. 449; Belleville v. Jones, 
 74 Tex. 148; Price v. Branch Bank, 17 Ala. 374; Hutchlns v. Castle, 48 
 Cal. 152; Derby v. Gallup, 5 Minn. 119; Brashear v. Burton, 3 Bibb (Ky.) 
 9, 6 Am. Dec. 634; Steward v. Thomas, 35 Mo. 202; Padgett t. Lawrence, 
 
306 THE LAW OF EVIDENCE. § 242. 
 
 proof of collusion or of some fraudulent scheme between the 
 grantor and grantee.^" If, however, such admissions are made by 
 the grantor in the presence of the grantee, they are competent.'* 
 If the grantee permits the grantor to remain in possession after the 
 conveyance, the declarations of the latter as to the nature of his 
 possession and as to the good faith of the transaction are admissi- 
 ble.*' Another limitation upon the admission of testimony of this 
 character is that it should not be received to contradict the terms of 
 written instruments, as, for example, to vary the tenor of a deed 
 or destroy the record title.'* But declarations are received for the 
 purpose of qualifying or showing the nature of the possession when 
 they are in disparagement of the declarant's title." 
 
 § 242 (243). Admissions of ancestor against heir. — The princi- 
 ple under discussion has often been applied in the admission of the 
 declarations of ancestors as against their heirs.*" Stating the rule" 
 more broadly, it has been held that whenever the admissions of an 
 ancestor would be admissible against him, if living, they are admis- 
 
 10 Paige, 170, 40 Am. Dec. 232; Bixby v. Carskaddon, 70 lo-wa, 726; Mc- 
 Laughlin V. McLaughlin, 91 Pa. St. 462; Barrett v. French, 1 Conn. 354, 6 
 Am. Dec. 241; Hatch v. Straight, 3 Conn. 31, 8 Am. Dec. 152; Osgood v. 
 Manhattan Co., 3 Cow. 612, 15 Am. Dec. 304; Doe ex dem Maxwell v. 
 Moore, 4 Blackf. (Ind.) 445, 30 Am. Dec. 666; West v. Houston Oil Co., 
 136 Fed. 343. See note, 42 Am. Dec. 632. 
 
 «5Hartman v. Dlller, 62 Pa. St. 37; Boyd, v. Jones. 60 Mo. 454; Pier v. 
 Duff, 63 Pa. St. 59; Cuyler v. McCartney, 33 Barh. 165, 40 N. T. 221; 
 Daniels v. McGinnis, 97 Ind. 549; Kennedy v. Devine, 77 Ind. 490. See 
 note, 42 Am. Dec. 633. 
 
 s« See cases cited in note 34 supra. 
 
 "iPier V. Duff, 63 Pa. St. 59; Osgood v. Eaton, 63 N. H. 355; Creighton 
 V. Hoppis, 99 Ind. 369. See also, Vrooman v. King, 36 N. Y. 477. 
 
 88 Dodge V. Freedman's Sav. Co., 93 U. S. 379 ; Doe v. Wehster, 12 Adol. 
 & Ell. 442;' Hancock Ins. Co. v. Moore, 34 Mich. 41; Stone v. O'Brien, 7 
 Colo. 458; Mooring v. McBride, 62 Tex. 309. See § 207, et. seq. supra. 
 
 89 Roberts v. Roberts, 82 N. C. 29; Melvin v. Bollard, 82 N. C. 33. See 
 § 352, et seq. infra. 
 
 «>Doe V. Pettett, 5 Barn. & Aid. 223; McFadden v. Ellmaker, 52 Gal. 
 348; Foote v. Beecher, 78 N. Y. 155; Lewis v. Adams, 61 Ga. 559; Baird v. 
 Slalght, 62 Hun, 603 ; Spaulding v. Hallenbeck, 35 N. Y. 204. Such declar- 
 ations have been admitted to prove the contents of a lost deed, Allen's 
 Lessee v. Parish, 3 Ohio, 107; to establish a 'boundary, JacKson v. McCall, 
 10 Johns. 377, 6 Am. Dec. 343; Marron v. Hoyt, 72 Ga. 117; Flagg v. Mason, 
 141 Mass. 64; see notes, 60 Am. Rep. 589, 15 Am. Dec. 62S; a gift, Prit- 
 chard v. Pritchard, 69 Wis. 373; to s^how that the ancestor had made a 
 parol contract to sell, if such evidence would have been admissible against 
 him while living, Chadwick v. Fonner, 69 N. Y. 404. 
 
§ 243. ADMISSIONS. 307 
 
 sible against an heir claiming under him by descent, and are re- 
 ceivable in evidence against him in the same manner as they would 
 have been receivable against the ancestor.*^ In the same manner 
 the admissions of a devisor are competent against his devisee, those 
 of an intestate against his administrator and those of a testator 
 against his executor.*^ Thus, in an action by an administrator 
 against the widow of his intestate for the conversion of property, 
 declarations of the intestate that the property was not his are ad- 
 missible for the defendant.*' So the admissions of a testator that 
 his tenant was to pay no rent are admissible against his executor.** 
 The declarations of a deceased person, not a part of the res gestae, 
 are not competent to show whether the property in question was 
 given as a gift or as an advancement, as the deceased, while alive, 
 would in no way be affected by the determination of the question.*' 
 A somewhat analogous question has arisen in cases where the decla- 
 rations of a deceased person were offered by defendant in actions 
 for wrongful death, and in some instances such declarations have 
 been received.*' It is generally held that there is no such privity 
 of interest between an insured person and his beneficiary as to ad- 
 mit the declarations of the former in actions on life insurance pol- 
 icies.*^ 
 
 § 243 (244). Admissions — Landlord and tenant. — A similar re- 
 lation of privity exists between landlord and tenant. Thus, the 
 parol declarations of a party showing a deed of real estate held by 
 him to be void for fraud are admissible in evidence in an action of 
 ejectment against his tenant, where such declarations were made 
 while in possession of the property.'" When the relation of landlord 
 
 *il Greenl. Ev. § 189; Davis v. Melson, 66 Iowa, 189. 
 
 *2Childs V. Jordan, 106 Mass. 321; Slade v. Leonard, 75 Ind. 171; Muel- 
 ler V. Rebhan, 94 111. 142; Stoddard v. Newhall, 1 Cal. App. Ill, 81 Pac. 
 666. For a fuller discussion of declarations by testators, see §S 479-482, 
 et seq. infra. 
 
 *a Fellows v. Smith, 130 Mass. 378. 
 
 44 Cox V. Balrd, 11 N. J. L. 105, 19 Am. Dec. 386. 
 
 46 Thistlewaite v. Thlstlewaite, 132 Ind. 355. 
 
 48 Hughes V. Delaware, etc. Co. (Pa.), 35 Atl. 190; Georgia R. R. etc. Co. 
 V. Fitzgerald, 34 S. E. 316. But see Tiffany, Death by "Wrongful Act 
 § 194. 
 
 47 Sutcliffe v. Iowa S. T. M. Ass'n, 119 la. 220, 93 N. "W. 90, 97 Am. St. 
 Rep. 298; McGowan v. Supreme Court, 104 Wis. 173, 80 N. "W. 603; Raw- 
 son V. Ins. Co. 115 Wis. 641, 92 N. W. 378. Contra, Hews v. Equitable Life 
 Assur. Co., 143 Fed. 850; Smith v. Benefit Society, 123 N. Y. 85, 25 N. B. 
 197; Thomas v. Grand Lodge, 12 Wash. 500, 41 Pac. 882. 
 
 M Jackson v. Myers, 11 Wend. 533; Jackson v. Davis, 5 Cow. 123. 
 
308 THE LAW OF EVIDENCB. § 244. 
 
 and tenant is once established, it attaches to all who may succeed 
 the tenant, immediately or remotely; and the succeeding tenant is 
 as much affected by the acts and acknowledgments of his prede- 
 cessor as though they were his own.^^ But the declarations of the 
 tenant are not admissible to affect the title of the landlord, unless 
 such declarations are brought to the notice of the landlord in such 
 a way as to tend to establish a reputation of the tenancy.^^ Nor is 
 the remainderman affected by the declarations of the tenant for 
 life as there is no privity between them ; and the statements of the 
 tenant for years are not admissible against the owner in fee/' 
 
 § 244 (245). Admissions by former owners of personsil prop- 
 erty. — The same principle is often applied respecting the admis- 
 sions of former owners of personal property. The admissions or 
 declarations of the assignor, vendor or holder of personal prop- 
 erty, made before the sale, assignment or other disposal of his in- 
 terest, are evidence against his vendee, assignee or other person 
 claiming under him, immediately or remotely, either by act and op- 
 eration of law, or by the acts of the parties. And his declarations, 
 with regard to his rights and liabilities, are in like manner evidence 
 against any one coming into his place after such declarations are 
 made, or representing him in respect to such rights and liabilities." 
 There have been many cases in which the declarations of the vendor 
 of chattels in possession, admitting that he had parted with his 
 title or that there were defects in his title, have been received 
 against a purchaser from him. Such declarations have been re- 
 ceived on the ground that such a privity existed between the seller 
 and the buyer that the latter stands in the situation of the former 
 and is chargeable with the same admissions which might have been 
 offered against him.""* There are instances in which the declarations 
 of former owners of personal property have been held inadmissible 
 
 01 Jackson v. Davis, 5 Cow. 123 ; Crease v. Barrett, 1 Cromp. M. & R. 
 919. See note, 53 L. R. A. 949-950. 
 
 02 Ingram v. Little, 14 Ga. 173, 58 Am. Dec. 549; Scholes v. Chadwick, 2 
 Moody & Rob. 507; Papendlck v. Brldgewater, 5 El. & B. 16G; Tickle v. 
 Brown, 4 Add. & Ell. 378; Hanley v. Erskine, 19 111. 265. 
 
 53 Hill V. Roderick, 4 Watts & S. (Pa.) 221; Pool v. Morris, 29 Ga. 374, 
 74 Am. Dec. 68. 
 
 64 Horton v. Smith, 8 Ala. 73, 42 Am. Dec. 628, 630 and note; Levy v. 
 Holburg, 67 Miss. 526; People y. Vernon, 35 Cal. 49, 95 Am. Dec. 49 and 
 note. See also notes, 42 Am. Dec. 80, 631. See § 245, infra. 
 
 65 Guy V. Hall, 3 Murph. (N. C.) 150; Johnson v. Patterson, 2 Hawks 
 (N. C.) 83, 11 Am. Dec. 756; Coale v. Harrington, 7 Harr. & J. (Md.) 147; 
 Horton v. Smith, 8 Ala. 73, 42 Am. Dec. 628; Bond v. Fitzpatrick, 4 Gray, 
 
§ 245. ' ADMISSIONS. 309 
 
 on the ground that they were still living and might be produced 
 in court."* But such cases seem to be based upon a misapprehen- 
 sion of the principle which make these declarations competent, 
 which is the privity of the person against whom they are offered 
 with the declarant. Their admissibility by no means depends upon 
 the principle involved in that exception to hearsay by which the 
 declarations against interest of persons since deceased are ad- 
 mitted."" 
 
 § 245 (246). Same — Real and personal property. — ^It is to be 
 observed that the rule does not admit the declarations of the seller 
 in such cases, unless the person against whom the declaration is 
 offered does in fact hold title under him."' And of course admis- 
 sions are not to be received as to the title of either real or personal 
 property if made after the sale, as the vendor cannot disparage a 
 title with which he has already parted,"" unless, as we have already 
 seen in the case of the sale of real estate, the seller remains in pos- 
 session,'" or unless the declaration is made in presence of the trans- 
 
 89; Bowie v. Hunter, 4 Cranch C. C. 699; Vennum v. Thompson, 38 111. 
 
 143; Fellows v. Smith, 130 Mass. 378; Bunberry v. Brett, 18 Ind. 343; 
 
 McLanathan v. Patten, 39 Me. 142; Land v. Lee, 2 Rich L. (S. C.) 168; 
 
 Walker v. Marseilles, 70 Miss. 263. Contra, Paige v. Cagwin, 7 Hill, 361, 
 
 42 Am. Dec. 68; Fourth Nat. Bank v. Albaugh, 188 U. S. 734. On this 
 
 general subject see extended note, 42 Am. Dec. 80. 
 BoCoit V. Howd, 1 Gray, 457. 
 «' Guy V. Hall, 3 Murph. (N. C.) 150; Gibblehouse v. Strong, 3 Rawle 
 
 (Pa.) 437; Haddan v. Mills, 4 Car. & P. 486; Crayton v. Collins, 2 McCord 
 
 (S. C.) 457; Snelgrove v. Martin, 2 McCord (S. C.) 241. As to declar- 
 ations of this character, see § 323, et seq. infra. ' 
 B8 Watson v. Williams, 1 Harp. (S. C.) 447. 
 
 B9 Minor v. Phillips, 42 111. 123; Keystone Mfg. Co. v. Johnson, 50 Iowa, 
 142; Liee v. Huntoon, 1 Hoff. Ch. (N. Y.) 447; Buckingham v. Tyler, 74 
 Mich. 101; Farmers' Lioan & Trust Co. v. Montgomery, 30 Neb. 33; Holmes 
 V. Roper, 141 N. Y. 64; Lewis v. Rice, 61 Mich. 97; Horton v. Smith, 8 Ala. 
 73, 42 Am. Dec. 628 and note; Beard v. First Nat. Bank, 41 Minn. 153; 
 Robots V. Medberry, 132 Mass. 100; Garlich v. Bowers, 66 Cal. 122; Walden 
 V. Purves, 73 Cal. 518; Bunker v. Green, 48 111. 243; Davies v. Belden, 46 
 Vt. 674; Roberts v. Medberry, 132 Mass. 100; Sanford v. Bllithorp, 95 N. Y. 
 48; McLaughlin v. McLaughlin, 91 Pa. St. 462; Hall v. Ludwig, 46 Ohio St. 
 513; Bentley v. O'Brien, 111 111. 53; Small v. Champeny, 102 Wis. 61. See 
 note, 42 Am. Dec. 632. 
 
 80 Marsh v. Hampton, 5 Jones (N. C.) 382; Gregory v. Frothingham, 1 
 Nev. 253; Grant v. Lewis, .14 Wis. 487; Gidney v. Logan, 7.9 N. C. 214; 
 Piedmont Sav. Bank v. Levy (N. C.) 50 S. E. 657; Selsby v. Redlon, 19 
 Wis. 17. See note, 42 Am. Dec. 633; § 241, supra. 
 
310 THE LAW OF EVIDENCE. § 246. 
 
 feree,"* or unless there is other evidence tending to show collusion 
 or a combination to defraud.*^ But where it is claimed that there 
 is concert or collusion between the vendor and vendee to defraud 
 creditors, the subsequent declarations of the vendor are not admissi- 
 ble against the vendee on that ground, "unless the alleged common 
 purpose to defraud is first established by independent evidence and 
 unless they have such relation to the execution of that purpose that 
 they fairly constitute a part of the res gestae. ' ' *' The rule also ren- 
 ders the declarations of assignors,** grantors,"" devisors," and others 
 through whom title is claimed " incompetent, if made after the title 
 or interest in the property in question has passed from them. 
 
 § 246 (247) . Same — Strict rules in some jurisdictions. — ^In some 
 jurisdictions a much stricter rule prevails with respect to the admis- 
 sion of the declarations of a former owner of chattels to impeach the 
 title of the purchaser. For example, in the state of New York the 
 rule has prevailed since the decision of the court in the leading ease 
 of Paige v. Cagwin, that the declarations of a vendor of chattels or 
 of a prior holder of negotiable paper are not admissible against a 
 subsequent purchaser for value, unless they are made by the real 
 party in interest or by one through whom the party claims as a 
 privy by representation, as in cases of bankruptcy, death and others 
 of a similar character. The authorities holding this view maintain 
 that where a person becomes a purchaser of a chose in action or a 
 chattel for a valuable consideration his rights are independent of 
 the assignor and beyond his control ; that although it may be neees- 
 
 61 Hart V. Brierley, 189 Mass. 598, 76 N. E. 286. 
 
 szWaterbury v. Sturtevant, 18 "Wend. 353; Neal v. Peden, 1 Head 
 (Tenn.) 546; Cuyler v. McCartney, 33 Barb. 165; O'Neil v. Glover, 5 
 Gray, 144; Souder v. Schechterly, 91 Pa. St. 83; Boyd v. Jones, 60 Mo. 454; 
 Hartman v. Diller, 62 Pa. St. 37; Price v. Junkin, 4 Watts (Pa.) 82, 28 
 Am! Dec. 685. See note, 42 Am. Dec. 633. 
 
 63 Winchester v. Creary, 116 U. S. 161; Holbrook v. Holbrook, 113 Mass. 
 74; Hirshfield v. Williamson, 18 Nev. 66. 
 
 64 Alger v. Andrews, 47 Vt. 238; Myers v. Kinzie, 26 111. 36; Wynne v. 
 Glidevell, 17 Ind. 446; Heywood v. Reed, 4 Gray, 574; Frear v. Eveitson, 
 20 Johns. 142; Maddox v. Atlantic & N. C. Ry. Co., 115 N. C. 624. 
 
 65 Alexander v. Caldwell, 55 Ala. 517; Gallagher v. Williamson, 23 Gal. 
 331; McFadden v. Ellmaker, 52 Cal. 348; State v. Mills, 63 N. H. 4; Hale 
 V. Rich, 48 Vt. 217; Dodge v. Freedman's Trust Co., 93 U. S. 379. 
 
 66 Mueller v. Rebhan, 94 111. 142; McSweeney v. McMillan, 96 Ind. 298; 
 Wentworth v. Wentworth, 71 Me. 72. 
 
 67 Eckert v. Triplett, 48 Ind. 174, declarations of a former deceased ad- 
 ministrator; Pickering v. Reynolds, 119 Mass. 11, suit between an occupier 
 of land and a creditor. 
 
§ 247. ADMISSIONS. 311 
 
 sary to found his title on a transfer, yet the mere proof of such 
 transfer is evidence of his right, and that possession alone is prima 
 facie evidence of title and the rights of the possessor do not neces- 
 sarily depend on the title of the person by whom the delivery was 
 made or from whom the possession was obtained." But in the early 
 New York cases the' declarations of the former owner are held ad- 
 missible against those who hold under him in a representative ca- 
 pacity, as administrators and assignees in bankruptcy,'* as well as 
 in those eases where the transaction relates to real estate.'" 
 
 § 247 (248). Same — ^Declarations of former owners of choses in 
 action. — On well-known grounds the declarations of a former 
 owner of negotiable paper are not admissible against one who pur- 
 chased for value before due.'* But with this exception the same 
 general principle stated in a former section governs in respect to 
 choses in action ; and the declarations of the assignor made while he 
 is owner are admissible against the assignee and those claiming un- 
 der him.'* This has often bean illustrated in the case of negotiable 
 paper transferred after it became due, where the declarations of 
 former owners have been received to show payment or rights of set- 
 off,''^ want of consideration or want of title,'* and other defenses.''^ 
 
 68 Paige V. Cagwin, 7 Hill, 361, 42 Am. Dec. 68 and note; Truax v. Slater, 
 86 N. Y. 630. The same rule has been endorsed by the federal supreme 
 court, Dodge v. Freedman's Trust Co., 93 U. S. 379. In Alabama such 
 declarations are rejected unless part of the res gestae explaining the 
 possession, Nelson v. Iverson, 17 Ala. 216; Hadden v. Powell, 17 Ala. 314; 
 Thompson v. Mawhinney, 17 Ala. 362, 52 Am. Dec. 176; Price v. Bank, 17 
 Ala. 374; Weaver v. Yeatmans, 15 Ala. 539. 
 
 eo Brown v. Mailler, 12 N. Y. 120; Hackney v. Vrooman, 62 Barb. 666; 
 Von Sachs v. Kretz, 72 N. Y.' 553; Smith v. Sergeant, 67 Barb. 250; Clews 
 V. Kehr, 90 N. Y. 633. 
 
 '0 Chadwick v. Ponner, 69 N. Y. 404. 
 
 71 This is too elementary to require the citation of authorities. 
 
 '2Snelgrove v. Martin, 2 McCord (S. C.) 241; Guy v. Hall, 3 Murph. 
 (N. C.) 150; Kellogg v. Krauser, 14 Serg. & R. (Pa.) 137, 16 Am. Dec. 480; 
 Williams v. Judy, 3 Gilm. (111.) 282, 44 Am. Deo. 699; Merrick v. Park- 
 man, 18 Me. 407; Frick v. Reynolds, 6 Okl. 638, 52 Pac. 391; Alger v. An- 
 drews, 47 Vt. 238; Magee v. Raiguel, 64 Pa. St. 1101; Bond v. Pitzpatrick, 
 4 Gray, 89; Randegger v. Ehrhardt, 51 111. 101; Stark v. Boswell, 6 Hill, 
 405, 41 Am. Dec. 752 and note; Ginter v. Breeden, 90 Va. 565. 
 
 73 Bond V. Pitzpatrick, 4 Gray, 89; Reed v. Vancleve, 3 Dutch. (N. J.) 
 352, 72 Am. Dec. 369. 
 
 7< Coster V. Symons, 1 Car. & P. 148; Snelgrove v. Martin, 2 McCord 
 (S. C.) 241; Haddan v. Mills, 4 Car. & P. 486. 
 
 "Kent V. Lowen, 1 Camp. 177; Kane v. Torbltt, 23 III. App. 311; 
 Hanchett v. Kipibark, 118 111. 121. 
 
312 THE LAW OP EVIDENCE. § 248. 
 
 § 248 (249). Declarations of persons having a joint interest- 
 Partners. — In a suit by or against several persons who are proved 
 to have a joint interest in the decision, a declaration made by one 
 of them, while engaged in the joint business, concerning a material 
 fact within his knowledge is evidence against him and against all 
 who are parties with him in the suit.^* This principle is often illus- 
 trated in respect to the declarations of partners. Thus, if the ac- 
 tion is against partners to recover money alleged to have been ob- 
 tained by false representations, the statements of either partner, 
 made during the partnership relative to and tending to establish 
 the cause of the action, are admissible against both ;" and entries in 
 the partnership hooks made by one partner during the continuance 
 of partnership are admissible against both.'" Although one partner 
 is shown to be hostile to another, such admissions may be received 
 although, of course, this hostility may affect the question of credi- 
 bility.'" The admissions of one partner are not received against 
 
 T«Rex V. Hardwick, 11 East, 589; Walling v. Rosevelt, 16 N. J. L. 41; 
 Armstrong v. Farrar, 8 Mo. 627; Hurst v. Robinson, 13 Mo. 82, 53 Am. Dec. 
 134; Irby v. Brigham, 9 Humph. (Tenn.) 750; Fourth Nat. Bank v. Al- 
 baugh, 107 Fed. 819; Steph. Ev. art 17; 1 Greenl. Bv. § 172. But see. Dean 
 V. Ross, 105 Cal. 227. As to admissions of partner see note, 20 L. R. A. 
 595-599. 
 
 " Western Assurance Co. v. Towle, 65 Wis. 247. 
 
 "Walden v. Sherburne, 15 Johns. 409. Admissions of one partner ad- 
 missible against all to prove the execution of a promissory note, Adams 
 V. Brownson, 1 Tyler (Vt.) 452; the genuineness of such note, Henslee 
 V. Camefes, 49 Mo. 295; the existence of other forms of indebtedness. 
 Corps, V. Robinson, 2 Wash. C. C. 388; the financial condition of the firm, 
 Doremus v. McCormlck, 7 Gill (Md.) 49; the paymenit of money, Munson 
 V. Wickwire, 21 Conn. 513; the ownership of goods in possession of the 
 firm, Humes v. O'Brien, 74 Ala. 64; and the authority of an agent, Odiosne 
 V. Maxcy, 15 Mass. 39; that a note made in the firm name was given on 
 credit of the firm and note on individual credit, Hurd v. Haggerty, 24 111. 
 171; that due notice had been given of the dishonor of a bill, Meyers v. 
 Standart, 11 Ohio St. 29; and that the partners are liable as garnishees, 
 Anderson v. Wanzer, 6 Miss. 587, 37 Am. Dec. 170; and in an action by an 
 insurance company to recover moneys paid on fraudulent proofs of loss 
 that one partner had set a fire, Western Assurance Co. v. Towle, 65 Wis. 
 245; and the cause of an accident, Muench v. Heineman, 119 Wis. 441, 96 
 N. W. 800. 
 
 18 Webster v. Stearns, 44 N. H. 498; Wood v. Braddick, 1 Taunt. 104; 
 Rapp V. Latham, 2 Barn. & Aid. 795; Corps v. Robinson, 2 Wash. C. C. 388; 
 Jemison v. Minor, 34 Ala. 33; Talbot v. Wilkins, 31 Ark. 411; Munson v. 
 Wickwire, 21 Conn. 513; Drumright v. Philpot, 16 Ga. 424, 60 Am. Dec. 
 738; Hurd v. Haggerty, 24 111. 171; Boor v. Lowrey, 103 Ind. 468; Wiley 
 
§ 249. ADMISSIONS. 813 
 
 another on the ground that they are parties to the record, but on the 
 ground that they are identified in interest, and that each is agent 
 for the other, and that the acts and declarations of one during the 
 existence of the partnership, while transacting its business and 
 within the scope of the business, are evidence against the others. 
 The declarations of a dormant partner, relating to the partnership 
 business, are admissible against his co-partners,'" and those of a 
 deceased partner are admissible against his survivors." 
 
 § 249 (250). Same— Statutes of limitations as affecting admis- 
 sions of partners. — The rule formerly prevailed in England and 
 was adopted in some states in this country, that a debt might be re- 
 vived against the other partners by a payment by one, which was 
 held to constitute an admission of the debt. This was held even 
 after the statute of limitations had run and after the dissolution of 
 the partnership had taken place.'" This view rested upon the theory 
 that the statute of limitations is founded upon a presumption of 
 payment of the debt after the statutory period, and that this pre- 
 sumption was sufficiently rebutted hj an acknowledgment or admis- 
 sion of the debt by one of the joint debtors.'' Another theory is 
 that the statute of limitations is not founded on the presumption 
 of payment, but that it rests on grounds of puUic policy, — ^that it 
 is a statute of repose intended to prevent the prosecution of stale 
 demands, and that the debt can only be revived by a new promise. 
 It is further urged that after the dissolution of the partnership, 
 
 v. Griswold, 41 Iowa, 375; Boyce v. Watson, 3 J. J. Marsh. (Ky.) 498; 
 Pickett V. Swift, 41 Me. 65; Harryman v. Roberts, 52 Md. 64, 20 Am. Law 
 Reg. (N. S.) 373; Collett v. Smith, 143 Mass. 473; Burgan v. Lyell, 2 
 Mich. 102, 55 Am. Dec. 53; Paler v. Jordan, 44 Miss. 283; Cady v. Kyle, 
 47 Mo. 346; Gulick v. Gulick, 14 N. J. L. 578; Fogerty v. Jordan, 2 R»b. 
 (N. T.) 319; Hilton v. McDowell, 87 N. C. 364; Western Assurance Co. v. 
 Towle, 65 Wis. 247. 
 
 soKaskaskia Bridge Co. v. Sherman, 1 Gilm. (111.) 15; Weed v. Kellogg, 
 6 McLean (U. S.) 44. 
 
 81 Doremus v. McCormlck, 7 Gill (Md.) 49. As to declarations of a sur- 
 viving partner, see McElroy v. Ludlum, 32 N. J. Bq. 828. 
 
 82Whitcomb v. Whiting, Doug. 652; Wood v. Braddick, 1 Taunt. 104; 
 Bridge v. Gray, 14 Pick. 55, 25 Am. Dec. 358; Simpson v. Geddes, 2 Bay 
 (S. C.) 533; Garland v. Agee, 7 Leigh. (Va.) 362; Buxton v. Edwards, 134 
 Mass. 567; Merritt v. Day, 38 N. J. L. 32, 20 Am. Rep. 362; Bissell v. 
 Adams, 35 Conn. 299; Beardsley v. Hall, 36 Conn. 270, 4 Am. Rep. 74; 
 Shepley v. Waterhouse, 22 Me. 497; Wheelock v. Doolittle, 18 Vt. 440. See 
 note, 6 Am. Dec. 574-576. 
 
 83 On the general subject of this section see valuable discussion in 1 
 Smith L. C. 982 et aeq. See also cases last cited. 
 
314 THE LAW OP EVIDENCB. § 249. 
 
 although each partner has authority to dispose of the partnership 
 property, and to collect and pay partnership debts and to settle 
 partnership affairs, yet he cannot he presumed to be the agent of the 
 others to bind them by a new contract, and that the admission or 
 new promise can bind no one but himself.'* This is the view which 
 is now sustained by the weight of authority, and which has now 
 been adopted by statute in England and in some of the states of 
 this country.'" It has been held in some cases that an admission 
 of one partner may suspend the running of the statute or prolong 
 the time as against the rest, but that it cannot revive their liability 
 after it has been once extinguished.'* But the weight of authority 
 sustains the view that after actual dissolution neither partner can 
 be deemed the agent of the others to the extent of binding them to 
 pay a debt by any payment or promise which he may make." 
 
 84 See extended notes, 6 Am. Dec. 574-575; 40 Am. St Rep. 566; 15 L. R. 
 A. 656. See cases next cited. 
 
 85 See the statutes of the jurisdiction. See also. Bell v. Morrison, 1 
 Peters, 351; Faulkner v. Bailey, 123 Mass. 588; Bailey v. Corliss, 51 Vt. 
 366; Rogers v. Anderson, 40 Mich. 280; Van Keuren v. Parmelee, 2 N. Y. 
 523, 51 Am. Dec. 322; Walsh v. Kane, 4 La. An. 533; Reppert v. Colvin, 
 48 Pa. St. 248; Clementson v. Williams, 8 Cranch, 72; Exeter Bank v. Sul- 
 livan, 6 N. H. 124; Muse v. Donelson, 2 Humph. (Tenn.) 166, 36 Am. Dec. 
 309; Dickerson v. Turner, 12 Ind. 223; Lowther v. Chappell, 8 Ala. 353, 42 
 Am. Dec. 643; Briscoe v. Anketell, 28 Miss. 361, 61 Am. Dec. 553; Pahner v. 
 Dodge, 4 Ohio St. 21, 36, 62 Am. Dec. 271; Myatts v. Bell, 41 Ala. 222; 
 Bush v. Stowell, 71 Pa. St. 208, 10 Am. Rep. 694; Kallenhach v. Dickinson, 
 100 111. 427, 39 Am. Rep. 47; Mayberry v. Willoughby, 5 Neb. 368, 25 Am. 
 Rep. 491; Steele v. Souder, 20 Kan. 39; Tate v. Clements, 16 Fla. 339, 26 
 Am. Rep. 709. 
 
 se Steele v. Jennings, 1 McMull. (S. C.) 297; Silman v. Silman, 2 Hill 
 (S. C.) 416; Goudy v. Gillan, 6 Rich. L. (S. C.) 28; Schindel v. Gates, 
 46 Md. 604, 24 Am. Rep. 526; Walton v. Robinson, 5 Ired. (N. C.) 341; 
 Blllcott V. Nichols, 7 Gill (Md.) 85, 48 Am. Dec. 546; Emmons v. Overton, 
 18 B. Mon. (Ky.) 643; Burr v. Williams, 20 Ark. 171. See also Kallen- 
 bach v. Dickinson, 100 111. 427, 39 Am. Rep. 47. 
 
 sTKelley v. Sanborn, 9 N. H. 46; Pickett v. Leonard, 34 N. Y. 175; Van 
 Keuren v. Parmelee, 2 N. Y. 523, 51 Am. Dec. 322; Levy v. Cadet, 17 Serg. 
 & R. (Pa.) 126, 17 Am. Dec. 650; Steele v. Jennings, 1 McMull. (S. C.) 
 297; Lefavour v. Yandes, 2 Blackf. (Ind.) 240, 371; Brewster v. Harde- 
 man, Dud. (Ga.) 138; Green v. Baird, 53 111. App. 211; Watson v. Wood- 
 man, L. R. 20 Eq. 721 ; Myatts v. Bell, 41 Ala. 222 ; Curry v. White, 51 Cal. 
 530; Tate v. Clements, 16 Fla. 339, 26 Am. Rep. 709; Leitauser v. Bau- 
 meister, 47 Minn. 151; Carroll v. Gayarre, 15 La. An. 671; Slgler v. Piatt, 
 16 Mich. 206; Kerper v. Wood, 48 Ohio St. 613; Haddock v. Crocheron, 32 
 Tex. 276. 5 Am. Rep. 244; Carlton v. Woolen Mills, 27 Vt 496; Conrad v. 
 
§ 250. ADMISSIONS. 315 
 
 § 250 (251). Admissions after dissolution of partnership. — 
 
 While it is clear that the admissions of one partner are binding 
 upon the others so far as his statements are necessary to the proper 
 winding up of the partnership affairs and so far as made while he 
 is acting as agent for that purpose, yet there has been much conflict 
 of opinion upon the question whether admissions of one partner 
 respecting former transactions, made after the dissolution, are ad- 
 missible against the co-partners. As we have already seen, under 
 the early English doctrine the powers of a partner to bind the firm 
 by admissions or even by new promises were not limited to the dura- 
 tion of the partnership.*' But in this country the tendency of the 
 authorities has been to restrict the power within much narrower lim- 
 its and to deny the power of one partner to charge his co-partners 
 by his admissions, after dissolution, as to past transactions.'" , In 
 most of the American cases where the declarations of one partner 
 have been received against other partners, such declarations related 
 to transactions occurring during the existence of the partnership 
 which established the amount, nature or continued existence of the 
 claim, but did not create a new liability.*" Many of the cases on 
 this subject have related to the adjustments of accounts by one 
 partner after the dissolution of the partnership. In such cases the 
 
 Buck, 21 W. Va. 396; Cronkhite v. Herrin, 15 Fed. 888; Muse v. Donelson, 2 
 Humph. (Tenn.) 166, 36 Am. Dec. 309. See note, 1 Smith L. C. 1022 and 
 cases. In some cases the question of notice of the dissolution to the payee 
 has been held material, Clement v. Clement, 69 Wis. 599; Gates v. Fisk, 45 
 Mich. 522; Kinniston v. Avery, 16 N. H. 117; Buxton v. Edwards, 134 
 Mass. 567; Davidson v. Harmon, 57 Minn. 355. 
 
 88 1 Phil. Ev. (3d. ed.) p. 379. On this general subject see extended 
 note, 40 Am. St. Rep. 554; see § 249. supra. 
 
 89 Thompson v. Bowman, 6 Wall. 316; Currie v. White, 51 Cal. 530; 
 Brewster v. Hardeman, Dud. (Ga.) 138; Winslow v. Newlan, 45 111. 145; 
 Hamilton v. Summers, 12 B. Mon. (Ky.) 11, 54 Am. Dec. 509; Conery v. 
 Hayes, 19 La. An. 325; Maxey v. Strong, 53 Miss. 280; Brady v. Hill, 1 Mo. 
 315, 13 Am. Dec. 503; Hackley v. Patrick, 3 Johns. 536; Pringle v. Leverich, 
 97 N. Y. 181, 49 Am. Rep. 522; Hogg v. Orgill, 34 Pa. St. 344; Pennoyer 
 V. David, 8 Mich. 407; Plannagin v. Champion, 2 N. J. Eq. 51 See Cooper 
 V. Word, 1 Colo. App. 101, 27 Pac. 884; In re Strait's Estate, 65 Minn. 162, 
 67 N. W. 987. 
 
 »o Austin V. Bostwick, 9 Conn. 496, 25 Am. Dec. 42 ; Taylor v. HlUyer, 3 
 Blackf. (Ind.) 433, 26 Am. Dec. 430; Hinckley v. Gilligan, 34 Me. 101; Cady 
 V. Shephard, 11 Pick. 400, 22 Am. Dec. 379; Buxton v. Edwards, 134 Mass. 
 567; Rich v. Flanders, 39 N. H. 304, 338-9; Peigley v. Whitaker, 22 Ohio 
 St. 606, 10 Am. Rep. 778; Fripp v. Williams, 14 S. C. 502; Woodworth v. 
 Downer, 13 Vt. 522, 37 Am. Dec. 611. 
 
316 THE LAW OF EVIDENCE. § 252. 
 
 statements may b? admitted as part of the res gestae, but by the 
 weight of authority when the admission, made after the dissolution, 
 is not part of some act which the person is authorized to do, it is 
 not admissible as against any person except himself."^ 
 
 § 251 (252). Partnership to be proved before admissions are 
 received. — ^It is very clear that before one partner can be charged 
 with the admission of another, the partnership relation must be 
 shown, — and that by other evidence than the admission itself. In 
 such cases the admission can be received only to affect the person 
 making it.*' It is for the judge to determine whether there is prima 
 facie evidence of the co-partnership. °' But the "existence of the 
 partnership may be proved by the separate admissions of all who 
 are sued, or by the acts, declarations and conduct of the parties, or 
 by the act of one and the declarations or conduct of others. ' ' '* And 
 since it must often happen that the admissions of only one partner 
 can be proved at a time, his declarations may be received when a 
 partnership is alleged without proof of the partnership at that time, 
 but it is the duty of the judge to instruct the jury that admissions 
 can only bind the party making them, unless the partnership is also 
 proved ;•" and here as in other cases the order of the testimony is 
 within the discretion of the judge."" 
 
 § 252 (253). Admissions by joint contractors, not partners.— 
 It has been sometimes held that in the case of mere joint contracts, 
 where there is no partnership relation, neither joint contractor is to 
 be presumed to be the agent of the other to charge him by admis- 
 sions, and that in such cases the admissions of one are not admissi- 
 
 •1 Baker v. Stackpole, 9 Cow. 421; Kerper v. "Wood, 48 Ohio St. 613. See 
 also cases last cited. 
 
 82 Whitney v. Ferris, 10 Johns. 66, Robbins v. "Wlllard, 6 Pick. 464; 
 Winchester v. Whitney, 138 Mass. 549; Corriell v. Evans, 1 G. Greene 
 (Iowa) 25; Hahn v. St. Clair Sav. Co., 50 111. 456; Began v. Singer, 41 111. 
 28; Gardner v. Northwestern Mfg. Co., 52 111. 367; Hodges v. Moore (Pla), 
 35 So. 13; Cowan v. Kinney, 33 Ohio St. 422; Bdgell v. Macqueen, 8 Mo. 
 App. 71. 
 
 93 Hilton v. McDowell, 87 N. C. 364. 
 
 04 Parsons, Part. (3d. Ed.) p. 204 and cases there cited; Smith v. CJollins, 
 115 Mass. 388; Jennings v. Estes, 16 Me. 323; Armstrong v. Potter, 103 
 Mich. 409, 61 N. W. 657; Mershon v. Hobensack, 22 N. J. L. 372; Reed y. 
 Kremer, 111 Pa. St. 482; Barcroft v. Haworth, 29 Iowa, 462. Such declar- 
 ations are received where partners are sued also as conspirators. Work v. 
 McCoy, 87 Iowa, 217. 
 
 as Jennings v. Estes, 16 Me. 323. 
 
 M Hilton v. McDowell, 87 N. C. 364; Lea v. Gulce, 21 Miss. 656. 
 
§ 253. ADMISSIONS. 317 
 
 ble against the others.'^ But by the prevailing rule at common law 
 the admissions of one of several persons jointly interested in the 
 subject matter relating to such subject were admissible against the 
 others."' Thus, the admissions of one co-obligor upon a bond have 
 been received against the other ;°° and the admissions of one joint 
 maker of a promissory note constituting a defense against the other 
 maker have also been held competent.^ The same is true of joint 
 grantors,^ joint purchasers of personal property,* and joint cove- 
 nantors.* It is clear that the admissions of one person cannot be 
 admitted in evidence against another on the ground of a joint in- 
 terest in the subject, unless the interest is a subsisting one at the 
 time of the admission." And when the joint contract is severed by 
 the death of one of the contractors, the subsequent admissions of the 
 survivor as to past events do not bind the representatives of the 
 deceased.* 
 
 § 253 (254). Declarations by persons having a mere community 
 of interest. — The mere fact that several persons have a common 
 interest' in the subject matter involved in the suit does not render 
 their admissions competent against each other. For example, the 
 admissions of an executor or of an administrator are not admissible 
 agaiQst the heirs or devisees,' or against his co-executor or co-ad- 
 
 « Lewis V. Wood-worth, 2 N. Y. 512, 51 Am. Dec. 319; WalUs v. Randall, 
 81 N. Y. 164. 
 
 oswhitcomb v. Whiting, 2 Doug. 652; Perham v. Raynal, 2 Bing. 306; 
 Burleigh v. Stott, 8 Barn. & C. 36; Wyatt v. Hodson, 8 Bing. 309; Frye v. 
 Barker, 4 Pick. 382; Johnson v.Beardslee, 15 Johns. 3; Wallis v. Randall, 
 81 N. Y. 164; Colt v. Tracy, 8 Conn. 268, 276, 20 Am. Dec. 110; Camp v. 
 Dill, 27 Ala. 553; Van Keuren v. Parmelee, 2 N. Y. 523, 51 Am. Dec. 322; 
 Smith V. Collins, 115 Mass. 388; National Bank v. Cotton, 53 Wis. 31. 
 
 »» Crosse v. Bedingfleld, 12 Sim. 35. 
 
 1 Martin v. Root, 17 Mass. 221; Camp v. Dill, 27 Ala. 553; Bound v. 
 Lathrop, 4 Conn. 336, 10 Am. Dec. 147; Barrick v. Austin, 21 Barb. 241; 
 Brown v. Munger, 16 Vt. 12; Iglehart v. Jernegan, 16 111. 513; Cooper v. 
 Hocking Valley Nat. Bank, 21 Ind. App. 358, 69 Am. St. Rep. 365. Contra, 
 Nye V. Grubbs, 16 Miss. 643. 
 
 2 Jackson v. Vail, 7 Wend. 125. 
 
 3 Ratan v. Nichols, 22 Ark. 244. 
 
 * Walling V. Rosevelt, 16 N. J. L. 41. 
 
 B Blakeney v. Ferguson, 14 Ark. 641. 
 
 8 Atkins V. Tredgold, 2 Barn. & C. 23; Fordham v. Wallis, 10 Hare, 217; 
 Slaymaker v. Gundacker, 10 Serg. & R. (Pa.) 75. 
 
 TCrandall v. Gallup, 12 Conn. 365; Marshall v. Adams, 11 111. 37; Dent 
 V. Dent, 3 Gill (Md.) 482; Mangun v. Webster, 7 Gill (Md.) 78; Fellows v. 
 Fellows, 37 N. H. 75; Ellwood v. Delfendorf, 5 Barb. 398; Osgood v. Pres, 
 
318 THE LAW OF EVIDENCE. § 253. 
 
 ministrator,' or against a subsequent administrator de ionis non.° 
 Admissions are received on the principle that they are statements 
 against the interest of the party. The administrator or executor as 
 such has no such legal interest in the estate that he ought to be 
 allowed to prejudice its interests by statements to third persons. 
 In a legal sense it is to him personally a matter of indifference 
 whether claims ai*e allowed or disallowed or whether the assets are 
 distributed among creditors or among heirs and next of kin.^* And 
 the rule is the same although the administrator is also one of the 
 heirs of the estate, as in that capacity he has no such joint interest 
 with the other heirs as to charge them by his admissions.^^ Of course 
 statements of an executor or administrator made while represent- 
 ing an estate and attending to its business may be admitted when 
 they constitute a part of the res gestae.^' In a Massachusetts case 
 where the issue was whether the will of the deceased was procured 
 by fraud and undu^ influence, and whether the testator was igno- 
 rant of its contents, it was held that the admissions of the executor 
 and legatees could not be received, although parties to the record, 
 to the prejudice of other legatees or devisees ; that there was no such 
 relation of privity or joint interest as to render the statements ad- 
 missible."^' The admissions of an heir are not admissible to prove a 
 claim against the executor or administrator,^* unless he is the only 
 
 Manhattan Co., 3 Cow. 612, 15 Am. Dec. 304; Davis v. Gallaglaer, 124 N. 
 Y. 487, 26 N. E. 1045. But see Heywood v. Heywood, 10 Allen, 105. 
 
 sHammon v. Huntley, 4 Cow. 493; Pox v. Waters, 12 Adol. & Ell. 43; 
 Walkeep v. Pratt, 5 Harr. & J. (Md.) 51; Potter v. Greene, 51 Hun, 6; 
 Bruyn v. Russell, 52 Hun, 17. 
 
 8 Pease v. Phelps, 10 Conn. 62. Contra, Eckhert v. Triplett, 48 Ind. 174, 
 17 Am. Rep. 735. 
 
 loHueston v. Hueston, 2 Ohio St. 489; Jones v. Jones, 21 N. H. 219; 
 Church V. Howard, 79 N. Y. 415. 
 
 11 Hueston v. Hueston, 2 Ohio St. 489; Church v. Howard, 79 N. Y. 415. 
 
 12 Whlton v. Snyder, 8g N. Y. 299; Bckert v. Triplett, 48 Ind. 174, 17 Am. 
 Rep. 735; Davis v. Calvert, 5 Gill & J. (Md.) 269, 25 Am. Dec 282 and note. 
 
 13 Shailer v. Bumstead, 99 Mass. 112 ; Carpenter's Appeal, 74 Conn. 431, 
 54 Atl. 126; Hertrich v. Hertrich, 114 la. 643, 87 N. W. 689, 89 Am. St. 
 Rep. 389; Roller v. Kling, 150 Ind. 159, 49 N. E. 948; Schierbaum v. 
 Schemme, 157 Mo. 1, 57 S. W. 526; Hauberger v. Root, 6 Watts & S. (Pa.) 
 431; Hayes v. Burkham, 67 Ind. 359; In re Meyer's Will, 184 N. Y. 54, 76 
 N. E. 920. The same rule applies as to the admission of one of several 
 legatees as to the insanity of the testator, McMullan v. McDlU, 110 111. 47. 
 
 "Blake's Heirs v. Quash's Ex., 3 McCord (S. C.) 340; Bovard v. Wal- 
 lace, 4 Serg. & R. (Pa.) 449; Dietrich v. Dietrich, 4 Watts (Pa.) 167 and 
 note; Boyd v. Eby, 8 Watts (Pa.) 66; Hauberger v. Root, 6 Watts & S. 
 
§ 254. ADMISSIONS. 319 
 
 heir interested upon that side of the action." The admissions of one 
 tenant in common are not evidence against another.^" Thus it was 
 held that the evidence which a part owner of a vessel had given in 
 a former suit as to the extent and cost of the repairs put upon the 
 vessel was not admissible against the other part owners.^^ Nor is 
 there any such joint interest or privity among the members of a 
 board of public officers/' nor among several indorsers of a promis- 
 sory note,^* nor between a trustee and a cestui que trust,'" or trus- 
 tees and their colleagues,*^ as to make the admission of one evidence 
 against all. 
 
 § 254 (255). Declarations by wrong-doers — Conspiracy. — There 
 is in general no such joint interest between wrong-doers in actions 
 for negligence, trespass or other torts that the declaration of one 
 defendant is an admission against the others.^^ But in such cases 
 if the declaration or act forms a part of the res gestae, it is admis- 
 sible on grounds elsewhere discussed, not only as an admission af- 
 fecting the declarant, but as substantive evidence.*' So where sev- 
 eral persons having a common motive are associated for the same 
 illegal purpose, an act or declaration of one of the parties in refer- 
 ence to the common object and forming part of the res gestae is ad- 
 missible against the other;** and where several jointly attempt to 
 
 (Pa.) 431; Roberts v. Trawlck, 13 Ala. 68, 81. The same rule holds as to 
 the admissions of a devisee, O'Connor v. Madison, 98 Mich. 183, 57 N. W. 
 105. 
 
 IS Nussear v. Arnold, 13 Serg. & R. (Pa.) 323. 
 
 10 Dan v. Brown, 4 Cow. 483, 15 Am. Dec. 395; Lane v. Doty, 4 Barb. 
 536; Corning v. Troy Factory, 39 Barb. 325; Fothergill v. Fothergill, 129 
 la. 93, 105 N. W. 377; In re Kennedy's Will, 167 N. Y. 163, 60 N. B. 442. 
 Contra, Zibble v. Zibble, 131 Mich. 655, 92 N. W. 348.' 
 
 17 The "New Orleans," 106 U. S. 13. 
 
 18 Lockwood V. Smith, 5 Day (Conn.) 309. 
 
 10 Slaymaker v. Gundacker, 10 Serg. & R. (Pa.) 75. 
 
 20 Bragg V. Geddes, 93 111. 39; Eitelgeorge v. Mutual Ass'n, 69 Mo. 52. 
 But see. Mason v. Poulson, 40 Md, 355. 
 
 21 Salado College v. Davis, 47 Tex. 131; Walker v. Dunspeaugh, 20 N. Y. 
 170. 
 
 22 Morse v. Royal, 12 Ves. 362. On the subject of this section see note, 
 1 L. R. A. 273. 
 
 2s Carpenter v. Welden, 5 Sandf. (N. Y.) 77; Wilson v. O'Day, 5 Daly 
 (N. Y.) 354; North v. Miles, 1 Camp. 389; Bowsher v. Galley, 1 Camp. 391; 
 Rex V. Hardwick, 11 East 585; Powell y. Hodgetts, 2 Car. & P. 432. 
 
 24 American Fur Co. v. TJ. S., 2 Peters 358; Lincoln v. Claflin, 7 Wall. 
 132; Nudd v. Burrows, 91 U. S. 426; Wlborg v. U. S. 163 U. S. 632, 657; 
 Johnson v. State, 29 Ala. 62, 65 Am. Dec. 383; Clinton v. Estes, 20 Ark. 
 
320 THE LAW OF BVIDBNCB. § 254. 
 
 accomplish a fraud, the declarations of one of them made during the 
 progress and in the prosecution of the joint undertaking or accom- 
 panying and explaining acts done in furtherance of it are evidence 
 against the others.^" Thus in an action by a woman for indecent 
 assault, the defendant may introduce evidence of statements by the 
 plaintiff's husband tending to show that the action was brought to 
 carry out a scheme contrived by them for extorting money. But 
 the combination must be clearly proved to render such evidence 
 admissible.^" It is on the same principle that, when a conspiracy is 
 shown, the acts and declarations of each conspirator in furtherance 
 of the common object are admissible against the others.^' But in 
 such cases it must first be proved by other evidence that a conspir- 
 acy existed at the time the declarations were made. The mere dec- 
 larations of one of the alleged conspirators are not competent for 
 this purpose, unless they form a part of the res gestae.^' But in 
 such cases something is left to the discretion of the court as to the 
 order of the testimony."' Even if a conspiracy is shown aliunde, 
 the declarations of one conspirator are not admissible against the 
 others, if made after the common design is accomplished or aban- 
 doned.'" The common fraudulent design may be shown by subse- 
 
 216; Lasher v. Llttell, 202 III. 551, 67 N. E. 372; State v. Ross, 29 Mo. 32; 
 State v. Nash, 7 Iowa, 347; State v. Grady, 34 Conn. 118; Oldham v. Bent- 
 ley, 6 B. Mon. (Ky.) 428; State v. Hogan, 3 La. An. 714; State v. Soper, 16 
 Me. 293, 33 Am. Dec. 665; Com. v. Brown, 14 Gray, 419; People v. Pitcher, 
 15 Mich. 397; Mask v. State, 32 Miss. 405; Preston v. Bowers. 13 Ohio St. 1, 
 82 Am. Dec. 430; State v. Thibeau, 30 Vt. 100; Crary v. Sprague, 2 Wend. 
 41, 27 Am. Dec. 110, 115 and note. 
 
 asLee v. Lamprey, 43 N. H. 13; Patton v. Freeman, 1 N. J. L. 113; 
 A.pthrop V. Comstock,.2 Paige, 482; Jackson v. Summerville, 13 Pa. St. 359; 
 Peterson v. Speer, 29 Pa. St. 479; Soott v. Baker, 37 Pa. St. 330; Jenne v. 
 Joslyn, 41 ■Vt.-478; Connors v. Chlngren, 111 Iowa, 437, 82 N. W. 934. 
 
 aeMawlch v. Elsey, 47 Mich. 10. 
 
 2T Metcalfe v. Conner, LItt. Sel. Cas. (Ky.) 497, 12 Am. Dec. 340; People 
 V. Zimmerman (Cal.), 84 Pac. 446; Com. v. Crowninshield, 10 Pick. 497; 
 Lynes v. State, 36 Miss. 617; State v. Rose, 29 Mo. 32; Clinton v. Estes, 
 20 Ark. 216; Benford v. Sanner, 40 Pa. St. 9, 80 Am. Dec. 545. 
 
 28 Metcalfe v. Connor, Litt. Sel. Cas. (Ky.) 407, 12 Am. Deo. 340; Burke 
 V. Miller, 7 Cush. 547; Benford v. Sanner, 40 Pa. St. 9, 80 Am. Dec. 545. 
 
 2» People V. Compton, 123 Cal. 403, 56 Pac. 44; State v. Thompson, 69 
 Conn. 720, 38 Atl. 868; State v. Bolden, 109 La. 484, 33 So. 571; Com. v. 
 Rogers, 181 Mass. 184, 63 N. E. 421; Cohn v. Saidel, 71 N. H. 558, 53 Atl. 
 800; Lawrence v. State, 103 Md. 17, 63 Atl. 96; Wright v. Stewart, 130 Fed. 
 906. 
 
 so Lynes v. State, 36 Miss. 617; State v. Ross, 29 Mo. 32; Clinton v. 
 
§ 255. ADMISSIONS. 321 
 
 quent participation in the fraud and its fruits with the knowledge 
 of the facts; and where there is proof of a common design to de- 
 fraud, the declarations of one participant are admissible against the 
 other, although made in his absence.'^ 
 
 § 255 (256). Declarations of agents. — As a general rule parties 
 are not chargeable with the declarations of their agents, unless such 
 declarations or statements are made during the transaction of busi- 
 ness by the agent for the principal and in relation to such business 
 and while within the scope of the agency, in other words, unless the 
 representations may be deemed a part of the res gestae.^'' This prin- 
 ciple has been illustrated under another head by numerous cases 
 from which it appears that one condition of receiving the declara- 
 tions of one alleged to be an agent is that the agency must be proved 
 aliunde and not by the declarations themselves," although such 
 proof need not be invariably introduced in the first instance, the or- 
 
 Estete, 20 Ark. 216; Benford v. Banner, 40 Pa. St. 9, 80 Am. Deo. 545; State 
 V. Duncan, 64 Mo. 262; Sorenson v. United States, 143 Fed. 820. 
 
 81 Lincoln v. Clafflin, 7 "Wall. 132; Nudd v. BurroT^'S, 91 U. S. 426; United 
 States V. Francis, 144 Fed. 520. 
 
 32 Governor v. Baiter, 14 Ala. 652; Byers v. Fowler, 14 Ark. 86; Hynds 
 V. Hays, 25 Ind. 31; Dome v. Southwork Mfg. Co., 11 Cush. 205; Lowery 
 V. Harris, 12 Minn. 255; Burbank v. Hammond, 189 Mass. 189, 75 N. B. 
 107; Butters Siflt & Lumber Co. v. Vogel, 135 Mich. 381, 97 N. W. 575; 
 Jones V. Harrell, 110 Ga. 373, 35 S. E. 690; Nosberg v. Plummer, 58 Neb. 
 410, 78 N. W. 708; Gregory v. Loose, 19 Wash. 599, 54 Pac. 33; Union G. & 
 T. Co. V. Robinson, 79 Fed. 420; Moore v. Bettis, 11 Humph. (Tenn.) 67, 53 
 Am. Dec. 771; Hayward Rubber Co. v. Dunckle, 30 Vt. 29; Cliquot's Cham- 
 pagne, 3 Wall. 114, 140; Burnham v. Ellis, 39 Me. 319, 63 Am. Dec. 625; 
 Runk V. Ten Eyck, 24 N. J. L. 756; People v. Vernon, 35 Cal. 49, 95 Am. 
 Dec. 48 and note 72; Thollhimer v. Brinckeroff, 4 Wend. 394, 21 Am. Dec. 
 155; Stewartson v. Watts, 8 Watts. (Pa.) 392; Gott v. Dinsmore, 111 Mass. 
 45; Nichols v. Southern Pac. Ry. Co., 23 Ore. 123; Robinson v. Walton, 58; 
 Mo. 380; McComb v. N. C. Ry. Co., 70 N. C. 178; Linblom v. Ramsey, 75 
 111. 246; Sweatland v. Illinois Telegraph Co., 27 Iowa, 433; Kilpatrick v. 
 Kahn, 53 Kan. 274. But there is an exception when the transaction is 
 said to be tainted with fraud growing out of the confidential relations of 
 the agent and other parties, Jones v. Jones, 120 N. Y. 589. On the general 
 subject of this section see valuable notes, 53 Am. Dec. 773-778, 95 Am, Dec. 
 72-75. 
 
 ssMoffit V. Cresler, 8 Iowa, 122; Pitch v. Chapman, 10 Conn. 8; Mapp. v. 
 Phillips, 32 Ga. 72; Wabash CanaJ v. Bledsoe, 5 Ind. 133; Fifer v. Clear- 
 field & Cambria Coal & Coke Co., 103 Md. 1, 62 Atl. 1122; Brooke v. L«we 
 (Ga.), 50 S. E. 146; Brownfield v. Denton, 72 N. J. I* 235, 61 Atl. 378; 
 Farmer v. Lewis, 1 Bush (Ky.) 66, 89 Am. Dec. 610; Hatch v. Squires, 
 11 Mich. 185; Stencerbox v. McGrade, 6 Minn. 484; Royal v. Sprinkle, 1 
 Jones L. (N. C.) 505; Robeson v. Schuylkill Nav. Co., 3 Grant Cas. (Pa.) 
 21 
 
322 THE LAW OF BVIDENCa. § 256. 
 
 der of proof being within the discretion of the court.'* The declara- 
 tions of the alleged agent are not competent to prove such agency, 
 although they are accompanied by acts purporting to be acts of 
 agency. But, of course, such declarations and acts are competent 
 if there is proof of former similar acts or declarations recog- 
 nized or approved by the principal.''* Since the declarations of 
 the agent are not admissible unless they constitute a part of the res 
 gestae, they cannot be received, unless they are contemporaneous 
 with the acts which they illustrate and of which they form a part." 
 The declarations of an agent while' acting within the scope of his 
 business and authority are original evidence. They are the ultimate 
 fact to be proved and not an admission of some other fact; and the 
 only question is whether the. declarations were made and relied 
 upon.'^ It often happens, however, that the declarations of an agent 
 are admissible as part of the res gestae and that they form no part 
 of any contract and contain no element of estoppel, in which cases 
 they are, of course, open to explanation or may be shown to be in- 
 correct, like admissions in general. Of this character are numerous 
 cases referred to in another section where the declarations of agents 
 and employes contemporaneous with alleged acts of negligence were 
 held admissible as against the principal." 
 
 § 256 (257) . Same — Effect of such declarations. — The power of 
 an agent to bind his principal by admissions may be shown by proof 
 of express authority or it may be inferred from the nature of the 
 employment. If a general agent acts within the apparent scope of 
 his authority, he may bind his principal, although the acts and 
 declarations are in violation of his express orders, unless such orders 
 are known to the other party.'" Thus, if the agent of a horse dealer 
 
 186; Latham v. Pledger, 11 Tex. 439; Johnson v. East Tennessee Ry. Co., 
 
 90 Ga. 810. See § 251, supra. 
 
 8« Woodbury v. Lamed, 5 Minn. 339; First Unitarian Soc. v. Faulkner, 
 
 91 U. S. 415. 420. 
 
 30 Aetna Ins. Co. v. Northwestern Iron Co., 21 Wis. 458; Donaldson v. 
 E^re^hart, 50 Kan. 718; Nation v. Thomas, 25 Tex. 221; Manilla v. Hough- 
 ton, 154 Mass. 465; Winchester Manufacturing Co. v. Creary, 116 XJ. S. 
 161 and cases above cited. 
 
 s6 For numerous illustrations of this principle see §§ 356, 357, infra. 
 
 37 1 Phil. Ev. 381. 
 
 88 See § 356, et seq. infra. 
 
 30 Barber v. Brltton, 26 Vt. 112; Melndorff v. Wickersham, 63 Pa, St. 
 87; Lobdell v. Baker, 1 Met. 193, 203, 35 Am. Dec. 358; AV^ight v. Reusens, 
 133 N. Y. 298. See extended note, 53 Am. Dec. 773-778. See also the fol- 
 lowing sections. 
 
§ 257. ADMISSIONS. 323 
 
 having power to sell gives a warranty, the principal is bound, al- 
 though he had given express directions not to warrant.*" Whe3l*,ji 
 broker makes a sale in the usual course of business his admissions 
 and representations made at the time bind the principal, although 
 contrary to direct instructions.*^ But the principle just stated does 
 not apply to the declarations of public agents. While individuals 
 are liable to the extent of the power they have apparently given to 
 their agents, the government or municipalities are liable only to the 
 extent of the power actually conferred; and all persons must take 
 notice of the extent of the authority of those acting in an official 
 capacity.*^ 
 
 § 257 (258, 259) . Admissions by attorneys. — In the conduct of 
 litigation it is frequently to the advantage of the parties for their 
 attorneys to make stipulations as to questions of fact or dispensing 
 with proof of certain facts. Attorneys are deemed the agents of 
 their clients for the purpose of making such admissions in all mat- 
 ters relating to the progress and trial of the action. *^^ Indeed, any 
 fact bearing upon the issues involved admitted by counsel may be 
 the ground of the court's procedure equally as if established by the 
 
 *o Pickerjng v. Busk, 15 East, 43. 
 
 11 Lobdell V. Baker, 1 Met. 193, 35 Am. Dec. 358; Daylight Burner Co. 
 V. Odlin, 51 N. H. 56, 12 Am. Rep. 45; Dlas v. Chlckerlng, 64 Md. 348. 54 
 Am. Rep. 770; Hlggins v. McCrea, 116 U. S. 671. 
 
 *2The Floyd Acceptance, 7 Wall. 666; Clark v. Des Moines, 19 Iowa, 199, 
 87 Am. Dec. 423 and note; Pierce v. United States, 1 Ct. of CI. 270; Grant 
 V. United States, 5 Ct. of CI. 71; State v. Hayes, 52 Mo. 578; Mayor v. 
 Reynolds, 26 Md. 1; Delafield v. State, 26 Wend. 238. See note, 53 Am. 
 Dec. 777-778. 
 
 42a Attorneys may bind their clients by admitting the execation of instru- 
 ments. Young V. Wright, 1 Camp. 141; Griffith v. Williams, 1 T. R. 710; 
 Goldie T. Shuttleworth, 1 Camp. 70; the amount due on a deM, Wilson v. 
 Spring, 64 111. 14; they may dismiss or discontinue an action, McLeron 
 V. McNamara, 55 Cal. 508; Rogers v. Greenwood, 14 Minn. 333; Gaillard 
 V. Smart, 6 Cow. 385; Barrett v. Third Ave. Ry. Co., 45 N. Y. 628; Davis 
 V. Hall, 90 Mo. 659; Schoenberg v. Adler, 105 Wis. 645; consent to a 
 nonsuit, Lynch v. Cowell, 12. Law T. 548; stipulate as to the issues to 
 be tried, Bingham v. Supervisors, 6 Minn. 136; J. L». Roper Lumber Co. 
 V. Lumber Co. (N. C), 49 S. B. 946; consent to the entering of judgment, 
 Harniska v. Dolph, 133 Fed. 159; after judgment the attorney's powers 
 are limited, Brown v. Arnold, 131 Fed. 723; waive informalities, Hanson 
 V. Hoitt, 14 N. H. 56; Dubuc v. Lazell, Dalley & Co. (N. Y. App.), 75 N. 
 E. 401; consent to a reference or admit all the facts in issue for the pur- 
 pose of determining the questions of law involved; Stokely v. Robinson, 
 34 Pa. St. 315; Wade v. Po^vell, 31 Ga. 1; Smith v. Bossard, 2 McCord Eq. 
 (S. C.) 406; Tiffany v. Lord, 40 How. Pr. (N. Y.) 481. 
 
324 THE LAW OP KVU)ENCE. § 257. 
 
 clearest proof.** When admissions of tMs character are formally 
 ir^de for the purpose of waiving certain proofs or rules of prac- 
 tice^iifj^ey are conclusive upon the client and cannot be withdrawn. 
 It would operate as a fraud upon the adverse party, if, after he had 
 been thus induced to withhold necessary proofs, he should be com- 
 pelled to prove the facts which had been admitted, or to submit to 
 defeat." 
 
 During the progress of the trial attorneys stand in the place 
 of their clients and may perform the same acts which such clients 
 might perform in person, hence there is scarcely any limit to the 
 admissions which they may make. Such admissions are not confined 
 to stipulations regarding the facts of the case or to the waiver of 
 proofs. The attorney may, by his express statements during the 
 trial or by Ms mode of conducting the action, waive a part of the 
 relief which he might otherwise claim.*" And by the constant prac- 
 tice of the courts parties are precluded from questioning the regu- 
 larity of proceedings or the competency of evidence to which they 
 have failed to make timely objection.*" But, although the English 
 rule is otherwise, by the clear weight of authority in the United 
 States attorneys have no implied power to compromise and settle 
 their clients' claims.*^ It is essential to the orderly conduct of busi- 
 ness in the courts that attorneys who stand in the place of their 
 clients should frequently make formal admijSsions of the character 
 already mentioned ; and, if made in the presence of the court, it is 
 immaterial whether they be oral or written or whether they be ex- 
 press or plainly inferred from the conduct on which the opposite 
 attorney and the court have the right to rely;*'- and in such cases 
 
 *« Starke v. Kenan, 11 Ala. 818; Farmers Bank v. Sprigg, 11 Md. 389; 
 Pike v. Emerson, 5 N. H. 393; Talbot v. McGee, 4 T. B. Mon. (Ky.) 377; 
 Lewis V. Sumner, 13 Met. 269; Davis v. Territory. 15 Okl. 462, 82 Pac. 507. 
 
 4* Oscanyan v. Arms Co., 103 U. S. 261; Alton v. Gilmanton, 2 N. H. 520; 
 Davies v. Burton, 4 Car. & P. 166. 
 
 « Hoyt V. Gelston, 13 Johns. 141. 
 
 ^oWliite V. Kibllng, 11 Johns. 128. 
 
 47Prltchey v. Bosley, 56 Md. 94; North Whitehall v. Keller, 100 Pa. St. 
 105, 45 Am. Rep. 361; Jones v. Inness, 32 Kan. 177; Kelly v. WVlght, 65 
 Wis. 236; Roberts v. Nelson, 22 Mo. App. 28; Whipple v. Whitman, 13 R. 
 I. 512, 43 Am Rep. 42; Granger v. Batchelder, 54 Vt. 248, 41 Am. Rep. 
 846; Amjbrose v. McDonald, 53 Cal. 28; Pickett v. Bank, 32 Ark. 346; 
 Mandeville v. Reynolds, 68 N. Y. 528; Wetherbee v. Fitch, 117 111. 67; 
 Roller v. Wooldridge, 46 Tex. 485; Moye v. Cogdell, 69 N. C. 93. Contra, 
 Bonney v. Morrill, 57 Me. 368. 
 
 *8 Doe ex Oem. Child v. Roe, 1 El. & B. 279; Stracy v. Blake, 1 M. & W. 
 
§ 258. ADMISSIONS. 325 
 
 tlie admissions and acts of the attorney are to be treated as those 
 of the client ; and are conclusive upon him, unless fraud or collusion 
 is shown.*' Stipulations in writing made by attorneys out of court 
 dispensing with proof of certain facts are also conclusive upon their 
 clients.'"' It is a good illustration of the effect given to the admis- 
 sions of counsel that the courts sometimes grant a nonsuit or in the 
 federal courts direct a verdict upon the opening statement of the 
 plaintiff's counsel, when such statements are unambiguous in their 
 meaning, and in the opinion of the court clearly show that there 
 should be no recovery."^ Where attorneys make statements as to 
 facts in controversy in the presence of their clients who make no 
 objection, such statements are competent as admissions.^^ 
 
 § 258 (260). Same — Casual statements — ^Informal admissions. — 
 Statements made by attorneys out of court and not during the trans- 
 action of business within their employment are not admissible 
 against their clients, even though such statements relate to the sub- 
 ject matter in controversy. It would be an intolerable rule, if by 
 mere loose conversations attorneys were allowed to divest their cli- 
 ents of the rights they are bound to protect."' The statements of an 
 attorney during a conversation held for the purpose of settling a 
 controversy are not admissible ;°* nor are the statements of an at- 
 torney, with whom a demand is left for collection, admissible as to 
 collateral facts f^ nor do such admissions made in an unauthorized 
 letter to one against whom a suit is contemplated bind the client."" 
 But in the conduct of the business preparatory to trial, there may 
 
 168; Wilson v. Spring, 64 111. 14; Loomls v. New York, N. H. & H. R. Ry. 
 Co., 159 Mass. 39. 
 
 *9 Colledge v. Horn, 3 Bing. 119; Wilklns v. Stidger, 22 Cal. 231, 83 Am. 
 Dec. 64; Wilson v. Spring, 64 111. 14. 
 
 BO Fowler v. Oilman, 13 Met. 267. As to oral agreement out of court not 
 controverted, see People v. Stephens, 52 N. Y. 306. 
 
 51 Oscanyan v. Arms. Co., 103 U. S. 261; Clews v. Bank, 105 N. Y. 398. 
 
 «2L.ord V. BIgelow, 124 Mass. 185; Colledge v. Horn, 3 Bing. 119. 
 
 03 Fetch V. Lyon, 9 Q. B. 147; Young v. Wright, 1 Camp. 139; Parkins v. 
 Hawkshaw, 2 Stark. 239; Doe v. Richards, 2, Car. & K. 216; Saunders v. 
 McCarthy, 8 Allen, 43; Rockwell v. Taylor, 41 Conn. 55; Cable Co. v. 
 Parantha (Ga.), 45 S. E. 787; Hicks v. Naomi Palls Mfg. Co. (N. C), 50 
 S. E. 708; McKeen v. Gammon, 33 Me. 187; Douglas v. Mitchell, 35 Pa. 
 S.t. 440; Treadway v. S. C. Ry. Co., 40 Iowa, 526; Thomas v. Kinsey, 8 Ga. 
 421; Angle v. Bilby, 25 Neb. 595; Woreley v. Hinema,n, 6 Ind. App. 240; 
 Proctor V. Old Colony Ry. Co., 154 Mass. 251. 
 
 0* Saunders v. McCarthy, 8 Allen, 43. 
 
 00 Underwood v. Hart, 23 Vt. 120. 
 
 Be Solomon Ry. Co. v. Jones, 34 Kan. 443. 
 
326 THE IjAw of evidence. § 259. 
 
 be incidental admissions made by counsel waiving the proof of cer- 
 tain facts, although no such intention exists ; for example, an attor- 
 ney gave a notice describing a paper as "a bill which was accepted 
 by said defendant," which was held prima facie evidence of accept- 
 ance by the defendant."^ But an affidavit for continuance made by 
 the attorney, as to which the party has no knowledge, Is not com- 
 petent as an admission."' 
 
 § 259 (261). Same — Different actions or trials. — The admissions 
 made by an attorney in one action are not admissible in a different 
 action between the same parties."* But where an absolute and un- 
 qualified admission is made in a pending cause, whether by written 
 stipulation of the attorney or as matter of proof on the hearing, 
 it may be used on a subsequent trial and cannot be retracted, unless 
 by leave of the court on a proper showing of mistake, imposition 
 or surprise."" But mere informal admissions made by counsel in 
 one trial are not admissible in a second trial f^ and admissions by an 
 attorney in the trial of a cause as to the amount of the damages in 
 case of recovery do not bind his client at a subsequent trial.'^ Some 
 of the cases already cited illustrate the rule that admissions of this 
 character are not confined to the statements or stipulations made 
 by the attorney during the trial of the cause. The admissions may 
 be before the trial and may be derived from bills of particulars,'^ 
 or notices, or other documents served during the progress of the 
 cause.'* It is hardly necessary to add that the statements of an at- 
 
 07 Holt V. Squire, Ryan & M., 282; Marshall v. Cliff, 4 Camp. 133; Mil- 
 ward V. Temple, 1 Camp. 375. Admissions In an opening speech In a for- 
 mer trial, admitted, Missouri & K. Tel. Co. v. Vandevort (Kan.) 72 Pac. 
 771. 
 
 »» Mhirray v. Chase, 134 Mass. 92. 
 
 M Wllkins V. Stidges, 22 Cal. 231, 83 Am. Dec. 64; Mofflt v. Wltherspoon, 
 10 ired. (N. C.) 185; Miller v. U. S., 133 Fed. 337, 351; Harrison's De- 
 visfees V. Baker, 4 Lltt. (Ky.) 250; Hicks v. Naomi Falls MJS- Co. 
 (N. C), 50 S. E. 703. See extended note, 99 Am. Dec. 480-481. 
 
 ooTruelove v. Burton, 9 Moore, 64; Owen v. Cawley, 36 N. Y. 600; Perry 
 V. Simpson Mfg. Co., 40 Conn. 313; Nathan v. Dierssen, 146 Cal. 63, 79 
 Pac. 739; Moynahan v. Perkins (Colo.), 85 Pac. 1132; Holley v. Young, 68 
 Me. 215, 28 Am. Rep. 40; Union Pac. Ry. Co. v. Shoup, 28 Kan. 394. For 
 further discussion as to when admissions may be withdrawn see § 274, 
 infra. 
 
 «i CoUedge v. Horn, 3 Blng. 119; Rex v. Coyle, 7 Cox Cr. C. 74; Wllkins 
 V. Stldger, 22 Cal. 231, 83 Am. Dec. 64. 
 
 62 Weisbrod v. Chicago & N. W. Ry. Co., 20 Wis. 419. 
 
 •a Rymer v. Cook, 1 Moody & M. 86 and note. 
 
 •« Holt V, Squire, Ryan & M. 282. 
 
§ 260. ADMISSIONS. 327 
 
 torney are not admissible if made before his employment com- 
 menced, or after it has ceased."" Nor is it to be inferred that an at- 
 torney has authority to compromise a claim left in his hands for 
 collection by receiving a sum less than its face value."* Whenever 
 the statements of an attorney would be competent as admissions, 
 the statements of his clerk acting in his place are also competent."'' 
 § 260 (262). Admissions of husband and wife. — The declara- 
 tions of the husband may be received against the wife, or those of 
 the wife may be received against the husband as admissions when, 
 under the general principles of agency, the declarant is the agent 
 of the other party, and the declarations are made by express au- 
 thority within the scope of such agency, and as a part of the res 
 gestae.^^ Of course this rule must be applied with the limitation 
 that the powers of married women to enter into contracts are greatly 
 restricted, and hence they can only appoint agents to act within 
 those limits."" But it is well settled that either the husband or the 
 wife may act as the agent of the other, and, within the scope of 
 such agency, may bind the other by admissions or acknowledg- 
 ments f" and the wife may charge the husband by her acts and 
 statements in obtaining those necessaries which the husband has 
 neglected or refused to furnish. In such case the agency arises from 
 the marriage relation by operation of law.'^ But in other cases the 
 authority to make admissions miist ie shown before the declarations 
 of either husband or wife can be received against each other;'* and 
 
 eB Janeway v. Skerrltt, 30 N. J. L. 97. 
 
 6« Insurance Co. v. Buchanan, 100 Ind. 63; Repp v. Wiles, 3 Ind. App. 167. 
 
 «i Griffiths V. Williams, 1 T. R. 710; Truelove v. Burton, 9 Moore, 64; 
 Taylor v. Williams, 2 Barn. & Adol. 845; Standage v. Creighton, 5 Car. 
 & P. 406; Power v. Kent, ] Cow. 211; Birkbeck v. Stafford, 14 Abb. (N. Y.) 
 285, 23 How. Pr. (N. Y.) 236; Lord, Owen & Co. v. Wood, 120 la. 303, 94 N. 
 W. 842. 
 
 88 Emerson v. Blonden, 1 EBp. 142 ; Anderson v. Sanderson, 2 Stark. 
 204; Carey v. Adklns, 4 Camp. 92; Rose v. Chapman, 44 Mich. 312; Good- 
 rich v. Tracy, 43 Vt. 314, 5 Am. Rep. 281; Llvesley v. I.asalette, 28 Wis. 
 38; Starns v. Hadnot, 42 La. An. 366. 
 
 «9 Stew. Hus. and Wife, §§ 84, 85. 
 
 10 Stew. Hus. and Wife, §§ 84-98. 
 
 '1 Stew. Hus. and Wife, §§ 95-98; Benjamin v. Benjamin, 15 Conn. 347, 
 39 Am. Dec. 384 and note. 
 
 72 Price V. Leydel, 46 Iowa, 696; Edwards v. Tyler, 141 111. 454; Rowell 
 V. Klein, 44 Ind. 290; Norfolk Bank v. Wood, 33 Neb. 113; Eystra v. 
 Capelle, 61 Mo. 578; Evans v. Evans, 155 Fa. St. 572; Llvesley v. Lasalette, 
 28 Wis. 38; White v. Town of Portland, 63 Conn. 18; ponaldson v. EJvey- 
 bart, §0 JCan. 71?, 
 
828 THE LAW OF EVIDBNCE. § 261. 
 
 although such authority may as in other cases of agency be implied 
 from the acts and conduct of the parties or from subsequent ratifi- 
 cation, it cannot he implied from the mere existence of the marriage 
 relation.''^ Thus in the absence of proof of agency, the declarations 
 of a wife in the lifetime of her husband showing his liability to a 
 debt are ing,dmissible ;" and a husband's admissions are incompe- 
 tent to prove that he is agent for his wife in matters concerning her 
 separate property." It has been frequently held that, where the 
 husband and wife are joined as parties plaintiff, the admissions of 
 the wife are not competent against the husband although they sue 
 in her right, as for her wages or debts due her.'* On the same prin- 
 ciple it was held that admissions made by a wife without her hus- 
 band's knowledge, were not competent evidence of a way by pre- 
 scription over land owned by them in her right." It is to be ob- 
 served, however, that inasmuch as modern statutes have greatly ex- 
 tended the powers of married women in respect to the holding of 
 property and the making of contracts, their power to affect such 
 property by admissions has been correspondingly increased; and 
 that, in so far as married women may make contracts and carry on 
 business, their admissions are evidence against themselves.'* In an 
 action by or against the trustee of a married woman, her admissions 
 like those of any other cestui que trust are admissible," even though 
 her husband is the adverse party.'* 
 
 § 261 (263). Same — Power to make admissions — How inferred. 
 —Although the general power to make contracts and admissions 
 cannot be inferred from the mere existence of the marital relation, 
 yet the law will more readily presume an agency and sometimes 
 imply a larger authority than if no such relation existed. But these 
 inferences are founded on the fact that the acts are such as are 
 usual and customary for the husband or wife to perform under sim- 
 
 " Butler V. Price, 115 Mass. 578; Deck v. Johnson, 1 Abb. Dec. (N. Y.) 
 497'; Martin v. Rutt, 127 Pa. St. 380. See also cases last cited. 
 
 7* May V. Little, 3 Ired. (N. C.) 27, 38 Am. Dec. 707. 
 
 's Whitescarver v. Bonney, 9 Iowa, 480. 
 
 TsDenn v. White, 7 T. R. 112; White v. Holman, 12 Me. 157; Turner T. 
 Coe, 5 Conn. 94; Jordan v. Hubbard, 26 Ala. 433; Laselle v. Brown, 8 
 Blackf. (Ind.) 221. 
 
 TT McGregor v. Wait, 10 Gray, 72, 69 Am. Dec. 305. 
 
 TsMorrell v. Cawley, 17 Abb. Pr. (N. Y.) 76; McLean v. Jagger, 13 How. 
 Pr. (N. Y.) 494; Hackman v. Plory, 16 Pa. Sit. 196; Winter v. Walter, 37 
 Pa. St 155; Laselle v. Brown, 8 Blaclcf. (Ind.) 221. 
 
 "Tayl. Ev. (10th Ed.) § 766. 
 
 •0 Schaley v. Cioodman, 1 Bing. 349. 
 
§. 262. ADMISSIONS. 829 
 
 ilar circumstances.'* Thus, it lias been held competent to infer the 
 authority of a wife to accept a notice ia respect to a particular 
 transaction from the fact that she was seen twice in her husband's 
 office appearing to conduct his business relating to that transaction 
 and once giving orders to the foreman ■,^^ or from the fact that he 
 was absent frgm his place of business, and no one else was present 
 to attend to it.** But in all such cases the admissions of the hus- 
 band or wife must fall within the scope of the authority which may 
 be reasonably presumed from the nature of the business and the 
 powers delegated.'* Thus, while a wife carrying on a business for 
 her husband might make admissions with respect to matters con- 
 nected with the trade, she would have no implied authority to make 
 admissions of an antecedent contract for the hire of the shop." 
 
 § 262 (264). Same — ^In actions for divorce. — Unlike other con- 
 tracts the contract of marriage cannot be dissolved by the mere 
 consent and agreement of the parties ; and in actions for the disso- 
 lution of this contract, that is for divorce, admissions are closely 
 scrutinized. Although the husband and the wife are the parties to 
 the record, the state is for some purposes deemed interested in the 
 proceeding. The suit for divorce has been called a triangular pro- 
 ceeding sui generis, in which the government occupies the position 
 of a third party.'" Since the public have an interest in actions for 
 divorce and ought not to be bound by the admissions of one of the 
 parties, it has generally been held that a divorce should not be 
 granted upon the uncorr oh orated admission or confession of 
 a party ; " and in some of the states this rule is declared by stat- 
 
 81 Benjamin v. Benjamin, 15 Conn. 347, 39 Am. Dec. 384; Anonymous, 1 
 Strange, 527; Church v. Landers, 10 Wend. 79. 
 
 82 Plimmer y. Sells, 3 Nev. & Man. 422. 
 
 83 Rotch V. Miles, 2 Conn. 638. 
 
 84 Meredith v. Pootner, 11 M. & W. 202; White v. Holman, 12 Me. 157; 
 Goodrich v. Tracy, 43 Vt. 314, 5 Am. Rep. 281; McGregor v. Wait, 10 Gray, 
 72, 69 Am. Dec. 305; Coe v. Turner, 5 Conn. 86; Sheppard v. Stark, 3 
 Munf. (Va.) 29; Hunt v. Strew, 33 Mich. 85; May v. Little, 3 Ired. (N. C.) 
 27, 38 Am. Deo. 707; Hussey v. Elrod, 2 Ala. 339, 36 Am. Dec. 420; Jordan 
 V. Hubbard, 26 Ala. 433; Queener v. Morrow, 1 Cold. (Tenn.) 123; Burnett 
 V. Burkhead, 21 Ark. 77, 76 Am. Dec. 358; Butts v. Newton, 29 Wis. 632. 
 
 85 Meredith v. Pootner, 11 M. & W. 202. 
 
 88 2 Bish Mar. & Dlv. § 231; Nelson, Divorce & Separation § 7. On 
 the subject of this section see extended note, 30 Am. Dec. 544. 
 
 87Woolfolk V. Woolfolk, 53 Ga. 661; Stibbins v. Stibblns, 1 Met. (Ky.) 
 476; Billings v. Billings, 11 Pick. 461; Armstrong v. Armstrong, 32 Miss. 
 279; White v. White, 45 N. H. 121; Miller v. Miller, 2 N. J. Eq. 139, 32 
 Am. Dec. 417; Latham v. Latham, 30 Gratt. (Va.) 307; Richardson v, 
 
330 THE LAW OP EVIDENCB. § 263. 
 
 ute."* But when admissions or confessions are full, deliberate, free 
 from collusion and corroborated, they can be treated as evidence of a 
 high grade.*" On the other hand if they are obtained by fraud, col- 
 lusion or duress, they should be rejected as of no value whatever; 
 and owing to the temptation to collusion, admissions in divorce suits 
 should always be carefully scrutinized when there is any reason to 
 suspect that the parties desire a divorce."" It is sometimes held that 
 divorces may be granted on admissions or confessions alone, when 
 it is clearly established by the circumstances of the case that there 
 is no collusion.'^ In those jurisdictions where the admissions must 
 be corroborated by proof of other facts, the amount of corroboration 
 required depends upon the opportunities for collusion ; where there 
 is less danger of collusion, the corroborating facts need not be so de- 
 cisive as in other eases."^ 
 
 § 263 (265). Admissions by persons referred to. — When a party 
 to any proceeding expressly refers to any other person for an an- 
 swer on a particular subject in dispute, such answer is in general 
 evidence against him for the reason that he makes such third person 
 his accredited agent for the purpose of giving such answer."' Thus 
 in an action where the delivery of goods is in issue, if the defendant 
 agrees to pay for the goods if a third person will say that they had 
 been delivered, the statement of such person may be admitted 
 
 Richardson, 50 Vt. 119; Scott v. Scott, 17 Ind. 309; Succession of Welgel, 
 18 La. An. 40; True v. True, 6 Minn. 458; Devanbagh v. Devanbagh, 5 
 Paige (N. Y.) 554, 28 Am. Dec. 443; Robinson v. Robinson, 16 Mich. 79; 
 Elvans V. Evans, 41 Cal. 103; Summerbell v. Summerbell, 37 N. J. Eq. 603; 
 Perkins v. Perkins, 59 N. J. Eq. 173, 46 Atl. 173. 
 
 88 See statutes collected, Wigmore on Evidence § 2067. 
 
 soMatchin v. Miatchin, 6 Pa. St. 332, 47 Am. Dec. 466; Mortimer v. 
 Mortimer, 2 Hagg. Const. 310 ; Stone v. Stone, 3 Notes of Cas. 278 ; Tucker 
 V. Tucker, 5 Notes of Cas. 458; Harris v. Harris, 2 Hagg. EJcci 160, 4 
 Bng. Ecc. 160; Williams v. Williams, 1 Hagg. Con. 299, 4 Bng. Ecc. 415; 
 Robinson v. Robinson, 1 Swab. & T. 362; Baker v. Baker, 13 Cal. 87; 
 Evans v. Evans, 41 Cal. 103. 
 
 so Derby V. Derby, 21 N. J. Eq. 36; Callender v. Callender, 53 How. Pr. 
 (N. Y.) 364. 
 
 »i Williams v. Williams, L. R. 1 Pro. & D. 29; Robinson v. Robinson, 1 
 Swab. & T. 362; Tippet v. Tippet, L. R, 1 Pro. & D. 54; Johns v. Johns, 
 29 Ga. 718; Robbing v. Robbins, 100 Mass. 150; Matchin v. Matchin, 6 Pa. 
 St 332, 47 Am. Dec. 466; Billings v. Billings, 11 Pick. 461. 
 
 »2 Sawyer v. Sawyer, Walk. (Mich.) 48; Baker v. Baker, 13 Cal. 95. 
 
 98 Duval V. Covenhoven, 4 Wend. 564; Allen v. Klllinger, 8 Wall. 480; 
 Price V. Lederer, 33 Mo. App. 426; Shaw v. Stone, 1 Cush. 228; Over v. 
 Schlflilng, 102 Ind, 191; Chapman v. Twltchell, 37 Me. 59, 58 Am. Deo. 773; 
 1 Greenl. Ev. § 182; Staph. Ev. art 19, 
 
§ 264. ADMISSIONS. 331 
 
 against the defendant;** and where a party referred to his wife 
 as able to state the facts, her declarations were held admissible 
 against him.°° So in an action against an express company for the 
 loss of a trunk, the admissions of the defendant's general agents or 
 of a freight clerk to whom those agents have referred the plaintiff 
 for information as to the manner of the loss, when made in answer 
 to his inquiries, are admissible against the company."" If a vendor 
 refers a purchaser to a third person for information in regard to 
 the property to be sold, the declarations of such third person on the 
 subject are admissible,'^ but such a reference does not make the 
 person referred to an agent for the purpose of making general ad- 
 missions. The declarations are not evidence unless strictly within 
 the subject matter in relation to which the reference is made." 
 Thus where a defendant stated that a book-keeper would furnish 
 whatever information was contained in the books, the declarations 
 of the book-keeper to the effect that in his opinion certain entries 
 in the book were false to the knowledge of the defendant were held 
 inadmissible;'* and where a person refers to persons in the com- 
 munity as to the question of his general character, this does not 
 make their declarations evidence against him.^ 
 
 § 264 (266) . Effect of consenting to pay on condition an afQda- 
 vit is made. — It has sometimes been held that where one party 
 offers to pay a claim, provided the adverse party should make an 
 affidavit of its validity, or in some other way agree to abide the re- 
 sults of such affidavit, he is concluded thereby although the affidavit 
 proves untrue;'' but by the weight of authority a party is not 
 estopped under such circumstances. The purposes of justice and 
 policy are sufficiently answered by throwing on him the burden of 
 proof, and holding him bound, unless he impeaches the test referred 
 to by clear proof of fraud or mistake.' It need hardly be added 
 that if there is a clear and explicit agreement to submit to ariitra- 
 
 »4 Danlell v. Pitt, 1 Camp. 366. 
 
 85 Reg. V. Mallory, 33 Q. B. Dlv. 33. 
 
 »e Gott V. Dlnsmore, 111 Mass. 45. 
 
 OTChadsey v. Green, 24 Conn. 562; Chapman v. Twltchell, 37 Me. 59, 58 
 Am. Dec. 773; Bedell v. Commercial Ins. Co., 3 Bosw. (N. Y.) 147. 
 
 »8 Duval v. Covenhoven, 4 Wend. 564; Allen v. Killinger, 8 Wall. 480. 
 
 80 Lamljert v. People, 76 N. Y. 220, 32 Am. Rep. 293. ■ 
 
 1 Rosenbury v. Angell, 6 Mich. 508. 
 
 2 Brooks v. Ball, 18 Johns. 337; Bretton v. Prettiman, I* Raym. 153; 
 Amle V. Andrews, 1 Mod. 166; Stevens v. Thacker, Peake, 107; Lloyd v. 
 Willan, 1 Esp. 178. 
 
 8Tayl. Bv. (10th Ed.) { 765; 1 Greenl. Ev. § 184; Whiethead v. Tatter- 
 sall, 1 Adol. & Ell. 491. 
 
332 THE LAW OF EVIDENCB. § 266. 
 
 tion, which, agreement is acted upon, the parties are mutually 
 estopped to question the conclusiveness of the decision, unless it is 
 impeachable under the law governing awards.* 
 
 § 265 (267). Admissions by interpreters. — When a person se- 
 lects an interpreter to communicate with another person, and to 
 receive the answers, such interpreter is the accredited agent of the 
 one employing him; and the statements of the interpreter in the 
 course of the employment are admissible as original evidence, and 
 are in no sense hearsay ; nor is it necessary to call the interpreter to 
 prove such statements, or that his interpretation was correct.^ Al- 
 though the circumstances may be such as to make the interpreter 
 an agent whose words are binding on the parties, he is not neces- 
 sarily an agent; and the mere fact that a person contracts with an- 
 other whose language he does not understand, by means of an in- 
 terpreter, does not comstitute the latter an agent so as to bind him 
 by a false translation of the language of the parties." One who acts 
 as interpreter during a trial is not the agent of the parties, but the 
 officer of the court.'' His statements given on a former trial cannot 
 be admitted as evidence unless his absence is satisfactorily ex- 
 plained.' 
 
 § 266 (268). Declarations of persons acting in a representative 
 capacity. — "We have seen that generally the competency of admis- 
 sions is not affected by the time at which they are made.' But it is 
 an important qualification of the last statement that, if the admis- 
 sion is made by a person suing or being sued in a representative 
 capacity only, it must be made while the person making it sustains 
 that capacity.^" Thus, although it has sometimes been intimated 
 
 ^Sybray v. White, 1 M. & "W. 435; Price v. Hollis, 1 Maule & S. 105; 
 Males V. Lowensteln, 10 Ohio St. 512; Burrows v. Guthrie, 61 111. 70; Trus- 
 tees v. Cokely, 5 Ind. 164; Reynolds v. Roebuck, 37 Ala. 408. 
 
 Camerlln v. Palmer Co., 10 Allen 539 ; Fabrigas v. Mostyn, 20 How. St. 
 Tr. 122; Kelly v. Ning Yung Benev. Ass'n, 2 Cal. App. 460, 84 Pac. 321; Mc- 
 Cormick v. Fuller, 56 Iowa, 43; Nadau v. Lumber Co., 76 Wis. 134. A wife's 
 statement while acting as interpreter for her husband may be proved, 
 Schutter v. Williams (Ohio), 1 West. L. J. 319. See note, 17 L. R. A. 813. 
 
 8 Diener v. Mener, 5 Wis. 483. 
 
 T Schearer v. Harber, 36 Ind. 536. 
 
 8 People V. Ah Yute, 56 Cal. 119; People v. Lee Fat, 54 Cal. 527; Shearer 
 V. Harber, 36 Ind. 536. 
 
 » See § 236, infra. 
 
 10 Freeman v. Brewster, 93 G-a. 648, 21 S. B. 165; Horkan v. Benning, 111 
 Ga. 126, 36 S. E. 432; Charlotte 0. & F. Co. v. Rippy, 123 N. C. 656, 31 S, 
 B. 879; Williams v. Culver, 39 Ore. 337, 64 Pac. 763. 
 
§ 267. ADMISSIONS. 333 
 
 that the statements of an executor or assignee or other representa- 
 tive made lefore his appointment might be admissible," yet it is 
 the rule sustained by the weight of authority that such admissions 
 of an executor or administrator,^^ guardian *' or trustee ^* cannot 
 be received, except to affect themselves individually,^'^ although 
 statements of such persons might be competent, if made while rep- 
 resenting the person beneficially interested, and in the transaction 
 of business or in performance of the trust in such manner as to be 
 part of the res gestae.^' 
 
 § 267 (269). Admissions by public corporations. — When a cor- 
 poration performs acts or makes declarations, either acting for- 
 mally as a corporation, or informally by its officers or agents act- 
 ing within the scope of their authority, such admissions like those 
 of an individual may be offered in evidence by the adverse party. 
 Thus where a town pays another town for supplies furnished a 
 pauper, such payment is an implied admission of the liability, and 
 may be proved in a subsequent action for other supplies furnished 
 the same pauper.^^ Of course the records of a corporation, munici- 
 pal or private, are admissible in favor of the adverse party to prove 
 such matters in the nature of admissions as they contain. It was 
 formerly held that since the inhabitants of towns, parishes a;nd 
 other municipal and gMosi-municipal corporations were parties to 
 the action, and were interested in the result, their declarations might 
 be received as the admissions of the corporation ;^' but this rule has 
 not prevailed in the United States. Whether the action is brought 
 in the name of the municipality or in the name of the inhabitants, 
 the interest is deemed too remote to permit the corporation to be 
 charged by the declarations of its citizens.^* Municipal corpora- 
 
 " Smith v. Morgan, 2 Moody & Rob. 257. 
 
 i2Chuj-ch V. Howard, 79 N. Y. 415; Brooks v. Goss, 61 Me. 307; Dent. v. 
 Dent. 3 Gill (Md.) 482; Prudential Ins. Co. v. Fredericks, 31 111. App. 419. 
 
 "Lamar V. Mlcou, 112 U. S. 452; Westenfelder v. Green, 24 Ore. 448. 
 
 1* Moore v. Butler, 48 N. H. 161. 
 
 iisWhlton V. Snyder, 88 N. Y. 299. 
 
 "Church V. Howard, 79 N. Y. 415; Whlton v. Snyder, 88 N. Y. 299; 
 Faunce v. Gray, 21 Pick. 243. 
 
 w Sharon v. Salisbury, 29 Conn. 113. 
 
 "Rex V. Harwick, 11 East, 579; Regina v. Adderbury, 5 Q. B. 187; 
 Rex V. Whitley Lower, 1 Maule & S. 637; Rex v. Woburn, 10 East. 395; 1 
 Greenl. Ev. § 175. 
 
 lowatertown v. Cowen, 4 Paige, 510, 27 Am. Dec. 80; Burlington v. 
 Calais, 1 Vt. 385, 18 Am. Dec. 691; Low v. Perkins, 10 Vt. 532, 33 Am. Dec. 
 217; Marvell v. Dixfield, 30 Me. 157; Petition of Landgraf, 34 N. H. 163. 
 
334 THE LAW OF EVIDENCE. § ,268. 
 
 tions are compelled to act through their officers and agents; and 
 the declarations of such officers and agents, when within the scope 
 of their employment and accompanying their acts, are admissible 
 as a part of the res gestae}" When, however, the declarations are 
 not connected with the acts of agency or are not of an official char- 
 acter, they are hearsay and inadmissible."^ 
 
 § 268 (270). Admissions by private corporations. — The same 
 general rules stated in the last section apply in the case of private 
 corporations. The declarations of their officers and agents are not 
 admissible, unless they are made while acting within the scope of 
 their authority as a part of the res gestae relating to the present 
 transactions."" For still stronger reasons the statements of subor- 
 
 20 Gray v. Rollinsford, 58 N. H. 253; Chicago v. Greer, 9 Wall. 726; Far- 
 rell V. City of Dubuque, 129 la. 447, 105 N. "W. 696. 
 
 21 The subsequent declarations of town oflaoers are not admissible to 
 prove the liability of the town for the repair of a highway, Polsom v. 
 Underbill, 36 Vt. 580; nor of the service of notice, of injury, Garske v. 
 Ridgeville, 123 Wis. 503; nor are declarations of the general attorney of a 
 county that the county will pay a certain debt admissible, Holton v. Com. 
 of Lake Co., 55 Ind. 194; nor the declarations of an alderman, while not 
 transacting the business of the city, Mitchell v. Rockland, 41 Me. 363, 66 
 Am. Dec. 252; nor declarations of an overseer of the poor, Green v. North 
 Butler, 56 Pa. St. 110; Carina v. Exeter, 13 M«. 321; nor of a trustee of a 
 school district. Walker v. Dunspaugh, 20 N. Y. 170; nor of a moderator of 
 a town-meeting, Morrell v. Dlxfleld, 30 Me. 157. The report of a committee 
 appointed to inquire Into a given question is not an admission of the 
 municipality in respect thereto, Collins v. Dorchester, 6 Gush. 396; Dudley 
 V. Weston, 1 Met. 477. 
 
 22 Huntington Ry. Co. v. Decker, 82 Pa. St. 119; Hamilton Co. v. Iowa 
 Co., 88 Iowa, 364; Dean v. Aetna Ins. Co., 62 N. Y. 642; Winchester Co. v. 
 Creary, 116 U. S. 161; Walker Mfg. Co. v. Knox, 136 Fed. 334. It must first 
 be shown that the person in question is an officer or agent of the corpora- 
 tion. Mason Fruit Jar Co. v. Paine, 166 Pa. St. 35'S, 31 Atl. 98. This rule 
 has been applied to exclude the declaration of a director as to an ante- 
 cedent fact, Pemigewassett Bank v. Rogers, 18 N. H. 255; Schroepell v. 
 Syracuse Co., 7 How. Pr. (N. Y.) 94; Hogg v. Zanesville Mfg. Co., Wright 
 (Ohio), 139; Bank v. Davies, 6 Watts & S. (Pa.) 285; Franklin Bank v. 
 Cooper, 36 Me. 179; Lime Rock Bank v. Hewett, 52 Me. 531; Chelmsford 
 Co. V. Demerest, 7 Gray, 1; Peek v. Detroit Novelty Works, 29 Mich. 313; 
 the statement of the secretary of an insurance company that the property 
 destroyed was insured. First Baptist Church v. Brooklyn Ins. Co., 28 N. Y. 
 153; the letters of an assistant superintendent discharging a station agent 
 for negligence, Betts v. Farmers Loan & Trust Co., 21 Wis. SO, 91 Am. Dec. 
 460; the admission by the superintendent on the day after the accident, 
 of the unfitness of the conductor, Huntington Ry. Co. v. Decker, 82 Pa. St. 
 119; the statement of the president of a bank made after the loss of goods, 
 
§ 269. ADMISSIONS. 335 
 
 dinate agents ^' and those of stockholders ^* are not admissions on 
 the part of the corporation, unless within the rules already given, 
 they constitute a part of the res gestae. Under another head other 
 illustrations will be found showing more fully when the declara- 
 tions of officers and agents of private corporations are admissible 
 as part of the res gestae.'''^ 
 
 § 269 (271). Written admissions — Letters. — One of the objec- 
 tions generally urged against the weight of admissions as evidence 
 is that they consist generally of casual statements, easily misunder- 
 stood or perverted. This particular objection does not exist when 
 the statement offered against a party consists of his written declara- 
 tions ; and therefore such admissions are entitled to greater weight 
 than mere verbal admissions, unless the latter are clearly and sat- 
 isfactorily proved."" It is a matter of constant practice to intro- 
 duce letters and telegrams in evidence as constituting admissions. 
 Of course where the letters of a party constitute a part of the con- 
 tract and have been relied on by the other party, they are some- 
 thing more than admissions. They cannot, like mere admissions, be 
 explained or qualified by the writer. And letters which pass be- 
 tween the parties to a contract immediately before and after the 
 transaction may be so connected with it as to become a part of the 
 res gestae, and may be admissible on that ground.^'' But more fre- 
 quently letters of a party are competent purely as admissions, and 
 because some inference may be drawn from them unfavorable to the 
 claim or defense of the writer."' When the letters of a party aire 
 in the nature of admissions, they are competent, although written 
 long before or after the commencement of the litigation,^' even 
 
 in ■which he requested a witness not to mention certain conversations as 
 to the danger of burglary. First Nat. Bank v. Ocean Bank, 60 N. Y. 278, 
 19 Am. Rep. 181; the admissions of general agents as to liability of the 
 company, American Ins. Co. v. Mahone, 21 Wall. 152. 
 
 23 Fogg V. Pew, 10 Gray, 409, 71 Am. Dec. 662; Bank v. Steward, 37 Me. 
 519. 
 
 24 Bank of Hartford v. Hart, 3 Day (Conn.), 491; Turnpike Co. v. Thorp, 
 13 Conn. 173; Mitchell v. Rome Ry. Co., 17 Ga. 574. 
 
 25 See §§ 357, 358, infra. 
 
 28 As to mode of proving letters and telegrams, see §§ 583, infra, 210, 
 supra. 
 
 2TNew England Marine Insurance Co. v. DeWolf, 8 Pick. 56; Roach v. 
 Learned, 37 Me. 110; Zachry v. Nolan, 66 Fed. 467. 
 
 28Snell V. Bray, 56 Wis. 156; Tapley v. Tapley, 10 Minn. 448, 88 Am. 
 Dec. 76; Bell v. Gund, 110 Wis. 271; Chadwick v. U. S., 141 Fed. 225. 
 
 20 Snell v. Bray, 56 Wis. 156; Holler v. Weiner, 15 Pa. St. 242; State t. 
 Watson, 31 Mo. 361. 
 
336 THE LAW OP EVIDENCE. § 270. 
 
 though written to persons not parties to the litigation.*" Letters 
 written to a party and received by him may under some circum- 
 stances be read in evidence against him, but before they can be re- 
 ceived as admissions against him, there must be some evidence be- 
 sides mere possession showing acquiescence in their contents, as 
 proof of some act or reply or statement;*^ and in such case there 
 must of course be proof that the one sought to be charged has re- 
 ceived the letter.*^ "When one party to the litigation writes to the 
 other giving his version of the transaction in dispute, the mere 
 omission to reply is not to be deemed an admission of the truth of 
 the matters stated in the letter. Not even the same inferences can 
 be drawn in such cases as from the silence of one party in respect 
 to statements made by the other in conversation.*' In such cases a 
 party cannot make evidence for himself by addressing letters to the 
 adverse party.'* When letters are otherwise competent as admis- 
 sions, they need not be signed or actually written by the party, 
 provided they are sent by his direction." If a letter contains an 
 admission, it is admissible, although other letters in the correspond- 
 ence are in the hands of the party oifering the testimony and are 
 not produced," or although the letter offered is in reply to one not 
 produced."^ In such case the adverse party may, if he desire, offer 
 such other parts of the correspondence as may be relevant.*' 
 
 § 270 (272). Other writings — Corporate records. — On princi- 
 ples already discussed other documents or memoranda written or 
 authorized by a party may be offered as admissions against him 
 
 MRose v. Cunynghame, 11 Ves. 550; Gibson v. Holland, L. R. 1 C. P. 1; 
 Wllkins V. Burton, 5 Vt. 76; Robertson v. E'pbralm, 18 Tex. 118. 
 
 •iRex v. Plumer, Russ. & R. Cr. Cas. 264; Fairlie v. Denton, 3 Car. & 
 P. 103; Com. v. Eastman, 1 Cush. 189, 48 Am. Dec. 596; Sturtevant v. Wal- 
 lacks, 141 Mass. 119, 4 N. E. 615. 
 
 »2Com. V. Eastman, 1 Cush. 189, 48 Am. Dec. 596; Smiths v. Shoemaker, 
 17 Wall. 630. 
 
 8» Learned v. Tlllotson, 97 N. Y. 1, 49 Am. Rep. 508; Biggs v. Steuler, 
 93 Md. 100, 48 Atl. 727; Gray v. Kaufman D. & I. C. Co., 162. N. Y. 388, 56 
 N. E. 903. See § 289, infra. 
 
 «* Learned v. Tlllotson, 97 N. Y. 1, 49 Am. Rep. 508; Robinson v. Fitch- 
 burg Ry. Co., 7 Gray. 92; Hand v. Howell, 61 N. J. L. 142, 38 Atl. 748. 
 
 «B Bartlett v. Mayo, 33 Me. 518. 
 
 88 Stone V. Sanborn, 104 Mass. 319; North Berwick Co. v. New England 
 Ins. Co., 52 Me. 336. 
 
 s^Crary v. Pollard, 14 Allen, 284; Lord Barrymore v. Taylor, 1 Esp. 326. 
 
 88 Roe V. Day, 7 Car. & P. 705; Stone v. Sanborn, 104 Miass. 319, 6 Am. 
 Rep. 238. 
 
§ 271. ADMISSIONS. 337 
 
 like Ms oral statements.*" If self-disserving in their character it is 
 immaterial in what form the document may appear.*" In like man- 
 ner the records and books of corporations are competent as admis- 
 sions when offered against them.*^ Such admissions may conclu- 
 sively hind the corporation if third persons, having knowledge of 
 the entries, act upon them as the records of corporate acts.*^ Cor- 
 porate books are not only competent to prove admissions of the cor- 
 poration, but when officers or members have access to such books 
 and have probably examined them, the entries may be offered as 
 their admissions.*^ 
 
 § 271 (273). Same — ^Partnership books. — ^Partnership books are 
 presumed to be equally under the control of the several partners, 
 and to be kept under their direction. Therefore entries in such 
 books are competent against the firm as admissions;** and in con- 
 troversies between the members of the firm, such entries are compe- 
 tent against each member. They are presumed to be with his knowl- 
 edge and consent,*" although the presumption may be rebutted by 
 
 89 This rule has been applied to receipts, Harrison v. Remington Paper 
 Co., 140 Fed. 385; Ulls of lading, Shatzel v. Hart, 2 A. K. MarSh. (Ky.) 191; 
 orders, Macomber v. Parker, 41 Pick. 497; advertisements, Mann v. Russell, 
 11 111. 506; Somerell v. Hunt, 3 Har. & McH. (Md.) 113; Putnam v. Gun- 
 ning, 162 Mass. 552; maps, Bridgman v. Jennings, 1 Ld. Raym. 734; mils. 
 Cowan V. Hite, 2 A. K. Marsh. (Ky.) 238; circulars. Berry v. Matthews, 7 
 Ga. 457; liandMUs, Dennis v. Van Voy, 31 N. J. L. 38; general assign- 
 ments for the benefit of creditors. Reed v. Newcomb, 62 Vt. 75; proofs of 
 death, Hart v. Fraternal Alliance, 108 Wis. 490; Voelkel v. Supreme Tent 
 K. M. W., 116 Wis. 202; under such circumstances entries in the books of 
 a bank were held admissible In favor of a receiver of the bank in an 
 action against its president, Olney v. Chadsey, 7 R. I. 224. See § 516, infra, 
 
 *» Putnam v. Gunning, 162 Mass. 552; Potter v. Ogden, 136 N. T. 384. 
 
 41 Holden v. Hoyt, 134 Mass. 181; Bank v. First Nat. Bank, 108 Tenn. 
 374, 68 S. W. 497. 
 
 42 Holden v. Hoyt, 134 Mass. 181. 
 
 43 San Pedro L. Co. y. Reynolds, 121 Cal. 74, 53 Pac. 410; Anderson v. 
 Life Ass'n, 171 111. 40, 49 N. E. 205. But see, Rudd v. Robinson, 126 N. Y. 
 113, 26 N. E. 1046, 22 Am. St. Rep. 816. As to actions against "stock- 
 holders, see § 517, infra. 
 
 44 Lodge V. Prlchard, 3 De Gex, M. & G. 906; Smith v. Duke of Chandos, 
 2 Atk. 158; Heartt v. Corning, 3 Paige, 566; Richardson v. Wyatt, 2 Dessaus 
 Bq. (S. C.) 471; Dunnell v. Henderson, 23 N. J. Eq. 174; Stuart v. Mc- 
 Klchan, 74 111. 122; Cunningham v. Smith, 11 B. Mon. (Ky.) 325; Over v. 
 Hetherlngton, 66 Ind. 365; Murrell v. Murrell, 33 La. An. 1233; Glover v. 
 Hambree, 82 Ala. 324; Grant v. Masterson, 55 Mich. 161; Kohler v. Linden- 
 meyr, 129 N. Y. 498, 29 N. B. 957; Chick v. Robinson, 95 Fed. 619. 
 
 4» Withers v. Withers, 8 Peters, 355; Kahn v. Boltz, 39 Ala. 66; Haller 
 28 
 
338 THE LAW OP EVIDENCE. § 272. 
 
 proof that the partner or partners, against whom the entries are 
 offered, have not had access to the books and have not inspected 
 them, and that the entries are incorrect.*" Such inaccuracy may be 
 shown, although there has been full opportunity for inspection, 
 since there is no reason for holding the parties estopped by such 
 entries,*' unless there have been settlements or accounts stated 
 which were relied on by the parties.** 
 
 § 272 (274). Admissions in pleadings. — ^When parties allege 
 matters of fact in their pleadings, these pleadings may be offered in 
 evidence against such parties as admissions of the facts so alleged.*' 
 Under familiar rules the pleadings in the pending ease are more 
 than admissions. They are until changed conclusive upon the par- 
 ties filing them. Although pleadings in the pending case are some- 
 times formally offered as admissions of the adversary it is gen- 
 erally held that they may be referred to and commented upon, by 
 counsel without such offer."" But when there are several issues in 
 one case a statement in one plea cannot be used to disprove a state- 
 ment in another plea."*^ "When a statement by a party in a pleading 
 
 other than in the pending suit is offered in evidence the statement 
 
 • 
 V. "Willamowicz, 23 Ark. 566; Hale v. Brennan, 23 Cal. 511; Pond v. Clark, 
 24 Conn. 370; Kitner y. Whltlock, 88 111. 513; Eden v. Lingenfelter, 39 Ind. 
 19; Hunter v. Aldrich, 52 Iowa, 442; Poster v. Pifleld, 29 Me. 136; Safe 
 Deposit & T. Co. V. Turner, 98 Md. 22, 55 Atl. 1023; TopllfC v. Jackson, 12 
 Gray, 565; Lambert v. Griffith, 44 Mich. 65; Tucker v. Peaslee, 36 N. H. 
 167; Falrchild v. Fairchild, 64 N. Y. 471; Saunders v. Duval, 19 Tex. 467; 
 Fletcher v. Pollard, 2 Hen. & McH. (Va.) 544. 
 
 *o United States v. Binney, 5 Mason, 176; Shoemaker Piano Co. v. Ber- 
 nard, 2 Lea (Tenn.) 359; Over v. Hethering, 66 Ind. 365; Withers y. 
 Withers, 8 Peters, 355; Adams y. Punk, 53 111. 219. 
 
 *T Hunter v. Aldrich, 52 Iowa, 442; ToplifE v. Jackson, 12 Gray, 565; 
 Lambert v. Griffith, 44 Mich. 65; Boire y. McGinn, 8 Ore. 466; Heartt v. 
 Corning, 3 Paige, 566; Scott v. Shipherd, 3 Vt 104. 
 
 48 Desha v. Smith, 20 Ala. 747; Pond v. Clark, 24 Conn. 370; Kitner v. 
 Whitlock, 88 111. 513; Richardson v. Wyatt, 2 Dessaus Eq. (S. C.) 471. 
 
 49 Ayers y. Hartford Ins. Co., 17 Iowa, 176, 85 Ami. Dec. 553; Parsons v. 
 Copeland, 33 Me. 370, 54 Am. Dec. 628; Bliss v. Nichols, 12 Allen, 443; 
 Pite y. Black, 92 Ga. 363; Com. v. Goddard, 2 Allen, 148; Miller y. Loyerne 
 & Browne Co. (Neb.), 105 N. W. 84; Meade y. Black, 22 Wis. 241; Lederer 
 v. Rosenthal, 99 Wis. 235 ; this Is also true as to a fact necessarily Implied 
 from facts stated, Malick v. Kellogg, 118 Wis. 405. 
 
 ooTisdale v. Railway Co., 116 N. Y. 416, 22 N. E. 700; Holmes v. Jones, 
 121 N. Y. 461. 24 N. E. 7Q; Lee v. Heath, 61 N. J. L. 250, 39 Ati 729; 
 Leayitt y. Cutler, 37 Wis. 46. In Massachusetts a different rule Is held, 
 Taft y. FIsk. 140 Mass. 250, 5 N. E. 621, 54 Am. Rep. 459. 
 
 ^1 Nye v. Spencer, 41 Me. 272; Gattis v. Kilgo, 128 N. C. 402, 38 S. E. 931. 
 
§ 272. ADMISSIONS. 339 
 
 is admissible on the same principle as oral admissions, hence it is 
 not necessary that the parties should be the same ; and the pleadings 
 of a party may be received against him in a subsequent suit al- 
 though the parties are different."' The weight to be given to such 
 admissions depends upon various circumstances. If the pleading is 
 sworn to and hence is the deliberate and solemn statement of the 
 party, its admissions may afford evidence against him not easily re- 
 •butted."' When the allegations are made on information and be- 
 lief, they are still admissible in evidence, as this fact only detracts 
 from the weight of the testimony.^* But if the pleadings are not 
 sworn to, and are drawn by counsel, and the allegations have not 
 been expressly directed or approved by the party, they may be of 
 little significance."" Indeed, under the former practice it was held 
 that Mils in chancery not sworn to were not admissible, except to 
 prove such a fact as their own existence, or the commencement of 
 a suit, or what the facts in issue were. They were rejected, as ad- 
 missions, on the ground that they consisted largely of the sugges- 
 tions of counsel so framed as to obtain an answer under oath."" 
 And the pleadings in actions at law have also often been rejected 
 as admissions, when not shown to have been approved or directed 
 by the party himself."' Many of the cases holding that pleadings 
 were inadmissible as admissions were based on the theory that most 
 of the allegations were merely pleader's matter, — ^fiction stated by 
 counsel and sanctioned by the courts. The whole modem tendency 
 is to reject this view and to treat pleadings as statements of the 
 real issues in the cause and hence as admissions of the parties, hav- 
 ing weight according to the circumstances of each case."* But some 
 
 oaRadclyffe v. Barton, 161 Mass. 327; Printup v. Patton, 91 Ga. 422; 
 Ayers v. Hartford Ins. Co., 17 Iowa, 176, 85 Am. Dec. 553; Blch v. Minne- 
 apolis, 40 Minn. 82. 
 
 03 Cook V. Barr, 44 N. Y. 156; Elliott v. Hayden, 104 Mass. 180; Pope v. 
 Allls, 115 U. S. 363; Balloch v. Hooper, 146 U. S. 363. 
 
 6* Pope V. Allls, 115 U. S. 363. 
 
 BO Ferris v. Hard, 135 N. Y. 354; Baldwin v. Gregg, 13 Met. 253; Bolleau 
 V. Rutlin, 2 Exch. 665; Solarl v. Snow, 101 Cal. 387, 35 Pac. 1004; Farmer 
 V. State, 100 Ga. 41, 28 S. E. 26; Farr v. Ronillard, 172 Mass. 303, 52 N. E. 
 443. 
 
 oe Bolleau v. Rutlin, 2 Bxch.. 665; Doe v. Sybourn, 7 T. R. 3. 
 
 67Boileau v. Rutlin, 2 Exch. 665; Delaware Co. v. Diebold Safe Co., 133 
 IT. S. 473; Baldwin v. Gregg, 13 Met. 253; Dennie v. ■Williams, 135 Mass. 28. 
 
 «« Boots v. Canine, 94 Ind. 408; St. Paul F. & M. Ins. Co. v. Brunswick G. 
 Co., 113 Ga, 786, 39 S. E. 483; Gardner v. Meeker, 169 111. 40, 48 N. B. 307; 
 Nicholson V. Snyder, 97 Md. 415, 55 Atl. 484; Johnson v. Russell, 144 Mass. 
 
340 THE LAW OF EVIDENCE. § 273. 
 
 of the authorities still hold that if the pleading is not signed by the 
 party there should be some proof that he has authorized it."" 
 
 § 273 (275). Same, continued. — On the same principle where 
 amended pleadings have been filed, allegations in the original plead- 
 ings are held admissible,"" but in such case the original pleadings 
 can have no effect, unless formally offered in evidence.*^ It is hardly 
 necessary to add that the pleading of one plaintiff or defendant is 
 not competent as an admission of a co-plaintiff or co-defendant.'^ 
 It is an ancient rule of pleading that each party tacitly admits all 
 such traversable allegations on the opposite side as he does not 
 traverse. Qui non negat fatetur."^ Under the reformed procedure 
 the same general rule is recognized with the qualification that the 
 allegation of new matter in an answer, not pleaded as a part of a 
 counter-claim or as new matter in a reply, is to be deemed contro- 
 verted by the adverse party. It is a familiar statement that a de- 
 murrer admits all those facts which are well pleaded. But as a rule 
 of evidence a demurrer is not an absolute admission of any fact. It 
 simply admits those facts which are well pleaded for the sole pur- 
 pose of having their legal sufiiciency determined by the court.'* The 
 demurrer cannot be used in another suit as an admission of the aUe- 
 
 409, 11 N. B. 670; Cornelissen v. Ort, 132 Mich. 294, 93 N. W. 617; Yoke v. 
 First State Bank, 87 Minn. 295, 91 N. W. 1101; Tague v. Caplice Co., 28 
 Mont. 51, 72 Pac. 297; Pope v. AUis, 115 U. S. 363. 
 
 5» Farr v. Rouillard, 172 Mass. 303, 52 N. B. 443. Contra, Lee v. Railway 
 Co., 101 Wis. 352, 77 N. W. 714." For full discussion as to the plea nolo 
 contendere see. State v. La Rose, 71 N. H. 435, 52 Atl. 943. 
 
 00 Murphy v. St. Louis T. F^ind, 29 Mo. App. 541; Brown v. Pickard, 4 
 Utali, 292; Hall v. Woodward, 30 S. C. 564; Barton v. Laws, 4 Colo. App. 
 212; Juneau v. Stunkel. 40 Kan. 756; Nybles v. Berry (Ky.), 76 S. W. 126; 
 Sayre v. Moliney, 35 Or. 141, 56 Pac. 526; Kilpatrick Co. v. Box, 13 Utali, 
 494, 45 Pac. 629; Peckham Iron Co. v. Harper, 41 Ohio St. 100; Daub v. 
 Englebach, 109 111. 267; Coward v. Clanton, 79 Cal. 23; Baltimore, O. & C. 
 Ry. V. EVarts, 112 Ind. 533; Folger v. Boyington, 67 Wis. 447; Lindner T. 
 Ins. Co., 93 Wis. 526; Schultz v. Culbertson, 125 Wis. 169. Contra, Ralph 
 V. Hensler, 114 Cal. 196, 45 Pac. 1062, and see. Smith v. Davidson, 41 Fed. 
 172. 
 
 01 Folger v. Boyington, 67 Wis. 447; Woodworth v. Thompson, 44 Neb. 
 311, 62 N. W. 450. 
 
 02 Reese v. Reese, 41 Md. 554; Stewart v. Sitone, 3 Gill & J. (Md.) 514. 
 
 03 Gwam v. Roe, 1 Salk. 91. 
 
 0* Pease v. Phelps', 10 Conn. 62; Branham v. Mayor, 24 Cal. 585; Chapin 
 V. Curtis, 23 Conn. 388; Matthews v. Tower, 59 Vt. 433; Coxe v. Gulick, 10 
 N. J. L. 328; Bobe v. Frowner, 18 Ala. 89; Star Ball Retainer Co. v. Klahn, 
 145 Fed. 834. But a demurrer does not admit a foreign law alleged in the 
 complaint, Knickerbocker Trust Co. v. Iselin, 185 N. Y. 54, 77 N. B. 877. 
 
§ 274. ADMISSIONS. 341 
 
 gations in the pleading demurred to, when it does not appear that 
 the demurrer was adjudged insufficient, and that the party elected 
 to abide thereby.'" The statements in the pleadings demurred to are 
 no evidence on questions of damages, or when the cause is tried on 
 the merits."' But for the purpose of determining the questions of 
 law iavolved, a demurrer to evidence admits all the facts which a 
 jury might reasonably infer from the evidence."^ 
 
 § 274 (276). Admissions in pleadings — ^When conclusive. — ^Each 
 party to an action is in that action conclusively bound by those ad- 
 missions which he expressly makes in the pleadings, or by stipula- 
 tions, oral or written, which are formally entered into for the pur- 
 poses of dispensing .with proofs." As we have already seen, the 
 same rule applies to those material allegations in pleadings which 
 are tacitly admitted by failing to interpose any denial when, under 
 the rules of pleading, a denial is necessary."* But a tacit or inci- 
 dental admission in one suit will not conclude the party making it 
 in another action, where precisely the same matter is not in litiga- 
 tion;'"' and even then admissions which are expressly made by the 
 pleadings in one action are not conclusive in other suits, unless the 
 second action is brought on a judgment recovered in the first.'^ The 
 afflda/uits and depositions of a party are of course competent to show 
 his admissions, although used in another suit, and from their solemn 
 character are entitled to great weight;'" but they are not conclusive 
 
 «» Kankakee Co. v. Horan, 131 111. 288; Tompkins v. Asbey, 1 Moody & M. 
 32. 
 
 «8 McKinzie v. Matthews, 59 Mo. 99. 
 
 87 Golden v. Knowles, 120 Mass. 336; Fowle v. Common Coun. of Alex- 
 andria, 11 Wheat. 320. 
 
 »8Boileau v. Rutlln, 2 Exch. 665; Robins v.. Lord Maidstone, 4 Q. B. 811; 
 Murray Hill U Co. v. Milwaukee L. H. & T. Co., 126 Wis. 14; Rogers v. 
 Brown, 15 Okl. 524, 86 Pac. 443. 
 
 «» See § 273, supra. 
 
 TO Carter v. James, 13 M. & W. 137; Rigge v. Burbidge, 15 M. & W. 598; 
 Hutt V. Morrell, 3 Exch. 241. 
 
 '1 Skelton v. Hawling, 1 Wils. 258. 
 
 72 Rex V. Clarke, 8 T. R. 220; Doe v. Steele 3 Camp. 115; Forrest v. For- 
 rest, 6 Duer (N. "S;.) 102; Fulton v. Gracey, 15 Gratt. (Va.) 314; Illinois 
 Cent Ry. Co. v. Cobb, 64 111. 143; Trustees v. Bledsoe, 5 Ind. 133; Daven- 
 port V. Cummings, 15 Iowa, 219; Mushat v. Moore, 4 Dev. & B. (Kf. C.) 
 124. As to the effect of answers under oath, see Elliott v. Hayden, 104 
 Mass. 180; Knowlton v. Moseley, 105 Mass. 136; Cook v. Barr, 44 N. Y. 
 156; Dunbar v. Dunbar, 80 Me. 152, 6 Am. St. Rep. 166; Wylder v. Crane, 
 53 111. 490; Lawrence v. Lawrence, 21 N. J. Eq. 317; Printup v. Patton. 91 
 Ga.422. 
 
342 THE LAW OF EVIDENCE. § 275. 
 
 against him and do not constitute an estoppel." Admissions made 
 by parties or their attorneys in their pleadings in the action, or by 
 stipulations as to facts, or by dispensing with certain proofs may ie 
 withdrawn if not true, provided there remains sufficient time for 
 the other party in which to prepare his case, and provided such 
 party has not been injured by relying on such admissions.''* Such 
 admissions will not be allowed to be withdrawn, however, if the situ- 
 ation of the parties has been substantially changed, as by the death 
 of a party or of a witness." If a party desires to withdraw admis- 
 sions of the character under discussion, he should give full and 
 timely notice of his purpose so that the other party may have rea- 
 sonable time to supply the proof.'* Aud if such notice is given, 
 the court in its discretion may relieve the party from the conclusive 
 effect of the admission, if it is shown to have been made through 
 mistake.''' 
 
 § 275 (277). Estoppel by conduct. — Although in the foregoing 
 sections some of the admissions referred to have been shown to be 
 conclusive upon the party making them and those in privity with 
 him, by far the greater part were of the class known as casual ad- 
 missions having no element of estoppel and of course liable to be re- 
 butted. But it has long been recognized as the rule that there is 
 another class of admissions which cannot be disputed ; and the rule 
 is the same whether the admission is in fact tj-ue or false. The test 
 is not whether the admission is true, but whether it would be con- 
 trary to public policy and good morals to allow it to be disputed. 
 One branch of the rule of estoppel by conduct is thus stated by Mr. 
 Stephen: "When one person by anything which he does or says, or 
 abstains from doing or saying intentionally causes or permits an- 
 other person to believe a thing to be true and to act upon such belief 
 otherwise than he would have acted but for that belief, neither the 
 person first mentioned nor his representative in interest is allowed, 
 in any suit or proceeding between himself and such person or his 
 representative in interest, to deny the truth of that thing." " Thus, 
 
 73 Doe V. Steele, 3 Camp. 115; Cameron v. Lightfoot, 2 W. Black, 1190; 
 Studdy V. Sanders, 2 Dowl. & R. 347; De Whelpdale v. Milburn, 5 Price, 
 485. 
 
 T* Wallace v. Matthews, 39 Ga. 617, 99 Am. Dec. 473. 
 
 70 Wilson V. Bank of La., 55 Ga. 98. 
 
 7«Hargraves v. Redd, 43 Ga. 150; Elton v. Larkins, 5 Car. & P. 386. 
 
 ■n HoUey v. Young, 68 Me. 215, 28 Am. Rep. 40; Perry v. Simpson W. M. 
 Co., 40 Conn. 313. 
 
 Tssteph. Ev. art. 102. 
 
§ 275. ADMISSIONS. 343 
 
 where an owner acquiesces in the sale of property, as if it were that 
 of another, and by his conduct leads innocent purchasers to buy, he 
 is estopped to claim the property as his own."* ' 
 
 7»Pickard v. Sears, 6 Adol. & Ell. 469; Stephens v. Baird, 9 Cow. 274; 
 Mason v. "Williams, 8 Jones (N. C.) 478; Coursolle v. "Weyerhauser, 69 
 Minn. 328, 72 N. W. 697; Kirk v. Hamilton, 102 U. S. 68. This rule applies 
 when an owner stands by and sees a third person sell property as his own, 
 without asserting his own title or giving the purchaser any notice of it, 
 and he is estopped as against such purchaser from asserting it afterwards, 
 Vilas V. Mason, 25 "Wis. 310; Guffey v. O'Reiley, 88 Mo. 418, 57 Am. Rep. 
 424 and note; Markham v. O'Connor, 52 Ga. 183, 21 Am. Rep. 249; Nevln 
 V. Belknap, 2 Johns. 573; Guthrie v. Quinn, 43 Ala. 561; Hope v. Law- 
 rence, 50 Barb. 258; Engle v. Burns, 5 Call (Va.) 463, 2 Am. Dec. 593; 
 Storrs V. Barker, 6 Johns. Ch. (N. Y.) 166, 10 Am. Dec. 316; Henderson v. 
 Overton, 2 Yerg. (Tenn.l 394, 24 Am. Dec. 492; Marines v. Goblet, 31 S. 
 C. 153, 17 Am. St. Rep. 22 and note; Power's Appeal, 125 Pa. St 175, 11 
 Am. St. Rep. 882 and note; see note, 57 Am. Rep. 429; where an indorser 
 has stated that the signature as indorser is genuine and the plaintiff has 
 telied on such statement. Pall River Nat. Bank v. Buffington, 97 Mass. 
 498; where one adopts a signature, knowing it to be fotged, Casco Bank 
 V. Keene, 53 Me. 103; Rudd v. Matthews, 79 Ky. 479, 42 Am. Rep. 231; 
 Shlsler v. "Vandike, 92 Pa. St. 447, 37 Am. Rep. 702 and note; Buck v. 
 "Wood, 83 Me. 204, 27 Atl. 103; where a third person buys a note or mort- 
 gage or other claim relying on the assurance of the maker or debtor that 
 the claim is valid, or that there is no defence, Petrie v. Peeter, 21 "Wend. 
 172; Cloud V. "Whiting, 38 Ala. 57; Preston v. Mann, 25 Conn. 118; Van- 
 derpool v. Brake, 28 Ind. 130; Smith v. Stone, 17 B. Mon. (Ky.) 168; Grout 
 V. DeWolf, 1 R. I. 393; Libbey v. Pierce, 47 N. H. 309; Hamer v. Johnston, 
 6 Miss. 698; Gary v. "Wheeler, 14 "Wis. 281; Marr v. Howland, 20 "Wis. 282; 
 Lesley v. Johnson, 41 Barb. 359; "Weyh v. Boylan, 85 N. Y. 394, 39 Am. 
 Rep.' 669; where the maker of a note stands by in silence, when It la 
 transferred for a consideration, "Watson v. McLaren, 19 "Wend. 557; where 
 the owner of a chattel mortgage, knowing that the mortgagor is endeavor- 
 ing to obtain a loan, conceals the existence of his mortgage to aid him 
 in such purpose, McLean v. Dow, 42 "Wis. 610; Chapman v. Hamilton, 19 
 Ala. 121; where the holder of a lien against personality consents to their 
 sale, Carpy v. Do-^dell, 115 Cal. 677, 47 Pac. 695; or stands by without dis- 
 closing his lien, Miller v. Ross, 107 Mich. 538, 65 N. "W. 562; where the 
 owner of land, by his words or acts, leads the public to suppose and to 
 act on the belief that he has dedicated land for a street or other public 
 use, Cincinnati v. "White's Lessee, 6 Peters, 431; Morgan v. Chicago & A. 
 Ry. Co., 96 U. S. 716; Holdane v. Cold Slpring, 21 N. Y. 474; "Wilder v. St. 
 Paul, 12 Minn. 192; Kyle v. Logan, 87 111. 64; Kelley v. Chicago, 48 111. 
 388; and where one person owning an estate stands by and sees another 
 erect improvements on it in the belief that he has title thereto, and does 
 not inform the party of his own title, Steel v. Smelting Co., 106 U. S. 456; 
 McCormlck v. McMurtrle, 4 "Watts (Pa.) 192; McKelvey v. Truby, 4 "Watts 
 & S. (Pa.J 3^3,; Beaupland v. McKeen, 28 Pa. St 124, 70 Am. Dec. 116; 
 
344 THE LAW OF EVIDENCE. § 276. 
 
 § 276 (278). Same— Corporations — Co-partners — ^Husband and 
 wife. — The principle under discussion is often illustrated in the 
 law of corporations. Thus, where a person has treated an associa- 
 tion as a corporation by making contracts with it in its assumed 
 corporate capacity, he cannot, when sued on the contract after en- 
 joying the benefit of the contract, give evidence to show that the 
 plaintiff has no corporate existence ;*" nor can a company which has 
 executed notes or mortgages or other contracts, while assuming to 
 act in a corporate capacity, be allowed to prove in an action against 
 it on such contracts that there has been no legal incorporation.*'^ In 
 actions on subscriptions to stock, where the rights of creditors of the 
 corporation are involved, the shareholder is estopped from proving 
 that the corporation has no legal existence;*^ and where a stockr 
 holder has attended meetings of an association, claiming to act in a 
 corporate capacity, or where he has in other ways held himself out 
 as a member, he is estopped to deny such membership or his liability 
 as a member as against those who have relied on such acts." A 
 
 Forbes T. McCoy, 24 Neb. 702; Helm v. Wilson, 76 Cal. 477; see note, 11 
 Am. St Hep. 22; but tbere Is no estoppel where the statement Is made 
 after the purchaser has become the owner, although the purchaser repeats 
 the statement to one who buys of him, Ray v. McMurtry, 20 Ind. 307, 83 
 Am. Dec. 322 and note; Windle v. Canaday, 21 Ind. 248, 83 Am. Dec. 348 
 and long note. 
 
 80 Palmer v. Lawrence, 3 Sandf. (N. Y.) 161; Douglas v. BoUes, 94 U. S. 
 104; Franklin v. Twogood, 18 Iowa, 515; Worcester Med. Inst. v. Harding, 
 11 Cush. 285; West Winsted Sav. Bank v. Ford, 27 Conn. 282, 71 Am. Dec. 
 66; Newburg Petroleum Co. t. Weare, 27 Ohio St. 343; McFarlan v. Triton 
 Ins. Co., 4 Den. 392; Jones v. Kokomo Bid. Ass'n, 77 Ind. 340; Alexander 
 V. ToUeston Club, 110 111. 65; St. Louis v. Shields, 62 Mo. 247; Grant v. 
 Henry Clay Coal Co., 80 Pa. St. 208; Butchers Bank t. McDonald, 130 
 Mass. 264. 
 
 81 Aller v. Cameron, 3 Dill. (XJ. S.) 198; Dooley v. Cheshire Glass Co., 15 
 Gray, 494; Empire Mfg. Co. v. Stuart, 46 Mich. 482; Racine Ry. Co. v.. 
 Farmers' L. & T. Co., 49 111. 346, 95 Am. Dec. 595; Stone v. Berkshire Soc, 
 14 Vt. 86; Rush v. Halcyon Steamboat Co., 84 N. C. 702; Reynolds t. 
 Myers, 51 Vt. 444; Com. v. Worcester Turnpike Cor., S Pick. 327. Contra, 
 Boyce V. Towsontown, 46 Md. 359. 
 
 82 Eaton V. Aspinwall, 19 N. Y. 119; Frost v. Walker, 60 Me. 468; 
 Wheelock v. Kost, 77 111. 296; Hager v. Cleveland, 36 Md. 476; Holyoke 
 Bank v. Goodman Paper Co., 9 Cush. 576; Walworth v. Brackett, 98 Mass. 
 98. See also, Utley v. Union Tool Co., 11 Gray, 139; Gaff v. Flesher, 33 
 Ohio St. 107; Central Agr. Ass'n v. Alabama Ins. Co., 70 Ala. 120; Keyser 
 V. Hitz, 2 Mackey (D. C.) 473. 
 
 »3Erle Co. v. Brown, 25 Pa. St. 156; Sanger ▼. TTpton, 91 U. S. 56; 
 Wheeler v. Millar, 90 N. Y. 353; Boston Ry. Co. v. Wellington, 113 Mass. 
 
§ 277. ADMISSIONS. 345 
 
 familiar illustration of estoppel by conduct is that, where one holds 
 himself out as a partner and thereby induces others to act on the 
 faith of such act or representation, he cannot be heard to prove that 
 no such partnership in fact existed f* and where a retiring partner 
 gives no notice to persons who contiune to give credit supposing him 
 to be a member of the firm, he cannot deny that he is a partner as 
 far as their interests are thereby affected."* Another familiar ex- 
 ample is that arising out of the relation of husband and wife. "Where 
 a man cohabits with a woman or by other conduct leads the public 
 to suppose that they are married, he will not be heard to prove 
 against those who have given credit on the faith of such representa- 
 tions or acts, that they are not in fact married.*" Under similar cir- 
 cumstances a woman may be estopped to deny that she is married, 
 when third persons have been led to rely on her representations to 
 their injury.'^ 
 
 § 277 (279). Same — When admissions are in good faith and by 
 mistake. — ^It may be inferred from the illustrations already given 
 that before an estoppel can arise from the conduct of an individual 
 there must be some fault on his part. Said Justice Field: "There 
 must be some intended deception in the conduct or declarations of 
 the party to be estopped, or such gross negligence on his part as to 
 
 79; Clark v. Farrlngton, 11 Wis. 306; Jewell v. Rock River Co., 101 111. 57; 
 Haynes v. Brown, 36 N. H. 545; Chaffin v. Cuminlngs, 37 Me. 76; Griswold 
 V. Seligman, 72 Mo. 110; Musgrave v. Morrison, 54 Md. 161; Cheltenham 
 Ry. Co. V. Daniel, 2 Q. B. 281; West Cornwall v. Mowatt, 15 Q. B. 521. 
 
 siPickard v. Sears, 6 Adol. & Ell. 469; Freeman v. Cooke, 2 Exch. 654; 
 Carr v. London £ N. W. Ry. Co., L. R. 10 C. P. 316; Parchen v. Anderson, 
 5 Mont. 438, 51 Am. Rep. 65; Beecher v. Bush, 45 Mich. 188, 40 Am. Rep. 
 465; Sun Ins. Co. v. Kountz Line, 122 TJ. S. 583. 
 
 soLovejoy v. Spafford, 93 U. S. 430; Freeman v. Cooke, 2 Exch. 661; 
 Austin V. Holland, 69 N. T. 571, 25 Am. Rep. 246. 
 
 8» Watson V. Threlkeld, '2 Esp. 637; Munro v. De Chemant, 4 Camp. 
 216; Ryan v. Sans, 12 Q. B. 460; Blades v. Free, 9 Barn. & C. 167; Ed- 
 wards V. Farehrother, 2 Moore & P. 293; Ponder v. Graham, 4 Fla. 23; 
 Young v. Foster, 14 N. H. 114; Gathings v. Williams, 5 Ired. (N. C.) 487; 
 Johnston v. Allen, 39 How. Pr. (N. Y.) 506. See note, 96 Am. Dec. 214. 
 
 87 Temples v. Equitable Mortgage Co., 100 Ga. 503, 28 S. E. 503, 62 Am. 
 St. Rep. 326; Mace v. Codell, 1 Cowp. 232. Sec note, 96 Am. Dec. 214. 
 But In a controversy between a man and a woman in respect to property 
 there Is no such estoppel, If neither believed a valid marriage to exist, 
 Robblns v. Potter, 98 Mass., 532; Gathings v. Williams, 5 Ired. (N. C.) 
 487, 44 Am. Dec. 49; Allen v. Wood, 1 Bing. N. C. 8. Contra, Johnson 
 V. Johnson, 1 Cold. (Tenn.) 626. As to estoppel In action to annul a mar- 
 riage, see note, 96 Am. Dec. 215. 
 
346 THE LAW OF EVIDENCE. § 278. 
 
 amount to constructive fraud." '* While it is not in all cases neces- 
 sary to show actual knowledge of the facts on the part of the one 
 against whom the estoppel is claimed, it should at least be shown 
 that the declarations were made under such circumstances that he 
 ought to have had such knowledge or that they were made negli- 
 gently and recklessly.^* When a person through misapprehension, 
 ignorance or inadvertence does acts or makes declarations which 
 mislead another to his injury, but when at the same time there is no 
 willful deception or culpable negligence and no intention that the 
 representation should be acted upon as true by the other party, and 
 when nothing accompanies it that is equivalent to a promise that the 
 representation is true, the person mak:ing the declarations or doing 
 the acts is not estopped from proving the truth against the party 
 thus misled.'" It follows that there is no estoppel when the declara- 
 tions are made in good faith and in ignorance of the real facts, in 
 other words, when made innocently and by mistake.'* 
 
 § 278(280). Same — Erection of improvements — Boundary lines. 
 — A party is not estopped from claiming his property by reason of 
 seeing improvements erected upon it °^ or by seeing it sold to oth- 
 ers,*^ if the purchaser knows that the property belongs to such first 
 party. As was said by Chief Justice Dixon in a Wisconsin case: 
 ' ' One essential element of every equitable estoppel, by which a man 
 is to be precluded from claiming what is his own, is that the pur- 
 chaser and party claiming the benefit of such estoppel should have 
 been ignorant of the true state of title. ' ' "* Nor in general does any 
 estoppel arise from acquiescence through mistake of fact as to an 
 
 88 Henshaw v. Bissell, 18 Wall. 255. 
 
 8»L.eatlier Mfg. Bank v. Morgan, 117 TJ. S. 96; "Weinstein v. National 
 Bank, 69 Tex. 38; Coleman v. Pearce, 26 Minn. 123; Madison Co. v. Pax- 
 ton, 57 Miss. 701; Mutual Ins. Co. v. Norris, 31 N. J. Eq. 583; Davenport 
 Ry. Co. V. Davenport Gas Co., 43 Iowa, 301; "Wright v. Stlce, 173 111. 
 571, 51 N. E. 71; Wright v. Newton, 130 Mass. 552; Greene v. Smith, 57 
 Vt. 268. 
 
 sflDanforth v. Adams, 29 Conn. 107; Smith v. Sprague, 119 Mich. 148, 
 77 N. W. 689, 75 Am. St. Rep. 384. 
 
 81 Brewer v. Boston & W. Ry. Co., 5 Met. 478, 39 Am. Dec. 694; Henshaw 
 V. Bissell, 18 Wall. 255; Brown v. Bowen, 30 N. Y. 541, 86 Am. Deo. 406; 
 Thrall v. Lathrop, 30 Vt. 307, 73 Am. Dec. 306. 
 
 82 Brewer v. Bostqn Ry. Co., 5 Met. 478, 39 Am. Dec. 694. 
 
 03 Brown v. Tucker, 47 Ga. 485; Hale v. Skinner, 117 Mass. 474; Greene 
 v. Smith, 57 Vt. 268. 
 
 »* Hass V. Plautz, 56 Wis. 105, 43 Am, Rep. 699; Gove v. White, 20 Wis. 
 425. 
 
§ 279. ADMISSIONS. 347 
 
 erroneous boundary line;*' and it has been frequently held that 
 where there is an agreement or acquiescence in a ivrong boundary, 
 when the true boundary can be ascertained from the deed, neither 
 party is estopped from claiming to the true line."* But there are 
 other cases in which long acquiescence in a boundary line, accom- 
 panied with improvements or other acts showing reliance on such 
 boundary, has been held equivalent to knowledge of the facts, and 
 it was there held to constitute an estoppel, even though there was 
 actual mistake.'^ 
 
 § 279 (281). Same — The act must be calculated to mislead and 
 must actually mislead. — Before a person can avail himself of an 
 estoppel arising from the conduct or declarations of another, he 
 must show that he was himself destitute of knowledge of the true 
 state of the facts. If either he Imows the facts, or the circumstances 
 are such that he ought to know the facts, he is in no situation to 
 claim the benefit of an estoppel.^^ Before a person is estopped to 
 deny the truth of his representations, it should either be shown that 
 he actually means to have such representations relied upon, or that 
 they were made under such circumstances that such intention on 
 his part might be reasonably inferred;*" in other words, the proof 
 of the intent may be either direct or presumptive.^ It follows that 
 there need not be an actual design to mislead. It is enough that the 
 act or representation is calculated to mislead and does mislead the 
 other party to his disadvantage while acting in good faith and with 
 reasonable care and diligence.* 
 
 »s Brewer v. Boston & W. Ry. Co., 5 Met. 478, 39 Am. Dec 694; Rams- 
 den V. Dyson, L. R. 1 H. L. 129, 140; Sheridan v. Barrett, 4 L. R. It. 223; 
 Hass V. Plautz, 56 Wis. 105, 43 Am. Rep. 699; Reed v. McCourt, 41 N. Y. 
 435; Lemon v. Hartsook, 80 Mo. 13; Klrchner v. Miller, 39 N. J. Eq. 355; 
 Pitcher v Dove, 99 Ind. 175; Davenport v. Tarpin, 43 C:)l. 597; Evans v. 
 Miller, 58 Miss. 120, 38 Am. Rep. 313. 
 
 »«Hartung v. Witte, 59 Wis. 285; Liverpool Wharf v. Prescott, 7 Allen, 
 494; Hass v. Plautz, 56 Wis. 105, 43 Am. Rep. 699. 
 
 »7 Adams v. Rockwell, 16 Wend. 285; Chicago Ry. Co. v. People, 91 111. 
 251; Hagey v. Detweiler, 35 Pa. St. 409; McCormick v. Barnum, 10 Wend. 
 104; Stosser v. Ft. Wayne, 100 Ind. 443. For illustrations of the subject 
 see note, 38 Am. Rep. 315. 
 
 8« Brant v. "Virginia Coal Co., 93 U. S. 326; Smith v. Kremer, 71 111. 185; 
 Logansport v. La Rose, 99 Ind. 117; Robhins v. Potter, 98 Mass. 532; 
 Hutchins v. Hebard, 34 N. Y. 24; Kingman v. Graham, 51 Wis. 232. 
 
 89 Freeman v. Cooke, 2 Exch. 654 ; Leather Mfg. Co. v. Morgan, 117 XJ. 
 S. 96; Blair v. Wait, 69 N. Y. 113; Kingman v. Graham, 51 Wis. 232. 
 
 ^ See cases last cited. 
 
 2 Blair v. Wait, 69 N. Y. 113; Manufacturers' Bank v. Hazard, 30 N. Y. 
 226. 
 
348 THE LAW OF EVIDENCE. § 281. 
 
 § 280 (282). Who may claim benefit of estoppel. — ^Persons for 
 whom the representations are not intended and to whom they are 
 not addressed cannot claim the benefit of an estoppel based on such 
 representations.' Thus, the declaration of A to B, not made with the 
 purpose or belief that it would be communicated to C, or would in- 
 fluence his action, constitutes no estoppel upon A, although C after- 
 wards hears of it and acts upon it.* But conduct or declarations 
 may be of so general or notorious a character that the public gen- 
 erally may assume that they are intended to be relied upon, as 
 where a man publicly treats a woman as his wife, or an associate as 
 his partner." An estoppel in pais operates only in favor of the per- 
 son who has been misled to his injury ; and he only can set it up.' 
 Thus where an account is rendered, and the other party does not ac- 
 cept it, and in no way changes his situation, there is no estoppel 
 from claiming a larger sum;^ and in an action for false imprison- 
 ment where the defendant, an officer, had only a copy of the war- 
 rant, it was held that he was not estopped from showing this fact, 
 as the plaintiff had not acted upon any representation although he 
 had been led to suppose that the officer had the original.' 
 
 § 281 (283), Estoppel by deed. — It will elsewhere appear in the 
 discussion of the effect of judgments as evidence that in some cases 
 the law attaches an artificial effect to certain classes of evidence." 
 The same principle will now be illustrated in respect to recitals and 
 statements in deeds ; and it will be found that such recitals are not, 
 like casual admissions, judged by their intrinsic weight as evidence, 
 but that, under the limitations to be named, they conclusively bind 
 the parties and their privies. It has long been a familiar rule of the 
 
 « Kinney v. Whiton, 44 Conn. 62, 26 Am. Rep. 462; Morgan v. Spangler, 
 14 Ohio St. 102; Durant v. Pratt, 55 Vt. 270. 
 
 * Mayenborg v. Haynes, 50 N. Y. 675. Tlie party may be estopped if the 
 declaration Is not confidential, but general and acted on by others. Nut- 
 shell V. Reed, 9 Cal. 204, 70 Am. Dec 647. 
 
 B See § 87, et seq. supra; also § 276, supra. 
 
 oKetchum v. Duncan, 96 U. S. 659; Butchers Ass'n v. Boston, 139 Mass. 
 290; Wlnegar v. Fowler, 82 N. Y. 315; Guichard v. Brande, 57 Wis. 534; 
 Townsend Bank v. Todd, 47 Conn. 190; Earl v. Stevens, 57 Vt. 474; Law- 
 rence T. Towle, 59 N. H. 28; Maxwell v. Bay City Co., 46 Mich. 278; Illinois 
 Masons Soc. v. Baldwin, 86 111. 479; Spurlock v. Sproul, 72 Mo. 503; 
 Stringer v. Northwestern Ins. Co., 82 Ind,. 100; Clark v. McClaugherty 
 (W. Va.) 44 S. E. 267; Strahl v. Smith, 30 Colo. 392, 70 Pac. 677. 
 
 ' Stryker v. Cassldy, 76 N. Y. 50, 32 Am. Rep. 262. 
 
 » Howard y. Hudson, 2 El. & B. 1. 
 
 • See i 585, et seq. infra. 
 
§ 281. ADMISSIONS. 349 
 
 law that parties may, by executing instruments under seal, conclude 
 themselves from disproving or contradicting, by any evidence of less 
 solemnity, the statements contained therein.^" Said Lord Mansfield. 
 "No man shall be allowed to dispute his own solemn deed. " ^^ Thus, 
 a specific recital in a deed that the grantor has title to or that he is 
 in possession of the land conveyed will estop him from asserting the 
 contrary as against the grantee. In other words, the grantor is 
 estopped from saying that he had no interest in the land.^^ 
 
 «>San Antonio v. Mehaffy, 96 U. S. 312; Insurance Co. v. Bruce, 105 U. 
 S. 328; Carver v. Jackson, 4 Peters, 1; .Beckett v. Bradley, 7 Man. & G. 
 994; Young v. Raincock, 7 C. B. 310, 338; Haggart v. Morgan, 5 N. Y. 
 422, 55 Am. Dec. 350; Dock Co. v. I^eavitt, 54 N. Y. 35; Francis v. Boston 
 Mill Co., 4 Pick. 365; Dyer v. Rich, 1 Met. 180; Stow v. Wyse, 7 Conn. 
 214, 18 Am. Dec. 99; Box v. Lawrence, 14 Tex. 545; Usina v. Wilder, 58 Ga. 
 178; Despain v. Wagner, 163 111. 598, 45 N. E. 129; La Strange v. State, 
 58 Md. 26; Cutler v. Supervisors, 56 Miss. 115; Hundley v. Filbert, 72 Mo. 
 S4; Wilson v. Land Co., 77 N. C. 445; Gudtner v. Kilpatrick, 14 Neb. 347; 
 Summerhill v. White, 54 W. Va. 311, 46 S. E. 154. 
 
 11 Goodtitle v. Bailey, Cowp. 601. 
 
 12 Williams v. Society, 1 Ohio St. 478; Hannon v. Christopher, 34 N. J. 
 Eq. 459; Beasley v. Phillips, 20 Ind App. 182. 60 N. E. 488; Hagenick v. 
 Castor, 53 Neb. 495, 73 N. W. 932. Where the deed describes the land 
 conveyed as bounded by a street, the parties to the conveyance are 
 estopped to deny the existence of the street, Donohoo v. Murray, 62 Wis. 
 100; Fox V. Union Refining Co., 109 Mass. 292; Parker v. Smith, 17 Mass. 
 413, 9 Am. Dec. 157. The recital of a lease in a deed of release is con- 
 clusive evideilce of the existence of the lease against the parties and 
 their privies, Shelley v. Wright, Willes, 9; Crane v. Morris, 6 Peters, 611; 
 Carver v. Jackson, 4 Peters, 1, 83; Cossens v. Cessans, Willes, 25; but not 
 upon strangers, or those claiming paramount to the deed. Carver v. Jack- 
 son, 4 Peters, 1, 83. One who holds under a deed, which by its terms is 
 subject to a prior mortgage, is estopped from questioning the consideration 
 or validity of such mortgage. Freeman v. Thomas, 44 N. Y. 50; Johnson 
 V. Thompson, 129 Mass. 398; Tnite v. Stevens, 98 Mass. 305; Smith v. 
 Graham, 34 Mich. 302. The grantor is estopped to deny the recitals of 
 due notice of a sale, Simson v. Eckstein, 22 Cal. 580; of an authority 
 stated to have been given by a corporation, Stowe v. Wyse, 7 Conn. 214, 18 
 Am. Dec. 99; McDonald v. King, 1 N. J. L. 432; of the taking of an oath 
 of office, Larco v. Casaneuara, 30 Cal. 560; or that certain conveyances 
 have been made to him. Kinsman v. Lewis, 11 Ohio, 475; Rangeley v. 
 Spring, 28 Me. 142; Farrar v. Cooper, 34 Me. 401; McDonald v. King, 1 N. 
 J. L. 432. A surety on a bond is estopped from claiming that his principal 
 has not legally qualified for the trust or ofBce, 2 Smith L. C. (8th Am. Ed.) 
 819; Seiple v. Elizabeth, 3 Dutch. (N. J.) 407; People v. Norton, 9 N. Y. 
 176; Hayden v. Stnith, 40 Conn. 83; Meyer v. Wiltshire, 92 111. 395; Gray 
 V. State, 78 Ind. 68, 41 Am. Rep. 545 ; Phoenix Ins. Co. v. Findlay, 59 Iowa, 
 59; Jones v. Gallatin, 78 Ky. 491; Williamson v. Woodman, 73 Me. 163; 
 
350 THE LAW OP EVIDENCE. § 282. 
 
 § 282(284). Same — Title subsequently acquired — Mutuality 
 and privity. — It is a well known illustration of this principle of 
 estoppel by deed that, if a grantor undertakes to convey the fee 
 with full warranties when he in fact has no title, and he subse- 
 quently acquires title, such title forthwith inures to the benefit of 
 the grantee to the same extent as if the grantor had had the title at 
 the date of the grant. '^ In such case the grantor and his heirs are 
 precluded from asserting the title as against the grantee and those 
 in privity with him.^* As in the case of judgments, only those who 
 are parties to the deed, or who are in privity with such parties, are 
 bound by its recitals.^' No person can rely on an estoppel growing 
 out of a transaction to which he is not a party or privy and which 
 in no manner touches his rights. Mutuality is a requisite to all 
 estoppels.^" Hence the estoppel of a deed does not extend to a col- 
 lateral action, where the cause of action is different, although the 
 
 Taylor v. State, 51 Miss. 79; Kelly v. State, 25 Ohio St. 567; McClure v. 
 Com., SO Pa. St. 167. Sureties on tke bonds of administrators, guardians, 
 slieriffs and the like are estopped to deny tliat the principal held the 
 designated office, Cutler v. Dickinson, 8 Pick. 386; Bruce y. United States, 
 17 How. 437; Sehroyer v. Richmond, 16 Ohio St. 455; Norris v. State, 22 
 Ark. 524; Cox v. Thomas, 9 Gratt. (Va.) 312; Jones v. Gallatin, 78 Ky. 491; 
 State V. Mills, 82 Ind. 126; Williamson v. Woodman, 73 Me. 163. But see, 
 Conant v. Newton, 126 Mass. 105. 
 
 13 Irvine v. Irvine, 9 Wall. 625; Knight v. Thayer, 125 Mass. 25; O'Ban- 
 non V. Paremour, 24 Ga. 493; Jarvis v. Aikens, 25 Vt. 635; Jackson v. 
 Hubble, 1 Cow. 613; Gochenour v. Mowry, 33 111. 331; Beese v. Smith, 12 
 Mo. 344; Jackson v. Wright, 14 Johns. 193; Kimball v. Schofl, 40 N. H. 
 190; Crocker v. Pierce, 31 Me. 177; Rooney v. Koenig, 80 Minn. 483, 83 N. 
 W. 399; Dye v. Thompson, 126 Mich. 597, 85 N. W. 1113; Broadwell v. 
 Phillips, 30 Ohio St. 255; Wiesner v. Zaun, 39 Wis. 188; House v. McCor- 
 mick, 57 N. T. 310; Burtners v. Keran, 24 Gratt. (Va.) 42; McCusker v. 
 McBvey, 9 R, I. 528, 11 Am. Rep. 295; Doe v. DowdWl, 3 Houst (Del.) 
 369, 11 Am. Rep. 757; Jenkins v. Collard, 145 U. S. 546. See notes, 37 
 Am. Dec. 129, 23 Am. Dec. 673. 
 
 1* See cases last cited. But this is not so if the instrument Is a mere 
 release or quit-claim deed. Bell v. Twilight, 26 N. H. 401; Jackson v. 
 Wright, 14 Johns, 193; Clark v. Baker, 14-Cal. 612, 76 Am. Dec. 449; 
 Pelletreau v. Jackson, 11 Wend. 110; Kinsman v. Loomis, 11 Ohio, 475; 
 Pike v. Galvin, 29 Me. 183; Harriman v. Gray, 49 Me. 537; Dorris r. 
 Smith, 7 Ore. 267; Graham v. Graham, 55 Ind. 23; McAllister v. Devane, 
 76 N. C. 57. See note, 37 Am. Dec. 30. 
 
 "Doe V. Errington, 8 Steott, 210; Allen v. Allen, 45 Pa. St. 468; Sunder- 
 lin V. Struthers, 47 Pa. St. 411; Carver v. Jackson, 4 Peters, 1; Penrose 
 V. Griffith, 4 Blnn. (Pa.) 231; Glidden v. Unity, 30 N. H. 104; BufEum v. 
 Hutchinson, 1 Allen, 58. 
 
 i« Deery v. Cray, 5 Wall. 795. 
 
§ 283. ADMISSIONS. 351 
 
 subject matter may be the same;^'' and it is applied only in some 
 proceeding based on the deed in question.^' Although the estoppel 
 does not extend to strangers to the transaction, those who act under 
 the authority of the grantee are so connected in interest that they 
 may take advantage of an estoppel.^* But there is no such privity 
 between creditor and debtor. The legal relation between them is one 
 of antagonism, rather than of confidence and dependence."" On the 
 same principle there is not such privity between the grantor and the 
 grantee that the latter is in all cases estopped from setting up a 
 paramount title which he has acquired from another person. Al- 
 though a grantee cannot dispute his grantor's title at the time of 
 conveyance for the purpose of avoiding payment of the purchase 
 price, and although when two parties assert title from a common 
 grantor and no other source, neither can deny that such grantor had 
 a valid title, yet one of such parties may secure title from another 
 source and is not estopped to rely on it."^ "A vendee has the right 
 to fortify his title by the purchase of any other which may protect 
 him in the quiet enjoyment of his premises." "" 
 
 § 283 (285). Qualifications as to mere general recitals — Other 
 qualifications of the general rule. — The decisions recognize a dis- 
 tinction between those recitals in a deed which are specific or par- 
 ticular and which must be deemed to have received the deliberate 
 intention of the parties, and those which are general and merely 
 formal. The rule "is elsewhere stated that recitals as to considera- 
 tion, date, quantity and the like do not carry the same conclusive 
 effect as the more specific recitals and statements referred to in this 
 discussion. In order to have conclusive effect recitals should be 
 clear and unambiguous."* And it has sometimes been said that to 
 
 constitute an estoppel by deed, there should be a distinct and pre- 
 
 » 
 
 "Merrifield v. Parritt, 11 Cush. 590; Carpenter v. BuUer, 8 M. & W. 
 209; Edmonston v. Edmonston, 13 Hun (N. Y.) 133; King v. Mead, 60 
 Kan. 539, 57 Pac. 113. 
 
 18 Carpenter v. Buller, 8 M. & W. 209; McFarland v. Goodman, 6 Bise. 
 (U. S.) Ill; Cl?iflin v. Boston & A. R. Co., 157 Mass. 489, 32 N. E. 659. 
 Nor can a deed create an estoppel, unless it has been delivered, Nourse 
 V. Nourse, 116 Mass. 104. 
 
 18 Osgood v. Abbott, 58 Me. 73. 
 
 2* Waters' Appeal, 35 Pa. St. 523, 78 Am. Dec. 354. 
 
 21 Robertson v. Pickrell, 109 U. S. 608; Osterhout v. Shoemaker, 3 HUl, 
 513. 
 
 22 Osterhout v. Shoemaker, 3 Hill, 513. 
 
 23 School Dlst. v. Stone, 106 U. S. 183 ; Calkins v. Copley, 29 Minn. 471, 
 13 N. W. 904. See § 468, infra. 
 
352 THE LAW OP EVIDENCE. § 283. 
 
 cise admission of a fact.^* But general recitals, if contractual in 
 their nature, may also constitute an estoppel. And it is to be de- 
 termined from the entire agreement whether it was the intention 
 of the parties that the recital should be conclusive in its effect.^' 
 Nor is it essential to the estoppel in all cases that the admission 
 should be made in terms. It is enough if the intention of the parties 
 to place the existence of a fact beyond question or make it the basis 
 of the contract is so clearly expressed as to leave no room for doubt.^' 
 It is another familiar limitation that, when the truth appears on the 
 face of the instrument, there is no estoppel. The whole instrument 
 is to be construed together and, if a recital in one part is contra- 
 dicted or qualified by a recital in another part, there is estoppel 
 against estoppel, which leaves the matter open to proof.^' Other 
 qualifications are that the deed must be delivered;'^ that it must be 
 a valid instrument,^" and not in violation of statute f but if the 
 deed has been procured by fraud, its validity is open to question." 
 It is another qualification that "in order to work an estoppel the 
 parties to the deed must he sui juris, competent to make it effectual 
 as a contract. ' ' '^ Hence at common law a married woman is not 
 estopped by her covenants.** But married women are sui juris to 
 
 2* Jackson v. Allen, 120 Mass. 64. 
 
 2B Southeastern Ry. Co. v. Warton, 6 Hurl. & N. 520; Carpenter v. Buller, 
 8 M. & W. 209; StroughlU v. Buck, 14 Q. B. 781; Young v. Ralncock, 7 C. 
 B. 310; Bower v. McCormlck, 23 Gratt. (Va.) 310; Blackhall v. Gibson, 2 
 L. R. Ir. 49. 
 
 28 Billingsley v. State, 14 Md. 369. 
 
 27Pargeter v. Harris, 7 Q. B. 708; Cuthbertson v. Irving, 4 Hurl. & N. 
 742; Sinclair v. Jackson, S Cow. 543, 586; Wheelock v. Henshaw, 19 Pick. 
 341; Carpenter v. Thompson, 3 N. H. 204. 
 
 28 Nourse v. Nourse, 116 Mass. 101. 
 
 aoCaffirey v. Dudgeon, 38 Ind. 512, 10 Am. Rep. 126; Conant v. Newton, 
 126 Mass. 105; Pells v. Webquish, 129 Mass. 469; James v. Wilder, 25 Minn. 
 305; Alt V. 'Banholzer, 39 Minn. 511, 40 N. "W. 830; Shevlln v. Wlielen, 41 
 Wis. 88; Fairtitle v. Gilbert, 2 T. R. 169. 
 
 ^0 See cases last cited. 
 
 81 Parry v. Parry, 130 Pa. St 94; Call v. Shewmaker (Ky.), 69 S. W. 
 749. 
 
 32 Bank of America v. Banks, 101 TJ. S. 240, 247. 
 
 33 Bank of America v. Banks, 101 U. S. 240; Goodenough t. Fellows, 
 53 Vt. 102; Trentman v. Bldridge, 98 Ind. 525; Jackson v. Vanderheyden, 
 17 Johns. 167, 8 Am. Dec. 378; Lowell v. Daniels, 2 Gray, 161, 61 Am. Deo. 
 448; "Wight v. Shaw, 5 Cush. 56; Barker v. Circle, 60 Mo. 258; Wood T. 
 Terry, 30 Ark. 385; Hardin v. Darwin, 77 Ala. 472; Patterson v. Lawrence, 
 90 111. 174, 32 Am. Rep. 22; McLeery'v. McLeery, 65 Me. 172, 20 Am. Eep. 
 683. 
 
§ 284. ADMISSIONS. 353 
 
 the extent of the enlarged capacity to act conferred by statutes; 
 and in those jurisdictions, where the statutes have enabled married 
 women to make contracts as though single, there is no reason for the 
 application of the old rulfe.'* The principle that the parties must be 
 sui juris applies of course to the case of infants who are not estopped 
 by recitals in deeds, unless there has been ratification after reaching 
 majority.'" 
 
 § 284 (286). As between landlord and tenant. — ^It is a familiar 
 rule in the law of landlord and tenant that one who as tenant has 
 entered into the possession of land under the permission of his land- 
 lord cannot in equity and good conscience be heard to prove, while 
 in such possession, that his landlord had no title. Said Lord Den- 
 man: "No general rule, when rightly understood, is more impor- 
 tant or more strictly to be observed than that which precludes the 
 tenant from disputing the title of his landlord. ' ' " The tenant may, 
 however, show that the landlord's title has expired or been conveyed 
 to another or to himself.'' And he is not estopped to deny a claim 
 for rent, when he has been ousted or evicted by title paramount,'^ 
 
 3* Knight V. Thayer, 125 Mass. 25; Bodlne v. Kllleen, 53 N. Y. 93; God- 
 frey V. Thornton, 46 Wis. 677. Married women, like other persons, may be 
 estopped by their deliberate acts on grounds of equitable estoppel, Norton 
 V. Nichols, 35 Mich. 148; Godfrey v. Thornton, 46 Wis. 677; Sharpe v. 
 Foy, 4 Ch. App. 35; In re Lush's Trusts, 4 Oh. App. 591. 
 
 35 Cooks V. Toombs, 36 Miss. 685; Houston v. Turk, 7 Yerg. (Tenn.) 13. 
 
 38 As to the general principles see Doe v. Barton, 11 Adol. & Ell. 307; 
 Doe V. Smith, 4 Maule & S. 347; Stott v. Rutherford, 92 U. S. 107; Whalin 
 V. White, 25 N. Y. 462; Gage v. Campbell, 131 Mass. 566; Rogers v. Waller, 
 i Hayw. (Tenn.) 205, 9 Am. Dec. 758; Hatch v. Bullock, 57 N. H. 15; Betts 
 V. Wurth, 32 N. J. Eq. 82; Terrett v. Cowenhaven, 79 N. Y. 400; Nims t. 
 Sherman, 43 Mich. 45; Mosher v. Cole, 50 Neb. 636, 70 N. W. 275. 
 
 sTHopcraft V. Keys, 9 Bing. 613; Otis v. McMillan, 70 Ala. 46; Bettlson 
 v. Budd, 17 Ark. 546, 65 Am. Dec. 442; Pickett r. Ferguson, 45 Ark. 177, 
 55 Am. Rep. 545; Lawrence v. Webster, 44 Cal. 385; Rodgers v. Palmer, 
 33 Conn. 155; Winn v. Strickland, 34 Fla. 610, 16 So. 606; Worthy v. Tate, 
 44 Ga. 152; Doty v. Burdick, 83 111. 473; Stout v. Merrill, 35 Iowa, 47; Fry 
 V. Boman, 67 Kan. 531, 73 Pac. 61; Gregory v. Crabb, 2 B. Mou. (Ky.) 
 234; Ryder v. Mansell, 66 Me. 167; Chamberlain v. Perry, 138 Mass. 546; 
 Snyder v. Hemmingway, 47 Mich. 549; Higgins t. Turner, 61 Mo. 249; 
 Brown v. Supervisors, 54 Miss. 230; Nellis v. Lathrop, 22 Wend. 121, 34 
 Am. Dec. 285; Merrell v. Roberts, 11 Ired. (N. C.) 424, 53 Am. Dec. 419; 
 Smith V. Grosland, 106 Pa. St. 413; Camley v. Stanfleld, 10 Tex. 546, 60 
 Am. Dec. 219; Bowser v. Bowser, 10 Humph. (Tenn.) 49; Chase t. Dear- 
 born, 21 Wis. 57. See note, 53 L. R. A. 934. 
 
 »»Farrls v. Houston, 74 Ala. 162; Tewksbury v. Magrofl, 33 Cal. 237; 
 Camp V. Scott, 47 Conn. 366; Milburn v. "Whitfield, 44 Ga. 51; Doty v. Bur- 
 
354 THE LAW OP EVIDENCE. § 284. 
 
 or when the lease was in fact void, and the relation of landlord and 
 tenant never in fact existed.^' The tenant may also show fraudu- 
 lent representations,*" duress practiced by the landlord,*^ or mistake 
 on the part of the tenant/^ but the clear burden of proof is on the 
 tenant to show such fraud or mistake.*' Payment of rent is evi- 
 dence of possession by permission and, unless explained, establishes 
 the relation of landlord and tenant.** The estoppel arises not only 
 against the tenant, but against all holding under him or in privity 
 with him, and in favor of all persons claiming under the lessor.*" 
 
 dick, 83 111. 473; Stout v. Merrill, 35 Iowa, 47; Foster v. Morris, 3 A. K. 
 Marsh. (Ky.) 611, 13 Am. Dec. 205; Sneed v. Jenkins, 8 Ired. (N. C.) 27; 
 Pendleton v. Dyett, 4 Cow. 581; Hunt v. Cope, 1 Cawp. 242. 
 
 39 Hughes V. Clarksville, 6 Peters, 369; Milton v. Haden, 32 Ala. 30, 70 
 Am. Dec. 523; Keller v. Klopfer, 3 Colo. 132; Tribble v. Anderson, 63 Ga. 
 31; Green v. Dletrick, 114 111. 636; Andrews v. Woodcock, 14 Iowa, 397; 
 Dyer v. Curtis, 72 Me. 180; Holmes v. Turner's Falls Co., 142 Mass. 590; 
 Bain v. Matteson, 54 N. Y. 663; Weaver v. Sturtevant, 12 R. I. 537; Boss 
 V. Cobb, 9 Yerg. (Tenn.) 463; Furlong v. Garrett, 44 Wis. 111. But see, 
 Sharpe v. Kelley, 5 Den. 431; Henley v. Branch Bank, 16 Ala. 552; Norton 
 V. Sanders, 1 Dana (Ky.) 14; Drane v. Gregory, 3 B. Mon. (Ky.) 619; Wil- 
 son v. Smith, 5 Yerg. (Tenn.) 379. 
 
 «) Miller v. McBrier, 14 Serg. & R. (Pa.) 382; Jackson v. Cuerden, 2 
 Johns. Cas. 353; Swift v. Dean, 11 Vt. 323, 34 Am. Dec. 693; Strauss v. 
 Harrison, 79 Ala. 324; Peralta v. GInoohio, 47 Cal. 459; Tisson v. Yawn, 
 15 Ga. 491, 60 Am. Dec 708; Carter v. Marshall, 72 111. 609; Higgins t. 
 Turner, 61 Mo. 249; Givens v. Mullinax, 4 Rich. L. (S. C.) 591, 55 Am. Dec. 
 706; Redmon v. Bowles, 5 Sneed (Tenn.) 547, 73 Am. Dec. 153; Hammons 
 V. McCIure, 85 Tenn. 65. See note, 13 Am. Dec. 69. 
 
 *i Hamilton v. Marsdon, 6 Binn. (Pa.) 45; Brown v. Dysinger, 1 Rawle 
 (Pa.) 408; Hall v. Benner, 1 Pen. & W. (Pa.) 402, 21 Am. Dec. 394; Grave- 
 nor V. Woodhouse, 1 Bing. 38. See note, 13 Am. Deo. 69. 
 
 42 See cases cited in note 40, supra. 
 
 43 Kinney v. Doe, 8 Blackf. (Ind.) 350; Howell v. Ashmore, 22 N. J. L. 
 261; Beatty v. Fishel, 100 Mass. 448. 
 
 "People V. Simpson, 50 Cal. 304; Leitch v. Boyington, 84 111. 179; Roths- 
 child V. Williamson, 83 Ind. 387; Jones v. Howard, 3 Allen, 223; McFarlan 
 V. Watson; 3 N. Y. 286; Vinz v. Beatty, 61 Wis. 645; Doe v. Wilkinson, 3 
 Barn. & C. 413; Dunshee v. Grundy, 15 Gray, 314; Whalin v. White, 25 N. 
 Y. 462. 
 
 45 Bishop V. Lalouette, 67 Ala. 197; Earle v. Hale, 31 Ark. 470; Standley 
 V. Stephens, 66 Cal. 541; White v. Barlow, 72 Ga. 887; Hardin v. Jones, 86 
 111. 313; Coburn v. Palmer, 8 Cush. 124; Worthington v. Lee, 61 Md. 530; 
 Page V. McClinch, 63 Me. 472; Woodrufi v. Erie Ry. Co., 93 N. Y. 609; Luce 
 V. Carley, 24 Wend. 451, 35 Am. Dec. 637; Jackson v. Davis, 5 Cow. 123, 
 15 Am. Dec. 451; Bannon v. Brandon, 34 Pa. St. 63, 75 Am. Dec. 655; Doak 
 V. Donelson, 2 Yerg. (Tenn.) 249, 24 Am. Dec. 485; Bmerick v. Tavener, 
 9 Gratt. (Va.) 220, 58 Am. Dec. 217; Willison v. Watkins, 3 Peters, 43. 
 
§ 285. ADMISSIONS. 355 
 
 It continues after the lease has expired; and the tenant cannot deny 
 his landlord's titlfe without surrendering possession to the landlord 
 or attorney, or at lieast giving notice that he shall claim under an- 
 other and better title.*" 
 
 § 285 (287). As between others holding subordinate title- 
 Bailees, etc. — The principle under discussion not only applies in 
 the case of landlord and tenant, but generally to those holding a 
 subordinate title. Thus, one who holds land as a licensee cannot 
 question the title of him by whose consent he obtained possession ;" 
 one who manufactures goods by consent of and under agreement 
 with the patentee cannot be allowed to prove the invalidity of the 
 patent ;*^ an ageni who has collected a debt for his principal cannot 
 prove as a defense for keeping the proceeds that the debt was not 
 justly due; *' a tailee entrusted with the care of goods is estopped 
 to claim that the bailor had no title at the time of the bailmentj^" or 
 to set up the title of a third person, unless the bailment is deter- 
 mined by what is equivalent to an eviction by title paramount."^ 
 But while the bailee cannot avail himself of the title of a third per- 
 son, though that third person be the true owner, for the purpose of 
 keeping the property for himself, yet he may show as a defense 
 against the bailor that he has actually delivered the property to the 
 true owner, who had the right to possession upon demand by the 
 latter, even before legal proceedings have been commenced.'^ Such 
 demand by the true owner is equivalent to eviction by title par- 
 amount."^ Mr. Stephen thus states somewhat differently the quali- 
 fication of the general rule: "Provided that any such bailee, agent 
 or licensee may show that he was compelled to deliver up any such 
 
 48 Miller v. Lang, 99 Mass. 13; Hilbourn v. Fogg, 99 Mass. 11; Morse v. 
 Goddard, 13 Met. 177, 46 Am. Deo. 728; Boston v. Binney, 11 Pick. 1, 22 
 Am. Dec. 353; Zeller v. Bckert, 4 How. 295. 
 
 <7 Glynn v. George, 20 N. H. 114; Towne v. Butterfield, 97 Mass. 105; 
 Wilson V. Maltby, 59 N. Y. 126; Dells v. Hampton, 92 N. C. 565. 
 
 48 Kinsman v. Parkhurst, 18 How. 289; Jackson v. Allen, 120 Mass. 64; 
 Marston v. Swett, 82 N. Y. 526; Marsh v. Harris, 63 Wis. 276; Porncrook 
 V. Barum, 54 Mich. 552; Jones v Burnham, 67 Me. 93, 24 Am. Rep. 10; 
 Eureka Co. v. Bailey Co., 11 Wall. 488; Noton v. Brooks, 7 Hurl. & N. 499; 
 Crossley v. Dixon, 10 H. L. Cas. 293. 
 
 49 Kinsman v. Parkhurst, 18 How. 289. 
 
 60 Osgood V. Nichols, 5 Gray, 420. 
 
 61 Shelsbury v. Scatsford, 1 Yelv. 23; Biddle v. Pond, 34 Law J. (Q. B.) 
 137; Betteley v. Reed, 4 Q. B. 511; The "Idaho," 93 U. S. 575; Seneca v. 
 Allen, 99 N. Y. 532; Pulliam v. Burlingame, 81 Mo. 11, 51 Am. Rep. 229. 
 
 02 The "Idaho," 93 U. S. 675; Western Trans. Co. v. Barber, 56 N. Y. 544. 
 <9 See cases last cited. 
 
356 THE LAW OF EVIDENCE. § 287. 
 
 goods to some person who had a right to them, as against his bailor, 
 principal or licensor, or that his bailor, principal or licensor wrong- 
 fully and without notice to the bailee, agent or licensee obtained the 
 goods from a third person who has claimed them from such baUee, 
 agent or licensee." " 
 
 § 286 (288). Acceptance of bills of exchange. — ^The principle of 
 estoppel is frequently applied in the case of the acceptance of bills 
 of exchange. The acceptor by such act admits the genuineness of 
 the signatures of the drawers and the competency of the drawers 
 to assume that responsibility."" The rule is thus stated by Mr. 
 Stephen: "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, though he may deny the fact of the endorsement, 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. If the bill is accepted in 
 blank, the acceptor may not deny the fact that the drawer endorsed 
 it." °* But by accepting and paying a biU the drawee is not held 
 to a knowledge of a want of genuineness of any other part of the in- 
 strument, or of any other names appearing thereon, or of the title 
 of the holder." 
 
 § 287(289). Admissions i'mplied.from conduct. — ^We have al- 
 ready seen that admissions are not limited to any particular form. 
 They may not only be in the form of declarations, verbal or written, 
 but may be implied from the conduct or acts of parties as well as 
 from their language. Thus, the payment of interest or a part of a 
 debt is an admission of the debt."' "Where a landlord stands by 
 
 64 Stepli. Bv. art. 105; Crossley v. Dixon, 10 H. L. Cas. 293; Gosling 
 V. Birnie, 7 Bing. 339; Biddle v. Bond, 34 Law J. (Q. B.) 137; Wilson v. An- 
 derton, 1 Barn. & Adol. 450; The "Idaho," 93 U. S. 575; Westam Trans. 
 Co. v. Barher, 56 N. Y. 544; King t. Richards, 6 Whart. (Pa.) 418, 37 Am. 
 Deo. 420. 
 
 osHofEman v. Bank of Milwaukee, 12 "Wall. 181; First Nat. Bank v. 
 Northwestern Na,t. Bank, 152 111. 296, 38 N. E. 739, 43 Am. St. Rep. 247. 
 
 »«Stepli. Ev. art. 104; Garland v. Jacomb, L. R. 8 B^ch. 216; White v. 
 Continental Nat. Bank, 64 N. Y. 316, 21 Am. Rep. 612; Hoffman v. Bank 
 of Milwaukee, 12 Wall. 181; National Bank v. Bangs, 106 Mass. 441, 8 Am. 
 Rep. 349; Sanderson v. Collman, 4 Man. & G. 209; Robinson v. Yarrow, 7 
 Taunt. 455. 
 
 " Espy V. Bank of Cincinnati, 18 Wall. 604 ; Hoffman v. Bank of Mil- 
 oraukee, 12 Wall. 181, 192. See also, Ellis v. Ohio Life Ins. Co., 4 Ohio St. 
 62S. 
 
 •■Washer v. White, 16 Ind. 136. In general, see § 275, supra. 
 
§ 287. ADMISSIONS. 857 
 
 without objection and sees a tenant make alterations beyond his 
 right, it is an admission that the landlord means to be bound by the 
 tenant's acts; "" and if a landlord makes repairs, it is an admission 
 that it is his duty and not that of the tenant.*" When an account is 
 rendered and no objection is made within a reasonable time, this is 
 an admission prima facie by the party charged that the account is 
 correct j'^ but of course the presumption of assent may be rebutted.*^ 
 Assuming to act as an officer is an admission by the person so acting 
 that he is such officer, and that he is subject to the liabilities inci- 
 dent to the office."' "So' where one has recognized the official char- 
 acter of another by treating with him in such character or other- 
 wise, this is at least prima facie evidence of his title against the 
 parly thus recognizing it. ' ' °* Where a party omits to assert a claim 
 to a sum of money when all his demands are submitted to an arbi- 
 trator, such conduct is construed as an admission against him when 
 he subsequently asserts a claim to the same money.'* Any indica- 
 tions which show or tend to show a consciousness of guilt by a per- 
 son suspected or charged with crime or wrongdoing who may after 
 such indications be suspected or charged are admissible evidence 
 against him. Thus flight, living under an assumed name, attempt to 
 escape, resistance to arrest, concealment, failure to appear for trial 
 when under bonds, are all facts which may tend to show conscious- 
 ness of guilt and are in common practice received in evidence as 
 relevant.'* In like manner the demeanor of a party at the trial 
 
 B« Doe V. Pye, 1 Esp. 364. 
 
 •oKeadman v. Conway, 126 Mass. 374. 
 
 «i Willis V. Jernegan, 2 Atk. 252; Murry v. Tolaad, ^ Johns. Ch. (N. Y.) 
 569; Wiggins v. Burkham, 10 Wall. 129; Guernsey v. Rexford, 63 N. Y. 631. 
 
 «2 Guernsey v. Rexford, 63 N. Y. 631. 
 
 •« Trowbridge v. Baker, 1 Cow. 251, action against a toll-gatherer; Rex 
 V. Borrett, 6 Car. & P. 124, criminal action against a letter carrier; Lister 
 V.' Priestly, Wlghtw. 67, action against a collector of taxes. 
 
 •*1 Greenl. Ev. § 195, and cases cited; Peacock v. Harris, 10 East, 104; 
 Radford v. Mcintosh, 3 T. R. 632; Pritchard v. Walker, 3 Car. & P. 212; 
 Dickinson v. Coward, 1 Barn. & Aid. 677. ' 
 
 68 Moore v. Dnun, 42 N. H. 471. 
 
 8«As to flight, R. v. Hazy, 2 C. & P. 458; Allene v. TJ. S., 164 TJ. S. 492; 
 Basham v. Com., 87 Ky. 440, 9 S. W. 284; State v. Lyons, 7 Idaho, 530, 64 
 Pac. 236; State v. Seymor, 94 la. 699, 63 N. W. 613; Baker v. Com. (Ky.), 
 17 S. W. 625; State v. Pancoast, 5 N. D. 516, 67 N. W. 1052; State v. Bap- 
 tiste, 105 La. 661, 30 So. 147; living under an assumed name, People v. 
 Winthrop, 118 Cal. 85, 50 Pac. 390; Jackson v. State, 106 Ala. 12, 17 So. 
 333; Barren v. People, 73 111. 258; State v. Stewart, 65 Kan. 371, 69 Pac. 
 335; attempt to escape, Clark v. Com. (Ky.), 32 S. W. 131; Fanning v. 
 
358 THE LAW OF EVTDENCB. § 288. 
 
 tending to show consciousness of wrongdoing, false or deceptive 
 explanation, and suborning, fabricating, or suppressing testimony, 
 may be shown.*^ It is even held that the refusal to submit to a su- 
 perstitious test, as placing the hand upon the body of the murdered 
 man, may be proved."' Of course the weight 'of the testimony of 
 the character mentioned in this section must depend upon all the 
 circumstances of the case, and it is always open to explanations. It 
 frequently happens that as part of the res gestae, conduct of a party 
 indicating consciousness of innocence will be relevant; and even 
 when not part of the res gestae such testimony has in a few in- 
 stances been received, but often it is rejected."' 
 
 § 288 (290). Same — ^Repairing defective machinery or high- 
 ways. — ^In actions based on negligence the attempt is often made 
 to draw an inference of prior negligence from the fact that, since 
 the act complained of, the defendant has repaired the alleged defect 
 or adopted some new precaution.'"' A few exceptional cases under 
 
 State, 14 Mo. 386; Anderson v. Com. (Va.), 42 S. E. 865; resistance to 
 arrest, People v. Flannelly, 128 Cal. 83, 60 Pae. 670; Carr v. State (Fla.), 
 34 Sb. 892; Anderson v. State, 147 Ind. 445, 46 N. E. 901; Probasco y. 
 Cook, 39 Mich. 717; concealment, Planigan v. State, 25 Ark. 92; Com. v. 
 ToUiver, 119 Mass. 315; People v. Pitcher, 15 Mich. 397; failure to appear 
 for trial. Barton v. State, 154 Ind. 670, 57 N. B. 515; Saylor v. Com. (Ky.), 
 57 S. W. 614; Barron v. People, 73 111. 258. 
 
 87 As to demeanor, Boykin v. People, 22 Colo. 496, 45 Pac. 419 (contra, 
 Purdy V. Purdy, 140 111. 50, 29 N. B. 700) ; falsehood, Jones v. State, 59 
 Ark. 417, 27 S. W. 601; Com. v. Devaney, 182 Mass. 33, 64 N. B. 402; State 
 V. Furguson, 162 Mo. 668, 63 S. W. 101; Coleman v. People, 58 N. Y. 656; 
 subornation, Bgan v. Bowker, 5 AUen, 449; McHugh v. McHugh, 186 Pa. 
 197, 40 Atl. 410, 65 Am. St. Rep. 849; TJ. S. Brewing Co. v. Ruddy, 203 111. 
 306, 67 N. E. 799; fabrication or suppression of testimony, People v. Chin 
 Hane, 108 Cal. 597, 41 Pac. 697; State v. Hogan, 67 Conn. 581, 3& AU. 608; 
 Keesier v. State, 154 Ind- 242, 56 N. B. 232; Adams v. Swift, 172 Mass. 521, 
 52 N. B. 1068; State v. Rozum, 8 N. D. 584, 80 N. W. 480; Snell v. Bray, 
 56 Wis. 156. See § 17, supra. 
 
 68 State V. Wisdom, 119 Mo. 539, 24 S. W. 1047. 
 
 69 Evidence of voluntary surrender or refusal to escape, admitted. White 
 V. State, 111 Ala. 92, 21 So. 330; Boston v. State, 94 Ga. 590, 21 S. B. 603; 
 rejected, Dorsey v. State, 110 Ala. 381, 20 So. 450; Vaughn v. State, 130 Ala. 
 18, 30 So. 669; People v. Shaw, 111 Cal. 171, 43 Pac. 593; Kennedy v. State, 
 101 Ga. 559, 28 S. B. 979; State v. McLaughlin, 149 Mo. 19, 50 S. W. 315; 
 State V. Wilcox (N. C), 44 S. B. 625; Stat© v. Bickle (W. Va.), 45 S. B. 
 917. 
 
 70 Pennsylvania Ry. Co. v. Henderson, 51 Pa. St. 315; McKee v. Bldwell, 
 74 Pa. St 218; St. Louis & S. F. Ry. Co. v. Weaver, 35 Kan. 412, 57 Am. 
 Rep. 176; St. Joseph & D. C. R. Co. v. Chase, 11 Kan. 47; Kansas P. R. Co. 
 
§ 288. ADMISSIONS. 359 
 
 peculiar circumstances admit such evidence but the great weight of 
 authority holds such evidence incompetent. In some instances evi- 
 dence of this character has been rejected on the ground that persons 
 making the change were not shown to have authority to make ad- 
 missions for or to charge the defendant by such acts.'^ But evi- 
 dence of this character is clearly open to a much more serious objec- 
 tion, as was well stated in a Minnesota case: "Such acts afford no 
 legitimate basis for construing such an act as an admission of pre- 
 vious neglect of duty. A person may have exercised all the care 
 which the law required and yet, in the light of his new experience, 
 after an unexpected accident has occurred, and as a measure of ex- 
 treme caution, he may adopt additional safeguards. The more care- 
 ful a person is, the more regard he has for the lives of others, the 
 more likely he would be to do so, and it would seem unjust that he 
 could not do so without being liable to have such acts construed as 
 an admission of prior negligence. We think such a rule puts an 
 unfair interpretation upon human conduct and virtually holds out 
 an inducement for continued negligence.'"" In the court of ex- 
 chequer Baron Bramwell thus expressed the same view: "People 
 do not furnish evidence against themselves simply by adopting a 
 new plan in order to prevent the recurrence of an accident. I think 
 that a proposition to the contrary would be barbarous. It would 
 be, as I have often had occasion to tell juries, to hold that, because 
 the world gets wiser as it grows older, therefore it was foolish be- 
 
 V. Miller, 2 Colo. 442; Hemml v. Railway Co., 102 Ind. 25, 70 N. "W. 746. 
 On the general subject of this section see notes 57 Am. Rep. 183-187, 18 
 Am. St. Rep. 307-310. See also § 163, et seq. supra. 
 
 TiTerre Haute Ry. Co. v. Clem, 123 Ind. 15, 18 Am. St. Rep. 303; Hodgea 
 V. Perclval, 132 111. 53; Dougan v. Champlain Co., 56 N. Y. 1; Balrd v. 
 Daly, 57 N. T. 236, 15 Am. Rep. 488; Dale v. Delaware, L. £ "W. Ry. Co., 
 73 N. Y. 468; Cramer v. Burlington, 45 Iowa, 627; Hudson v. Chicago Ry. 
 Co., 59 Iowa, 581, 44 Am. Rep. 692; Ely v. S. Louis Ry. Co., 77 Mo. 34; 
 Jennings v. Town of Albion, 90 Wis. 22. 
 
 72 Morse v. Minneapolis Co., 30 Minn. 465; Getty v. Town of Hamlin, 127 
 N. Y. 636; Clapper v. Waterford, 131 N. Y. 382; Woodbury v. Owosso, 64 
 Mich. 239; Missouri Pac. Ry. Co. v. Hennessey, 75 Tex. 155, Terre Haute 
 Ry. Co. V. Clem, 123 Ind. 15, 18 Am. St. Rep. 303 and note; Colorado Elec. 
 Co. V. Lubbers, 11 Colo. 505, 7 Am. St. Rep. 255; Nalley v. Hartford Carpet 
 Co., 51 Conn. 524, 50 Am. Rep. 47; Giffln v. Lewiston (Ida.), 55 Pac. 545; 
 Weber Wagon Co. v. Kehl, 139 111. 644, 29 N. E. 714; Howe v. Medaris, 183 
 111. 288, 55 N. E. 724; Illinois C. R. Co. v. Wyatt, 104 Tenn. 432, 58 S. W. 
 .308; Carter v. Seattle, 21 Wlash, 585, 59 Pac. 500; Kruder v. Wisconsin R. 
 P. & P. Co., 110 Wis. 645. See also cases last cited and extended note, IS 
 Am. St. Rep. 307-31Q. 
 
360 THE LAW OF EVIDENCE. § 289. 
 
 fore."" But evidence of this character may he competent for 
 the purpose of showing that the place of accident was under the 
 control of the defendant, if this becomes an issue,'* or that the 
 place or machinery complained of is not at the time of the trial in 
 the same condition as at the time of the accident."* 
 
 § 289 (291). Admissions may be implied from silence. — It is 
 well settled, as some of the cases already cited illustrate, that ad- 
 missions may sometimes be implied from the mere silence of a 
 party. Thus, the declarations made by one party to the other rela- 
 tive to the subject matter in controversy, and not denied by him, 
 are admissible as evidence for the former.'* Such evidence cannot 
 be rebutted by proof of diiferent declarations subsequently made by 
 the same person. The same rule applies where a party omits to reply 
 to statements in a letter about which he has knowledge, and which, 
 if not true, he would naturally deny when he replies to other parts 
 of the letter." It applies also to declarations of a third person ad- 
 dressed to a party and not denied." Although it is constant prac- 
 tice to receive evidence of this character, following the familiar 
 maxim qui tacet consentire videtu-r, there are important limitations 
 which should be observed. The testimony is received on the theory 
 that the failure to deny what is asserted in the presence of a party 
 is an implied admission of the truth of the statement.'* But there 
 is no ground for presuming acquiescence in such statements, unless 
 they are of such a character as would naturally call for a response, 
 and unless the party sought to be charged was in such a situation 
 that he would probably have replied to them.*" Generally the cases 
 
 75 Hart v. Lancashire & Yorkshire Ry., 21 L. T. (N. S.) 261-263. 
 "Lafayette v. Weaver, 92 Ind. 477. 
 
 " Hirsh V. Buffalo, 107 N. Y. 671, 36 Hun, 638; Chicago v. Dalle, 115 111. 
 386; Nesbit v. Garner, 75 Iowa, 314, 9 Am. St. Rep. 486; Clancy v. Byrne, 
 56 N. T. 129, 15 Am. Rep. 391; Mackle v. Central Ry. Co., 54 Iowa, 405. 
 See full collection of cases, 1 Wigmore Ev. § 283. 
 
 76 Block V. Hicks, 27 Ga. 522; Hagenbaugh v. Crabtree, 33 111. 225; Proc- 
 tor V. Old Colony Ry. Co., 154 Mass. 251; State v. Hill, 134 Mo. 663, 36 S. W. 
 223; Corser v. Paul, 41 N. H. 24, 77 Am. Dec. 753; McClenkin v. McMillan, 
 6 Pa. St. 366; Wells v. Drayton, 1 Mill's Const. (S. C.) Ill; Des Moines 
 Bank v. Hotel Co., 88 Iowa, 4; Evans v. Montgomery, 95 Mich. 497; Com. 
 T. Kenney, 12 Met. 235, 46 Am. Dec. 672, 675 and note. See § 291, infra. 
 
 " Flenno v. Weston, 31 Vt. 345. 
 
 78 Boston & W. Ry. Co. v. Dana, 1 Gray, 83; Com. v. O'Brien, 179 Mass. 
 533, 61 N. E. 213; Com. v. Dewhirst, 190 Mass. 293, 76 N. E. 1052. 
 
 7» Batturs v. Sellers, 5 Harr. & J. (Md.) 117, 9 Am. Dec. 492. 
 
 MLawson v. State, 20' Ala. 65, 56 Am. Dec. 182; Wllklns v. Stidger, 22 
 Cal. 231, 83 Am. Deo. 64; Barry v. Davis, 33 Mich. 515; Pierce's Adm. r. 
 
§ 290. ADMISSIONS. 361 
 
 in which the party is held to be afEected by his silence will be found 
 to be cases where statements were made of his own actions or his own 
 liabilities, and not where he had no concern in law and no right .to 
 reply.'^ Such testimony should be received and applied with cau- 
 tion, especially when the statements are made, not by a party to the 
 controversy, but by a stranger.'" When there is no natural or rea- 
 sonable inference from the silence of a party that he acquiesced 
 in the truth of the statements, they should be excluded.*' There is 
 hardly any ground to infer acquiescence in such cases, unless it ap- 
 pears that the truth or falsehood of the statements made must have 
 been within the knowledge of the party sought to be charged ;'* and 
 if by reason of deafness, intoxication or other cause the statements 
 were not understood by him, they of course should not be received.'" 
 If, however, it is uncertain whether the party heard or understood 
 the statements, this is a question for the jury to determine." 
 
 § 290 (292). Same — No admission from silence at judicial pro- 
 ceedings. — The rule allowing the silence of a person to be taken 
 as an implied admission of truth of allegations uttered in his pres- 
 ence applies in criminal, as well as civil, cases," but it does not ap- 
 
 Pierce, 66 Vt. 369; Abercrombie v. Allen, 29 Ala. 281; Brainard v. Buck, 
 25 Vt. 573, 60 Am. Dec. 291; Churchill v. Fulliam, 8 Iowa, 45; Bright v. 
 Cottman, 15 Ind, 371, 77 Am. Deo. 96; Gibney v. Marchay, 34 N. Y. 301; 
 Moore v. Smith, 14 Serg. & R. (Pa.) 388; Slattery v. People, 76 111. 217; 
 Whitney v. Houghton, 127 Mass. 527; Drury v. Hervey, 126 Mass. 519; 
 Stecher Lith. Co. v. Inman, 175 N. Y. 124, 67 N. E. 213; People v. Smith, 
 172 N. Y. 210, 64 N. E. 814; Turner v. Yates, 16 How. 14, 27; Graham v. 
 State (Ga.), 45 S. E. 616; O. S. Paulson Mercantile Co. v. Seaver, 8 N. D. 
 215, 77 N. W. 1001. This is true as to statements made by a minister in 
 a sermon, which are received in silence, Johnson v. Trinity Church, 11 Al- 
 len, 123. 
 
 81 Gibney v. Marchay, 34 N. Y. 301. 
 
 82 Larry v. Sherburne, 2 Allen, 34; Whitney v. Houghton, 127 Mass. 527. 
 
 83 Whitney v. Houghton, 127 Mass. 527. 
 
 s^Hayslep v. Gymer, 1 Adol. & Ell. 162; Edwards v. Williams, 3 Miss. 
 846; Com. v. Kenney, 12 Met. 235, 46 Am. Dec. 672. 
 
 8B Tufts V. Charlestown, 4 Gray, 537, deafness ; State v. Perkins, 3 Hawks 
 (N. C.) 377, intoxication; Lanergan v. People, 39 N. Y. 39, where the 
 person sought to he charged was asleep; State v. Epstein, 25 R. I. 131, 55 
 Atl. 204, in extreme physical pain; Dean v. State, 105 Ala. 21, 17 So. 28, 
 unable to speak; Wright v. Maseras, 56 Barb. (N. Y.) 521, where he was 
 a foreigner; People v. Koerner, 154 N. Y. 355, 48 N. E. 730, unconscious, 
 though there was evidence that he was shamming; Parulo v. Railway Co., 
 145 Fed. 669. 
 
 8« Com. V. Sliney, 126 Mass. 49. 
 
 87 Kelley v. People, 55 N. Y. 565; Com. v. Galavan, 9 Allen, 271; Bttlnger 
 
362 THE LAW OP EVIDENCE. § 291. 
 
 ply to silence at a judicial proceeding or hearing." Thus, it is error 
 to admit evidence that a party to a suit was silent where his adver- 
 sary testified to certain facts on a former trial which were preju- 
 dicial to him. There can be no inference of acquiscence in such 
 case, as the party is not at liberty to contradict the statement of a 
 witness while testifying.^* He could not interfere and deny the 
 statement. To do this would be to charge the witness with perjury 
 which would be alike inconsistent with decorum and with the rules 
 of law." For similar reasons no unfavorable inference is to be 
 drawn from the silence of a party during the comments or argument 
 of counsel."^ Although no admission is to be implied from silence, 
 unless the circumstances are such as to call for some reply, yet if the 
 party makes any reply or declaration in regard to his own rights, 
 the whole conversation is admissible under proper instructions.'^ 
 The general rule stated in this section does not apply merely be- 
 cause a party is under arrest, and there are numerous decisions in 
 which proof has been allowed of statements made to a party under 
 such circumstances where he has remained silent.*' 
 
 § 291 (293). Offers of compromise. — Overtures for the compro- 
 mise of controversies are frequently made by parties who in good 
 faith believe in the justice of their claim or defense, but who desire 
 to avoid the annoyance and uncertainty of litigation. Hence offers 
 of compromise are not necessarily any admission that the claim or 
 defense is lacking in merit; and such offers are not in general ad- 
 missible.'* The rule is very clear that when such offers are ex- 
 
 V. Com., 98 Pa. St 338; State v. Reed, 62 Me. 129; Jewett v. Banning, 21 
 N. y. 27. 
 
 88 People V. Wlllett, 92 N. Y. 29; Johnson v. Holllday, 79 Ind. 151; Bell 
 v. State, 93 Ga. 557, 19 S. E. 244; State v. Mullins, 101 Mo. 514, 14 S. W. 
 625. But see, Blanchard v. Hodgins, 62 Me. 119. 
 
 8» Broylers v. State, 47 Ind. 251. 
 
 80 Com. V. Kenney, 12 Met. 235, 46 Am. Deo. 672; Com. v. Walker, 13 
 Allen, 570; Bob v. State, 32 Ala. 560; Noonan v. State, 9 Miss. 562. 
 
 01 R. V. Hollingsliead, 4 Car. & P. 242; Moffet v. Witherspoon (N. C), 
 10 Ired. 185. 
 
 82 Mattocks V. Lyman, 16 Vt. 113; Pierce's Adm'r v. Pierce, 66 Vt. 369. 
 
 83 Smith V. Duncan, 181 Mass. 435, 63 N. E. 938; People v. ■Wennerholm, 
 166 N. Y. 567, 60 N. B. 259; Green v. State, 97 Tenn. 50, 36 S. W. 700. 
 Cases excluding such testimony, State v. Dickey, 46 W. Va. 319, 33 S. E. 
 231; Funderburk v. State (Tex.), 61 S. W. 393; State v. McCullum, 18 
 Wash. 39, 51 Pac. 1044. 
 
 8*Rudd V. Dewey, 121 la. 454, 96 N. W. 973; Higgins v. Shepard, 182 
 Mass. 364, 65 N. E. 805; Pelton v. Schmidt, 104 Mich. 345, 62 N. W. 552, 
 53 Am. St. Rep. 462; Patrick v. Crowe, 15 Colo. 543. 35 Pac. 985; Robertsop 
 
§ 291. ADMISSIONS. 363 
 
 pressly stated to be without prejudice, they are inadmissible." If 
 the contrary rule prevailed no attempt to amicably settle litigation 
 could safely be made; and the courts are inclined to encourage 
 rather than discourage such adjustments. Accordingly offers by a 
 party with a view to compromise, to pay or accept a sum of money,"" 
 or to make deductions,"^ or to submit to arbitration,"* or to surren- 
 der certain property,"" or to purchase the property in dispute,^ and 
 in general any efforts to secure a settlement,^ are inadmissible. 
 While there are cases holding that an offer of compromise is admis- 
 sible, unless it is stated to be without prejudice,' yet the prevailing 
 rule in England and in this country is that the offer will be pre- 
 sumed to have ieen made without prejudice, if it was plainly an 
 offer of compromise.* The courts look at the intrinsic character of 
 
 V. Blair, 56 S. C. 96, 34 S. E. 11, 76 Am. St. Rep. 543; Houdeck v. Ins. Co., 
 102 la. 303, 71 N. W. 354; Indianapolis Northern T. Co. v. Dunn (Ind.), 
 76 N. B. 269. See cases cited below. 
 
 85 Paddock v. Forrester, 3 Man. & G. 918; Townsend v. Merchants Ins. 
 Co., 4 Jones & Sp. (N. Y.) 172; Wilson v. Hines, Minor (Ala.) 255; Hideout 
 V. Newton, 17 N. H. 71; Richardson v. International Pottery Co., 63 N. J. 
 L. 248, 43 Atl. 692; Wood v. Wood, 3 Ala. 756; Perkins v. Concord Ry. Co., 
 44 N. H. 223; Williams v. Thorp, 8 Cow. 201; State Bank v. Dutton, 11 
 Wis. 371; Draper v. Hatfield, 124 Mass. 53; Chicago Ry. Co. v. Bishop of 
 Chicago, 119 111. 525; West v. Smith, 101 U. S. 263, 273. 
 
 B6Home Ins. Co. v. Baltimore W. Co., 93 U. S. 527, 548; Draper v. Hat- 
 field, 124 Mass. 53; Manistee Bank v. Seymour, 64 Mich. 59; Louisville Co. 
 V. Wright, 115 Ind. 378; Olson v. Peterson, 33 Neb. 358; Smith v. Whittler, 
 95 Cal, 279; State Bank v. Dutton, 11 Wis. 371; Barker v. Bushnell, 75 111. 
 222; Tennant v. Dudley, 144 N. Y. 504, 39 N. E. 644. 
 
 »T West V. Smith, 101 U. S. 263. 
 
 08 Mundhenk v. Central Iowa Ry. Co., 57 Iowa, 718. 
 
 »»West V. Smith, 101 U. S. 263; Williams v. Price, 5 Munf. (Va.) 507. 
 
 t Smith V. Morrow, 5 Litt. (Ky.) 217. 
 
 2 West V. Smith, 101 U. S. 263; Slocum v. Perkins, 3 Sterg. & R. (Pa.) 
 295; Baird v. Rice, 1 Call (Va.) 18, 1 Am. Deo. 497; Strong v. Stewart, 9 
 Hiesk. (Tenn.) 137; Daniels v. Woonsocket, 11 R. I. 4; Tennant v. Dudley, 
 144 N. Y. 504; Ward v. Munson (Mich.), 63 N. W. 498; Pelton v. Schmidt 
 (Mich.), 62 N. W. 552; Fow'les v. Allen, 64 Conn. 350. 
 
 8 Wallace v. Simall, 1 Moody & M. 446; Watts v. Lawson, 1 Moody & M. 
 447 in note; Dickinson v. Dickinson, 9 Met. 471; Thompson v. Austin, 2 
 Dowl. & Ry. 358; Hartford Co. v. Granger, 4 Conn. 148; Gerrish v. 
 Sweetzer, 4 Pick. 374; Murray v. Coster, 4 Cow. 635; Brice v. Bauer, 108 
 N. Y. 428, 15 N. E. 695, 2 Am. St. Rep. 454; White v. Old Dominion S. S. 
 Co., 102 N. Y. 661, 6 N. E. 289. 
 
 *West V. Smith, 101 U. S. 263; Home Ins. Co. v. Baltimore Warehouse 
 Co., 93 U. S. 527, 548; Richards v. Noyes, 44 Wis. 609; Cory v. Bretton, 4 
 Car. & P. 462; Healey v. Thatcher, 8 Car. & P. 388; Paddock v. Forrester, 
 
364 THE LAW OF EVIDENCB. § 291. 
 
 the transaction ; and if tie offer is clearly one of compromise, it is 
 inferred to have been made without prejudice. In such case no cau- 
 tion that the offer is confidential or without prejudice need be ex- 
 pressed." The courts sometimes submit to the jury as a qiiestion of 
 fact whether the statement was intended as an admission or as an 
 offer of compromise." But the rule under consideration does not 
 exclude the admission of distinct or independent facts, although 
 such admissions are made during the treaty for a compromise.^ 
 Thus, admissions of fact made during negotiations of settlement 
 have been received to prove guilt in actions for bastardy* and 
 criminal conversation ;* to prove non-performance of contract,'" 
 agency,'^ repetition of a slander,'^ facts admitted by the superin- 
 tendent tending to show liability of a railroad company,^' execution 
 of a note,'* the correctness of an account'" and the genuineness of 
 handwriting.'" Although it will be seen that the courts have fre- 
 quently held it proper to receive admissions of distinct facts during 
 
 3 Scott N. R. 734, 3 Man & G. 903; Jardine v. Sheridan, 2 Car. & K. 24; 
 Whiffen v. Hardwright, 11 Beav. Ill; Hoghton v. Hoghton, 15 Beav. 278; 
 Jones V. Foxall, 15 Beav. 388; E. J. Biggs & Co. v. Langhammer, 103 Md. 
 94, 63 Atl. 198. 
 
 » Reynolds v. Manning, 15 Md. 510; Richards v. Noyes, 44 Wis. 609; 
 Campau v. Dubois, 39 Mich. 274; Webber v. Dunn, 71 Me. 331; Draper v. 
 Hatfield, 124 Mass. 53; West v. Smith, 101 U. S. 263; Gerrish v. Sweetzer, 
 
 4 Pick. 374. 
 
 «Bartlett v. Hoyt, 33 N. H. 151; Long v. Pierce Co., 22 Wash. 330, 61 Pac. 
 142. See Colburn v. Groton, 66 N. H. 151, 28 Atl. 95, where It was held 
 to be a question of fact for the judge. 
 
 TDurgln V. Somers, 117 Mass. 55; Robb v. Hewitt, 39 Neb. 217; Taylor 
 V. Bay City St. Ry. Co., 101 Mich. 140; Fuller v. Hampton, 5 Conn. 416; 
 Marvin v. Richmond, 3 Den. 58; Plummer v. Currier, 52 N. H. 287; Cole 
 V. Cole, 33 Me. 542; Doon v. Ravey, 49 Vt. 293; Ashlock v. Lindefr, 50 III. 
 169; Garner v. Myriok, 30 Miss. 448; Arthur v. James, 28 Pa. St. 236; Hart- 
 ford Bridge Co. v. Granger, 4 Conn; 142; Teasley v. Bradley, 110 Ga. 497, 
 35 S. E. 782, 78 Am. St. Rep. 113; Kutcher v. Love, 19 Colo. 542, 36 Pac. 
 152; Illinois C. R. Co. v. Manion (Ky.), 67 S. W. 40; Mathews v. Farrell 
 (Ala.), 37 So. 325. 
 
 8 Fuller V. Hampton, 5 Conn. 416; Olson v. Peterson, 33 Neb. 358, 60 
 N. W. 155. 
 
 9 Sanborn v. Nellson, 4 N. H. 501. 
 
 K) Hartford Co. v. Granger, 4 Conn. 142. 
 
 11 Church V. Steele, 1 A. K. Marsh. (Ky.) 328. 
 
 12 Evans v. Smith, 5 T. B. Men. (Ky.) 363, 17 Am. Dec. 74. 
 IS Central Branch U. P. Ry. Co. v. Butman, 22 Kan. 639. 
 
 1* Grubbs v. Nye, 21 Miss. 443. 
 
 15 Hyde v. Stone, 7 Wend. 354, 22 Am. Dec. 582. 
 
 i» Waldbrldge v. Kennison, 1 Esp. 143. 
 
§ 292. ADMISSIONS. 365 
 
 such negotiation, yet if thei admission is of such a nature that the 
 court can see that it would not have been made except for the pur- 
 pose of the negotiations, and that under an agreement, fairly to be 
 implied from the circumstances, it was not to be used to the preju- 
 dice of the party making it, it is not error to exclude the evidence." 
 The general rule excluding offers of compromise applies with the 
 same force to letters as to verbal communications. Said Sir John 
 Komilly : ' ' Such communications made with a view to an amicable 
 arrangement ought to be held very sacred, for if parties were to be 
 afterwards prejudiced by their efforts to compromise it would be im- 
 possible to attempt any amicable arrangement of differences."^' 
 And where a letter comes within the rules already stated both the 
 letter and reply aVe inadmissible.^' 
 
 § 292 (294). Effect of paying money into court. — The question 
 has frequently arisen as to the effect of the payment of money into 
 court by a defendant upon an order or rule for that purpose. It 
 was the old practice, if the plaintiff refused to accept the amount 
 paid into court, to have the amount so paid struck out of the dec- 
 laration or complaint and paid out of court to the plaintiff or to his 
 attorney. On the trial the plaintiff was not allowed to give any 
 testimony for such amount; and if he did not recover more than the 
 amount so paid, judgment went against him for the costs.'" Under 
 this old practice of paying the money into court, on a declaration 
 setting out a special contract, the defendant thereby admitted the 
 contract as alleged, and a breach thereof with damages to the 
 amount paid in.^^ But where the action was in assumpsit contain- 
 ing the common counts, the defendant only admitted by such pay- 
 ment some liability on some contract under the money counts ; and 
 if the plaintiff sought to recover any further sum, he was bound to 
 prove r. contract or liability on the part of the defendant as well as 
 a larger sum due."" In an action against a town for personal in- 
 juries caused by a defective highway, it was held that, after a pay- 
 
 " White V. Old Dominion Co., 102 N. Y. 660. 
 
 isHoghton V. Hoghton, 15 Beav. 278; Kierstead v. Brown, 23 Neb. 595, 
 37 N. W. 471; Phillips v. IT. S. Benef. Society, 120 Mich 142, 79 N. W. 1; 
 Home Ins. Co. v. Warehouse Co., 93 U. S. 527. 
 
 "Paddock v. Forrester, 3 Man. & G. 903, 919; Jones v. Foxall, 15 Beav. 
 388. 
 
 20 Bank of Columbia v. Southerland, 3 Cow. 336. 
 
 2> Hubbard v. Knous, 7 Cush. 556; Johnston v. Columbian Ins. Co., 7 
 Johns. 315. 
 
 »» Hubbard v, Knous, 7 Cush. 556. 
 
366 THE LAW OF EVIDENCE, § 293. 
 
 ment into court of a sum of money, the defendant town had so far 
 admitted the cause of action that it could not give evidence of con- 
 tributory neglect on the part of the plaintiff.^* Mr. Greenleaf fur- 
 ther states the effect of the payment of money into court as an ad- 
 mission: "The defendant conclusively admits that he owes the 
 amount thus tendered in payment ; that it is due for the cause men- 
 tioned in the declaration; that the plaintiff is entitled to claim it 
 in the character in which he sues ; that the court has jurisdiction of 
 the matter ; that the contract described is rightly set forth, and was 
 duly executed; that it has been broken in the manner and to the 
 extent declared ; and, if it was a case of goods sold by sample, that 
 they agreed with the sample. In other words, the payment of money 
 into court admits conclusively every fact which the plaintiff would 
 be obliged to prove in order to recover that money. But it admits 
 nothing- beyond that. If, therefore, the contract is illegal or in- 
 valid, the payment of money into court gives it no validity ; and if 
 the payment is general, and there are several counts or contracts, 
 some of which are legal and others not, the court will apply it to 
 the former." ^* So where a tender is made and the money is paid 
 into court, though the tender is insufficient, it is a conclusive ad- 
 mission that the amount so paid in is due the plaintiff, and hence 
 that the money belongs absolutely to him whatever may be the fate 
 of the aetion.^^ But in England statutes now exist allowing the de- 
 fendant to plead payment into court, and at the same time to deny 
 the plaintiff 's cause of action, and to set up a special defense ;^° and 
 in the United States, by statutes in the various states, which are 
 often resorted to, the defendant is allowed to make an offer of 
 judgment, which offer, if not accepted, cannot be made use of by 
 the plaintiff for any purpose.^' 
 
 § 293 (295). 'The whole statement or admission to be received.— 
 It is the well settled rule that the whole of a declaration or state- 
 ment containing an admission should be received together. "Every 
 admission is to be taken as an entirety of the fact which makes for 
 the one side with the qualifications which limit, modify or destroy 
 its effect on the other side. ' ' ^' This rule, together with its reason, 
 is thus stated by Mr. Best: "Where part of a document or state- 
 
 23 Bacon v. Charlton, 7 Cush. 581. 
 2* 1 Greenl. Ev. § 205. 
 
 »6 Schnur v. Hickcox, 45 Wis. 200; Becker v. Boon, 61 N. Y. 317; Slack 
 V. Brown, 13 Wend. 390; Slimpson v. Curson, 11 Ore. 361. 
 28Tayl. Ev. (lOth Ed.) § 832; Berdon v. Greenwood, 3 Exch. Div. 251. 
 27 See the statutes in the several states. 
 "Justice Field in Insurance Co. v. Newton, 22 Wall. 35; Queen's Case, 
 
§ 293. ADMISSIONS. 367 
 
 ment is used as self -harming evidence against a party, he has a right 
 to have the whole of it laid before the jury who may then consider 
 and attach what weight they see fit to any self-serving statements 
 it contains. " ^° Many iZ^Mswitoms of this rule might be given. Thus 
 the whole statement should be given, where admissions of a pur- 
 chase of property are coupled with the statement that the price has 
 been paid ;"* where there is an admission of trespass or other act ac- 
 companied by facts showing justification,*^ or where an admission of 
 sale or other contract is coupled with a statement of warranty, to- 
 gether with its breach, or of other qualifying terms."'' In a New 
 York case the same principle was applied after an elaborate discus- 
 sion where it was proved as an admission of the defendant that he 
 had pointed out certain property as that of the plaintiff. It was 
 held that the defendant was entitled to prove his statement in the 
 same conversation that the debt, for which the levy was made, was 
 one which should be paid by the plaintiff.'' "Where, taking the 
 confession^ together, the branch making against the party is com- 
 pletely avoided, qualified or explained away by another branch, 
 and there is nothing beside, either intrinsic or extrinsic the latter 
 branch to render it questionable, the first is neutralized; and the 
 whole is considered by the cases as not weighing a feather against 
 the party." '* But it does not follow that the one offering the ad- 
 missions will be compelled to offer in the first instance the whole 
 conversation or statement. He offers that part which he considers 
 advantageous or which the witness remembers, and the adversary 
 has the right to full cross-examination to bring out the remainder. 
 A court or jury are not bound to give equal credit to all parts of a 
 statement or admission ; they may believe a part and disregard the 
 
 2 Brod. & Bing. 298; Grattan v. Metropoliton L. Ins. Co., 92 N. T. 274, 44 
 Am. Rep. 372; Moore v. Wriglit, 90 111. 470; Farley v. RodocanacW, 100 
 Mass. 427; Dole v. Wooldredge, 142 Mass. 161; Roberts v. Roberts, 85 N. 
 C. 9. The fact that the witness did not hear the whole conversation does 
 not render inadmissible the part he did hear. State v. Lu Sing (Mont.), 
 85 Pao. 521. Further as to the genera,l subject, see §§ 172, supra, 823, 852. 
 infra. 
 
 28 Best, Bv. (10th Ed.) § 520; Randle v. Blackburn, 5 Taunt 245; Thomp- 
 son V. Austen, 2 Dowl. & R. 358; Smith v. Blandy, Ryan & M. 257; Darby v. 
 Ouseley, 2 Jur. N. S. 497; Risdon v. Yates, 145 Cal. 210, 78 Pac. 641. 
 
 80 Smith V. Jones, 15 Johns, 229; Benedict v. Nichols, 1 Root (Conn.) 434. 
 
 »i Credit v. Brown, 10 Johns. 365. 
 
 32Kelsey v. Bush, 2 Hill, 441; Whitwell v. Wyer, 11 Mass. 6; Oliver v. 
 Gray, 1 Har. & G. (Md.) 204; Hopkins v. S«m}th, 11 Johns. 161. 
 
 83 Rouse v. Whited, 25 N. Y. 170, 82 Am. Dec. 337, and extended note. 
 
 3<Phill. Bv. (Cow. & Hill's Notes), p. 343; Smith v. Jones, 15 Johns. 
 229; Walling v. Toll, 9 Johns. 141; Carver v. Tracey, 3 Johns. 427; Bene- 
 dict v. Nichols, 1 Root (Conn.) 434. 
 
368 THE LAW OF EVIDENCE. § 293. 
 
 rest. The rule only requires that what is in favor of the party 
 making the admissions should be fairly and liberally considered and 
 weighed with the other evidence.*" Of course the one offering ad- 
 missions of this character is not bound by the statements which are 
 favorable to the declarant. He may rebut such statements or show 
 them to be erroneous ;*' and it is for the court or jury to reject such 
 portions of the statement, if any, as appear to be inconsistent, im- 
 probable or rebutted by other circumstances in evidence."' Although 
 it is a familiar principle that when a part of a conversation or ad- 
 mission is intro'duced, the other party may prove the rest of such 
 statement, yet the rule is limited to such statements as would in any 
 way qualify or explain the part first given. Where a conversation 
 about a given matter is introduced, the door is not thereby opened 
 for the introduction of what was said in relation to a different mat- 
 ter, although in the same conversation.*' The rule is also limitod 
 to such statements as were made at the same time.*" It is very clear 
 that one who has made admissions cannot be permitted to give evi- 
 dence of his subsequent declarations for the purpose of contradict- 
 ing or explaining his former admissions.*" It is not a condition 
 that the exact words of the statement should be required, since the 
 law does not require impossibilities. It suffices if the witness states 
 the substance of the conversation or declaration.*^ But the mere 
 inferences or conclusions of the witness should be rejected.** 
 
 »B Field V. Hitchcock, 17 Pick. 182, 28 Am. Dec. 288; Coon v. State, 21 
 Miss. 246; McCann v. State, 21 Miss. 471; Licett v. State, 23 Ga. 57; Green 
 V. State, 13 Mo. 382; Mattocks v. Lyman, 18 Vt. 98, 46 Am. Dec. 138; WU- 
 son V. Calvert, 8 Ala. 572; Brown's Case, 9 Leigh (Va.) 633; Newman v. 
 Bradley, 1 Dall. (Pa.) 240. 
 
 3» Quick v. Johnson, 6 Mart. (La.) 532; Walden v. Sherburne, 15 Jolms. 
 409. 
 
 "TAdkins v. Hershy, 14 Ark. 442; Ayers v. Metcalfe, 39 III. 307; E»l)- 
 erts V. Gee, 15 Barb. 449; Beckwith v. Mollohan, 2 W. Va. 477; Kelsey v. 
 Bush, 2 Hill, 441; Peai;son v. Sabin, 10 N. H. 205; Mott v. Consumers' Ice 
 Co., 73 N. Y. 543. 
 
 38 Prince v. Samo, 7 Adol. & Ell. 627; Platner v. Platner, 78 N. T. 90; 
 Downs V. Cent. Ry. Co., 47 N. Y. 83; Rouse v. Whited, 25 N. Y. 170, 82 
 Am. Dec. 337; Miller v. Wildcat Co., 52 Ind. 51. See extended note, 82 Am. 
 Dec. 342. 
 
 39 Edwards v. Ford, 2 Bailey (S. C.) 461; Hatch v. Potter, 3 111. 725, 43 
 A.m. Dec. 88; People v. Green, 1 Park. Cr. Rep. (N. Y.) 11. 
 
 40 Murray v. Coster, 4 Cow. 630; Martin v. Root, 17 Mass. 227. 
 "Fertlg V. State, 100 Wis. 301, 75 N. W. 960; Lewis v. Brown, 41 Me. 
 
 448; Worthlngton v. State, 92 Md. 222, 48 AU. 355, 84 Am. St Rep. B06;; 
 Kingsbury v. Moses, 45 N. H. 222. 
 42 Helm T. Cantwell, 69 lU. 624. 
 
§ 294. ADMISSIONS. 369 
 
 § 294 (296). Same — Written admissions. — It is also well settled 
 that the introduction of a part of a writing as an admission renders 
 admissible so much of the remainder as tends to explain or qualify 
 what has been received.*^ Thus, if part of a letter is offered as evi- 
 dence, other explanatory parts may be offered ;** if a party is sought 
 to be charged or affected by a letter received in evidence, his reply 
 thereto is admissible;*" and where one party uses as evidence a 
 number of a series of the letters written by the other party, the lat- 
 ter may introduce the entire series.** On this principle it has been 
 frequently held that where one party offers the books or a statement 
 of account furnished by the other party, for the purpose of showing 
 admissions, he renders admissible those items which are favorable 
 as well as those which are adverse to such other party. The one 
 offering such an account as an admission cannot have the benefit of 
 the credits without also submitting to the debits ■" but it does not 
 follow that entries in another part of the same book which have no 
 connection with those offered must be received.*' By the same rule 
 where a pleading, or affidavit, or deposition is offered in evidence, 
 the statements relied on as admissions and the qualifying statements 
 must be construed together.** Although a. party may offer a part 
 of his pleading as explanatory of another part offered by the ad- 
 versary, he cannot use such pleading as affirmative evidence for 
 himself."" As we have seen with respect to oral admissions, the 
 party offering written admissions is not hound by the accompanying 
 statements which qualify such admissions, if he chooses to rebut 
 or impeach them. In other words he is not estopped to disprove 
 them." 
 
 *3 Grattan v. Metropolitan Life Ins. Co., 92 N. Y. 274, 44 Am. Rep. 372. 
 See §§ 685. 822, infra. 
 
 « Walker v. Griggs, 28 Ga. 552. 
 
 «Roe V. Day, 7 Car. & P. 705; Gibson v. Lacy, 87 Ind. 202; Lester v. 
 Sutton, 7 Mich. 329; Llyermore v. St. John, 4 Rob. (N. Y.) 12. 
 
 46 Zimmerman v. Huber, 29 Ala. 379; Raymond v. Rowland, 17 Wend. 
 389. 
 
 *7 Fitzpatrick v. Harris, 8 Ala. 32; Jones v. Jones, 4 Hen. & M. (Va.) 
 447; Waggoner v. Gray, 2 Hen. & M. (Va.) 603: Velths v. Hagge, 8 Iowa, 
 163; Piper v. White, 56 Pa. St. 90. See §§ 686, 822, infra. 
 
 48 Catt V. Howard, 3 Stark. 3. 
 
 4» Gildersleeve v. Landon, 73 N. Y. ^09; Mott y. Consumers' Ice Co., 73 
 N. Y. 543; Bumpass v. Webb, 1 Stew. (Ala.) 19, 18 Am. Dec. 34; Davlsa 
 V. Flewellln, 29 Ga. 49; GUdersleeve v. Maloney, 5 Duer (N. Y.) 383; 
 Goodyear v. De la Vergne, 19 Hun, 537. 
 
 oo Gunn v. Todd, 21 Mo. 303. 
 
 »i Mott V. Consumers' Ice Co., 73 N. Y. 543; Gildersleeve v. Landon, 73 N. 
 T. 609; Walden v. Sherburne, 15 Johns. 409. 
 
370 THE LAW OF EVIDENCE. § 296. 
 
 § 295 (297). Weight of admissions. — It is a familiar rule tliat 
 verbal admissions should be received with caution and subjected to 
 careful scrutiny, as no class of evidence is more subject to error or 
 abuse. Witnesses having the best motives are generally unable to 
 state the exact language of an admission, and are liable, by the 
 omission or the changing of words, to convey a false impression of 
 the language used. No other class of testimony affords such tempta- 
 tions or opportunities for unscrupulous witnesses to torture the 
 facts or commit open perjury, as it is often impossible to contradict 
 their testimony at all, or at least by any other witness than the 
 party himself."^ These and similar considerations have often led 
 the courts to declare that admissions are the weakest and most un- 
 satisfactory form of evidence."" This evidence should have little 
 weight, if it appears that the witness testifying to the admission is 
 careless in his mode of testifying; that he does not accurately re- 
 member the statements ; that he is willing to misconstrue them, or 
 that the declarant was misinformed, or did not clearly express his 
 own meaning. Hence it is obvious that the degree of weight to be 
 given to admissions depends upon the circumstances under which 
 they were made as shown by the testimony, as well as upon the de- 
 gree of accuracy and truthfulness with which they are related.'* 
 When the admission is clearly proved and shown to have been made 
 with deliberation, it is not necessarily weak evidence, nor does it 
 require corroboration,'"' on the contrary, when admissions are so 
 proved, they may have great inherent force as evidence."' 
 
 § 296 (298). Same, continued. — ^It is hardly necessary to add 
 that, unless admissions are contractual or unless they constitute an 
 
 12 Law V. Merrills, 6 Wend. 269; Malin v. Malin, 1 Wend. 627; Wf^Iace 
 ▼. Matbews, 39 Ga. 617, 99 Am. Dec. 473 and note 480; Humphrey v. Pope, 
 1 Cal. App. 374, 82 Pac. 223. 
 
 63 O'Brien v. Flynn, 8 La. An. 307; Tuttle v. Burroughs, 9 La. An. 494; 
 Printup v. Mitchell, 17 Ga. 558, 63 Am. Dec. 258; Clark v. Lartln, 9 Iowa, 
 391; Vaughan v. Hann, 6 B. Mon. (Ky.) 338; Hornner v. Speed, 2 Pat & 
 H. (Va.) 616; Kingston v. Kingston, 124 Wis. 263. 
 
 54 Thompson v. Thompson, 9 Ind. 323, 68 Am. Dec. 638; Chicago Ky. Co. 
 Y. Butler, 68 111. 409; Colbert v. State, 125 Wis. 423. 
 
 «5 Com. V. Galligan, 113 Mass. 202 ; Saveland v. Green, 40 Wis. 431. 
 
 esDreher v. Fitchburg, 22 Wis. 675, 99 Am. Dec. 91; Ector v. Welsh, 29 
 Ga. 443; Fldler v. McKinley, 21 111. 308; Chandler v. Schoonover, 14 Ind. 
 324; Ray v. Bell, 24 111. 444; Myers v. Baker, Hardin (Ky.) 544; Prater v. 
 Frazier, 11 Ark. 249; Hope v. Evans, 1 Smedes & M. Ch. (Miss.) 195; 
 Durkee v. Stringham, 8 Wis. 1; Wittick v. Keffer, 31 Ala. 199; Com. v. 
 Knapp, 9 Pick. 496, 20 Am. Dec. 491; Sullivan v. Mauston Milling C!o., 123 
 Wis. 360. 
 
§ 296. ADMISSIONS. 371 
 
 estoppel within some of the rules already stated, they are not con- 
 clusive, but are open to rebuttal or explanation, or they may be con- 
 trolled by higher evidence.^' This is true even though they are 
 made under oath, although admissions thus solemnly made are evi- 
 dence of great weight against the declarant, and they throw on Mm 
 the burden of showing a mistake."* Admissions cannot be rebutted 
 or explained by other statements of the declarant made at another 
 time, for such other statements are not admissible for that purpose, 
 unless they form part of the res gestae.^' Admissions are not re- 
 jected for the reason that the declarant may have had no personal 
 knowledge of the facts admitted,'" nor because made during intoxi- 
 cation,"^ nor because they are drawn out by a false suggestion,'* nor 
 because they may have been given under legal compulsion, as in an- 
 swer to irrelevant questions or to questions which might have been 
 objected to as incompetent,'^ or in answer to interrogatories irregu- 
 larly taken,'* or where there had been no opportunity to explain 
 the answer.'" In all such cases the objection goes to the weight to 
 be given to the admission and not to the question of competency. 
 But admissions are not admissible if made while a party is unlaw- 
 fully restrained or held in duress.^" It was so held in a case where, 
 at the trial, the jury had been instructed to give no weight to the 
 admissions, unless upon the whole proof before them they were sat- 
 
 57 Garrett v. Garrett, 27 Ala. 687; McCravey v. Remson, 19 Ala. 430, 54 
 Am. Dec. 194; Wakefield v. Grossman, 25 Vt. 298; Phoenix Ins. Co. v. Gray 
 (Ga.), 38 S. B. 992; Nicholson -ss. Snyder, 97 Md. 415, 55 Atl. 484; Laflain 
 V. Missisquoi Pulp Co., 74 Vt. 125, 52 Atl. 526; Smith v. Mayfield, 163 111. 
 447, 45 N. B. 157; Boyle v. Railway Co. (Tex.) 76 S. W. 441; Bruger v. 
 Ins. Co., 129 Wis. 281; Chamberlain v. Iba, 181 N. Y. 486, 74 N. E. 481. 
 
 58 Rex V. Clarke, 8 T. R. 220; Thornes v. White, 1 Tyrw. & G. 110. See 
 also. Carter v. Bennett, 4 Fla. 343. 
 
 «9Lee V. Hamilton, 3 Ala. 529; Roberts v. Trawlck, 22 Ala. 490; Hunt 
 V. Roylance, 11 Gush. 117, 59 Am. Dec. 140; Clark v. Huflaker, 26 Mo. 264; 
 Tucker v. Frederick, 28 Mo. 574, 75 Am. Dec. 139; McPeake v. Hutchinson, 
 
 5 Serg. & R. (Pa.) 295; Snowden v. Pope, Rice Bq. (S. C.) 174; Davis v. 
 Kirksey, 2 Rich. L. (S. C.) 176; Jones v. State, 13 Tex. 168, 62 Am. Dec. 
 550. 
 
 «o Sparr v. Wellman, 11 Mo. 230; Kitchen v. Robblns, 29 Ga. 713, 
 »i State v. Bryan, 74 N. C. 351. 
 •2 Higgins V. Dallinger, 22 Mo. 397. 
 
 03 Grant v. Jackson, Peake, 203; Ashmore T. Hardy, 7 Car. & P. BOlf 
 Smith V. Beadnell, 1 Camp. 30. 
 «* Edwards v. Norton, 55 Tex. 405. 
 «s CoUett v. Keith, 4 Esp. 212. 
 •«Stockfleth V. De Tastet, 4 Camp. 11; Robson t. Alexander, 1 Moora 
 
 6 P. 448. 
 
372 THE LAW OF EVIDENCE. § 296 
 
 isfied that the declarations and admissions of the defendant were 
 made, not in consequence of the unlawful detention or imprison- 
 ment, but solely from his own conviction and consciousness of their 
 truth and with the intention on that account to give them utter- 
 ance.°' An admission made by a party which is inconsistent with 
 his testimony goes merely to the credibility of the witness."* 
 
 «7 Tilley V. Damon, 11 Cush. 247. 
 
 «s Eastman v. Lake Shore & M. S. Ry. Co., 101 Mich. 597. 
 
CHAPTER 10. 
 HEARSAY. 
 
 9 297. Definition — ^Hearsay evidence — ^Reasons for Its exclusion. 
 
 298. Hearsay may relate to what Is done or written as well as what Is 
 
 spoken. 
 
 299. Hearsay may Include things stated under oath or against interest, 
 
 300. Statements apparently hearsay may be original evidence. 
 
 301. Matters of public and general interest. 
 
 302. Distinction between public and merely general rights. 
 
 303. Reputation as to private boundaries excluded in England. 
 
 304. Same — Relaxation of the rule in the United States. 
 
 305. Declarations as to particular facts concerning private boundaries 
 
 not admissible. 
 
 306. Declarations of surveyors. 
 
 307. Maps relating to subjects of public or general interest. 
 
 308. Ancient documents in support of ancient possession — Their cus- 
 
 tody. 
 
 309. Same — ^Documents to come from the proper custody. 
 
 310. Declarations must have been made after the controversy arose. 
 
 311. Meaning of the rule — Lis mota. 
 
 312. Declarations as to pedigree — Reasons for the exception. 
 
 313. Same — Declarant's relationship — How proved — Particular facts. 
 
 314. Are the declarations limited to cases where pedigree is the direct 
 
 subject of the suit. 
 
 315. Acts and conduct of relatives admissible as well as declarations — 
 
 Written declarations. 
 
 316. Same — Family recognition of writings and records. 
 317; "Weight of such testimony. 
 
 318. Declarations only admissible after death of the declarant 
 
 319. Entries in the course of business by deceased persons. 
 
 320. Same — Principle extended to declarations by persons still living. 
 
 321. Recollection of the fact by the person making the entry. 
 
 322. Entries by a party himself; 
 
 323. Declarations of deceased person against interest— In general. 
 
 324. The declaration must be against pecuniary or proprietary interest. 
 
 325. SufiScient if the entries are prima facie against interest. 
 
 326. Same — Evidence of collateral facts. 
 
 327. Rule when the declaration is made by an agent. 
 
 328. Declarant need not have actual knowledge of the transaction. 
 
 329. Such declarations inadmissible to prove contracts. 
 
 330. General rules on the subject. 
 
 331. Dying declarations. 
 
 332. Limited to cases of homicide and when made in expectation of 
 
 impending death. 
 
374 THE LAW OF EVIDENCB. § 297 
 
 § 333. Declarant must have been competent to testify. 
 
 334. Declarations must be confined to the homicide. 
 
 335. Form of the declaration — General rules. 
 
 336. Evidence of witnesses given in former action or on former trial. 
 
 337. Exact identity of the parties not necessary. 
 
 338. Parties should be substantially the same or in privity. 
 
 339. Form of proceedings may be different. 
 
 340. The opportunity of cross-examination on the former trial. 
 
 341. Death of the former witness — Relaxation of the rule. 
 
 342. Same — Absence from State — Other disability — Criminal cases. 
 
 343. Mode of proving former testimony — ^Refreshing memory. 
 
 § 297(299,300). Definition — Hearsay evidence — Reasons for its 
 exclusion. — One of the most important of the rules excluding cer- 
 tain classes of testimony is that which rejects hearsay evidence. 
 By this is meant that kind of evidence which does not derive its 
 value solely from the credit to be attached to the witness himself, 
 but rests also in part on the veracity and competency of some other 
 person from whom the witness may have received his inforniation. 
 In the leading case on the subject in this country, Chief Justice 
 Marshall thus stated some of the grounds for the ancient rule ex- 
 cluding hearsay evidence: "That this species of testimony sup- 
 poses some tetter testimony which might be adduced in the particu- 
 lar case is not the sole ground of its exclusion. Its intrinsic weak- 
 ness, its incompetency ' to satisfy the mind of the existence of the 
 fact, and the frauds which might be practiced under its cover, com- 
 bine to support the rule that hearsay is totally inadmissible.'" 
 Other considerations are that legal proceedings might be indefinitely 
 delayed and rendered practically fruitless, if mere extra judicial 
 assertions were to be received as evidence ; moreover it is contrary 
 to the spirit of the common law that statements made out of court, 
 without any opportunity for cross-examination and under none of 
 the sanctions of an oath, should be received as evidence. Moreover 
 it might be urged that the practice of allowiug the statements of 
 witnesses to a transaction to be given second-hand would, in crimi- 
 nal cases, be a violation of the spirit of the constitutional provision 
 that the accused shall enjoy the right of being confronted with the 
 
 iMima Queen v. Hepburn, 7 Cranch, 296; Baumgartner v. Eigenbrot, 100 
 Rid. 508, 60 Atl. 601; Davis v. Wood, 1 Wheat. 6; 1 Phil. BV. Ch. 7, § 1; 
 1 Greenl. Ev. § 99; Thayer, Prel. Treat, on Bv. pp. 520-523. For a long dis- 
 cussion of history of the rule see, Wigmore, Ev. § 1360, et seq. For a dis- 
 cussion of the exception to the rule excluding hearsay, see article in 69 Law 
 Times, 440. See also extended note, 19 L. R. A. 733-752; also article and 
 notes cited under § 344 infra. 
 
§ 297 HEARSAY. 375 
 
 witnesses testifying against him. Judges acting as triers of the 
 facts, and skilled in the art of scrutinizing and weighing evidence 
 have sometimes believed that they could admit hearsay testimony 
 without danger ; that they could trust themselves entirely to disre- 
 gard the hearsay evidence or to give it such little weight as it might 
 seem to deserve." The dangers of admitting hearsay evidence are 
 especially obvious when issues of fact are to be determined by jurors 
 who are not trained to discriminate between different grades of 
 testimony ; between those statements which in a legal sense are only 
 gossip and others which are tested by cross-examination and sanc- 
 tioned by the solemnity of an oath. The rigor with which the rule 
 excluding hearsay has been adhered to under the common law system 
 is no doubt due in part to a jealous preservation of the right of 
 trial by jury." So rigidly is the rule adhered to that, except with 
 the qualifications hereafter stated, the statements of persons who 
 have since died or otherwise become disqualified as witnesses cannot 
 be received as evidence, if such statements are in the nature of hear- 
 say. In other sections we shall see that the declarations of persons 
 since deceased are received under certain well established exceptions 
 to the general rule. But the admission of such declarations depends 
 upon fixed rules, and not upon any theory that it rests in the dis- 
 cretion of the court to admit hearsay because other testimony can- 
 not be obtained.* 
 
 2 Berkeley Peerage Case, 4 Camp. 414. 
 
 3 Berkeley Peerage Case, 4 Camp. 414. 
 
 * The declarations of third persons as to the loss of papers ■which had 
 been In their possession are not admissible to let in secondary evidence 
 of their contents. Rex v. Denio, 7 Barn. & C. 620; Jackson v. Oris, 11 
 Johns. 437; Governor v. Barclay, 4 Hawks (N. C.) 20; and the declar- 
 ations of a warrantor or grantor made after giving a deed of land are 
 not evidence to support the title of the grantee, Jackson v. Yredenburgh, 
 1 Johns. 159; Bartlet v. Delprat, 4 Mass. 702. On an indictment for murder 
 the statements of other persons that they killed the deceased are hear- 
 say. State V. Duncan, 6 Ired. (N. C.) 236; SItate v. Haynes, 71 N. C. 79; 
 and the same is true as to threats made by third persons. State v. Weaver, 
 57 Iowa, 730. The valiJLe of property sold under execution cannot be 
 shown as against the owner by the appraisem,ent, Flannigan v. Althouse, 
 56 Iowa, 513. Save in exceptional cases, reputation and rumor are pure 
 hearsay, "Welch v. Norton, 73 Iowa, 721; State v. Evans, 33 "W. Va. 417; 
 Abel V. State, 90 Ala. 631; School of Milford v. Powner, 126 Ind. 528; 
 Barker v. Com., 90 Va. 820. A witness cannot be asked what is the esti- 
 mated value placed on certain lands by the neighborhood generally, Powell 
 V. Governor, 9 Ala. 36; nor the opinion of others as to the value of prop- 
 erty, Green y. Caulk, 16 JUd. 556; Barrett v. Wheeler, 71 Iowa, 662; when 
 
376 THE LAW OP EVIDENCE. § 298 
 
 § 298 (301). Hearsay may relate to what is done or written as 
 well as to what is spoken. — ^This proposition,' as well as the strict- 
 witnesses give their own estimates' of market value, such testimony is not 
 to be rejected because it may in part depend on hearsay, Fennerstein's 
 Champagne, 3 Wall. 145; or to whom a lot is reputed to belong, Berry v. 
 Osborne, 15 Ga. 194; Barrett v. Wheeler, 71 Iowa, 662; Burns v. Fredericks, 
 37 Conn. 86; Berniaud v. Beecher, 76 Cal. 394. The fact that property is 
 assessed to a person is not adinissible as proof of ownership, Adams v. 
 Hikcox, 55 Iowa, 632; Tuckwood v. Hanthorn, 67 Wis. 326; nor can one 
 be asked whether he had any information from any source at a stated 
 time as to a given subject, Xenia Bank v. Stewart, 114 U. S. 224; Lamar 
 V. Pearre, 82 Ga. 354, 14 Am. St. Rep. 168. The motive which leads a per- 
 son, not a party, to do an act cannot be proved by his declarations, when 
 such declarations are no part of the res gestae. .North Stonington v. 
 Stonington, 31 Conn. 412. In an action on a 'building contract between 
 the contractor and the owner, the statement of the laborers made out of 
 court are not evidence as to the progress of the work, Gougales College 
 V. McHugh, 26 Tex. 677. The statements of a person who has been 
 robbed, made to a third party as to the description of the parties commit- 
 ting the crime, are hearsay and are not admissible on the part of the 
 defendant to show that he was not the person thus described. People v. 
 McCrea, 32 Cal. 98. This rule excludes evidence of statements as to what 
 physicians and others have said as to the condition or state of health of 
 a person, Heald v. Thing, 45 Me. 392; Ponca v. Crawford, 18 Neb. 551; 
 Armstrong v. Ackley, 71 Iowa, 76; Alabama Ry. Co. v. Arnold, 80 Ala. 600; 
 the estimate as to the damag'e to a building, made by an expert since 
 deceased, Collins v. Langan (N. J.), 32 Atl. 258; the certificate of the 
 master of a vessel of the expenses incurred by an agent, in an action be- 
 tween the principal and the agent, Newson v. Douglass, 7 Harr. & J. 
 (Md.) 417, 16 Am. Dec. 317; declarations by a party that he intended to 
 make his home on certain wild lands to show that his possession was 
 actual and bona fide, McKinnon v. Meston (Mich.), 62 N. W. 1014; declar- 
 ations made by a party in his own favor, in the absence of the other party, 
 Treadway v. Treadway, 5 111. App. 478; Ward v. Ward, 37 Mich. 253; 
 Whitney v. Houghton, 125 Mass. 451; Nourse v. Nourse, 116 Mass. 101; 
 Woodward v. Leavitt, 107 Mass. 453; Wallace v. Story, 139 Mass. 115; 
 Eureka Ins. Co. v. Robinson, 56 Pa. St. 256, 94 Am. Dec. 65; the testimony 
 as to the contents of a lost instrument by one who cannot read and write, 
 Russell V. Brosseau, 65 Cal. 605; or by one who went to the clerk's office 
 and asked that the document be read to him, Probst v. Mahis, 115 N. C. 
 526; statements made by a person for whom a testator had sent to draft a 
 will, who had declined to go on account of the testator's mental incapacity, 
 Renaud v. Pageot, 102 Mich. 568. 
 
 Sussex Peerage Case, II Clark & F. 85, 113; Stapylton v. Clough, 22 
 Eng. L. & Eq. 276, 2 El. & B. 933; Schooler v. State, 57 Ind. 127; Ashcraft 
 v. De Armond, 44 Iowa, 229; Hunter v. Randall, 69 Me. 183; FlUey v. 
 Angell, 102 Mass. 67; People v. Cox, 21 Hun, 47; State v. Haynes, 71 N. C. 
 79; Campbell v. State, 8 Tex. App. 84; Over v. Dehne (Ind.), 75 N. E. 
 664; Bryce v. C, M. & St. P. Ry. Co., 129 la. 342, 105 N. W. 497. 
 
§ 299 HEARSAY. 377 
 
 ness with wMcli the courts adhere to the rule excluding hearsay, is 
 weU illustrated in a celebrated case, often cited, in which it was 
 held that letters addressed to a deceased testator indicating that the 
 writers thought him sane, but which were not acted on by him, could 
 not be admitted for the purpose of proving his sanity. By way of 
 illustration Baron Parke stated in his opinion in this case that the 
 conduct of the family or relatives of a testator in taking the same 
 precautions in his absence as'if he were a lunatic, his election in his 
 absence to some high and responsible office, the conduct of a physi- 
 cian who permitted a will to be executed by a sick testator, the con- 
 duct of a deceased captain on a question of sea-worthiness, who 
 after examining every part of a vessel embarked in it with his fam- 
 ily, would all be mere instances of hearsay evidence, — mere acts or 
 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.* But in the case just cited it was held that a different rule 
 would have prevailed if it had been shown that the testator himself 
 had read and understood the letters in question, and that he had 
 acted upon them. In that case the letters, although the acts and 
 statements of third parties, would have been strictly relevant as 
 illustrating the conduct of the testator, and would have such proba- 
 tive effect as the jury might deem proper.' The same considera- 
 tions which exclude the naked assertions of third persons as evi- 
 dence, forbid that any inference should be drawn in favor of or 
 against a party from the mere acts of a stranger. 
 
 § 299 (302). Hearsay may include things stated under oath or 
 against ihterest. — The inherent weakness of hearsay testimony is 
 not cured by the fact that the statement has been made under oath, 
 or in any judicial proceedings between other parties. Thus, a vol- 
 untary affidavit ranks in equal grade with other hearsay testimony 
 in the law of evidence ;' and the ex parte deposition of a pauper as 
 to his place of settlement is inadmissible, although no other testi- 
 mony can be obtained on the subject." Nor in general are hearsay 
 statements admissible, although they are apparently contrary to the 
 interest of the person who made them." Thus, the solemn state- 
 
 « Wright ▼. Doe ex dem. Tatham, 7 Adol. & Ell. 313. 
 
 ' Wright V. Doe ex dem. Tatham, 7 Adol. & Ell. 313. 
 
 8 Patterson v. Maryland Ins. Co., 3 Harr. & J. (Md.) 71, 5 Am. Dec. 
 419; Bookman v. Stegman, 105 N. Y. 621; Kipp v. dinger, 97 Minn. 135, 
 106 N. W. 108. 
 
 » Rex V. Perry Frystone, 2 East, 54. 
 
 «> See S 323, et seq. infra, as to declarations against interest 
 
378 THE LAW OF EVIDENCE. § 300 
 
 ment ma'^e out of court by one charged with crime, that he in con- 
 nection with others had committed the offense, might afford the 
 most satisfactory evidence of his own guilt, and, if admitted in evi- 
 dence ia a trial against the others thus implicated, would no doubt 
 have great weight in the minds of a jury in determining their guilt. 
 But whatever moral weight might be given to such statements, they 
 have no place in a court of justice as legal evidence.^* The same of 
 course would be true respecting such statements admitting that the 
 declarant is jointly liable with others.^" 
 
 § 300 (303). Statements apparently hearsay may be original 
 evidence. — "It does not follow because the writing or words in 
 question are those of a third person, not under oath, that therefore 
 they are to be considered as hearsay. On the contrary, it happens 
 in many eases that the very fact in controversy is whether such 
 things were written or spoken, and not whether they were true ; and 
 in other eases such language or statements, whether written or 
 spoken, may be the natural or inseparable concomitants of the prin- 
 cipal fact in controversy. ' ' ^* On this principle, statements which 
 have been made to a person may be material for the purpose of 
 showing what knowledge or information he had respecting a given 
 subject, when such knowledge or information is material to the 
 issue.^* In determining whether there was probable cause in an 
 action for malicious prosecution, the information on which the 
 defendant acted in bringing the foriner suit is material and 
 is not hearsay, though consisting of the statements of others. Such 
 statements, if the advice of counsel, may constitute a fuU de- 
 fense.^" If the statements are made by others they may bear upon 
 the question of good faith, and thus affect the measure of damages." 
 
 "Com. V. Felch, 132 Mass. 22; State v. Duncan, 6 Ired. (N. C.) 236; 
 State v. Haynes, 71 N. C. 79. 
 
 12 Stark. BV. 59, 60. 
 
 13 1 Greenl. Ev. § 100; DuBost v. Beresford, 2 Camp. 511; Bartlet v. Del- 
 prat, 4 Mass. 708; People v. Shea, 8 Cal. 538; Turner v. United States, 
 66 Fed. 280, that a witness derived his knowledge concerning a boundary 
 from a third person. 
 
 14 Rice V. Bancroft, 11 Pick. 469. 
 
 isRavenga v. Mackintosh, 2 Barn. & C. 693; "Wicker v. Hotchklss, 62 
 111. 107, 14 Am. Rep. 75; Pullen v. Glidden, 68 Me. 566; Stanton v. Hart, 
 27 Mich. 539; Laird v. Taylor, 66 Barb. 143. 
 
 16 Thomas v. Russell, 9 Etxch. 764; Lister v. Ferryman, L. R. 5 Exch. 
 365; Wyatt v. White, 5 Hurl. & N. 371; Lamb v. Gulland, 44 Cal. 606; 
 Hirsh V. Feeney, 83 111. 550; Pullen v. Glidden, 68 Me. 562; Bacon v. 
 Towne, 4 Cush. 238; Heyne v. Blair, 62 N. Y. 19; Bell v. Pearcy, 6 Ired, 
 (N. C.) 83; White v. Tucker, 16 Ohio St. 468. 
 
§ 300 HEAESAY. 379 
 
 So in actions for slander and libel it is plain that the rule excluding 
 hearsay is not violated by proof of the uttering of the language, 
 since it is the fact of uttering and not the truth of the language 
 which is to be proved. In such actions there is authority for the 
 view that the information on which the defendant acted, though 
 derived from the statements of third persons, may constitute origi- 
 nal evidence tending to show his good faith, as well as to mitigate 
 the damages.^^ It is hardly necessary to cite authorities to the ob- 
 vious proposition that when proof is to be made of a parol contract, 
 or when for other reasons the statements of a person are relevant, 
 such statements may be proved by third persons who were present 
 as well as by the one who used the language. In such case the state- 
 ments are not hearsay, but substantive evidence.^^ In proving self- 
 defense a party may show that he had information from others 
 which led him to apprehend an attack.'^' As we have seen elsewhere, 
 there are also numerous cases in which evidence may be given of 
 general reputation as to character; and under some circumstances 
 reputed ownership, public rumor and notorious usage may be 
 shown. ^^ So in a large class of cases the opinions of vsritnesses may 
 be received. The date of a person's birth or his age may be testified 
 to by himself or by the members of his family, although the knowl- 
 edge may be gained only by tradition.^^ Relationship to a family 
 of a particular person may be proved by one acquainted with the 
 family, and who Imows that the person was recognized by the family 
 as a relative.^^ There is another class of declarations and acts, 
 often close to the line of hearsay testimony, which are received as 
 original evidence on the ground that they are so intimately con- 
 
 17 See § 150, supra. 
 
 18 Blanchard v. Child, 7 Gray, 157. 
 isPeoplev. Stea, 8 Cal. 538. See § 146, supra. 
 
 20 See § 148, et seq. supra. But see. Barker v. Com., 90 Va. 820, where 
 It was held that it could not be proved by general reputation that a 
 house at which a person resided was of ill repute; but the same must 
 be established by particular facta. Nor can the making of a note be 
 denied by showing a payee's reputation of being "hard up" at the time 
 when it was purported to have been given by him. Bliss v. Johnson, 162 
 Mass. 323. 
 
 2iHoulton V. Manteuifel, 51 Minn. 185; Hill v. Bldridge, 126 Mass. 234; 
 Com. V. Stevenson, 142 Mass. 466; State v. Marshall, 137 Mo. 463, 39 S. W. 
 63; State v. Best, 108 N. C. 747; State v. McClaln, 49 Kan. 730; Dodge v. 
 The State, 100 Wis. 294, 75 N. "W. 954; Loose v. State, 120 Wis. 115, 97 N. 
 W. 526. See note. 111 Am. St. Rep. 584. 
 
 uBIackdahl v. Grand Lodge, 46 Minn. 61. 
 
380 THE LAW OF EVIDENCE. § 301 
 
 nected with the principal fact under investigation as to illustrate its 
 character, in other words, they are parts of the res gestaeP 
 
 § 301 (304,305). Matters of public and general interest.— One 
 of the well recognized exceptions to the rule excluding hearsay evi- 
 dence relates to those matters which are of public and general in- 
 terest to the community. Subject to the limitations hereafter 
 stated, it is weU. settled that the declarations of deceased witnesses 
 may be received when they relate to the existence of any public or 
 general right or custom, or matter of public or general interest* 
 The considerations which have led the courts to admit testimony 
 of this character are the inherent difficulty of obtaining any other 
 evidence than that in the nature of tradition and reputation, when 
 the controversy relates to ancient rights; and the further fact that 
 since the public are interested in such statements, there is good rea- 
 son to believe that the falsity or error of such declarations could 
 be exposed or corrected by other testimony. The particular ob- 
 jection which excludes mere hearsay in general does not apply to 
 those cases which are of a public nature, which may be presumed 
 to be matters of public notoriety as in the instance of public 'pre- 
 scriptions and customs and where "reliance is placed, not on the 
 credit due to the assertion of a single individual, but is sanctioned 
 by the concurrent opinion and assent of indefinite numbers. In 
 such cases a presumption exists that the truth of the fact is known 
 and faithfully communicated. " ^' It may also be observed that 
 since declarations of this character are received only when they 
 deal with matters of public or of general interest, there is less rea- 
 son to suspect that the statements were made for the purpose of 
 fabricating testimony, than if they related to individual rights." 
 
 28 See § 344, et seq. infra. 
 
 24Ellicott V. Pearl, 10 Peters, 412; Shutte v. Thompson, 15 "Wall. 151; 
 People V. Velarde, 59 Cal. 457; Wooster v. Butler, 13 Conn. 309; Drury 
 v. Midland Ry.Co., 127 Mass. 571; McKinnon v. Bliss, 21 N. Y. 206; Bir- 
 mingham v. Anderson, 40 Pa. St. 506; Murray v. Spence, 88 N. C. 357; 1 
 areenl. Ev. § 128. See note, 94 Am. St. Rep. 677. 
 
 26 Stark. Et. 46. 
 
 2« Cases illustrating this exception to the general rule are far more 
 numerous in England than in the United States. Testimony of this char- 
 acter has heen received where the question related to a right of common 
 existing by Immemorial custom. Weeks v. Sparke, 1 Maule & S. 679, (but 
 see, Dunraven v. Llewellyn, 15 Adol. & Ell.' N. S. 791) ; to a custom of 
 mining In a particular district. Crease v. Barrett, 1 Cromp. M. & R. 919; 
 to the custom of a corporation to exclude foreigners from trading within 
 a town, Davies v. Morgan, 1 Cromp. &. J. 587; to the boundaries of towns. 
 
§ 802 HBABSAT. 381 
 
 Testimony of this kind is competent as well against a puhUc right 
 as in its favor.'"* Although cases illustrating this rule are much 
 less numerous in the United States the doctrine has been accepted 
 as well settled and it will be found as the discussion proceeds that 
 in this country the principle has been extended to a class of cases 
 not included within the common-law rule.^°'' 
 
 § 302 (306) . Distinction between the public and merely general 
 rights. — ^A distinction has long been well recognized between 
 those rights or customs which are strictly public and those which 
 are only general. The former are common to all the citizens of the 
 state, and as to those the declarations of any citizen are admissible, 
 although such declarations would of course have little weight if 
 made by a person who had no means of knowledge. While the 
 declarations of any citizen may be received in relation to such a 
 
 counties, parishes, hamlets and manors. People v. Velarde, 59 Cal. 457; 
 Drury v. Midland Ry. Co., 127 Mass. 573; Reg. v. Mytton, 2 El. & El. 557; 
 Nichols V. Parker, 14 Bast, 331; Brisco v. Lomax, 8 Adol. & BU. 198; Evans 
 V. Rees, 10 Adol. & Ell. 151; Plaxton v. Dare, 10 Barn. & C. 17; Thomas v. 
 Jenkins, 6 Adol. & Ell. 525; Doe v. Sleeman, 9 Q. B. 298; Barnes v. Maw- 
 son, 1 Maule & S. 77; to the public character of roads or highways, R. v. 
 Bliss, 7 Adol. & Ell. 555; Crease v. Barrett, 1 Cromp. M. & R. 919; Reed 
 v. Jackson, 1 East, 355; to the location of a section Ime, Mullaney v. 
 Duffey, 145 111. 559; or a street boundary, Klinkner v. Schmidt, 114 la. 
 695, 87 N. W. 661; or of a line between two commons, Morris v. Callanan, 
 105 Mass. 129; to a claim of tolls on a public road, Brett v. Beales, Moody 
 & M. 416; to a prescriptive liability to repair sea-walls, R. v. Leigh, 10 
 Adol. & BU. 398; or bridges, R. v. Sutton, 8 Adol. & Ell. 516; Rex v. Bed- 
 fordshire, 4 El. & B. 535; and to a right of ferry, Pirn v. Currell, 6 M. & 
 W. 234; or public landing place, Drinkwater v. Porter, 7 Car. & P. 181. 
 But such evidence has been, rejected, where the question was what usage 
 had obtained in electing the schoolmaster of a grammar school, Withnell 
 V. Gartham, 1 Esp. 324; whether the sheriff of the county of Chester or 
 of the city of Chester was bound to execute criminals, R. v. Antrobus, 2 
 Adol. & Ell. 793; whether certain tenants of a manor had prescriptive 
 rights of common, Dunraven v. Llewellyn, 15 Q. B. 791 ; Warrick v. Queen's 
 Coll. Oxford, 40 L. J. 785; what were the boundaries of a waste over 
 which many of the tenants of a manor claimed a right of common. Dun- 
 raven V. Llewellyn, 15 Q. B. 791; whether the tenants of a particular 
 manor had the right of cutting and selling wood, Blackett v. Lowes, 2 
 Maule & S. 494; and what were the boundaries between two private 
 estates. Clothier v. Chapman, 14 Bast, 331; Drinkwater v. Porter, 7 Car. 
 ft P. 181. 
 
 2«al Greenl. Ev. § 140. 
 
 ssbBUicott v. Pearl, 10 Peters, 412; Shutte v. Thompson, 15 Wall. 151; 
 McKlnnon v. Bliss, 21 N. Y. 206; People v. Velarde, 59 Cal. 457; Drury v. 
 Midland Ry. Co., 127 Mass. 571; Wooster v. Butler, 13 Conn. 309; Birming- 
 ham T. Anderson, 40 Fa. St. 506. 
 
382 THE LAW OF EVIDENCE. | 303 
 
 subject as the existence of a public highway or ferry, or of other 
 matters of public right, yet declarations cannot be received in re- 
 spect to general rights or those rights which are only common to a 
 considerable number of persons, unless the declarant appears to 
 have had competent means of knowledge." Thus, where the dis- 
 pute relates to the existence of a local custom in a parish or manor 
 in which all the residents of the district have an interest, the de- 
 clarations in order to be admissible should be those of deceased per- 
 sons who had resided therein or who are shown to have otherwise 
 gained competent Imowledge of the subject.^* In a New York case 
 the attempt was made to prove by tradition or reputation that the 
 patentee under a royal grant of a large tract of land consistiag of 
 parts of several townships had burned his muniments of title. The 
 court held that, while this might be deemed a matter of general in- 
 terest in the community, the proffered evidence was incompetent 
 because no proof had been made that the settlers upon the tract in 
 question claimed title under the grant referred to, and that conse- 
 quently it did not appear that they had any interest in or peculiar 
 knowledge on the subject.^' In Massachusetts it was held inadmis- 
 sible to show it to have been a notorious fact in a certain county 
 that no license for the sale of liquors had been granted in that 
 county for many years, for the purpose of showing that a resident 
 of another county had knowledge of this fact.*" 
 
 § 303 (307). Reputation as to private boundaries excluded in 
 England. — The English authorities seem to have limited this ex- 
 ception to the general rule strictly to those cases where the litiga- 
 tion related to public or general interests. This is illustrated by the 
 cases already cited, in some of which the declarations proposed and 
 rejected related to the interests of individuals only. It is true that 
 where private lines in dispute were coincident with public or quasi- 
 public boundaries, evidence of reputation has been received to de- 
 termine the private right. Thus, where the proof showed that the 
 boundaries of the farm in question and those of a hamlet were the 
 same, evidence of reputation as to the boundaries of the hamlet 
 was admitted to prove the boundaries of the farm. The court held 
 that a fact is to be proved in the same manner when subsidiary, as 
 
 27 Crease v. Barrett, 1 Cromp., M. & R. 919; 1 Greenl. Bv. § 128. 
 ssDunraven v. Llewellyn, 15 Q. B. 791, 809; Newccastle v. Broxtowe, 
 
 4 Barn. & Adol. 273; Crease v. Barrett, 1 Cromp., M. & R. 919. 
 
 28 McKlnnon v. Bliss, 21 N. Y. 206. 
 »» Dunbar v. Mulry, 8 Gray, 163. 
 
§ 304 HBABSAT. 383 
 
 when it is tlie very matter in issue.*' But in respect to mere private 
 boundaries and monuments, the English courts have excluded evi- 
 dence of reputation for the reason that such private interests could 
 not be matter of public knowledge or of any public interest or con- 
 cern.'^ 
 
 § 304 (308) . Relaxation of the rule in the United States. — In the 
 courts of some states the exception allowing hearsay in respect to 
 matters of public and general interest has been so extended as to 
 admit hearsay testimony in matters of private boundary. Although 
 the American cases can hardly be fully reconciled with the restric- 
 tions that form part of the English law on this subject, the de- 
 parture is quite natural and is easily traceable to the wholly differ- 
 ent methods of making surveys which have prevailed in the two 
 countries. In the United States the surveys are generally under the 
 direction of government officers and made in such a manner that the 
 boundaries between private estates are so often coincident with gen- 
 eral boundary lines as to be, to some extent, matters of general in- 
 terest. Such surveys have often been made many years before the 
 full settlement of the community was effected ; and the location of 
 the corners, monuments and boundaries often rests largely in tra- 
 dition, and is the subject of continued discussion among those hav- 
 ing both opportunity and interest to know the facts. In this country 
 the courts have frequently recognized the doctrine that proof of 
 reputation may be received in proof of private boundaries.'' It 
 may be a question whether a disputed boundary is of such public 
 character as to permit evidence of reputation concerning it. In 
 the case of lines of counties, towns, towTiships, highways, large 
 watercourses and the like, the testimony would be admisisble as 
 relating to a matter of general interest. But there may be lines and 
 
 31 Thomas v. Jenkins, 6 Adol. & Ell. 525. See note, 15 Am. Dec. 628. 
 
 32 0utram v. Morewood, 5 T. R. 121; Didsbury v. Thomas, 14 Bast, 323; 
 Clothier v. Chapman, 14 East, 331; Dunraven v. Llewellyn, 15 Q. B. 791; 
 Curtis V. Aaronson, 49 N. J. L. 68, 60 Am. Rep. 584; Hall v. Mayo, 97 
 Mass. 416. See full note, 15 Am. Dec. 628. 
 
 33 Clement v. Packer, 125 U. S. 309; Boardman v. Reed, 6 Peters, 328; 
 Hunnicutt v. Peyton, 102 U. S. 333; Taylor v. Fomhy, 116 Ala. 621, 22 So. 
 910; Morton v. Polger, 15 Cal. 275; Connecticut v. Peters, 1 Peters C. C. 
 496; Kramer v. Goodlander, 98 Pa. St. 366; Tate v. Southard, 1 Hawks 
 (N. C.) 45; MuUaney v. Duffy, 145 111. 559; Shaffer v. Gaynor, 117 N. C. 
 15, 23 S. E. 154; Raymond v. Coffey, 5 Ore. 132; Ralston v. Miller, 3 Rand. 
 (Va.) 44, 15 Am. Dec. 704; Nys v. Blemeret, 44 Wis. 104; State v. Mills, 
 63 N. H. 4; Jackson v. McCall, 10 Johns. 377. See notes, 36 Am. Rep. 749, 
 15 Am. Dec. 628-631, 60 Am. Rep. 589-591, 94 Am. St Rep. 678-683. 
 
384 THE LAW OF EVIDENCaB. § 305 
 
 monuments of a less marked public character and yet, by reason 
 of their relation to numerous minor titles and land divisions, a local 
 public interest may arise and a consequent knowledge in the neigh- 
 borhood concerning them may be readily supposed to exist. In 
 such cases proof of reputation might be received under the authori- 
 ties of this country.^* The weight of general reputation in such 
 cases must depend very much on the circumstances of the case ; the 
 boundary must be ancient and its supposed locality must be of suf- 
 ficient interest in the neighborhood to have been the subject of con- 
 versation among the people. The reputation must also have been 
 formed before the controversy arose.'" 
 
 § 305 (309). Declarations as to partictilar facts concerning pri- 
 vate boundaries not admissible. — ^There has been considerable 
 conflict of opinion over the question whether proof may be given 
 of the declarations of persons since deceased, not relating to repu- 
 tation or tradition respecting a boundary line, but to particular 
 facts. In discussing this subject Mr. Justice Strong said: "We do 
 not question that such declarations of reputation respecting ancient 
 public boundaries are admissible; and they have sometimes been 
 admitted in controversies respecting private boundaries. But they 
 are admissible in only a limited class of cases, a class much more 
 limited than that in which such evidence is offered to prove reputa- 
 tion of public boundaries. Proof of reputation is open to rebuttal 
 by witnesses. Not so with declarations of a particular fact respect- 
 ing a private boundary. They are, therefore, receivable only when 
 made coincidently with pointing out the boundaries and generally 
 as part of the res gestae. * * * In questions of private boun- 
 dary, declarations of particular facts, as distinguished from repu- 
 tation, made by deceased persons are not admissible, unless they 
 were made by persons who, it is shown, had knowledge of that 
 whereof they spoke, and who were on the land or in possession of 
 it when the declarations were made. To be evidence they must have 
 been made when the declarant was pointing out or marking the 
 boundaries or discharging some duties relating thereto. A declara- 
 tion which is a mere recital of something past is not an exception 
 to the rule that excludes hearsay evidence." '* The above quotation 
 
 «* Curtis ▼. Aaronson, 49 N. J. L. 68, 60 Am. Rep. 584 and long note, 
 MuUaney v. Duffy, 145 111. 559. 
 
 »» Tucker v. Smith, 68 Tex. 473; Shutte v. Thompson, 15 Wall. 151; Daw- 
 son v. Town of Orange, 78 Conn. 96, 61 Atl. 101. See note, 94 Am. St. Hep. 
 680. 
 
 «• Hunnlcutt T. Peyton, 102 U. S. 363, 364. 
 
§ 306 HRABSAY. 385 
 
 clearly states the rule whicli obtains in the courts of some of the 
 states which is in accordance with the general rule that hearsay evi- 
 dence is not admissible to prove a specific fact." But there are 
 numerous authorities which give a much wider range to this class 
 of testimony and which admit the declarations of third persons, 
 strangers to the title, made when not engaged in any act like a sur- 
 vey or the pointing out of boundaries.*^ The cases holding this 
 view are confessedly a departure from the common law rule, but 
 they claim that the departure is a necessity growing out of the diffi- 
 culty, which often arises, of obtaining other and positive proof of 
 the location of boundary marks.^° These cases generally recognize 
 the limitation that the declarations must have been made before the 
 controversy began and by persons since deceased who, from their 
 situation, appear to have had the means of knowledge respecting the 
 private boundaries and who had no interest to misrepresent,*" al- 
 though it has been held that the declarant need not be wholly dis- 
 interested.*^ 
 
 § 306 (310). Declarations of surveyors. — On the more liberal 
 view which prevails in some states that the declarations of deceased 
 persons having the means of knowledge may be received as evidence 
 of private boundaries, the declarations of surveyors have been ad- 
 mitted in numerous cases.*'' Of course the declarations of surveyor 
 
 "Blllcott v. Pearl, 10 Peters, 438; Bartlett v. Emerson, 7 Gray, 174; 
 Long V. Colton, 116 Mass. 414; Bender v. Pltzer, 27 Pa. St. 333; Southern 
 Iron "Works v. Central of Georgia Ry. Co., 131 Ala. 649, 31 So. 723; Curtis 
 V. Aaronson, 49 N. J. L. 68, 60 Am. Kep. 584 and long note. 
 
 »8 Clement v. Packer, 125 U. S. 309; Kinney v. Farnsworth, 17 Conn. 
 355; Lemon v. Hartsook, 80 Mo. 13; Smith v. Forrest, 49 N. H. 230; White- 
 hurst v. Pettipher, 87 N. C. 179, 42 Am. Rep. 520; Bethea v. Byrd, 95 N. C. 
 309, 59 Am. Rep. 240; Yow v. Hamilton, 136 N. 0. 357, 48 S. E. 782; Mc- 
 Causland v. Fleming, 63 Pa. St. 36; Coate v. Speer, 3 McCord (S. C.) 227, 
 15 Am. Dec. 627 and note; Powers v. Silsby, 41 Vt. 288; Child v. Kings- 
 bury, 46 Vt. 4V. A stricter rule prevails in Massachusetts, where declara- 
 tions as to a private boundary in which only a few persons have interest 
 are not received, Boston Water Power Co. v. Hanlon, 132 Mass. 483; Hall 
 V. Mayo, 97 Mass. 416. 
 
 »»Whitehurst v. Pettipher, 87 N. C. 179. 42 Am. Rep. 520. Note,' 94 Am. 
 St. Rep. 678. 
 
 40 Great Falls Co. v. Wooster, 15 N. H. 437; Smith v. Forrest, 49 N. H. 
 230; McCausland v. Fleming, 63 Pa. St. 38; Coate v. Speer, 3 McCord 
 (S. C.) 227, 15 Am. Dec. 627; Wood v. Willard, 37 Vt. 377, 86 Am. Dec. 
 716; Child v. Kingsbury, 46 Vt. 47; Harriman v. Brown, 8 Leigh (Va.) 
 697; Cline v. Catron, 22 Gratt. (Va.) 378; Hill v. Proctor, 10 W. Va. 84. 
 
 « Child V. Kingsbury, 46 Vt. 47; Hathaway v. Goslant (Vt), 59 Atl. 835. 
 
 «Caufman y. Presbyterian Church, 6 Binn. (Pa.) 59; Hamilton v. 
 35 
 
386 THE LAW OP EVIDENCE. § 307 
 
 and others acting under competent authority while actually making 
 a survey or pointing out boundaries might be material on other 
 grounds, as that they were a part, of the res gestae.*^ But where a 
 private surveyor is employed by the plaintiff to ascertain bounda- 
 ries, and during the survey he makes declarations as to the identity 
 of the original lines and corners, he not having been present at the 
 original survey, such declarations are inadmissible, being pure hear-, 
 say.** It need hardly be said that reputation is not admissible to 
 prove acts of ownership or possession, as such facts cannot be proved 
 by reputation ;*° nor can evidence of this character be admitted to 
 contradict record evidence;*'^ nor is present reputation as to boun- 
 dary lines admissible, unless it is traditional, or derived from an- 
 cient sources or from those who had peculiar means of knowing 
 what the reputation was in an early day as to the boundary line.*' 
 § 307 (311). Maps relating to subjects of public or general in- 
 terest. — In proving matters of public and general interest the 
 declarations wiU not be confined to those which are merely oral. 
 Thus, in England ancient maps showing public roads and the boun- 
 daries between counties, towns, parishes and manors are admissible, 
 when it is proved that they have been made or recognized by persons 
 having knowledge of the subject who are since deceased.** In his 
 work on evidence Mr. Stephen thus expresses his view as to the rel- 
 evancy of maps in general : ' ' Statements of facts in issue, or rele- 
 vant or deemed to be relevant to the issue, made in public maps or 
 charts generally offered for public sale as to matters of public noto- 
 riety, 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 documents." *' In a cele- 
 
 Menor, 2 Serg. & R. (Pa.) 70; Coate v. Speer, 3 McCord (S. C.) 227. 15 
 Am. Dec. 627; Ayres v. Watson, 137 U. S. 584, memorandum made by 
 surveyor. See note, 94 Am. St. Rep. 682. 
 
 48 Hunnicutt v. Peyton, 102 U. S. 363. See also, Clement v. Packer, 125 
 U. S. 309. 
 
 ** Russell V. Hunnicutt, 70 Tex. 657. 
 
 *6 Wendell v. Abbott, 45 N. H. 349;, Hiers v. Risher, 54 S. C. 405, 32 S. 
 E. 509. 
 
 *6 McCoy V. Galloway, 3 Ohio, 282, 17 Am. Dec. 591. 
 
 *^ Sbutte v. Thompson, 15 Wall. 151. 
 
 « Hammond v. Bradstreet, 23 L. J. (Ex.) 332; Pipe v. Fulcher, 28 L. J. 
 (Q. B.) 12, 1 El. & El. Ill; Reg. v. Milton, 1 Car. & K. Slj. 
 
 *» Steph. Ev. art 36. 
 
§ 308 HEARSAY. 387 
 
 brated English case maps of a distant country were received in evi- 
 dence to show the situation of places at which the defendant said 
 he had lived."" Under the rule excluding declarations as to private 
 boundaries ancient maps are not admissible in England to prove 
 boundaries of that character."^ As we have seen in this country the 
 declarations of persons, since deceased, as to private boundaries 
 have been received in some states more freely than in England;"* 
 and in such jurisdictions ancient maps are more liberally admitted 
 on the same ground to prove, not only matters of public or general 
 interest, but private boundaries as well."' In other states, how- 
 ever, they are not admitted to prove private boundaries."* Ancient 
 maps of villages or cities which have been kept in public offices and 
 regarded as public records are admissible as evidence of the mode 
 of laying out the village or city,"' although they are not conclusive 
 evidence of such fact."* Maps made by early explorers, as for in- 
 stance of the courses of a river, are admissible in evidence, but may 
 be shown to be incorrect and, when evidence impeaching them is 
 offered, are not to be greatly relied upon." Until maps are shown 
 to be ancient within the meaning of the rule, they are not admissi- 
 ble, unless proved to be correct, even though they were made by 
 officials or other persons having the means of knowledge. But of 
 course they may be relevant as admissions against those who may 
 have acted upon or adopted them."' 
 
 § 308 (312). Ancient documents in support of ancient posses- 
 sion — Their custody. — One of the recognized exceptions to the 
 general rule excluding hearsay relates to the admission of ancient 
 documents."' While it may be objected that documents of this class 
 
 60 Tlchbourne Case, R. v. Orton. 
 
 01 Doe V. Lakin, 7 Car. & P. 481; Brldgman v. Jennings, 1 Ld. Raym. 
 734; Wilberforce v. Hearfleld, 5 Ch. Dlv. 709. 
 
 62 See § 304, supra. 
 
 63 Penny v. Philadelphia, 4 Harris (Pa.) 91; Sample v. Robb, 4 Harris 
 (Pa.) 319; McCausland v. Fleming, 63 Pa. St. 38; Coate v. Speer, 3 McCord 
 (S C.) 227, 15 Am. Dec. 627 and long note; Taylor v. McConigle, 120 Cal. 
 123, 52 Pac. 159; Drusy v. Railway Co., 127 Mass. 571. 
 
 «4 Boston Co, v. Hanlon, 132 Mass. 483. 
 
 66 St. Louis V. Erskine, 31 Mo. 110; Whitehouse v. Bickford, 29 N. H. 
 471; Blackman v. Riley, 138 N. Y. 318. 
 
 6o.Schools V. Rlsley, 10 Wall. 91. 
 
 67 Missouri v. Kentucky, 11 Wall. 395. 
 
 68 Harris v. Com., 20 Gratt. (Va.) 833; Marble v. McMinn, 57 Barb. 610. 
 »» Hewlett V. Cook, 7 Wend. 373; Barr v. Gratz, 4 Wheat, 213; Harlan v. 
 
 Howard, 79 Ky. 373; Quinn v. Egleston, 108 111. 248; Beard v. Ryan. 78 
 
388 THE LAW OF EVIDENCE. § 309 
 
 may be fabricated and that they are not corroborated or authenti- 
 cated as any part of the res gestae, yet it may be answered that the 
 fabrication or forgery of documents purporting to be ancient is not 
 likely to escape exposure, when subjected to the tests of public trials, 
 and is not to be presumed. ' ' The rule is that an ancient deed may 
 be admitted in evidence without direct proof of its execution, if it 
 appears to be of the age of at least thirty years, when it is found in 
 proper custody, and either possession under it is shown, or some 
 other corroborative evidence of its authenticity freeing it from all 
 just grounds of suspicion." °* Again the inherent difficulty of fur- 
 nishing strict proof of the execution of ancient documents is an- 
 other consideration which has influenced the courts to relax the gen- 
 eral rule and to admit, under proper restrictions, ancient documents 
 purporting to constitute part of a transfer of title or act of owner- 
 ship.'^ "The proof of ancient possession is always attended with 
 difficulty. Time has removed the witnesses who could prove acts of 
 ownership of their personal knowledge, and resort must necessarily 
 be had to written evidence." '** 
 
 § 309 (313). Same — Documents to come from the proper cus- 
 tody. — It is a condition precedent to the admission of such docu- 
 ments, without proof of their execution, that they must come from 
 the proper custody."' What is the proper custody is a question 
 which must be determined by all the circumstances of the case. 
 While there may be but one place of deposit which is absolutely 
 and strictly proper, there may be various places which are reasona- 
 ble and natural. It is not necessary that the document should be 
 traced to the place of custody which is strictly the most appropri- 
 ate. The test is "whether the actual custody is so reasonably and 
 probably accounted for that it impresses the mind with the convic- 
 tion that the instrument found in such custody must be genuine." " 
 
 Ala. 37; Wilson v. Braden, 36 W. Va. 372, 107 Am. St. Rep. 927; 1 Greenl. 
 Bv. § 141. See 1 Bncyc. on Ev. 857, et seq. See § 531, infra. 
 
 eoApplegate v. Lexington Co., 117 tJ. S. 255, 262; Almy v. Churcli, 
 (R. I.) 26 Atl. 58; Havens v. Sea Shore Land Co., 47 N. J. Eq. 365; Green- 
 field y. Camden, 74 Me. 56; Pettingell v. Boynton, 139 Mass. 244. 
 
 61 Bristow y. Cormican, 3 App. Cas. 653; 1 Phill. Ev. 273; Tayl. Ev. (10th 
 Ed.) § 658. 
 
 «a Malcomson v. O'Dea, 10 H. L. Cas. 593. 
 
 ssMeath v. Winchester, 3 Bing. N. C. 200; ChamTserlaln v. Showalter, 
 5 Tex. Civ. App. 226, 23 S. W. 1017; Williamson v. Mosley, 110 Ga. 53, 35 
 S. E. 301; Havens v. Sea Shore Land Co., 47 N. J. Bq. 365. 
 
 «*Meath v. Winchester, 3 Bing. N. C. 201, 10 Bllgh, 462; Harris v. 
 Hosklns, 2 Tex. Civ. App. 486. 
 
§ 309 HBABSAT. 889 
 
 Accordingly when an ancient deed forms part of the original pa- 
 pers in a suit in a court of record to determine the title to land to 
 which the deed relates, the record of the case is admissible against 
 persons who are not parties or privies to the suit, in order to prove 
 the antiquity of the deed and to account for its custody."" Accord- 
 ing to this view ancient documents have been rejected where no 
 connection between their possession and any persons having- an in- 
 terest in the estate has been proved.*" On the other hand it was 
 held sufficient to trace the custody of an expired lease to the lessor."^ 
 So it was held sufficient to trace an unproved will to the custody of 
 a son of the testator who with other devisees derived a benefit un- 
 der it, although it was contended that it should have been deposited 
 in the ecclesiastical court of the diocese."' By the weight of au- 
 thority the custodian of the document should be sworn, giving such 
 information to the court concerning the custody of the document as 
 he may have ; and it has been held sufficient if the present custodian 
 testifies that he received the document as the representative or suc- 
 cessor of the person originally entitled to it, as a paper which had 
 belonged to him."* When ancient documents present strong internal 
 evidence of their verity, they may be received from the present 
 custodian, though they are not traced to their original source and 
 though the present custodian may have no interest in the title. 
 Thus, documents relating to a considerable tract of land were re- 
 ceived from the librarian of a state historical society.'^" According 
 to the weight of authority, it is not necessary as a condition to the 
 admission of ancient documents that acts in connection vnth such 
 documents or in reliance upon them should be proved or that acts 
 of modern enjoyment must be shown. The absence of such proof 
 affects the weight and not the admissibility of the evidence j'^ and 
 
 «5 Applegate v. Lexington Co., 117 U. S. 255. 
 
 soMeath v. Wincliester, 3 Blng. N. C. 201; Lygon v. Strutt, 2 Anstr. 601; 
 Potts V. Durant, 3 Anstr. 789, 2 Eag. & Y. 432. 
 
 81 Rees v. Walters, 3 M. & "W. 527. 
 
 08 Doe V. Pearce, 2 Moody & Rob. 249; Andrew v. Motley, 12 Com. B. N. 
 S. 526. See other Illustrations, Tayl. Ev. (lOth Ed.) § 662. 
 
 <>»Barl V. Lewis, 4 Esp. 1. 
 
 '0 Goodwin v. Jack, 62 Me. 414. CertiHoate of recording officers on 
 ancient deed to the effect that it was recorded received as a circumstance 
 to show genuineness, Applegate v. Lexington Mining Co., 117 U. S. 255. 
 
 TiMalcomson v. O'Dea, 10 H. L. Cas. 614; Clarkson v. Woodhouse, 3 
 Doug. 189; Rogers v. Allen, 1 Camp. 309; City of Boston v Richardson, 105 
 Mass. 357; Harlan v. Howard, 79 Ky. 373; Applegate v. Lexington Mining 
 Co., 117 U. S. 255; Barr. v. Gratz, 4 Wheat. 213; Havens v. Sea Shore Land 
 Co., 47 N. J. Eq. 365, elaborate discussion; Tayl. Ev. (10th Ed.) §§ 665, 666. 
 
390 THE LAW OF EVIDENCE. § 311 
 
 when proof of possession of the land under the instrument cannot 
 be given, and there is no evidence raising suspicion as to its genu- 
 ineness, such genuineness may be shown by other facts as well as 
 that of possession.'^ But when no such corroborating evidence is 
 given, the document should receive the closest scrutiny, especially 
 when produced to benefit those in whose custody it is found.'' 
 
 § 310 (314). Declarations must have been made before the con- 
 troversy arose. — ^Another important qualification of the rule we 
 have been considering by which evidence of reputation or common 
 fame is admitted, is that the declaration so received must have been 
 made before any controversy arose touching the matter to which 
 they relate, or as it is usually expressed, ante litem motam.''* The 
 inherent weakness of this class of testimony requires that it should 
 at best be received with considerable caution; and it has been 
 deemed a proper restriction that declarations of the character under 
 discussion should not be received at all, if there is any reason to be- 
 lieve that a controversy had been commenced, the existence of which 
 might prejudice the declarant or which might offer him any tempta- 
 tion to deceive. The court will not enter into any inquiry as to the 
 probable effect of such controversy;'"* it is enough that such con- 
 troversy existed. It need not be proved to have been known to the 
 declarant ; and even if the fact appear that the controversy was un- 
 known to him, the rule remains the same.'" As was said by Lord 
 Mansfield in the Berkeley peerage case :" " If an inquiry were to be 
 instituted in each instance whether the existence of the controversy 
 was or was not known at the time of the declaration, much time 
 would be wasted and great confusion would be produced." As 
 may be inferred from the statements already made, it is not neces- 
 sary that the controversy should have ripened into an action. 
 
 § 311 (315). Same — Meaning of the rule — Lis mota. — The term 
 lis mota is used in a broad sense and refers to the beginning of a 
 
 ■« Harlan v. Howard, 79 Ky. 373; Applegate v. Lexington Mining Co., 117 
 a. S. 255. 
 
 TSMalcomson v. O'Dea, 10 H. L. Cas. 593; Rogers v. Allen, 1 Camp. 309; 
 Tayl. Ev. UOth Ed.), §§ 658, 665. 
 
 ■7* Northrop v. Hale, 76 Me. 306, 49 Am. Rep. 615 ; Whitelock v. Baker, 
 13 Ves. 512; Barnum v. Barnum, 42 Md. 251; Rex v. Cotton, 3 Camp. 444; 
 Hodges V. Hodges, 106 N. C. 374; Westfeldt v. Adams, 131 N. C. 379, 42 S. 
 B. 823; Hamilton v. Smith, 74 Conn. 374, 50 Atl. 884; Com. v. Felch, 132 
 Mass. 22; Caujolle v. Ferrie, 23 N. Y. 90; 1 Greenl. Ev. § 131. 
 
 '0 Berkeley Peerage Case, 4 Camp. 417. 
 
 '8 Berkeley Peerage Case, 4 Camp. 417; Sheddon v. Atty. Gen., 30 L. X 
 (Pr. & Matt.) 217, 2 Swab. & T. 170. 
 
 TT Berkeley Peerage Case, 4 Camp. 417. 
 
§ 312 HEARSAY. 391 
 
 controversy or dispute, and not to the commencement of a suit. It 
 has sometimes been claimed that no actual controversy need have 
 arisen, but that the term Us mota means simply the arising of that 
 state of facts on which the claim is founded.'^' But by the weight 
 of authority it is held that there must be not only facts which may 
 lead to a dispute, but that there must be a suit, or a controversy 
 preparatory to a suit, upon the same subject matter as that involved 
 in the litigation." But if the subject in dispute at the time of the 
 trial was not in controversy when the declarations were made, they 
 are inadmissible, if otherwise competent. In other words, the con- 
 troversy, as used in this connection, must have related to the par- 
 ticular subject at issue in the trial. "Where the point in controversy 
 is foreign to that which was before controverted, there never has 
 been a lis mota, and consequently the objection does not apply. '^ 
 But the former controversy need not have been between the same 
 parties nor have related to the same property, if the same matters 
 were under discussion. ^'^ Although declarations of the character 
 under discussion must have been made before the lis mota, "they 
 will not be rejected in consequence of their having been made with 
 the express view of preventing disputes." ^^ Nor will they be re- 
 jected although they are made in direct support of the title of the 
 declarant, nor although the declarant stood in the same right with 
 the party relying on the declaration.*' The qualification that dec- 
 larations as to matters of public or general interest should have 
 been made before the controversy arose, applies with equal force 
 when declarations are offered in matters of pedigree. This appears 
 from the cases already cited, most of which relate to questions of 
 pedigree. 
 
 § 312 (316). Declarations as to pedigree — Reason for the ex- 
 ception. — The well known exception to the general rule excluding 
 hearsay, under which certain declarations of deceased persons may 
 be admitted in eases of pedigree, rests in part on the supposed ne- 
 
 78 Walker v. Beauchamp, 6 Car. & P. 552. 
 
 TsDavies v. Lowndes, 7 Scott N. R. 214, 6 Man. £ G. 528; Elliott v. 
 Piersol, 1 Peters, 328; Berkeley Peerage Case, 4 Camp. 401; Slaney v. 
 Wade, 1 Mylne & C. 338, 356. 
 
 80 Freeman v. Phillips, 4 Maule & S. 486. 
 
 81 "Berkeley Peerage Case, 4 Camp, 417; Sussex Peerage Case, 11 Clark & 
 P. 85, 99, 103; Tayl. Bv. (lOth Ed.), § 633. 
 
 82Tayl. Ev. (lOth Ed.), § 630. 
 
 83 Condensed from Tayl. Ev. (lOth Ed.), § 630; Berkeley Peerage Case, 4 
 Camp. 417; Doe ex dem. Jenkins v. Davies, 10 Q. B. 314; Caujolle v. Fe^- 
 rie, 23 N. Y. 91. 
 
392 THE LAW OF EVIDENCE. § 312 
 
 cessity of receiving such evidence to avoid a failure of justice, and 
 in part on the ground that individuals are generally supposed to 
 know and to be interested in those facts of family history about 
 which they converse, and that they are generally under little temp- 
 tation to state untruths in respect to such matters which might be 
 readily exposed.** Said Lord Chancellor Eldon: "Declarations in 
 the family, descriptions in wills, descriptions upon monuments, de- 
 scriptions in bibles and registry books, all are admitted upon the 
 principle that they are the natural efEusions of a party who must 
 know the truth and who speaks upon an occasion when his mind 
 stands in an even position^ without any temptation to exceed or fall 
 short of the truth. ' ' '" The declarations of deceased persons may 
 be received, subject to the qualifications hereafter named, when such 
 declarations refer to the age, relationship, birtJi, marriage, death 
 or legitimacy of persons legally related by blood or marriage to the 
 declarant. But the declarations must have been made before the 
 controversy in relation to which they are to be proved arose.*' The 
 declarations of persons connected by marriage are received since 
 they are more likely to be informed of the family of which they have 
 become members than a relative who is only distantly connected by 
 blood.*^ Although it was formerly considered doubtful whether the 
 declarations of serva7its and neighbors might not be received, the 
 rule is declared by nearly all the authorities that the deelarations 
 are confined to those made by legal relatives.^' The declarations 
 
 84 stark, Ev. 45; Best, Ev. (10th Ed.) § 498; Greenl. Ev. § 103. As to 
 family tradition see note, 12 L. R. A. 838. 
 
 85 Whitlocke v. Baker, 13 Ves. 514; People v. Pulton Ins. Co., 25 Wend. 
 222; Pulkerson v. Holmes, 117 U. S. 389. But see, Smith v. Geer (Tex. 
 Civ. App.), 30 S. W. 1108. 
 
 seNehrlng v. McMurrlan, 94 Tex. 45, 57 S. W. 943; People v. Fulton 
 Ins. Co., 25 Wend. 205. See § 311 supra. 
 
 87 Doe V. Randall, 2 Moo. & P. 25; Monkton v. Atty. Gen., 2 Russ. & M. 
 165; Slaney v. Wade, 7 Sim. 611, 1 Mylne & C. 355; Robson v. Atty. Gen., 
 10 Clark & F. 500; Davies v. Lowndes, 7 Scott N. R. 211, 6 Man. & Q. 
 525; Jewell v. Jewell, 1 How. 219; People v. Fulton Ins. Co., 25 Wend. 205. 
 
 88 Berkeley Peerage Case, 4 Camp. 401; Stein v. Bowman, 13 Peters 
 209; Conn. Mut. Life Ins. Co. v. Schwenk, 94 U. S. 593; Flora v. Anderson, 
 75 Fed. 217; Chapman v. Chapman, 2 Conn. 247, 7 Am. Dec. 277;. North- 
 rop v. Hale, 76 Me. 306, 49 Am. Rep. 615; Com. v. Felch, 132 Mass. 23; 
 Barnum v. Earnum, 43 Md. 251, 304; Jackson v. Browner, 18 Johns. 37; 
 CaujoUe v. Ferrie, 23 N. Y. 90; Backdahl v. Grand Lodge, 46 Minn. 61; 
 Boon V. Miller, 73 Tex. 557; Jackson v. Jackson, 80 Md. 176. See also, 
 Butrlck V. TUton, 155 Mass. 461, where declarations of a granddaughter 
 
§ 312 HEARSAY. 393 
 
 of the deceased parents as to the legitimacy or illegitimacy of their 
 own children are admissible.** But it has been held that the dec- 
 larations of a brother of the father of such children should be re- 
 jected on the ground that the declarant was not a legal relative."" 
 The declarations of a deceased person as to his own marriage" 
 and legitimacy "' have been received. But it has been said to be a 
 question of great doubt whether under any circumstances the dec- 
 larations of a deceased person in which he asserted his own illegiti- 
 macy can be received, except as an admission against himself and 
 those who claim under him by some title derived subsequently to 
 the declarations."' It has even been held, however, that declarations 
 as to time, place and residence are admissible to identify certain 
 persons as belonging to a certain family."* So far as Mood relations 
 are concerned the law does not seem to have limited the inquiry 
 within any particular degree of relationship, although the declara- 
 tions of very remote relatives might be entitled to very little 
 weight."" The dissolution of the marriage relation does not render 
 inadmissible declarations subsequently made by one of the parties."" 
 "Although there is some conflict in the eases, the weight of au- 
 thority seems to be that while a declarant must be shown by evi- 
 
 were received; Lewis v. Bergess, 22 Tex. 252, 54 S. W. 609, where declara- 
 tions of a stranger were aximitted. 
 
 8»As to legitimacy, Jackson v. Jackson, 80 Md. 176, 30 Atl. 752; Picken's 
 Estate, 163 Pa. St. 14, 29 Atl. 875; as to illegitimacy, Heaton's Estate, 
 135 Cal. 385, 67 Pac. 321;. Haddock v. Railway Co., 8 Allen, 298. So are 
 the declarations of foster parents, Alston v. Alston, 114 la. 29, 86 N. W. 55. 
 
 ooCrispini v. Doylioni, 3 Swab & T. 44; Northrop v. Hale, 76 Me. 312. 
 49 Am. Rep. 615. But declarations of mother's deceased sister received, 
 Northrop v. Hale, 76 Me. 306, 49 Am. Rep. 615; deceased husband's state- 
 ment as to legitimacy of his wife received, Vowles v. Young, 13 Ves. 140; 
 Doe V. Harvey, Ryan & M. 297 ; but the declarations of an illegitimate son 
 that his natural brother had died without issue were rejected, Doe v. 
 Barton, 2 Moody & Rob. 28; Doe v. Davies, 10 Q. B. 314. 
 
 oiEisenlord v. Clum, 126 N. Y. 552; Rex v. Brambley, 6 T. R. 330; Crau- 
 furd V. Blackburn, 17 Md. 49, 77 Am. Dec. 323; Washington v. Bank, 171 
 N. Y. 166, 63 N. E. 831. 
 
 »2 Procur. Gen. v. Williams, 31 L. J. (Prob. Mar. & Adm.) 157. 
 
 »3Rex V. Rish worth, 2 Q. B. 487; Procur. Gen. v. Williams, 31 L. J. 
 (Prob. Mar. & Adm.) 157; Tayl. Ev. (10th Ed.) § 637. 
 
 ■iiByers v. Wallace, 87 Tex. 503; Young v. State, 36 Ore. 417, 59 Pac. 812. 
 
 05 Davies v. Lowndes, 7 Scott N. R. 188; Shrewsbury Peerage Case, 7 
 H. L. Cas. 23; People v. Fulton Ins. Co., 25 Wend. 205; Buirick v. Tilton, 
 155 Mass. 461. See also, Byers v. Wallace, 87 Tex. 503. 
 
 96 Vowles v. Young, 13 Ves. 140; Doe ex dem. Northey v. Harvey, Ryan 
 & M. 297; Johnson v. Lawson, 2 Bing. 92, 9 Moore, 194. 
 
394 THE LAW OP EVIDENCE. § 313 
 
 dence aliunde to belong to the family, it does not appear to be nec- 
 essary to show that he belonged to the same branch of it." " 
 
 § 313 (317). Same — ^Declarant's relationship — How proved— 
 Particular facts. — The relationship of the declarant cannot be 
 proved by the declaration itself. There must be some independent 
 proof of this fact." Thus, the declarations as to the marriage which 
 constitutes the affinity of the declarant are not such evidence aliunde 
 as the law requires. In Doe v. Fuller, Chief Justice Best said: "If 
 there were no other evidence than the declarations of John to show 
 that James was a member of the family, they could not have been 
 received as that would be carrying the rule as to the admissibility 
 of hearsay evidence further than has been ever yet done, viz., to 
 allow a party to claim an alliance with a family by the bare asser- 
 tion of it. ' ' ®° This is a preliminary question for the judge to de- 
 termine.^ In cases where the relationship is difficult of proof, sligM 
 evidence may suffice.^ Nor need the exact degree of relationship be 
 proved ;' nor is it necessary that the declarant should name the per- 
 son from whom he obtained his information.* When the declara- 
 tions come from the proper source, that is, from legal relatives since 
 deceased, they are admissible although they consist of hearsay upon 
 hearsay. "Even general repute m. the family, proved by the testi- 
 mony of a surviving member of it, has been considered as faUing 
 within the rule. Moreover, it is not necessary to show that the dec- 
 larations were contemporaneous with the events to which they re- 
 late, for, as Lord Brougham has well observed, such a restriction 
 in pedigree 'would defeat the purpose for which hearsay is let in 
 by preventing it from ever going back beyond the lifetime of the 
 
 07 Sitler V. Gehr, 105 Pa. St. 277, 51 Am. Rep. 205; Robb's Estate, 37 S. C. 
 19, 16 S. B. 241; Mann v. Cavanaugb, 110 Ky. 776, 62 S. W. 854. 
 
 88 Berkeley Peerage Case, 4 Camp. 419; Rex v. All Saints, 7 Barn. & C. 
 789; Attorney General v. Coehler, 9 H. L. Cas. 660; Blackburn v. Craw- 
 tords, 3 Wall. 175; Thompson v. Wolf, 8 Ore. 454; Sitler v. Gehr, 105 Pa. 
 St. 577, 51 Am. Rep. 207; Fulkerson v. Holmes, 117 U. S. 389. Proof of 
 presence in the family has been held sufilcient. In re Heaton's Estate, 
 135 Cal. 385, 67 Pac. 321. But declarations showing that the claimant to 
 decedant's estate was related to declarant are admissible without other 
 proof of relationship, Malone v. Adams, 113 Ga. 791, 39 S. B. 507, 84 Am. 
 St. Rep. 259. 
 
 99 Doe V. Randall, 2 Moore & P. 22; Blackburn v. Crawfords, 3 Wall. 189. 
 
 1 Doe V. Davies, 11 Jur. 607. 
 
 2 Doe V. Randall, 2 Moore & P 20; Young v. Sheelenberg, 165 N. Y. 385, 
 59 N. E. 135, 80 Am. St. Rep. 730. 
 
 s Vowles V. Young, 13 Ves. 147. 
 4 Jewell V. Jewell, 1 How. 219, 
 
§ 313 HBABSAT. 395 
 
 person whose declaration is to be adduced in evidence ; ' and, to use 
 a homely illustration, it would even render inadmissible the state- 
 ment of a deceased person as to the maiden name of his own grand- 
 mother."" In eases of pedigree the declarations, to be admissible, 
 need not be part of the res gestae; if they were they would be ad- 
 missible on that ground irrespective of any question of their ad- 
 missibility as ia a case of pedigree." Nor need the declarations to 
 be admissible be upoii the knowledge of the declarant, as this re- 
 quirement would defeat the main object of permitting this class of 
 testimony.' In cases of pedigree the hearsay testimony is not con- 
 fined to ancient facts, but extends also to matters which have re- 
 cently transpired ; and is not to be rejected although there may be 
 living witnesses to the same fact.' As we have seen, when the in- 
 quiry relates to matters of public or general interest, statements 
 in regard to particular facts are excluded; and only declarations 
 as to general reputation are admitted. But in matters of pedigree 
 the reputation depends upon particular facts such as marriage, 
 birth or death ; and necessarily the hearsay of the family as to these 
 particular facts is admitted.* The times when any of these events 
 happened may be proved by the same kind of evidence.*' Thus, 
 such declarations were received to show the time of birth of a child 
 in the family,** and to show the relative seniority of three sons born 
 at one time.*" In England such declarations seem to be admitted, 
 if coming from the proper source, when they relate to the place at 
 which any such fact occurred.** But by the weight of authority in 
 this country the place of a person's birth or death cannot be proved 
 by hearsay evidence.** So hearsay is not admissible under this ex- 
 
 5 Tayl. Ev. (10th Ed.) | 639, and cases cited; Eaton v. Tallmadge, 24 
 Wis. 217. 
 
 8 Eisenlord v. Clum, 126 N. Y. 552. 
 
 'Bisenlord v. Clum, 126 N. Y. 552; Monkton v. Attorney Gen., 2 Russ. 
 & M. 147. 
 
 8 Eisenlord v. Clum, 126 N. Y. 552; Vowles v. Young, 13 Ves. 140. 
 
 9 Berkeley Peerage Case, 4 Camp. 415; Eisenlord v. Clum, 126 N. Y. 552; 
 Houlton V. Manteuffel, 51 Minn. 185; 1 Greenl. Ev. § 104. 
 
 10 Beatty v. Nail, 6 Ir. L. Reo. N. S. 17; Kidney v. Cockburn, 2 Russ. & 
 M. 168; Du Pont v. Davis, 30 Wis. 170. 
 
 11 Clements v. Hunt, 1 Jones L. (N. C.) 400. 
 iZ'Tayl. Ev. (10th Ed.) 644. 
 
 13 Steph. Ev. art. 31; Tayl. Ev. (10th Ed.) § 646. See Rex v. Erith, 8 East, 
 539, 542; Doe v. Griffin, 15 East, 293; Adams v. Swansea, 110 Mass. 591. 
 
 "Union v. PlainHeld, 39 Conn. 563; Greenfield v. Camden, 74 Me. 56; 
 Tyler v. Flanders, 57 N. H. 618; McCarty v. Terry, 7 Lans. (N. Y.) 236; 
 Wilmington v. Burlington, 4 Pick. 173; Brantree v. Higham. 1 Pick. 247. 
 
396 TflE LAW OF EVIDBN©B. § 314 
 
 ception to prove the legal status of a person, as that such person 
 wts a slave or a freeman,^" or that he was under guardianship.'* 
 
 § 314 (318). Are the declarations limited to cases where pedi- 
 gree is the direct subject of the suit? — By the weight of authority 
 a case is not necessarily one of pedigree because it may involve ques- 
 tions of birth, parentage, age or relationship. Where these ques- 
 tions are merely incidental, and the judgment will simply establish 
 a debt or a person's liability on a contract, or his proper settlement 
 as a pauper or other things of that nature, the case is not one of 
 pedigree, although, questions of marriage, legitimacy, death or birth 
 are incidentally inquired into.'' Mr. Taylor while approving the 
 statement that there appears to be no foundation for any distinction 
 between cases where a matter of pedigree is the direct subject of 
 the suit and other eases where it occurs incidentally said: "Yet the 
 declarations of relatives will not necessarily be admissible when- 
 ever the birth, marriage or death of a party forms the subject of 
 controversy; but such proof would seem to be confined to eases 
 which directly or indirectly involve some question of relationship, 
 and in which the fact sought to be established by hearsay is re- 
 quired to be proved for some genealogical purpose." '' Mr. Taylor 
 also cites the illustration, among others, that in proof of the plea 
 of infancy, hearsay is inadmissible ;'° and in an insurance case in 
 the supreme court of the United States where proof of age was of- 
 fered, but not for the purpose of showing parentage or descent, it 
 was held that no question- of pedigree was involved.^" But in some 
 jurisdictions the doctrine of the English cases on this subject was 
 rejected. Where the issue was upon the settlement of a pauper, 
 Bigelow, C. J. said: "Some of the authorities seem to limit the com- 
 
 But such declarations have been held admissible for the purpose of 
 identification, Young v. State, 36 Ore. 417, 59 Pac. 812; Wise v. Wynn, 59 
 Miss. 588, 42 Am. Rep. 381; Byers v. Wallace, 87 Tex. 502, 28 S. W. 1056. 
 
 15 Mima Queen v. Hepburn, 7 Cranch, 290. But in Vaughn v. Phebe, 1 
 Mart. & Y. (Tenn.) 1, 17 Am. Dec. 770, a person was allowed to establisli 
 his freedom. 
 
 "Jones V. Letcher, 13 B. Mon. (Ky.) 363. 
 
 " Eisenlord v. Clum, 126 N. Y. 552; Whlttuck v. Waters, 4 Car. & P. 375; 
 Haines v. Guthrie, 13 Q. B. Dlv. 818; People v. Mayne, 118 Cal. 516, 50 
 Pac. 554; Com. v. Pelch, 132 Mass. 22; State v. Marshall, 137 Mo. 463, 36 
 S. W. 619. Contra, Fidelity Mutual L. Ins. Co. v. Mettler, 185 U. S. 308. 
 
 isTayl. Ev. (10th Ed.) § 645; Shield v. Boucher, 1 De Gex & S. 40. 
 
 i»Figg V. Wedderburne, 6 Jur. 218; Haines v. Guthrie, 53 L. J. (Q. B.) 
 521. 
 
 20 Connecticut Life Ins. Co. v Schwenk, 94 U. S. 593. 
 
§ 315 HEARSAY. 397 
 
 petency of this species of proof to cases where the main subject of 
 inquiry relates to pedigree, and where the incidents of birth, mar- 
 riage and death, and the times when these events happened are di- 
 rectly put in issue. But upon principle we can see no reason for 
 such a limitation. If this evidence is admissible to prove such facts 
 at all, it is equally so in all cases whenever they become legitimate 
 subjects of judicial inquiry and investigation. We are, therefore, 
 of opinion that the rejection of the proof offered at the trial to es- 
 tablish the date of the death of a person who deceased more than 
 fifty years previously was erroneous.""^ This view has been 
 adopted in some other states in actions not relating to pedigree, most 
 frequently where the question of age or infancy was in issue.** 
 
 § 315 (319). Acts and conduct of relatives admissible as well 
 as declarations — Written declarations. — Thus far the discussion 
 has had reference to verbal declarations in matters of pedigree. But 
 the evidence of this character may also consist of proof of acts 
 showing the conduct of relatives and the mode of treatment of those 
 whose parentage or descent is in question. For instance, if a son 
 is treated in the family as a legitimate child "this amounts to a 
 daily assertion that the son is legitimate." *' On the other hand if 
 the birth of a child is concealed, and if it is never recognized in the 
 family as legitimate, these and other similar circumstances may be 
 shown in the same manner as verbal declarations."* So the giving 
 or withholding property may be a circumstance from which infer- 
 ences may fairly be drawn as to the question of relationship.'" On 
 the same principle written declarations have often been received in 
 matters of pedigree. When the proper foundation is laid by show- 
 ing that they are the statements of relatives since deceased, it makes 
 no difference so far as competency is concerned whether the entries 
 or writings have been made in the most formal and solemn manner 
 or whether they are of an informal character. Thus, solemn en- 
 
 21 North Brookfleld v. Warren, 16 Gray, 171, 175; Washington v. Bank, 
 171 N. Y. 166, 63 N. E. 831. 
 
 22Houlton v. Manteuffel, 51 Minn. 185, 53 N. W. 541; Watson v. Brews- 
 ter, 1 Pa. St. 381; Summerhill v. Darrow, 94 Tex. 71, 57 S. W. 942. > 
 
 28 Berkeley Peerage Case, 4 Camp. 416; Locklayer v. Locklayer (Ala.), 
 35 So. 1008. 
 
 2*Hargrave v. Hargrave, 2 Car. & K. 701; Goodright v. Saul, 4 T. R. 
 356; Morris v. Davies, 5 Clark & F. 163, 241; Banbury Peerage Case, 1 
 Sim. & St. 153; Reg. v. Mansfield, 1 Q. B. 444; Townshend Peerage Case, 
 10 Clark & P. 289; Atchley v. Sprigg, 33 L. J. (Ch.) 345. 
 
 26Robson V. Attorney General, 10 Clark & F. 498; Hungate v. Gascoigne, 
 2 Phill. 25, 2 Coop. 414; De Roos Peerage Case, 2 Coop. 540. 
 
398 THE LAW OP EVIDENCE. § 316 
 
 tries in the family bible made by a relative *° and letters of deceased 
 relatives containing statements as to family matters"' are admis- 
 sible on the same ground, although of course entitled to very differ- 
 ent degrees of credibility. .Other illustrations of written declar- 
 ations which have been admitted as to questions of pedigree are 
 entries made in almanacs,"* charts of pedigree "' or other books or 
 papers which mention births, marriages and deaths. Of the same 
 character are inscriptions on monuments, ^° recitals in wills "^ and 
 in deeds of conveyance,'" as well as in marriage settlements and cer- 
 tificates.'' 
 
 § 316 (320) . Same — Family recognition of writings and records. 
 — In the case of informal declarations of this character greater 
 strictness may be required in proving the handwriting than is nec- 
 essary in those more solemn statements which are contained in fam- 
 ily records.'* In general proof must he given that the entry in 
 question was made hy some member of the family or that it has been 
 recognized as genuine by members of the family.'^ "Where there is 
 no proof that the deed or other instrument has been executed or 
 recognized by a lawful relative, it will be rejected." This rule 
 has, however, been relaxed in respect to entries in the family hible 
 on the groimd that entries therein are presumed to be known to the 
 
 20 Berkeley Peerage Case, 4 Camp. 401; Weaver v. Leiman, 52 Md. 708. 
 See note 111 Am. St. Rep. 586-58S. 
 
 27 Kansas Ry. Co. v. Miller, 2 Colo. 460; State v. Joest, 51 Ind. 287. 
 
 28 Herbert v. Tuckal, T. Raym. 84. 
 
 29 Monkton v. Attorney General, 2 Russ. & M. 163. 
 
 30 Slaney v. Wade, 1 Mylne & C. 338; DeRoos Peerage Case, 2 Coop. 544; 
 Camoys Peerage Case, 6 Clark & F. 801. 
 
 31 Gaines v. New Orleans, 6 Wall. 642; Pearson v. Pearson, 46 Cal. 609; 
 Russell V. Jackson, 22 Wend. 277; Shuman v. Shuman, 27 Pa. St. 90; Neal 
 V. Wilding, 2 Str. 1151; DeRoos Peerage Case, 2 Coop. 541; Skeene v. 
 Fishback, 1 A. K. Marsh. (Ky.) 356; Summerhill v. Darrow, 94 Tex. 71, 
 57 S. W. 942. 
 
 32 Smith V. Tebbitt, L. R. 1 Pro. & D. 354, 36 L. J. (Pr. & Mat.) 35; Doe 
 V. Davies, 10 Q. B. 325; Jackson v. Cooley, 8 Johns. 128; Scharff v. Keener, 
 64 Pa. St. 376; Fulkerson v. Holmes, 117 U. S. 389. A recital in a deei 
 by deceased grantor that she is a "widow" is evidence as to the death of 
 her husband, Harman v. Stearns, 95 Va. 58, 27 S. B. 601. 
 
 33 Doe v. Davies, 10 Q. B. 314. Parish records ol baptism, Hancock v. 
 Supreme Council (N. J.), &2 Atl. 301. 
 
 3* Kansas Ry. Co. v. Miller, 2 Colo. 460. 
 
 36 Crawford & Lindsay Peerage Case, 2 H. L. Cas. 558; Hood v. Beau- 
 champ, 8 Sim. 26. 
 38 Slaney v. Wade, 1 Mylne & C. 338; Fort v. Clarke, 1 Russ. 604. 
 
§ 317 HEARSAY. 399 
 
 members of the family and to have been adopted as correct.'^ In a 
 memorable case the supreme court of the United States attached 
 great importance to a declaration in a will as to the legitimacy of a 
 child ;°' and it has been held that even a cancelled wiU, which was 
 never acted upon, might be admitted on proof that it came from the 
 custody of a descendant of the testator.'" On the same principle 
 inscriptions on tomb stones,*" family portraits,*^ rings " and other 
 family memorials have been long and frequently received as evi- 
 dence of the facts they recite ; and the courts hold that they are en- 
 titled to more or less weight according to the circumstances of the 
 case. Of course if the entries in family bibles are to be proved, un- 
 der the familiar rule the entries themselves are the best evidence.*' 
 § 317 (321). Weight of such testimony. — ^Doubtless in the ma- 
 jority of cases there is no motive for making false statements in in- 
 scriptions of this character, but the instances cited by Mr. Phillips 
 well illustrate the fact that even inscriptions on tomb stones are to 
 be received in evidence with due allowance for the errors to which 
 both carelessness and family pride contribute.** It is hardly neces- 
 sary to add that, while hearsay declarations as to pedigree in other 
 forms are admissible, and often valuable in the absence of other 
 evidence, it must be borne in mind that such declarations are sub- 
 ject to many of the objections which may be urged against other 
 hearsay evidence, and hence are to be received with considerable 
 caution. Family pride may have tempted the declarant to allege 
 or deny a relationship contrary to the fact; and although persons 
 may be presumed to know the facts connected with their own family 
 history, yet, as is well known, this presumption is often contrary 
 to the fact. Moreover, it is evident that prejudiced and unscrupu- 
 
 »7 Berkeley Peerage Case, 4 Camp. 421; Monkton v. Atty. Gen., 2 Russ. & 
 M. 162; Rex v. All Saints, 7 Barn. & C. 789; Greenleaf v. Railroad Co., 30 
 Iowa, 301; People v. Ratz, 115 Cal. 132, 46 Pac. 915; People v. Slater, 119 
 Cal. 620, 51 Pac. 957; Union Ins. Co. v. Pollard, 94 Va. 146, 26 S. B. 421. 
 
 88 Gaines v. New Orleans, 6 Wall. 642, 699. 
 
 8» Doe V. Pembroke, 11 East, 504. 
 
 <i>Butrick v. Tilton, 155 Mass. 461; Monkton v. Atty. Gen., 2 Russ & M. 
 162; Goodright v. Moss, 2 Cowp. 594. Before such declarations are re- 
 ceived there must be some proof of the identity of the person whose name 
 Is so inscribed, Gehr v. Fisher, 1'43 Pa. St. 311. 
 
 « Camoys Peerage Case, 6 Clark & F. 801. 
 
 42Vowles V. Young, 13 Ves. 144. 
 
 48McDeed v. McDeed, 67 111. 545; Kreitz v. Behrensmeyer, 125 111. 141, 
 17 N. E. 232. 
 
 "Phill. Ev. 222, notes; McGoon v. Irvine, 1 Pinn. (Wis.) 526. 
 
400 THE LAW OF EVIDENCB. § 319 
 
 lous witnesses can give their own coloring to the statements which 
 they claim to have heard from persons since deceased ; and that they 
 can do so with comparative impunity from exposure or punishment. 
 
 § 318 (322). Declarations only admissible after death of the 
 declarant. — ^It is evident from the discussion which has preceded 
 and the authorities cited that declarations are not admissible under 
 this exception to the general rule, unless it is shown that the de- 
 clarant is dead; hence it is incumbent upon him who offers testi- 
 mony of this character to prove the declarant's death." But when 
 this condition is complied -with, it is no objection to th^ competency 
 of the declarations that other persons are living who have the requi- 
 site knowledge, and who might be produced as witnesses. Although 
 this fact might afford an unfavorable inference, it would not ex- 
 clude legal testimony.*' As in the case of declarations respecting 
 matters of public or general interest, the declarations of deceased 
 relatives concerning pedigree will not be excluded, although they 
 were made for the purpose of preventing the question from aris- 
 ing." Nor will the declarations be excluded, if otherwise compe- 
 tent, although the declarant may have had an interest in the mat- 
 ters about which the declaration was made. This is a fact affecting 
 the weight and not the competency of the evidence.*' We have al- 
 ready discussed the rule, which is alike applicable in questions of 
 pedigree and in matters of public and general interest, that the 
 declarations must have been made, before the controversy arose.*' 
 This is the rule generally sustained by the authorities. 
 
 § 319 (323). Entries in the course of business by deceased per- 
 sons. — ^It has long been a settled rule of law both in England and 
 in this country that a minute or memorandum in writing, made at 
 the time when the fact it records took place, by a person since de- 
 ceased, in the ordinary course of his business, corroborated by other 
 circumstances which render it probable that the fact occurred, is 
 admissible in evidence."" Entries of this class are not received on 
 
 *»Pendrell v. Pendrell, 2 Str. 924; Butler v. Mountgarret, 6 Ir. L. Rec. 
 N. S. 77, 7 H. L. Cas. 633; Dupoyster v. Gagoni, 84 Ky. 403, In this last 
 case It was held that general repute of the claimant in the family may 
 be shown by the testimony of the surviving members of the family. 
 
 46 Butler V. Mountgarrett, 6 Ir. L. Rec. N. S. 77, 7 H. L. Cas. 633; 2 
 Phill. Ev. 212. 
 
 *7 Berkeley Peerage Case, 4 Camp. 401; Steph. Ev. art. 31. 
 
 «» Doe v. Davies. 10 Q. B. 325. 
 
 *» Elliott v. Plersol, 1 Peters, 328; Summerhlll v. Darrow, 94 Tex. 71, 57 
 S. W. 942. 
 
 BO Doe v. Turford, 3 Barn & Add. 898; Pitman v. Maddox, 2 Salk. 690; 
 Hagedorn t. Reed, 3 Camp. 379; Champneys v. Peck, 1 Stark, 404; Pritt T. 
 
§ 319 BIIABSAT. 401 
 
 the theory that they are declarations against the interest of the 
 person who made them, but on the ground that they were made in 
 the due course of business as part of the res gestae; and this is 
 deemed to afford sufficient presumption that the facts are as stated 
 in the memorandum."^ Said a learned judge: "What a man has 
 actually done and committed to writing when under obligation to 
 do the act, it being in the course of the business he has undertaken, 
 and he being dead, there seems to be no danger in submitting to the 
 consideration of the jury.'""' The entries to be thus admissible 
 should be contemporaneous with the act to be proved, that is within 
 so short a time thereafter as reasonably to be considered a part of 
 the transaction,"' in the due discharge of duty"* and by persons 
 having knowledge of the facts."" Such memoranda do not gener- 
 ally afford evidence, except as to those matters necessary to be re- 
 corded ;"* in other words, they are not evidence of collateral matters. 
 Thus, although the return of an officer, since deceased, was held ad- 
 missible to show that an arrest was made and also its date, yet such 
 certificate was deemed no evidence of the particular spot where the 
 arrest was made as it was no part of the officer's duty to state such 
 fact." 
 
 Falrclough, 3 Camp. 305; Price v. Torrington, 1 Salk. 285; 1 Smith L. C. 
 344; Nichols v. Webb. 8 Wheat, 326; Clarke v. Magruder, 2 Harr. & J. 
 (Md.) 77; Everly v. Bradford, 4 Ala. 371; Williamson v. Doe, 7 Blackf. 
 (Ind.) 12; Bank of Tenn. v. Smith, 9 B. Men. (Ky.) 609; Boston v. Wey- 
 mouth, 4 Cush. 538; Wheeler v. Walker, 45 N. H. 355; Bland v. Warren, 
 65 N. C. 372. A full discussion will be found in 1 Smith L. C. 567. See 
 also, extended note, 15 Am. Dec. 191. As to application of rule to particu- 
 lar records, see 5 Encyc. on Ev. 268-280. 
 
 01 Chambers v. Bernasconi, 1 Tyrw. 342, 4 Tyrw. 531; Welsh v. Barrett, 
 15 Mass. 380. 
 
 52 Welsh V. Barrett, 15 Mass. 380. 
 
 »3 Doe V. Turford, 3 Barn. & Adol. 897; Lassone v. Boston & L.. R. Ry. 
 Co. (N. H.), 24 Atl. 902; Poole v. Dlcas, 1 Bing. N. C. 654; Price v. 
 Torrington, 1 Salk. 235; Ray v. Jones, 2 Gale, 220; Ingraham v. Bockins, 9 
 Serg. & R. (Pa.) 285. 
 
 5* Lloyd V. Wait, 1 Phil. 61; Chambers v. Bernasconi, 1 Tyrw. 342, 4 
 Tyrw. 531; Doe ex dem. Patteshall v. Turford, 3 Barn. & Adol. 890; Smith 
 V. Blakey, L. R. 2 Q. B. 232. 
 
 05 Chaffee v. United States, 18 Wall. 516; Lewis v. Kramer, 3 Md. 365; 
 Smith V. Lane, 12 Serg. & R. (Pa.) 80. 
 
 86 Chambers v. Bernasconi, 1 Tyrw, 342, 4 Tyrw. 531. 
 
 »7 Chambers v. Bernasconi, 1 Tyrw. 342, 4 Tyrw. 531. The rule 
 Idas been applied to entries made by deceased clerks and agents in 
 the sale of goods ■ or other regular course of business, NlchoUs v. 
 Webb, 8 v^heat. 326; James v. Wharton, 3 McLean (U. S.) 492; Hodge 
 V. Higgs, 2 Cranch C. C. 552; Jones v. Howard, 3 Allen, 223; Livingston 
 
402 THE LAW OP EVIDENCE. § 320 
 
 § 320 (324). Same — Principle extended to declarations by per- 
 sons still living. — ^It will be noticed from some of the illustrations 
 above cited that under this principle entries may be admitted, al- 
 though there is no absolute duty to make such entries. "It is suf- 
 ficient if the entry was the natural concomitant of the transaction 
 to which it relates and usually accompanies it.""' Of course the 
 handwriting of the person who made the entries must be proved."' 
 Although the rule has generally been applied where the person who 
 made the entries was since deeased, entries of the character under 
 discussion made by one who has since become insane have been ad- 
 mitted."" In some of the states entries of this class have been held 
 admissible on proof that the person by whom they were made is be- 
 
 V. Tyler, 14 Conn. 493; Palmer v. Maddox, 1 Ld. Raym. 732; Price v. 
 Earl of Tarrington, 2 Ld. Raym. 873; Prltt v. Fairclough, 3 Camp. 305; 
 entries by deceased notaries to prove such acts as presentment, demand 
 and notice of non-payment, Halliday v. Martinett, 20 Johns, 168, 11 Am. 
 Dec. 262; Porter v. Judson, 1 Gray, 175; Nlcholls v. Webb, 8 "Wheat. 326; 
 Poole V. Dlcas, 1 Bing. N. C. 649; Gawtry v. Doane, 51 N. Y. 84; by 
 attorneys in their dockets of the issuing of executions or other process, 
 Leland v. Cameron, 31 N. Y. 115; by magistrates as to the acljnowledge- 
 ment of deeds, Nourse v. McKay, 2 Rawle (Pa.) 70; by surveyors and 
 deputy surveyors containing results of their labors. Walker v. Curtis, 
 116 Mass. 98; receipts by sheriffs or other officers since deceased for 
 the payment of money, Livingston v. Arnoux, 56 N. Y. 518; entries in 
 insurance agents' register of policies, Roberts v. Rice, 69 N. H. 472, 45 Atl. 
 237; books of a bank showing the receipt and payment of money In a 
 controversy with a depositor. Union Bank v Knapp, 3 Pick. 96, 15 Am. 
 Dec. 181; entries in time book of teaming done, Dickens v. Winters, 169 
 Pa. 12G, 32 Atl. 289; private entries of officers containing memoranda of 
 offloial acts, Linthieum v. Remington, 5 Cranch C. 0. 546; Reg. v. Bucltley, 
 13 Cox C. P. 293; weather records kept at an asylum. Hart v. Walker, 100 
 Mich. 406, 59 N. W. 174; and entries by clergymen of a record of baptism, 
 Kennedy v. Doyle, 10 Allen, 161. In an action between third parties 
 charges in the day book of a physician for a surgical operation were ad- 
 mitted where it became material to show the date of such operation, 
 Augusta V. Windsor, 19 Me. 317; and the account book of a deceased • 
 mechanic has been received to "show the character and extent of the in- 
 juries to a wagon wheel' alleged to have been caused by a collision with 
 defendant's locomotive, Lassone v. Boston & L. R. Ry. Co. (N. H.), 24 Atl. 
 902, in which the subject is fully discussed and piany cases are cited. 
 
 68 Fisher v. Mayor, 67 N. Y. 73; Leland v. Cameron, 31 N. Y. 115; Nourse 
 V. McKay, 2 Rawle (Pa.) 70; Costello v. Crowell, 133 Mass. 352. 
 
 69 Chaffee v. United States, 18 Wall. 516; Union Bank v. Knapp, 3 Pick. 
 96, 15 Am. Deo. 181. 
 
 eo Holbrook v. Gay, 6 Cush. 215 ; Union Bank v. Knapp, 3 Pick. 96, IB 
 Am. Dec. 181; Bridgewater v. Roxbury, 54 Conn. 217, 6 Atl. 415^ 
 
§ 321 HEARSAY. 403 
 
 yond the jurisdiction of the court, as where he is out of the state,'* 
 while in other states the rule has not been extended beyond the 
 eases where the person maldng the entry was dead."'' The principle 
 under discussion has, however, been extended and applied in the 
 United States to eases where the person making the entries is still 
 living and authenticates the entries by his oath. But such entries 
 are not admissible in the life time of the one making them, unless 
 they would have been admissible after his death on proof of his 
 handwriting.'^ 
 
 § 321 (325). Recollection of the fact by the person making the 
 entry. — In such cases as those discussed in the last section, it is 
 not necessary that the witness should remember the facts recorded 
 in the memoranda, if the other conditions are complied with. When 
 properly authenticated, the memoranda themselves constitute evi- 
 dence, although the witness has no recollection on the subject, and 
 even though his memory is not refreshed by such memoranda.'* 
 Thus, where a bank kept a book in which a clerk regularly made 
 memoranda of notices given by him to indorsers, and the clerk testi- 
 fied that it was his practice to give the notices personally and that he 
 had no doubt they were given as usual, although he could not recol- 
 lect the fact, the book was admitted to prove a notice mentioned 
 therein.'" Said Justice Shaw: "It is very obvious to remark that, 
 if su.eh evidence is not sufficient, it would be extremely difficult to 
 prove such acts done. Where bank messengers, notaries and such 
 official persons do hundreds and thousands of such acts every year, 
 it would be contrary to all human experience to believe that they 
 could recall the recollection of each by force of present memory, 
 
 eiElms v. Chevis, 2 McCord (S. C.) 349; Regly v. Logan, 45 S. C. 651, 
 24 S. E. 56; Reynolds v. Manning, 15 Md. 523; Alter v. Berghaus, 8 Watts 
 (Pa.) 77; Sterrett v. Bull, 1 Binn. (Pa.) 234; Grouse v. Miller, 10 Serg. & 
 R. (Pa.) 155; New Haven Co. v. Goodwin, 42 Conn. 230; Heiskell v. Rol- 
 lins, 82 Md. 14, 33 Atl. 263, 51 Am. St. Rep. 455; Union Bank v. Knapp, 3 
 Pick. 96, 15 Am. Dec. 181; Holbrook v. Gay, 6 Cush. 216; McDonald v. 
 Games, 90 Ala. 147, 7 So. 919; Cameron Lumber Co. v. Somerville, 129 
 Mich. 532, 89 N. W. 346. 
 
 «2 Brewster v. Doane, 2 Hill, 537; Moore v. Andrews, 5 Port. (Ala.) 107; 
 Little Rock Granite Go. v. Dallas County, 66 Fed. 522. 
 
 «3 Bank of Monroe v. Culver, 2 Hill, 532 ; Spann v. Baltzell, 1 Fla. 302, 
 46 Am. Dec. 346; Farmers Bank v. Boraef, 1 Rawle (Pa.) 152; Shove v. 
 Wiley, 18 Pick. 558; Sickles v. Mather, 20 Wend. 72, 32 Am. Dec. 521; 
 Redden v. Spruance, 4 Har. (Del.) 265; Underwood y. Parrott, 2 Tex. 168. 
 
 8* See the cases cited in note 63. 
 
 es Shove T. Wiley, 18 Pi(!k. 558. As to books of account In general, see 
 SS 667, et seq. infra. 
 
404 THE LAW OF EVIDENCB. § 322 
 
 even after looldng at a written memorandum ; but the witness may- 
 testify to other facts which, with the aid of a memorandum, will 
 afford a very satisfactory inference that the act was done ; such as 
 his usual practice and habit, his caution never to make such memo- 
 randa, unless such acts were done and his consciousness of the im- 
 portance and necessity of accuracy in this particular. In this re- 
 spect it is like the testimony of an attesting witness to an instru- 
 ment. He recognizes his handwriting, he knows he put his hand 
 there, he testifies that he believes he would not have put it there if 
 he had not seen the instrument executed, but he has no present rec- 
 ollection of the fact other than that derived from the recognition 
 of his handwriting. Such evidence, we think, it is every day's prac- 
 tice to admit and, if not controlled by other evidence, a jury might 
 and ought to infer from it the fact of execution. ' ' "" 
 
 § 322 (326). Entries by a party himself. — ^In the cases cited 
 under the preceding section to illustrate the reception of this class 
 of evidence; the entries were made by third persons having no in- 
 terest in the transactions. But the authorities seem agreed on the 
 proposition that entries made by the parties themselves are admissi- 
 ble on the ground that they are a part of the res gestae, and not on 
 the ground that they are made by disinterested persons. It would 
 seem to follow that entries of this class are admissible, although 
 made by a person in respect to his own business or by one otherwise 
 interested ; but of course the weight to be given to the entry might 
 depend very greatly upon the interest or motive of the person mak- 
 ing the entry.*' Accordingly we find that long before statutes were 
 enacted allowing parties to testify generally in their own behalf, 
 the practice came to prevail of allowing parties by their own testi- 
 mony to verify their boolcs of account. Although the practice was 
 conceded to be repugnant to general common law principles, it was 
 sustained on grounds of necessity."' If the person who made the 
 entry be still living, though out of the state, he must be called or his 
 deposition taken."" It is a sufficient authentication, if the witness 
 
 ee Shove v. Wiley, 18 Pick. 561; Costello v. Crowell, 133 Mass. 352. 
 
 «7 1 Greenl. Ev. § 120. See note, 15 Am. Dec. 191. 
 
 88 Sheehan v. Hennessey, 65 N. H. 101; Eastman v. Moulton, 3 N. H. 
 156; Goodyear v. Bradley, 1 Day (Conn.) 104; Foster v. Sinkler, 1 Bay 
 (S. C.) 40; Pratt v. White, 132 Mass. 477; Poultney v. Ross, 1 Dall. 238. 
 
 8» Chaffee v. United States, 18 Wall. 541; Brewster v. Doane, 2 Hill, 537; 
 Wilbur V. Seldon, 6 Cow. 162; Merrill v. Ithaca & O. Ry. Co., 16 Wend. 
 586, 30 Am. Dec. 130; Pratt v. White, 132 Mass. 477. See note, 15 Am. 
 Deo. 193. 
 
§ 323 HEAESAT. 405 
 
 states nnder oath that the entries were made in the re^ar course 
 of business, and that they were correct and made at the time they 
 purport to have been made.''* Under the statutes which now exist 
 permitting the use of books of account it seldom becomes necessary 
 to rely upon this exception to the hearsay rule. The use of account 
 books as evidence under statutes is elsewhere discussed.^^ 
 
 § 323(327). Declarations of deceased persons against interest- 
 In general. — ^In several of the preceding sections the discussion 
 has related to the admissibility of declarations or entries made in 
 the regular course of business and as part of the res gestae. In an- 
 other chapter we discussed the admissibility of declarations of par- 
 ties and those identified in interest with parties, that is, admissions. 
 We now come to the consideration of an entirely different class of 
 declarations which should not be confused with those already men- 
 tioned; namely, declarations made by strangers, that is, by persons 
 not in privily with the parties to the suit ; declarations which are 
 not necessarily made in the regular course of business, but which are 
 received on the ground that they were against the interest of such 
 stranger and irrespective of the fact whether any privity exists be- 
 tween the person who made them and the party against whom they 
 are offered. It has long been settled as one of the exceptions to the 
 general rule excluding hearsay, that the declarations of persons 
 since deceased are admissible in evidence, provided the declarant 
 had peculiar means of knowing the matter stated, if he had no in- 
 terest to misrepresent it and if it was opposed to his pecuniary or 
 proprietary interest."" Thus, in a leading case on the subject an 
 entry of a charge for services made in a ledger on a cei-tain day by 
 a man-midwife for attendance upon a woman when she was deliv- 
 ered of a child was admitted as evidence to show the age of such 
 child." It is a fair presumption that men will neither falsify ac- 
 counts nor commit mistakes, when such falsehoods or mistakes 
 
 T» Shove V. Wiley, 18 Pick. 558; Moots v. State, 21 Ohio St. 653. 
 
 Ti See §§ 567 et seq. infra. 
 
 72Higham v. Rldgeway, 1 Bast, 109; 2 Smith L. C. 361; Gleadow v. 
 Atkin, 1 Cromp. & M. 423; Livingston v. Arnoux, 56 N. Y. 507; Sussex 
 Peerage Case, 11 Clark & F. 85; Middleton v. Melton, 10 Barn. & C. 317; 
 Bowen v. Chase, 98 U. S. 254; Taylor v. Gould, 57 Pa. St. 152; Chenango 
 Bridge Co. v. Paige, 83 N. Y. 178; Scott v. Crouch, 24 Utah, 377, 67 Pic. 
 1068; Bartlett v. Patton, 33 W. Va. 71; Hart v. Kendall, 82 Ala. 144; 1 
 Phil. Ev. 293; 1 Greenl. Ev. §§ 147, 148; Steph. Ev. art. 28. 
 
 TsHlgham v. Ridgeway, 1 East, 109: 2 Smith L. C. (8th Ed.) 361 and val- 
 uable notes; Smith v. State (Tex. Crlm. App.), 73 S. W. 401. 
 
406 THE LAW OF EVIDENCE. § 324 
 
 would be prejudicial to their own pecuniary interests. This con- 
 sideration together with the facts that the declaration is not admis- 
 sihle during the life time of the author ; that any fraudulent motive 
 for making the statement may be shown, and that such declarations 
 are frequently the only mode of proof available, are deemed of suf- 
 ficient force to justify the admission of such declarations, although 
 the sanction of an oath and the test of cross-examination are want- 
 ing.'* It is not enough to warrant the admission of declarations 
 against interest that the person who made them cannot be pro- 
 duced as a witness, Ms death must he shown.''^ In a case where the 
 declarant had had an apoplectic fit and was said to be in extremis, 
 Lord BUenborough rejected the statement, sajang: "No case has 
 gone so far and I am afraid to establish a precedent. It is difiS- 
 cult to determine when a patient is past all hopes of cure. If such 
 a relaxation of the rules of evidence were permitted, there would 
 be sudden indispositions and recoveries. " '^ 
 
 § 324 (327) . Same — The declaration must be against pecuniary 
 or proprietary interest. — It is well settled that the declaration 
 must be against the pecuniary or proprietary interest of the declar- 
 ant. This was illustrated in a celebrated case where, for the pur- 
 pose of proving a marriage, the statements of a clergyman, since 
 deceased, who had performed the ceremony at Rome were offered in 
 evidence on the theory that they were against his interest, since they 
 were admissions that he had violated a statute and exposed himself 
 to a prosecution for penalties. But such statements were rejected 
 on the ground that the interest of the declarant was not a pecuniary 
 interest within the meaning of the rule. Said Lord Broughham: 
 "To say, if a man should confess a felony for which he would be 
 liable to prosecution, that therefore the instant the grave closes 
 over him all that was said by him is to be taken as evidence in 
 every action and prosecution against another person is one of the 
 
 7*1 Phill. Ev. 294; 1 Greenl. Ev. § 148; Mahaska Co. & Ingalls, 16 la. 
 81, Important case, full discussion; Quinby v. Ayres (Neb.), 95 N. W. 464, 
 to prove insolvency; Germanla Ins. Co. v. Bartlett, 188 111. 165, 58 N. B. 
 1075, to prove Indebtedness and that declarant was trustee; Keesling v. 
 Powell, 149 Ind. 372, 49 N. E. 265. 
 
 T5 Phillips v. Cole, 10 Adol. & Ell. 106; Sparge v. Brown, 9 Barn. & C. 
 935; Smith v. Whittingham, 6 Car. & P. 78; Currier v. Gale, 14 Gray, 504, 
 77 Am. Dec. 343; Rand v. Dodge, 17 N. H. 343. But see, Harriman v. 
 Brown, 8 Leigh (Va.) 697. In Griffith v. Sauls, 77 Tex. 630, the declara- 
 tion was received where the witness was incapacitated to testify. 
 
 78 Harrison v. Blades, 3 Camp. 458. See Mahaska v. Ingalls, 16 la. 81; 
 Jones v. Henry, 84 N. C. 320. 
 
§ 325 HEARSAY. 407 
 
 most monstrous and untenable propositions that can be ad- 
 vanced.'"' Many cases might be cited in which confessions of 
 persons since deceased have been excluded." Although most of the 
 eases illustrating the rule are those in which the declarations re- 
 lated to the payment of money, the rule has been frequently de- 
 clared where other issues " were involved, and when the effect of 
 the declaration would be to furnish evidence of facts which could 
 be made the basis of a pecuniary claim against declarant: for ex- 
 ample when the facts showed actionable negligence on the part of 
 declarant, or when the statement tended to cut down or limit the 
 interest of the declarant in land..''" 
 
 § 325 (328). Sufficient if the entries are prima facie against in- 
 terest. — If the entries are %)rim,a facie against the interest of the 
 declarant, it is sufficient to render such entries admissible, even if 
 taken in connection with other entries they may seem to operate in 
 his favor.*^ Thus, the entries will not be rejected although they not 
 only include the receipt of moneys by the declarant, but form a 
 part of a general debtor and creditor account where the halance is 
 in favor of the person making the entries; in other words, if the 
 entry charges the one making it with liability, it is admissible, 
 although other entries in the same book may whoUy discharge him 
 from liability.'^ It has been urged in such cases as an objection that 
 
 17 Sussex Peerage Case, 11 Clark & F. 85; Davis v. Lloyd, 1 Car. ft K. 
 276; Bartlett v. Patton, 33 "W. Va. 71; Hosford v. Rows, 41 Minn. 247; 
 Smith V. Blakey, L. R. 2 Q. B. 326, interest held too remote. 
 
 '8 People V. Hall, 94 Cal. 595, 30 Pac. 7; Com. v. Chance, 174 Mass. 245, 
 54 N. E. 551; State v. Young, 107 La. 618, 31 So. 993; as to bastardy, Ben- 
 ton V. Starr, 58 Conn. 285, 20 Atl. 450; Farrell v. "Weltz. 160 Mass. 288, 
 35 N. E. 783; abortion, Hauk v. State, 148 Ind. 238, 46 N. E 127; murder. 
 State V. Sale, 119 la. 1, 92 N. "W. 680, 95 N. W. 193; State v. Fletcher, 24 
 Or. 295, 33 Pac. 575; perjury, Reavis v. State, 6 Wyo. 240, 44 Pac. 62. 
 
 7» Halvorsen v. Moon & Kerr L. W., 87 Minn. 18, 91 N. W. 28, 94 Am. St 
 Rep. 667; State v. Alcorn, 7 Ida. 599, 64 Pac. 1014; Walker v. Brantner, 59 
 Kan. 117, 52 Pac. 80. See, Georgia R. £ B. Co. v. Fitzgerald, 108 Ga. 507, 
 34 S. B. 316. 
 
 80 Lyon v. Ricker, 141 N. Y. 225, 36 N. B. 189; Walsh v. Wheelright, 96 
 Me. 174, 52 Atl. 649; Lamar v. Pearre, 90 Ga. 377, 17 S. B. 92; Bird v. 
 Bird, 216 111. 158, 75 N. B. 760; Dixon v. Union Iron Works, 90 Minn. 492, 
 97 N. W. 375; Scott V. Crouch, 24 Utah, 377, 67 Pac. 1068: Halvorsen v. 
 Moon & Kerr Lumber Co., 87 Minn. 18, 91 N. W. 28, 94 Am. St. Rep. 667. 
 
 81 Taylor v. Witham, 3 Ch. Div. 605, 24 W R. 877; Raines v. Raines, 30 
 Ala. 428. 
 
 82Rowe v. Brenton, 3 Moody & Rob. 267; Williams v. Geaves, 8 Car. & P. 
 592; Clark v. Wilmot, 1 Younge & C. Ch. 53; .Steph. Bv. art. 28; Masse- 
 
408 THE liAW OF EVIDEJ^CE, § 327 
 
 the declaration is the sole evidence of the demand, and that to ad- 
 mit such declarations might lead to the fabrication of evidence. But 
 it is answered that in such case "in an action brought against the 
 receiver by his employer, the entry would be evidence against him 
 and the jury might, if they thought proper or if evidence tending 
 to that conclusion were produced, believe the part in which he 
 charged himself with the receipt of moneys and disbelieve the part 
 which went to his discharge. ^' '' Moreover men are not likely to 
 charge themselves for the purpose of getting a discharge.** 
 
 § 326 (329). Same— Evidence of collateral facts.— There is a 
 distinction between declarations against interest and the declarations 
 of deceased persons made in the course of business ; which is that the 
 former may furnish evidence of collateral matters forming part of 
 the declaration which are relevant to the issue, although such col- 
 lateral matters in themselves are not against the interest of the de- 
 clarant." This rule was illustrated in a case where one entry ad- 
 mitted the payment of money and another, referring to the former, 
 alleged a custom, and both entries were received ; '° and in another 
 case two separate entries were admitted, the one showing a receipt 
 of money by the declarant from his employer, and the other that, in 
 the discharge of duty, he had made a tender of such money to an- 
 other party." But the collateral or independent facts thus stated 
 must be part of the same entry, or referred to in it, or necessary to 
 explain it.*' 
 
 § 327 (330). Rule when the declaration is made by an agent.— 
 When the entry purports to have been made by a person acting 
 as agent for another, or in some other special capacity, there should 
 be some proof of the agency or other special relation as a pre-requi- 
 site to the admission of the entry.** Although if the declaration is 
 
 Feltan Lmnber Co. v. Sirmans, 122 Ga. 297, 50 S. E. 92. When the 
 declarations or entries are equally balanced, the whole will be excluded, 
 Freeman V. Brewster, 93 Ga. 648, 21 S. E. 165. 
 
 83 2 Smith L. C. (8th Ed.) 374 note. See §§ 293, 294 supra. 
 
 84Rowe V. Brenton, 3 Moody & Rob. 288; 2 Smith L. C. (8th Ed.) 374. 
 
 »= Reg. V. Birmingham, 1 Best & Smith, 768; Stead v. Keaton, 4 T. R. 669. 
 Marks v. Lahee, 3 Bing. N. C. 408; Milne v. Leisler, 7 Hurl. & N. 786; 
 Davies v. Humphrey. 6 M. & W. 153; Livingtson v. Arnoux, 56 N. Y. 507. 
 
 «« Stead V. Heaton, 4 T. R. 669. 
 
 87 Marks v. Lahee, 3 Bing. N. C. 408. 
 
 88 Doe ex dem. Kinglake v. Bevess, 7 C. B. 456; Livingston v. Arnoux, 
 56 N. Y. 507; Steph. Ev. art. 28. 
 
 80 Short V. Lee, 2 Jac. & W. 467; Doe v. Stacey, 6 Car. & P. 139; Bradley 
 T. James, 13 C. B. 822; Baron de Rutzen v. Farr, 4 Adol. & Ell. 53,, 5 Nev. &• 
 
§ 328 HEARSAY. 409 
 
 made in the course of public and official employment, it will be pre- 
 sumed that the acting officer had proper authority ; '" and if the 
 entries are ancient and came from the proper custody, it will be 
 presumed from slight proof that the person making them acted in 
 the capacity which he assumed, espeeiallyif the books themselves 
 have the appearance of genuineness."^ "Where the book comes from 
 the proper custody after thirty years have passed, the handwrit- 
 ing need not be proved."^ It is not necessary that the entries should 
 have been personally made by the party charged with liability, or 
 signed by him."' It is sufficient, if it is shown that they were writ- 
 ten by his agent or by another person, and adopted or sanctioned 
 by him.** It is not a condition to the admission of entries of this 
 class that they must be made in the regular course of business, hence 
 they need not he contemporaneous with the act recorded.®" 
 
 § 328 (331). Declarant need not have actual knovrledge of the 
 transaction. — Although it has sometimes been assumed that actual 
 knowledge on the part of the declarant of the facts recorded is a 
 necessary condition, it seems to be settled that the person charged 
 with liability need not have actual knowledge of the ttansactions. 
 Thus, where a person was liable to his employers for the amount of 
 merchandise received, and he made his entries, not on personal 
 knowledge, but upon reports made to him by others, it was held 
 that such entries were admissible against all persons and that, al- 
 though he gained his information by hearsay, this fact affected not 
 the admissibility, but only the weight of the testimony."' Nor is it 
 necessary to the admissibility of such declarations that the declar- 
 ant should have been a competent witness, if living.'^'' 
 
 Mac. 617; 1 Greenl. Bv. § 154. The agency cannot be proved by the dec- 
 laration of the agent, Larson v. Centennial Mill Co., 40 Wash. 224, 82 
 Pac. 294. 
 
 80 Short V. Lee, 2 Jac. & W. 467; 1 Greenl. Ev. § 1B4. 
 
 siDoe V. Thynne, 10 East, 206; Brune v. Thompson, Car. & M. 34; Mayor 
 v. Warren, 5 Q. B. 773; Doe v. Michael, 17 Q. B. 276; Attorney General v. 
 Stephens, 1 Kay & J. 740. 
 
 82 Wynne v. Tyrwhltt, 4 Bam. & Aid. 376. See § 531 infra. 
 
 08 Rowe V. Brenton, 3 Moody & Rob. 267; Doe v. Colcombe, Car. & M. 155; 
 Doe V. Stacey, 6 Car. & P. 139 ; Bradley v. James, 13 C. B. 822. 
 
 84 Doe V. Stacey, 6 Car. & P. 139; Bradley v. James, 13 C. B. 822; Doe v. 
 Hawkins, 1 Gale & D. 551; Doe v. Mobbs, Car. & M. 1; Mayor v. Warren, 5 
 Q. B. 773; Attorney Gen. v. Stephens, 1 Kay & J. 740. 
 
 »B Doe v. Turford, 3 Barn. & Adol. 890; Short v. Lee, 2 Jac. & W. 475. 
 
 86 Crease v. Barrett, 1 Cromp., M. & R. 295. 
 
 •TDoe V. Robson, 15 East, 32; Short v. Lee, 2 Jac. & W. 464; Gleadow v. 
 Atkln, 1 Cromp. & M. 410; Middleton v. Melton, 10 Barn. & C. 317. 
 
410 THE LAW OP EVIDENCB. § 330 
 
 § 329 (332). Such declarations inadmissible to prove contracts. 
 
 — Although it may suffice if the entry shows only a prima facie 
 liability on the part of the declarant, yet the entry is not admissible 
 where it merely shows a contract and consequent mutual obliga- 
 tions. In speaking of- an entry recording an informal agreement 
 for labor, it was said by Lord Coleridge: "This was not an entry 
 against the party's interest, unless the mere making of a contract 
 be' so, and if that were the case, the existence of a contract would be 
 against the interest of both parties to it. " "^ In such cases it is to 
 be presumed that the agreement is on fair and equitable terms, and 
 not to the disadvantage of either party.°° It is on the same ground 
 that declarations by a person that he had made a will, or that he 
 had not executed a will, or that he had revoked his will are not 
 admissible on the principle under discussion. They are not in gen- 
 eral regarded as declarations against interest since the acts to which 
 the declarations relate and the consequences of such acts are wholly 
 within the control of the person whose declaration is in question; 
 and it cannot be presumed that the acts are prejudicial to himself. 
 If he has made a will, he can revoke it at pleasure or make another. 
 If he has not executed a will, he can do so whenever he may deem it 
 best.^ But under peculiar facts it was held that the declarations 
 of one who made an antenuptial agreement with his wife making 
 a provision for her which was less than her dower interest might 
 be received as against the interest of the declarant, when they were 
 to the effect that such agreement had been annulled." 
 
 § 330 (333). General rules on the subject. — There is no particu- 
 lar limitation as to the form of the declaration. It may be in public 
 or private writings or hooks.^ Although the statement has often 
 been made that the declaration must be written, and although in 
 most of the cases the declaration has been in that form, yet by the 
 clear weight of authority it may consist of mere verial statements, 
 if the other conditions are complied with. These are matters which 
 affect the weight rather than the admissibility of the evidence. 
 The legal incidents of the declaration are the same, whether it is 
 
 88 Reg. V. Worth, i Q. B. 132, 139. 
 9» See case last cited. 
 
 1 Hosford v. Rowe, 41 Minn. 245. As to declarations of testator In gen- 
 eral, see §§ 482 et seq. infra. 
 
 2 See case last cited. 
 
 8 1 Greenl. Ev. § 150 and cases; Clapp v. Engledow, 72 Tex. 252, Inven- 
 tory; Bingham v. Hiland, 53 Hun. (N. Y.) 631, bank reports. But in Fram- 
 ingham Manfg. Co. v. Barnard, 2 Pick. 532, letters were refused admission. 
 
§ 331 HEARSAY. 411 
 
 oral or in writing.* By the weight of authority an entry charging 
 liability on the part of the declarant is admissible, although such 
 entry is the only evidence of the charge of which it shows the sub- 
 sequent liqiiidation.'^ In order to be admissible the declaration 
 must have been made while the interest continued." The fact to be 
 proved need not be expressly stated. Several cases are illustrations 
 of the principle that the main fact to be proved may be inferred 
 from the facts stated. Thus, an entry of payment for drawing a 
 paper was admitted to prove that the paper was really executed 
 subsequent to the time it bore date; ^ and entries of payment for 
 rentals, made by agents, have been received as evidence establishing 
 the right to property in behalf of the principal.' So if there are 
 living witnesses who might testify to the facts 'contained in the 
 declaration, this does not exclude the statement, but ony affects the 
 weight to be given it.° 
 
 § 331 (334). Dying declarations. — Another instance in which 
 declarations in the nature of hearsay are received as evidence al- 
 though not made under oath or tested by cross-examination, is 
 where the statements are of the character known as dying declara- 
 tions. In the sense here used, these are declarations made by the 
 victim in cases of homicide, where the death of the deceased is the 
 subject of the charge and the circumstances and cause of the death 
 are the subject of the dying declarations.*" Although declarations 
 
 4Edie v. Klngsford. 14 C. B. 763; R. v. Birmlnghanl, 31 L. J. (M. C.) 63; 
 Stapylton v. Clough, 2 El. & B. 933; Fursdon v. Clogg, 10 M. & W. 572; 
 Coleman V. Prazier, 4 Rich. L. (S. C.) 147; White v. Choteau, 10 Barb. 
 (N. Y.) 202; County of Mahaska v. Ingalls, 16 Iowa, 81 full discussion 
 of the authorities in the opinion by Judge Dillon. 
 
 6 See note, 2 Smith L. C. 371; Steph. Ev. art. 28; Tayl. Ev. (10th Ed.) 
 §§ 675-676. But see. Doe v. Vowles, 1 Moody & Rob. 261. 
 
 » Crease v. Barrett, 1 Cromp., M. & R- 925. This has been often illus 
 trated in the case of indorsements on notes when they might rebut the 
 statute of limitations. Young v. Perkins, 29 Minn. 173, 12 N. W. 515; Small 
 V. Rose, 97 Me. 286, 54 Atl. 726. 
 
 7 Doe V. Robson, 15 East, 32. 
 
 8 Barry v. Bebbington, 4 T. R. 514. 
 
 9 Middleton v. Melton, 10 Barn. & C. 317. 
 
 10 People V. Olmstead, 30 Mich. 431; Clyde Mattox v. United States, 146 
 U. S. 140; Starkey v. People, 17 111. 21; Sullivan v. State, 102 Ala. 135. See 
 notes, 58 Am. Rep. 184-194; 34 Am. Rep. 479-482; see also, Bouvler Law 
 Diet., title Declarations, and see also the valuable collection of cases in 28 
 Eng. Rep. (Moak's Ed.) 592-595; 27 Fed. 621. On general subject, 
 see long notes, 56 L. R. A. 353-457; 86 Am. St. Rep. 637-668. As to evi- 
 dence of threats by the accused see note, 17 L. R. A. 654-663. 
 
412 THE LAW OP EVIDENCE. § 332 
 
 of this character are clearly hearsay, yet there are considerations 
 which have properly led the courts to make some discrimination in 
 their favor. The declarations are made under the sense of impend- 
 ing death and when there is comparatively little tempt oMon on the 
 part of the declarant to falsify. Moreover the declarant may ie the 
 only witness beside the accused that has any knowledgge of the facts 
 and, if this be so, the murderer may escape if such declarations are 
 rejected.'^ But since these declarations are in the nature of pure 
 hearsay and are open to the objections which may be urged against 
 that class of testimony, the limitations subject to which they are 
 received must be carefully observed. It is not within the scope of 
 this work to treat of the rules of evidence in criminal actions, except 
 in so far as is necessary to illustrate the rules in other cases, there- 
 fore this exception to the general rule excluding hearsay wiU not be 
 discussed in detail. 
 
 § 332 (335). Limited to cases of homicide and when made In 
 expectation of impending death. — Although there was formerly 
 some doubt as to the proposition, it is now well settled that the de- 
 clarations are admissible only in cases of homicide.^' Thus, they 
 have been rejected in an indictment for administering drugs with in- 
 tent to procure an abortion, although death resulted from the act,*' 
 
 "Woodcock's Case, Leach (4th ed.) 500; Thayer, Cas. Ev. 354. For a 
 discussion of the grounds of admissibility of such declarations, see note 
 86 Am. St. Rep. 638-639. 
 
 12 Rex V. Mead, 2 Barn. & C. 605; Reynolds v. State, 68 Ala. 502; Hudson 
 V. State, 3 Coldw. (Tenn.) 355; Lieber v. Com., 9 Bush (Ky.) 13; Hill v. 
 State, 41 Ga. 484; Wilson v. Boerem, 15 Johns. 286; State v. Boban, 15 Kan. 
 407; Barnett v. People, 54 111. 325; State v. Harper, 35 Ohio St. 78, 35 Am. 
 Rep. 596; Montgomery v. State, 80 Ind. 338, 41 Am. Rep. 81B; State v. 
 McCanon, 51 Mo. 160; Wright v. State, 41 Tex. 246; People v. Davis, 56 
 N. Y. 95; Railing v. Com., 110 Pa. St. 100; Sts.te v. Furney, 41 Kan. 115; 
 Testard v. State, 26 Tex. App. 260; Cohn v. State, 27 Tex. App. 709; Peo- 
 ple V. Fong Ah Sing, 70 Cal. 8; Thayer v. Lombard, 165 Mass. 174, 52 Am. 
 St. Rep. 507. See notes 56 L. R. A. 360-365; 86 Am. Rep. 665-668. 1 Greenl. 
 Bv. § 156. 
 
 "Rex V. Mead, 2 Barn. & C. 605; People v. Davis, 56 N. Y. 95; State v. 
 Harper, 35 Ohio St. 78, 35 Am. Rep. 596. Contra, Peoples v. Com., 87 Ky. 
 487. Although they are admissible in an action for manslaughter caused 
 by an attempted abortion, State v. Dickinson, 41 Wis. 299; State v. Bald- 
 win, 79 Iowa, 714. If in reality the offence is homicide and the subject of 
 inquiry the manner of the death of deceased the declarations will be re- 
 ceived, Seifert v. State, 160 Ind. 464, 67 N. B. 100; State v. Meyer, 65 
 N. J. L. 237, 47 Atl. 486, 86 Am. St. Rep. 634 and note 666-667; State T. 
 Dleklnaon, 41 Wla. 299. 
 
§ 332 HK\BSAY. 413 
 
 as well as in a trial for perjury ^* or robbery " and in civil ac- 
 tions generally, although such actions are for the injury causing 
 the death.'' It is another condition that it must appear, either 
 from the statements of the declarant or from aU the circumstances 
 of the ease, that he was in actual danger of death, and that he had 
 no hope of recovery at the time the declarations were made.'' Even 
 a slight hope of recovery entertained by the declarant at the time 
 excludes the declarations.'* But a prior hope of recovery, which 
 had been abandoned,'" or a subsequent hope of recovery does not 
 necessarily render the declarations incompetent.^" It is a prelimi- 
 nary question for the court to determine whether the declarations 
 were made without hope of recovery. But of course, if admitted, 
 the question of credibility is for the jury as in other cases.^' The 
 preliminary evidence for the court may be given in the presence 
 
 " Rex V. Mead, 2 Barn, & C. 605. 
 
 i» Rex V. Lloyd, 4 Car. & P. 233. 
 
 IB Wilson V. Boerem, 15 Johns, 286; Dally v. New HaTen Ry. Co., 32 Conn. 
 356, 87 Am. Dec. 176; Waldele v. New York C. Ry. Co., 19 Hun (N. Y.) 69; 
 Marshall v. Chicago Ry. Co., 48 111. 475, 95 Am. Dec. 561; Jackson v. State, 
 50 Ala. 456. See note 86 Am. St. Rep. 667-668. 
 
 IT Reg. v. Morgan, 14 Cox Cr. C. 337; People v. Gray, 61 Cal. 164; Moeck 
 V. People, 100 111. 242, 39 Am. Rep. 38; State v. Elliot, 45 Iowa, 486; Doolln 
 n Com. (Ky.), 27 S. W. 1; Com. v. Roberts, 108 Mass. 296; Com. v.' 
 Haney, 127 Mass. 455; State v. Cantieny, 34 Minn. 1; Lipscomb v. State, 75 
 Miss. 559, 23 So. 210; State v. Mathes, 90 Mo. 571; Brotherton v. People, 75 
 N. Y. 159; State v. Blackburn, 80 N. C. 474; Alison v. Com., 99 Pa. St. 17; 
 State V. Patterson, 45 Vt 308, 12 Am. Rep. 200; People v. Hawes, 98 Cal. 
 648; Fulcher v. State, 28 Tex. App. 465; Shell v. State, 88 Ala. 14; Archi- 
 bald V. State, 122 Ind. 122; People v. Callaghan, 4 Utah, 49; Hall v. Com. 
 (Va.), 15 S. E. 517; State v. Nelson, 101 Mo. 464; State v. Bradley 
 (S. C), 13 S. E. 315; State v. Murdy, 81 Iowa, 603; Crump v. Com. 
 (Ky.), 20 S. W. 390; State v. Johnson, 118 Mo. 491. See note 86 Am. 
 St. Rep. 654-660. 
 
 18 People V. Hodgdon, 55 Cal. 72, 36 Am. Rep. 30; Com. v. Roberts, 108 
 Mass. 296; Rex v. Crockett, 4 Car. & P. 544, 19 E. C. L. 641. But see, 
 McQueen v. State (Ala.), 15 So. 824, and State v. Evans, 124 Mo. 397, 
 where deceased at the time of making the declaration also sent for a doc- 
 tor. See note 86 Am. St. Rep. 660-661. As to belief and hopes of others, 
 see note 86 Am. St. Rep. 661-663. 
 
 loMockabee v. Com., 78 Ky. 380; Swall v. Com., 91 Pa. St. 304; State v. 
 McEvoy, 9 S. C. 208. 
 
 20 State V. Kilgore, 70 Mo. 546; Swisher v. Com., 26 Gratt. (Va.) 963, 
 21 Am. Rep. 330; State v. Reed, 53 Kan. 767. 
 
 21 Com. V. Roberts, 108 Mass, 296; Kehoe v. Com., 85 Pa. St. 127; Owens 
 V. State, 59 Miss. 547; State v. Baldwin, 79 Iowa, 714 ; Roten v. State, 31 
 Pla. 614; State v. Jonnson, 118 Mo. 491; 1 Greenl. Ev. § 160. 
 
414 THE LAW OP EVIDENCE. § 333 
 
 of the jury.^' The essential condition is that the declarations should 
 be made with the expectation of speedy death. If this condition is 
 satisfied, the testimony is not excluded, although it appear that 
 the death did not ensue for a considerable time. In most reported 
 cases, however, where such evidence has been received, the death 
 has followed within a few hours or days."^ And it has been held 
 that one in fear of death may reafBrm statements made before fear 
 of death became imminent, and such declarations then become ad- 
 missible.^* Although it must be shown that the declaration was 
 made under the expectation of impending death, this fact need not 
 appear from the declaration Itself, but may be inferred from other 
 statements of the deceased or from all the surrounding circum- 
 stances.'" The testimony is not excluded because of the fact that 
 other testimony may be available.^" 
 
 § 333 (336). Declarant must have been competent to testify. — 
 If the declarant could not have been a competent witness while liv- 
 
 22 People V. Smith, 104 N. Y. 491, 58 Am. Rep. 537; State v. Murdy, 81 
 Iowa, 603; Sullivan v. Com., 93 Pa. St. 284. See also, Starkey v. People, 
 17 111. 17. 
 
 23 R. V. Bernadotte, 11 Cox Cr. C. 316, three weeks; State v. Nocton, 121 
 Mo. 537; Baxter v. State, 15 Lea (Tenn.) 1657, sixteen days; Jones v. 
 State, 71 Ind. 66, fourteen days; Com. v. Cooper, 5 Allen, 495, 81 Am. Dec. 
 762, seventeen days; Milton v. Com. (Ky.), 25 S. W. 1059; Miller v. 
 State, 27 Tex. App. 63; State v. Wensel, 98 Mo. 137; State v. Jones (la), 
 56 N. W. 427; Hussey v. State, 87 Ala. 121; State \. Banister, 35 S. C. 
 290, declarations made two months before death; Baulden v. State (Ala.), 
 15 So. 341. 
 
 2* Snell V. State, 29 Tex. App. 236, 25 Am. St. Rep. 723 and note; People 
 v. Crews, 102 Cal. 174; Johnson v. State, 102 Ala. 1, 16 So. 99; 
 Wilson v. Com. (Ky.), 60 S. W. 400; Smith v. Com. (Ky.), 67 S. W. 32; 
 State V. Evans, 129 Mo. 397, 28 S. W. 8; State v. Garth, 164 Mo. 553, 
 05 S. W. 275. But see Harper v. State, 79 Miss. 575, 31 So. 195. 
 
 25 Ward V. State, 78 Ala. 441; Kehoe v. Com., 85 Pa. St. 127; People v. 
 Smith, 104 N. Y. 491, 58 Am. Rep. 537; Donnelly v. State, 26 N. J. L. 601; 
 Swisher v. Com., 6 Gratt. (Va.) 963, 21 Am. Rep. 330; Owens v. State, 59 
 Miss. 547; Smith v. State, 9 Humph. (Tenn.) 9; State v. Cantieny, 34 Minn. 
 1; State v. Elliot, 45 Iowa, 486; State v. Johnson, 76 Mo. 121; Jones v. 
 State, 71 Ind. 66; Starkey v. People, 17 111. 17; State v. Evans, 124 Mb. 397; 
 People V. Glenn, 10 Cal. 32; Young v. State, 114 Ga. 849, 40 S. E. 1000; 
 Newberry y. State, 68 Ark. 355, 58 S. W. 351; Lester v. State, 37 Pla. 382, 
 20 So. 232; McHargue v. Com. (Ky.), 23 S. W. 349; Com. v. Haney, 
 127 Mass. 455; State v. Cronin, 64 Conn. 293, 29 Atl. 536. See note 86 Am. 
 St. Rep. 658-660. 
 
 20 Com. v. Roddy, 184 Pa. St. 274, 39 Atl. 211; Reynolds v. State, 68 Ala. 
 502; Fuqua v. Com. (Ky.), 73 S. W. 782; Donnelly v. State, 26 N. J. h. 601, 
 627. 
 
§ 334 HEAKSAT. 415 
 
 ing, his dying declarations will not be received ; for example, in those 
 states where infamy is a disqualification, the dying declarations of 
 those convicted of burglary, larceny, robbery and the like will 
 be rejected."^ But the dying declarations of a wife or husband 
 are admissible against each other on the principle thnt the testi- 
 mony of one is admissible against the other when the complaint 
 is of violence by the accused against the person ol: the other. '■^'^ 
 On the same principle the dying declarations of an insane per- 
 son ^' or of a child of too tender age to be a competent witness,'" or 
 of one incapable of understanding his statements by reason of par- 
 tial unconsciousness °^ are incompetent. As bearing upon the credi- 
 bility and weight of the statements, the had character of the declar- 
 ant may be shown.'^ So it may be shown that he had no heUef im 
 future punishment; " or that he had made contradictory or incon- 
 sistent statements,^*' or that the declarant was in a reckless or ir- 
 reverent state of mind or actuated by malicious motives.^" But when 
 proof is ofEered to impeach the declarant, it is of course competent 
 for the prosecution, to rehut such evidence.*' 
 
 § 334 (337). Declarations must be confined to the homicide. — 
 Under the principle already stated that the declarations must point 
 
 27 The King v. Drummond, Leach (4th Ed.) 337, Thayer, Cases on Bv. 
 353; Walker v. State, 39 Ark. 221; State v. Williams, 67 N. C. 12; Greenl. 
 Bv. § 519. See notes 86 Am. St. Rep. 640-642; 56 L. R. A. 432. It is not 
 necessary to show in the first instance that the declarant v/as in full pos- 
 session of his faculties. State v. Reed, 137 Mo. 125, 38 S. W. 574. 
 
 28 Moore v. State, 12 Ala. 764, 46 Am. Dec. 276; State v. Belcher, 13 
 S. C. 459; People v. Green, 1 Den. 614. See note 86 Am. St. Rep. 641. 
 
 29 Bolin V. State, 9 Lea (Tenn.) 516. See note 86 Am. St. Rep. 640-641. 
 80 Rex v. Pike, 3 Car. & P. 598; State v. Baldwin, 15 Wash. 15, 45 Pac. 
 
 250. 
 
 siBinfield v. State, 15 Neb. 484; Mitchell v. State, 71 Ga. 128; Hugh v. 
 State, 31 Ala. 317. But see, Com. v. Silcox. 161 Pa. St. 484. 
 
 32 State V. Thomas, 1 Jones (N. C.) 274; State v. Blackburn, 80 N. C. 
 474; Nesbit v. State, 43 Ga. 238; People v. Knapp, 1 Edm. Sel. Cas. (N. Y.) 
 577. 
 
 33 Hill V. State, 64 Miss. 431; State v. Elliott, 45 Iowa, 486; People v. 
 Chin Mook Sow, 51 Cal. 597; People v. Sanford, 43 Cal. 29; State v. Ah 
 Lee, 8 Ore. 214; Goodal v. State, 1 Ore, 333, 80 Am. Dec 396; Nesbit v. 
 State, 43 Ga. 238; Walker v. State, 39 Ark. 220; Donnelly v. State, 24 N. J. 
 L. 463. See note 86 Am. St. Rep. 641-642. 
 
 84 Battle V. State, 74 Ga. 101; People v. Lawrence, 21 Cal. 368; Hurd v. 
 People, 25 Mich. 405; Felder v. State, 23 Tex. App. 477, 59 Am. Rep. 777; 
 Carver v. U. S., 164 TJ. S. 694. 
 
 «» Tracy v. People, 97 111. 101. 
 
 «s See cases cited in note 32 supra. 
 
416 THE liAW OP EVIDENCB. § 334 
 
 distinctly to the cause of death and the circumstances producing 
 and attending it, declarations as to previous threats,'^ or as to a 
 prior state of feeling,^' or as to relations between the parties or for- 
 mer quarrels," or that he called the attention of witnesses to the 
 fact that he was unarmed," cannot be admitted. But the name of 
 the offender and of the declarant may be proved by such declara- 
 tions.*^ The declarant must have had knowledge of the transac- 
 tion " and mere statements of opinion which would not be received 
 if the declarant were a witness are inadmissible." But it has been 
 held that a statement that the accused had no provocation or cause 
 for the commission of the offense, that is, that it was intentional, 
 is a statement of fact and not a mere opinion.** It is obvious that 
 the declarations of a person may be received when they are made 
 under such circumstances as to form part of the res gestae, although 
 no foundation is laid for their admission as dying declarations.*' 
 
 «T Jones V. State, 71 Ind. 66; State v. Draper, 65 Mo. 33-5, 27 Am. Rep. 
 287; Merrill v. State, 58 Miss. 65; State v. Wood, 53 Vt. 560; State t. 
 Moody, 18 Wash. 165, 51 Pac. 356. See note 56 L. R. A. 369. 
 
 88 Ben V. State, 37 Ala. 103; Jones v. State, 71 Ind. 66; Reynolds v. 
 State, 68 Ala. 502. 
 
 89 State V. Jefferson, 125 N. C. 712, 34 S. E. 648; Perry v. State, 102 6a. 
 365, 30 S. E. 903; State v. O'Shea, 60 Kan. 772, 57 Pac. 970. 
 
 *o State V. Eddon, 8 Wash. 292. 
 
 *i Boyle V. State, 105 Ind. 469, 55 Am. Rep. 218; Sylvester v. State, 71 
 Ala. 17; State v. Johnson, 76 Mo. 121; Lister v. State, 1 Tex. App. 739. 
 
 *2 Jones V. State, 52 Ark. 347, 12 S. W. 704; Jones v. State, 79 Miss. 309, 
 30 So. 759; State v. Reed, 137 Mo. 125, 38 S. W. 574. See note 86 Am. St. 
 Rep. 647-649. See further cases cited in 2 Wigmore Ev. p. 1814. 
 
 « People V. Wasson, 65 Cal. 538; Montgomery v. State, 80 Ind. 388, 41 
 Am. Rep. 815; Shenkenberger v. State, 154 Ind. 630, 57 N. E. 519; Broth- 
 erton v. People, 75 N. Y. 159; Reynolds v. State, 68 Ala. 502; Walker v. 
 State, 39 Ark. 221; State v. Draper, 65 Mo. 335, 27 Am. Rep. 287; Ratteree 
 V. State, 53 Ga. 570; Savage v. State, 18 Fla. 909; State v. O'Shea, 60 Kan. 
 772, 57 Pac. 970; People v. Olmstead, 30 Mich. 431; Moeck v. People, 100 
 111. 242, 39 Am. Rep. 38; Collins v. Com., 12 Bush (Ky.) 271. But see, 
 Wroe v. State, 20 Ohio St. 460; State v. Gile, 8 Wash. 12. See note, 
 86 Am. St. Rep. 649-650. 
 
 4* Wroe V. State, 20 Ohio St. 460; Boyle v. State, 105 Ind. 469, 55 Am. 
 Rep. 218; Payne v. State, 61 Miss. 161; State v. Nettelbush, 20 Iowa, 257; 
 People V. Abbott (Cal.), 4 Pac. 769; Sullivan v. State (Ala.), 15 So. 
 264. 
 
 «5 People V. Brown, 59 Cal. 345; Stagner v. State, 9 Tex. App. 440; State 
 V. Porter, 34 Iowa, 131; State v. Wagner, 61 Me. 178; Burns v. State, 61 aa. 
 192; Com. v. Hackett, 2 Allen, 136; Wilkinson v. State, 91 Ga. 729. See 
 note 86 Am. St Rep. 665. 
 
§ 335 HEARSAY. 417 
 
 § 335 (338). Form of the declaration — General rules. — ^It is not 
 necessary that the declarations should be made in any particular 
 form. While they are generally oral, they may be in writing or by 
 means of signs.*' When the declarations are reduced to writing 
 and signed by the declarant, it is generally held that the writing is 
 the best evidence and must be produced.*^ But a different rule ob- 
 tains when the statement is not read to or signed by the declarant.*' 
 The signature is not necessary if the writing is read to and under- 
 stood by the declarant.*" The fact that a written statement has 
 been made does not exclude prior or subsequent oral dec-la rations, if 
 the wTritten statement cannot be produced."'' If the declarations are 
 otherwise competent, they should not be rejected on the ground that 
 they have been drawn out by leading questions,^^ or because they do 
 not give all of the facts making up the transaction to which they 
 ref er.'^ It suffices if the substance of the declaration is proved and 
 
 « Jones V. State, 71 Ind. 66; Com. v. Casey, 11 Cush. 417, 59 Am. Dec. 
 150; Wagoner v. Terr., 5 Ariz. 175, 51 Pac. 145; Mockabee v. Com., 78 Ky. 
 380; Reg. v. Morgan, 14 Cox Cr. C. 337, 28 Eng. Rep. (Moak's Ed.) 583. 
 See notes, 56 L. R. A. 427; 86 Am. St. Rep. 642-647. 
 
 *^ State v. Sullivan, 51 Iowa, 142; State v. Tweedy, 11 Iowa, 350; People 
 V. Glenn, 10 Cal. 32; Collier v. State, 20 Ark. 36; Dunn v. People, 172 111. 
 582, 50 N. B. 137; King v. State, 91 Tenn. 617, 20 S. "W. 169. See note 
 86 Am. St. Rep. 642-644. See also. State v. Patterson, 45 Vt. 308, 12 Am. 
 Rep. 200; Krebs v. State, 8 Tex. App. 1; Com. v. Haney, 127 Mass. 455. 
 
 « State v. Fraunburg, 40 Iowa, 555; Allison v. Coc.., 99 Pa. St. 17; An- 
 derson V. State, 79 Ala. 5. 
 
 *» Freeman v. State, 112 Ga. 48, 37 S. E. 172; State v. Carrington, 15 
 Utah, 480, 50 Pao. 526. See note, 86 Am. St. Rep. 643. As to refreshing 
 memory, Fuqua v. Com. (Ky.), 73 S. W. 782; Foley v. State, 11 Wyo. 464, 
 72 Pac. 627. 
 
 MRex v. Reason and Tranter, 1 Str. 499; State v. Patterson, 45 Vt. 308, 
 12 Am. Rep. 200; Dunn v. People, 172 111. 582, 50 N. E. 137; Lane v. State, 
 151 Ind. 511, 51 N. E. 1056; Hendrickson v. Com. (Ky.), 73 S. "W. 764. See 
 note, 86 Am. St. Rep. 642. 
 
 01 Com. V. Casey, 11 Ciish. 417, 59 Am. Dec. 150; Com. v. Haney, 127 
 Mass. 455; State v. Foot Yow, 24 Ore. 61; Vass v. Com., 3 Leigh (Va.) 786, 
 24 Am. Dec. 695; North v. People, 139 111. 81; Ingram v. State, 67 Ala. 67; 
 Jones V. State, 71 Ind. 66; People v. Sanchez, 24 Cal. 17; People v. Calla- 
 ghan, 4 Utah, 49; State v. Wilson, 24 Kan. 189, 36 Am. Rep. 257; State v. 
 Trivas, 32 La. An. 1086, '36 Am. Rep. 293; Rex v. Fagent, 7 Car. & P. 238; 
 White V. State, 30 Tex. App. 652; Worthlngton v. Com., 92 Md. 222, 48 Atl. 
 355. See note, 86 Am. St. Rep. 644-646. 
 
 62 State V. Patterson, 45 Vt.' 308, 12 Am. Rep. 200; State v. Giroux, 26 La. 
 An. 582. See note 86 Am. St. Rep. 646. But see. State v. Johnson, 118 Mo. 
 491, where It was held that a part was inadmissible, unless the omitted 
 parts were Irrelevant. Contra, Sullivan v. State, 102 Ala. 135. 
 87 
 
418 THE LAW OF EVIDENCE. § 336 
 
 if only part is stated the adversary may prove the rest,"' and either 
 party may use the declarations."* Of course the ordinary rule pre- 
 vails that the judge decides upon the admissibility and the jury 
 upon the weight of the evidence.'^ It was well settled that before 
 the adoption of the state constitutions in this country dying declar- 
 ations were admissible in cases of homicide ; hence such declarations 
 are not now excluded by those clauses which secure to the accused in 
 criminal prosecutions the right "to meet the witnesses face to 
 face."" 
 
 § 336 (339). Evidence of witnesses given in former action or 
 on former trial. — The most serious objections to the admission of 
 hearsay evidence in general are that no opportunity has been given 
 for the cross-examination of the declarant, and that his statements 
 were made without the sanction of an oath. In those cases where 
 these objections are removed, there is good reason for the relaxation 
 of the strict rule forbidding hearsay testimony. It has long been 
 settled as one of the exceptions to the general rule excluding hearsay 
 that the testimony of a witness given in a former action or at a 
 former stage of the same action is competent in a subsequent action 
 or in a subsequent proceeding in the same action, where it is shown 
 that the witness is dead and that the parties and questions in issue 
 are substantially the same.'^'^ 
 
 M Mattox V. U. S. 146 TJ. S. 140. 
 
 Bt People V. Southern, 120 Gal. 645, 53 Pac. 214; Mattox v. U. S., 146 U. S. 
 140. 
 
 B5 Com. V. Bishop, 165 Mass 148, 42 N. E. 560; People v. Smith, 104 N. Y. 
 491, 10 N. E. 873; State v. Sexton, 147 Mo. 89, 48 S. W. 452; State v. 
 Phillips, 118 Iowa, 660, 92 N. W. 876. 
 
 6c State V. Dickinson, 41 Wis. 299; Com. v. Cary, 12 Cush. 246; People v. 
 Green, 1 Den. 614; State v. Vansant, 80 Mo. 67; State v. Tilghman, 11 
 Ired. (N. C.) 513; Walston v. State, 16 B. Mon. (Ky.) 15; Robbins v. State, 
 8 Ohio St. 131. 
 
 osa^Clealand v. Huey, 18 Ala. 343; Lane v. Brainerd, 30 Conn. 565; 
 Letcher v. Norton, 5 111. 575; Schindler v. Milwaukee Ry. Co., 87 Mich. 400; 
 Ephraims v. Murdock, 7 Blackf. (Ind.) 10; Packard v. McCoy. 1 Iowa, 530; 
 Conway v. Erwin, 1 La. An. 391 ; Ruch r. Rock Island, 97 U. S. 693 ; Berg v. 
 McLafferty (Pa.), 12 Atl. 460; Watson v. Lisbon, l4 Me. 201; Calvert v. 
 Cox, 1 Gill (Md.) 95; Breeden v. Peurt, 70 Mo. 624; Reynolds v. United 
 States, 98 TJ. S. 145; Harper v. Burrow, 6 Ired. (N. C.) 30; Jackson v. 
 Lawson, 15 Johns. 539; Osborn v. Bell, 5 Den. 370, 49 Am. Dec. 275; Parker 
 V. Legett, 12 Rich. (S. C.) 198; Mathewson v. Sargent, 36 Vt. 142; Radford 
 V. G. & A. Railway Co., 113 Ga. 327, 39 S. B. 108; Watson v. Railway Co., 
 76 Minn. 358, 79 N. W. 308; McGeoch v. Carlson, 96 Wis. 138, 71 N. W. 116. 
 See full note, 91 Am. St. Rep. 192-208. But the rule forbidding the intro- 
 
§ 338 HEAESAY. 419 
 
 § 337 (340). Exact identity of the parties not necessary. — ^In 
 view of the reasons for this relaxation of the rule, it is not neces- 
 sary that there should be exact identity of parties in the two pro- 
 ceedings. Where the right to cross-examine the deceased witness 
 existed, it is enough if in the second proceeding there is privity of 
 interest. "The rule is that such evidence is proper, not only when 
 the point in issue is the same in a subsequent suit between the same 
 parties, but also for or against persons standing in the relation of 
 privies in blood, privies in estate or privies in law." '" Thus in an 
 action concerning land, the testimony of plaintiff's grantor, since 
 deceased, which was given against defendant's grantor may be ad- 
 mitted in a subsequent proceeding on the same issue."' The same 
 rule applies when the present action is by a survivor of the partners 
 who brought the former action,"' or by successors in interest or as- 
 signees ; "*' or where the former action was against one of two admin- 
 istrators and the pending action is against both, since they are 
 privies in law and one represents the other ; *^ or where the former 
 action was by the agent of parties in the present suit, the other 
 parties and the issues being the same."^ 
 
 § 338 (341). Parties should be substantially the same or in priv- 
 ity. — On the same principle it has been held that where an action 
 was brought against a railroad company for personal injury, the 
 testimony of the plaintiff may be used by her child in an action 
 against the company after the injury had resulted in the death of 
 the former plaintiff.^' The testimony will not necessarily be re- 
 jected, although there were other parties to the record in the former 
 proceedings, when the issues are substantially the same and the 
 parties affected by the second suit had the opportunity to cross- 
 
 duction of evidence from a former trial does not apply when It Is intro- 
 duced for the purpose of impeaching witnesses, Lohr v. Philipsburg, 165 
 Pa. St. 109. For further cases and illustrations, see 2 Wigmore Bv. § 1387. 
 
 "Jackson v. Lawson, 15 Johns. 539; Watson v. St. Paul Ry. Co., 76 
 Minn. 358, 79 N. "W. 308; State v. N. 0. Waterworks Co., 107 La. 1, 31 So. 
 395. See note, 91 Am. St. Rep. 199-201. See also cases cited below. 
 
 68 Yale V. Comstock, 112 Mass. 267. 
 
 B9 Wilbur V. Selden, 6 Cow. 162. See note, 38 Am. Dec. 481. 
 
 60 Doe V. Derby, 1 Adol. & Ell. 783, 791 and note; Wright v. Tatham, 1 
 Adol. & Ell. 3. 
 
 «i Bondereau v. Montgomery, 4 Wash. C. C. 186. 
 
 «2 Ritchie V. Lyne, 1 Call (Va.) 489. 
 
 «s Atlanta Ry. Co. v. Venable, 67 Ga. 697; Indianapolis Ry. C!o. v Stout 
 63 Ind. 143. 
 
420 THE LAW OF EVIDENCB. § 339 
 
 examine the witnesses.'* But the parties must be substantially the 
 same. Thus, the testimony of a deceased witness in an action by one 
 tenant in common is not admissible in an action by another tenant 
 in common, although the same land is in question.'" The parties 
 are not the same in this sense, where one proceeding is against an 
 administrator, and the second is against the sureties on his bond."" 
 On the same principle an agreed statement of facts between parties 
 in the former suit is not admissible in the second suit, unless the 
 parties are the same or privies.*' It is no objection to the testimony, 
 where the parties are the same, that the testimony offered by one is 
 that of a witness who, on the former trial, was the witness of the 
 other party."* 
 
 § 339 (342). Form of proceedings may be different.— If the 
 parties and the issues are the same in each case, it is not necessary 
 to the admission of the testimony that the form of the second pro- 
 ceeding should be the same as that of the first. For example, the de- 
 fendants in one action may be the plaintiffs in the other." The ad- 
 mission of the testimony of the deceased witness is not confined to 
 appeals or new trials in the ordinary courts of law. Thus, where 
 commissioners are a duly constituted tribunal to determine disputes 
 relative to land or other subjects, the tcEtimony of a witness, since 
 deceased, given before them, is competent in a later proceeding in 
 court. ''" On the same principle if the former proceeding was before 
 arbitrators having jurisdiction, such testimony is admissible on a 
 
 0* Philadelphia, W. & B. Ry. Co. v. Howard, 13 How. 307; Doe v. Tatham, 
 1 Add. & Ell. 3; Salmer v. Lathrop, 10 S. D. 216, 72 N. W. 570. Such 
 testimony, however, was refused where the issues were changed by an 
 amendment to the complaint, Schindler v. Milwaukee Ry. Co., 87 Mich. 
 400. Not so if issues remain same after amendment, Watson v. Railway 
 Co., 76 Minn. 358, 79 N. W. 308. 
 
 «6 Norris v. Monen, 3 Watts (Pa.) 465. So where the relationship ot 
 father and son existed, there heing no privity of estate, Morgan v. NichoU, 
 L. R. 2 C. P. 117. Same in two suits, one by father for loss of services 
 and the other as guardian ad litem of son for personal Injury, Hooper 
 V. Railway CO., 112 Ga. 96, 37 S. B. 165. 
 
 88 Fellers v. Davis, 22 S. C. 425. The rule Is otherwise If the surety 
 defends for the principal, Woodworth v. Gorsline, 30 Colo. 186, 69 Pac 
 705, 58 L. R. A. 417. 
 
 67 Frye v. Gregg, 35 Me. 29. 
 
 «8 Hudson V. Roos, 76 Mich. 173. 
 
 88 Yale V. Comstock, 112 Mass. 267. 
 
 70 Jackson v. Bailey, 2 Johns. 17; Cox v. Pearce, 7 Johns. 298; PV)mey v. 
 Hallagher, 11 Serg. & R. (Pa.) 203; Ottinger v. Ottinger, 17 Serg. & K. 
 (Pa.) 142; Ray v. Bush, 1 Root (Conn.) 81; Lewis v. Eoulo, 93 Mich. 476, 
 appeal from justice court 
 
§ 340 HEAESAT. 421 
 
 trial in court.'" Likewise such testimony given in a preliminary ex- 
 amination on a criminal charge, may be admitted at the trial/^ But 
 if the testimony is given before a tribunal which cannot enforce the 
 attendance of witnesses or administer oaths, a different rule ap- 
 plies.^' Nor is the testimony of a witness given at a coroner's in- 
 quest admissible, under this exception, in a subsequent action, as 
 the inquest is not a judicial proceeding between the same parties.'* 
 Nor is the testimony of the deceased witness admissible, if under the 
 existing statutes such testimony would be incompetent if he were 
 living.'" 
 
 § 340 (343). The opportunity of cross-examination on the for- 
 mer trial.— Although it is one of the controlling reasons for the 
 admission of testimony of this character that in the former proceed- 
 ing there has been the right of cross-examination, yet it is not to be 
 inferred that the actual cross-examination of the witness in the for- 
 mer trial is a pre-requisite. This was well illustrated in a New York 
 case where, after joining issue, the defendant through neglect made 
 default. It was held by the court of appeals that on a second trial 
 the testimony of a deceased witness should have been received as the 
 defendant had, by his failure to appear and cross-examine when it 
 was in his power, waived that priyilege." The view that the real 
 test of the admissibility of the evidence is whether the party to be 
 
 Ti Calvert v. Prlebus, 48 Md. 44; Bailey t. Woods, 17 N. H. 365; Wal- 
 bridge v. Knipper, 96 Pa. St. 48. But see, Jessup v. Cook, 6 N. J. L. 434. 
 
 72 Davis V. State, 17 Ala. 354; State v. Hooker, 17 Vt. 658; United States 
 V. Penn, 13 Bank. Reg. 464; State v. Stewart, 34 La. An. 1037; State v. 
 Wilson, 24 Kan. 189, 36 Am. Rep. 257. 
 
 's Montgomery v. Snodgrass, 2 Yeates (Pa.) 230; Parker v. Gonsalus, 1 
 Serg. & R. (Pa.) 526; Poster v. Shaw, 7 Serg. & R. (Pa.) 156. 
 
 7* Pittsburg Ry. Co. v. McGrath, 115 111. 172; Cook v. New York C. Ry. 
 Co., 5 Lans. (N. Y.) 401; State v. Campbell, 1 Rich. L. (S. C.) 124; State 
 V. Cecil County, 54 Md. 426; Farkas v. State, 60 Miss. 847; McLain v. 
 Com., 99 Pa. St. 86; Whitehurst v. Com., 79 Va. 556. See also. Brown v. 
 State, 71 Ind. 470; Mack v. State, 48 Wis. 271. For same reason testimony 
 given before investigating committee is not admissible, Dunck v. Milwau- 
 kee County, 103 Wis. 371, 79 N. W. 413; nor is such testimony admissible 
 if court had no jurisdiction of the subject-matter, Deering v. Schnier, 85 
 N. Y. S. 275; State v. Johnson, 12 Nev. 121. But see, Jerome v. Bohm, 21 
 Colo. 322, 40 Pac. 570. Such evidence is admissible where It was reduced 
 to writing and the witness is since deceased, Dupree v. State, 33 Ala. 380, 
 73 Am. Dec. 422. 
 
 75 Eaton V. Alger, 47 N. Y. 345; Hoover v. Dillon, 11 Ohio St. 624. 
 
 70 Bradley v. Mirick, 91 N. Y. 293. See note 91 Am. St. Rep. 200-201. 
 See also, State v. Wilson, 24 Kan. 189, 36 Am. Rep. 257. 
 
422 THE LAW OP EVIDENCE. § 341 
 
 affected by it had the opportunity or power of cross-examiniag the 
 witness has been carried to its extreme limit in a few cases where in 
 the first proceeding the action was a criminal suit, in the name of 
 the state, and in the second, a civil action growing out of the same 
 facts. Thus in Wisconsin, where, under the statutes, the complain- 
 ant in assault and battery has the management and control of the 
 prosecution before the magistrate, it was held that the testimony of 
 a witness, since deceased, given in such an action, might be proved 
 in a subsequent civil action for damages, when the witness in the 
 former proceeding had been cross-examined by the plaintiff's coun- 
 sel.'" Most of the cases cited illustrate the rule that there must have 
 been the opportunity for cross-examination." 
 
 § 341 (344). Death of the former witness — Relaxation of the 
 rule. — ^Under the English common law the courts seldom, if ever, 
 admitted the testimony of a witness given on a former trial, except 
 in case of his dea-th.'" This strictness has, however, since been modi- 
 fied in England by statute ; and the present rule, so far as it bears 
 on this subject, is thus stated by Mr. Stephen : "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 dead, or is mad, or so iU 
 that he will probably never be able to travel, or is kept out of the 
 way by the adverse party, or in civil, but not it seems in criminal, 
 cases, is out of jurisdiction of the court, or perhaps in civil, but not 
 in criminal, cases, when he cannot be found. ' ' *° Although, as wUl 
 be seen, there has been considerable conflict in, the United States as 
 to how far the ancient rule has been relaxed, there can be but little 
 doubt that in this country the rule has been so far modified as to 
 admit such testimony in at least four cases : first, where the witness 
 is dead; second, where he is insane or mentally incompetent; third, 
 where he is beyond the seas; fourth, where he has been kept away 
 by the contrivance of the opposite party. ^^ The rule has frequently 
 
 77 Charlesworth v. Tinker, 18 Wis. 633; Kreuger v. Sylvester, 100 Iowa, 
 647, 69 N. W. 1059. See also, Scott v. Wilson, Cooke (Tenn.) 315, mali- 
 cious prosecution; Gavan v. Ellsworth, 45 Ga. 283. The mere presence oJ 
 counsel is not sufficient, unless there is no opportunity for cross-examin- 
 ation, Jackson v. Crilley, 16 Colo. 103. 
 
 78 Oliver V. Railway Co. (Ky.), 32 S. W. 759; Walterhouse v. Walter- 
 house, 130 MiCh. 89, 89 N. W. 585. 
 
 7»1 Phill. Ev. 337; Best, Ev. (10th Ed.) § 496. See also, Le Baron v. 
 Crombie, 14 Mass. 234. 
 
 «> Steph. Ev. art. 32; Town of Walkerton y. Erdman, 23 Can. Sup. 352. 
 »i Drayton v. Wells, 1 Nott & McC. (S. C.) 409, 9 Am. Dec. 718; How- 
 
§ 342 HEABSAT. 423 
 
 been stated much more Broadly. Thus, Mr. Greenleaf, in speaking 
 of testimony of this character, says: "It is also received if the mt- 
 ness, though not dead, is out of the jurisdiction, or cannot be found 
 after diligent search, or is insane or sick and unable to testify or has 
 been summoned, but appears to have been kept away by the adverse 
 party." ^' In harmony with this view such testimony has been ad- 
 mitted when the witness was unable to testify by reason of sick- 
 ness *' or advanced age; °* or where he was absent from the jurisdic- 
 tion of the court, that is, in another state; *" or where the witness 
 was a public officer and away on official business, '" or where, since 
 the former trial, the witness has become incompetent by reason of 
 conviction of an infamous crime." But the mere fact that a witness 
 has forgotten the facts testified to on a former trial does not au- 
 thorize the admission of the former testimony.*' 
 
 § 342 (345). Same — Absence from state — Other disability — 
 Criminal cases, — As we have already seen there are numerous 
 cases which favor the relaxation of the strict rule against hearsay 
 
 ard V. Patrick, 38 Mich. 795; Cook v. Stout, 47 111. 530; Rothrock v. Gall* 
 her, 91 Pa. St. 108; Marlor v. State, 67 Ala. 55, 42 Am. Rep. 95; Radclyffe 
 V. Barton, 161 Mass. 327; Whiteaker v. Marsh, 62 N. H. 477; St. Louis Ry. 
 Co. V. Sweet, 60 Ark. 550. See note, 91 Am. St. Rep. 193-198. 
 
 82 1 Greenl. Ev. § 163; Rex v. Eriswell, 3 T. R. 707; Howard v. Patrick, 
 38 Mich. 795. 
 
 83 Miller v. Russell, 7 Mart. N. S. (La.) 266; Perrin v. Wells, 155 Pa. St. 
 299. 
 
 84 Thornton v. Britton, 144 Pa. St. 126, 22 Atl. 1048; Cent. R. R. & Bkg. 
 Co. V. Murray, 97 Ga. 326, 22 S. E. 972. 
 
 SB Long V. Davis, 18 Ala. 801; Rothrock v. Gallaher, 91 Pa. St. 108; Peo- 
 ple V. Devine, 46 Cal. 45; Wilder v. St. Paul, 12 Minn. 192; Minneapolis 
 Mill Co. V. Minneapolis & St. L. Ry. Co., 51 Minn. 304; Shearer v. Harber, 
 36 Ind. 536; Dolan v. State, 40 Ark. 454; Benson v. Shotwell (Cal.), 37 Pac. 
 147; Magill v. Kaufman, 4 Serg. & R. (Pa.) 317, S Am. Dec. 713 and 
 note; Howard v. Patrick, 38 Mich. 795; Labor v. Crane, 56 Mich. 585; 
 Schindler v. Milwaukee, L. S. & W. Ry. Co., 87 Mich. 400; McTighe v. Her- 
 man, 42 Ark. 285; Omaha St. Ry. Co. v. Elkins, 39 Neb. 480; City of 
 Omaha v. Jensen, 35 Neb. 68; Atchison, etc. R. R. Co. v. Osborn, 64 Kan. 
 187, 67 Pac. 547, 91 Am. St. Rep. 189 and note, pp. 195-196. But see, Stein 
 V. Swenson, 46 Minn. 360. The rule is more strict against such testimony 
 in criminal cases, People v. Newman, 5 Hill, 295; Collins v. Conn., 12 Bush 
 (Ky.) 271; Brogg v. Com., 10 Gratt. (Va.) 722; State v. Staples, 47 N. H. 
 119; United States v. McComb, 5 McLean (U. S.) 289. 
 
 86 Noble V. Martin, 7 Mart. N. S. (La.) 282. 
 
 87 LeBaron v. Crombie, 14 Mass. 234. But see note to this case. 
 
 88 Stein V. Swenson, 46 Minn. 360, there being no proof of mental im- 
 Ijecility; Drayton v. Wells, 1 Nott & McQ. (S. C.) 409, 9 Am. Dec. 71^. 
 
424 THE LAW OF EVIDENCE. § 342 
 
 SO far as to admit proof of the former testimony of witnesses per- 
 manently absent from the state. In some of these cases it is urged 
 that the modern method of taking down testimony by an official 
 stenographer obviates the principal objection to the use of the evi- 
 dence taken on the former trial.^° On the other hand there is per- 
 haps an equal array of authority holding that, where statutes allow 
 the taking of depositions out of the state, the proper procedure is to 
 take the deposition of the witness, if he can be found, and that mere 
 absence from the state is not one of the groiuids for admitting testi- 
 mony taken on the former trial.'" It is urged that the facilities now 
 afforded for taking depositions render any such relaxation of the 
 general rules of evidence unnecessary. But the tendency of the 
 later decisions as well as of legislation seems to be in favor of the 
 admission of the former testimony. If the witness is permanently 
 outside the state," and in some states the former testimony is re- 
 ceived, if it is shovm that the witness is not likely to return or is 
 absent indefinitely."^ As to this subject the statutes of the jurisdic- 
 tion should be consulted as in some cases they provide that absence 
 from the state or even the county may suffice. If, as has been al- 
 ready stated, the witness is ieyond the seas or insane or otherwise 
 rendered incompetent to testify, this is a sufficient excuse."' If, 
 after due diligence, the residence of the witness cannot he ascer- 
 tained, this would, on the same principle, be a reason for dispensing 
 with the rule.'* Although the sickness of a witness is generally only 
 
 »8 See cases cited under the last section. Temporary absence, where 
 there has been no effort to subpoena the witness, is clearly Insufficient, 
 Kellogg V. Secord, 42 Mich. 318; Harris v. State, 73 Ala. 495. 
 
 ooBerney v. Mitchell, 34 N. J. L. 341; Gerhouser v. North British Ina. 
 Co., 7 Nev. 174; Wilbur v. Selden, 6 Cow. 162; Drayton v. Wells, 1 Nott & 
 McC. (S. C.) 409, 9 Am. Dec. 718; Crary v. Sprague, 12 Wend. 41; Kellogg 
 V. Secord, 42 Mich. 318; Cassady v. Trustees, 105 111. 560; Stein v. Swen- 
 son, 46 Minn. 360; Kirchner v. Laughlln (N. M.), 23 Pac. 176; Sa- 
 .vannah Co. v. Flannigan, 82 Ga. 579; Gastrell v. Phillips, 64 Miss. 473; 
 Rosenfield v. Case, 87 Miss. 295. Insufficient diligence shown, Slusser t. 
 Burlington, 47 Iowa, 300; Thompson v. State (Ala.'i, 17 So. 512. 
 
 91 See cases cited in last section. 
 
 02 Burton v. State, 107 Ala. 68, 18 So. 240; Jacob! v. State, 133 Ala. 1, 32 
 So. 158; Jacobi v. Alabama, 187 U. S. 133; Bank v. Glfford, 73 Iowa, 311, 44 
 N. W. 558, outside of county. 
 
 »3See § 341 supra. 
 
 8* Sullivan v. State, 6 Tex. App. 319, 32 Am. Rep. 580; Slusser v. Bur- 
 lington, 47 Iowa, 300; Shackelford v. State, 33 Ark. 539; Gunn v. Wade, 65 
 Ga. 537. The court Is not bound by strict rules of evidence in detennlnlng 
 the question of residence. Vaughan v. State, 50 Ark. 353, 24 S. W. 886; 
 
§ 343 HEARSAY. 425 
 
 ground for the postponement of the trial, the sickness may be of 
 .such a character as to amount to a permanent disability to testify; 
 and in such case it would be within the reason of the rule to admit 
 the testimony given on the former trial, and this has been recognized 
 as an exception by English statutes.'" In criminal cases a stricter 
 rule obtains on this subject than in civil actions. It has been held in 
 a few instances that such testimony can not be given in criminal 
 cases, even although the witness is dead.'" But the rule is well set- 
 tled that, if the defendant in a criminal case procures the absence 
 of a witness, the testimony of such witness given on a former trial 
 is competent on the principle that a party cannot thus take advan- 
 tage of his own wrong. Such evidence is not repugnant to the con- 
 stitutional provision that the defendant shall be confronted by the 
 witnesses against him."^ So also, by the weight of authority, such 
 testimony is admissible in criminal cases when it is shown that the 
 witness is dead."' 
 
 § 343 (346). Mode of proving former testimony — Refreshing 
 memory. — It is not necessary that the exact words of the deceased 
 witness be given. It is sufficient if the substance of the testimony 
 
 Spaulding v. Railway Co., 98 la. 205, 67 N. W. 227; Hill v. Winston, 73 
 Minn. 80, 75 N. W. 1030. But it devolves upon the proponent to show 
 that due diligence to procure the witness had been used, Young v. Sage, 46 
 Neb. 37; Thompson v. State (Ala.), 17 So. 512. 
 
 SB 11 & 12 Vict. ch. 42 § 17; R. v. Hogg, 6 Car. & P. 176; R. v. Wilshaw, 
 Car. & M. 145; R. v. Cockburn, 7 Cox Cr. C. 265; Pry v. Wood, 1 Atk. 445; 
 Chase v. Springvale Mills Co., 75 Me., 156; Berney v. Mitchell, 34 N. J. L. 
 337; Howard v. Patrick, 38 Mich. 795; Thornton v. Britton, 144 Pa. 30, 22 
 Atl. 1048. But it must be shown that the witness is unable to attend 
 the trial, Edwards v. Edwards (Iowa), 61 N. W. 41S. 
 
 DO Finn v. Com., 5 Rand. (Va.) 701; Com. v. McKenna, 158 Mass. 207, 
 33 N. E. 389; Cline v. State, 36 Tex. Cr. R. 320, 61 Am. St. Rep. 850 and 
 note 886 et seq. 
 
 «7R. v. Scaife, 2 Den. Cr. C. 281, 17 Q. B. 238, 5 Cox, 243; Reynolds 
 V. United States, 98 U. S. 145; State v. Houser, 26 Mo. 431; Sage v. State, 
 127 Ind. 15. But see, Bergen v. People, 17 111. 426, 65 Am. Dec. 672. 
 
 88 People v. Sligh, 48 Mich. 54; LeBaron v. Crombie, 14 Mass. 233; 
 Wilbur V. Selden, 6 Cow. 162; State v. Staples, 47 N. H. 115, 90 Am. 
 Dec. 565; Sullivan v. State, 6 Tex. App 313, 32 Am. Rep. 580; Collins 
 v. Com., 12 Bush (Ky.) 271; State v. Fitzgerald, 63 Iowa, 268; State 
 V. Able, 65 Mo. 357; Brown v. Com., 73 Pa. St. 321, 13 Am. Rep. 740; 
 United States v. Macomb, 5 McLean (U. S.) 286, full discussion by 
 Drummond J. In the following criminal cases such evidence has been 
 admitted still more liberally. Hurley v. State, 29 Ark. 17; Sullivan v. 
 State, 6 Tex. App. 319, 32 Am. Rep. 580; People v. Devine, 46 Cal. 45; 
 Shackleford v. State, 33 Ark 530. 
 
426 THE LAW OP EVIDEaiCB. § 343 
 
 can be stated. If the exact words were required, this would in effect 
 abrogate the rule allowing secondary evidence in such eases.** But 
 it is not competent to prove the legal effect of the testimony.^ Under 
 this rule a juror, witness, stenographer, attorney or any other person 
 who heard the testimony on the former trial and is able to state its 
 substance may be called.^ Under the general principles of evidence 
 the notes of testimony taken by stenographers, judges, justices of the 
 peace, attorneys and other officers or persons would seem to be in- . 
 admissible as evidence, on the ground that such notes are hearsay.' 
 But such notes, when shown to be coiTect, are often used to refresh 
 the memory of the witness; and in some instances they have been 
 received as evidence of the testimony given at former trials.* For 
 this purpose witnesses may refresh their memory by reading notes 
 of the testimony taken by them ;" and the minutes of testimony taken 
 
 80 Thompson v. State (Ala.), 17 So 512; Liuetgf.rt v. Volker, 153 
 111. 385; Ruch v. Rock Island, 97 TJ. S. 693; State v. Fitzgerald, 63 Iowa, 
 268; Mitchell v. State, 71 Ga. 128; Helper v. Mt. Carmel Sav. Bank, 97 
 Pa. St 420, 39 Am. Rep. 813; United States v. McComb, 5 McLean (XT. S.) 
 286; State v. O'Brien, 81 Iowa, 88. Contra, Bruie v. Carver, 73 N. C. 
 264. See also. Stein v. Swenson, 46 Minn. 360. In Massachusetts it 
 must be given substantially and in all material particulars, Costlgan v. 
 Lunt, 127 Mass. 354, and cases cited. 
 
 1 Bowie V. O'Neil, 5 Har. & J. (Md.) 226. 
 
 2 Doncaster v. Day, 3 Taunt. 262 ; Moore v. Moore, 39 Iowa, 401, steno- 
 grapher; Hutchinson v. Corgan, 59 111. 70, juror; State v. O'Brien, 81 
 la. 88, 46 N. W. 752; Com. v. McCart, 152 Mass. 577; "Wade v. State, 7 
 Baxt. (Tenn.) 80; Ruch v. Rock Island, 97 U. S. 693; People v. Murphy, 
 45 Cal. 137; Yale v. Comstock, 112 Mass. 267; Helper v. Mt. Carmel Bank, 
 97 Pa. St. 420, 39 Am. Rep. 813; Black v. Woodrow, 39 Md. 194; Emery 
 V. Fowler, 39 Me. 326, 63 Am. Dec. 627; Earl v. Tupper, 45 Vt. 275, attor- 
 ney; Costigan v. Lunt, 127 Mass. 354, attorney. And it seems that if 
 counsel agree on the testimony, the identification by oath is unnecessary, 
 Jackson v. Jackson, 47 Ga. 99; Earl v. Tupper, 45 Vt. 275; Nutt v. Thomp- 
 son, 69 N. C. 548; Coughlin v. Haenssler, 50 Mo. 126; Rhine v. Robinson, 
 27 Pa. St. 30; Clark v. Vorce, 15 Wend. 193, 30 Am. Dec. 53; Jones v. 
 Ward, 3 Jones L. (N. C.) 24, 64 Am. Dec. 590; Davis v. Kline, 96 Mo. 401. 
 
 8 Drayton v. "Wells, 1 Nott & McC. (S. C.) 409; Smith v. State, 42 Neb. 
 356; Elberfeldt v. "Walte, 79 "Wis. 284; Reg. v. Child, 5 Cox Cr. C. 197; 
 Schafer v. Schafer, 93 Ind. 586; Miles v. O'Hara, 4 Binn. (Pa.) 108; 
 Huff V. Bennett, 4 Sandf. (N. Y.) 120. Contra, Lucker v. Llske, 111 
 Mich. 683, 70 N. "W. 421. 
 
 *Yale V. Comstock, 112 Mass. 267; Labar v. Crane, 56 Mich. 585; Ashe 
 y. De Rossett, 5 Jones L. (N. C.) 299, notes of an attorney; Philadelphia 
 Ry. Co. V. Spearen, 47 Pa. St. 300; Huff v. Bennett, 4 Sandf. (N. Y.) 120; 
 People V. Sligh, 48 Mich. 54. 
 
 • Costigan v. Lunt, 127 Mass, 354; Rounds v. State, 57 "Wis. 45, steno- 
 
§ 343 HEARSAY. 427 
 
 by the judge,' by attorneys,' stenographers and other officers of 
 the eourt,^ may he received for such purpose, when their accuracy is 
 proved; and it will be seen from some of the cases just cited that, 
 when the accuracy of such notes was proved, they have been re- 
 ceived, not merely to refresh the memory, but as evidence. It has 
 been held that a Mil of exceptions is not admissible to prove the tes- 
 timony of a deceased witness. These decisions rest on the view that 
 the bill of exceptions imports verity for the purpose of an appeal, 
 and for no other purpose." But the authorities are divided on this 
 proposition and the view is held by high authority that, in the na- 
 ture of things, there can be no other evidence of equal or superior 
 credit or reliability when properly authenticated. These decisions 
 rest upon the ground that bills of exceptions are carefully prepared 
 from the stenographer's notes of the testimony and that they have 
 been. subject to the careful inspection of lawyers and judges, thus 
 preventing any mistakes.^" It has been held, however, that an affi- 
 davit ^^ is not admissible to prove the testimony of a deceased wit- 
 ness. Under the prevailing practice by which testimony is taken by 
 stenographers appointed by the court, the most convenient mode of 
 proving the former testimony is to read such notes, properly authen- 
 ticated. Statutes quite generally exist making the report of the 
 
 grapher's notes taken at preliminary hearing; Llpcomb v. Lyon, 19 
 Neb. 511. 
 
 eR. V. Gazard, 8 Car. & P. 595; Whitcher v. Morey, 39 Vt. 459; Yale 
 V. Comstock, 112 Mass. 267; Cliase v. Debolt, 7 111. 571. 
 
 7 Clark V. Vorce, 15 Wend. 193, 30 Am. Dec. 53; Philadelphia & R. Ry. 
 Co. V. Spearen, 47 Pa. St. 300, 86 Am. Dec. 544; Johnson v. Powers, 40 
 Vt. 611; Carpenter v. Tucker, 98 N. C. 316. But see, Lightner v. Wike, 
 4 Serg. & R. (Pa.) 203. 
 
 8 Stewart v. First Nat. Bank, 43 Mich. 257; Rhine v. Robinson, 27 Pa. 
 St. 30; Yale v. Comstock, 112 Mass. 267; Sage v. State, 127 Ind. 15; 
 Quln V. Halbert, 57 Vt. 178; Llpcomb v. Lyon, 19 Neb. 511; Rounds v. 
 State, 57 Wis. 45; People v. Chung Ah Chue, 57 Cal. 567. 
 
 » Kankakee Ry. Co. v. Horan, 131 111. 288; Roth v. Smith, 54 111. 431; 
 Stern v. People, 102 111. 540; Odell v. Solomon, 55 N. Y. S. 410; Simmons 
 V. Spratt, 22 Fla. 370; Kirk v. Mowry, 24 Ohio St. 581; Fisher v. Fisher, 
 131 Ind. 462; Sargeant v. Marshall, 38 111. App. 642. Contra, Rice 
 Mining Co. v. Musgrave, 14 Colo. 79; Franklin v. Gumersell, 11 Mo. App. 
 306. 
 
 "•Wilson V. Noonan, 35 Wis. 321, 345; Woollen v. Wire, 110 Ind. 251; 
 Case V. Blood, 71 Iowa, 632; Slingerland v. Slingerland, 46 Minn. 100, 
 case on appeal. See note 91 Am. St. Rep. 207-208. 
 
 "Hudson v. Applegate, 87 Iowa, 605. As to an agreed statement of 
 facts see, Dwyer v. Rippetoe, 72 Tex. 502; Dwyer v. Bassett, 1 Tex. App. 
 513; Lathrop v. Atkinson, 87 Ga. 339, 
 
428 THE LAW OF EVIDENCE. § 343 
 
 stenographer admissible ; and in the absence of such statutes, it may- 
 be used to refresh his memory.^'' If the testimony given on the for- 
 mer trial is otherwise admissible, it is no objection that new evi- 
 dence has been introduced on the second trial on which there was 
 no cross-examination at the other trial.'' "Whenever the evidence of 
 the witness on the former trial is admissible, the evidence as stated 
 by an interpret er may be proved in the same way.'* 
 
 12 See cases above cited. See note 91 Am. St. Rep. 206-207. 
 
 13 Easton Bank v. "Wirebach, 106 Pa. St. 37. 
 
 14 Schearer v. Harber, 36 Ind. 636. See note, 17 L. R. A. 813; also S 263 
 supra. 
 
CHAPTER 11. 
 
 RES GESTAE). 
 
 § 344. Res gestae — Meaning of the term — Illustrations. 
 
 345. Mere narrations not admissible. 
 
 346. Cases In which the rule Is relaxed. 
 
 347. Time through which res gestae may extend. 
 
 348. The statements or acts must be part of a transaction. 
 
 349. Declarations as to bodily feeling. 
 
 350. Declarations showing motive or intent. 
 
 351. Declarations by possessor of personal property. 
 
 352. Declarations by one in possession of land— When admitted In dis- 
 
 paragement of title. » 
 
 353. Same — Possession must be shown. 
 
 354. Declarations proper to show character of possession — ^Not to de- 
 
 stroy record title. 
 
 355. Declarations as to boundary lines. 
 
 356. Declarations of agents. 
 
 357. Declarations by agents of corporations. 
 
 358. General rule. 
 
 § 344 (347). Res gestae — Meaning of the term — ^Illustrations. — 
 
 Wlien declarations or acts accompany the fact in controversy and 
 tend to illustrate or explain it, they are treated, not as hearsay, but 
 as original evidence, in other words, as part of the res gestae. Thus, 
 conversations contemporaneous with the facts in controversy and 
 explaining such facts are admissible.^ It is not a condition of the ad- 
 mission of such evidence that no other can be obtained. The declar- 
 ations are admitted when they appear to have been made under the 
 immediate influence of some principal transaction, relevant to the 
 
 1 Stewart v. Brown, 48 Mich. 383; International & G. N. Ry. Co. v. 
 Anderson, 82 Tex. 516, 27 Am. St. Rep. 902 and note; Mack v. State, 48 
 Wis. 271; State v. Mason, 112 Mo. 374, 34 Am. St. Rep. 390; Bragg v. 
 Hassle, 38 Ala, 89, 79 Am. Dec. 82; Brockett v. Naw Jersey Co., 18 Fed. 
 156; Earle v. Earle, 11 Allen, 1; Weir v. Borough of Plymouth, 148 Pa. 
 St. 566; Chick v. Sisson, 95 Mich. 412; Spencer v. New York & N. E. Ry. 
 Co., 62 Conn. 242. For illustrations of facts that have been held to be 
 part of the res gestae see notes, 93 Am. Dec. 279; 10 Am. St. Rep. 306; 
 16 Am. St. Rep. 22, 407; 27 Am. St. Rep. 907; 29 Am. St. Rep 865; and 
 elaborate notes, 95 Am. Dec 51-76; 19 L. R. A. 733-752. See also article 
 in 48 Law Times, 272. 
 
430 THE LAW OP EVIDENCE. § 344 
 
 issue, and are so connected with it as to characterize or explain it. It 
 should appear that they were made without premeditation or artifice, 
 and without a view to the consequences ; that they are the spontane- 
 ous utterances, the natural result of the act they characterize or elu- 
 cidate. Of course the act must be relevant to the issue, but when 
 relevant the declarations are not rejected merely because there may 
 be other competent testimony. It is hardly necessary to add that 
 when the declarations form part of a contract or the performance of 
 a contract they are relevant and will be received. In the celebrated 
 case in which Lord George Gordon was on trial for treason, the cries 
 of the mob which accompanied the defendant during the acts com- 
 plained of were received for the purpose of showing that his inten- 
 tions were unlawful and treasonable.^ On the same principle, the 
 complaints and statements of an injured party made at the time of 
 the occurrence both as to bodily suffering and the circumstances of 
 the occurrence are frequently received.^ Another illustration is the 
 
 2 R. V. Gordon, 21 How. St. Tr. 514. 
 
 sAverson v. Kincaid, 6 East, 188; Entwhlstle v. Foighner, GO Mo. 214; 
 Harriman v. Stowe, 57 Mo. 93; Elkins v. McKean, 79 Pa. St. 493; Little 
 Rock Ry. Co. v. Leverett, 48 Ark. 333, 3 Am. St. Rep. 230; Waldele y. 
 New York C. Ry. Co., 95 N. Y. 274, 47 Am. Rep. 41; Hall v. Accident 
 Association, 86 Wis. 518; Louisville Ry. Co. v. Buck, 116 Ind. 566, 9 Am. 
 St. Rep. 883; Leahey v. Cass Ave. Ry. Co., 97 Mo. 165, 10 Am. St. Rep. 
 300. See also § 349 infra. The rule renders admissible the declarations 
 and conduct of third persons at the very time of an accident or Injury 
 which they witness. Galena Ry. Co. v. Fay, 16 111. 558, 63 Am. Dec. 323; 
 Mobile Ry. Co. v. Ashcraft, 48 Ala. 15; Indianapolis Ry. Co. v. Anthony, 
 43 Ind. 183; Missouri Pac. Ry. Co. v. Collier, 62 Tex. 318; State v. Wal- 
 ker, 78 Mo. 380; State v. Middleham, 62 Iowa, 150: Kleiber v. People's 
 Ry. Co., 107 Mo. 240. See also. Travelers Ins. Co. v. Sheppard, 85 6a. 
 751; Lake Shore & M. S. Ry. Co. v. Herrlck, 49 Ohio St. 25; statements as 
 to the conditions of an execution sale, Arnold v. Gorr, 1 Rawle (Pa) 223; 
 statements of an officer and of other persons interested made at the time 
 of levying on property, Pierson v. Hoag, 47 Barb. (N. Y.) 243; Grandy v. 
 McPherson, 7 Jones L. (N. C.) 347; Arnold v. Gorr, 1 Rawle (Pa.) 223; 
 Johnston v. Hamburger, 13 Wis. 175; declarations accompanying the pay- 
 ment of money, to show the purpose or application of the payment, Bank 
 of Woodstock y. Clark, 25 Vt. 308; Hood v. French, 37 Fla. 117, 19 So. 
 165; Wheeler v. Campbell, 68 Vt. 98, 34 Atl. 35; declarations accompany- 
 ing a gift, Gulnan's Appeal. 70 Conn. 342, 39 Atl. 482; Lord v. N. Y. Lite 
 Ins. Co., 95 Tex. 216, 66 S. W. 290, 93 Am. St. Rep. 829; Durham v. 
 Shannon, 116 Ind. 403, 19 N. E. 190, 9 Am. St. Rep. 860; declarations 
 affecting the revocation of a will, Pickens v. Davis, 134 Mass. 257, 45 Am. 
 Rep. 322; statements of a grantor at the time of making a conveyance, 
 Gamble v. Johnston, 9 Mo. 597; Palter v. McDowell, 31 Mo. 62; Badger 
 V. Story, 16 N. H. 168; Cheswell v. Eastham, 16 N. H. 296; Kent v. Har- 
 
§ 345 RES GEST^. 431 
 
 fact that the prosecutrix in an action of rape has made complaint 
 immediately after the wrong.* 
 
 § 345 (348) . Mere narrations not admissible. — Whether a state- 
 ment or act is or is not a part of the res gestae depends wholly upon 
 the facts of each case ; and it is therefore difficult, if not impossible, 
 to frame any satisfactory definition of the term res gestae. But 
 there are certain well recognized tests or rules which may be applied 
 in determining whether a given statement or act is to be rejected as 
 hearsay, or admitted as part of the res gestae. One of these rules 
 is that declarations are not admissible if they amount to no more 
 than a mere narrative of a past occurrence. Thus, where the holder 
 of a check went into a bank and when he came out said he had de- 
 manded payment, the declaration was held inadmissible." So where 
 one who was fatally injured by a railway train made statements half 
 an hour after the occurrence, the statements were held no part of 
 the res gestae;" and in an action against a township for injuries 
 caused by a defective bridge, statements made by the plaintiff as to 
 the cause and circumstances of the injury were held inadmissible.'' 
 
 court, 33 Barb. (N Y.) 491; declarations of a person at the time of mak- 
 ing an entry upon land, explaining the character and purpose of such 
 entry, Robinson v. Swett, 3 G-reenl. (Me.) 316; 3 Black. Com. 174; state- 
 ments made by a bondsman when he signed a bond. State v. Gregory, 132 
 Ind. 387; and statements of the parties to a sale of personal property 
 made at the time of sale, when such statements bear upon the question 
 of good faith or other fact In Issue, Dale v. Gower, 24 Me. 563; Haight v. 
 Hayt, 19 N. Y. 464; Banfleld v. Parker, 36 N. H. 353; acts and declara- 
 tions of the wife showing maltreatment on the part of the husband, Rudd 
 v. Rounds, 64 Vt. 432; declarations by the bailee contemporaneous with 
 the loss to show the nature of the loss. Doorman v. Jenkins, 2 Adol. & Ell. 
 256; Thompkins v. Saltmarsh, 14 Serg. & R. (Pa.) 275; Beardslee v. 
 Richardson, 11 Wend. 25, 25 Am. Dec. 596; Prink v. Coe, 4 G. Greene 
 (Iowa) 555, 61 Am. Deo. 141; where the consideration of a mortgage is 
 in Issue, all that was said and done by the parties in the course of their 
 negotiations and as part of the agreement Is admissible, Colt y. McCon- 
 nell, 116 Ind. 249. See interesting sketch of the history of the phrase 
 "res gestae" by Prof. Thayer, 14 Am. Law Review, 817. 
 
 «McMurrin v. Rigby, 80 la. 325, 45 N. W. 877; People v. Brown, 53 
 Mich. 531, 19 N. W. 172. Contra, People v. Hicks, 98 Mich. 86, 56 N. W. 
 1102. 
 
 » Lund V. Tyngsborough, 9 Cush. 42. 
 
 • Waldele v. New York C. & H. R. Ry. Co., 95 N. Y. 274, 47 Am. Rep. 41; 
 Savannah Ry. Co. v. Holland, 82 Ga. 257, 14 Am. St. Rep. 158; Steinhofel 
 y. Railway Co., 92 Wis. 123, 65 N. W. 852. 
 
 TMerkle v. Bennington, 58 Mich. 156, 55 Am. Rep. 166; Schillenger v. 
 Town of Verona, 88 Wis. 317. 
 
432 THE LAW OP EVIDENCE. § 346 
 
 The rule has often been declared that the declarations must be con- 
 temporaneous with the facts which they illustrate ; and many cases 
 might be cited as examples of such rulings. Thus, in a case which 
 has excited much discussion and which has been regai'ded as an 
 extreme case, it was held that a statement made by a person im- 
 mediately after the act, while running out of the room in which 
 her throat had been cut, was incompetent ; ' and in many other 
 cases it has been held that declarations, immediately or a few 
 minutes after the event sought to be explained, could not be re- 
 ceived.' In these and many similar cases which might be cited 
 it was held that the declarations were not so nearly contemporaneous 
 with the transaction in issue as to characterize or explain it, that 
 they were mere narratives of transactions wholly completed. These 
 declarations depended for their truth wholly upon the accuracy and 
 reliability of the declarant and the witness, and were not corrobor- 
 ated by any event or fact, then transpiring, by means of which their 
 truth could be tested. 
 
 § 346 (349). Cases in which the rule is relaxed. — There is an- 
 other class of eases which hold that declarations may in some eases 
 be received ; although made after the act in question, provided they 
 were uttered after the lapse of so brief an interval and in such con- 
 nection with the principal transaction as to form a legitimate part 
 of it, and when it is plain that the act is the inducing cause of the 
 declaration." For example, in a Massachusetts case, upon a trial 
 
 8 Rex V. Bedlngfleld, 14 Cox Cr. C. 341, 14 Am. Law Rev. 817. 
 
 oRosenbaum v. State, 33 Ala. 354; Williams v. English, 64 Ga. 546; 
 Roacli V. Western & A. Ry. Co., 93 Ga. 785; Lander v. People, 104 IlL 248; 
 Wadsworth v. Harrison, 14 Iowa, 272; Bangor v. Brunswick, 27 Me. 351; 
 Stone V. Segur, 11 Allen, 5G8; Rowell v. Lowell, 11 Gray, 420; Ruschenberg 
 V. So. Electric Co., 161 Mo. 70, 61 S. W. 626; pledger v. Railway Co. 
 (Neb.), 95 N. W. 1057; Bumgardner v. Railway Co., 132 N. C. 438, 43 S. E. 
 948; Balding v. Andrews (N. D.), 96 N. W. 305; Waldele v. New York C. 
 & H. R. Ry. Co., 95 N. Y. 274, 47 Am. Rep. 41; Smith v. Betty, 11 Gratt. 
 (Va.) 752; Luby v. Hudson Riv. Ry. Co., 17 N. Y. 131; Whitaker v. Eighth 
 Ave. Ry. Co., 51 N. Y. 295; Roche v. Brooklyn Ry. Co., 105 N. Y. 294, 59 
 Am. Rep. 506; Galveston v. Barbour, 62 Tex. 172, 50 Am. Rep. 519; Sul- 
 livan V. Oregon Ry. & Nav. Co., 12 Ore. 392, 53 Am. Rep. 364; Sorenson v. 
 Dundas, 42 Wis. 642; Leistrilz v. American Zylonite Co., 154 Mass. 382; 
 State v. Deuble, 74 Iowa, 509; Gordon v. Grand Rapids & I. Ry. Co., 103 
 Mich. 379, 61 N. W. 549; Smith v. Territory, 11 Okl. 669, 69 Pac. 805; 
 Keefer v. Pacific M. L. Ins. Co., 201 Pa. 448, 51 Atl. 366, 88 Am. St. Rep. 822. 
 
 10 Com. v. Hackett, 2 Allen, 136; Hanover Ry. Co. v. Coyle, 55 Pa. St 
 396; Otis v. Thom, 23 Ala. 469, 58 Am. Dec. 303; Augusta Factory T. 
 Barnes, 72 Ga. 217, 53 Am. Rep. 838; Kirby v. Com., 77 Va. 681, 46 Am, 
 
§ 347 RES GEST^. 433 
 
 for murder, a witness testified that at the moment the fatal staba 
 were given he heard the victim cry out: "I am stabbed," and that 
 he at once went to him and reached him within twenty seconds af- 
 ter that, and that he then heard him say: "I am stabbed. I am 
 gone — Dan Hackett has stabbed me." Although the court con- 
 ceded that testimony as to declarations of this character should be 
 restricted within narrow limits, it was held that the declarations, 
 although made after the homicidal act, were in fact a part of the 
 transaction.'^'^ "While the English case already mentioned " illus- 
 strates the strictness of the one class of decisions which hold that 
 the declarations must be contemporaneous with the act, a weli 
 known decision of the supreme court of the United States may be 
 cited as one which carries the more liberal rule to the extreme limit. 
 In the case referred to, the action was on a life insurance policy, 
 and for the purpose of proving that the death was caused by falling 
 down stairs at night, the statement of deceased to members of his 
 family soon after the alleged accident, and after he had returned 
 to his room were held admissible.^^ The cases already cited suffi' 
 ciently illustrate the fact that there is often no little difficulty in 
 determining whether the declarations are so far contemporaneous 
 with the main fact or transactions as to be admissible, and that it is 
 impracticable to fix, by any general rule, any exact instant of time 
 so as to preclude debate and conflict of opinion in regard to this 
 particular point. 
 
 § 347 (350). Time through which res gestae may extend. — ^It is 
 well settled that the main transaction is not necessarily confined to a 
 particular point of time. The act or transaction may be completed 
 in a moment or, if there are connecting circumstances, it may extend 
 through a period of days or weeks, or even months. As illustrated 
 by Mr. Wharton, "if in one of our streets there is an unexpected 
 collision between two men, entire strangers to each other, then the 
 res gestae of the collision are confined within the few moments that 
 it occupies. When again there is a social feud in which two religious 
 
 Rep. 747; Missouri Pac. Ry. v. Baler, 37 Neb. 235; Trenton P. R. Co. v. 
 Cooper, 60 N. H. 219, 37 AU. 730; State v. Epstein, 25 R. I. 121, 55 Atl. 204; 
 Bliss V. State, 117"Wis. 596, 94 N. W. 325; Johnson v. State, 8 Wyo. 499, 58 
 Pac. 761; Hall v. American M. Ace. Ass'n, 86 Wis. 518; Poole v. Bast Tenn. 
 & V. G. Ry. Co., 92 Ga. 337; Traveler's Protective Ass'n v. West, 102 
 Fed. 22«. 
 
 11 Com. V. Hackett, 2 Allen, 136. See elaborate note as to declarations 
 made by wounded persons, 58 Am. Rep. 184. 
 
 12 R. V. Bedingiield, 14 Cox Cr. Co. 341. See also note, 68 Am. Rep 184. 
 
 13 Insurance Co. v. Mosley, 8 Wall. 397. 
 
 28 
 
484 THE LAW OP EVIDENCE. •§ 348 
 
 factions, as in the case of the Lord George Gordon disturbances or 
 of the Philadelphia riots of 1844, are arrayed against each other for 
 weeks, and so much absorbed in the collision as to be conscious of 
 little else, then all that such parties do and say under such circum- 
 stances is as much part of the res gestae as the blows given in homi- 
 cides for which particular prosecutions may be brought."^* On 
 this principle the declarations of banhrupts on going from and re- 
 turning home have been received for the purpose of showing the 
 motive and cause of absence, although a considerable time had 
 elapsed ; ^' and the declarations of persons made at the time of going 
 and returning have been received as evidence of this intention, 
 when the issue related to the domicile of the person,^" or when it was 
 claimed that a debtor has absconded.^^ In such cases the declarar 
 tions whether verbal or consisting of letters, have been received on 
 the ground that they were a continuous act which showed the in- 
 tention of the person whose motives were in question.^' 
 
 § 348 (351). The statements or acts must be part of a transac- 
 tion. — ^Although, as we have seen, different tribunals do not agree 
 as to the degree of strictness or liberality with which they apply 
 the rule that the declaration should be contemporaneous with the 
 transaction in issue, there is no doubt but that the declaration must 
 be a part of such transaction, and that it must illustrate or explain 
 it. ' ' The declarations must be calculated to unfold the nature and 
 quality of the facts which they are intended to explain ; they must 
 
 1*1 Whart. Ev. § 258; Lake Shore & M. S. Ry. Co. v. Herrick, 49 Ohio 
 St. 25; Small v. Williams, 87 Ga. 681; Linck v. Llnck (Mo.), 79 S. W. 478, 
 two years. 
 
 15 Bateman v. Bailey, 5 T. R. 512; Rouch v. Great Western Ry. Co., 1 
 Q. B. 61; Mutual Life Ins. Co. v. Hillmon, 145 U. S. 285; Ridley v. Gyde, 9 
 Bing. 349; Rawson v. Haigh, 2 Bing. 99; Smith v. Cramer, 1 Bing. N. C. 
 585; Vacher v. Cocks, 1 Moody & M. 353; Thomas v. Connell, 4 M. & W. 267. 
 
 i« Bateman v. Bailey, 5 T. R. 512; Rawson v. Haigh, 2 Bing. 99; New- 
 man V. Stretch, 1 Moody & M. 338; Ridley v. Gyde, 9 Bing. 349; Smith v. 
 Cramer, 1 Bing. N. C. 585; The Venus, 8 Cranch, 278; Gorham v. Canton, 
 5 Greenl. (Me.) 2C6, 17 Am. Dec. 231; Richmond v. Thomaston, 38 Me. 232; 
 Cornville v. Brighton, 39 Me. 333; Thorndike v. Boston, 1 Met. 242; Kil- 
 burn V. Bennett, 3 Met. 199; Salem v. Lynn, 13 Met. 544; Carroll v. State, 
 3 Humph. (Tenn.) 315; Matzenbaugh v. People, 194 111. 108, 62 N. B. 546, 
 88 Am. St. Rep. 134; Bigelow v. Bear, 64 Kan. 887, 68 Pac. 73; Chambers 
 V. Prince, 75 Fed. 176.' 
 
 " Brady v. Parkes, 67 Ga. 636. 
 
 18 Mutual Life Ins. Co. v. Hillmon, 145 U. S. 285 and cases cited; Raw- 
 son V. Haigh, 2 Bing. 99; New Milford v. Sherman, 21 Conn. 101; Marsh v. 
 Davis, 24 Vt 363. 
 
J d49 EES GESTyK. 43? 
 
 SO harmonize with those facts as to form one transaction. There 
 must be a transaction of which they are considered a part; they 
 must be concomitant with the principal act, and so connected with it 
 as to be regarded as the result and consequence of co-existing mo- 
 tives." ^* Hence, if there is reason to suppose that the declarations 
 are not the natural and spontaneous utterance of the declarant, but 
 that they are premeditated or designed for a purpose, they are in- 
 admissible ; and if sufficient time has elapsed to give an opportunity 
 for deliberation or the fabrication of evidence, the declarations can- 
 not be deemed a part of the res gestae.^" Declarations are not ad- 
 missible as part of the res gestae when they merely explain acta 
 which would not be admissible in evidence without such declara- 
 tions.^^ Thus, a letter written immediately after the transaction is 
 no part of the res gestae.^^ But letters or declarations made imme- 
 'Jiately preparatory to the litigated act may be received if they tend 
 to give character to and illustrate the act in question. Thus, upon 
 the question whether a person left a certain place with a certain 
 other person, letters in which he stated his intention to leave it with 
 that person, which were written and mailed by him to his family 
 at that place shortly before the time when other evidence tends to 
 show that he left the place are competent evidence of such inten- 
 tion.^' 
 
 § 349 (352). Declarations as to bodily feelings. — Whenever it 
 becomes material to show a person's condition of health, or motives, 
 or state of mind, such person's declarations may often be received 
 in evidence for such purpose, provided the requisites already pointed 
 out are complied with; and it appears that such statements are 
 
 isTilson V. Terwilliger, 56 N. Y. 277; Meek v. Perry, 36 Miss. 190; 
 People V. Vernon, 35 Cal. 49, 95 Am. Dec. 49 and extended note; Mitchum 
 V. State, 11 Ga. 615; Handy v. Johnson, 5 Md. 450; Rutland v. Hathorn, 36 
 Ga. 380; Leach v. Oregon Short Line R. Co., 29 Utah, 285, 81 Pac. 90. 
 
 20 City of Galveston v. Barbour, 62 Tex. 172, 50 Am. Rep. 519; People y. 
 Davis, 56 N. Y. 95; Cleveland Ry. Co. v. Mara, 26 Ohio St. 185. See note, 
 95 Am. Dec. 64. 
 
 21 Gresham Hotel Co. v. Manning, Ir. Rep. 1 C. L. 125. 
 
 22 Small V. Gilman, 48 Me. 506. 
 
 23 Mutual Life Ins. Co. v. Hillmon, 145 U. S. 285; Hinchcliffe v. Koontz, 
 121 Ind. 422, 16 Am. St. Rep. 403; Lake Shore & M. S. Ry. Co. v. Herrick' 
 49 Ohio St. 25; McDowell v. Goldsmith, 6 Md. 319, 61 Am. Dec. 305! 
 Declarations of a servant made at the time of leaving service as to his 
 reasons for doing so are admissible in actions between third persons, 
 Hadley v. Carter, 8 N. H. 40; Elmer v. Pessenden, 151 Mass. 935. See 
 cases collected, 3 Wigmore, Ev. pp. 2257-2259. 
 
436 THE LAW OF EVIDENCE. § 349 
 
 spontaneous and undesigned, and that they illustrate the facts which 
 are the subject of inquiry. ^^ In some of the decisions the utterances 
 are limited to groans and exclamations, and other involuntary excla- 
 mations of pain.^" But in others assertions and complaints as to pres- 
 ent feeling are received more liberally.^" But on the grounds al- 
 ready stated, such declarations are confined to the present condition 
 of the declarant. Such evidence is not to be extended beyond the 
 necessity on which the rule is founded. Anything in the nature d 
 narrative or statement is to be carefully excluded ; and testimony is 
 to be confined strictly to such complaints, exclamations and expres- 
 sions as usually and naturally furnish evidence of a present existing 
 pain or malady.^' The rule admitting the declarations of a party 
 expressive of pain and bodily feeling in his own behalf was adopted 
 with reluctance and has been generally cautiously applied. The 
 danger that the admission of such declarations may lead to the fabri- 
 cation of evidence is sufficient reason for receiving them only with 
 caution and scrutiny. In a New York case it was held that, although 
 natural expressions of pain, such as moans, sighs or screams, mighl 
 be admissible, the mere statement of a party made long after the in- 
 jury that he suffered pain ought not to be admitted, as in any degree 
 corroborative of his testimony as to the extent of his pain."' Bui 
 when a physician is called as an expert, his evidence is not thus lim- 
 ited. He may base his opinions upon a statement given by the pa- 
 tient in relation to his condition and sensations, past and present. 
 Thus only, can the expert ascertain the condition of the party ; and 
 he may, of course, be guided to some extent by the data thus fur- 
 
 24 state V. Halohenson, 95 la. 566, 64 N. W. 610; Hatch y. Fuller, 131 
 Mass. 574; Mayo v. Wright, 63 Mich. 32, 29 N. W. 832; Gosa v. Railway C!o. 
 (S. C), 45 S. B. 810. 
 
 25 Green v. Pacific L. Co., 130 Gal. 435, 62 Pac. 747; Wilkins v. 'Wilniing' 
 ton, 2 Marv. (Del.) 132, 42 Atl. 418; Keller v. Oilman, 93 "Wis. 9, 66 N. 
 W. 800. 
 
 26 Indiana R. Co. v. Maurer, 160 Ind. 25, 66 N. B. 156; Keyes v. Cedar 
 Palls, 107 la. 509, 78 N. "W. 227; Oliver v. Railway Co., 65 S. C. 1, 43 S. B. 
 307; Northern Pac. Ry. Co. v. Urlin, 158 U. S. 271; Bagley v. Mason, 69 Vt 
 175, 37 Atl. 287. 
 
 2T Bacon v. Charlton, 7 Cush. 581; Roosa v. Boston I^oan Co., 132 Mass 
 439; Central Ry. Co. v. Smith, 76 Ga. 209, 2 Am. St. Rep. 31; Keley v, 
 Detroit Ry. Co., 80 Mich. 237, 20 Am. St. Rep. 514; Firkins v. Chicago G, 
 W. Ry. Co. (Minn.), 63 N. W. 172; Roach v. Western & A. Ry. Co., 
 93 Ga. 785. Statements of the plaintiff, made long after the accident, that 
 he suffered pain and could not perform certain work are inadmissible 
 Winter v. Central Iowa Ry. Co., 74 Iowa, 448. 
 
 »• Roche T. Brooklyn Ry. Co, 105 N. Y. 294, 53 Am. Rep. M* 
 
§ 349 EES GEST^, 437 
 
 nished.'* The declarations of the party to his physician or to other 
 persons as to the cause of the injury, or those charging liability upon 
 other persons are not admissible when not made at the time of the 
 injury.'" But declarations as to the cause of an injury are compe- 
 tent when made at the time of the accident as a part of the res 
 gestae."^ The narration of past occurrences, for example, the man- 
 ner in which a party has been injured, are no more competent when 
 related by a physician, than when stated by a non-professional wit- 
 ness.'" Nor are the declarations of one physician or surgeon to an- 
 other respecting the injury, made in the absence of the party, com- 
 petent ; '* nor is the plaintiff, the injured party, allowed to state 
 what the physician told him as to the nature of the injury.'* De^ 
 clarations of the character now under diseiission are regarded as 
 verbal acts, and, when coming within the rules already given, are 
 admissible although made during the pendency of an action for the 
 injuries in question or even when an action is contemplated. These 
 are facts which may, of course, materially affect the credibility of 
 the evidence, but they do not render it incompetent.'" Under such 
 
 i^Aveson v. Kinnaird, 6 East, 188; Illinois Cent. Ry. Co. v. Sutton, 42 
 111. 438, 92 Am. Dec. 81; Roosa v. Boston I^an Co., 132 Mass. 439; Quaife 
 V. Chicago & N. W. Ry. Co., 48 Wis. 513, 33 Am. Rep. 821; Broyles v. Prls- 
 cock, 97 Ga. 643, 25 S. E. 389; Salem v. Webster, 192 111. 369, 61 N. B. 323; 
 Omberg v. Ins. Co., 101 Ky. 303, 40 S. W. 909, 72 Am. St. Rep. 413. But 
 see. Lush v. McDaniel, 13 Ired. (N. C.) 485, 57 Am. Dec. 566; Rogers v. 
 Grain, 30 Tex. 284; Abbott v. Heath, 84 Wis. 314. 
 
 30 State T. Gedicke, 43 N. J. L. 86; Roosa v. Boston Loan Co., 132 Mass. 
 439; Smith v. State, 53 Ala. 486; Illinois C. Ry. Co. v. Sutton, 42 111. 438, 
 92 Am. Dec. 81; Collins v. Waters, 54 111. 485; Carthage T. Co. v. Andrews, 
 102 Ind. 138, 52 Am. Rep. 653; Morrisey v. Ingham, 111 Mass. 63; Ash- 
 land V. Marlborough, 99 Mass. 47; Grand Rapids Ry. Co. v. Huntley, 38 
 Mich. 537; Lush v. McDaniel, 13 Ired. (N. C.) 485, 57 Am. Dec. 566; 
 Pordyce v. McCants, 51 Ark. 509, 14 Am. St. Rep. 69; Gray v. McLaughlin, 
 26 Iowa, 279. Declarations made four years after the accident were re- 
 jected, Laughlin v. Grand Rapids Ry. Co., 80 Mich. 154. 
 
 SI North American Ace. Ass'n. v. Woodson, 64 Fed. 689; Delaware, L. & 
 W. Ry. Co. V. Ashley, 67 Fed. 209. 
 
 32Dundas v. Lansing, 75 Mich. 499, 13 Am. St. Rep. 457; Will v. Men- 
 don, 108 Mich. 251, 66 N. W. 58, See § 376 supra. 
 
 38 Ponca V. Crawford, 18 Neb. 551. 
 
 3* Armstrong v. Ackley, 71 Iowa, 76; Alabama Ry. Co. v. Arnold, 81 
 Ala. 600. 
 
 ssAveson v. Kinnaird, 6 Bast, 188; Quaife v. Chicago & N. W. Ry. Co., 
 *"« Wis. 513, 33 Am. Rep. 821; Metteson v. New York Central Ry. Co., 35 
 N. Y. 487; Brown v. New York C. Ry. Co., 32 N. Y. 597; Barber v. Merrlam, 
 11 Alien. 322. 
 
438 THE LAW OF EVIDENCE. § 350 
 
 circumstances and, indeed whenever declarations are admissible, it 
 is for the jury to determine whether they express the real feelings 
 of the party or whether they are feigned ; and for obvious reasons, 
 whenever there appears a motive to manufacture testimony, the 
 declarations should be subjected to the closest scrutiny.^^ In some 
 eases the rule illustrated in this section has been so applied as to 
 admit declarations to prove the mental condition or state of mind 
 of the declarant,'^ or his design or plan.^' 
 
 § 350 (353). Declarations showing motive or intent. — On the 
 grounds already stated, it is the constant practice to receive evi- 
 dence of the declarations of parties accompanying their acts to show 
 the motive or intent or state of mind with which such acts were per- 
 formed. Thus, when the issue is one of fraud, the natural and un- 
 premeditated declarations of the parties during the negotiations are 
 admissible." "Where the question is whether a party has acted 
 pradently, wisely, or in good faith, the information on which he 
 acted, whether true or false, is original and material evidence, and 
 not hearsay. ' ' *° "Where emotions, feelings, or state of mind, of third 
 parties are to be proved the courts often permit their declarations 
 as original evidence although such statements have many of the ele- 
 ments of hearsay. This has often been illustrated in actions for the 
 alienation of wife's affections, and in other actions where state of 
 feeling has been relevant.*^ It is an interesting illustration of the 
 
 "•Central Ry. Co. v. Smith, 76 Ga. 209, 2 Am. St. Rep. 31 and note; :. 
 Greenl. Ev. § 102. Such declarations may be proved by any witness hear- 
 ing them, Howe v. Plalnfield, 41 N. H. 135. 
 
 »7 Mutual Life Ins. Co. v. Hillman, 145 U. S. 285; Com. v. Trefethen, 157 
 Mass. 185, 31 N. E. 961; State v. Howard, 32 Vt. 380; Cornelius v. State, 
 12 Ark. 782, 805. 
 
 38 Rogers V. Ins. Co., 138 Cal. 285, 71 Pac. 348; Denver & R. G. R. Co. v. 
 Spencer, 27 Colo. 313, 61 Pac. 606; Weightnovel v. State (Pla.), 35 So. 
 856; Com. v. Trefethen, 157 Mass. 185, 31 N. E. 961; State v. Hayward, 62 
 Minn. 474, 65 N. W. 63; People v. Conklin, 175 N. Y. 333, 67 N. E. 624; 
 Sharland v. Ins. Co., 101 Fed. 206; Rens v. Relief Ass'n, 100 Wis. 266, 75 
 N. "W. 991. 
 
 39 Banfield v. Parker, 36 N. H. 353. As to declarations by co-conspirators, 
 see note, 1 L. R. A. 273. 
 
 *o Friend v. Hamill, 34 Md. 298, 308; Smith v. Whittier, 95 Cal. 293, 30 
 Pac. 529. 
 
 41 Bailey v. Bailey, 94 la. 629, 63 N. W. 341; McKenszie v. Lauten- 
 schlager, 113 Mich. 171, 71 N. W. 489; Rose v. Mitchell, 21 R. I. 270, 43 
 Atl. 67; Roesner v. Darrah, 65 Kan. 599, 70 Pac. 597; Horner v. Yance, 93 
 "Wis. 352, 67 N. W. 720; Lockwood v. Lockwood, 67 Minn. 476, 70 N. "W. 
 784, alienation of husband's affection; Preston v. Bowers, 13 Ohio St. X. 
 
§ 351 RES GEST^. 439 
 
 principle on whicli declarations are received as part of the res ges- 
 tae that even declarations of ly-standers when made in a state of 
 nervous excitement and when made spontaneously in such a manner 
 as to be a part of the transaction throwing light upon it are ad- 
 mitted.^^ In an action by an infant passenger to recover for per- 
 sonal injuries received by jumping from a train in motion, the evi- 
 dence of one traveling in the car with the injured person to the ef- 
 fect that he told the latter that he thought the train would stop was 
 held admissible, as it was in immediate connection with the plaint- 
 iff's act and explanatory of his motives and mental condition.^" In 
 an action for false representations in the sale of property, the de- 
 fendant may show the statements made to him when he purchased 
 the property, for the purpose of showing his motive, as well as the 
 information on which he had acted ; and also that he believed it to 
 be true.** The declarations of a grantor made contemporaneously 
 with the execution of a deed, though not in the presence of the gran- 
 tee, may be admissible in favor of creditors to show a fraudulent iiir 
 tent.*» 
 
 § 351 (354). Declarations by possessor of personal property. — 
 The declarations of persons in possession of personal property are 
 often received as verbal acts characterizing and explaining the na- 
 ture of such possession, that is, as part of the res gestae. Possession, 
 unexplained, is prima facie evidence of ownership in the possessor. 
 But such possession is entirely consistent with ownership in another; 
 
 82 Am. Dec. 340; Ash v. Prunler, 105 Fed. 722, alienation of husband's 
 affections. See note 44 Am. St. Rep. 848. In other actions, Pettlt v. 
 State, 135 Ind. 393, 34 N. E. 1118; Driver v. Driver, 153 Ind. 88, 52 N. B. 
 401; State v. Butts, 107 la. 653, 78 N. W. 687; Horner v. Yance, 93 Wis. 
 352, 67 N. W. 720; Laurence v. Laurence. 164 111. 367, 45 N. B. 1071; dec- 
 larations as to reason for conduct, Rudd v. Rounds, 64 Vt. 432, 25 Atl. 438; 
 Academy of Music Co. v. Davidson, 85 Wis. 129, 55 N. W. 172; Charley v. 
 Potthof, 118 Wis. 258, 95 N. W. 124; Glass v. Bennett, 89 Tenn. 482, 14 
 S. W. 1085. 
 
 *2Appleton V. State, 61 Ark. 590, 33 S. W. 1066; State v. Desroches, 
 48 La. 428, 19 So. 250; State v. Duncan, 116 Mo. 288, 22 S. W. 699; Coll v. 
 Transit Co., 180 Pa. 618, 37 Atl. 89. Contra, State v. Bellard, 50 La. An. 
 594, 23 So. 504, 64 Am. St. Rep. 461; Butler v. Railway Co., 143 N. Y. 417, 
 38 N. E. 454, 42 Am. St. Rep. 738; Ganaway v. Dramatic Ass'n, 17 Utah. 37 
 53 Pac. 830. 
 
 43 Hemmingway v. Chicago, M. & St. P. Ry. Co., 72 Wis. 42, 7 Am. St 
 Rep. 823. 
 
 4* Beach v. Bemis, 107 Mass. 498. 
 
 45 McDowell V. Goldsiolth, 6 Md. 319, 61 Am. Dec 305; Pearson t. For- 
 syth, 61 Ga. 537, 
 
440 THE LAW OF EVIDENCE. § 351 
 
 and, therefore, the conduct and declarations of the possessor may be 
 material to show the nature of his possession whether as owner, part 
 owner or agent.*" Thus, the declarations of a debtor, while in pos- 
 session of personal property after a sale or transfer by him, which 
 show fraud in the transfer are admissible against the vendee, and in 
 favor of creditors.*^ The declarations of employes or other persons 
 in possession of goods, while at work upon them, that they belonged 
 to the plaintiff are admissible in his favor.*' Other illustrations of 
 the rule are the declarations of a guardian at the time of purchasing 
 property, and afterward while in possession of it,*' or those of a 
 bailee in possession."" But it has been held that the declarations of a 
 servant in possession of chattels attached for his debt, to the effect 
 that they are his property, are inadmissible against his master in an 
 action against the attaching officer; '^ and in another case the decla- 
 rations of the agent in possession were received in favor of the prin- 
 cipal on the question of ownership, but on the ground that the de- 
 clarations were made while the agent was separating different par- 
 cels for the purpose of distinguishing what belonged to one person 
 and what to another, and hence the declarations were regarded as a 
 part of the transaction."^ While declarations which relate to the 
 nature of the possession may be admitted as a part of the res gestae, 
 
 4»DaTles v. Pierce, 2 T. R. 53; Doe v. Rickarby, 5 Esp. 4; Doe v. Payne, 
 1 Stark. 86; Martin v. Martin, 174 111. 371, 51 N. B. 691, 66 Am. St. Rep. 
 290; Roebke v. Andrews, 26 Wis. 311; Gross v. Smith, 132 N. C. 604, 44 S. 
 B. Ill; Avery v. Clemens, 18 Conn. 306, 46 Am. Dec. 323; Abney v. Kings- 
 land, 10 Ala. 355, 44 Am. Dec. 491; Fellows v. Smith, 130 Mass. 378; Abeel 
 V. Van Gelder, 36 N. Y. 513; Mobile Savings Bank v. McDonald, 89 Ala. 
 434, 18 Am. St. Rep. 137; Hall v. Young, 37 N. H. 134; Lloyd v. Farrell, 
 48 Pa. St. 73, 86 Am. Dec. 563; Black v. Thornton, 30 Ga. 361; State v. 
 Schneider, 35 Mo. 533; Durham v. Shannon, 116 Ind. 403, 9 Am. St. Rep. 
 860; Lowman v. Sheets, 124 Ind. 416; Reiley v. Haynes, 38 Kan. 259, 5 Am. 
 St. Rep. 737; Hardy v. Moore, 62 Iowa, 65; Bradley v. Spoffiord, 23 N. H. 
 444, 55 Am. Dec. 205. As to declarations by former owners of personal 
 property, see § 244 supra. 
 
 *i Willies V. Farley, 3 Car. & P. 395; Talcott v. Wilcox, 9 Conn. 134; 
 Burgert v. Borchert, 59 Mo. 80. See § 244 supra. 
 
 <8 Bradley v.Spofford, 23 N. H. 444, 55 Am. Dec. 205; Haynes v. Leppig, 
 40 Mich. 602. 
 
 <» Tenney v. Evans, 14 N. H. 343, 40 Am. Dec. 194. But see. Nelson v. 
 Iverson, 24 Ala. 9, 60 Am. Dec. 442. 
 
 w) Avery v. demons, 18 Conn. 306, 46 Am. Dec. 323. As to declarations 
 of a defendant while In possession of goods in an action for larceny see, R. 
 V. Abraham, 2 Car. & P. 550; Allen v. State, 73 Ala. 23. 
 
 ei Abbott V. Hutchins, 14 Me. 390, 31 Ain. Dec. 59. 
 
 •apool V. Bridges, 4 Pick. 377. 
 
§ 352 «ES GEST^. 441 
 
 yet they must he confined to that subject; and those whieh relate to 
 the origin of the title, or to the contract imder which possession is 
 held or to the mode or manner of payment, and other independent 
 facts should be excluded.^' Declarations relating to the possession 
 of property are received on the ground that they are part of the 
 res gestae, and not merely on the ground that they are admissions, 
 or against the interest of the declarant; and hence, if coming within 
 the rule in other respects, they may be admitted although favorable 
 to the interest of the declarant.^* 
 
 § 352 (355). Declarations by one in possession of land — When 
 admitted in disparagement of title. — Under the subject of admis- 
 sions we have discussed the question of the admissibility of declara- 
 tions of former owners of land as against those in privity with 
 them; and it is now necessary to consider another class of declara- 
 tions by persons in the possession of lands.^° Where the declara- 
 tions of a person in possession of land are clearly in disparagement 
 of his title or adverse to his interest, such declarations may, subject 
 to proper limitations, be received against the declarant or those hold- 
 ing under him on the general principles governing admissions."' 
 But it sometimes happens that declarations accompanying the pos- 
 session of land and explaining or characterizing such possession are 
 received, although they are not adverse to the interest of the de- 
 clarant or those holding under him. The test is whether the declara- 
 tion forms a part of or tends to explain a transactioh which is ma- 
 terial and relevant to the issue."' Thus in ejectment, where the issue 
 is whether the possession of the land in question has been adverse to, 
 
 »3 Abney v. Kingsland, 10 Ala. 355, 44 Am. pec. 491; Thompson v. Maw- 
 hinney, 17 Ala. 362, 52 Am. Dec. 176; Sweet v. "Wright, 57 Iowa, 510; Ray 
 V. Jackson, 90 Ala. 513. Declarations by a possessor of chattels as to 
 the character of his holding are evidence against him and those holding 
 under him, but not against strangers, Carroll v. Frank, 28 Mo. App. 69. 
 
 5*Lowman v. Sheets, 124 Ind. 416; Durham v. Shannon, 116 Ind. 403, 
 9 Am. St. Rep. 860. 
 
 OS See §§ 239 et seq. supra. 
 
 B«Bowen v. Chase, 98 U. S. 254; Poorman v. Miller, 44 Cal. 269; Deming 
 V. Carrington, 12 Conn. 1, 30 Am. Dec. 591; Marcy v. Stone, 8 Cush. 4, 
 54 Am. Dec. 736; Melvin v. Bullard, 82 N. C. 33; Potts v. Everhart, 26 
 Pa. St. 493; Miller v. Ternane, 50 N. J. L. 32. 
 
 BTDavies v. Pierce, 2 T. R. 53; Doe v. Rickarby, 5 Esp. 4; Jackson v. 
 Bard, 4 Johns. (N. Y.) 230, 4 Am. Dec. 267; Norton v. Pettibone, 7 Conn. 
 319, 18 Am. Dec. 116; Blake v. White, 13 N. H. 267; Daggett v, Shaw, 5 
 Met 223; Abeel v. Van Gelder, 36 N. Y. 513; Cuddy v. Foreman, 107 Wis. 
 519, 83 N. W. 1103. See also, Robbins v. Spencer, 140 Ind. 483, 38 N, 
 E. 622. 
 
442 THE LAW OF EVIDENCE. § 355j 
 
 or as a tenancy under the plaintiff, evidence of the aels and declara- 
 tions of the person in possession tending to explain his relation to 
 the property are admissible, although he is not a party.^^ The dee 
 larations of one occupying land to the effect that he occupies it as 
 a tenant of another person are admissible to prove possession by the 
 latter in an action brought against him by a third person claiming 
 title to the land ; ^' and in an action for trespass, the declarations of 
 a former occupant, under whom defendant claims were held admis- 
 sible for the same purpose."" But where it is proved that a party in 
 possession is a tenant, his declarations are not admissible against his 
 landlord, unless such declarations were made known to the land- 
 lord.°^ In ejectment where it is shown that an occupant of the land 
 had paid rent, his declarations and statements accompanying the 
 act and relating thereto are admissible to explain his interest and 
 object. But statements made at the same time as to the title of for- 
 mer owners of the land or other collateral matters are not compe- 
 tent.°^ So the declarations made by the warrantor in a deed, while 
 in possession, which go to show in what character and with what 
 intent he entered upon and continued his possession are admissible 
 in favor of the title derived from him to show in what character he 
 had entered and held possession."^ If a grantor retains possession 
 of the premises in a manner inconsistent with the terms of the deed, 
 his declarations respecting the ownership or the terms on which he 
 holds possession are competent. But they are not competent, if sueh 
 possession is consistent with the terms of the conveyance ; "* and 
 when the vendor remains in possession, his declarations as to the 
 claim under which he holds are competent to show his good faith, 
 where that is in issue."'' 
 
 § 353 (356). Same — Possession must be shown. — ^Before decla- 
 rations of the character under discussion can be received, it must 
 of course be shown that the declarant had possession. This may 
 appear by actual occ-upan cy and enclosure, or by partial occupancy 
 under deed or contract which carries out a constructive possession 
 
 B» Moore v. Hamiltoh, 44 N. T. 666, >Jarper v. Morse, 114 ifto. 317. See 
 note, 60 Am. Dec. 449. 
 
 ooMarcy v. Stone, 8 Cush. 4, 54 Am. Deo. 736. 
 
 •oMorss V. Salisbury, 48 N. Y. 636. 
 
 •1 Ingram v. Little, 14 Ga. 173, 58 Am. Dec. 549. See § 243 supra. 
 
 •sRigg.v. Cook, 4 Gilm. (111.) 336, 46 Am. Dec. 462. -; 
 
 «3 Jackson v. VredenlDurgh, 1 Johns. (N. Y.) 159. ' 
 
 e* ■Williams v. Williams, 11 Lea (Tenn.) 355; Mobile Sav. Bank v. Mc- 
 Donnell, 89 Ala. 434, 18 Am. St. Rep. 137, 
 
 •• Osgood V. Eaton, 63 N. H. 355. 
 
§ 355 RES GEST^. 443 
 
 commensurate with its terms of local description, or by other acts of 
 ownership.^" It was held in an English case that the mere cutting 
 of timber on land was prima facie such an evidence of ownership as 
 to admit the declarations of such person to the effect that some other 
 person was owner."' But some of the American cases have declined 
 to give such latitude to the declarations of those in mere constructive 
 possession.** 
 
 § 354 (357). Declarations ■ proper to show character of posses- 
 sion—Not to destroy record title. — Although the declarations of 
 a party in possession of land are competent to show the character 
 of his possession, as that he holds as a tenant or by virtue of an exec- 
 utory contract to purchase,*^ or as agent of another,'!" or as joint 
 occupant with another,'"^ or that the occupancy is adverse to or in 
 subordination to the title of another,'^ yet there are certain limita- 
 tions which must be observed. Such declarations are only competent 
 to show the character of the possession of the person making them, 
 and by what title he holds. They are not competent to sustain or 
 destroy the record title; and declarations contrary to the tenor of 
 deeds or similar documents which a party has executed are not ad- 
 missible.'^ 
 
 § 355 (358). Declarations as to boundary lines. — ^Declarations 
 of those in possession, in respect to the boundary lines or the extent 
 of their occupation, are sometimes received as part of the res 
 gestae.''^ Thus to establish adverse possession, the plaintiff may 
 
 oephill. Ev. (Cow & H. Notes) 217, note 166. 
 
 67 Doe ex dem. Stansbury v. Arkwright, 5 Car. & P. 575. 
 
 68 West V. Price, 2 J. J. Marsh. (Ky.) 380. 
 
 69 Dodge v. Freeman's Sav. & Trust Co., 93 U. S. 379 ; Jackson v. Dobbin, 
 3 Johns. (N. Y.) 223; Gibney v. Marchay, 34 N. Y. 301; Cunningham v. 
 Puller, 35 Neb. 58. 
 
 70 Kirkland v. Trott, 66 Ala. 417. 
 
 71 Darling v. Bryant, 17 Ala. 10, 52 Am. Dec. 162. 
 
 72Poorman v. Miller, 44 Cal. 269; Little v. Libby, 2 Greenl. (Me.) 242, 
 11 Am. Dec. 68; West Cambridge v. Lexington, 2 Pick. 536; Marcy v. Stone, 
 8 Gush. 4, 54 Am. Dec. 736; Stearns v. Hendersass, 9 Cush. 497, 57 Am. 
 Dec. 65; Potts v. Everhart, 26 Pa. St. 493; Hurt v. Evans, 49 Tex. 311; 
 Beecher v. Parmele, 9 Vt. 352, 31 Am. Dec. 633; Bowen v. Chase, 98 V. 
 S. 254; Peaceable v. Watson, 4 Taunt. 16. 
 
 7a Dodge V. Freeman's Sav. & Trust Co., 93 U. S. 379; Bowen v. Chase, 98 
 U. S. 254; Gibney v. Marchay, 34 N. Y. 301; Parry v. Parry, 130 Pa. St. 94; 
 McKinon v. Meston, 104 Mich. 642, 62 N. W. 1014; Gilbert v. Odum, 69 Tex. 
 671. See § 241 supra. 
 
 74 Brewer v. Brewer, 19 Ala. 481; Norton v. Pettibone, 7 Conn. 319, 
 18 Am. Dec. 116; Davis v. Campbell, 1 Ired. (N. C.) 482; Abeel v. Van 
 G«lder, 36 N. Y. 513. See §§ 304 et seq. supra. 
 
444 THE LAW OF EVIDENCE. § 356 
 
 prove the declarations of former owners under whom he claims, 
 when such declarations were made during possession and while de- 
 fining or pointing out the boundaries to a person negotiating for the 
 purchase. '° But in a Wisconsin case it was held no part of the res 
 gestae where the declarations pointing out the boundary were made 
 by the grantor at the time of sale. It was held that the declarations 
 did not accompany the act of possession, but rather the act of part- 
 ing with the title and possession, and when the declarant was di- 
 rectly interested to claim the largest dimensions for the land.". So 
 declarations of the grantor after the conveyance of the land by him 
 are clearly inadmissible.'^ In Massachusetts declarations of owners 
 or persons in possession made while pointing out the boundaries 
 seem to be held inadmissible, unless made by persons deceased who 
 had no motive to misrepresent.'* 
 
 § 356 (359). Declarations of agents. — Whatever an agent does 
 in the lawful exercise of his authority is imputable to the principal- 
 and where the acts of the agent will bind the principal, his repre- 
 sentations, declarations and admissions respecting the subject mat- 
 ter will also bind him, if made at the same time, and constituting 
 part of the transaction and declarations of this character are oftei 
 classed in the decisions as res gestae.''^ Thus in an action for pur - 
 chase money, the false representations of the vendor's agent madt 
 during the negotiations may be shown.*" The same is true in aD 
 action for refusing to accept merchandise sold ; the decl8~stiMM of 
 
 »» Abeel v. Van Gelder, 36 N. Y. 513. 
 
 '•Lampe v. Kennedy, 60 Wis. 110. 
 
 IT Hills v. Ludwig, 46 Ohio St. 373; Castro v. Fry, 33 "W. Va. 449; Chase 
 V. Horton, 143 Mass. 118; Vrooman v. King, 36 N. Y. 477; Brown v. 
 Callender, 105 111. 88. 
 
 78 Long V. Colton, 116 Mass. 414; Morrill v. Titcomb, 8 Allen, 100; 
 Adams v. Swansea, 116 Mass. 591; Fellows v. Smith, 130 Mass. 378. As 
 lo representations as to private boundaries see, Colbeys v. Ripley, 22 W. 
 Va. 154, 46 Am. Rep. 502. 
 
 i» American Fur Co. v. United States, 2 Peters, 358; Vicksburg & M. Ry. 
 Co. V. O'Brien, 119 U. S. 99; Converse v. Blumrlch, 14 Mich. 109, 90 Am. 
 Dec. 230; Burnham v. Ellis, 39 Me. 319, 63 Am. Dec. 625; Thallhimer v. 
 Brinkeroff, 4 Wend. 394, 21 Am. Dec. 155; Jones v. Jones, 120 N. Y. 589; 
 Gott V. Dinsmore, 111 Mass. 45; Llnblom v. Ramsey, 75 111. 246; Hawk v. 
 Applegate, 37 Mo. App. 32; St. Louis & St. F. Ry. Co. v. Weaver, 35 
 Kan. 412; United States v. Gooding, 12 Wheat. 460. See Prof. Thayer's 
 discussion to the effect that such declarations should not be received undei 
 the rules as to res gestae but under general rules of agency, ;15 Am. L. 
 Rev. 80. See §§ 255 supra, 357 infra. 
 
 «» Wiggins V. Leonard, 9 Iowa, 194; Hammatt v. Emerson, 27 Me. 308, 
 46 Am. Dec. 598. So as to the sale of a note, Labdell v. Baker, 1 Met. 193. 
 
§ 356 BES GEST^. 445 
 
 the agent of the defendant as to the quality of the goods, while 
 weighing and receiving of them, are competent.'* In an action 
 against a railroad company for ejecting a passenger from the car, 
 the language of the employe while in the performance of the act 
 is admissible.''' "Where a corporation, sucTi as a railroad 6r an in- 
 surance company, invests an agent with genei'al authority to adjust 
 claims against it, his declarations made while endeavoring to secure 
 an adjustment of the claim are competent evidence against the prin- 
 cipal.'' An agent who has charge of the construction of a building 
 may bind his employer by his admissions explaining payments relat- 
 ing thereto.'* Other illustrations of statements admissible against 
 the principal are those of the agent at the time of the sale of per- 
 sonal property,'" or at the time of a fire, to the effect that it was 
 caused by his negligence." It is of course an indispensible requisite 
 to the admission of the declarations of an agent as part of the res 
 gestae that such agency or authority ie first proved.^'' Such agency 
 cannot be proved by the declarations themselves, no mat+er how pub- 
 licly made ;" nor by such declarations accompanied by acts purport- 
 ing to be in behalf of the principal imless they are brought to his 
 knowledge.'* It is also a requisite to the admission of such declar- 
 ations that they be made during the continuance of the agency, and 
 in regard to a transaction still pending. Thus, a conversation be- 
 tween agents or employes of a railroad company concerning a past 
 transaction is clearly incompetent as evidence against the' com- 
 
 81 Rahm V. Delg, 121 Ind. 283. 
 
 82 Marlon v. Chicago Ry. Co., 64 Iowa, 568. But language used a few 
 minutes afterwards Is not admissible, Barker v. St. Louis, I. M. & S. Ry. 
 Co. (Mo.), 28 S. W. 866. 
 
 88 Adams Exp. Co. v. Harris, 120 Ind. 73, 16 Am. St. Rep. 315. As to 
 declarations by agents of corporations see next section. 
 
 84 Cook V. Hunt, 24 111. 535. 
 
 85 Gilson V. Wood, 20 111. 37. 
 
 86 Shafer v. Lacock, 168 Pa. St. 497. 
 
 8T Reynolds v. Continental Ins. Co., 36 Mich. 131; Harker v. Dement, 9 
 Gill (Md.) 7, 52 Am. Dec. 670; Maxey v. Heckethorn, 44 111. 438; Carter v. 
 Burnham, 31 Ark. 212; Dawson v. Landreaux, 29 La. An. 363; Peck v. 
 Ritchey, 66 Mo. 114; French v. Wade, 35 Kan. 391; Stollenwerck v. 
 Thacher, 115 Mass. 224; Wood M. Co. v. Crow, 70 Iowa, 340. See also § 278 
 supra and cases there cited. 
 
 ssMussey v. Beecher, 3 Cush. 517; Brigham v. Peters, 1 Gray, 145; 
 Trustees v. Bledsoe, 5 Ind. 133; McCormick v. Roberts, 36 Kan. 552- 
 Kirchner v. Laughlin (N. M.), 23 Pac. 175; Wood M. Co. v. Crow, 70 
 rowa. 340. 
 
 8»Mussey v. Beecher, 3 Cush. 517; Brigham v. Peters, 1 Gray, 145; 
 Trustees v. Bledsoe, 5 Ind. 13i 
 
446 THE liAW OP EVIDENCE. § 357 
 
 pany ; °° and the declarations of the president of a corporation rela- 
 tive to its ownership or as to its former dealings with other parties, 
 which are not shown to have been made while in the performance of 
 his duties as such officer or while doing business contemporaneously 
 with the declarations, are not binding on the company.*^ 
 
 § 357 (360). Declarations by agents of corporations. — ^This sub- 
 ject is frequently illustrated in the case of declarations of agents 
 and employes of corporations and other defendants in actions for 
 negligence. Thus, the declarations of an employe or officer as to 
 who was responsible for an accident, or as to the manner in which 
 it happened, when made at the time of the accident or soon after, 
 have been held incompetent, as against the company, on the ground 
 that his employment did not carry with it authority to make de- 
 clarations or admissions at a subsequent time as to the manner in 
 which he had performed his duty ; and that his declaration did not 
 accompany the act from which the injuries arose and was not ex- 
 planatory of anything in which he was then engaged, but that it 
 was a mere narration of a past occurrence. °^ But, as we h^ve al- 
 ready pointed out, there is a class of cases in which the rule that 
 the declaration must be contemporaneous with the act, is construed 
 less strictly ; and in which such declarations are admitted, although 
 not technically contemporaneous, if they are spontaneous and tend 
 
 »o Union Pac. Ry. Co. v. Fray, 35 Kan. 700; Brie & W. V. Ry. Co. v. 
 Smith, 125 Pa. St. 259, 11 Am. St. Rep. 895. 
 
 oiRicketts v. Birmingham St. Ry. Co., 85 Ala. 600; Goetz v. Bank of 
 Kansas City, 119 U. S. 551. See § 357 infra. 
 
 »2 Vicksburg Ry. Co. v. O'Brien, 119 U. S. 99. The same rule has been 
 applied in a great variety of cases, Alabama Ry. Co. v. Hawk, 72 Ala. 
 112, 47 Am. Rep. 403, similar declarations a few minutes after the 
 accident; Durkee v. Central Pac. Ry. Co., 69 Cal. 553, 58 Am. Rep. 562, 
 five minutes after. In the following cases the declarations were made 
 immediately or soon after the accident and yet they were rejected, Port 
 Smith Oil Co. v. Slover 58 Ark. 168, 24 S. W. 106; Little Rock T. & B. Co. 
 V. Nelson, 66 Ark. 494, 52 S. W. 7; Leistritz v. American Zylonite Co., 154 
 Mass. 352; Ryan v. Gilmer, 2 Mont. 517, 25 Am. Rep. 744; Ruschenberg v. 
 Southern Electric Co., 161 Mo. 70, 61 S. W. 626; "Walker v. O'Connell, 59 
 Kan. 306, 52 Pac. 894; Patterson v. St. Louis Co., 54 Mich. 91; Luby v. 
 Hudson River Ry. Co., 17 N. Y. 131; Erie Ry. Co. v. Smith, 125 Pa. St. 259, 
 11 Am. St. Rep. 895; Cleveland Ry. Co. v. Mara, 26 Ohio St. 185; Suther- 
 land V. Wilmington & W. Ry. Co. (N. C), 11 S. E. 189; Chesapeake 
 Ry. Co. V. Reeves (Ky.), 11 S. W. 464; Chicago Ry. Co. v. Becker, 128 111. 
 545, 15 Am. St. Rep. 144; Richmond & D. Ry. Co. v. Hammond, 93 Ala. 
 181; Chattanooga Ry. Co. v. Liddell, 85 Ga. 482, 21 Am. St. Rep. 169; San 
 Antonio & A. P. R. Co. v. Gray, 95 Tex. 424, 67 S. W. 763; Northern Pac. 
 Ry. Co. V. Kempton, 138 Fed. 992. 
 
§ 357 RES GEST^. 447 
 
 to explain the transaction, and if so slight an interval of time has 
 elapsed as to render premeditation improbable."^ Accordingly in 
 numerous cases the declarations of employes and agents, made soon 
 after an accident, have been received as part of the res gestae."* 
 The transaction may be oi, such a character as to extend through a 
 considerable period of time; and in such cases the declarations of 
 the agent in reference to the business, if within the scope of his au- 
 thority, may be received, provided they are made before such trans- 
 action is completed. Thus, a letter or other statement of an officer 
 of a corporation respecting a transaction which forms the subject of 
 the controversy is admissible in an action against the corporation, 
 if made while the transaction is in progress."" The declarations of 
 a baggage-master in answer to inquiries after lost baggage,"" and 
 the statements of an insurance agent during a controversy about the 
 renewal of insurance, to the effect that he delivered a certificate of 
 renewal, are admissible on the same ground."' Although most of the 
 illustrations given above relate to the declarations of agents of cor- 
 porations, it need hardly be added that the same general principles 
 
 «3 Springfield Consolidated Ry. Co. v. Welsh, 155 111. 511, 40 N. B. 1034; 
 Alsever v. Railway Co., 115 la. 338, 88 N. W. 841. See § 346 iupra. 
 
 i>*Keyser v. Chicago & G. T. Ry. Co., 66 Mich. 390, declarations made 
 after fifty minutes; Hooker v. Chicago, M. & St. P. Ry. Co., 76 Wis. 542; 
 Illinois Cent. Ry. Co. v. Troustine, 64 Miss. 834, after fourteen hours at 
 the place of the accident; Wengler v. Missouri Ry. Co., 16 Mo. App. 493. 
 after several days; Pennsylvania Ry. Co. v. Lyons, 129 Pa. St. 113, 15 Am. 
 St. Rep. 701; New York Mining Co. v. Rogers, 11 Colo. 6, 7 Am. St. Rep. 
 198; O'Connor v. Chicago Ry. Co., 27 Minn. 166; Bass v. Chicago Ry. Co., 
 42 Wis. 654, 24 Am. Rep. 437; Brownell v. Pacific Ry. Co., 47 Mo. 239; 
 Cleveland v. Newsome, 45 Mich. 62; Augusta Factory v. Barnes, 72 Ga. 
 218; Leahey v. Cass Ave. Ry. Co., 97 Mo. 165, 10 Am. St. Rep. 300; Ohio & 
 M. Ry. Co. V. Stein, 133 Ind. 243; Hermes v. Chicago Ry. Co., 80 Wis. 590, 
 27 Am. St. Rep. 69; Wabash Ry. Co. v. Brow, 65 Fed. 941; Springfield Con- 
 solidated Ry. Co. V. Welsh, 155 111. 511, 40 N. E. 1034; Blledge v. National C. 
 & 0. Ry. Co., 100 Cal. 282; San Antonio & A. P. Ry. Co. v. Gray, 95 Tex. 424, 
 67 S. W. 763; Roberts v. Port Blakely Mill Co., 30 Wash. 25, 70 Pac. Ill; 
 Wilson V. Southern Pac. Co., 13 Utah, 352, 44 Pac. 1040, 57 Am. St. Rep. 766; 
 Sample v. Consolidated Light & Ry. Co., 50 W. Va. 472, 40 S. B. 597. But 
 mere exclamations by agents of corporations, not relating to the cause of 
 the accident, are not admissible, Butler v. Manhattan Ry. Co., 143 N. Y. 
 417; Omaha & R. V. Ry. Co. v. Chollette, 41 Neb. 578. 
 
 ■»oXenla Bank v. Stewart, 114 U. S. 224; Hamilton Buggy Co. v. Iowa 
 Buggy Co., 88 Iowa, 364. 
 
 »8 Morse v. Connecticut Ry. Co., 6 Gray, 450; Illinois Cent. Ry. Co. v. 
 Troustine, 64 Miss. 834; Nichols v. Southern Pac Ry. Co., 23 Ore. 123, by 
 ticket Inspector. 
 •I Scott V. Home Ins. Co., 63 Wis. 238. 
 
448 THE LAW OF EVIDENCE. § 358 
 
 govern as in the case of the agents of individuals. To bind the prin- 
 cipal, the declarations must be within the agent's authority and 
 must accompany an act which he is authorized to do."' 
 
 § 358 (360). General rule. — In a leading case on this subject 
 in Massachusetts, which has often been quoted and approved, the 
 general rules governing the subject are summarized. These rules 
 are illustrated by the cases already cited : First, The admission of 
 evidence of this kind is not left to the discretion of the trial judge, 
 but is governed by principles of law which must be applied to par- 
 ticular cases as other principles are applied in the exercise of a 
 judicial judgment ; and errors of judgment in this case, as in othe" 
 cases, may be examined and corrected ; Second, If a declaration has 
 its force by itself as an abstract statement detached from any partic 
 ular fact in question, depending for its effect upon the credit of the 
 person making it, it is not admissible, but is mere narrative wholly 
 detached from the fact to be proved; Third, When the act of a 
 party may be given in evidence, his declarations made at the time 
 are admissible, when they are calculated to elucidate and explain 
 the character and qualilty of the act, and so connected with it as to 
 constitute one transaction, deriving its credit from the act itself; 
 Fourth, There must be a main or principal fact or transaction ; and 
 only such declarations are admissible which grow out of the princi- 
 pal transaction and serve to illustrate its character, and are contem- 
 porary with, and derive some degree of credit from it; Fifth, The 
 main transaction is not necessarily confined to a particular point of 
 time, but may extend over a longer or shorter period, according to 
 the nature and character of the transaction." 
 
 osworden v. Humeston Ry. Co., 72 Iowa, 201; Fairfield Co. v. Thorp, 13 
 Conn. 173; Hayward v. Pilgrim See, 21 Pick. 270; Crump v. United States 
 Mining Co., 7 Gratt. (Va.) 352, 56 Am. Dec. 116; Troy Ins. Co. v. Carpenter, 
 4 Wis. 20; Loomis v. New York, N. H. & H. R. Ry. Co., 159 Mass. 39. See 
 also § 356 supra. 
 
 »» Lund T. Inhabitants of Tyngsborough, 9 Cush. 36. 
 
CHAPTEE 12. 
 
 OPINIONS. 
 
 § 359. Opinions In general Inadmissible. 
 
 360. Exceptions to the general rule — Opinions of ordinary witnesses. 
 
 361. Same— Identity. 
 
 362. Same — Speed of railroad trains. 
 
 363. Same— Values. 
 
 364. Same — Sanity. 
 
 365. Same — As to sanity in will cases. 
 
 366. Same — In general — Conclusion. 
 
 367. Expert testimony — Grounds of admission. 
 
 368. Same — Proof of qualifications of experts. 
 
 369. Same — A preliminary question for the court. 
 
 370. Mode of examination — Hypothetical questions. 
 
 371. Hypothetical questions to be based upon prool, 
 
 372. The expert not to decide questions of fact. 
 
 373. Same, continued. 
 
 374. Opinions based upon testimony heard or read by the expert. 
 
 375. Opinions based on personal knowledge. 
 
 376. Opinions based on hearsay — Conclusions of law, etc. 
 
 377. Form of hypothetical questions. 
 
 378. Physicians and surgeons. 
 
 379. Same — Testimony of physicians ana others as to poisons. 
 
 380. Mechanics and mp^hinists as experts. 
 
 381. Expert testimony as to railroads and their management. 
 
 382. Experts in agriculture. 
 
 383. Experts in insurance matters. 
 
 384. Illustrations of expert testimony by surveyors and engineers. 
 
 385. Opinions of nautical men. 
 
 386. Miscellaneous illustrations. 
 
 387. Expert testimony as to values. 
 
 388. Opinions as to amount of damages. 
 
 389. Cross-examination of experts — ^Latitude allowed. 
 
 390. Infirmity of expert testimony.* 
 
 391. Same, continued. 
 
 392. Expert testimony — ^When valuable. 
 
 § 359 (361). Opinions in general inadmissible. — There is no 
 more familiar principle in the law of evidence than that the- opin- 
 ions of witnesses are in general irrelevant. Omne sacramentum 
 debet esse certae scientiae. Even when witnesses are limited in 
 their statements to facts within their own knowledge, their bias, 
 'gnorance and disregard of the truth are obstacles which too often 
 29 
 
450 THE LAW OP EVIDENCE. § 360 
 
 hinder in the investigation of the truth. If it were a general rule 
 of procedure that witnesses might be allowed to state not only those 
 matters of fact about which they are supposed to have knowledge, 
 but also the opinions they might entertain about the facts in issue,- 
 the administration of justice would become little less than a farce. 
 But the general rule rejecting evidence as to the opinions of wit- 
 nesses is subject to very important exceptions; and it will be the 
 object of this chapter to illustrate those exceptions. By far the 
 most numerous exceptions to the general rule are those found in 
 cases in which the opinions of experts are received in evidence. 
 Evidence of this character is not admissible upon subjects that are 
 within the knowledge of all men of common education and experi- 
 ence. Mere opportunity does not change an ordinary observer into 
 an expert ; and special skill will not entitle a witness to give an ex- 
 pert opinion, when the subject is one where the opinion of an ordi- 
 nary observer is admissible, or where the jury is capable of forming 
 its own conclusions from facts susceptible of proof in common 
 form.^ 
 
 § 360 (362). Exceptions to the general rule — Opinions of ordi- 
 nary witnesses. — We shall first call attention to a class of excep- 
 tions where the opinions of ordinary witnesses are received. It 
 often happens that it is impossible for a witness to detail all the 
 pertinent facts in such a manner as to enable the jury to form a con- 
 clusion without the opinion of the witness. Indeed, the witness may 
 not be able to separate the facts and indications from which he has 
 formed a conclusion from the conclusion itself.^ From many of the 
 illustrations given below it will appear that, from the necessity of 
 the case, the opinions of ordinary witnesses must often be received. 
 The ground upon which opinions are admitted in such eases is, 
 that, from the very nature of the subject in issue, 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.' Although 
 
 * 
 iKocis V. State, 56 N. J. L. 44; Atchison, T. & S. F. Ry. Co. v. Lawler, 40 
 
 Neb. 3B6; Connelly v. Hamilton Woolen Co., 163 Mass. 156, 39 N. E. 787; 
 
 Reynolds v. Van Beuren, 31 N. Y. S. 827; Coe v. Van Why, 33 Colo. 315, 80 
 
 Pac. 894. These from the multitude of cases will serve to indicate the rule 
 
 adopted by the courts. 
 
 2Yahn v. Ottumwa, 60 Iowa, 429; Atchison Ry. Co. v. Miller, 39 Kan. 
 419; Railway Co. v. Schultz, 43 Ohio St. 282, 54 Am. Rep. 812; Bates v. 
 Sharon, 45 Vt. 474; Louisville, N. A. & C. Ry. Co. v. Miller (Ind.), 37 
 N. E. 343; Baltimore & 0. Ry. Co. v. Rambo, 59 Fed. 75. 
 
 3 The opinions of those not experts, may be received as to the dispo- 
 sition or temper of animals, Whittier v. Franklin, 46 N. H. 23, 88 Am. 
 
§ 360 OPINIONS. 451 
 
 some of the illustrations given below approach very closely the bor- 
 der line, it is not to be inferred that the opinions of ordinary wit- 
 aesses are competent as to those subjects which require such special 
 
 Dec. 185; Sydelman v. Beckwith, 43 Conn. 9; Matteson v. State, 55 Ala. 
 224; Noble v. St. Joseph St. Ry. Co., 98 Mich. 249; as to matters of color, 
 weight, quantity, light, darkness, the state of the weather and similar 
 facts, Com. v. Sturtivant, 117 Mass. 133, 19 Am. Rep. 405 ; Bass Co. v. Glass- 
 cock, 82 Ala. 452; Filley v. Billings, 26 Neb. 537; the state of feeling exist- 
 ing between persons, Blake v. People, 73 N. Y. 586; McKee v. Nelson, 4 
 Cow. 355, 15 Am. Dec. 384; Tobin v. Shaw, 45 Me. 331, 71 Am. Dec. 547; 
 Brownell v. People, 38 Mich. 732; the appearance of individuals, Shaw- 
 neetown v. Mason, 82 111. 337; Wilkinson v. M-oseby, 30 Ala. 562; South & 
 N. Ala. Ry. Co. v. McLendon, 63 Ala. 266; Barker v. Coleman, 35 Ala. 221; 
 Holland v. Zollner, 102 Cal. 633; State v. Knapp, 45 N. H. 148; Rogers v. 
 Grain, 30 Tex. 284; Thompson v. Shalkop, 71 Pa. St. 161; Healy v. Visalia 
 & T. Ry. Co., 101 Cal. 585; Canady v. Lynch, 27 Minn. 435; Stone v. Moore, 
 83 Iowa, 186; Hare v. Board of Education, 113 N. C. 9, whether or not a 
 person has African blood in his veins; the appearance of animals, State v. 
 Ward, 61 Vt. 153; Welch v. Miller, 32 111. App. 110; the age of persons. 
 Com. V. O'Brien, 134 Mass. 198; Foltz v. State, 33 Ind. 215; Morse v. State, 
 6 Conn. 9; De Witt v. Barly, 17 N. Y. 340; Benson v. McPaddon, 50 Ind. 
 431; Kansas Pac. Ry. Co. v. Miller, 2 Colo. 442; Marshall v. State, 49 Ala. 
 21; Eisner v. Knights of Honor, 98 Mo. 640; the reputation of parties or 
 witnesses, when under other rules of evidence such reputation becomea 
 material, Bryan v. Walton, 20 Ga. 480; Goodwyn v. Goodwyn, 20 Ga. 600; 
 Snow v. Grace, 29 Ark. 131; Childs v. State, 55 Ala. 28, 33; the general 
 physical condition of a person, Ferguson v. Davis Co., 57 Iowa, 601; core- 
 clusions as to the appearance of another person, as that he seemed nervous. 
 State V. Baldwin, 36 Kan. 1; or sad. Culver v. Dwight, 6 Gray, 444; Tobin 
 V. Shaw, 45 Me. 331, 71 Am. Dec. 547; or in pain or good health, Chicago 
 B. & Q. Ry. Co. V. George, 19 111. 510, 71 Am. Dec. 239; Carthage Turnpike 
 Co. V. Andrews, 102 Ind. 138, 52 Am. Rep. 653; Smalley v. Appleton, 70 
 Wis. 340; Louisville, N. A. & C. Ry. Co. v. Wood, 113 Ind. 544; Heddles v. 
 Chicago & N. W. ^y. Co., 77 Wis. 228; Robinson v. Exempt Fire Co., 103 
 Cal. 1; that a person's mind seemed to be clear or had failed. People v. 
 Sanford, 43 Cal. 29; Com. v. Brayman, 136 Mass. 438; Chickering v. Brooks, 
 61 Vt. 554;. Johnson v. Culver, 116 Ind. 278; State v. Leehman, 2 S. Dak. 
 171 ; that he needed medical assistance, Chicago, B. & Q. Ry. Co. v. George, 
 19 111. 510, 71 Am. Dec. 239; the manner in which a person had acted as, 
 for example, that he acted In a childish manner. Parsons v Parsons, 66 
 Iowa, 754; Irish v. Smith, 8 Serg. & R. (Pa.) 573, 11 Am. Dec. 648; or in 
 an eccentric manner. Eraser v. Jennison, 42 Mich. 206; or in a jocular 
 manner. Powers v. State, 23 Tex. App. 42; that a child was "fully de- 
 veloped," Hubbard v. State, 72 Ala. 164; that a person was intoxicated. 
 People V. Eastwood, 14 N. Y. 562; Choice v. State, 31 Ga..424; Pierce v. 
 State, 53 Ga. 365; State v. Pike, 49 N. H. 407, 6 Am. Rep. 533; Aurora v. 
 Hillman, 90 111. 61; Pierce v. Pierce, 38 Mich. 412; Stacy v. Portland Pub. 
 Co., 68 Me. 279; Cole v. Bean, 1 Ariz. 377; People v. Vehorn, 110 Cal. 503, 
 48 Pac. 495; State v. Gather, 121 Iowa, 106, 96 N. W. 722; Campbell v. Fi- 
 
452 THE LAW OF EVIDENCE. § 360 
 
 study and skill as distinguish tie expert from the ordinary wiljiess ; 
 for example, to distinguish between forms of disease, or to state the 
 cause and consequences of disease.* 
 
 § 361 (363). Same — ^Identity. — ^In like manner witnesses may 
 often testify with reasonable certainty as to the identity of persons 
 or things when, if they were merely allowed to specify the details 
 
 delity & C. Co., 109 Ky. 661, 60 S. W. 492; Burt v. Burt, 168 Mass. 204, 46 N 
 E. 622; Edwards v. Worcester, 172 Mass. 104, 51 N. B. 447; appeared angry, 
 Fields V. State (Fla.), 35 So. 185; Jenkins v. State, 82 Ala. 25; State v. 
 Shelton, 64 Iowa, 333; appeared ill. West Chicago St. R. Co. v. Fishman, 
 169 111. 196, 48 N. E. 447; appeared to 6e suffering, Chicago & E. I. R. Co. v. 
 Randolph, 199 111. 126, 65 N. K 142; South & N. Ala. Ry. Co. v. McLendon, 
 63 Ala. 266; Wright v. Port Howard, 60 Wis. 119, 50 Am. Rep. 350; Isher- 
 wood V. Lumber Co., 87 Minn. 388, 92 N. W. 230; Werner v. Railway Co., 
 105 Wis. 300, 81 N. W. 416; looked badly, Bailey v. Centreville, 108 Iowa, 
 20, 78 N. W. 831; appeared disgusted, Fritz v. Tel. Co., 25 Utah, 263, 71 Pac. 
 209; looked sick, Reminghaus v. Merchants' L. Ass'n, 116 Iowa, 364. 89 N. 
 W. 113; O'Neil v. Hanscom, 175 Mass. 313, 56 N. E. 587; Domlnlck v. Ran- 
 dolph, 124 Ala. 557, 27 So. 481; appeared to be satisfied. Piano Mfg. Co. v. 
 Kautenberger, 121 Iowa, 213, 96 N. W. 743; looked as though he had not 
 slept. State v. Marceaux, 50 La. An. 1137, 24 So. 611; appeared pale, Hall v. 
 Austin, 73 Minn. 134, 75 N. W. 1121; looked frightened, State v. Tighe, 27 
 Mont. 327, 71 Pac. 3; Thornton v. State, 113 Ala. 43, 21 So. 356, 59 Am. St. 
 Rep. 97; Manahan v. Halloran, 66 Minn. 483, 69 N. W. 619; seemed to be 
 weak. Birmingham R. & F. Co. v. Franscomb, 124 Ala. 621, 27 So. 508; such 
 testimony has been admitted as to appearance of wound. Fuller v. State, 
 117 Ala. 36, 23 So. 688; appearance of cartridge, Orr v. State, 117 Ala. 69, 23 
 So. 696; that a woman was nice looking, Childs v. Muckler, 105 Iowa, 279, 
 75 N. W. 100; facial appearance as showing malice, Hainsworth v. State, 
 136 Ala. 13, 34 So. 203; appearance of tracks as if person was running and 
 walking, Smith v. State, 137 Ala. 22, 34 So. 396; position of assailant as 
 shown by wound, Stevens v. State (Ala.), 35 So. 122; that parties on a bed 
 seemed to have sexual intercourse, Bizer v. Bizer, 110 Iowa, 248, 81 N. W. 
 465; whether a call sounded like one iu distress. State v. Taylor, 57 S. C 
 483, 35 H E. 729, 76 Am. St. Rep. 575; that a man and woman were 
 'ntiwMte, State v. March, 70 Vt. 288, 40 Atl. 836; that defendant seemed 
 isiioOere in making confession, Horn v. State, 12 Wyo. 80, 73 Pac. 705; 
 flight of time by hours, Schwantes v. State, 127 Wis. 160, 106 N. W. 237. 
 In the following instances the evidence was excluded, that a woman was 
 in a delicate condition, State v. Reinheimer, 109 Iowa, 624, 80 N. W. 
 669; that another person was watching the boy, Handley v. Railway 
 Co., 61 Kan. 237, 59 Pac. 271; that his conduct seemed natural and 
 genuine. People v. Smith, 172 N. Y. 210, 64 N. E. 814; that he 
 treated her very affectionately, State v. Brown, 86 Iowa, 121, 53 N. W. 92; 
 that a person was shamming, Cole v. Railway Co., 95 Mich. 77, 54 N. W. 638; 
 Hiat a person was envious, People v. Dowd, 127 Mich. 140, 86 N. W. 546; 
 that injuries were permanent, Atlanta St: Ry. Co. v. Walker, 93 Ga. 462. 
 In these cases the data on which the opinion is based need not be stated 
 beforehand, State v. McKnight, 119 Iowa, 79, 93 N. W. 63. Orlinarily wit- 
 
§ 361 OPINIONS. 453 
 
 and facts on which their conclusions depended, their testimony 
 would be of no value." Hence the statements of witnesses as to 
 identity are not necessarily rejected although they are unable to 
 describe the features of the person in question, or his clothing or 
 other particulars on which the conclusion depends.' For example, 
 the identification may be based upon the voice alone ; and it would 
 be obviously impossible for a witness to describe the tones of voice 
 in such a manner that from the description alone the jury could ar- 
 rive at any satisfactory conclusion.' The testimony of the chemist 
 who has analyzed blood, and that of the observer who has merely 
 recognized it belong to the same legal grade of evidence, and though 
 
 nesses are not allowed to state the meaning or their understanding of 
 conversations, Fields v. Copeland, 121 Ala. 644, 26 So. 4W; Whltmore v. 
 Ainsworth (Cal.), 38 Pac. 196; Diehl v. State, 157 Ind. 549, 62 N. E. 51; 
 State V. Brown, 86 Iowa, 121, 53 N. W. 92; Piano Mfg. Co. v. Kautenber- 
 ger, 121 Iowa, S13. 96 N. W. 743; Peerless Mfg. Co. v. Gates 61 Minn. 124, 
 63 N. W. 260; of coarse the substance may be stated and in some cases 
 the opinion of the witness as to meaning has been received, Shafer v. 
 Hausman (Ala.), 35 So. 691; Norton v. Parsons, 67 Vt. 526, 32 Atl. 481. 
 
 * State V. Hockett, 70 Iowa, 442; Boies v. McAllister, 12 Me. 308; Monon- 
 gahela Co. v. Stewartson, 96 Pa. St. 436; Lush r. McDaniel, 13 Ired. (N. C.) 
 485, 57 Am. Dec. 566; Thompson v. Bertrand, 23 Ark. 730; Chicago, B. & 
 Q. Ry. Co. V. George, 19 111. 510, 71 Am. Dec. 239; Shawneetown v. Mason, 
 82 111. 337; United Brethren M. Aid Soc. v. O'Hara, 120 Pa. St 256; Evans 
 V. People, 12 Mich. 27. 
 
 » Walker v. State, 58 Ala. 393; Wiggins v. Henson, 68 Ga. 819; Robert- 
 son V. State, 40 Pla. 509, 24 So. 474; Keith v. State, 157 Ind. 376, 61 N. E. 
 716, of a corpse; State v. Ward, 61 Vt. 153; State v. Babb, 76 Mo. 501; King 
 V. New York C. Ry. Co., 72 N. Y. 607; Woodward v. State, 4 Baxt. (Tenn.) 
 322; Turner v. McPee, 61 Ala. 468; Com. v. Sturtivant, 117 Mass. 122, 19 
 Am; Rep. 401; Com. v. Kennedy, 170 Mass. 181, 48 N. E. 770; Com. v. Wil- 
 liams, 105 Mass. 62, by a person's voice; Com. v. Dorsey, 103 Mass. 412, by 
 the hair; Beale v. Posey, 72 Ala. 323, by a person's walk; Com. v. Pope, 
 103 Mass. 440; State v. Morris, 84 N. C. 756, by the size of a person's foot; 
 State V. Reitz, 83 N. C. 634, by the form of a foot; State v. Folwell, 14 
 Kan. 105, by peculiar tracks of a wagon which were identified; Russell v. 
 State, 66 Neb. 497, 92 N. W. 751, by horse tracks; State v. Gushing, 17 
 Wash. 544, 50 Pac. 512; by shoe tracks, Morris v. State, 124 Ala. 44, 27 So. 
 336; State v. Moelchen, 53 Iowa, 310, 5 N. W. 186; State v. Mlllmeier, 102 
 Iowa, 692, 92 N. W. 275; excluded, Terry v. State, 118 Ala. 79, 23 So. 776, 
 by foot tracks; Russell v. State, 62 Neb. 512, 87 N. W. 344, by hors9 
 tracks; People v. Gotshall, 123 Mich. 474, 82 N. W. 274, by size. 
 
 « Sydleman v. Beckwith, 43 Conn. 9; Cooper v. State, 23 Tex. 331; Wood- 
 man V. State, 4 Baxt. (Tenn.) 322. 
 
 1 Com. V. Williams, 105 Mass. 62. But in all cases of Identity the test! 
 mony must depend upon personal knowledge and not upon InformatiaK 
 derived from others, Woodman v. State, 4 Baxt. (Tenn.) 822. 
 
454 THE LAW OF EVIDENCB. § 362 
 
 the one may be entitled to much greater weight than the other 
 with the jury, the exclusion of either would be illegal.' These are 
 only a few of the many illustrations that might be given to show 
 that ordinary witnesses may thus identify objects in cases where 
 any attempt at description to the jury would be obviously unsatis- 
 factory. 
 
 § 362(364). Same — Speed of railroad trains. — It has frequently 
 been held that those who have habitually observed the passage of 
 railroad trains may give an estimate of their rate of speed, and that 
 the testimony on the subject is not confined to experts,® although it 
 has been held that such evidence is of an unsatisfactory character, 
 and is to be received with great caution.^" In Michigan where the 
 court had under consideration the question whether persons riding 
 in the cars could give an estimate as to the rate of speed, it was 
 held that such opinions should not be received, "unless the witnessed! 
 first show such extended experience and observation as to qualify 
 them for forming such opinions as would be reliable. It is not pre- 
 sumable that ordinary railway travelers usually form such hab- 
 its." ^^ Of course in all such cases as have been cited, if the witness 
 
 8 People V. Deacons, 109 N. Y. 374, 16 N. E. 676. Experts may testify 
 whether given blood stains are caused by human or animal blood, Com. v. 
 Sturdivant, 117 Mass. 122, 19 Am. Rep. 401. Ordinary witnesses may 
 testify whether certain stains are blood stains, Dillard v. State, 58 Miss. 
 368; Greenfield v. People, 85 N. Y. 75, 39 Am. Rep. 636. See also. State v. 
 Knight, 43 Me. 133; Knoll v. State, 55 Wis. 249, 42 Am. Rep. 704; People 
 V. Ganzalez, 35 N. Y. 49. 
 
 9 Waller v. Boston Ry. Co., 60 N. H. 483; Guggenheim v. Lake Shore Ry. 
 Co., 66 Mich. 150; Missouri P. Ry. Co. v. Hildebrand, 52 Kan. 284; Salter 
 V. Utica Ry. Co., 59 N. Y. 631; Pennsylvania Ry. Co. v. Conlan, 101 111. 93; 
 Pence v. Chicago, R. I. & P. Ry. Co., 79 Iowa, 389; Louisville Ry. Co. v. 
 Hendricks, 128 Ind. 462; Walsh v. Missouri Pac. Ry. Co., 102 Mo. 582; Ball 
 V. Mabry, 91 Ga. 781; Thomas v. Chicago & G. T. Ry. Co., 86 Mich. 496; 
 Smith v. Northern Pac. Ry. Co., 3 N. Dak. 555, locomotive identified; Nes- 
 bit V. Crosby, 74 Conn. 554, 51 Atl. 550, speed, of horse judged by sound; 
 Illinois 0. R. Co. v. Ashline, 171 111. 313, 49 N. B. 521; Louisville & N. R. Co. 
 V. Stewart, 128 Ala. 313, 29 So. 562; McVey v. Railway Co., 46 W. Va. Ill, 
 32 S. B. 1012; Colorado & S. Ry. Co. v. Webb (Colo.), 85 Pac. 683; Gregory 
 V. Railway Co., 126 la. 230, 101 N. W. 761; Borneman v. Railway Co. 
 (S. D.), 104 N. W. 208. But ordinary witnesses cannot give opinions as 
 to the distance within which a train can 6e stopped, Gourley v. St. Louis 
 Ry. Co., 35 Mo. App. 87; Igo v. Chicago & A. Ry. Co., 38 Mo. App. 377; Wat- 
 son V. Minneapolis St. Ry. Co., 53 Minn. 551, conductor competent to testify 
 as to such fact. 
 
 "> Hoppe V. Chicago, M. & St. P. Ry. Co., 61 Wis. 357. See also. Citizens' 
 St. Ry. Co. V. Spahr, 7 Ind. App. 23. 
 11 Grand Rapids Ry. Co. y. Huntley, 3S Mich. B37, 31 Am. Rep. 321; Mott 
 
§ 363 OPINIONS. 455 
 
 is unable to give any satisfactory basis or reasons for his opinion, 
 the value of his testimony might be greatly impaired; and it is to 
 be observed that the matters as to which ordinary witnesses are 
 allowed to give their opinions are of such a character that they may 
 be understood without special skill or training. ^^ 
 
 § 363 (365). Same — Values. — The same subject is illustrated by 
 many eases in which evidence as to values has been received. As 
 has been well said, "to describe to a jury a piece of ground, however 
 minutely, with its supposed adaptations to use, advantages and dis- 
 advantages, and demand of them, upon this information alone, a 
 verdict as to its value would be merely farcical ; and this, indeed, ia 
 all that can be done to enable them to arrive at a conclusion as to 
 its value, unless the witnesses are allowed to state their judgment 
 or opinion together with the facts upon which ^uch opinion is 
 founded."^' The knowledge of values in most eases does not de- 
 pend upon professional or other special skill ; and witnesses without 
 having any special experience or training as would entitle them to 
 be called experts, may yet have gained such knowledge of the land, 
 or other subject under inquiry, as to aid the court or jury in arriv- 
 ing at a conclusion.^* The witness should know the value of land 
 in the neighborhood. '^° Persons by their common experience and 
 observation necessarily gain some knowledge as to the values of 
 those articles which are in common use by aU or nearly all; and 
 their evidence as to such values is not excluded by the fact that 
 
 V. Railway Co., 120 Mich. 127, 79 N. W. 3. But a more liberal rule prevails 
 in "Wisconsin, Ward v. Chicago, St. P., M. & O. Ry. Co., 85 Wis. 601. 
 
 12 Com. V. Sturtivant, 117 Mass. 122, 19 Am. Rep. 401. 
 
 18 Illmois Ry. Co. v. Van Horn, 18 111. 257. See also § 387 infra. 
 
 "Swan Co. v. Middlesex, 101 Mass. 173; Huff v. Hall, 56 Mich. 456; 
 Pennsylvania Ry. Co. v. Bunnell, 81 Pa. St. 426; Central Ry. Co. v. WoU 
 74 Ga. 664; San Diego Land Co. v. Neale, 78 Cal. 63; Terre Haute Ry. 
 Co. v. Crawford, 100 Ind. 550; Alt v. California Fig., Co., 19 Nev. 118; Dal- 
 zell V. Davenport, 12 Iowa, 437; Whitfield v. Whitfield, 40 Miss. 352; Cant- 
 lihg V. Hannibal Ry. Co., 54 Mo. 385, 14 Am. Rep. 476; Mish v. Wood. 34 Pa. 
 St. 451; Thatcher v.. Kaucher, 2 Colo. 698; Cooper v. State, 53 Miss. 393; 
 Cooper V. Randall, 59 111. 317; Washington Co. v. Webster, 68 Me. 449; 
 Foster v. Ward, 75 Ind. 594; Sullivan v. Lear. 23 Fla. 463, 11 Am. St. Rep. 
 388; Whiting v. Mississippi Ins. Co., 76 Wis. 592; Raggan v. Kansas 
 City Ry. Co., Ill Mo. 456; Latham v. Brown, 48 Kan. 190; Finch v. Chi- 
 cago, M. & St. P. Ry. Co., 46 Minn. 250; Union Pac. Ry. Co. v. Lucas, 
 136 Fed. 374. See also, Roberts v. City of Boston, 149 Mass. 346; Laing v. 
 United N. J. Ry. Co., 54 N. J. L. 576. 
 
 15 Reed V. Pittsburg C. & W. R. Co., 210 Pa. 211, 59 Atl. 1067; Johnson y. 
 Ta.COma, 41 Wash. 51, 82 Pac. 1092. 
 
456 THE LAW OF EVTDENCB. § 364 
 
 experts may have more accurate knowledge as to snch values.*' 
 Obviously the witness must have some means of knowledge as to 
 the nature and quality of the articles in question before he is quali- 
 fied to express an opinion as to values. It would be an idle cere- 
 mony to aUow witnesses to give their opinions in evidence, unless 
 they had better means of knowledge as to the subject matter of 
 their testimony than the jury might possess in common with all 
 other persons.*' The qualification of the witness is, of course, a 
 question for the court.^^ 
 
 § 364 (366). Same — Sanity. — ^In some jurisdictions the rule has 
 prevailed that non-professional witnesses cannot give their opinions 
 as to the sanity or insanity of a party. It is maintained in those 
 eases that such testimony consists of mere opinions of persons hav- 
 ing no peculiar knowledge upon such subjects, and that the court 
 or jury are quite as competent to form opinions from the facts pre- 
 sented as are unskilled witnesses.*' But the contrary rule is sup- 
 ported by the great weight of authority; and the opinions of ordi- 
 nary witnesses have been received on this issue in many eases upon 
 the obvious ground that it is often impossible for witnesses in such 
 cases to adequately describe to the court oi^ jury the actions, looks 
 and symptoms which properly constitute the basis for determining 
 the question."" The opinions of non-professional witnesses, how- 
 
 leChamness v. Chamness, 53 Ind. 301; Lincoln Supply Co. v. Graves 
 (Neb.), 102 N. W. 457; Mauglian v. Burns* Estate, 64 Vt. 316, as to the 
 value of board and lodging. The opinions of witnesses have been received 
 as to the value of a dog, Cantling v. Hannibal Ry. Co., 54 Mo. 385, 14 
 Am. Rep. 476; of a piano. State v. Johnson, 1 Mo. App. 219; of a gun, 
 Cooper V. State, 53 Miss. 398; of articles of clothing, Prlntz v. People, 
 42 Mich. 144, 36 Am. Rep. 437; of a seal skin coat. State v. Finch, 
 70 Iowa, 316, 59 Am. Rep. 443; of a horse. Reed v. New, 35 Kan. 727; of a 
 bull, Alabama Ry. Co. v. Moody, 92 Ala. 279; of oxen, Plunkett v. Minne- 
 apolis Ry. Co., 79 Wis. 222; of bonds, Murray v. Norwood, 77 Wis. 405. 
 
 17 Whitney v. Boston, 98 Mass. 312; Haight v. Kimbak, 51 Iowa, 13; Daly 
 V. Kimball Co., 67 Iowa, 132; Reed v. Drals, 67 Cal. 491; Russell v. Hay- 
 den, 40 Minn. 88; Terpenning v. Corn Ex. Ins. Co., 43 N. Y. 279; Lamoure 
 V. Caryl, 4 Den. 373; Bedell v. Long Island Ry. Co., 44 N. Y. 367; Clark 
 v. Water Co., 52 Me. 68; Frederick v. Case, 28 111. App. 215; Chicago Ry. 
 Co. v. Mourlquand, 45 Kan. 170; Omaha Auction Co. v. Rogers, 35 Neb. 61; 
 New York & C. Mining Co. v. Fraser, 130 U. S. 611. See §§ 387, 388. 
 
 18 Stillwell Manfg. Co. v. Phelps, 130 U. S. 520. 
 
 isWyman v. Gould, 47 Me. 159; Hastings v. Rider, 99 Mass. 622; Dewitt 
 V. Barley, 9 N. Y. 371; People v. Packenham, 115 N. Y. 200; Holcomb v. 
 Holcomb, 95 N. Y. 316; In re Meyer's Will, 184 N. Y. 54, 76 N. E. 920. 
 
 »» Connecticut M. Life Ins. Co. v. Lathrop, 111 U. S. 612; Hardy v. Mer- 
 rill, 56 N. H. 227, 22 Am. Rep. 441; Clary v. Clary, 2 Ired. (N. C.) 78; 
 
§ 365 OPINIONS. 457 
 
 ever, are not admissible in such cases, unless sucli opinions are 
 based upon their own knowledge and observation off the person's 
 appearance ; and it is generally held that before giving an opinion 
 the witness must state the facts and circumstances on which his 
 opinion is based.^* .But no general rule can be laid down as to 
 what shall be deemed a sufficient opportunity for observation, this 
 being a question for the jury in view of all the circumstances of the 
 case, under proper instructions from the court.^* 
 
 § 365 (367). Same — As to sanity in will cases. — ^Even in those 
 states where in general the opinions of witnesses are not received 
 on the question of sanity, the rule is not held applicable to the sub- 
 scribing witnesses to a will, since they are the persons chosen by the 
 testator for the purpose, and are required to take notice of the state 
 of his mind.^' There are obvious objections to allowing witnesses 
 to answer the general question, whether or not a person was capable 
 of making a will, or contract, and the courts have generally excluded 
 conclusions of witnesses in answer to questions whether persons 
 were competent to make wills or to transact other business.^* But 
 
 Norrls v. State, 16 Ala. 776; Holland v. Zollner, 102 Cal. 633; Domlnick v. 
 Randolph. 124 Ala. 557, 27 So. 481; Shaver v. McCarthy, 110 Pa. St. 339; 
 Grubb V. State. 117 Ind. 277; State v. Potts, 100 N. C. 457; Holcomb v. 
 State, 41 Tex. 125; People v. Wreden, 59 Cal. 392; Kelthley v. Stafford, 126 
 111. 507; Seller v. Jones, 22 Ark. 92; Denver & R. G. R. Co. v. Scott, 34 Colo. 
 99, 81 Pac. 763; Clark v. State, 12 .Ohio, 483, 40 Am. Dec. 481; Frizzell v. 
 Reed, 77 Ga. 724; State v. Bryant, 93 Mo. 273; Wise v. Poote, 81 Ky. 10; 
 Chase v. Winans, 59 Md. 475; Burnham v. Mitchell, 34 Wis. 117; Wood- 
 cock V. Johnson, 36 Minn. 217; Wood v. State, 58 Miss. 741: State v. Win- 
 ter, 72 Iowa, 627; Fishburne v. Ferguson, 84 Va. 87; Chickering v. Brooks, 
 61 Vt. 554;) State v. Leehman, 2 S. Dak. 171; Queenan v. Oklahoma, 190 U. 
 S. 458; Swygard v. Willard (Ind.), 76 N. B. 755; Lowe v. State, 118 Wis. 
 641. See full note, 38 L. R. A. 721-747. 
 
 21 Hardy v. Merrill, 56 N. H. 227, 22 Am. Rep. 441; Appleby v. Brock, 
 76 Mo. 314; Ellis v. State (Tex.), 24 S. W. 894; Sharp v. Kansas City 
 Ry. Co., 114 Mo. 94; Lassas v. McCarty, 47 Or. 474, 84 Pao. 76; Chicago 
 Union Traction Co. v. Lawrence, 211 111. 373, 71 N. E. 1024; Boorman v. 
 Northwestern Relief Ass'n., 90 Wis. 144; Hempton v. State, 111 Wis. 127, 
 86 N. W. 596. See cases cited in note 20 supra. 
 
 22 Clary v. Clary, 2 Ired. (N. C.) 78; McClackey v. State, 5 Tex. App. 
 320; Taylor v. Com., 109 Pa. St. 262; Chase v. Winans, 59 Md. 475; Wood 
 V. State, 50- Miss. 741; Wise v. Foote, 81 Ky. 10; Kempf v. Koppa (Kan.), 
 85 Pac. 806; Stutsman v. Sharpless, 125 Iowa, 335, 101 N. W. 105. 
 
 23 See full note, 38 L. R. A. 715-722. 
 
 2*Torrey v. Burney, 113 Ala. 496, 21 So. 348; Turner's Appeal, 72 Conn. 
 305, 41 Atl. 310; Baker v. Baker, 202 111. 595, 67 N. E. 410; McGibbons v. 
 McGibbons, 119 la. 140, 93 N. W. 55; Smith v. Smith, 157 Mass. 389, 32 N. 
 E. 348. 
 
458 THE LAW OF EVIDENCE. § 367 
 
 in other cases testimony of this' character has been received.^" Al- 
 though there*has been considerable conflict as to the admissibility 
 of testimony of this character, it is clearly the rule that opinions of 
 ordinary witnesses after the proper foundation is laid may be re- 
 ceived on the general subject of sanity and insanity.^' 
 
 § 366 (368). Same — In general — Conclusion. — It would be ob- 
 viously impracticable to collect within the limits of this work all 
 the instances in which the opinions of ordinary witnesses have been 
 received as to matters of common knowledge by reason of the neces- 
 sity of the case. The circumstances under which such opinions are 
 admitted are well summarized in a New Hampshire case in the fol- 
 lowing language: "Courts and text- writers all agree that, upon 
 questions of science and skill, opinions may be received from per- 
 sons specially instructed by study and experience in the particular 
 art or mystery to which the investigation relates. But without 
 reference to any recognized rule or principle, all concede the admis- 
 sibility of the opinions of non-professional men upon a great vari- 
 ety of unscientific questions arising every day and in every judicial 
 inquiry. These are questions of identity, handwriting, quantity, 
 value, weight, measure, time, distance, velocity, form, size, age, 
 strength, heat, cold, sickness and health, questions also concerning 
 various mental and moral aspects of humanity, such as disposition 
 and temper, anger, fear, excitement, intoxication, veracity, general 
 character and particular phases of character, and other conditions 
 and things, both moral and physical, too numerous to mention. . . . 
 Opinions of witnesses derived from observation are admissible in 
 evidence when, from the nature of the subject luider investigation, 
 no better evidence can be obtained. ' ' " 
 
 § 367 (369). Expert testimony — Grounds of admission. — We 
 have seen that in the administration of justice it is often foimd 
 necessary to admit the opinions of ordinary witnesses as evidence. 
 It might, indeed, be urged with some force that in many of the 
 
 25 Hayes v. Candee, 75 Conn. 131, 52 Atl. 826; Ring v. Lawless, 190 111. 
 520, 60 N. E. 881; Jones v. Collins, 94 Md. 403, 51 Atl. 398; In re Butler's 
 Will, 110 Wis. 70, 85 N. W. 678. 
 
 26 State V. Shuff, 9 Ida. 115, 72 Pac. 664; Fenton's Will, 97 Iowa, 192, 
 66 N. W. 99; State v. ,Benerman, 59 Kan. 586, 53 Pac 874; Clarke v. 
 Irvin, 63 Neb. 539, 88 N. W. 783; Com. v. Brown, 193 Pa. 507, 44 AO. 497. 
 See cases cited in last section. 
 
 2T Hardy v. Merrill, 56 N. H. 227, 22 Am. Rep. 448. See also, Wilson v. 
 New York, N. H. & H. R. Ry. Co., 18 R. I. 598, 29 Atl. 300; Healy v. Visalia 
 & T. Ry. Co., 101 Cal. 585; Union Pac. Ry. Co. v. Gilland, 4 Wyo. 596. 34 
 
§ 368 OPINIONS. 459 
 
 cases cited in the preceding sections the witnesses testified not as 
 to their opinions, but as to independent facts ; and it must be con- 
 ceded that in the admission of testimony it is often difficult to draw 
 the line between the domain of fact and that of inference or opinion. 
 It has been suggested that it would be more logically accurate to 
 say that mere opinions, even of experts, are not admissible as such, 
 but that, facts having been proved, the testimony of men skilled in 
 such matters may be admitted to prove the existence of mere gen- 
 eral facts or the laws of nature or the course of business, so as to 
 enable the jury to form their own inferences.^* If the non-profes- 
 sional witness must on grounds of necessity, be sometimes allowed 
 to state the inferences which irresistibly rise in his mind from those 
 minute facts which he cannot detail, there are still stronger reasons 
 for receiving, under proper limitations, the opinions of those skilled 
 in matters of trade or science. In a great variety of cases where 
 the subjects under investigation are wholly unfamiliar to the jury 
 or even to the judge, there would be no adequate mode of arriving 
 at any satisfactory conclusion, if expert testimony were rejected. 
 In recognition of this fact the courts have adopted the rule of ad- 
 mitting the opinions of witnesses whenever the subjeot matter of 
 inquiry is such that inexperienced persons are unlikely to prove 
 capable of forming a correct judgment upon it without such assist- 
 ance; in other wQrds, when it so far partakes of the nature of a 
 science as to require a course of previous habit or study in order to 
 attain a knowledge of it.^" 
 
 § 368 (370). Same — Proof of qualifications of experts. — ^It now 
 becomes necessary to discuss at some length the conditions undei; 
 which expert testimony may be given. "While it is clear that the 
 witness in order to be competent as an expert must show himself 
 to be skilled in the business or profession to which the subject re- 
 
 Pac. 953. Such opinions are not admissible in cases In ■which the jury can 
 draw their own Inferences from the facts detailed, McLaughlin v. Web- 
 ster, 141 N. Y. 76; Manufacturers Co. v. Dorgan, 58 Fed. 945. 
 
 28 Mayor of N. Y. v. Pentz, 24 Wend. 668. But illustrations In the suc- 
 ceeding pages will show that experts are themselves constantly allowed to 
 draw Inferences and state opinions based upon facts proved. See note, 19 
 Am. Rep. 410. 
 
 2»Polkes v. Chadd, 3 Doug. (Mich.) 157; R. v. Searle, 1 Moody & Rob. 
 75; Thornton v. Royal Exchange Assurance Co., Peake, 25; Chaurand v. 
 Angerstein, Peake, 43; McNaghten's Case, 10 Clarlc & P. 200; Fenwlck v. 
 Bell, 1 Car. & K. 312; Kelly v. Richardson, 69 Mich. 430; Nelson v. Sun 
 Ins. Co., 71 N. Y. 453; Schwantes v. State, 127 Wis. 160, 185-187; Scbutz 
 V. Railway CO., 181 N, Y. 33, 73 N. E. 491. 
 
4:60 THE LAW OF EVIDENCE. § 368 
 
 lates, there is no precise rule as to the mode in which such skill or 
 experience must be acquired. Thus, the witness may have become 
 qualified by actual experieiwe or long observation without having 
 made a study of the subject.'" On the other hand he may be an 
 expert although his knowledge has been derived from the study of 
 the subject, and not from actual experience or practice in the busi- 
 ness or profession. Thus, is has sometimes been held that a phy- 
 sician may give opinions as to matters connected with his profes- 
 sion or with medical science, although in his own practice he may not 
 have had experience as to such matters, and although his knowledge 
 in respect thereto is derived from study only,'^ even though he 
 may not have made the disease under inquiry a specialty.''' On the 
 
 30 Slater v. Wilcox, 57 Barb. (N. Y.) 604, testimony of a farmer as to 
 the diseases of cattle; Mason v. Fuller, 45 Vt. 29, of a midwife as to a 
 premature birth; Estate of Toomes, 54 Cal. 509, 35 Am. Rep. 93, held that 
 the experience and training of a priest had fitted him to give an opinion as 
 to the sanity of a person; Emrick v. Merriman, 23 111. App. 24, testimony 
 of a cattleman as to the diseases of cows; McPherson v. St. Louis, I. M. 
 & S. Ry. Co., 97 Mo. 253, opinion of a farmer as to capacity of a railroad 
 culvert to carry away water; Kerns v. Chicago, M. & St. P. Ry. Co., 94 
 Iowa, 121, 62 N. W. 692, of an old railroad man as to the usual mode of 
 coupling cars. 
 
 3iMendam v. Com., 6 Rand. (Va.) 704; State v. Clark, 12 Ired. (N. C.) 
 151; State v. Wood, 53 N. H. 484; Germania L. Ins. Co. v. Ross-Lewin, 
 24 Colo. 43, 51 Pac. 488, 65 Am. St. Rep. 215; Hardiman v. Brown, 162 
 Iowa, 585, 39 N. B. 192; People v. Thacker, 108 Mich. 652, 66 N. W. 562; 
 Boswell V. State, 114 Ga. 40, 39 S. E. 897; Isenhour v. State, 157 Ind, 517, 
 62 N. E. 40, 87 Am. St. Rep. 228. But see, Soquet v. State, 72 Wis. 659, 
 where a physician who had never had a case of arsenical poisoning was 
 ■ held incompetent as an expert; see also. Kath v. Railway Co., 121 Wis. 503, 
 513. But the opposite rule was declared in Siebert v. People, 143 111. 571. 
 See also, Caleb v. State, 39 Miss. 721. In Howard v. Great Western Ins. Co., 
 109 Mass. 384, a chemist's opinion was received as to a substance In which 
 he had never dealt. In Central Ry. Co. v. Mitchell, 63 Ga. 173, the opinion 
 of a civil engineer derived solely from books was admitted. In Castner v. 
 Sliker, 33 N. J. L. 95, 107, it was held that a physician, not an oculist or 
 surgeon, may testify as to an injury to the eye. Conversely if the facts 
 are of such nature as call for no special knowledge or skill the opinions 
 of experts are inadmissible, Schutz v. Railway Co., 181 N. Y. 33, 73 N. E. 
 491; State v. Musgrave (W. Va.), 28 S. B. 813. See also, § 379 infra. 
 
 32 Hathaway v. National Life Ins. Co., 48 Vt. 335. For example, in cases 
 of Insanity, Hastings v. Rider, 99 Mass. 622; State v. Reddick, 7 Kan. 143; 
 Baxter v. Abbott, 7 Gray, 71; Schneider v. Manning, 121 111. 376; Potts v. 
 House, 6 Ga. 324, 50 Am. Dec. 329; Guetig v. State, 66 Ind. 94; State v. 
 Windsor, 5 Har. (Del.) 512; People v. Schuyler, 106 N. Y. 298. But see, 
 Com. V. Rich, 14 Gray, 335; Payette v. Chesterville, 77 Me. 28, 52 Am. Rep. 
 741; Russell V. State, 53 Miss. 367; Hutchins v. Ford, 82 Me. 363, 
 
§ 368 OPINIONS. 461 
 
 same principle one who is familiar with the diseases of man may be 
 allowed to testify as an expert concerning the diseases of animals.'' 
 The law of a foreign country or sister state may be proved not only 
 by jurists and lawyers who have practiced their profession in that 
 jurisdiction,'* but also by those not lawyers who, from their official 
 position or business relations, have become acquainted with such 
 laws.'" Courts will take notice that certain pursuits are so inti- 
 mately connected with others as to give those following one of such 
 pursuits unusual facilities for becoming acquainted with the other ; 
 and if the occupation and experience of the witness have been such 
 as to give him the requisite means of knowledge of the subject, he 
 may be competent as an expert, although engaged in some other oc- 
 cupation '^ or even if he has abandoned the business to which the 
 inquiry relates.'^ It is necessary that the witness should possess 
 
 83 state V. Sheets, 89 N. C. 543; Horton v. Green, 64 N. C. 64; Pierson v. 
 Hoag, 47 Barb. (N. Y.) 243; House v. Fort, 4 Blackf. (Ind.) 293. 
 
 8* Dyer v. Smitli, 12 Conn. 384; Wilson v. Carson, 12 Md. 54; Bollinger 
 V. Gallagher, 163 Pa. St. 245; Baron De Bode's Case, 8 Q. B. 208; Mowry v. 
 Chase, 100 Mass. 79; Consolidated Real Estate Co. v. Cashow, 41 Md. 59; 
 Layton v. Chalon, 4 La. An. 318; Wilson v. Smith, 5 Yerg. (Tenn.) 379; 
 McNeil V. Arnold, 17 Ark. 154; Brewer v. Luth, 28 Kan. 581; Temple v. 
 Board of Commissioners, 111 N. C. 36. But a particular construction of a 
 statute cannot thus be shown, Clark v. Eltinge, 39 Wash. 696, 80 Pac. 556. 
 
 35 Vander Donckt v. Thellusson, 8 C. B. 812, 65 E. C. L. 812; Wilcock v. 
 Phillips, 1 Wall. Jr. (U. S.) 47; American Life Ins. Co. v. Rosenagle, 77 
 Pa. St. 507; Pickard v. Bailey, 26 N. H. 152; Sussex Peerage Case, 11 Clark 
 & F. 134; Bird v. Com., 21 Gratt. (Va.) 800; People v. MeQuaid, 85 Mich. 
 123; Massucco v. Tomassi, 78 Vt. 188, 62 Atl. 57. See § 502 infra. 
 
 38 Detroit Ry. Co. v. Van Steinberg, 17 Mich. 99, opinion of a mail agent 
 as to the running and stopping of a train; Wilson v. Bauman, 80 111. 493, 
 opinion of builders as to the custom of architects; Nelson v. Wood, 62 Ala. 
 175, of the owner of a tannery, though not a practical tanner, as to the 
 process of tanning; Barnes v. Ingalls, 39 Ala. 193, daguerrean as to 
 photography; Brabbits v. Chicago & N. W. Ry. Co., 38 Wis. 289, of the 
 engineer of a stationary engine as to a locomotive; Mobile Ry. Co. v. 
 Blakely, 59 Ala. 471, of a conductor as to the means of stopping a train; 
 Snyder v. Western Union Ry. Co., 25 Wis. 60, opinion of farmers as to the 
 value of lands. Contra, Kilbourn v. Jennings, 38 Iowa, 533, painter not 
 allowed to testify as to the quality of carpenter work, which he painted. 
 The contrary rule has also been hel(J when there is no such opportunity 
 tor knowledge. Brown v. Providence Ry. C, 12 R. I. 238; Teerpennlng v. 
 Corn Ex. Ins. Co., 43 N. Y. 279, farmer not allowed to testify as to value 
 of goods destroyed by the burning of a store. 
 
 37 Bearss v. Copley, 10 N. Y. 98; Robertson v. Knapp, 35 N. Y. 91, 
 opinion of a farmer who had become a mechanic; TuUis v. Kidd, 12 Ala. 
 648, of a physician who had become a lawyer; Everett T. State, 62 Ga. 65, 
 
462 THE LAW OF EVIDENCE. § 369 
 
 the requisite skill either from actual study, experience or observa- 
 tion. The mere opportunity of obtaining such skill does not suf- 
 fice.^' 
 
 § 369 (371). Same — A preliminary question for the court. — 
 When a witness is offered as an expert, it becomes a preliminary 
 question for the court to determine whether he has the requisite 
 qualifications ; and for the purpose of determining this question, the 
 witness himself may be examined as to his opportunities and means 
 of knowledge of the subject under inquiry.^" Other witnesses may 
 also be called upon this preliminary question; and those who are 
 qualified may give their opinions thereon.*" But the expert cannot 
 give his own opinion as to his own qualifications.*^ Nor is the evi- 
 dence of the other witnesses admissible as to such qualifications, 
 after the evidence has .been received.*^ In determining the question 
 in any given case the court has first to decide whether the subject 
 is one upon which the opinion of an expert can be received, and 
 also what are the qualifications necessary to entitle the witness to 
 testify as an expert.*^ It is the prevailing rule that the decision of 
 the trial court as to the competency of the expert is a preliminary 
 question resting in the discretion of the court and unltiss founded 
 on some error of law, or on serious mistake, or abuse of discretion 
 this ruling is not reversible.** 
 
 of a retired physician. See also, McEwan v. Bigelow, 40 Mich. 215, witness 
 excluded who had abandoned the business for twenty years; Parnum v. 
 Pitcher, 151 Mass. 470, or for twenty-three years. 
 
 38 Ellingwood v. Bragg, 52 N. H. 490, opinion of a lawyer as to hand- 
 writing; Goldstein v. Black, 50 Cal. 462, a clerk of court as to handwrit- 
 ing; Page V. Parker. 40 N. H. 47; Perkins v. Stickney, 132 Mass. 217. 
 
 39Boardman v. Woodman, 47 N. H. 120; McDonald v. Ashland, 78 Wis. 
 251, 47 N. W. 434. 
 
 ♦oMendum v. Com., 6 Rand. (Va.) 704; Tullis v. Kldd, 12 Ala. 648; 
 Laros v. Com., 84 Pa. St. 200; Mason v. Phelps, 48 Mich. 126; State v. 
 Maynes, 61 Iowa, 119; Hoag v. Wright, 174 N. Y. 36, 66 N. E. 579. 
 
 *i Boardman v. Woodman, 47 N. H. 120; Langston v. Southern Electric 
 Ry. Co. (Mo.), 48 S. W. 835. 
 
 «2 Tullis V. Kldd, 12 Ala. 648; DePhul v. State, 44 Ala. 32; Brabo v. 
 Martin, 3 La. 177; Birmingham Ry. & Electric Co. v. Ellard (Ala.), 33 So. 
 276. 
 
 48 Chicago & A. Ry. Co. v. Springfield & N. W. Ry. Co., 67 111. 142; Heald 
 V. Thing, 45 Me. 392; State v. Secrest, 80 N. C. 450; Tullis v. Kldd, 12 Ala. 
 648; State v. Ward, 29 Vt. 225; Tyler v. Todd, 36 Conn. 218; Sandwich 
 Manfg. Co. v. Nicholson, 32 Kan. 666; Nelson v. Sun Ins. Co., 71 N. Y. 
 453; Lincoln v. Barre, 5 Cush. 590; State v. Cole, 63 Iowa, 695; Mutual 
 Fire Ins. Co. v. Alvord, 61 Fed. 752; Inland & Seaboard Coasting Co. v. 
 Tolson, 139 U. S. 551. 
 
 ** White V. State, 133 Ala. 122, 32 So. 139; Hygela D. W. Co. v. Hygei 
 
§ 371 OPINIONS. 463 
 
 § 370 (372). Mode of examination — Hypothetical questions.— 
 It may be plainly inferred from what has already been stated that 
 the testimony of those found qualified as experts is not confined, to 
 facts within their own personal knowledge, but that they may give 
 their opinion upon an assumed state of facts. Indeed, it is probably 
 true that in the majority of cases in which experts are examined 
 their testimony is based upon hypothetical questions, or upon facts 
 assumed for the purposes of the trial, and presented in some other 
 form. "While it is impossible to lay down any unyielding rule as to 
 the form of the hypothetical question in such cases, it is clear that 
 the question should be so framed as to fairly and clearly present the 
 state of facts which the counsel claims to be proved, and which the 
 testimony on his part tends to prove.*'' But hypothetical questions 
 should not be put to non-experts.*" 
 
 § 371 (373). Hypothetical questions to be based upon proof. — 
 If there is no testimony in the case tending to prove the facts as- 
 sumed in the hypothetical question, such question is improper. The 
 facts must be proved or offered to be proved ; " and if there is no 
 
 I. Co., 70 Conn. 516, 40 Atl. 534; Germania Life Ins. Co. v. Ross-Lewin, 
 24 Coio. 43, 51 Pac. 488, 65 Am. St. Rep. 215; Dans v. State (Fla.), 32 So. 
 822; Jenny Electric Co. v. Branham, 145 Ind. 314, 41 'N. E. 448; White v. 
 McPherson, 183 Mass. 533, 67 N. E. 643; Yorks v. Mooberg, 84 Minn. 502, 
 87 N. "W. 1115; New Jersey, Z. & I. Co. v. h. Z. & I. Co., 59 N. J. L. 189, 
 35 Atl. 915; State v. Wilcox (N. C). 44 S E. 625; Ennis v. Little, 25 R. I. 
 342, 55 Atl. 884; Garr v. Craney, 25 Utah, 193, 70 Pac. 853; Czarecke v. 
 Railway Co., 30 Wash. 288, 70 Pac. 750; Marston v. Dingley, 88 Me. 546, 
 34 AU. 474; Gila Valley R. R. Co. v. Lyon, 203 U. S. 465; Fritz v. W. U. 
 Tel. Co., 25 Utah, 263, 71 Pac. 209; Lyon v. Grand Rapids, 121 Wis. 609; 
 Flint V. Union Water Power Co., 72 N. H. 483, 62 Atl. 788; Carlin v. Ken- 
 nedy (Minn.), 106 N. W. 340. 
 
 <is Cowley v. People, 83 N. Y. 464, 38 Am. Rep. 464; Guetig v. State, 66 
 Ind. 94; Filer v. New York C. Ry. Co., 49 N. Y. 42; Peterson v. Chicago Ry. 
 Co., 38 Minn. 511; Stearns v. Field, 90 N. Y. 640; Quinn v. Higgins, 63 Wis. 
 664, 53 Am. Rep. 305; Louisville Ry. Co. v. Falvey, 104 Ind. 409; Conway 
 V. State, 118 Ind. 482; Kerr v. Lunsford, 31 W. Va. 659; People v. Golden- 
 son, 76 Cal. 328; Prentice v. Bates, 88 Mich. 567; Poole v. Dean, 152 Mass. 
 589; Fuchs v. Tone, 218 111. 445, 75 N. E. 1014. 
 
 *s Ragland v. State, 125 Ala. 12, 27 So. 983. 
 
 «Turnbull v. Richardson, 69 Mich. 400; People v. Foley, 64 Mich., 148; 
 Quinn v. Higgins, 63 Wis. 664, 53 Am. Rep. 305; Reber v. Herring, 115 Pa. 
 St. 599; Williams v. Brown, 28 Ohio St. 547; Muldowney v. Illinois Cent. 
 Ry Co., 39 Iowa, 615; Haish v. Payson, 107 111. 365; Woolner v. Spaulding, 
 65 Miss. 204; Hovey v. Chase, 52 Me. 304, 83 Am. Dec. 514. But the court 
 in its decretion may allow such questions on the claim of counsel that the 
 evidence will be produced. People v. Sessions, 58 Mich. 594; Tumbull v. 
 Richardson, 69 Mich. 400. 
 
464 THE LAW OP EVIDENCB. § 371 
 
 evidence to prove sucli facts, or if the facts assumed in the inter- 
 rogatory are wholly irrelevant to the issue, the question should be ex- 
 cluded.*' If the foundation for the evidence is removed there is of 
 course no basis for the super-structure. The question is not neces- 
 sarily to be rejected by the court although the facts assumed by coun- 
 sel to be true are not proved, or although the question does not state 
 the facts as they actually exist. The facts are generally in dispute ; 
 and it is sufficient if the question fairly states such facts as the proof 
 of the examiner fairly tends to establish, and fairly presents his 
 claim or theory." It cannot be expected that the interrogatory will 
 include the proofs or theory of the adversary, since this would re- 
 quire a party to assume the truth of that which he generally denies."" 
 A question should not be rejected because it does not include all the 
 f acts,"^ unless it thereby fails to present the case fairly." It is error 
 to allow an expert to answer a hypothetical question which excludes 
 from his consideration facts already proved by the testimony upon 
 
 "People v. Augsbury, 97 N. T. 501; Kelly v. Perrault, 5 Ida. 221, 48 Pac. 
 45; Kelly v. Kelly, 103 Md. 548, 63 Atl. 1082; Paircliild v. Bascom, 35 Vt. 
 398; Williams v. Brown, 28 Ohio St. 547; Burnett v. Railway Co., 120 N. C. 
 517, 26 S. E. 819; People v. Harris, 136 N. Y. 423; In re Barber's Estate, 63 
 Conn. 393; North American Ace. Ass'n v. Woodson, 64 Fed. 689. 
 
 49 Stearns v. Field, 90 N. T. 640; Nave v. Tucker, 70 Ind. 15; Hathaway 
 V. National Life Ins. Co., 48 VL 335; Daniells v. Aldrich, 42 Mich. 58; Bal- 
 lard V. State, 19 Neb. 609; Louisville, N. A. & C. R. Co. v. Falvey, 104 Ind. 
 420, 3 N. B. 389; Williams v. State (Fla.), 34 So. 279; Cole v. Fall Brooks 
 C. Co., 159 N. Y. 59, 53 N. B. 670; State v. Hanley, 34 Minn. 430; People v. 
 Augsbury, 97 N. Y. 501; State v. Anderson, 10 Ore. 448; Meeker v. Meeker, 
 
 74 Iowa, 352, 7 Am. St. Rep. 489; Woolner v. Spalding, 65 Miss. 204; Con- 
 way V. State, 118 Ind. 482; Kraatz v. Brush Electric Co., 82 Mich. 457; 
 McFall V. Smith, 32 111, App. 463; Jackson v. Burnham, 20 Colo. 532; Be- 
 ver V. Spangler, 93 Iowa, 567, 61 N. W. 1072; Quinn v. Higgins, 63 Wis. 
 664, 53 Am. Rep. 305 and note; Kiekhoefer v. Hildershide, 113 Wis. 280, 89 
 N. W. 189; Howard v. People, 185 111. 552, 57 N. E. 441; Pierson v. Railway 
 Co., 116 Iowa, 601, 88 N. W. 363; State V. Peel, 23 Mont. 358, 59 Pac. 169, 
 
 75 Am. St. Rep. 529; Denver & R. G. R. Co. v. Roller, 100 Fed. 738; Werner 
 V. Railway Co., 105 Wis. 300. 
 
 M Goodwin v. State, 96 Ind. 550. 
 
 61 Davidson v. State, 135 Ind. 254 ; People v. Hill, 116 Cal. 562, 48 Pac. 
 711; Chicago & B. I. R. Co. v. Wallace, 202 111. 129, 66 N. E. 1096; Morrill 
 V. Hershfield, 19 Mont. 245, 47 Pac. 997; Swenson v. Bender, 114 Fed. 1; 
 State V. Doherty, 72 Vt. 381, 48 Atl. 658, 82 Am. St. Rep. 951; In re Barber's 
 Estate, 63 Conn. 393; Denver & R. G. R. Co. v. Roller, 100 Fed. 738, 754; 
 Brooks v. Sioux City, 114 Iowa, 641, 87 N. W. 682. 
 
 52 In re Barber's Estate, 63 Conn. 393, 27 Atl. 973; Nlchola v. Railway 
 Co., 25 Utah, 240, 70 Pac. 996. 
 
§ 372 OPINIONS. 465 
 
 which the question is based, when a consideration of such facts is 
 essential to the fonnation of an intelligent opinion concerning the 
 matter.*' The court should reject questions which unfairly select 
 part of the facts proved or which omit material parts. "'^ But such 
 hypothetical question cannot be based upon testimony given by the 
 witness himself, where this is merely assumed to be true."* An ex- 
 pert may, however, include as a basis of his opinion facts known to 
 be true, as well as those stated in the question, when by the state- 
 ment of the question he is required to do so."" The truth of facts as- 
 sumed by the question is in doubtful cases a question for the jury; 
 and if they find that the assumed facts are not proved, they should 
 disregard the opinions based on such hypothetical questions; and 
 the court will so instruct them." But the court is not required to 
 submit the matter to the jury, unless there is some substa,ntial evi- 
 dence tending to establish the hypothesis."' 
 
 § 372(374). The expert not to decide questions of fact. — Clearly 
 it is not the province of the expert to act as judge or jury. Hence 
 all questions calling for his opinions should be so framed as not to 
 call upon him to determine controverted questions of fact, or to pass 
 upon the preponderance of testimony."' Thus, it would obviously 
 be improper to ask the witness to state his opinion upon aU the tes- 
 
 oBVosburg V. Putney, 80 Wis. 523; Marshall Livery Co. v. McKelvy, 65 
 Mo. App. 240. 
 
 53a Barber's Estate, 63 Conn. 393, 27 Atl. 973. Schulz v. Modisett (Neb.), 
 96 N. W. 338; Nicbols v. Railway Co., 25 Utah, 240, 70 Pac. 996; Schald- 
 ler V. Rail-way Co., 102 Wis. 564, 78 N. W. 732. 
 
 04 In re Barber's Estate, 63 Conn. 393, 27 Atl. 973. 
 
 05 Tebo V. City of Augusta, 90 Wis. 405, 407. See also, Pierce v. City of 
 Boston, 164 Mass. 92, 41 N. E. 227; State v. Wright, 134 Mo. 404, 35 S. W. 
 1145; Selleck v. Janesville, 100 Wis. 157, 75 N. W. 975, 69 Am. St. Rep. 90a 
 
 06 People V. Foley, 64 Mich. 148; Turnbull v. Richardson, 69 Mich. 400; 
 State V. Peel, 23 Mont. 358, 59 Pac. 169, 75 Am. St. Rep. 529. But see, 
 Epps V. State, 102 Ind. 539. 
 
 07 Nave v. Tucker, 70 Ind. 15. 
 
 08 Inland Coasting Co. v. Tolson, 139 U. S. 551; McNaghten's Case, 10 
 Clark & P. 200; Walker v. Rogers, 24 Md. 237; Negro Jerry v. Townshend, 
 9 Md. 445; Page v. State, 61 Ala. 16; Fairchild v. Bascomb, 35 Vt. 399; 
 Chicago & A. Ry. Co. v. Springfield & N. W. Ry. Co., 67 111. 142; Printup v. 
 Patton, 91 Ga. 422. 18 S. E. 311; Tingley v. Cowgill, 48 Mo. 291; Mul- 
 downey v. Illinois C. Ry. Co., 39 Iowa, 615; Hill v. Portland Ry. Co., 55 Me. 
 438, 92 Am. Dec. 601; Clark v. Detroit Locomotive Works, 32 Mich. 348; 
 State v. Cole, 94 N. C. 958; Baltimore Turnpike Co. v. Cassell, 66 Md. 419; 
 Smith V. Hickenbottom, 57 Iowa, 733; Boor v. Lowrey, 103 ind. 468; Teaw 
 v. Williams, 15 R. I. 20; Prentis v. Bates, 88 Mich. 567; Louisville, E. & 
 St. L. Ry. Co. vl Berry, 9 Ind. App. 63; Johnson v. Highland, 124 Wis. 697, 
 
 SO 
 
466 THE LAW OF EVIDENCE. § 372 
 
 timony in the case as to any given question, if the truth of part of 
 such evidence were in dispute.^* When the question is so framed as 
 to call upon the expert to determine on which side the evidence 
 preponderates or to reconcile conflicting statements, he is in effect 
 asked to decide the merits of the case which is a duty wholly beyond 
 his province. Whatever liberality may be allowed in calling for the 
 opinions of experts or other witnesses, they must not usurp the 
 province of the court and jury by drawing those conclusions of law 
 or fact upon which the decision of the case depends. Although this 
 view has been earnestly criticised it is sustained by the undoubted 
 weight of authority, and any lawyer who has had much participa- 
 tion in the actual trial of cases will understand that in many cases 
 trials would become a mere farce if zealous experts were allowed to 
 directly express their opinions upon the very issue to be tried.*" It 
 would be impossible to reconcile the conflicting decisions in which the 
 courts have considered the subject of the admissibility of opinions 
 where objection was made that to receive them would allow the wit- 
 ness to trench upon the province of the jury. We will only call at- 
 tention to some of the classes of cases in which the question has 
 arisen and cite a few only of the many cases in which the evidence 
 has been excluded or allowed. It will be seen, however, that in the 
 great majority of cases the evidence has been excluded.'^ 
 
 102 N. "W. 1085; Lounsbury v. Davis, 124 "Wis. 432, 102 N. W. 941; Olwell v. 
 Skobis, 126 Wis. 308, 105 N. W. 777. See note, 36 L. R. A. 64-70. 
 
 BO State V. Felter, 25 Iowa. 67; Reed v. State, 62 Miss. 405; Bennett v. 
 State, 57 Wis. 69, 46 Am. Rep. 26; Buxton v. Somerset Works, 121 Mass. 
 446; Carpenter v. Eastern Trans. Co., 71 N. Y. 574; State v. Bowman, 78 
 N. C. 509. 
 
 »o State V. Stevens, 16 S. D. 309, 92 N. W. 420; Denver & R. G. R. Co. v. 
 Vitello, 34 Colo. 50, 81 Pac. 766; Ames v. Ames (Neb.), 106 N. W. 585; 
 Martin v. Des Moines Edison Light Co. (la.), 106 N. W. 359; Central City 
 v. Morquis (Neb.), 106 N. W. 221; Read v. Valley Land & Cattle Co., 66 
 Neb. 423, 92 N. W. 622. 
 
 61 Inquiries involving problems like the following are given as illustra- 
 tions (such testimony was excluded except where otherwise indicated) : 
 Whether a given act could have been done or prevented under the existing 
 facts, Jones v. Hatchett, 14 Ala. 744; Louisville & N. R. Co. v. Banks, 132 
 Ala. 471, 31 So. 573; Little Rock T. & E. Co. v. Nelson, 66 Ark. 494, 52 S. 
 W. 7; Lowman v. State, 109 Ga. 501, 34 S. E. 1019; Chicago & N. W. R. Co. 
 V. Ingersoll, 6,5 111. 402; Chan Sing v. Portland, 37 Ore. 68, 60 Pac. 718; Mis- 
 souri P. R. Co. V. Fox, 56 Neb. 746, 77 N. W. 130; Parish v. Baird, 160 N. T. 
 302; Summerlin v. Railway Co., 133 N. C. 550, 45 S. E. 898; whether given 
 machinery was properly managed, or constructed or had safe appliances, 
 Hurst V. Railway Co., 163 Mo. 309, 63 S. W. 695, 85 Am. St. Rep. 539; 
 Snyder v. Holt Mfg. Co., 134 Cal. 324, 66 Pac. 311 (admitted); Dyas T. 
 
§ 373 OPINIONS. 467 
 
 § 373 (375). Same, continued. — ^As will be seen from the illus- 
 trations given in the notes there are numerous exceptional cases 
 
 Southern P. Co., 140 Cal. 296, 73 Pac. 972 (admitted) ; McGonigle v. Kane, 
 20 Colo. 292, 38 Pac. 367 (admitted); Gundlach v. Schott, 192 111. 509, 61 
 N. B. 332, 85 Am. St Rep. 348 (admitted) ; Donk Bros. C. & C. Co. v. Stroff, 
 200 111. 483, 66 N. B. 29 (admitted) ; Dougherty v. Milliken, 163 N. Y. 527, 
 57 N. B. 757; Fitch v. Mason C. & C. L. T. Co., 116 Iowa, 716, 89 N. W. 33; 
 St. Louis Ry. Co. v. Ritz, 35 Kan. 404; Daly v. Milwaukee, 103 Wis. 588, 79 
 N. W. 752 (admitted) ; whether a given object was likely to cause injury, 
 or the contrary, Orr v. State, 117 Ala. 69, 23 So. 696; Barber v. Manchester, 
 72 Conn. 675, 45 Atl. 1014 (admitted) ; Dean v. Sharon, 72 Conn. 667, 45 
 Atl. 963 (admitted); Brooks v. Sioux City, 114 la. 641, 87 N. W. 682; 
 Missouri & K. Tel. Co. v. Vandevort, 67 Kan. 269, 72 Pac. 771; Bdwards v. 
 Worcester, 172 Mass. 104, 51 N. E. 447; Lawson v. Railway Co., 64 Wis. 447, 
 24 N. W. 618, 54 Am. Rep. 634; People v. Detroit & S. P. R. Co., 125 Mich. 
 366, 84 N. W. 290; Metz v. Dutte, 27 Mont. 506, 71 Pac. 761; Nourie v. Theo- 
 bald, 68 N. H. 564, 41 Atl. 182; Western Coal & M. Co. v. Barberich, 94 Fed. 
 329 (admitted); Childress v. Railway Co., 94 Va. 186, 26 S. E. 424; 
 whether proper or improper means were used under the circumstances of 
 the case or how an act should have teen performed, Springfield R. Co. v. 
 Welsh, 155 111. 511, 40 N. B. 1034; Chicago & B. I. R. Co. v. Grimm, 25 Ind. 
 App. 494, 57 N. E. 641 (admitted) ; Cahow v. Railway Co., 113 Iowa, 224, 84 
 N. W. 1056; O'Brien v. Look, 171 Mass. 36, 50 N. B. 458 (admitted) ; South- 
 ern Railway Co. v. Mauzy, 98 Va. 692, 37 S. E. 285; Storrle v. Grand 
 Trunk El. Co. 134 Mich. 297, 96 N. W. 569; Challis v. Lake, 71 N. H. 90, 51 
 Atl. 260; Finn v. Cassidy, 165 N. Y. 584, 59 N. E. 311 (admitted) ; Bruce v. 
 Beall, 99 Tenn. 303, 41 S. W. 445; MulcairnS' v. Janesville, 67 Wis. 24, 29 
 N. W. 565 (admitted) ; or whether certain acts were necessary or not, 
 Kelly V. West Bend, 101 la. 669, 70 N. W. 726; Chicago R. I. & P. R. Co. v. 
 Holmes, 68 Neb. 826, 94 N. W. 1007; State v. McCoy, 15 Utah, 136, 49 Pac. 
 420 (admitted) ; what was the duty or authority of a person under the 
 facts proved, Quinlan v. Railway Co., 113 la. 89, 84 N. W. 960 (admitted) ; 
 Louisville & N. R. Co. v. Bowen (Ky.), 39 S. W. 31; Lipscomb v. Railway 
 Co., 95 Tex. 4, 64 S. W. 923, 93 Am. St. Rep. 804; New York El. Bq. Co. v. 
 Blair, 79 Fed. 896; whether care or good judgment was used, Goodsell v. 
 Taylor, 41 Minn. 207, 16 Am. St. Rep. 700; Wolschied v. Thorne, 76 Mich. 
 265; Hinds v. Keith, 57 Fed. 10; Phifer v. Railway Co., 122 n! C. 940, 29 
 S. B. 578; Raynor v. Railway Co., 129 N. C. 195, 39 S. E. 821; Heath v. 
 Gleason, 3 Ore. 67 (admitted) ; Cooksin v. Railway Co., 179 Pa. 184, 36 Atl. 
 194 (admitted); Auberle v. McKeesport, 179 Pa. 321, 36 Atl. 212; Woeckner 
 V. Motor Co., 187 Pa. 206, 41 Atl. 28; Roanoke v. Shull, 97 Va. 419, 34 S. 
 E. 34, 75 Am. St. Rep. 791; Stowe v. Bishop, 58 Vt. 498, 56 Am. Rep. 569; 
 Seliger v. Bastian, 66 Wis. 521; Buxton v. Somerset Works, 121 Mass. 446; 
 Carpenter v. Eastern Trans. Co., 71 N. Y. 574; Hopkins v. Indianapolis Ry. 
 Co., 78 111. 32; Cincinnati Ins. Co. v. May, 20 Ohio, 211; Livingston v. Cox, 
 8 Watts & S. (Pa.) 61; Lawrence v. Hudson, 12 Heisk. (Tenn.) 671; 
 Harley v. Buffalo Car Co., 142 N. Y..31; Louisville, B. & St. L. Co. 
 V. feerry, 9 Ind. App. 63; whether certain acts constituted negligence, 
 Manter t. Chicago Ry. Co., 33 Minn. 62; Bast Tennessee Ry, Co. y. 
 
468 THE LAW OF EV«DENCE. § 373 
 
 in which the courts have approved interrogatories which seemed 
 to substantially call for the opinion of the expert as to the merits 
 
 Wright, 76 Ga. 532; Ballard v. New York Ry. Co., 126 Pa. St. 141; 
 Bills V. Ottumwa, 35 Iowa, 107; Brant v. Lyons, 60 Iowa, 172; Car- 
 penter V. Eastern Trans. Co., 71 N. Y. 574; Hoener v. Koch, 84 III. 408; 
 wTiether the facts proved would cause certain results and what results 
 would ordinarily follow certain facts or conditions, and whether if acts 
 were done in a certain way given results could or would necessarily fol- 
 low, Franklin v. Com. (Ky.) 48 S. W. 986 (admitted); Simon v. State, 
 108 Ala. 27, 18 So. 731 (admitted); People v. Baldwin, 117 Cal. 244, 49 
 Pac. 186 (admitted) ; Chatsworth v. Rowe, 166 III. 114, 46 N. E. 763 (ad- 
 mitted) ; Brink's Express Co. v. Kinnare, 168 111. 643, 48 N. E. 446; 
 Hellyer v. People, 186 111. 550, 58 N. E. 245; Brownfield v. Railway Co., 
 107 Ind. 254, 77 N. W. 1038 (admitted) ; Trott v. Railway Co., 115 Ind. 80, 
 86 N. W. 33 (admitted); Erb v. Popritz, 59 Kan. 264, 52 Pac. 871, 68 
 Am. St. Rep. 362; Baltimore City P. Ry. Co. v. Tanner, 90 Md. 315, 45 Atl. 
 188 (admitted); Donnelly v. Railway Co., 70 Minn. 278, 73 N. W. 157 
 (admitted) ; State v. Greenleaf, 71 N. H. 606, 54 Atl. 38 (admitted) ; 
 Cole v. Pall Brook C. Co., 159 N. Y. 59, 53 N. E. 670 (admitted) ; Stem- 
 bridge v. Railway Co., 65 S. C. 440, 43 S. E. 968 (admitted); State v. 
 Nookes, 70 Vt. 247, 40 Atl. 249 (admitted); whether it was possible or 
 probable under the circumstances that a person could have seen the 
 object or heard the sound or done the act in question, Kansas C. M. & B. 
 R. Co. V. Weeks, 135 Ala. 614, 34 So. 16 (admitted) ; People v. Valliere, 123 
 Cal. 576, 56 Pac. 433 (admitted) ; People v. Farley, 124 Cal. 594, 57 Pac. 
 571; Jones v. State (Fla.), 32 So. 793; State v. Pontenot, 50 La. An. 537, 
 23 So. 634, 69 Am. St. Rep. -455; State v. Breaux, 104 La. 540, 29 So. 222 
 (admitted); Baltimore C. P. R. Co. v. Cooney, 87 Md. 2G1, 39 Atl. 859 
 (admitted) ; Welch v. Railway Co., 176 Mass. 393, 57 N. E. 668; Lawlor v. 
 Wolff, 180 Mass. 448, 62 N. E. 973; Purbush v. Maryland C. Co., 131 Mich. 
 234, 91 N. W. 135, 100 Am. St. Rep. 605; Hamberg v. Ins. Co., 68 Minn. 
 335, 71 N. W. 388; Fonda v. Railway Co., 77 Minn. 336, 79 N. W. 1043 
 (admitted); Olsen v. Railway Co., 152 Mo. 426, 54 S. W. 470 (admitted); 
 State V. Buralli, 27 Nev. 41, 71 Pac. 532 (admitted) ; McGeary v. Rail- 
 way Co., 21 R. I. 76, 41 Atl. 1007; State v. Taylor, 57 S. C. 483, 35 S. E. 
 729, 76 Am. St. Rep. 575; Rolling v. State, 136 Ala. 126, 34 So. 348 (ad- 
 mitted) ; Vhether certain conduct of a railroad company in the manage- 
 ment of its trains was reasonable or unreasonable, Hill v. Portland Ry. 
 Co., 55 Me. 438, 92 Am. Dec. 601; Louisville & N. Ry. Co. v. Hall, 87 Ala. 
 108, 13 Am. St. Rep. 84; whether the prisoner was insane, Reed v. State, 
 C2 Miss. 405; Bennett v. State, 57 Wis. 69, 46 Am. Rep. 26; what had 
 caused the death or a given injury for which the action was brought, 
 State V. Bowman, 78 N. C. 509; whether rape had been committed in a 
 given case, Noonan v. State, 55 Wis. 258; whether a physician had or 
 had not been guilty of malpractice, Hoener v. Koch, 84 111. 408; but on an 
 assumed state of facts the witness may be asked whether the treatment 
 was proper or improper, skillful or unskillful, Jones v. Angell, 95 Ind. 
 376; Olmsted v. Gere, 100 Pa. St. 127; Wright v. Hardy, 22 Wis. 348; 
 Twombly v. Leach, 11 Cush. 397; whether a person had testamentary 
 capacity or the capacity to make contracts, Schneider v. Manning, 121 
 
§ 373 OPINIONS. 469 
 
 of the controversy ; °^ and it may be conceded that it is sometimes 
 difficult to frame the questions in such manner as to call for an 
 opinion based merely upon assumed facts, and to thus avoid the ob- 
 jection under discussion.'^ But the overwhelming weight of au- 
 thority sustains the rule already declared, on the obvious ground 
 that the expert is not called upon to perform any part of the func- 
 tions of the judge or the jury. On the contrary his testimony in 
 connection with all the other testimony in the case must be weighed 
 by the tribunal to which the final decision is submitted."* Although 
 cases almost without limit might be cited which recognize the prin- 
 ciple that an expert cannot be called upon to give opinions deter- 
 mining the merits of the case, or to weigh conflicting evidence or 
 judge the credibility of testimony, such witnesses are constantly 
 allowed to state their opinions based upon facts within their own 
 knowledge or facts assumed in hypothetical questions."" If the hy- 
 pothetical question properly presents the fact which the evidence 
 tends to prove, and does not caU upon the witness to reconcile con- 
 flicting evidence or to pass upon the merits of the case, a wide range 
 may be given by the court, and a liberal discretion allowed as to its 
 form."" 
 
 111. 376; Kempsey v. McGlnnls, 21 Mich. 123; Gibson v. Gibson, 9 Yerg. 
 (Tenn.) 332; Pairchlld v. Bascomb, 35 Vt. 398; Parrell v. Brennaa, 32 
 Mo. 328 (but It has been held proper to ask if the mind and memory 
 of the testator were sufficiently sound to enable him to know and under- 
 stand the business in which he was engaged at the time, McClintock v. 
 Curd, 32 Mo. 411; Finney's Will, 27 Minn. 280; Woodcock v. Johnson, 
 36 Minn. 217; Melendy v. Spaulding, 54 Vt. 517); whether certain 
 highways, bridges, crossings or walks were dangerous or safe. Baker v. 
 Madison, 62 Wis. 137; Kelley v. Fond du Lac, 31 Wis. 179; Weeks v. 
 Lyndon, 54 Vt. 638; Bliss v. Wilbraham, 8 Allen, 564; Stillwater Turn- 
 pike Co. V. Coover, 26 Ohio St. 520; Brown v. Cape Girardeau Co., 89 Mo. 
 152; Topeka v. Sherwood, 39 Kan. 690; Barnes v. Newton, 46 Iowa, 567; 
 Fairburg v. Rogers, 98 111. 554; Yeaw v. Williams, 15 R. I. 20, (contra, 
 Taylor v. Monyoe, 43 Conn. 36; Laughlin v. Street Ry. Co., 62 Mich. 220; 
 Cross V. Lake Shore Ry. Co., 69 Mich. 363. See also, Miller v. Boone Co. 
 (Iowa), 63 N. W. 352; see note 59 Am. Rep. 176); whether a child of a 
 given age was capable of exercising ordinary care, Lynch v. Smith, 104 
 Mass. 52, 6 Am. Rep. 188. 
 
 82 Johnson v. Central Ry. Co., 56 Vt. 707; Clark v. State, 12 Ohio 483, 
 40 Am. Dec. 481; Gardner v. People, 6 Park. Cr. Cas. (N. Y.) 155, 202; 
 People V. Clark, 33 Mich. 112; Davis v. State, 38 Md. 15. 
 
 63 People v. Lake, 12 N. Y. 358. See also, White v. Bailey, 10 Mich. 155. 
 
 8* See cases cited under § 372 supra. 
 
 60 See § 367 supra. 
 
 66 Hunt v. Lowell Gas Co., 8 Allen, 169, 85 Am. Dec 697; Filer v. New 
 
470 THE LAW OP EVIDENCE. § 374 
 
 § 374 (376). Opinions based upon testimony heard or read by 
 the expert. — It is, no doubt, the better practice to so frame the 
 question that the expert has only to assume the truth of the facts 
 therein stated. When he is called upon to form an opinion upon tes- 
 timony which he has heard or read, there is danger that the witness 
 in arriving at a conclusion will unconsciously pass upon the weight 
 or credibility of the evidence ; that in determining the facts proved, 
 he will in effect usurp the province of the jury. Questions calling 
 upon the witness to form an opinion based on the evidence which 
 he has heard have often been rejected.'^ This mode of examination 
 is clearly inadmissible if there are inconsistencies or discrepancies in 
 the testimony of the witness or witnesses.'^ But the hypothetical 
 question need not recapitulate the facts proven in aU cases. Thus, 
 if the expert has heard a deposition read, or has heard the testimony 
 of a witness or even of several witnesses in which no conflict appears, 
 and if such testimony is not voluminous, he may give an opiaion 
 based on the assumption that such evidence is true ; °° and when 
 there is no conflict as to the material facts, the question need not be 
 hypothetical in form." The witness is allowed to give an opinion 
 from the evidence in such cases upon the ground that, by the terms 
 of the question, the witness is required to assume that the facts given 
 
 York Ry. Co., 49 N. Y. 42; Omaha & R. V. Ry. Co. v. Brady, 39 Neb. 27, 
 57 N. W. 7S7. 
 
 •'Sills V. Brown, 9 Car. & P. 601; State v. Bowman, 78 N. C. 509; 
 Smith V. Hickenbottom, 67 Iowa, 733; Butler v. St. Louis L. Ins. Co., 45 
 Iowa, 93; Woodbury v. Obear, 7 Gray, 467; Elgin, A. & S. T. Co. v. Wilson, 
 217 111. 47, 75 N. E. 436. 
 
 68 Gulterman v. Liverpool Co., 83 N. Y. 358. Where the evidence is 
 conflicting, see §§ 372 et seq. supra. 
 
 ssMcCullom V. Seward, 62 N. Y. 316; R. v. Searle, 1 Moody & Rob. 75; 
 Negro Jerry v. Townshend, 9 Md. 145; Hunt v. Lowell Gas Co., 8 Allen, 
 169, 85 Am. Dec. 697; Wright v. Hardy, 22 Wis. 348; Dickenson v. Fitch- 
 burg, 13 Gray, 556; Storer's Will, 28 Minn. 9; Jones v. Railway Co., 43 
 Minn. 279, 45 N. W. 444; State v. Cole, 94 N. C. 958; Bennett v. State, 57 
 Wis. 69, 46 Am. Rep. 26. In such cases it suffices if he has heard all the 
 material testimony, Carpenter v. Blake, 2 Lans. (N. Y.) 206; Hand v. 
 Brookline, 126 Mass. 324; Davis v. State, 38 Md. 15; State v. Hayden, 51 
 Vt 296; State v. Medlicott, 9 Kan. 257. It is not proper for this purpose 
 to read from the minutes of counsel, Thayer v. Davis, 38 Vt. 163. 
 
 70 Cincinnati Ins. Co. v. May, 20 Ohio, 211; TefEt v. Wilcox, 6 Kan. 46; 
 Page v. State, 61 Ala. 16; Bishop v. Spining, 38 Ind. 143; Gulterman v. 
 Liverpool Co., 83 N. Y. 366; State v. Klinger, 46 Mo. 224; Carpenter v. 
 Blake, 2 Lans. (N. Y.) 206; Coyle v. Com., 104 Pa. St 117; Henry v. Hall, 
 13 111. App. 343. 
 
§ 376 OPINIONS. 471 
 
 in testimony are true ; and he is not required to draw any other con- 
 clusions or inferences as to the facts.''^ 
 
 § 375 (377). Opinions based on personal knowledge. — When 
 the expert has not personal knowledge of the facts the questions 
 calling for his opinion should be hypothetical in form.''^ But it is 
 not necessary that the question should be hypothetical in form when 
 the opinion of the witness is based, not upon assumed facts, but 
 upon his personal knowledge or observations." A familiar illustra- 
 tion of this practice is where a physician is called to give his opinion 
 as to the mental or physical condition of one whom he has ex- 
 amined.'* But in cases where the opinion of an expert is based upon 
 his personal knowledge of the facts, such facts should he first stated 
 by him so that the court and jury may determine whether the al- 
 leged facts on which the conclusions are based are real, and whether 
 they justify his conclusions."' In several of the cases last cited, 
 questions were held improper because no foundation had thus been 
 laid. The facts on which his opinion is based should have logical 
 connection with the facts under inquiry." 
 
 § 376 (378). Opinions based upon hearsay — Conclusions of law, 
 etc. — ^Although, as we have seen, the opinions of experts may in 
 some cases be based upon personal knowledge gained from their own 
 observation or examination, they cannot give in evidence opinions 
 based upon information gained from the statements of others out- 
 side the court room, since in such case the opinions would depend 
 
 71 Hunt V. Lowell Gas. Co., 8 Allen, 169, 85 Am. Dec. 697. See cases 
 cited supra. 
 
 72 Southern Bell Tel. Co. v. Jordan, 87 Ga. 72, 13 S. E. 282; W. U. Tel. 
 Co. V. Morris, 67 Kan. 410, 73 Pao. 108; Elgin, A. & S. Traction Co. v. 
 Wilson, 217 111. 47, 75 N. B. 436. 
 
 '3 Bellefontaine Ry. Co. v. Bailey, 11 Ohio St. 333; Transportation Line 
 V. Hope, 95 U. S. 297; Brown v. Huffard, 69 Mo. 305; Bellinger v. New 
 York Cent. Ry. Co., 23 N. T. 42; Dunham's Appeal, 27 Conn. 192. 
 
 7* State V. Pelter, 25 Iowa, 67; Bellefontaine & I. Ry. Co. v. Bailey. 11 
 Ohio St. 337; McNaghton's Case, 10 Clark & F. 211. See § 378 infra. 
 
 76 Burns v. Barrenfield, 84 Ind. 43; Louisville Ry. Co. v. Palvey, 104 Ind. 
 409; Van Deusen v. Newcomer, 40 Mich. 90; Reid v. Piedmont Ins. Co., 
 58 Mo. 421; Dickinson v. Barber, 9 Mass. 225, 6 Am. Dec. 58; Hitchcock v. 
 Burgett, 38 Mich. 501; Plannagan v. State, 106 Ga. 10'9, 32 S. E. 80; 
 State v. Simonis, 39 Ore. Ill, 65 Pac. 595; Easier v. Railway Co., 59 S. C. 
 311, 37 S. E. 938; Raub v. Carpenter, 187 U. S. 159; Pyke v. Jamestown, 
 (N. D.) 107 N. W. 358. If a physician gives an opinion as to the san- 
 ity of a person, the symptons and circumstances should be stated, Hathorn 
 V. King, 8 Mass. 371, 5 Am. Dec. 106. 
 
 76 Taylor r. Sutl^erlan^, 54 Pa. St 333; Moore v. State, 17 Ohio St 521. 
 
472 THE LAW OF EVIDENCE. § 377 
 
 upon hearsay.'''' Thus, when a medical witness is examined as an 
 expert, his opinion is inadmissible if based upon the declaration of 
 nurses or other physicians, made out of court,''' although, on grounds 
 elsewhere discussed, the declarations of the patient may, under 
 proper limitations, form a part of the basis of such opinions.''" This 
 was well illustrated in a Wisconsin case where a physician was al- 
 lowed to state whether in his opinion a party suffered pain, judging 
 from an examination he had made and from what she said.^" On 
 the general principle already stated that experts cannot take the 
 place of the court or jury, it is obvious that questions should not call 
 for their opinions upon conclusions of law,^^ or as to abstract ques- 
 tions of morals or duty,^" or as to mere matters of speculation,*' or 
 as to whether they agree with or differ from the opinions of other 
 experts.'* 
 
 § 377 (379). Form of hypothetical questions. — Since the facts 
 sought to be presented in a hypothetical question may be very 
 numerous, it sometimes happens that objection is made to the length 
 of the question. But this is a matter to be regulated largely by the 
 
 f 7 Polk V. State, 36 Ark. 117; Baltimore & 0. Ry. Co. v. Shipley, 39 Md. 
 251; Hurst v. Chicago & R. I. Ry. Co., 49 Iowa, 76; Flannagan v. State, 
 106 Ga. 109, 32 S. E. 80. 
 
 TSHeald v. Thing, 45 Me. 392; Wood v. Sawyer, Phill. (N. 0.) 251; 
 Wetherbee v. Wetherbee, 38 Vt. 45,4; Hunt v. State, 9 Tex. App. 166; 
 Louisville Ry. Co. v. Shires, 108 111. 617. It must be founded on his 
 personal knowledge or on a hypothetical question. Grand Rapids Ry. Co. 
 V. Huntley, 38 Mich. 537; Hunt v. State, 9 Tex. App. 166; Louisville Ry. 
 Co. V. Shires, 108 111. 617. 
 
 79Quaife v. Chicago & N. W. Ry. Co., 48 Wis. 513, 33 Am. Rep. 821; 
 Louisville Ry. Co. v. Snyder, 117 Ind. 435, 10 Am. St. Rep. 60; Illinois 
 Central Ry. Co. v. Sutton, 42 111. 438, 92 Am. Dec. 81; Louisville Ry. Co. 
 V. Palvey, 104 Ind. 409; Wilson v. Granby, 47 Conn. 59; Caldwell v. 
 Murphy, 11 N. Y. 416; Denton v. State, 1 Swan (Tenn.) 279; Atchinson 
 Ry. Co. V. Johns, 36 Kan. 769; Hatch v. Fuller, 131 Mass. 574. See § 349 
 supra. 
 
 soQuaife v. Chicago & N. W. Ry. Co., 48 Wis., 513, 33 Am. Rep. 821. 
 But the opinion cannot be based upon his own observation and the state- 
 ments of third persons, Heald v. Thing, 45 Me. 392. 
 
 81 Pennslyvania Ry. Co. v. Conlan, 101 111. 94; Pittsburg Ry. Co. v. 
 Reich, 101 111. 157; Williams v. DeWitt, 12 Ind. 309; Rozirne v. Ball, 51 
 Iowa, 328; Farrell v. Brennan, 32 Mo. 328, 411; May v. Bradlee, 127 Mass. 
 414; Gibson v. Gibson, 9 Yerg. (Tenn.) 329; White v. Bailey, 10 Mich. 155. 
 
 82 Allen V. Burlington, C. R. & N. Ry. Co., 57 Iowa, 623; Missouri Ry. 
 Co. V. Mackey, 33 Kan. 298. 
 
 83 Cooper V. State, 23 Tex. 331; State v. Pike, 65 Me. Ill; Slnnott v. 
 Mullln, 82 Pa. St. 333. 
 
 8* Home V. Williams, 12 Ind. 324. 
 
§ 378 OPINIONS. . 473 
 
 discretion of the trial judge.*" There are instances, however, in 
 which it has been held error to permit hypothetical questions so 
 long and complicated that they were likely to confuse witnesses or 
 to baffle their memory.*" Although, as will be seen, expert witnesses 
 may be asked the grounds and reasons for their opinions,*' it is 
 clearly irrelevant on direct examination to ask the witnesses to give 
 the facts or details of other particular cases, even though similar, 
 which have come within the range of their experience or observation. 
 This would be a violation of the familiar rule that the testimony 
 must be confined to the point in issue.** 
 
 § 378 (380). Physicians and surgeons. — The opinions of physi- 
 cians and surgeons may be admitted to show the physical condition 
 of a person,*' the nature of a disease, whether temporary or per- 
 manent,°° the effect of disease or of physical injuries upon the body 
 or mind,"^ as well as in what manner or by what kind of instruments 
 they were made,°^ or at what time wounds or injuries of a given 
 
 soForsythe v. Doolittle, 120 U. S. 73; Davis v. Ins. Co., 59 Kan. 74, 52 
 Pac. 67. See also, § 371 supra. 
 
 86 People V. Brown, 53 Mich. 531; Haish v. Payson, 107 111. 365. To 
 obviate this difficulty the court may require the question to be reduced 
 to writing, Jones v. President, 88 Mich. 598. 
 
 ST See §§ 368 et seq. supra. 
 
 88 Home v. Williams, 12 Ind. 324; St. Louis Gas Co. v. American Ins. 
 Co., 33 Mo. App. 348; California Pac. Ry. Co. v. Pearson, 35 Cal. 247. 
 
 89 Knox v. Wheelock, 56 Vt. 191; Spear v. Hiles, 67 Wis. 367; Myers v. 
 State, 84 Ala. 11; Kennedy v. Upshaw, 66 Tex. 442; Jones v. Chicago, M. & 
 St. P. Ry. Co., 43 Minn. 279. In Stone v. Moore, 83 Iowa, 186, a person who 
 was a christian scientist doctor was allowed to testify as an expert, it 
 being shown that she had previously been in practice as a physician. 
 
 90 Wilt V. Vickers, 8 Watts (Pa.) 227; Matteson v. New York Central 
 Ry. Co., 35 N. Y. 487, 91 Am. Dec. 67; Rowell v. Lowell, 11 Gray, 420; 
 Noblesville Ry. Co. v. Cause, 76 Ind. 142; Goshen v. England, 119 Ind. 368; 
 Turner v. Newburgh, 109 N. Y. 301; Filer v. New York C. Ry. Co., 49 N. 
 Y. 42. 
 
 91 Anthony v. Smith, 4 Bosw. (N. Y.) 503; Willey v. Portsmouth, 35 
 N. H. 303; Bliss v. New York Central & H. R. Ry. Co., 160 Mass. 447; 
 Montgomery v. Scott, 34 Wis. 338; Hardiman v. Brown, 162 Mass. 585; 
 Pidcock V. Potter, 68 Pa. St. 342, 8 Am. Rep. 131; Reed v. City of Madison, 
 85 Wis. 667; Flynt v. Bodenhamer, 80 N. C. 205; Filer v. New York C. Ry. 
 Co., 49 N. Y. 42; Evansville Ry. Co. v. Christ, 116 Ind. 446, 9 Am. St. 
 Rep. 865; Gulf C. & S. F. Ry. Co. v. Harriet, 80 Tex 73; State v. Ginger, 
 80 Iowa, 574; Benjamin v. Holyoke St. Ry. Co., 160 Mass. 3; Young v. 
 Johnson, 123 N. Y. 226. 
 
 92 Gardner v. People, 6 Park. Cr. Cas. (N. Y.) 202; State v. Morphy, 
 33 Iowa, 270; Davis v. State, 38 Md. 15; Ulrich v. People, 39 Mich. 245; 
 Rash v. State, 61 Ala. 89; State v. Chec Gong, 17 Ore. 635; People v. Hopt, 
 
i74; THE LAW OP 'evidence. § 378 
 
 character might have been inflicted, whether they would probably 
 be fatal, or actually did produce death,"^ the cause, symptoms, na- 
 ture and peculiarities of a disease, and whether it would be likely to 
 cause death,'* the probable future consequences of an injury, when 
 the consequences anticipated are such as in the ordinary course of 
 events may be reasonably expected to happen, and are not merely 
 speculative or possible. °° While it is improper to ask a physician how 
 certain wounds or injuries were actually given, as this would be 
 trespassing upon the province of the jury,*" he may be asked by 
 
 4 Utah, 247; Johnson v. Steam Gauge Co., 146 N. T. 152; Franklin v. Ciom. 
 (Ky.), 48 S. W. 986. 
 
 93 Lindsay v. People, 63 N. T. 143; State v. Harris, 63 N. C. 1; State v. 
 Clark, 15 S. C. 403; Shelton v. State, 34 Tex. 662; People v. Wilson, 109 
 N. Y. 345; People v. Hare, 57 Mich. 505; Davidson v. State, 135 Ind. 254, 
 34 N. B. 972. 
 
 94 Mobile Life Ins. Co. v. "Walker, 58 Ala. 290; Batten v. State, 80 Ind. 
 394; Bggler v. People, 56 N. Y. 642; Waite v. State, 13 Tex. App. 169; 
 State V. Powell, 7 N. J. L. 244; Livingston v. Com., 14 Gratt. (Va.) 592'; 
 State v. Morphy, 33 Iowa, 270; Ebos v. State, 34 Ark. 520; State v. Jones, 
 68 N. C. 443; Smalley v. Appleton, 75 Wis. 18; Illinois Cent. Ry. Co. v. 
 Latimer, 128 III. 163; Stouter v. Manhattan Ry. Co., 127 N. Y. 661. So a 
 physician may be asked what was the "exciting cause of the Injury," 
 Vosburg V. Putney, 86 Wis. 278. 
 
 96 Strohm v. New York Ry. Co., 96 N. Y. 305; Seckingcr v. Phillbert 
 Manfg. Co. (Mo.), 31 S. W. 957; Block v. Milwaukee St Ry. Co., 89 
 Wis. 371; Hallum v. Omro, 122 Wis. 337, 99 N. W. 1051. See also note 91 
 supra. In Johnson v. Central Ry. Co., 56 Vt. 707, a physician was allowed 
 to state that the plaintiff would never be able to do heavy work. But 
 see, Kline v. Kansas Ry. Co., 50 Iowa, 656. Other cases illustrating the 
 subject In which medical opinions have been admitted: significance of 
 powder stains. State v. Asbell, 57 Kan. 398, 46 Pac. 770; force required to 
 make instrument pentrate bone. People v. Fish, 125 N. Y. 136, 26 N. B. 319; 
 whether a certain weapon could kill a man. People v. ValUere, 123 Cal. 576, 
 56 Pac. 433; Perry v. State, 110 Ga. 234, 36 S. E. 381; symptons which 
 ordinarily and necessarily accompany injury, Cole v. Fall Brook C. Co., 
 159 N. Y. 59, 53 N. B. 670; probable effect of injury, Steinbrldge v. Rail- 
 way Co., 65 S, C. 440, 43 S. B. 968; position of assailant. State v. Buralle 
 (Nev.), 71 Pac. 532; excluded, probable position of a person. People v. Hill, 
 116 Cal. 244, 48 Pac. 711; probable position of deceased's arm, People v. 
 Parley, 124 Cal. 594, 57 Pac. 571; whether a person could ll\e after being 
 struck by a locomotive, Chicago & A. R. Co. v. Lewondowski, 190 111. 301, 
 60 N. E. 497; whether intercourse against a woman's consent was possible. 
 State V. Peterson, 111 la. 647, 82 N. W. 329; Lawlor v. Wolff, 180 Mass. 448, 
 62 N. E. 973; how a wound could have been inflicted, Missouri R. R. Co. 
 V. Fox, 56 Neb. 746, 77 N. W. 130. 
 
 96 People V. Hare, 57 Mich. 505; State v. Ralnsbarger, 74 Iowa, 196, 
 See-|§ 272 et seq. supra. Contra, State v. Lee, 65 Conn. 265. 
 
§ 378 OPINIONS. 475 
 
 what kinds of weapons wounds of a given description might be 
 caused,"^ or whether wounds of a given character were caused be- 
 fore or after death ; "' and after having made a post-mortem exam- 
 ination, a physician may testify whether a woman was pregnant at 
 the time of her death,"" or whether the conditions disclosed indicated 
 the cause of death.' He may also testify as to the probable effect of 
 a given course of treatment or medicines '' what would be proper 
 treatment under a given state of facts ; ' the probabilities of recov- 
 ery from the effects of an injury;* what, under certain circum- 
 stances, might cause death or a physical condition of a given char- 
 acter," and as to questions of sanity or insanity ; ° also whether, 
 under a given state of facts, insanity is real or feigned,^ and 
 
 87 People V. Hare, 57 Mich. 505; State v. Rainsbarger, 74 Iowa, 196; 
 Rowell V. Lowell, 11 Gray, 420; Franklin v. Com. (Ky.), 48 S. W. 986; 
 Littleton v. State, 128 Ala. 31, 29 So. 390. See also many illustrations 
 cited, Rogers, Exp. EV. § 53. In People v. Wilson, 109 N. Y. 345, a physi- 
 cian was allowed to state whether the injury might have been caused by 
 somebody other than the person injured. They need not have seen the 
 wounds in question or others exactly similar. State v. Powell, 7 N. J. L. 
 244; Page v. State, 61 Ala. 16; State v. Clark, 12 Ired. (N. C.) 151. But 
 the rule is otherwise if the witness is not an expert, Caleb v. State, 39 
 Miss. 721; State v. Cross, 68 Iowa, 180. 
 
 88 Ewell, Med. Juris. 31. * 
 
 »» State V. Smith, 32 Me. 369, 54 Am. Deo. 578. 
 
 1 Manufacturers' Ace. Ass'n v. Dorgan, 58 Fed. 945. See also. State 
 V. Lee, 65 Conn. 265. 
 
 zMatteson v. New York C. Ry. Co., 35 N. Y. 487, 91 Am. Dec. 67; Linsday 
 V. People, 63 N. Y. 143; Barber v. Merriam, 11 Allen, 322; State v. Slagle, 
 83 N. C. 630; City of Jackson v. Boone, 93 Ga. 662. 
 
 s Wright V. Hardy, 22 Wis. 348; Hoener v. Koch, 84 111. 408; Mertz v. 
 Detweiler, 8 Watts & S. (Pa.) 376; Heath v. Glisan, 3 Ore. 64; Mayo v. 
 Wright, 63 Mich. 32. 
 
 *Wilt V. Vickers, 8 Watts (Pa.) 227; Rumsey v. People, 19 N. Y. 42; 
 Peterson v. Chicago Ry. Co., 38 Minn. 511; Louisville Ry. Co. v. Lucas, 
 119 Ind. 583; McClain v. Brooklyn City Ry. Co., 116 N. Y. 459; Alberti v. 
 New York, L. B. & W. Ry. Co., 118 N. Y. 77; Griswold v. New York C. Ry. 
 Co., 115 N. Y. 61, 12 Am. St. Rep. 775; Springfield Ry. Co. v. Welsh, 155 
 III. 511. 
 
 State v. Powell, 7 N. J. L. 244; State v. Morphy, 33 Iowa, 270; Shelton 
 V. State, 34 Tex. 662; Curry v. State, 5 Neb. 412; State v. Smith, 32 Me. 
 369, 54 Am. Dec. 578; State v. Jones, 68 N. C. 443. 
 
 8 Davis v. State, 35 Ind. 496, 9 Am. Rep. 760; In re Blakely, 48 Wis. 294; 
 Com. V. Rogers, 7 Met. 500, 41 Am. Dec. 458; State v. Windsor, 5 Har. 
 (Del.) 512; Baxter v. Abbott, 7 Gray, 71; Hastings v. Rider, 99 Mass. 622; 
 Heald v. Thing, 45 Me. 392; State v. Pelter, 25 Iowa, 67; Pigg v. State, 43 
 Tex. 108. See full note, 39 L. R. A. 305-334. 
 
 T State V. Hayden, 51 Vt. 296. 
 
476 THE LAW OF EVIDENCE. § 379 
 
 whether or not great mental anxiety and suffering would tend to de- 
 velope insanity, where there is a hereditary predisposition.' It has 
 frequently been held that the training and experience of physicians 
 are such as to give them knowledge superior to that possessed by 
 ordinary witnesses concerning the diseases of animals; and partly 
 on this ground and partly because of the difficulty of procuring 
 other expert testimony upon the subject, ordinary physicians are 
 allowed to give opinions as to the causes, nature and effects of dis^ 
 eases among animals." As a preliminary question as to his quali- 
 fication as an expert, a medical witness may be asked whether the 
 examination made by him was careful or merely superficial.^* 
 
 § 379 (381). Same — Testimony of physicians and others a,s to 
 poisons. — On the same principle chemists and physicians, who are 
 qualified by proper study and experience, may testify as to the nar 
 ture of poisons and their effect on the system and the symptoms 
 which they produce.'^ But the fact that the witness is a physician 
 does not necessarily qualify him to testify as an expert concerning 
 the presence of poison in the human system, since he may be wholly 
 lacking in the requisite knowledge of chemical science. There is con- 
 flict on this question and it has been held in several cases that he is 
 not qualified, if his knowledge on the subject has been obtained 
 wholly from medical or scientific books or medical instruction, 
 and not from personal observation or experience.^^ But the con- 
 
 « Dejamette v. Com., 75 Va. 867. Many illustrations of miscellaneous 
 cases in which th§ opinions of medical men have been received will he 
 found in Rogers, Exp. Ev. § 81. The following cases also serve to illustrate 
 the subject of this section: People v. Barker, 60 Mich. 277, 1 Am. St. Rep. 
 501, physician testified as to the cause of death of a person found in a 
 river; Tompkins v. West, 56 Conn. 478, as to the effect of external pres- 
 sure on the lungs; Johnson v. Castle, 63 Vt. 452, as to whether a boy is 
 capable of begetting a child; Morganstein v. Nejedlo, 79 Wis. 388, as to the 
 probable effect of being unable to breathe through the nose; Hlcken- 
 botham v. Delaware Ry. Co., 122 N. Y. 91, as to whether a person feels 
 pain in an imaginary limb. 
 
 8 State V. Sheets, 89 N. C. 543; Horton v. Green, 64 N. C. 64; House v. 
 Fort, 4 Blackf. (Ind.) 293; Pierson v. Hoag, 47 Barb. (N. Y.) 243. 
 
 10 Northern Pac. Ry. Co. v. Urlln, 158 U. S. 271. 
 
 11 State V. Terrill, 12 Rich. (S. C.) 321; People v. Robinson, 2 Park. Or. 
 Cas. (N. Y.) 235; Polk v. State, 36 Ark. 117; Mitchell v. State, 58 Ala. 
 417; State v. Hinkle, 6 Iowa, 380. 
 
 i2Soquet V. State, 72 Wis. 659; Boyle v. State, 57 Wis. 472; Zoldoske 
 v. State, 82 Wis. 580; State v. Cole, 63 Iowa, 695. The opposite rule 
 was adopted in Siebert v. People, 143 111. 571. 32 N. E. 431. See also, S 368 
 supra. 
 
§ 380 OPINIONS. ' 477 
 
 trary rule is adopted in some states.'' Although it is usual for ex- 
 perts to subject compounds to a chemical analysis before testifying 
 whether they are poisonous, or as to their ingredients, and although 
 this has sometimes been held indispensable, the better rule is that 
 the opinion may be received, although this test has been omitted, it 
 being a matter which affects the weight rather than the competency 
 of the testimony.'^ 
 
 § 380 (382). Mechanics and machinists as experts. — On the 
 same principle the opinions of machinists and artisans may be re- 
 ceived as evidence when they have by their experience gained an 
 acquaintance with the subject not common to others, and which 
 may aid the court or jury in coming to a conclusion Thus, their 
 opinions are admissible as to the proper mode of doing work, as in 
 the erection of buildings,'" the proper mode of constructing ma- 
 chinery,'' and the comparative merits of different machines.'' So 
 they may give their opinions as to the value of labor, services or 
 material necessary for a specific work," or as to the time necessary 
 to complete or perform it,'" or as to the proper mode of measuring 
 or estimating such work,^° or as to the mode of doing work in such 
 manner as to comply with a certain contract,^' or as to the amount 
 
 isBoswell V. State, 114 Ga. 40, 39 S. K 897; People v. Tliacker, 108 
 Mich. 652, 66 N. W. 562; People v. Benham, 160 N. Y. 402, 55 N. E. 11; 
 State V. Sheets, 89 N. C. 549; State v. Simonis, 39 Ore. Ill, 65 Pac. 595. 
 
 14 State V. Slagh, 83 N. C. 630. See also. State v. Hinkle, 6 Iowa, 380. 
 
 IB Haver v. Tenney, 36 Iowa, 80; Shulte v. Hennessy, 40 Iowa, 352; 
 Ward V. Kilpatrick, 85 N. Y. 413; Ford v. Tirrell, 9 Gray, 401, 69 Am. Deo. 
 297; Prendible v. Connecticut Manfg. Co., 160 Mass. 131. But it must 
 first be shown that he has the requisite knowledge to make him an expert, 
 Peteler Manfg. Co. v. Northwestern Manfg. Co., 60 Minn. 127, 61 N. W. 
 1024. 
 
 m Sheldon v. Booth, 50 Iowa, 209; Curtis v. Gano, 26 N. Y. 426; Carroll 
 v. Welch, 26 Tex. 147; Cole v. Clarke, 3 Wis. 323; Taylor v. French Lum- 
 ber Co., 47 Iowa, 662; Hamner v. Janowitz (la.), 108 N. W. 109; Murphy 
 v. Marston Coal Co., 183 Mass. 587, 67 N. E. 342. 
 
 17 James v. Hogsden, 47 Vt. 127; Great Western Ry. Co. v. Haworth, 39 
 111. 346; Scattergood v. Wood, 79 N. Y. 263, 35 Am. Rep. 515. 
 
 18 Hough V. Cook, 69 111. 581; Waco Ry. Co. v. Shirley, 45 Tex. 355; 
 Simmons v. Carrier, 68 Mo. 416; Shepard v. Ashley, 10 Allen, 542; Roberts 
 V. Boston, 149 Mass. 346; Kelly v. Rowane, 33 Mo. App. 440; Ruppel v. 
 Adrian Manfg. Co., 96 Mich. 455. 
 
 19 Swain v. Naglee, 17 Cal. 416; Stiles v. Neillsville Co., 87 Wis. 266. 
 
 20 Shulte V. Hennessey, 40 Iowa, 352, measuring masonry; Ford v. Tir- 
 rell, 9 Gray, 401, 69 Am. Dec. 297. 
 
 21 Ogden V. Parsons, 23 How. 167; Haver v. Tenney, 36 Iowa, 80. 
 
478 THE LAW OF EVIDENCE. § 381 
 
 or kind of work done by certain machinery,'^ or that -whieli a cer- 
 tain force of men could do,'' or whether a certian mode of operating 
 a given machine would be safe, as well as whether the machine itself 
 was safe."* So the opinions of masons,"" bridge-builders,"' and other 
 mechanics and artisans,"^ skilled in their respective trades, may be 
 received as matters pertaining to their occupation. 
 
 § 381 (383). Expert testimony as to railroads and their manage- 
 ment. — The opinions of those versed in railroad machinery and 
 railway management are admissible as to the proper construction 
 of a track and as to the mode of laying rails,"' or proper and safe 
 appliances for cars and trades,"' or engines,'" as to the proper mode 
 
 22 Clifford V. Richardson, 18 Vt. 620; Meiners v. Steinway, 12 Jones & 
 Sp. (N. Y.) 369; Burns v. Welch, 8 Yerg. (Tenn.) 117; Sheldon v. Booth, 
 50 Iowa, 209 ; Bemis v. Central Vt. Ry. Co., 58 Vt. 636. 
 
 23 Salvo v. Duncan, 4'9 Wis. 151; Allen v. Murray, 87 Wis. 41. 
 
 24 Gilbert v. Guild, 144 Mass. 601; Lau v. Fletcher, 104 Mich. 295, 62 N. 
 W. 357; Lang v. Terry, 163 Mass. 138; McGonigle v. Kane, 20 Colo. 292. But 
 the question whether a boy is a proper person to put at work upon a 
 machine Is not one for an expert, McGuerty v. Hale, 161 Mass. 51. 
 
 25 Smith V. Gugerty, 4 Barb. (N. Y.) 614; Montgomery v. Gilmer, 33 Ala. 
 116, 70 Am. Dec. 562; MilleV v. Shay, 142 Mass. 598. 
 
 28 Washington, C. & A. Turnpike Co. v. Case, 80 Md. 36; Bonebreak v. 
 Board of Huntington County, 141 Ind. 62, 40 N. B. 141; Blank v. Livonia, 
 79 Mich. 1. 
 
 27 Wlntringham v. Hayes, 144 N. Y. 1, opinion of expert as to cost of 
 repairing a yacht; Excelsior Electric Co. v. Sweet, 57 N. J. L. 224, 30 Atl. 
 553, as to proper mode of erecting electric lights; Ouilette v. Over- 
 man Wheel Co., 162 Mass. 305, as to detection of the want of repair of a 
 shaft by its jarring the building; Judson v. Giant Powder Co., 107 Cal. 549, 
 as to the manufacture of nitroglycerine; Louisville, N. A. & C. Ry. Co. v. 
 Berkey, 136 Ind. 118, opinion of a blacksmith as to the quality of iron in a 
 coupling pin; Boettger v. Scerpe Iron Co., 124 Mo. 87, as to effect of a knot 
 or cross grain on the strength of a timber; Kershaw v. Wright, 115 Mass. 
 361, as to the mode of packing hams; Dean v. McLean, 48 Vt. 412, 21 Am. 
 Rep. 130, as to the proper mode of floating logs; State v. Baldwin, 36 Kan. 
 1, as to the instrument with which a certain panel was cut. 
 
 28 Carpenter v. Central Ry. Co., 4 Daly (N. Y.) 550; Langfitt v. Clinton 
 Ry. Co., 2 Rob. (La.) 217; Grand Rapids Ry. Co. v. Huntley, 38 Mich. 537; 
 Jeffersonville Ry. Co. v. Lanhan, 27 Ind. 171; Louisville & N. R. Co. v. 
 Sandlin, 125 Ala. 585, 28 So. 40; Missouri Pac. R. Co. v. Fox, 60 Neb. 531, 
 83 N. W. 744. 
 
 29 Baldwin v. Chicago Ry. Co., 50 Iowa, 680; German Ins. Co. v. Railway- 
 Co., 128 la. 386, 104 N. W. 361; Fitts v. Cream City Ry. Co., 59 Wis. 323; 
 Bridger v. Railroad Co., 25 S. C. 24; St. Louis & S. F. Ry. Co. v. Farr, 56 
 Fed. 994. See also, Atchison, T. & S. F. Ry. Co. v. Myers, 63 Fed. 793. 
 
 ••Chicago Ry. Co. v. Shannon. 43 111. 338. 
 
§ 382 OPmioNS. 479 
 
 of managing trains and engines,'' as to the distance in which a 
 train could be stopped when the rate of speed and other facts are 
 known/'' as to the probable cause of a train running ofF the track, 
 when the facts are stated,^' as to the comparative danger of running 
 trains forward or backward,'* as to the probable effect of a given 
 defect upon the operation of an engine,'^ as to the duties of those 
 in the management of trains under given circumstances,"" and as to 
 the effect of sparks issuing from engines and the probability of 
 their communicating fires.''' But engineers, conductoi-s and others 
 skilled in railroad matters, like other experts, are not allowed to 
 give their opinions as to whether ordinary care or prudence has 
 been exercised in the matter in controversy,'' or as to the compe- 
 tency of another person to perform his duties,'* or generally to 
 usurp the province of the jury by deciding the real question in con- 
 troversy.*" 
 
 § 382 (384). Experts in agriculture. — As illustrations of the 
 same principle, the opinions of those skilled in farming and agri- 
 culture may be received as to the proper mode of cultivating,** and 
 
 «i Cooper V. Central Ry. Co., 44 Iowa, 134; Cincinnati Ry. Co. v. Smith, 
 22 Ohio St. 246; Seaver v. Boston Ry. Co., 14 Gray, 466; Union Pac. Ry. 
 Co. V. Novak, 61 Fed. 573; Czezewzka v. Railway Co., 121 Mo. 201, 25 S. W. 
 911. 
 
 sa Belief ontaine Ry. Co. v. Bailey, 11 Ohio St. 333, engineer; Maher v. 
 Atlantic & P. Ry. Co., 64 Mo. 267. engineer; Mobile Ry. Co. v. Blakely, 59 
 Ala. 471, conductor; Detroit Ry. Co. v. Van Steinberg, 17 Mich. 99, mail 
 agent; Eckert v. St. Louis Ry. Co., 13 Mo. App. 352, locomotive builder; 
 Freeman v. Travelers Ins. Co., 144 Mass. 572, conductor; Grimmell v. Chi- 
 cago Ry. Co., 73 Iowa, 93, fireman. See also. Frost v. Milwaukee & N. Ry. 
 Co., 96 Mich. 470; Adams v. Chicago, M. & St. P. Ry. Co., 93 Iowa, 565, 61 
 N. W. 1059. 
 
 33 Seaver v. Boston Ry. Co., 14 Gray, 466; Murphy v. New York C. Ry. 
 Co., 66 Barb. (N. Y.) 125; Brownfleld v. Railway Co., 107 la. 254, 77 N. 
 W. 1038. 
 
 84 Kuhns V. Wisconsin Ry. Co., 70 Iowa, 561. 
 
 86 Brabbitts v. Chicago Ry. Co., 38 Wis. 289. 
 
 88 Cincinnati Ry. Co. v. Smith, 22 Ohio St. 246; Augusta Ry. Co. v. 
 Dorsey, 68 Ga. 228; Reifsnyder v. Chicago, M. & St. P. Ry. Co., 90 Iowa, 
 76; Czezewzka v. Benton B. Ry. Co., 121 Mo. 201, 25 S. W. 911. 
 
 87 Davidson v. St.*^ Paul, M. & M. Ry. Co., 34 Minn. 51. 
 
 ss Gavisk v. Pacific Ry. Co., 49 Mo. 274; Hill v. Portland Ry. Co., 55 
 Me. 438, 92 Am. Dec. 601; Dooner v. Delaware & H. Canal Co., 164 Pa. 
 St. 17. 
 
 si Moore v. Chicago Ry. Co., 65 Iowa, 505, 54 Am. Rep. 26; Langston v. 
 Railway Co., 147 Mo. 457, 48 S. W. 835. 
 
 *o See §§ 372 et seq. supra. 
 
 *iSpiva V. Stapleton, 38 Ala. 171; Buffum v. Harris, 5 R. I. 243. 
 
480 THE LAW OF EVIDENCE. § 382 
 
 fertilizing land," as well as to the qualities of soil,*' the probable 
 amount and value of the products or crops of land under given cir- 
 cumstances, or the yield of a certain crop,** of the values of land,*^ 
 and of its use,*" the probabe amount of injiuy to crops occasioned 
 by trespass or other causes,*'^ also as to the values,*' age *° and 
 weight of domestic animals,°° and as to the diseases "^ and proper 
 management °^ of stock. So they have been allowed to express an 
 opinion as to whether certain land required draining,^^ and as to 
 the proper time of the year for setting fires upon farming or graz- 
 ing lands."* For further illustrations of the common practice of 
 allowing farmers and stock dealers or graziers to testify as experts 
 concerning matters peculiarly within their knowledge, the notes 
 may be consulted."' 
 
 «2 Young V. O'Neal, 57 Ala. 566. 
 
 *3 Sarle v. Arnold, 7 R. I. 582. 
 
 4* Phillips V. Terry. 3 Abb. Dec. (N. Y.) 607; McLennan v. Lemen, 57 
 Minn. 317; Townsend v. Bonwill, 5 Har. (Del.) 474; Isaac v. McLean, 106 
 Mich. 79, 64 N. W. 2; Farmers' & Traders' Nat. Bank v. Woodell, 38 
 Ore. 294, 61 Pac. 837. 
 
 « Finch v. Chicago, M. & St. P. Ry. Co., 46 Minn. 250. 
 
 « Cornell v. Dean, 105 Mass. 435. 
 
 «7 Tucker v. Massachusetts Ry. Co., 118 Mass. 546; Townsend v. Brund- 
 age, 4 Hun. (N. Y.) 264; Sickes v. Gould, 51 How. Pr. (N. Y.) 22; Sea- 
 mans V. Smith, 46 Barb. (N. Y.) 320; Slater v. "Wilcox, 57 Barb. (N. Y.) 
 604; Chicago, E. R. I. & P. Ry. Co. v. Larsen, 19 Colo. 71, value of crop 
 destroyed. 
 
 48 Smith V. Indianapolis Ry. Co., 80 Ind. 233; Browne v. Moore, 32 
 Mich. 254; Gere v. Council Bluffs Ins. Co., 67 Iowa, 272; Bischoff v. 
 Schultz, 5 N. Y. S. 757; Kennett v. Fickle, 41 Kan. 211; Plunkett v. 
 Minneapolis, S. S. M. & A. Ry. Co., 79 Wis. 222; Missouri Pac. Ry. Co. 
 v. Shumaker, 46 Kan. 769; Gleckler v. Slavens, 5 S. D. 364, 59 N. W. 323; 
 Mason v. Patrick, 100 Mich. 577, horse dealer. 
 
 *»Clague V. Hodgson, 16 Minn. 329; Moreland v. Mitchell Co., 40 
 Iowa, 394. 
 
 00 Carpenter v. Wait, 11 Cush. 257; Harpendlng v. Shoemaker, 37 Barb. 
 (N. Y.) 270; Gilbert v. Kennedy, 22 Mich. 117. 
 
 01 Slater v. Wilcox, 57 Barb. (N. Y.) 604; Emrick v. Merriman, 23 
 111. App. 24; Pearson v. Zehr, 138 111 48, 29 N. E. 854; Grayson v. Lynch, 
 163 U. S. 468, 480. 
 
 02 North Mo. Ry. Co. v. Akers, 4 Kan. 388, 96 Am. Dec. 183. 
 OS BufEum V. Harris, 5 R. I. 243. 
 
 04 Ferguson v. Hubbell, 26 Hun (N. Y.) 250. As to the width of plow 
 land necessary to stop a fire, Krippner v. Bieble, 28 Minn. 139. In other 
 cases their opinions have been rejected as to whether fires were set at 
 proper times. Eraser v. Tupper, 29 Vt. 409. See also, Higgins v. Dewey, 
 108 Mass. 494,' 9 Am. Rep. 63. 
 
 so Donnelly v. Pitch, 136 Mass. 558, where the witness was allowed 
 
§ 383 OPINIONS. 481 
 
 § 383 (385). Experts in instirance matters. — ^The opinions of 
 those skilled in insurance have been held admissible to prove 
 whether certain changes, such as the erection of additions,'" out- 
 buildings °' or partitions,"' or the making of other changes in the 
 buildings increase the risk ; °° such opinions have also been admitted 
 to show which of different classes or occupations are the more haz- 
 ardous."' It is admissible to prove that, by the practice of insurers, 
 the knowledge of certain facts would have increased the risk.'^ 
 There are authorities which receive such testimony to show whether 
 or not a risk would have been taken at any premium on the life of 
 one employed in a given business.'- These cases proceed on the 
 theory that those qualified by the requisite experience may give an 
 opinion as to the influence which certain facts material to the risk 
 would have with underwriters generally as an element in the con- 
 tract and affecting the risk. Btat there is a decided conflict of 
 opinion on this question ; and another class of cases will be found in 
 which evidence of this character is rejected." It has been held in 
 numerous eases that expert testimony is inadmissible to prove that 
 it increases the risk to have a building become vacant,'* or to in- 
 to state that a horse which had not run away for a year and a half was 
 no more likely to be frightened than if he had not been frightened be- 
 fore; Wabash Ry. Co. v. Pratt, 15 Bradw. (111.) 177, as to the number 
 of hogs which might be safely shipped in one car; Albright v. Corley, 
 40 Tex. 105, as to the number of cattle of a certain brand running In a 
 range; Fleming v. McClaflan, 1 Ind. App. 537, as to. the pedigree of 
 horses; Schaeffer v. Philadelphia & R. Ry. Co., 168 Pa. St. 209, as to 
 the cause of injuries sustained by mules in shipment; Barnum v. Bridges, 
 81 Cal. 604, as to the cost of clearing land; Boyer v. Railway Co., 123 
 la. 248, 98 N. W. 764, that a mare was with foal; People v. Vane, 88 
 Mich. 453, 50 N. W. 324, that a horse had blind staggers. 
 08 Kern v. St. Louis Ins. Co., 40 Mo. 19. 
 
 07 Jefferson Ins. Co. v. Cotheal, 7 Wend. 72, 22 Am. Dec. 567. 
 
 08 Daniels v. Hudson River Ins. Co., 12 Cush. 416, 59 Am. Deo. 192. 
 
 08 Schenck v. Mercer County Ins. Co., 24 N. J. L. 447 ; Traders' Ins. Co. 
 T. Catlin, 163 111. 256, 45 N. B. 255. 
 
 eo Mitchell v. Home Ins. Co., 32 Iowa, 421; Hobby v. Dana, 17 Barb. IIL 
 
 61 Hawes v. New England Mut. Ins. Co., 2 Curt. (U. S.) 229. 
 
 «2Hartman v. Keystone Ins. Co., 21 Pa. St. 466. 
 
 »3Mulry V. Mohawk Valley Ins. Co., 5 Gray, 545, 66 Am. Dec. 380; 
 Thayer v. Providence Ins. Co., 70 Me. 531. 
 
 'M Joyce v. Maine Ins. Co., 45 Me. 169, 71 Am. Dec. 536; Cannell v. 
 Phoenix Ins. Co., 59 Me. 582; Luce v. Dorchester Ins. Co., 105 Mass. 
 300, 7 Am. Rep. 522; Liverpool Ins. Co. v. McGuire, 52 Miss. 227; Frank- 
 lin Ins. Co. V. Gruver, 100 Pa. St. 266; Kirby v. Phoenix Ins. Co., 9 Lea 
 (Tenn.)' 142; Mulry v. Mohawk Valley Ins. Co.> 6 Gray, 545, 66 Am. Dec. 
 380. 
 
 31 
 
482 THE LAW 05' EVIDENCE. § 384 
 
 crease the number of stoves in use.'° Expei-t evidence Ihas been 
 rejected in cases in which it was sought to show thereby that one 
 habitually using intoxicating drinks would not be treated as insur- 
 able,°° or that one building would be considered as an exposure to 
 another.'^ On the same principle those who have had such experi- 
 ence in examining and deciding upon risks as to have acquired 
 special skill may give their opinions, when the question becomes ma- 
 terial, as to whether certain facts, if known, would have increased 
 the premium. °* So insurance experts may give opinions as to the 
 meaning of technical terms according to the customs and usages of 
 insurers,"* and whether vessels in a givfen state are sea-worthy.'*' 
 Expert evidence is also admissible to determine the present value 
 of an insurance policy which depends partly on the accuracy of an 
 intricate computation.'* 
 
 § 384 (386). Illustrations of expert testimony by surveyors ajid 
 engineers. — Surveyors may give their opinions as to boundary 
 lines between different tracts of land,'^ as to the location of a cer- 
 tain survey," as to the genuineness of certain alleged survey marks: 
 or monuments,"* as to whether a certain corner was the true quar- 
 
 e» Schmidt v. Peoria Ins. Co., 41 111. 295. 
 
 '•Rawls V. American Mutual Life Ins. Co., 27 N. T. 282, 84 Am. Dec. 
 280. 
 
 87 Milwaukee Ry. Co. v. Kellogg, 94 U. S. 472. 
 
 68 Martin v. Franklin Ins. Co., 42 N. J. L. 46; Hawes v. New E. Mut. 
 Ins. Co., 2 Curt. (U. S.) 229; Hobby v. Dana, 17 Barb. (N. Y.) Ill; 
 Merriam v. Middlesex Ins. Co., 21 Pick. 162, 32 Am. Dec. 252; Luce v. 
 Dorchester Ins. Co., 105 Mass. 297, 7 Am. Rep. 522; Planters Mut. Ins. 
 Co. V. Rowland, 66 Md. 236; Penn M. L. Ins. 'Co. v. M. S. B. & T. Co., 72 
 Fed. 413. It is necessary in such a case that the witness have special 
 knowledge of the subject, Stennett v. Pennsylvania Fire Ins. Co., 68 
 Iowa, 674; Schmitt v. Peoria Ins. Co., 41 111. 296. 
 
 80 Child V. Sun Mut. Ins. Co., 3 Sandf. (N. Y.) 26, meaning of "whal- 
 ing voyages;" Niagara Fire Ins. Co. v. Greene, 77 Ind. 590, meaning of 
 "reasonable time;" Johnson v. Northwestern Ins. Co., 39 Wis. 87, mean- 
 ing of "loading offshore." 
 
 70 Thornton v. Royal Exchange Ass'n Co., Peake N. P. 26; Beckwlth v. 
 Sydebotham, 1 Camp. 116; Walsh v. Wash. Ins. Co., 32 N. Y. 427, as to 
 the effect of heavy storms upon vessels; Lapham v. Atlas Ins. Co., 24 
 Pick. 1, as to whether It is more 'dangerous to carry goods on deck or 
 under deck. 
 
 71 Price v. Connecticut Life Ins. Co., 48 Mo. App. 281. 
 
 72 Shook V. Pate, 50 Ala. 91; Bridges v. McClendon, 56 Ala. 327; Mincke 
 V. Skinner, 44 Mo. 92; Messer v. Reginnetter, 32 Iowa, 312. 
 
 73 Jackson v. Lambert, 121 Pa. St. 182. 
 
 "Davis v. Mason, 4 Pick. 156; Knox v. Clark, 123 Mass. 216; Clegg v. 
 
§ 384 Ot-mioNS. 483 
 
 ter section corner," and also whether certain corners, aJleged to 
 have been found, had been found according to the government sur- 
 vey.'"* But surveyors are not competent to construe deeds or other 
 written instruments by testifying as to the controlling calls in. de- 
 scriptions of land or the meaning of the language used in such in- 
 struments." On the same principle the opinions of civil engineers 
 are received as to those matters within the range of their profes- 
 sion. Thus, engineers having the requisite skill may testify as to 
 what amount of land would be overflowed if water within certain 
 embankments were kept at a given height,''* as to the causes and ef- 
 fects of the overflow of a stream at given places,''" as to the causes 
 of the filling of a certain harbor,*" as to the effect of a given dam or 
 embankment in causing an overflow,*^ or of a given drain in respect 
 to the flow of water,*^ as to the meaning of technical terms,*' as to 
 the probability that a lake would overflow a given area,** as to the 
 customary and proper modes of doing work within the line of their 
 profession,*" and as to the cost or value of the same.*^ On the 
 same principle it has been held that miners are competent to testify 
 as experts as to matters connected with the operation of mines.*^ 
 
 Fields, T Jones (N. C.) 37, 75 Am. Dec. 450; MoGann v. Hamilton, 58 
 Conn. 69. 
 
 75 Toomy V. Kay, 62 Wis. 104. 
 
 7«Hockmoth v. Des Grand Champs, 71 Mich. 520. 
 
 77Norment v. Pastnaght, 1 MacArth. (D. C.) 515; Schultz v. Llndell, 30 
 Mo. 310; Blumenthall v. Roll, 24 Mo. 113; Randolph v. Adams, 2 W. Va. 
 519. 
 
 78 Phillips V. Terry, 3 Abb. App. Dec. (N. T.) 607. 
 
 78 Moyer v. New York C. Ry. Co., 98 N. Y. 645^ 
 
 8»Folkes V. Chadd, 3 Doug. 157, 26 B. C. L. 63. See also, Grlsby v. 
 Clear Lakes W. W. Co., 40 Cal. 396. 
 
 81 Ball V. Hardesty, 38 Kan. 540. See also cases last cited. But the 
 fact that damage has resulted from the overflow may. be proved without: 
 expert testimony, Lincoln & B. H. Ry. Co. v. Sutherland, 44 Neb. 526, 62 
 N. W. 859. 
 
 saBuffum v. Harris, 3 R. I. 243. 
 
 83 Reed V. Hobbs, 3 111. 297; Colwell v. Lawrence, 38 Barb. (N. Y.) 
 643; Skelton v. Fenton Elec. Co., 100 Mich. 87. 
 
 s^Clason v. Milwaukee, 30 Wis. 316. 
 
 8B Hart V. Hudson R. Bridge Co., 84 N. Y. 56; Stead v. Worcester, ISOi 
 Mass. 241. 
 
 8« Bryan v. Branford, 50 Conn. 246. 
 
 87 Grant v. Varney, 21 Colo. 329, 40 Pac. 771, support of a mine; Mona- 
 han V. Kansas City Clay Co., 58 Mo. App. 68, support of a mine; Bennett 
 V. Morris (Cal.), 37 Pac. 929, operation of a mine; McNamara v. Logan, 
 100 Ala. 187, as to the proper mode of operating a mine; Bird v. Utica 
 
484 THE LAW OF EVIDENCB, § 386 
 
 § 385 (387). Opinions of nautical men. — It is a common prac- 
 tice to receive in evidence the opinions of persons skilled in the 
 management of boats and vessels. For example, the opinions of 
 nautical men are received as to the proper management of boats and 
 vessels under given circumstances,'* as to the condition, state of 
 repair or seaworthiness of vessels, and of their machinery and ap- 
 pliance,'" as to the proper mode of loading vessels, and as to what 
 cargoes may be safely carried,"" as to the probable causes of collis- 
 ions or the loss of vessels, and the mode of avoiding such collision 
 or loss under given circumstances,"^ as to the proper mode of repair- 
 ing vessels, and of raising them when sunk, and the feasibility of so 
 doing,"^ as to what constitutes a competent crew for a voyage, and 
 as to the course and usage of business in the relations between mas- 
 ter and crew."' 
 
 § 386 (388). Miscellaneous illustrations. — Of the many other in- 
 stances which might be given of the admission of the opinions of 
 experts as evidence, only a few of a miscellaneoiis character will be 
 added as illustrative of the general subject. Thus, practical mill- 
 wrights may testify as to the requisite height of water for the 
 proper operation of a mill under given circumstances,"^ as to the 
 sufficiency or need of repairs '"' and as to the adaptability of a given 
 
 Gold Mining Co., 2 Cal. App. 674, 84 Pac. 256, timbering of mine; 
 Kellyville Coal Co. v. Strine, 217 111. 516, 75 N. E. 375. 
 
 S8 Union Ins. Co. v. Smith, 124 U. S. 405; Guiterman v. Liverpool 
 Steamship Co., 83 N. Y. 358; Baltimore Elevator Co. v. Neal, 65 Md. 438; 
 Transportation Line v. Hope, 95 U. S. 297. 
 
 89 steamboat Clipper v. Logan, 18 Ohio, 375; Beckwith v. Sydebotham, 
 1 Camp. 117; Baird v. Daly, 68 N. Y. 547; Patchin v. Astor Mut. Ins. Co., 
 13 N. Y. 268; "Western Ins. Co. v. Tobin, 32 Ohio St. 77; Reed v. Dick, 8 
 Watts (Pa.) 479. 
 
 »o,Ogden v. Parsons, 23 How. 167; Lapham v. Atlas Ins. Co., 24 Pick. 
 1; Price v. Powell) 3 N. Y. 322; Weston v. Foster, 2 Curt. (U. S.) 119; 
 Leitch V. Atlantic Ins. Co., 66 N. Y. 100, as to whether a certain mode of 
 loading Increased the risk. 
 
 91 Western Ins. Co. v. Tobin, 32 Ohio St. 77; Weaver v. Alabama Co., 
 35 Ala. 176; Fenwick v. Bell, 1 Car. & K. 312; Steamboat Clipper v. 
 Logan, 18 Ohio, 375. 
 
 »2 Steamboat Clipper v. Logan, 18 Ohio, 375; Sikes v. Paine, 10 Ired. 
 (N. C.) 280, 51 Am. Dec. 389. 
 
 osMcLanahan v. Universal Ins. Co., 1 Peters, 170; McCreary v. Turk, 
 29 Ala. 244. As to the size of waves, Smith v. Sabine Ry. Co., 76 Tex. 63. 
 
 MDetweiler v. Graff, 10 Pa. St. 376. 
 
 «5 Taylor v. French Lumber Co., 47 Iowa, 662; Cooke v. England, 27 
 Md. 14, 92 Am. Dec. 618. 
 
§ 387 OPINIONS. 485 
 
 place for a mill site." So millers have been allowed to give opinions 
 as to the effect of dams upon other mills on the same stream,"^ as 
 to the capacity of mills and machinery " and also for the purpose 
 of identifying wheat and flour from certain peculiarities.'* The 
 opinions of artists may be received as to the genuineness of paint- 
 ings and as to their value ; ^ and photographers may tefitify as to 
 the quality of work of other photographers, and as to other matters 
 pertaining to their employment.^ So the opinions of those having 
 the requisite skill have been received as to the proper and usual 
 modes of packing and shipping,^ and importing merchandise* as 
 to the results of computations in voluminous Looks or schedules ° 
 and as to the genuineness of a post mark.' 
 
 § 387 (389). Expert testimony as to values. — The view has been 
 maintained in one state that the values of lands within the county, 
 when described to the jury, as well as the values of domestic ani- 
 mals are matter of such common notoriety that a jury require no 
 evidence on which to base their decision, and that expert testimony 
 upon the subject should not be received.' But this rule was after- 
 ward changed by statute and the practice everywhere ])revails of 
 calling experts to prove the values of land and personal property, 
 although as we have seen, this is a subject as to which ordinary wit- 
 
 88 Haas V. Choussard, 17 Tex. 592. 
 
 07 Ball V. Hardesty, 38 Kan. 540; "Williamson v. Tingling, 80 Ind. 379. 
 
 88 Read V. Barker, 30 N. J. L. 378; B. P. AUis Co. v. Columbia Mill 
 Co., 65 Fed. 52. 
 
 89 Walker v. State, 58 Ala. 393. For other cases In which opinions of 
 millers and millwrights have heen received see: Hammond v. Woodman, 
 41 Me. 177, 66 Am. Dec. 219, as to the effect on the machinery of the 
 shutting off the water power; Claggett v. Easterday, 42 Md. 617, as to 
 the existence of a mill site; Walker v. Fields, 28 Ga. 237, as to the 
 skillfulness of work done in a mill; Doster v. Brown, 25 Ga. 24, 71 Am. 
 Dec. 153, as to the capacity of a millwright; Davis v. Mills, 163 Mass. 
 481, as to the component parts of certain flour. 
 
 1 Houston Ry. Co. v. Burke, 55 Tex. 323, 40 Am. Rep. 808. 
 
 2 Barnes v. Ingalls, 39 Ala. 193. 
 
 3 Leopold v. Van Kirk, 29 Wis. 548; Kershaw v. Wright, 115 Mass. 361, 
 as to whether hams packed in a certain mode would bear transportation; 
 Shriver v. Sioux City Ry. Co., 24 Minn. 506, as to whether marble was 
 properly packed. 
 
 4 Richards v. Doe, 100 Mass. 524. 
 
 6 Jordan v. Osgood, 109 Mass. 457, 12 Am. Rep. 731. 
 "Abbey v. Lill, 5 Bing. 299. 
 
 7 Rochester v. Chester, 3 N. H. 349; Robertson v. Stark, 15 N. H. 109; 
 Low v. Connecticut Ry. Co., 45 N. H. 370. For a general discussion of 
 the subject of values, see note, 42 L. R. A. 767r770. 
 
486 THE LAW OF EVIDENCE. § 387 
 
 nesses may also give their opinions.' It is not necessary that an 
 expert should have seen the land or article in question or have per- 
 sonal knowledge concerning it." His knowledge may be gaiaed by 
 having dealt in similar property, although at another place/" or 
 from the description of the articles by other witnesses, and hypo- 
 thetical questions may be asked based on such descriptions.^^ Ac- 
 cordingly it has often been held that the values of lands may be 
 proved not only by ordinary witnesses, residents of the vicinity," 
 but by real estate agents, assessors or other public officers, or per- 
 sons engaged in private business of such a character as gives them 
 special and peculiar knowledge of the subjeet.^^ It is not necessary 
 that the witness should have bought or sold land in that vicinity," 
 or that he should have known the actual; sales of such tracts as the 
 one in question ; ^° or that his knowledge of sales should have been 
 personal,^" or that it should have been derived from the buyer or 
 
 8 See § 363 supra and cases there cited. 
 
 Slocovicli V. Orient Ins. Co., lOS N. Y. 56; Mlsh v. "Wood, 34 Pa. St. 
 451; Stone v. Covell, 29 Mich. 360. 
 
 lOMish V. Wood, 34 Pa. St. 451; Whitbeck v. New York Ry. Co., 36 
 Barb. (N. Y.) 644; Lawton v. Chase, 108 Mass. 238; Phoenix Ins. Co. v. 
 Copeland, 86 Ala. 551; Miller v. Smith, 112 Mass. 470; Beecher v. Den- 
 niston, 13 Gray, 354. 
 
 iiMish V. Wood, 34 Pa. St. 451; Whitbeck v. New York Ry. Co., 36 
 Barb. (N. Y.) 644; Orr v. Mayor of N. Y., 64 Barb. (N. Y.) 106; Phoenix 
 Ins. Co. V. Copeland, 86 Ala. -551; Miller v. Smith, 112 Mass. 475. 
 
 12 Kansas City Ry. Co. v. Ehret, 41 Kan. 22, 69; Stone v. Covell, 29 Mich. 
 360; Thomas v. Mallinckrodt, 43 Mo. 58; Pennsylvania Ry. Co. v. Bunnell, 
 81 Pa. St. 426; Robertson v. Knapp, 35 N. Y. 91; West Newbury v. Chase, 
 5 Gray, 421; Lehmicke v. St. Paul Ry. Co., 19 Minn. 464; Crouse v. Hol- 
 man, 19 Ind. 30; Bralnard v. Boston Ry. Co., 12 Gray, 407; Galena Ry. Co. 
 V. Haslem, 73 111. 494; Hanover Water Co. v. Ashland Iron Co., 84 Pa. St. 
 279; Kelthsburg Ry. Co. v. Henry, 79 111. 290; City of Santa Ana v. Harlin, 
 99 Cal. 538; Hudson v. State, 61 Ala. 334; Erd v. Chicago Ry. Co., 41 Wis. 
 65; Ferguson v. Stafford, 33 Ind. 162; Tate v. M., K. & T. Ry. Co., 64 Mo. 
 149; Northeastern N. Ry. Co. v. Prazier, 25 Neb. 53; Pingery v. Cherokee 
 Ry. Co., 78 Iowa, 438; Blake v. Griswold, 103 N. Y. 429; Snodgrass v. City 
 of Chicago, 152 111. 600. 
 
 13 Swan v. Middlesex, 101 Mass. 173 ; Bristol Bank v. Keavy, 128 Mass. 
 298; Haulenbeck v. Cronkright, 23 N. J. Eq. 407; Jarvis v. Purman, 25 
 Hun (N. Y.) 391. 
 
 1* Whitman v. Boston Ry. Co., 7 Allen, 313; Lehmicke v. St. Paul Ry. Co., 
 19 Minn. 464. 
 
 10 Frankfort Ry. Co. v. Windsor, 51 Ind. 238; Leroy Ry. Co. v. Hawk, 39 
 Kan. 638; Kansas City Ry. Co. v. Baird, 41 Kan. 69. 
 
 18 Hanover Wafer Co. v. Ashland Iron Co., 84 Pa. St. 279. But a mere 
 statement that he has "heard" of sales In the neighborhood is not suffi- 
 cient, Micheal v. Crescent Pipe Line Co., 159 Pa. St. 99. 
 
§ 387 OPINIONS. 487 
 
 seller of the land sold." The essentials are: "First a knowledge of 
 the intrinsic properties of the thing; secondly, a knowledge of the 
 state of the markets." " And in determining the qualifications of 
 such witnesses much must be left to the discretion of the trial 
 judge." So those who have become experts in respect to the values 
 of personal property of any kind by means of having dealt in simi- 
 lar articles, or who have gained the requisite knowledge in any other 
 way may give their opinions as to such values.^" On the same gen- 
 eral principle lawyers," physicians,''^ nurses,'^' artists and authors,^* 
 as well as persons in other walks of life " having familiarity with 
 the subject have been allowed to testify as experts as to the value of 
 services rendered by those of their own profession or occupation. 
 
 17 Wtltman v. Boston & M. Ry. Co., 7 Allen, 313. 
 
 18 Whart. Ev. § 447. See also, Dawson v. City of Pittsburg, 159 Pa. St. 
 ^17. 
 
 I'Howland v. Westport, 172 Mass. 373, 52 N. B. 522; Fossum v. Railway 
 ^0., 80 Minn. 9, 82 N. W. 979; Willett v. St. Albans, 69 Vt. 330, 38 Atl. 72. 
 
 20 Smith V. Frost, 42 N. Y. S. 87, stock broker; Jonan v. Ferrand, 3 Rob. 
 '(La.) 366, stockbroker; Shepard v. Ashley, 10 Allen 542, mechanic; Enos 
 V. St. Paul Insurance Co., 4 S. Dak. 639, clerk; Reed v. Davis Milling Co., 
 37 Neb. 391, flour merchant; Woods v. Gaar, Scott & Co., 99 Mich. 401, 
 dealer in agricultural implements; Whitney v. Thatcher, 117 Mass. 523, 
 broker; Beecher v. Dennlston, 13 Gray, 354, gunsmith; clothing and fur- 
 niture, Houghtaling v. Railway Co., 117 Iowa, 540, 91 N. W. 811; house- 
 hold goods, Munro v. Stowe, 175 Mass. 189, 55 N. E. 992; millinery goods, 
 Langdon v. Wlntersteen, 58 Neb. 278, 78 N. W. 501; sealskin coat. State 
 V. Finch, 70 la. 317, 30 N. W. fa/8, 59 Am. Rep. 443; stock of good^ State 
 V. Tenneborn, 92 Iowa, 551, 61 N. W. 193; horses, Chicago & N. W. R. Co. 
 V. Calumet Stock Farm, 194 111. 9, 61 N. E. 1095; Leek v. Chesley, 98 Ind. 
 593, 67 N. E. 580; cattle, Cathcart v. Rogers, 115 Ind. 30, 87 N. W. 738; 
 Choctaw O. & G. R. Co. v. Deperade, 12 Okl. 367, 71 Pac. 629; wheat, Llnde 
 V. Gaffke, 81 Mich. 304, 84 N. W. 41; logs, Rylander v. Laursen, 124 Wis. 2: 
 shares of stock, Aldrich v. Bay State Const. Co., 186 Mass. 489, 72 N. B. 53; 
 piano, Lines v. Alaska C. Co., 29 Wash. 133, 69 Pac. 642. 
 
 21 Kelly V. Richardson, 69 Mich. 430; Frye v. Ferguson (S. Dak.), 61 
 N. W. 161; Stevens v. Ellsworth, 94 la. 758, 63 N. W. 683; Bourke v. Whit- 
 ing, 19 Colo. 1; Clark v. Elsworth, 104 Iowa, 442, 73 N. W. 1023; Calhoun y. 
 Akeley, 82 Minn. 354, 85 N. W. 170. See note, 11 L. R. A. 787. 
 
 22 Wood V. Barker, 49 Mich. 295; Ward v. Railway Co., 53 S. C. 10, 30 S, 
 E. 594; Camp v. Ristime, 101 Tenn. 534, 47 S. W. 1098. 
 
 23 Wallace v. Schaub, 81 Md. 594, 32 Atl. 324; Allison v. Parkinson, 
 108 Iowa, 154, 78 N. W. 845. 
 
 24Babcock v. Raymond, 2 Hilt. (N. Y.) 61. 
 
 25Heffron v. Brown, 155 111. 322; Lake Shore & M. S. Ry. Co. v. Teeters 
 (Ind.), 74 N. B. 1014; McLamb v. Railway Co., 122 N. C. 862, 29 S. E. 894; 
 Sprague v. Sea, 132 Mo. 327, 53 S. W. 1074, 
 
488 THE LAW OF EVIDENCE. § 388 
 
 And as to the value of professional services only persons engaged 
 in that profession can give opinions.^' Such testiriony is, how- 
 ever, not conclusive upon the jury, but merely advisory ^^ Although 
 no hard and fast rule can be laid down as to the qualifications of 
 witnesses as to values and although the witness may avail himself 
 of many sources of information, he must have knowledge of the sub- 
 ject and of the market value if there is one at the place in ques- 
 tion.^' It has been held in some cases that such knowledge may be 
 derived from market reports.^' 
 
 § 388 (390). Opinions as to amount of damages. — The question 
 of damages is often so intimately connected with that of the value 
 of property that it becomes necessary to consider whether expert 
 witnesses may ever give their opinions as to the damages which a 
 party has suffered in a given case. On a principle discussed in an- 
 other section it is evident that, if the witness may give an opinion as 
 to damages, the practice is an exception to general rules, since this 
 is a question for the determination of the jury." Undoubtedly it 
 is the general rule that witnesses cannot give their opinions as to 
 the amount of damages suffered in a given case. But there is a 
 class of cases in which there is a decided conflict of authority as to 
 the admissibility of opinions as to the amount of damages in con- 
 demnatio^i proceedings. The courts of many of the states, perhaps 
 amajority, hold that in such cases witnesses cannot state the amount 
 of damages sustained thereby, on the ground that the amount of 
 damages is the very subject referred to the jury.'* These courts 
 
 28 Howell V. Smith, 108 Mich. 350, 66 N. W. 218; Mock v. Kelly, 3 Ala. 
 387. 
 
 27 Moore v. Ellis, 89 Wis. 108. See also cases cited in note 19 supra. 
 
 28 Daly V. Kimball Co. 67 Iowa, 135, 24 N. W. 756; Russell v. Hayden, 40 . 
 Mnn. 90, 41 N. W. 456; Stevens v. Ellsworth, 95 Iowa, 231, 63 N. W. 683. 
 
 29 Whitney v. Thacher, 117 Mass. 523; Hudson v. Railway Co., 92 Iowa, 
 231,' 60 N. W. 608, 54 Am. St. Rep. 550; Texas & P. R. Co. v. Donovan, 86 
 Tex. 378, 25 S. W. 10; Hoxsie v. Lumber Co., 41 Minn. 548, 43 N. W. 476. 
 In other cases information gained by more Inquiry held insufficient, Nor- 
 folk & W. R. Co. V. Reeves, 97 Va. 284, 33 S. E. 606; Wadley v. Com., 98 Va. 
 803, 35 S. B. 452. 
 
 80 See §§ 363 and 372 et seq. supra. 
 
 >i Noonan v. Wells, 17 Wend. 136; Bain v. Cushman, 60 Vt 343; Yost v, 
 Conroy, 92 Ind. 464, 47 Am. Rep. 156; Central Ry. Co. v. Senn, 73 Ga. 705; 
 Burlington Ry. Co. v. Beebe, 14 Neb. 463; Little Rock Ry. Co. v. Haynes, 
 47 Ark. 497; Fremont Ry. Co. v. Marley, 25 Neb. 138; Lincoln v. Saratoga 
 Ry. Co., 23 Wend. 433; Terpenning v. Corn Exchange Ins. Co., 43 N. Y. 
 279; Ohio Ry. Co. v. Nickless, 71 Ind. 271; Central Ry. Co. v. Kelly, 58 Ga. 
 107; Wilcox v. Leake, 11 La. An. 178; Cleveland Ry. Co. v. Ball, 6 Ohio 
 
§ 388 OPINIONS. 489 
 
 confine the witnesses to a statement of the value of the property 
 iefore and after its condemnation.'^ But in many states and with 
 much reason it is held that opinions as to the damage sustained in 
 such cases should be received in evidence. These decisions are based 
 upon the reasoning that, inasmuch as the amount of damages in 
 such proceedings depends entirely upon opinions as to the value 
 before and after the condemnation, and as these opinions are com- 
 petent, it can make no material difference whether the witness gives 
 his opinion as to the amount of damages at once or whether he is 
 allowed simply to state to the jury his opinion as to values from 
 which the opinion as to damages must necessarily follow by the 
 processes of subtraction.'' The tendency of the later decisions 
 seems to be in favor of this rule. The opinions of witnesses as to 
 the amount of damage growing out of sales and breach of contract 
 as to personal property, and other contracts and causes of action 
 are not admissible.'" 
 
 St. 568; Harrison v. Iowa Midland Ry. Co., 36 Iowa, 323; Illinois C. R. Co. 
 V. Smith, 110 Ky. 203, 61 S. W. 2; Sixtli Ave. R. Co. v. El. R. Co., 138 N. Y. 
 548, 34 N. E. 400. Contrary to tlie general rule a witness was allowed to 
 give an opinion as to damages in an action for breach of promise of mar- 
 riage, Jones V. Fuller, 19 S. C. 66, 45 Am. Rep. 761. 
 
 32 Alabama Ry. Co. v. Burkett, 42 Ala. 83; Brunswick Ry. Co. v. Mc- 
 Laren, 47 Ga. 546; Yost v. Conroy, 92 Ind. 464; Harrison v. Iowa Ry. Co., 
 36 Iowa, 325; Ottawa Ry. Co. v. Adolpn, 41 Kan. 600; Grand Rapids v. 
 Grand Rapids & I. Ry. Co., 58 Mich. 641; Freemont Ry. Co. v. Whalen, 11 
 Neb. 585; Cleveland Ry. Co. v. Ball, 5 Ohio St. 568; Brown v. Providence 
 Ry. Co., 12 R. I. 238; Kay v. Railway Co., 47 Va. 467, 35 S. E. 973; Union 
 El. Co. v. Railway Co., 135 Mo. 353, 36 S. W. 1071. See also, Mayor of Bal- 
 timore v. Smith Brick Co., 80 Md. 458. 
 
 83 Texas Ry. Co. v. Kirby,-44 Ark. 103; Orange Belt Ry. Co. v. Craver, 
 32 Fla. 28; Spear v. Drainage Commissioners, 'll3 111. 632; Snow v. Boston 
 Ry. Co., 65 Me. 230; Swan v. County of Middlesex, 101 Mass. 173; Emmons 
 v. Minneapolis Ry. Co., 41 Minn. 133; Rochester Ry. Co. v. Budlong, 6 
 How. Pr. (N. Y.) 467; Portland v. Kam, 10 Ore. 383; Dawson v. City of 
 Pittsburgh, 159 Pa. St. 317; Railroad Company v. Foreman, 24 W. Va. 662; 
 "Washburn v. Milwaukee Ry. Co., 59 Wis. 364; Chandler v. J. P. Aqueduct, 
 125 Mass. 551; Lee v. Water Co., 176 Pa. 223, 35 Atl. 184; Schuler v. Board, 
 12 S. D. 460, 81 N. W. 890. In these states opinion evidence is held ad- 
 missible as to the Increase in the value of property occasioned by public 
 improvements. Pike v. City of Chicago, 155 111. 656. 
 
 34 Anderson v. Bank, 6 N. D. 497, 72 N. W. 916; Tootle v. Kent, 12 Okl. 
 674, 73 Pac. 310; Nelson v. Railway Co., 58 Wis. 520, 17 N. W. 310. 
 
 35 As to damages for loss of services, Butler v. King, 10 Cal. 341; Turner 
 V. Railway Co., 15 Wash. 213, 46 Pac. 243; as to personal injury, Tenny v. 
 Rapid City, 17 S. D. 283, 96 N. W. 96; De Wald v. Ingle, 31 Wash. 616, 72 
 Pac. 469, 96 Am. St. Rep. 927; Bain v. Cushman, 60 Vt. 343, 15 Atl. 171. 
 
490 THE liAW OF EVIDENCE. § 389 
 
 § 389(391). Cross-examination of experts — ^Latitude allowed. — 
 
 The party cross-examining an expert witness is by no means con- 
 fined to the theory on which the adversary has conducted his exam- 
 ination. He may go into the details and may put the case before 
 the expert in all its phases. "He has a right to leave out of the 
 hypothetical question facts assumed by the counsel ou the direct 
 examination, if he deems them not proved; and he also has the 
 right to add to the question such facts as he thinks the evidence es- 
 tablishes. ' ' '' The witness may be asked his opinion upon hypo- 
 thetical questions which present the facts claimed to constitute the 
 ease or defense of the party examining him.'^ As usual in cross- 
 examinations great liberty is allowed; and the hypothetical ques- 
 tions may, subject to the reasonable discretion of the court, assume 
 any facts relevant to the case.'' The inquiry on cross-examination 
 should be allowed as wide a range as may be reasonably necessary to 
 test the skill and reliability of the witness.'® Even on direct exam- 
 ination expert witnesses are allowed to state the reasons for their 
 opinions ;*" and clearly the same latitude is allowed on cross-exam- 
 ination. In ascertaining the grounds or reasons for such opinions, 
 the cross-examiner is not confined to the scope of the evidence al- 
 ready given in the case, but is allowed to ask questions which would 
 be wholly irrelevant except for the purpose of ascertaining the 
 value of such opinions or the degree of credibility to be attached to 
 the testimony of the witness.*^ Although we have seen that on di- 
 
 Other actions, Illinois Cent. R. Co. v. Smith, 110 Ky. 203, 61 S. W. 2; Read 
 V. Valley Land and Cattle Co., 66 Neb. 423, 92 N. W. 622. 
 
 seThomp. Trials § 628; Louisville Ry. Co. v. Falvey, 104 Ind. 409; Davis 
 V. State, 35 Ind. 496. As to use of scientific books on cross-examination, 
 see § 579 infra. * 
 
 87 Davis v. State, 35 Ind. 496; Louisville Ry. Co. v. Falveyi 104 Ind. 409; 
 Williams v. State, 64 Md. 384. 
 
 38 Dilleber v. Home Life Ins. Co., 87 N. Y. 79; Trull v. Modern Woodmen 
 of America (Idaho), 85 Pac. 1081. 
 
 39 Dilleber v. Home Life Ins. Co., 87 N. Y. 79; People v. Augsbury, 97 
 N. Y. 501; Louisville Ry. Co. v. Falvey, 104 Ind. 409; Geisendorf v. Eagles, 
 106 Ind. 38; People v. Sutton, 73 Cal. 243; McFadden v. Railway Co., 87 
 Cal. 464, 25 Pac. 681. 
 
 40 Dickenson v. Fitchburg, 13 Gray, 546; State v. Hooper, 2 Bailey (S. C.) 
 37; Fairchild v. Bascomb, 35 Vt. 398; Lincoln v. Taunton Mfg. CO., 9 
 Allen, 181; Keith v. Lothrop, 10 Cush. 457; Com. v. Webster, 5 Cush. 295, 
 52 Am. Dec. 711; Leache v. State, 22 Tex. App. 279, 58 Am. Rep. 638; 
 Chicago & N. W. Ry. Co. v. Town of Cicero, 154 111. 656. 
 
 "Brickson v. Smith, 2 Abb. App. Dec. (N. Y.) 64; Louisville Ry. Co. Y. 
 Falvey. 104 Ind. 409; D?,vi? V, ?tate, 35 In^. ^Sq, 
 
§• 390 OPINIONS. 491 
 
 rect examination the hypothetical questions must be based upon 
 facts proved or which the evidence tends to prove, no such limit is 
 imposed upon the cross-examination. For the piirpose of testing the 
 accuracy or credibility of the expert, or the value of his opinions, 
 he may be interrogated as to pertinent hypothetical cases concern- 
 ing which no evidence has been given.*^ The extent to which the 
 examination may go in respect to such collateral matters rests in 
 the sound discretion of the court; and the exercise of such discre- 
 tion will not be reviewed on appeal, unless abused.*' In other re- 
 spects expert witnesses may be subjected on cross-examination, like 
 other witnesses, to such tests as may be necessary to ascertain 
 whether they are accurate, impartial and credible. Thus, they may 
 be asked if they have not on other occasions expressed opinions dif- 
 ferent from those given on the stand ; ** and they may be asked the 
 reasons for such change of opinion;*" and whether they have re- 
 ceived a special fee for attending the trial and, if so, what amount.*' 
 § 390 (392). Infirmity of expert testimony. — It is the inherent 
 infirmity of expert testimony that it consists largely of matters of 
 opinion. In addition to those elements of weakness and uncertainty 
 which enter into the testimony of those who relate simply what they 
 have seen and heard, we have in expert testimony the deductions 
 and reasoning of the witness with all the chances of error incident 
 to human reasoning. The notorious fact that experts of equal credi- 
 bility and skill are found in almost every important cause testify- 
 ing to directly opposite conclusions illustrates both the fallibility of 
 such testimony and the fact that a conviction for perjury based 
 upon such evidence would be very difficult. It is a matter of com- 
 mon observation in the courts that witnesses of the highest charac- 
 ter and of undoubted veracity may be easily led as experts to 
 expouse and defend a theory with all the zeal of the advocate. 
 Again, the practice sometimes prevails of employing expert witnesses 
 and paying them for their services, as compensation, amounts de- 
 
 43 Davis V. State, 35 Ind. 496; Louisville Ry. Co. v. Falvey, 104 Ind. 409; 
 Dilleber v. Home Life Ins. Co. 87 N. Y. 79; People v. Augsbury, 97 N. t. 
 501; Geisendorf v. Eagles, 106 Ind. 38; People v. Sutton, 73 Gal. 243; Bever 
 v. Spangler, 93 Iowa, 576, 61 N. W. 1072. 
 
 *s People V. Augsbury, 97 N. Y. 501; Bever v. Spangler, 93 Iowa, 576, 61 
 N. W. 1072. See §§ 833, et seq. infra. 
 
 .44 Sanderson v. Nashua, 44 N. H. 49'2. See §§ 826, et seq. infra. 
 
 45 People V. Donovan, 43 Cal. 1G2. 
 
 46 Alford v. Vincent, 53 Mich. 555; Allen B. Wrisley Co. v. Burke, 203 111. 
 250, 67 N. B. 818. See valuable notes as to expert testimony, 66 Am. Dec. 
 238; 42 L. R. A. 753-774, 
 
492 THE LAW OF EVIDENCE. § 391 
 
 pending upon their skill, or, perhaps, the result of the action. These 
 and similar considerations have led to those strictures upon expert 
 testimony so often made in instructions to juries or in judicial de- 
 cisions.^' 
 
 § 391 (393). Same, continued. — It has been said of expert testi- 
 mony: "It is not desirable in any case where the jury can get 
 along without it, and is only admitted from necessity, and then only 
 when it is likely to be of some value. " *^ " The evidence of experts 
 is of the very lowest order and the most unsatisfactory character. ' ' *° 
 All testimony founded upon opinion merely is weak and uncertain, 
 and should in every case be weighed with great caution,'^" "The un- 
 satisfactory nature of such evidence is well known. The facility 
 with which great numbers of witnesses may be marshalled on both 
 sides of such a question, all calling themselves experts, and each 
 anxious to display his skill and ingenuity in detecting the false or 
 pointing out the true, and equally honest and confident that his own 
 theory or opinion is the only correct one, and yet all on one side 
 directly opposing all on the other, admonishes us of the fallibility of 
 such testimony, and of the great degree of allowance with which it 
 must be received. " "*' " Such evidence should be received with great 
 caution by the jury and never allowed except upon subjects which 
 require unusual scientific attainments or peculiar skill. "°^ "The 
 evidence of witnesses who are brought upon the stand to support 
 a theory by their opinions is justly exposed to a reasonable degree 
 of suspicion. They are produced, not to swear to facts observed by 
 them, but to express their judgment as to the effect of those de- 
 tailed by others; and they are selected on account of their ability 
 to express a favorable opinion, which there is great reason to be- 
 lieve is in many instances the result alone of employment, and the 
 bias arising out of it. Such evidence should be cautiously accepted 
 as the foundation of a verdict; and it forms a very proper subject 
 for the expression of a reasonably guarded opinion by the courts." "^ 
 
 *7 For a general discussion of the value and uses of expert testimony 
 and opinion evidence see extended notes, 66 Am. Dec. 228-246; 42 L. R. A. 
 753-774. 
 
 *« Per Cooley, J. in People v. Morrigan, 29 Mich. 8. 
 
 *o Whittaker v. Parker, 42 Iowa, 586. 
 
 M McFadden v. Murdock, I. R. 1 C. L.. 211. 
 
 Bi Daniels v. Foster, 26 Wis. 693, per Dixon, C. J.; People v. Kemmler, 
 119 N. Y. 580. 
 
 52 Grigsby v. Clear Lake Water Co., 40 Cal. 405. 
 
 68 Templeton v. People, 3 Hun (N. Y.) 357, 60 N. Y. 643; People v. Perrj- 
 man, 72 Mich. 184, 
 
§ 392 OPINIONS. 493 
 
 We might quote from many other judicial decisions in which the 
 courts have held it proper to caution the jury in somewhat similar 
 language as to the inherent wealin(?ss of expert testimony."* 
 
 § 392 (394). Expert testimony — When valuable. — But it is not 
 to be inferred that a court or jury has the right to give such tes- 
 timony no consideration; and when the instructions to the jury 
 lead to the inference that no reliance is to be placed on the evidence 
 of experts/^ or that no aid can be gained from it,"" or that it may 
 be wholly disregarded,"' such instnietions are erroneous. But the 
 jury may properly be instructed that they may disregard the evi- 
 dence, if they deem it unreasonable."^ While it is true that the 
 jury are not bound to accept the opinions of experts, and are not 
 concluded by them,"° yet such opinions are entitled to ie considered, 
 and to receive such weight as in view of all the circumstances rea- 
 sonably belongs to them."" In considering the weight and force of 
 the evidence, the jury may act upon their own general knowledge 
 of the subject of the inquiry."^ There is another class of cases 
 from which many quotations might be made, holding that under 
 some circumstances expert testimony is of great value ; and instruc- 
 tions embodying this suggestion have been frequently given to the 
 jury, and sustained by the appellate courts."^ Nor is there any 
 necessary inconsistency between such instructions and those already 
 
 6* As to such testimony In cases of handwriting see, Foster's Will, 34 
 Mich. 21; Mutual Benefit L. Ins. Co. v. Brown, 30 N. J. Eq. 193; Pratt v. 
 Rawson, 40 Vt. 183; United States v. Darnand, 3 Wall. Jr. (U. S.) 143; 
 Whittaker v. Parker, 42 Iowa, 586; Moye v. Herndon, 30 Miss. 110. Sea 
 also, 25 Jour. Juris. 409. As to medical witnesses, Kempsey v. McGlnnls, 
 21 Mich. 123; Carpenter v. Calvert, 83 111. 62; Clark v. State, 12 Ohio, 483, 
 40 Am. Dec. 481. As to other expert witnesses, Middlings Co. v. Christian, 
 4 Dill. (XJ. S.) 448; Gay v. Union Life Ins. Co., 9 Blatch. (U. S.) 142; 
 Smith V. State, 2 Ohio St. 512; Grigsby v. Clear Lake Water Co., 40 Cal. 
 396. See valuable notes, 66 Am. Dec. 228; 42 L. R. A. 753. 
 
 SBEggers v. Eggers, 57 Ind. 461; Templeton v. People, 3 Hun (N. T.) 
 357, 60 N. Y. 643. As to the general subject see note, 42 L. R. A. 753-774. 
 
 B6 Pannell v. Com., 86 Pa. St. 260. 
 
 67 Washburn v. Milwaukee, L. S. & W. Ry. Co., 59 Wis. 364. 
 
 68 St. Louis V. Ranken, 95 Mo. 189. 
 09 Olson V. Gjertsen, 42 Minn. 407. 
 
 00 United States v. McGue, 1 Curt. (U. S.) 1; Stone v. Railway Co., 66 
 Mich. 76. See note, 42 L. R. A. 756-767. 
 
 61 Head v. Hargrave, 105 U. S. 45; The Conqueror, 166 U. S. 110. 
 
 62 As to the testimony of a family physician, Baxter v. Abbot, 7 Gray, 71; 
 Jarrett v. Jarrett, 11 W. Va. 584; Beverly v. Walden, 20 Gratt. (Va.) 147. 
 As to physicians generally, Flynt v. Bodenhamer, 80 N. C. 205; Pitts v. 
 State, 43 Miss. 472. See note, 66 Am. Dec. 234. 
 
494 THE LAW OP EVIDENCE. § 393 
 
 alluded to in which the infirmity or weakness of opinion evidence is 
 pointed out. When skilled and experienced experts give their opin- 
 ions based in part upon facts which have come within their own ob- 
 servation/' or where they state precise facts in science, as ascer- 
 tained and settled, or the necessary and invariable conclusion which 
 results from the facts stated,'* siuch opinions may be entitled to 
 great weight; and it not unfrequently happens that such opinions 
 are indespensaile in furnishing some guide for the determination 
 of questions unfamiliar to ordinary witnesses."" On the other hand 
 when the testimony consists of mere inferences from assumed facts, 
 of opinion against opinion, and especially of the opinions of those 
 zealous witnesses who betray the bias of the advocate it may be 
 highly proper for the court to caution the jury against the dangers 
 of such evidence. The cases already referred to sufSeiently illus- 
 trate the rule that the jury jnust in passing upon expert testimony, 
 like other testimony, finally determine the degree of weight to which 
 under all the circumstances it is entitled. 
 
 «» Baxter v. Abbott, 7 Gray, 71. 
 
 ««G*y V. Union Ins. Co., 9 Blatcht (U. S.) 142. 
 
 <u Getchell y. Hill, 21 Minn. 464; Wood t. Barker, 4 Mich. 295. 
 
CHAPTER 13. 
 
 REAL EVIDENCE. 
 
 § 393. Real evidence — In general. 
 
 394. Same — The ancient practice. 
 
 395. Inspection other than by the court or jury. 
 
 396. Inspection of persons la personal Injury cases. 
 
 397. Same, continued. 
 
 398. Inspection by the jury — Personal injury cases. 
 
 399. Inspection of articles by jury. 
 
 400. Inspection of person and articles in criminal cases. 
 
 401. Inspection as proof of resemblance — ^I?,ace — ^Age, etc. 
 
 402. Effect of non-production of real evidence. 
 
 403. Experiments and tests in the presence of the jury. 
 
 404. View — Former practice. 
 
 405. Statutes regulating view. 
 
 406. View discretionary. 
 
 407. When view may be granted. 
 
 408. Is the view evidence In the case7 
 
 409. Same, continued. 
 
 410. Experiments out of court. 
 
 411. Models — Diagrams — ^Photographs. 
 
 § 393 (395). Real evidence — ^In general. — ^Por obvious reasons 
 there is no class of evidence so convincing and satisfactory to a 
 court or a jury as that which is addressed directly to the senses of 
 such court or jury. Although comparatively speaking bat a small 
 portion of the evidence received in court is of this character, yet, 
 as will be seen from the illustrations which follow in this chapter, 
 it is a familiar practice to supplement other proof by presenting for 
 the inspection of the judge or jury objects to which the testimony 
 refers. Such objects are, when it is convenient, brought into the 
 court room for such inspection. If this is not convenient or possii- 
 ble, the judge or jury may, if it seems practicable and necessary, 
 leave the court room and take a view of the object or premises in 
 question. Evidence thus addressed directly to the senses of the 
 tribunal has been described as real or natural evidence. That the 
 courts early paid a high tribute to this class of evidence is shown 
 by the fact that, where the point or issue was evidently the "object 
 of sense," the judges sometimes dispensed with a jury and decided 
 the question in dispute upon the testimony of their own senses.* 
 
 1 3 Bl. Com. 33L 
 
496 THE LAW OF EVIDENCB. § 395 
 
 § 394 (396). Same — ^The ancient practice. — The ancient prac- 
 tice is thus explained by Blackstone: "As in case of a suit to re- 
 verse a fine for non-age of the eognizor, or to set aside a statute or 
 recognizance entered into by an infant, here and in other eases of a 
 like sort, a writ shall issue to the sheriff, commanding him that he 
 shall constrain the said party to appear, that it may be ascertained 
 by the view of his body by the king's justices whether he be of full 
 age or not ; ut peraspectum corporis sui constare poterit justiciariis 
 nostris, si praedictus a sit plenae aetatis necne. If, however, the 
 court has, upon inspection, any doubt of the age of the party (as 
 may frequently be the case), it may proceed to take proofs of the 
 fact; and, particularly, may examine the iafant himself upon an 
 oath voire dire, veritatem dicere, that is, to make true answer to such 
 questions as the court shall demand of him; or the couit may ex- 
 amine his mother, his godfather or the like. In like manner if the 
 defendant pleads in abatement of the suit that the plaintiff is dead, 
 and one appears and calls himself the plaintiff, which the defendant 
 denies, in this case the judges shall determine by inspection and ex- 
 amination whether he be the plaintiff or not. Also if a man be 
 found by a jury an idiot, a nativitate, he may come in person into 
 the chancery before the chancellor, or be brought there by his friends 
 to be inspected and examined, whether idiot or not; and if upon 
 such view and inquiry it appears he is not so, the verdict of the 
 jury and all the proceedings thereon are utterly void and instantly 
 of no effect. Another instance in which the trial by inspection may 
 be used is when, upon an appeal of mayhem, the issue joined is 
 whether it may be mayhem or no mayhem, this shall be decided by 
 the court upon inspection, for which purpose they may call in the 
 assistance of surgeons. And by analogy to this in an action of tres- 
 pass for mayhem, the court (upon view of such mayhem as the 
 plaintiff has laid in his declaration, or which is certified by the 
 judges who tried the cause to be the same as was given in evidence 
 to the jury) may increase the damages at their own discretion ; as 
 may also be the case upon view of an atrocious battery. But then 
 the battery must likewise be alleged so certainly in the declaration, 
 that it may appear to be the same with the battery inspected." ^ 
 
 § 395 (397) . Inspection other than by the court or jury. — There 
 are cases where it would be impracticable to have any inspection in 
 the presence of the court or jury, either within or outside the court 
 room, and yet where, in the absence of any inspection, there would 
 
 as BL Com. 333. 
 
§ 396 REAL EVIDENCE. 497 
 
 be a manifest failure of justice. Thus it was the ancient practice 
 of the courts of divorce, in determining a question of impotency as 
 affecting the validity of a marriage, to order an inspection of the 
 person of either party by surgeons.' This proceeding had its origin 
 in the ecclesiastical courts, and was allowed because of the necessity 
 of the case, and because of the interest which the public, as well as 
 individuals, had in upholding the marriage state.* There was, how- 
 ever, an analogous practice in the common law tribunals by which 
 the writ de ventre inspiciendo was issued to ascertain whether a 
 woman convicted of capital crime was quick with child. By virtue 
 of the writ a jury of matrons was sworn to make inspection and 
 make report to the court." In like manner the writ was allowed to 
 protect the rightful iaheritance, when a widow was suspected of 
 feigning pregnancy for the purpose of establishing a fraudulent 
 claim of heirship for the pretended child." The persons appointed 
 to perform this duty were thus made ofi&cers of the court ; it was 
 their duty to make report to the court and, if required, to give evi- 
 dence in open court.'' The order requiring the party to submit 
 to the examination could be enforced by an order withholding ali- 
 mony, or suppressing testimony, or continuing the cause, or staying 
 the proceedings, or other like orders.* 
 
 § 396 (398). Inspection of person in personal injury cases. — 
 Although the practice of requiring a party to submit his person to 
 inspection was well established in the ecclesiastical courts and was 
 occasionally resorted to in the courts of the common law, there were 
 until lately, but few precedents in this country. Quite recently, 
 however, the subject has frequently arisen in the courts in actions 
 for personal injury, where the defendant has demanded that the 
 
 3 Newell V. Newell, 9 Paige Ch. 25; Devanbagli v. Devanbagh, 5 Paige 
 Ch. 554, 28 Am. Dec. 443; Le Barron v. Le Barron, 35 Vt. 365; Anonsrmous, 
 35 Ala. 226; Shafto v. Shatto, 1 Stew. Ch. (N. J.) 34; 2 Bish. Mar. & Div. 
 §§ 1298-1299. 
 
 * Union Pacific Ry. Co. v. Botsford, 141 U. S. 250 and cases cited. Briggs 
 V. Morgan, 1 Phillim. 325. 
 
 s Union Pacific Ry. Co. v. Botsford, 141 U. S. 250; Reg. v. Wyclierly, 8 
 Car. & P. 262. 
 
 8 1 Bl. Com. 456; Union Pacific Ry. Co. v. Botsford, 141 U. S. 250. Tlie 
 writ was denied by supreme court of New Yorlc in 1874, 10 Alb. L. Jour. 3. 
 
 7 2 Bish. Mar. & Div. § 1308, more fully as to practice; 1 Thomp. Trials, 
 § 855. 
 
 8 Newell V. Newell, 9 Paige CK (N. Y.) 25; Anonymous, 35 Ala. 226; 
 Shepard v. Missouri Pac. Ry. Co., 85 Mo. 629, 55 Am. Rep. 390. It has been 
 suggested that disobedience might be punished by contempt proceedings, 
 2 Bish. Mar. & Div. § 1305. 
 
498 THE LAW OF EVIDENCE. § 396 
 
 plaintiff be required to submit to a physical examination. In a case 
 in the supreme court of the United States the defendant made a mo- 
 tion before the trial judge three days before the trial for an order 
 requiring the plaintiff to submit to an examination by a surgeon in 
 the presence of her own surgeon and counsel, if she desired their 
 presence. The motion was made on the ground that it was necessary 
 to enable a correct diagnosis of the case, and that it was necessary 
 to enable the defendant to prepare for trial. It was held, however, 
 that the court had no power to make such an order; and this view 
 was sustained on appeal by the supreme court. Mr. Justice Gray 
 in the opinion of the court urged that any such order compelling a 
 party to submit to an examination of the person would be an indig- 
 nity and a violation of personal right ; that in the federal courts it is 
 not a question which is governed by the law or practice of the state 
 in which the trial is had, but depends upon the power of the na- 
 tional courts under the constitution and laws of the United States; 
 and that the practice is not according to the common law, to common 
 usage, or to the statutes of the United States." This view is sus- 
 tained by the state courts in several instances. It is there held that, 
 in the absence of statutes, a compulsory inspection of the person of a 
 party cannot be had, although the refusal to submit to such exam- 
 ination may perhaps be a proper subject of comment before a jury.'" 
 But this view is not sustained iy the weight of authority. In the 
 important case in the supreme court of the United States, already 
 referred to, Justices Brewer and Brovm dissented. In their dissent- 
 ing opinion and in numerous decisions of the state courts, it is urged 
 that the supposed inconvenience or embarrassment to the party must 
 yield to the higher consideration that the end of litigation is jus- 
 tice.^^ It is very clear that the practice of requiring a party, in 
 
 » Union Pacific Ry. Co. v. Botsford, 141 U. S. 250, the leading case which 
 contains an able review of the authorities on this subject; see also a dis- 
 cussion of this case by Howard Benton Lewis in 32 Am. L. Reg. 550. Mo- 
 Quigan v. Delaware, K & W. Ry. Co., 129 N. Y. 50, 14 L. R. A. 446 and ex- 
 tended note. 
 
 10 McQuignan v. Delaware, L. & W. Ry. Co., 129 N. Y. 50, 29 N. B. 235, 
 26 Am. St. Rep. 507, (but the rule has since been changed by statute. Code 
 Civ. Proc. § 873) ; Peoria, D. & E. Ry. Co. v. Rice, 144 111. 227, 33 N. B. 951; 
 Parker v. Enslow, 102 111. 272; Stack v. Railway Co., 177 Mass. 155, 58 
 N. B. 686, 83 Am. St. Rep. 269. 
 
 11 Dissenting opinion in Union Pac. Ry. Co. v. Botsford, 141 U. S. 250; 
 Graves v. Battle CTeek, 95 Mich. 266, 19 L. R. A. 641; City of Ottawa v. 
 Gilliland, 63 Kan. 169, 65 Pac. 252; St. Louis S. W. Ry. Co. v. Dobbins, 60 
 Ark. 481, 30 S. W. 887; White v. Milwaukee Ry. Co., 61 Wis. 536, 50 Am. 
 
§ 397 REAL EVIDENCE. 499 
 
 proper cases, to submit to physical inspection has ample warrant in 
 English cases from early times.'^^ 
 
 § 397 (399). Same, conti'nued. — The general tendency of legis- 
 lation and of judicial decision is in the direction of increasing the 
 facilities of arriving at the truth. For example, the courts now ex- 
 ercise powers in requiring parties to testify and in compelling the 
 inspection of books and papers which would have been deemed a 
 bold usurpation half a century ago. It would seem more consistent 
 with this general tendency for the courts to exercise, in a reasonable 
 manner, the power of compelling a party to submit to an inspection 
 of the person where it seems necessary to serve the ends of justice.^' 
 It may have a bearing on this subject that in the federal courts, 
 where this power is so strenuously denied, there is no statute simi- 
 lar to those in many states compelling a party to give testimony be- 
 fore trial ; and in the federal courts the practice does not prevail.^* 
 Most of the cases which assert this power of compulsory inspection 
 hold that it is a matter resting in the sound discretion of the court; 
 hence it follows that the order will not be made unless it seems ne- 
 cessary to do justice between the parties" Although in most of the 
 cases where an examination has been ordered it was during the trial, 
 courts exercising the power would doubtless also make the order 
 tefore the trial, if deemed necessary to enable the opposite party to 
 
 Rep. 154; Stuart v. Havens, 17 Neb. 211, 22 N. W. 419; Richmond & D. Ry. 
 Co. V. Childress, 82 Ga. 721, 9 S. E. 602, 14 Am. St. Rep. 189; Miami Turn- 
 pike Co. V. Bally, 37 Ohio St. 104; City of South Bend v. Turner, 156 Ind. 
 429, 60 N. B. 274; Palvre v. Manderscheld, 117 Iowa, 724, 90 N. W. 76; 
 King y. State, 100 Ala. 85, 14 So. 878. See note, 14 L. R. A. 466. 
 
 12 See §§ 394-395 supra. 
 
 13 White V. Milwaukee City Ry. Co., 61 Wis. 536, 50 Am. Rep. 154; 
 Schroeder v. Chicago, R. I. & P. Ry. Co., 47 Iowa, 375. See also, Durgia 
 V. Danville, 47 Vt. 95, 105. 
 
 "Chateaugay Iron Co., Petitioner, 128 U. S. 544; Union Pac. Ry. Co. v. 
 Botsford, 141 U. S. 250; Camden & Suburban Ry. Co. v. Stetson, 177 U. S. 
 172. 
 
 15 Shepard v. Mo. Pac. Ry. Co., 85 Mo. 629, 55 Am. Rep. 390; Sidekum v. 
 St. Louis Ry. Co., 93 Mo. 400, 3 Am. St. Rep. 549 and note; O'Brien v. 
 La Crosse, 99 Wis. 421, 75 N. W. 81; Hatfield v. Railway Co., 33 Minn. 130, 
 22 N. W. 176, 53 Am. Rep. 14; Chicago & A. R. Co. v. Clausen, 173 111. 100, 
 50 N. B. 680; Swift & Co. v. Rutkowski, 182 111. 18, 54 N. B. 1038; McGuff 
 V. State, 88 Ala. 147, 7 So. 35, 16 Am. St. Rep. 25; St. Louis S. W. Ry. Co. 
 V. Dobbins, 60 Ark. 481, 30 S. W. 887; Walsh v. Sawyre, 52 How. Pr. (N. Y.) 
 334. But It has been held to be a matter of right, Miami Turnpike Co. v. 
 Baily, 37 Ohio St. 104; Atchison Ry. Co. v. Thul, 29 Kan. 466, 44 Am. 
 Rep. 659; City of Ottawa v. Gilliland, 63 Kan. 169, 65 Pac. 252; Terre 
 Haute & I. Ry. Co. v. Brunker, 128 Ind. 542. 
 
500 THE LAW OF EVIDBNCB. § 398 
 
 prepare for trial. Of course if the order is made, it should contain 
 reasonable safeguards against offending the feelings of the party to 
 be examined/" And the party to be examined will be allowed to 
 have friends or physicians of his own choosing present.^' 
 
 § 398 (400). Inspection by the jury — Personal injury cases. — 
 Although the evidence, considered in the last three sections, is gen- 
 erally classified as real or natural, it is not the best illustration of 
 that kind of evidence. We have seen, indeed, that formerly the 
 practice prevailed of calling a jury for the special purpose of mak- 
 ing an inspection; but in the cases already mentioned the inspec- 
 tion has been made, not by the tribunal determining the cause, but 
 by persons who reported the result of their inspection to the court. 
 The more satisfactory and the more usual illustration of real evi- 
 dence is where the very object, whose condition or qualities are 
 being investigated, is presented for the inspection of the court or 
 jury. Thus in actions for personal injuries, it is the constant prac- 
 tice for the plaintiff to voluntarily exhibit the injured part to the ' 
 jury; and where identity, resemblance or the appearance of things 
 is in question, it is a familiar practice to present such things for 
 the inspection of the jury, if it is practicable. It has been urged 
 that a plaintiff should not be allowed to exhibit his injuries to the 
 jury for the reason that all the evidence submitted should admit 
 of being reproduced in the bill of exceptions, on which the appellate 
 court may be called to pass ; and that, if such a practice is allowed, 
 the appellate court can form no accurate opinion as to the influ- 
 ences which may have operated upon the minds of the jury, and 
 hence cannot properly determine whether a new trial should be al- 
 lowed. The objection has also been urged that such exhibitions 
 tend to unduly excite the feelings of the jury. But it is the well 
 settled practice in such eases to permit the jury to see the injuries 
 complained of. It has been said that it brings before the jury part 
 of the res gestae, and enables them to determine the nature and 
 the character of the injury in a more satisfactory manner than 
 when the facts are merely described by witnesses.'' It is clear that, 
 
 10 White V. Milwaukee Ry. Ck)., 61 Wis. 536, 50 Am. Rep. 154 and note; 
 City of South Bend v. Turner, 156 Ind. 429, 60 N. E. 271. 
 
 17 Louisville Ry. Co. v. Falvey, 104 Ind. 409. 
 
 isMulhado v. Brooklyn City Ry. Co., 30 N. Y. 370; Barker v. Town of 
 Perry, 67 Iowa, 146; Brown v. Swineford, 44 Wis. 282, 28 Am. Rep. 582; 
 Louisville Ry. Co. v. Wood, 113 Ind. 544; Arkansas River Packet Co. v. 
 Hobbs, 105 Tenn. 29, 58 S. W. 278; Omaha S. R. Co. v. Emminger, 57 Neb. 
 240, 77 N. W. 675; Faivre v. Manderscheid, 117 la. 724, 90 N. W. 76; 
 
§ 399 REAL EVIDENCE. 501 
 
 in civil cases, a party may be compelled to uncover the face ia such 
 manner as to be identified by a witness; for example, to remove a 
 veil at the request of the opposite party.^' The necessity of the 
 case requires that witnesses and parties should appear in court in 
 ordinary garb and with face uncovered so that they may be known 
 and identified; but the court should not permit an indecent expo- 
 sure of the person in the presence of the jury.^" Nevertheless if an 
 inspection is necessary to the ends of justice and it would be im- 
 proper to be before the jury, a private examination can be had out 
 of court." 
 
 § 399 (401). Inspection of articles by jury. — It is the well set- 
 tled rule daily followed in the courts that, if the material facts in 
 issue may be better explained by the production of articles to which 
 the testimony relates, such articles may be shown to the jury. , Thus 
 in an action by a servant against his master for negligence result- 
 ing in personal injuries to the plaintiff, the court may allow the 
 torn clothing worn by him at the time of the injury to be shown 
 to the jury.^^ Building material alleged to be defective,^' or de- 
 fective tools or appliances in actions for negligence may be so 
 shown.^* Where the issue related to the question whether a cer- 
 tain mirror was defective in workmanship and construction, such 
 inspection was held proper.^" In many cases articles, the descrip- 
 tion of which became material in the litigation or other similar ar- 
 ticles, have been exhibited to the jury in order that they might ob- 
 
 Newport News & M. V. Hy. Co. v. Carroll (Ky.), 31 S. "W. 132; Cunning- 
 ham V. Union Pac. Ry. Co., 4 Utah, 206; Disotell v. Henry Luther Co., 90 
 Wis. 635; Nebonne v. Railway Co., 68 N. H. 296, 44 Atl. 521; Lanark v 
 -Dougherty, 153 111. 163,, 38 N. E. 892; Barker v. Perry, 67 Iowa, 146, 25 
 N. W. 100; City of Crete v. Hendricks (Neb.), 90 N. W. 215; Anderson v. 
 Seropian, 147 Cal. 201, 81 Pac. 521. 
 18 Rice V. Rice (N. J.), 19 Atl. 736. 
 
 20 Brown v. Swineford, 44 Wis. 282, 28 Am. Rep. 582; Guhl v. Whit- 
 comb, 109 Wis. 69, 85 N. W. 142, 83 Am. St. Rep. 889; Garrik v. Railway 
 Co., 124 Iowa, 691, 100 N. W. 498. 
 
 21 Brown v. Swineford, 44 Wis. 282, 28 2\in. Rep. 582; Guhl v. Whitcomb, 
 109 Wis. 69, 85 N. W. 142, 83 Am. St. Rep. 889. 
 
 22 Tudor Iron Works v. Weber, 129 111. 535; Quincy Gas & Electric Co. 
 V. Bauman, 203 111. 295, 67 N. B. 806. 
 
 23 People V. Buddensieck, 103 N. Y. 487, 57 Am. Rep. 766. 
 
 2* King V. New York C. & H. R. Ry. Co., 72 N. Y. 607; Kinney v. Folkerts, 
 84 Mich. 616. 
 
 25 Hudson V. Ross, 76 Mich. 173, in this case the plaintiff had brought 
 ibe mirror into the court room and witnesses had testified in relation to 
 it; and it was held error to refuse to allow the jury to inspect it 
 
502 THE LAW OF EVIDENCE. § 399 
 
 tain clearer views, and be able to form a better opinion.'" Of course 
 it should appear that the condition of the article has remained sub- 
 stantially the same." It has even been held admissible in a few 
 cases to allow domestic animals, when the subject of litigation, to be 
 brought into the presence of the jury for exhibition. This was 
 permitted in an action against the owner of a vicious dog ; and in an 
 action against the owner of an elephant for negligence in frighten- 
 ing the plaintiff's horse, the defendants in an English case, were 
 allowed to bring the young elephant into court in order that the 
 jury might see whether it was in fact of unsightly and unusual ap- 
 pearance as was alleged.^' The courts have, however, sometimes de- 
 clined to make orders compelling the production of chattels in court 
 for inspection.^" It rests in the discretion of the court to deny ap- 
 plications for the production of real evidence in those cases where 
 the order would cause great inconvenience, or where for other rea- 
 sons it Would be impracticable. Thus in a Mississippi case, the 
 court refused to order the exhumation of a dead bo'dy, although the 
 defendant, an insurance company, claimed that the deceased had 
 made admissions that he had in childhood received a severe injury 
 to the skull which could only be proven by an examination. It was 
 intimated, however, that under some circumstances such an order 
 might be proper."" 
 
 28 Express Co. v. Spellman, 90 111. 455; Jupitz v. People, 34 111. 516; Com. 
 V. Brown, 121 Mass. 69; People v. Buddensieck, 103 N. Y. 487, 498; State v. 
 Mordecai, 68 N. C. 207; Stone v. Railway Co., 72 N. H. 203, 55 Atl. 359; 
 Flynn v. Washburn Brewing Co., 110 Wis. 150, 85 N. W. 665; Rose v 
 Harlee, 69 S. C. 523, 48 S. W. 541; Boucher v. Robeson Mills, 182 Mass. 
 500, 65 N. E. 819; Roszczynlala v. State, 125 Wis. 414, 104 N. W. 118; 
 Evarts v. Middlebury, 53 Vt. 626 wh6re the shoes of a horse were shown, 
 the issue being whether the horse was properly shod; Morfon v. Fair- 
 banks, 11 Pick. 368, where shingles were exhibited; Stevenson v. Michigan 
 Log Towing. Co., 103 Mich. 412, 61 N. W. 536, piece of towline shown; 
 Thomas Fruit Co. v. Start, 107 Cal. 206, defective fruit boxes introduced; 
 Roberts v. Port Blakely Mill Co., 30 Wash. 25, 70 Pac. Ill, piece of broken 
 flange introduced. 
 
 2T Walker v. Ontario, 118 Wis. 564, 95 N. W. 1080; State v. Goddard, 143 
 Mo. 177, 48 S. W. 82; King v. Railway Co 72 N. Y. 607. 
 
 28 See amusing account of this case in 20 Alb. L. Jour. 150. 
 
 20 Cooke V. Lalance Co., 29 Hun, 641; Hunter v. Allen, 35 Barb. (N. Y.) 
 42. 
 
 so Grangers Life Ins. Co. v. Brown, 57 Miss. 308, 34 Am. Rep. 446; State 
 V. Burnham, 55 Vt. 445, 48 Am. Rep. 801, boxing gloves not allowed to be 
 exhibited; Hood v. Bloch, 29 Va. 244, party not allowed to exhibit cheese, 
 the quality being in issue. 
 
§ 400 REAL EVIDBNCE. 503 
 
 § 400 (402, 403). Inspection of person and articles in criminal 
 eases. — The principle is firmly engrafted upon our federal and 
 state constitutions that no accused person shall be compelled to give 
 evidence against himself in any criminal case. This constitutional 
 provision clearly distinguishes criminal from civil cases in such a 
 manner that the same rules of evidence do not necessarily govern in 
 the two classes of cases. There is a line of authorities which hold 
 that in a criminal action the accused may be compelled to furnish 
 evidence by being compelled to submit in some degree to the inspec- 
 tion of his person for the purpose of ascertaining identity or for other 
 purposes. Thus, a defendant was compelled to exhibit his bare arm 
 to the jury to ascertain whether certain tattoo marks, concerning 
 which testimony had been given, existed.*^ In other cases accused 
 persons have been compelled by officers to submit to such experi- 
 ments as having the foot placed in tracks to which the testimony 
 related, or to other similar experiments; and the officers or other 
 persons have, under such circumstances, been allowed to state the 
 result.^" These cases proceed on the view that the constitutional 
 provision to the effect that no person shall be compelled in a crim- 
 inal case to be a witness against himself is to be construed merely 
 to mean that the defendant cannot be compelled, in the strict mean- 
 ing of the term, to testify against himself. But a far more liberal 
 and. In the opinion of the author, a better construction has been 
 placed upon the constitutional provision in other cases, where this 
 class of testimony has been rejected on the ground that the court 
 could not compel a witness to furnish testimony against himself.^' 
 But the right of the accused to refuse to submit to such an inspec- 
 tion is waived when he voluntarily furnishes such evidence, -in the 
 same manner that he waives his constitutional privilege when he 
 
 SI state V. Ah. Chuey, 14 Nev. 79, 33 Am. Rep. 530 and extended note. 
 
 32 State v. Graham, 74 N. C. 646, 21 Am. Rep. 493 ; Walker v. State, 7 
 Tex. App. 245, 32 Am. Rep. 595; State v. Sanders, 68 Mo. 202, 30 Am. Rep. 
 782, where it was held error for the jury without leave of court, to make 
 this experiment outside the court room. The other rule has been adopted 
 by some courts, Stokes v. State, 5 Baxt. (Tenn.) 619, 30 Am, Rep. 72; Day 
 V. State, 63 Ga. 667; People v. Mead, 50 Mich. 228. 
 
 saMcGinnls v. State, 24 Ind. 500; State v. Jacobs, 5 Jones, 259; Stokes 
 V. State, 5 Baxt. (Tenn.) 619, 30 Am. Rpp. 72; People v. Mead, 50 Mich 
 228; Day v. State, 63 Ga. 667. Compulsory examination of d female 9,s to 
 pregnancy. People v. HcCoy, 45 How. Pr. (N. Y.) 216; Agnew v. Johnson, 
 13 Cox Cr. C. 625, 19 Bug. Rep. 612 and note. See also, Spicer v. State, 69 
 Ala. 159. Where a prisoner was ordered to show his limb, Blackwell v, 
 State, 67 Ga. 76. 44 .A'H. Rep. 717. 
 
504 THE LAW OF EVIDENCE. § 400 
 
 voluntarily gives testimony that may criminate himself."* In crim- 
 inal eases, it is the familiar practice to show to the jury articles 
 which tend to illustrate or explain the material facts to "he proved." 
 Objection is often made that this practice is likely to unduly ex- 
 cite the sympathy or indignation of the jury, but this objection is 
 generally overruled. 
 
 3* State V. "Woodruff, 67 N. C. 89; Gallagher v. State, 28 Tex. App. 347; 
 Johnson v. Com., 115 Pa. St. 369, where the district attorney called upon 
 the prisoner to stand up and repeat certain words before a w^itness and the 
 prisoner did so without objection. 
 
 SB In prosecutions for forgery, the production of a document on which 
 the action is based is usual and important, if not indispensable, 2 Bish. 
 Grim. Proc. § 433; for abortion, the surgical instruments, alleged to have 
 been used. Com. v. Brown, 121 Mass. 69; as well as portions of a woman's 
 body on whom it was alleged that an abortion was performed, which had 
 been preserved in spirits. Com. v. Brown, 14 Gray, 419 ; for homicide, courts 
 have permitted production of the bones. State v. Weirners, 66 Mo. 14; Tur- 
 ner v. State. 89 Tenn. 547; State v. Moxley, 102 Mo. 374; the clothing 
 worn by deceased. Hart v. State, 15 Tex. App. 202, 49 Am. Rep. 188; 
 Dorsey v. State, 107 Ala. 157, 18 So. 199; People v. Westlake, 134 Cal. 
 505, 66 Pac. 731; Story v. State, 99 Ind. 413; Gardner v. People, 6 Park. 
 Cr. (N. Y.) 157; People v. Knapp, 71 Cal. 1; Watkins v. State, 89 Ala. 82; 
 People V. Wright, 89 Mich. 70; Davidson v. State, 135 Ind. 254, 34 N. B. 
 972; State v. Gushing, 14 Wash, 527, 45 Pac. 145, 53 Am. St. Rep. 883; see 
 also. State v. Baker, 33 W. Va. 319; People v. Fernandez, 35 N. Y. 49 (as 
 to the examination of such clothing see. Com. v. Twltchell, 1 Brewst. (Pa.) 
 561) ; the bed clothes in the room where the deceased was murdered, Pain- 
 ter V. People, 147 111. 444, 35 N. B. 64; the weapons or bullets used by the 
 prisoner. Moon v. State, 68 Ga. 687; Siberry v. Smith, 133 Ind. 677; Wynne 
 V. State, 56 Ga. 113; Crawford v. State, 112 Ala. 1, 21 So. 214; People v. 
 Sullivan, 129 Cal. 557, 62 Pac. 101; State v. Mordecai, 68 N. C. 207; Com. v. 
 Brown, 121 Mass. 69; Hornsby v. State, 94 Ala. 55; People v. Fernandez, 
 35 N. Y. 49, 64; Leonard v. Railway Co., 21 Ore. 655; the horse upon which 
 the deceased was riding when he received his death wounds, Dillard v. 
 State, 58 Miss. 368; the teeth of the deceased, Com. v. Webster, 5 Gush. 
 295, 52 Am. Dec. 711; the skull of deceased, Thrawley v. State, 153 Ind. 375, 
 55 N. B. 95; Savary v. State, 62 Neb. 166, 87 N. W. 34; for burglary, the 
 tools of the prisoner. People v. Lamed, 7 N. Y. 445; Starchman v. State, 62 
 Ark. 538, 36 S. W. 940; People v. Hope, 62 Cal. 291; State v. Bllwood, 17 
 R. I. 763; State v. Minot, 79 Minn. 118, 81 N. W. 753; for larceny and 
 kindred actions, the articles stolen, and in some cases articles similar to 
 those stolen, Jupitz v. People, 34 111. 516; and such articles may be shown, 
 even, though obtained in an irregular or illegal manner. Com. v. Tibbetts, 
 157 Mass. 519; Gindrat v. People, 138 111. 103; for robbery, the articles 
 taken, People v. Winthrop, 118 Gal. 85, 50 Pac. 390; for perjury as to pan- 
 taloons, the pantaloons exhibited, Cedarus v. State, 93 Ga. 166, 18 S. B. 
 553; for assault, the rock thrown. Dill v. State, 106 Ga. 683, 32 S. E. 660; 
 
§ 401 EEAL EVIDENCE. 505 
 
 § 401 (404). Inspection as proof of resemblance — ^Race — ^Age, 
 etc. — The reports afford numerous illustrations of real evidence 
 in cases where the attempt has been made to prove resemblance be- 
 tween two persons by directing the attention of the jury to 
 such persons while they are in court. Thus on the issue of the 
 paternity of a child, juries have been frequently allowed to inspect 
 the child in question, and to compare its features with those of the 
 alleged father. In such cases the courts have held that the resem- 
 blance is relevant to the issue and that it may be determined by in- 
 spection.'° In respect to this class of evidence, Judge Mansfield 
 used the following language: "I have always considered likeness 
 as an argument of a child's being the son of a parent; and the 
 rather as the distinction between individuals in the human species 
 is more discernible than in other animals. A man may survey ten 
 thousand people before he sees two faces perfectly alike ; and in an 
 army of a hundred thousand men every one may be known from 
 the other. If there should be a likeness of feature, there may be a 
 discriminancy of voice, a difference in the gestures, the smile and 
 various other things. Whereas the family likeness runs generally 
 through all these, for in everything there is a resemblance, as in 
 features, size, attitude and action." ^' But in this case the question 
 of parentage arose as to a person of full age. Even in such cases 
 the language of Judge Mansfield has been disapproved ; and where 
 the question arose concerning very young children the practice of 
 allowing an inspection, for the purpose of determining resemblance, 
 has been condemned by very high authority on the ground that the 
 evidence is of too fanciful and unsatisfactory a character to be re- 
 ceived.'* So it has been held inadmissible to prove by the testimony 
 
 for rape, underclothmg, ^tate v. Peterson, 110 Iowa, 647, 82 N. W. 329; 
 State V. Murphy, 118 Mo. 7, 25 S. W. 95. 
 
 S6 state V. Smith, 54 Iowa, 104, 37 Am. Rep. 192, child two years old; 
 Gilmanton v. Ham, 38 N. H. 108; Crow v. Jordan, 49 Ohio St. 655; State v. 
 Woodruff, 67 N. C. 89; Scott v. Donovan, 153 Mass. 378; Kelly v. State, 
 133 Ala. 195, 32 So. 56, 91 Am. St. Rep. 25, child about a year old; Scott 
 y. Donovan, 153 Mass. 378, 26 N. E. 871; State v. Saidell, 70 N. H. 174, 46 
 Atl. 1083, 85 Am. St. Rep. 627; Gaunt v. State, 50 N. J. L. 490, a leading 
 case with an extended discussion of real evidence; Finnegan v. Dugan, 14 
 Allen, 197. See note, 52 L. R. A. 500-505. ■ 
 
 »7 Douglas Case, quoted from Wills Clr. Ev. (5th Am. Ed.) 117; Hana- 
 walt v. State, 64 Wis. 84. 
 
 88 Clark v. Bradsireet, 80 Me. 456, child six weeks old; State v. Danforth, 
 48 Iowa, 43, 30 ±i.m. Rep. 387, babe of three months; Hanawalt v. State, 64 
 Wis. 84, child less than one year of age; Risk v. State, 19 Ind. 152; State 
 
506 THE LAW OF EVIDENCE. § 402 
 
 of witnesses that the child looks like the alleged father." But Lord 
 Chief Justice Coekburn held in the Tichborne case that the resem- 
 blance of the claimant to a family daguerreotype of Roger Tich- 
 borne was relevant and intimated that comparison of features be- 
 tween the claimant and the sister of Arthur Orton would be per- 
 mitted.*" Where the question is one in which race or color is con- 
 cerned, the child may be exhibited for the purpose of showing that 
 it is or is not of the race of its alleged father.*^ If the age of. a 
 person is in issue, it should be proved by sworn testimony.*^ But 
 the jury may when age is an issue take into consideration the ap- 
 pearance of the person as seen in court.*' There is, however, au- 
 thority for the proposition that the jury may, without any other 
 evidence than mere inspection, determine whetiier a person to whom 
 liquor has been sold is a minor,** or whether a person is of sufficient 
 age to be capable of performing the work given him to do.*° It is 
 hardly necessary to add that in case of conflicting testimony, a 
 court or jury might consider the appearance of the person whose 
 age is in question in connection with other evidence. 
 
 § 402 (405). Effect of non-production of real evidence. — ^Al- 
 though the failure or refusal to allow a jury to inspect the subject 
 under investigation, when such inspection would be entirely prac- 
 ticable and would afford the most satisfactory evidence, may be a 
 proper subject for comment before the jury, a party is not obliged 
 to produce such evidence. In other words it is not in the technical 
 sense the test evidence within the meaning of the rule on that sub- 
 
 V. Harvey, 112 Iowa, 416, 84 N. W. 535, 84 Am. St. Rep. 850, 52 L. R. A. 500 
 and note, a child nine months old; Ingram v. State, 24 Neb. 33; Keniston 
 V. Rowe, 16 Me. 38; Beck's Med. Juris. 650. 
 
 36 Eddy V. Gray, 4 Allen, 435; Jones v. Jones, 45 Md. 144; Keniston v. 
 Rowe, 16 Me. 38. See note, 52 L. R. A. 500-505: 
 
 « Gaunt V. State, 50 N. J. L. 490. See note, 52 L. R. A. 500-505. 
 
 4i"Warlick v. White, 76 N. C. 175; Clark v. Bradstreet, 80 Me. 454; Gar- 
 vin V. State, 52 Miss. 207; State v. Arnold, 13 Ired. (N. C.) 184. See also. 
 State V. Jacobs, 5 Jones (N. C.) 359. 
 
 *2 Stephenson v. Arnold, 28 Ind. 272 ; Thinger v. State, 53 Ind. 251. 
 
 incapacity to consent to rape, Jones v. Jones, 106 Ga. 365, 34 S, E. 174; 
 infancy, Com. v. Holies, 170 Mass. 433, 49 N. E. 032; State v. Thompson 
 (Mo.), 55 S. W. 1013; Hermann v. State, 73 Wis. 248, 9 Am. St. Rep. 789. 
 
 *4 Com. V. Emmons, 98 Mass. ,6. But see. Bird v. Staie, 104 Ind. 384. In 
 New York a statute provides for an inspection to determine the age of a 
 child, N. Y. Pen. Code § 19. It is improper to put other boys on the stand 
 and prove their age, for the purpose of comparison, Paynor v. Holzgraf 
 (Tex.), 79 S. W. 829. 
 
 « Keith v. New Haven & N. Co., 140 Mass. 175. 
 
§ 402 REAL EVIDENCE. 507 
 
 ject. Thus in an action on a policy of life insurance, where the is- 
 sue is upon the death of the insured, testimony of witnesses that 
 they have seen the insured alive since the time of his alleged death 
 is competent ; and the insurer is not bound to bring him bodily be- 
 fore the court.*" In his work on evidence, Mr. Taylor, after dis- 
 cussing the importance of producing real evidence when it is con- 
 venient and practicable to do so, illustrates the subject as follows: 
 "These observations apply to all eases in which the guilt or inno- 
 cence of a prisoner depends upon the identity or comparison of two 
 articles found in different places, as, for example, the wadding of a 
 pistol with portions of a torn letter found on the person of the 
 accused, or the fractured bone of a sheep with mutton found in his 
 house, or fragments of dress with his rent garment, or damaged 
 property with the instrument by which the damage is supposed to 
 have been affected. In aU these and the like eases, it is highly ex- 
 pedient, if possible, to produce to the court the articles sought to be 
 compared; and although the law in demanding the best evidences 
 does not expressly require that this course should be adopted, but 
 permits a witness to testify as to his having made the comparison 
 without first proving that the articles cannot be produced at the 
 trial, their non-production, when unexplained, may often generate 
 a suspicion of unfairness, and wiU always furnish an occasion for 
 serious comment. In illustration of this subject reference may be 
 made to an old ease. A boy having found a diamond took it to a 
 jeweler, who refused to return it to him. An action of trover was 
 brought, and as the jeweler declined to produce the diamond at the 
 trial, the judge directed the jury to presume that it was of the finest 
 water and they found accordingly. So in the case of Wood v. Peel, 
 where the point at issue was whether the plaintiff's horse, 'Eunning 
 Rein,' who had won the Derby in 1844, was foaled by Mab in 1841, 
 the production of the horse, in order to test the accuracy and credit 
 of the witnesses who had sworn to its identity, was considered so 
 material that the plaintiff, being unable to comply with the order 
 of the court to produce it, submitted very prudently to a nonsuit, 
 rather than run the almost inevitable risk of a verdict in favor of 
 the defendant. " *^ 
 
 48 Schneider v. Mtna. Ins. Co., 32 La. An. 1049, 36 Am. Rep. 276, but it is 
 intimated that if the person whose identity was in issue had been himself 
 a party as claimant of some right based on such identity as in the Tich- 
 borne case, the opposite party might have demanded a view of his person 
 and the opportunity of personal examination In the presence of the court. 
 
 « Tayl. Ev. (10th Ed.) § 555. 
 
508 THE LAW OF EVIDENCE. § 403 
 
 § 403 (406). Experiments and tests in the presence of the jury. 
 — It is proper in the discretion of the court to allow parties rea- 
 sonable latitude in making experiments or tests in the presence of 
 the jury to illustrate the testimony in the ease. Thus after testi- 
 mony is given as to the identity and similarity of conditions, a 
 machine may be operated in the presence of the jury, as bearing 
 upon the issue whether it is suitable to the use intended ; ** and on 
 the question whether a suit of clothes is a good fit, the court may 
 allow a party to wear the clothing in the presence of the jury.*" 
 An expert may illustrate his testimony concerning handwriting by 
 the use of a blackboard ; ""• and when his handwriting was relevant, 
 the English courts have allowed a party to write in the presence 
 of the jury, but this has been questioned in this country."^ In a 
 recent ease a railroad company was allowed in the trial court to 
 make experiments under practically similar conditions and circum- 
 stances, to show that a rail could not have injured the plaintiff in 
 the manner claimed.^^ So a physician has been allowed by the use 
 of a pin to demonstrate to the jury the plaintiff's loss of feeling in 
 an action for personal injury, when it was claimed that paralysis 
 had taken place."' The same rule has been applied as to other ex- 
 periments by experts in the presence of the jury.°* On the same 
 principle operas have been performed in court and comic songs 
 sung, plagiarized papers have been read and the so called mate- 
 rialization of spirits exhibited."' Obviously if the experiment is too 
 
 *8 National Cash. Register Co. v. Blumenthal, 85 Mich. 464. As to experi- 
 ments out of court, see § 410 infra. 
 
 <» Brown v. Foster, 113 Mass. 136, 18 Am. Rep. 463. 
 
 Bfl McKay v. Lasher, 121 N. Y. 477; State v. Henderson, 29 W. Va. 147. 
 
 oiOsbourne v. Hosier, 6 Mod. 167; Williams' Case, 1 Lew. Cr. C. 137; 
 Reg. V. Taylor, 6 Cox Or. C. 58. See also Hayes v. Adams, 2 Thomp. & 
 Cook (N. T.) 593, where a party was by consent of the parties allowed 
 to write his name. But the rule is different in America, Com. v. Allen, 
 128 Mass. 46, 35 Am. Rep. 336. See § 550 infra. 
 
 62 Leonard v. Southern Pac. Co., 21 Ore. 555, 15 L. R. A. 221 and note. 
 See also, Stockwell v. C. C. & D. Ry. Co., 43 Iowa, 470; Smith v. St. Paul 
 Ry. Co., 32 Minn. 1, where the court refused to allow the Jury to leave the 
 court room to witness an experiment. See § 410 infra. 
 
 63 Osbourne v. City of Detroit, 32 Fed. 36. 
 
 64|state V. Smith, 49 Conn. 376; Leonard v. Southern Pac. Ry. Co., 21 
 Ore. 555, 15 L. R. A. 221; People v. Hope, 62 Cal. 291; McMahon v. 
 Dubuque, 107 Iowa, 62, 77 N. W. 517, 70 Am. St. Rep. 143; Brown v. Foster, 
 113 Mass. 136, 18 Am. Rep. 463; Taylor v. U. S., 89 Fed. 954. 
 
 66 Gaunt V. State, 50 N. J. L. 490; Innis v. State, 42 Ga. 477; State v. 
 Linkhaw, 69 N. C. 214, 12 Am. Rep. 647, where a witness was allowed to 
 
§ 404 REAL EVIDENCE. 509 
 
 com'plioated to afford any fair inference, or if it cannot be per- 
 formed in such a manner as to fairly illustrate the fact to be found, 
 it should be excluded.^'' In civil cases the courts may require the 
 party to do some physical act in the presence of the jury for the 
 purpose of disclosing identity, or showing the physical health or 
 condition of such person, or his ability to read or write."' or the 
 appearance of his handwriting when such matters are relevant to 
 the issue."* But the propriety of such an order must usually rest 
 largely in the discretion ,of the trial court; and it would only be 
 in case of a plain abuse of such discretion that the appellate court 
 would interfere."" 
 
 § 404(407). View — The former practice. — ^A very common il- 
 lustration of real evidence is afforded by the practice of allowing 
 the jury to go and examine or take a view of the premises or prop- 
 erty concerning which the controversy exists. To a limited extent 
 this seems to have been the practice at common law before statutes 
 were adopted on the subject."" By the ancient practice there could 
 be no view until the cause had been brought on for trial; and the 
 view was confined at first to real actions, but was afterwards ex- 
 tended by statute to several personal actions for injuries to the 
 realty, as trespass qtiare olausum f regit, trespass on the case and 
 nuisance."^ By statutes it was afterwards provided that, by special 
 order of the court, a portion of the jurors to be agreed upon by the 
 
 sing In court, the charge being the disturbance of a religious meeting by 
 singing in a peculiar way. See also. Com. v. Scott, 123 Mass. 222, 25 Am. 
 Rep. 81, as to the identification of a prisoner by his voice. But in United 
 States V. Reid. 42 Fed. 134, the court refused to allow exhibitions of spirit- 
 ualistic powers. See an interesting series of articles by Irving Browne, 5 
 Green Bag, 131, 185, 222. 
 
 66jumpertz v. People, 21 111. 375, 396, 408; Hardwick Saving Bank & 
 Trust Co. V. Drenan, 72 Vt. 438, 48 Atl. 645. 
 
 67 Ort V. Fowler, 31 Kan. 478, where the defendent was required to read 
 in court. 
 
 68 Huff V. Nims, 1± Neb. 363; State v. Henderson, 29 W. Va. 147. See 
 § 550 infra. 
 
 69 Hatfield v. St. Paul Ry. Co., 33 Minn. 130, 53 Am. Rep. 14, where it 
 was held no error for the court to refuse to compel the plaintiff to walk 
 aoross the floor; Com. v. Allen, 128 Mass. 46, 35 Am. Rep. 356, as to 
 handwriting; United States v. Reid, 42 Fed. 134. In Smith v. St. Paul Ry. 
 Co., 32 Minn. 1, it was not held error to refuse to permit the jury to leave 
 the court room to witness experiments with cars. 
 
 60 4 Bac. Abs. title. Juries; Springer v. City of Chicago, 135 111. 552, 2ff 
 N. B. 514. See full note 42 L. R. A. 368-395. 
 
 61 Burrow's Note, 1 Burr. 253; Springer v. City of Chicago, 135 111. 552, 
 12 L. R. A. 609. 
 
510 THE LAW OP EVIDENCE. § 405 
 
 parties or, in case of disagreement, to be Yippointed by the proper 
 officers of court, should at a convenient time before the trial take 
 a view of the premises in question."" Under these statutes the num- 
 ber of viewers was generally six; and the statutes provided that 
 such persons were to be the first persons sworn as jurors in the 
 case, and that only a sufficient number of jurors should be drawn 
 to make the requisite number of twelve."' Although the practice 
 for a time prevailed of allowing a view as a matter of course upon 
 the demand of either party, the statutes. were finally construed to 
 mean that the view should not be allowed unless, in the judgment 
 of the court, the circumstances made it necessary and proper."* 
 
 § 405 (408). Statutes regulating view. — By recent statutes in 
 England the judge is now allowed to make an order for the deten- 
 tion, preservation or inspection of any property or thing which is 
 the subject of the action in order that the judge or jury may take 
 a view of the same ; and for this purpose persons may enter upon 
 the premises of a party to make such inspection. "° It has been held 
 in Illinois and other states that a view cannot be ordered by the 
 court against objection, unless provided for by statute."" Yet in 
 a later Illinois case it was held that, as a view was allowed by the 
 common law independent of any statute, a view could be so granted 
 in that state as it had adopted the common law. It was also held 
 that the fact that an express statute had been enacted requiring a 
 view in condemnation proceedings, did not raise the inference that 
 the court could not permit a view in other cases. "^ In this country 
 the subject is generally regulated by statute. These statutes sub- 
 stantially agree in providing that the view may be allowed when, 
 in the opinion of the court, it is proper, or, in the language used in 
 some instances, when it is necessary. Usually the statutes are so 
 framed as not to confine the view to any particular class of actions 
 or to any particular form of property. The view may be "of the 
 property which is the subject of litigation or of the place in which 
 any material fact occurred. ' ' In other instances, according to the 
 
 62 Stat, i Anne, ch. 16 § 8; Stat. 3 Geo. 11 Ch. 25 § 14; Stat. 6 Geo. IV 
 ch. 50 § 23. 
 
 63 See statutes last cited. 
 
 84 Burrow's Note, 1 Burr. 253. 
 
 85 46 & 47 Vict. ch. 57, cited in Tayl. Ev. (10th Ed.) § 560. 
 
 68Doud V. Guthrie, 13 Bradw. (111.) 653. See also, Com. v. Webster, 
 5 Cush. 295, 298; Smith v. State, 42 Tex. 444; State v. Bertin, 24 La. An. 
 40; Bostock v. State, 01 Ga. 035, 639. 
 
 "'Springer v. City of Chicago, 135 111. 552, 37 111 App. 206, 26 N. E. 
 514, 12 L. R. A. 609 and note 611; Vane v. City of Evanston, 150 111. 
 616, 37 N. E. 901. 
 
§ 406 REAL, EVIDENCE. 511 
 
 statute, it may be "of the premises or place in question, or any prop- 
 erty, matter or thing relating to the controversy between the par- 
 ties." Some of the statutes provide that the view shall be at the 
 expense of the party asking it ; in such cases, however, the expenses 
 may be taxed like other legal costs if the party who advanced them 
 prevail in the action. Some of the statutes expressly include crim- 
 inal as well as civil actions, and in a few instances the details of the 
 procedure are prescribed."* 
 
 § 406 (409). View di'scretionary. — Under statutes of this char- 
 acter there is general concurrence in the view that the granting or 
 refusing the view rests in the soTind discretion of the trial judge." 
 Accordingly, the appellate court in numerous instances has refused 
 to review the order of the trial judge denying a view.'" There is 
 clearly no abuse of discretion in denying a view when it appears 
 that the condition of the premises or property has changed before 
 the demand for a view ; '^ or that the facts involved are such that 
 they can be accurately described to the jury ]py oral testimony,'^ or 
 by the use of maps and diagrams with proper explanations,'" or if 
 the view be unreasonably expensive, or cause unreasonable delay, 
 or would serve no useful purpose.'* Nor is the rule changed by the 
 
 «8 The practitioner should refer to the statutes and decisions of his 
 own state for further details. 
 
 69 Andrews v. Youmans, 82 Wis. 81; Saint v. Guerrerio, 17 Colo. 448; 
 Jenkins v. "Wilmington Ry. Co., 110 N. C. 438; Com. v. Knapp, 9 Pick. 496, 
 20 Am. Dec. 491; Com. v. Webster, 5 Cush. 295, 52 Am. Dec. 711; King v. 
 Iowa Ry. Co., 34 Iowa, 458; Kansas Ry. Co. v. Allen, 22 Kan. 285, a. Am. 
 Rep. 190; Brown v. Kohout, 61 Minn. 113, 63 N. W. 248; Springer v. Chi- 
 cago, 37 111. App. 206, 135 111. 552, 12 L. R. R. 609^ 26 N. B. 514; Hagee v. 
 Grossman, 31 Ind. 223; Owens v. Missouri Pac. Ry. Co., 38 Fed. 571; People 
 V. White, 116 Cal. 17, 47 Pac. 771; Johnson v. Winship M. Co., 108 Ga. 55,4, 
 33 S. E. 1013; Pike v. Chicago, 155 111. 656, 40 N. E. 567; Memphis & C. R. 
 Co. V. Buckner, 108 Ky. 701, 57 S. W. 482; MuUiken v. Corunna, 110 Mich. 
 212, 68 N. W. 141; Mintzner v. Hogg, 192 Pa. 137, 43 Atl. 465; State v. 
 Hunter, 18 Wash. 670, 52 Pac. 247; Davis v. Am. T. & T. Co. (W. Va.), 45 
 S. E. 926; Koepke v. Milwaukee, 112 Wis. 475, 88 N. W. 238. See also, 
 Warner v. State, 56 N. J. L. .686. 
 
 ™ Board of Com. of Jackson County v. Nichols, 139 Ind. 611, and cases 
 last cited. 
 
 "Stewart v. Cincinnati Ry. Co., 89 Mich. 315; Leidlein v. Meyer, 95 
 Mich. 586. 
 
 72 Ohio Ry Co. V. Wrape, 4 Ind. App. 100, action for setting fires by 
 locomotive; Richmond v. Atkinson, 58 Mich. 413, action for labor on build- 
 ing. 
 
 73 Clayton v. Chicago Ry. Co., '67 Iowa, 238, condemnation proceeding. 
 
 74 Springer v. City of Chicago, 135 111. 522, 12 L. R. A. G09, 26 N. E. 514. 
 where the whole subject is fully discussed. 
 
512 THE LAW OF EVIDENCE. § 407 
 
 fact that there may be a conflict in the testimony.'" On the princi- 
 ple already stated the decision of the trial judge granting a view 
 vfill not be reviewed, unless there appears to have been a clear abuse 
 of discretion." Thus, such an order will not be held error for the 
 mere reason that the view is allowed at a time considerably subse- 
 quent to the time when the damages are claimed to have been sus- 
 tained,'^ or that the view was not allowed at a particular stage of 
 the trial." 
 
 § 407 (410). When view may be granted. — ^Prom the statement 
 already given of the general purport of the statutes of this coun- 
 try, it is evident that considerable latitude is allowed in the prac- 
 tice of granting a view. Although the view is much oftener ordered 
 in actions in which information is desired in respect to land, or the 
 scene of an accident than in other cases, there is no restriction lim- 
 iting it to such cases. The view may include buildings, machinery, 
 animals or other personal property.'"' For obvious reasons the view 
 if taken should be aijthorized by the court and under its direction. 
 If jurors were allowed to make their investigations in their own 
 manner there would be no mode of redress for the mistakes which 
 would often follow. The courts have often ruled that unauthorized 
 views by the jury or part of the jury were improper.*" It is the con- 
 stant practice to allow a view in condemnation proceedings which 
 involve the issue of the value or the condition of land.*"- The prac- 
 tice is also common in actions for negligence where in the judg- 
 ment of the court a view of the place or property, to which the tes- 
 timony relates, may throw light upon the subject. In an action on 
 a policy of fire insurance it was held admissible to allow the jury 
 
 75 Baltimore Ry. Co. v. Polly, 14 Gratt. (Va.) 447. 
 . •"> Gunn V. Ohio R. Ry. Co., 36 W. Va. 165; Davis v. Am. Tel & Tel. Co. 
 (W. Va.), 45 S. E. 926. See cases already cited. 
 
 77 Springer v. City of Chicago, 135 111. 522, 12 L. R. A. 609, 26 N. E. 514. 
 
 78 Kentucky Cent. Ry. Co. v. Smith, 93 Ky. 449. In Kentucky a view 
 was allowed upon request of the jury after they had retired to find the 
 verdict, Louisville N. A. & C. Ry. Ca v. Scheik, 94 Ky. 191. 
 
 79 Buildings, People v. White, 116 Cal. 17, 47 Pac. 771; machinery, John- 
 son v. Winship M. Co., 108 Ga. 554, 33 S. E. 1013; sidewalks, Mulllken v. 
 Corunna, 110 Mich. 212, 68 N. W. 141; Koepke v. Milwaukee, 112 Wis. 475, 
 88 N. W. 238. 
 
 80 Harrington v. Railway Co., 157 Mass. 579, 32 N. E. 955; Pierce v. 
 Brenan, 83 Minn. 422, 86 N. W. 417; Peppercorn v. Black River Falls, 89 
 Wis. 36, 61 N. W. 79, 46 Am. St. Rep. 818; Aldrich v. Wetmore, 62 Minn. 
 164, 53 N. W. 1072. ' 
 
 81 Washburn v. Railway Co., 59 Wis. 364, 368; Toledo, A. A. & G. T. Ry. 
 Co. v. Dunlap, 47 Mich. 456; Springfield v. Dalbey, 139 111. 34. 
 
§ 408 EEAL, EVIDENCE. 513 
 
 to take a view of the ruins of premises destroyed by fire.'^ The 
 view may extend to personal property as well as realty; thus, in a 
 controversy relating to horses the trial court allowed the j:ry to go 
 into the court house yard and inspect the horse in question ; " and 
 in another case the jury were allowed to leave a court room and in- 
 spect an engine similar to the one which had caused the injury.^* 
 We have seen that the courts frequently allow experiments to be 
 made in the court room in the presence of the jury.'° But the stat- 
 utes under consideration do not extend to experiments made out 
 of the court room in the presence of the jury ; thus, it was held no 
 error for the court to refuse an application for the jury to proceed 
 to the car house of the defendant to witness experiments with its 
 cars as bearing upon the question of the nature of an alleged col- 
 lision.*" And in general it is held to be error to allow the admis- 
 sion of statements or the performance of experiments during the 
 view, unless such experiments or evidence are performed or given 
 with the consent of both parties.''' 
 
 § 408 (411). Is the view evidence in the case? — The rule is de- 
 clared in numerous decisions that the information acquired by a 
 jury in making a view or inspection is not evidence in the case. 
 According to the rule in these cases, the view is allowed merely to 
 enable the jury to better understand and apply the evidence given 
 in the case."' In support of this claim it is urged that if the facts 
 
 82 Boardman v. Westchester Ins. Co., 54 Wis. 364; Northwestern Mut. 
 L. Ins. Co. V. Sun. Ins. Office, 85 Minn. 65, 88 N. W. 272. 
 88 Nutter V. Ricketts, 6 Iowa, 92. 
 
 84 Owens V. Railway Co., 38 Fed. 571. 
 
 85 See § 403, Supra. 
 
 86 Smith V. St. Paul City Ry. Co., 32 Minn. 1. In Stockwell v. Railway 
 Co., 43 Iowa, 470, experiments were allowed with an engine by consent of 
 parties and it was held that the experiment was without prejudice to the 
 plaintiS. 
 
 8f Heyward v. Knapp, 22 Minn. 5; Garcia v. State, 34 Fla. 311; State v. 
 Lopez, 15 Nev. 407; Jones v. State, 51 Ohio St. 331. 
 
 88 Close V. Samm, 27 Iowa, 503; Northwestern M. L. F. Co. v. Sun Ins. 
 Co., 85 Minn. 65, 88 N. W. 272; Vane v. Evanston, 150 111. 616, 37 N. E. 
 901; Wright v. Carpenter, 49 Cal. 607; Brakken v. Minneapolis Ry. Co., 
 29 Minn. 41; Heady v. Veray Turnpike Co., 52 Ind. 117; Sasse v. State, 68 
 Wis. 530; Flower v. Railway Co., 132 Pa. 524, 19 Atl. 274; Fox. v. B. & 0. 
 R. Co., 34 W. Va. 466, 12 S. E. 757; Seattle & M. R. Co. v. Roeder, 30 Wash. 
 244, 70 Pao. 498, 94 Am. St. Rep. 864. But see, Nielson v. Chicago Ry. 
 Co., 58 Wis. 517; Washburn v. Milwaukee Ry. Co., 59 Wis. 364; Parks v. 
 Boston, 15 Pick. 198, 209; Morrison v. Burlington, C. R. & N. Ry. Co., 84 
 Iowa, 663. See note, 42 L. R. A. 387, et seg. 
 
 S3 
 
814 THE LAW OP EVIDENCE. § 409 
 
 which come to the Imowledge of the jury are to be treated as evi- 
 dence, the trial judge or appellate court would have no adequate 
 means of determining what evidence has been presented to the jury. 
 It is further urged that if the jurors are allowed to include their 
 personal examination and to thus become silent witnesses in the 
 case, burdened with testimony unknown to the parties or the court, 
 it would be impossible for the court of act understandingly in de- 
 termining whether the verdict should stand or be set aside.'" Al- 
 though this opinion has been entertained by very high authority, 
 and is perhaps sustained by the greater number of decisions, yet it 
 must be conceded that for hundreds of years the courts have al- 
 lowed jurors to inspect real and personal property, and to base 
 their conclusions, both upon the evidence given in court and the 
 information obtained by their own senses.** Moreover, it may be 
 well questioned whether a direction to a jury that the view is sim- 
 ply for the purpose of enabling them to understand and apply the 
 testimony is of any practical value, since it is hardly probable that 
 a jury, upon any such theoretical distinction, will ignore the facts 
 of which they have gained personal knowieage, or merely apply 
 those facts to the testimony recited in court. 
 
 § 409 (412). Same, continued. — ^Although it is true that the 
 facts or information acquired by the jury from a view or inspec- 
 tion cannot be preserved in a bill of exceptions, this is not regarded 
 by the weight of authority as sufficient reason for denying to such 
 facts or inspection efficacy as evidence.*^ From the necessity of the 
 case jurors will often receive impressions or draw conclusions from 
 the inspection of objects during the trial or from other circum- 
 stances coming within their observation. It would be a vain at- 
 tempt, even if it were desirable, to require the jury to repudiate 
 the evidence of their own senses, or to seek to limit the jury to con- 
 clusions derived from those forms of evidence which can be included 
 within bills of exceptions.*" The following statement by a learned 
 
 so See cases last cited. 
 
 »o See §§ 393 et seq. supra. 
 
 91 TuUy V. Pitcliburg Ry. Co., 134 Mass. 499, citing other Massachusetts 
 cases; Remy v. Municipality No. 2, 12 La. An. 500; Toledo Ry. Co. v. 
 Dunlap, 47 Mich. 456; JefEersonville Ry. Co. v. Bowen, 40 Ind. 545; Munk- 
 witz V. Chicago Ry. Co., 64 Wis. 403; East & W. I. R. Co. v. Miller, 201 
 111. 413, 66 N. E. 275; Shepherd v. Camden, 82 Me. 535, 20 Atl. 91; Chi- 
 cago, R. I. & P. R. Co. V. Farwell, 59 Neb. 544, 81 N W. 443; State v. Henry, 
 51 W. Va. 283, 41 S. E. 439. The same rule holds where the judge 
 viewed the premises, Preston v. Culbertson, 58 Cal. 198. 
 
 92Disotell V. Henry Luther Co., 90 Wis. 635; Herman v. State, 73 
 Wis. 248. See §§ 398 et seq. supra. 
 
§ 410 REAL BVIDENCB. 515 
 
 author is supported by reason and authority: "The true solution 
 of this difficulty is that cases where there has been a view stand, 
 on appeal or error, on a special footing; that, although what the 
 jurors have learned through the view is evidence to be considered 
 by them, — ^yet, on grounds of public policy, having reference to the 
 known imperfections which attend the conclusions of jurors and 
 even judges in the haste of nisi prius work, a reviewing court should 
 set aside a verdict based partly on a view, unless it is supported 
 by substantial testimony, delivered by sworn witnesses."** But 
 although a jury may properly act upon an inspection or view as 
 evidence in the case, they are not justified in acting solely upon 
 such evidence and in disregarding the other evidence; and if their 
 verdict is not supported by the other evidence, it cannot stand."* 
 The rule has been declared that in an equity case, where a jury 
 is called to determine a question of fact, a view should not be al- 
 lowed, unless the judge participate therein. This is upon the theory 
 that in such cases the verdict of the jury is merely advisory; and it 
 is competent for the court to find the fact against the findings of 
 the jury ; but that in order to review the verdict intelligently, it is 
 necessary for the court to have all the evidence which the jury 
 had."" 
 
 § 410 (413). Experiments out of court. — There are numerous 
 precedents for allowing experiments made out of court and not in 
 the presence of the jury to be proved for the purpose of illustrating 
 the testimony given in court; for example, experts have been al- 
 lowed to state their experiments made out of court."" Testimony 
 has been received as to the results of shooting with the weapon in 
 question,"' and also as to experiments made out of court in rail- 
 way damage cases,"* where it is shown that the conditions are the 
 
 »3 Thomp. Trials, § 902; Hartman v. Reading Ry. Co. (Pa.), 13 Atl. 774, 
 and other cases above cited. 
 
 8* Washburn v. Milwaukee Ry. Co., 59 Wis. 364; Munkwltz v. Chicago 
 Ry. Co., 64 Wis. 403; Flower v. Railway Co., 132 Pa. 524, 19 Atl. 274; Hoff- 
 man V. Railway Co., 143 Pa. 503, 22 Atl. 823. 
 
 sspraedrick v. Flieth, 64 Wis. 184; Jeffersonvllle Ry. Co. v. Bowen, 40 
 Ind. 545. On the general subject of view, see Thomp. Trials, §§ 875-916. 
 
 ?«lJincoln v. Taunton Mfg. Co., 9 Allen, 191; Williams v. Taunton, 125 
 Mass. 34; Sullivan v. Com., 93 Pa. St. 284; Burg v. Chicago, R. I. & P. 
 Ry. Co., 90 Iowa, 106; Boyd v. State, 14 Lea (Tenn.) 161; State v. Jones, 
 41 Kan. 309. As to experiments in court, see §§ 403, 407, supra. 
 
 97 Sullivan v. Com., 93 Pa. St. 284. 
 
 »8 Byers v. Nashville, C. & St. L. Ry. Co., 94 Tenn. 345; Burg v. Chicago, 
 R. I. & P. Ry. Co., 90 Iowa, 106. But see Moore v. Chicago, St. P. & K. Ry. 
 Co., 93 la. 484, 61 N. W. 992. 
 
516 THE LAW OP EVIDENCE. § 411 
 
 same," and where they do not relate to some collateral matter.' 
 Other illustrations might be given, but it is obvious that testimony 
 ought not to be received as to experiments of this character, imless 
 the testimony shows that they were made under such conditions 
 as to fairly illustrate the point in issue ; and from the nature of the 
 case the decision of this question must rest largely in the discretion 
 of the trial judge.^ The proposition that the jury have no right to 
 listen to evidence out of court, such as to statements of witnesses 
 or other persons concerning the facts in issue or the merits of the 
 cause, is too elementary to require discussion.' They have no right 
 to gain knowledge concerning the cause by such methods as making 
 experiments out of court or by taking views, except under the super- 
 vision of the court. '^ But if the knowledge gained in this way could 
 not have affected the verdict rendered, it is not such error as to war- 
 rant setting aside the verdict." Nor can they inspect books or doc- 
 uments in the jury room which have not been received in evidence, 
 except upon consent of the parties.' Any misconduct of the jury 
 of this character furnishes ground for a new trial.^ 
 
 § 411 (414). Models — Diagrams — Photographs. — It is the con- 
 stant practice in the courts to receive in evidence models, maps and 
 diagrams,* for the purpose of giving a more accurate representa- 
 
 »e Chicago, St. L. & P. Ry. Co. v. Champion, 9 Ind. App. 510; Chicago & 
 A. Ry. Co. V. Logue, 47 111. App. 292. 
 
 1 Libby v. Scherman, 50 III. App. 123, 146 111. 540. 
 
 2Ulrlch V. People, 39 Mich. 245; State v. Smith, 49 Conn. 376; Polin v. 
 State, 14 Neb. 540; Sonoma County v. Stofen, 125 Cal. 32, 57 Pac. 681. 
 
 sRitche v. Holbrooke, 7 Serg. & R. (Pa.) 458; Hager v. Hager, 38 Barb. 
 (N. Y.) 92, 102; Dower v. Church, 21 W. Va. 23, 55; March v. State, 44 Tex. 
 64. 
 
 i State V. Sanders, 68 Mo. 202; Yates v. People, 38 111. 527; Forehand v. 
 State, 51 Ark. 553; Gim v. State, 4 Humph. (Tenn.) 289; Winslow v. Mor- 
 rill, 68 Me. 362; Garside v. Ladd Watchcase Co., 17 R. I. 691; Woodbury v. 
 Anoka, 52 Minn. 329; Harrington v. Worcester, L. & S. St. Ry. Co., 157 
 Mass. 579. See note, 42 L. "R. A. 394 et seq. 
 
 People V. Boggs, 20 Cal. 432; Indianapolis v. Scott, 72 Ind. 196. 
 
 6 State V. Hartman, 46 Wis. 248; MUnde v. Lambie, 125 Mass. 367; State 
 V. Lantz, 23 Kan. 728; McLeod v. Humeston & S. Ry. Co., 71 Iowa, 138; 
 Toohy V. Lewis, 78 Ind. 474. 
 
 f This is illustrated by most of the cases cited in the last three^ notes 
 above. ' * 
 
 8 Pennsylvania Coal Co. v. Kelly, 156 111. 9; Lush v. Incorporated Town 
 of Parkersburg, 127 Iowa, 701, 104 N. W. 336; Moran Bros. Co. v. Sno- 
 qualmie Palls Power Co., 29 Wash. 292, 69 Pac. 759 ; State v. Fox, 25 N. J. 
 L. 506, 602, where the model of a wound was introduced in a criminal 
 case; Weld v. Brooks, 152 Mass. 297; Donohue v. Whitney, 133 N. Y. 178; 
 
§ 411 REAL EVIDENCE. 517 
 
 tion of objects or places which cannot convenien.tly be shown or de- 
 scribed to the jury. It has also become the common practice to re- 
 ceive in evidence photographs for the purpose of illustrating to 
 the jury, more satisfactorily than can be done by description, the 
 appearance of objects, persons or places, where such appearance 
 becomes relevant.' It is clearly necessary in order to render dia- 
 grams, models, photographs and the like, admissible in evidence 
 that preliminary evidence should be given of the correctness of the 
 representation ; and when such evidence is introduced, this is a pre- 
 liminary question for the determination of the trial judge; and his 
 decision upon this question will not be reviewed by the appellate 
 court.^" If, however, the accuracy of the representation is ques- 
 tioned, this is a question for the determination of the jury like 
 other questions of fact ; and it is well known that even photographs 
 may convey very erroneous impressions. 
 
 McVey v. Durkin, 136 Pa. St. 418; Mclver v. Walker, 9 Cranch, 173; Curtlss 
 V. Aaronson, 49 N. J. L. 68; Coles v. Yorks, 36 Minn. 388; Wolfe v. Scar- 
 borougli, 2 Ohio St. 362; Davidson v. Arledge, 97 N. C. 172; Vance v. Fore, 
 24 Cal. 435; Ewing v. State, 81 Tex. 172; Polhill v. Brown, 84 Ga. 338; 
 Whitehead v. Ragan, 106 Mo. 231; Plummer v. Gould, 92 Mich. 1. 
 
 » For a full discussion and illustration of this subject, see § 581 infra, 
 and cases and notes there cited. 
 
 10 Com. V. Morgan, 159 Mass. 375; Blair v. Pelham, 118 Mass. 420; Locke 
 T. Railway Co., 46 Iowa, 109; Ortiz v. State, 30 Fla. 256. 
 
CHAPTER 14. 
 
 STATUTE OF FRAUDS. 
 
 S 412. Grounds on which evidence is excluded by statute of frauds. 
 
 413. As to the conyeyance of interests in land. 
 
 414. The statute as affecting leases. 
 
 415. Proof of surrender of interests in land. 
 
 416. Surrender by operation of law. 
 
 417. Cancellation of instruments creating interests in land. 
 
 418. Trusts — How proved — Need not be created by writing. 
 
 419. The trust to be proved by writing. 
 
 420. Exception as to resulting trusts. 
 
 421. Same, continued. 
 
 422. Same — ^Mode of proving the trust — ^Amount of evidence. 
 
 423. Statutes limiting resulting trusts. • 
 
 424. Same — Object of the statutes. 
 
 425. Proof of trusts between those holding fiduciary relations. 
 
 426. Wills — Procuring devise by fraud. 
 
 427. Proof of guaranty. 
 
 428. Sale of goods. 
 
 429. What the memorandum is to contain. 
 
 430. Same, continued. 
 
 431. Subsequent modifications by parol — Fraud — Mistake. 
 
 432. Reformation — Part performance. 
 
 433. Same— Original agreement must be proved. 
 
 § 412 (415). Grounds on which evidence is excluded by statute 
 of frauds, — ^A large part of this work relates to those exclusionary 
 rules of evidence which have had their origin and growth in the 
 courts as a part of the common law. Although as a rule statutes 
 have tended to extend rather than limit the admissibility of evi- 
 dence, there are important statutes which have been enacted for 
 the purpose of preventing the reception of testimony which would 
 otherwise be competent. By far the most important of these stat- 
 utes is the celebrated statute of frauds. This statute has long been 
 the subject of the most unqualified commendation on the one hand, 
 and of the severest criticism on the other; and the discussion as to 
 its merits is by no means at an end.^ The fact, however, that for 
 years this statute has held its place in England, and that, with 
 
 1 See many quotations illustrating this in Reed, Stat. Frauds, §§ 10, 11. 
 
§ 413 STATUTE OF PKAUDS. 519 
 
 slight changes, it has been adopted and preserved in most of the 
 states of this union is significant of its great importance, if not of 
 its transcendant value. The statute is based upon the theory that 
 certain contracts be reduced to writing, and thus removed from the 
 uncertainties which affect business transactions resting wholly in 
 parol; that in communities where the ability to write is the rule, 
 rather than the exception, the hardship or inconvenience of requir- 
 ing important contracts to be reduced to writing is less to be con- 
 sidered than the frauds and perjuries which are apt to follow when 
 such contracts rest only in memory. It is far from the object of 
 this work to enter in detail upon the discussion of those substantive 
 rules of law which depend upon this celebrated statute. It is de- 
 sirable, however, to briefly caU attention to some of the provisions 
 of the statute, and to the general rules of evidence applicable there- 
 to. 
 
 § 413 (416). As to the conveyance of interests in land. — By 
 the terms of the first and second sections of the statute all convey- 
 ances of interests in land, in order to be effectual, excepting only , 
 those which create leases or estates at will, must be put in writing 
 and signed by the parties making or creating the same or by their 
 agents, lawfully authorized by writing, except that the rule does 
 not apply to leases not exceeding the term of three years from the 
 making thereof.^ It wiU be observed that the statute affects not 
 the credibility or weight of testimony, but absolutely excludes parol 
 proof of a very large class of contracts. It is immaterial whether a 
 large number of witnesses may have knowledge of the terms of a 
 contract within this class, or whether there are no witnesses to con- 
 trovert their statements, for the reason that these statements are 
 denied all efficacy as evidence. It is settled by the weight of au- 
 thority that a deed is not to be rejected as evidence by the terms of 
 this statute, although the signature of the grantor is not actually 
 made by himself, provided it be made in his presence and by his 
 direction.' When the deed or conveyance is executed by an attor- 
 
 2 For illustrations of contracts covered by the statute under this head 
 see. Wood, Stat. Frauds, §§ 192 et seq.; Browne, Stat. Frauds (5th Ed.), 
 §g 228 et seq. Also Tuttle v. Bristol (Mich.), 105 N. W. 145; Schmidt v. 
 Beiseker (N. D.), 105 N. W. 1102; Foster Lumber Co. v. Harlan County 
 Bank (Kan.), 80 Pac. 49; Johnson v. Hayward (Neb.), 103 N. W. 1058; 
 Tucker v. Oltenheimer Estate (Ore), 81 Pac. 360; Mack v. Mack (Wash.), 
 81 Pac. 707; Shea v. Nilima, 133 Fed. 209; Grout v. Stewart, 96 Minn. 230, 
 104 N. W. 966. 
 
 3 Jackson v. Murray, 5 T. B. Mon. (Ky.) 184, 17 Am. Dec. 53 and note; 
 Browne, Stat. Frauds (5th Ed.), § 126, 
 
520 THE LAW OF EVIDENCE. § 414 
 
 ney in fact, it should be in the name of the principal, and not in 
 the name of the agent. 
 
 § 414 (417). The statute as affecting leases. — Questions of evi- 
 dence frequently arise under the statute in controversies respecting 
 leases, not executed according to the statute, and the surrender of 
 such leases; and attention will be called to the rules governing those 
 subjects. The provisions of the statute of frauds respecting leases 
 have been quite generally adopted in the United States with the 
 qualification that the excepted term is limited in many states to one 
 year, instead of three. The original statute applied only to those 
 leases where the rent reserved should amount to two-thirds of the 
 improved value. But this provision has generally been omitted in 
 this country. It is to be observed that these statutes do not gen- 
 erally declare leases of the class enumerated to be void, but, like 
 the English statute, declare such leases to have the effect of estates 
 at tvill.* In some states, however, the lease is declared void ; and in 
 others, the statute provides that no action shall be maintained upon 
 such leases. It is the well settled rule that tenancies within the 
 statute are to be treated as estates at ivill, which may be converted 
 into tenancies from year to year by acts on the part of the landlord 
 and tenant showing such intention. Thus, where the tenant enters 
 and pays rent for the year or some aliquot part of a year, such in- 
 tention may be inferred." Even under statutes declaring leases 
 of this character void, it has been held that while a parol lease for 
 more than the prescribed period creates in the first instance only 
 an estate at will, yet such estate, when once created, may, like any 
 other estate at will, be converted into a tenancy from year to year 
 by payment of rent or by other circumstances which indicate an 
 intention to create such yearly tenancy." Although a contract be- 
 yond the time prescribed is declared void by statute, yet if the 
 tenant enters under such void contract and occupies the premises, 
 he may be compelled to pay for the use and occupation.' "When the 
 tenancy from year to year has been established by proof of this 
 character, evidence may be given of the terms of the original parol 
 contract, so far as they are consistent with the new agreement which 
 
 4 See the statutes of the Jurisdiction. 
 
 Camden v. Bratterbury, 5 C. B. N. S. 817 ; Braythwayte v. Hitchcock, 
 10 M. & W. 49'7; Anderson v. Prlndle, 23 Wend. 616; Barlow v. Wain- 
 wright, 22 Vt. 88; Wood, Stat. Frauds, §§ 19-22. 
 
 Evans v. Winona Lumber Co., 30 Minn. 515 ; KopUtz v. Gustavus, 48 
 Wis. 48. 
 
 1 Thomas v. Nelson, 69 N. Y. 118 and cases cited. 
 
§ 415 STATUTE OF FRAUDS, 521 
 
 the law has created;' for example, covenants as to the time of 
 paying rent and the amount of rent,* and those as to making re- 
 pairs/" may be proved. When the parties have apparently acted 
 upon the terms of the invalid lease, it may be fairly presumed, in 
 the absence of other testimony, that they expect such agreements 
 to continue in the new contract implied by law.^^ So in an action 
 for use and occupation, where the tenancy begins under an agree- 
 ment declared void by statute, such original agreement may be 
 proved merely for the purpose of showing the rental value as recog- 
 nized by the parties.^^ When a valid parol lease is shown, it is in- 
 admissible to prove by parol a collateral agreement to extend such 
 lease beyond the period limited by the statute, since this would be 
 allowing the very object of the statute to be thwarted by indirec- 
 tion. 
 
 § 415 (418). Proof of surrender of interests in land. — By the 
 third section of the statute of frauds it was provided that no leases, 
 estates or interests either of freeholds or terms of years, or any un- 
 certain interest in lands, tenements or hereditaments should be as- 
 signed, granted or surrendered, unless it be by deed or note signed 
 by the party so assigning, granting or surrendering the same, by 
 their agents thereunto lawfully authorized by writing or by act and 
 operation of law.^' It will be observed that the leases mentioned in 
 this statute are not limited to three year leases. In England the 
 courts have followed the .exact language of the statute, and have 
 held that no leases can be surrendered except in the manner pro- 
 vided by the statute ; and the statute has been held to exclude alike 
 parol assignments and parol surrenders of mere leases from year to 
 year, though such leases have been created by verbal agreement.^* 
 In this country, however, although there is some conflict of opinion 
 
 8 Evans v. Winona Lumber Co., 30 Minn. 515; Crawford v. Jones, 54 Ala. 
 460; Reed, Stat. Frauds, § 807 and cases cited. 
 
 9 Doe V. Bell, 5 T. R. 471; Maverick v. Donaldson, 1 Ala. 536; Morehead 
 V. Watkyns, 5 B. Mon. (Ky.) 228; Barlow v. Wainwright, 22 Vt 88; De 
 Medina v. Poison, Holt, 47; Norris v. Morrill, 40 N. H. 395; Cunningham 
 V. Roush, 157 Mo. 336, 57 S. W. 769. 
 
 lODeale v. Sanders, 3 Bing. N. C. 850; Ricliardson v. Gifford, 1 Add. & 
 Ell. 52. 
 
 11 Dorrill v. Stephens, 4 McCord (S. C.) 59. 
 
 12 De Medina v. Polsom, Holt, 47; Morehead v. Watkyns, 5 B. Mon. (Ky.) 
 228. 
 
 13 For the exact language see the statute itself. 
 
 11 Hotting V. Martin, 1 Camp. 319; Mollett v. Brayne, 2 Camp. 103; 
 Thompson v. Wilson, 2 Stark. 378; Doe v. Wells, 10 Adol. & Ell. 435. 
 
522 THE LAW OP EVIDENCE. § 416 
 
 upon this subject, the view has generally prevailed that the first 
 three sections should be construed together, and that the language 
 of the third section should be liberally construed, and in view of the 
 language contained in the other sections. And it has been urged 
 with much force that the act could not have been intended to re- 
 quire that contracts should be dissolved by writing which might be 
 created by parol.^" The statute prescribes no particular form of 
 words as necessary to constitute a surrender; hence any writing 
 signed by the tenant, which is accepted or not objected to by the 
 other party, and which clearly evinces the intention to terminate 
 the lease, is sufficient.^' 
 
 § 416 (419). Surrender by operation of law. — ^Under the stat- 
 ute there may be a surrender of a lease "by act or operation of 
 law." This language in the act has given rise to much discussion. 
 It has been said to apply ' ' to cases where the owner of a particular 
 estate has been a party to some act, the validity of which he is by 
 law afterwards estopped from disputing, and which would not be 
 valid, if his particular estate had continued to exist. There the law 
 treats the doing of such act as amounting to a surrender. Thus, if 
 a lessee for years accept a new lease from his lessor, he is estopped 
 from saying that his lessor had not power to make the new lease; 
 and, as the lessor could not do this until the prior lease had been 
 surrendered, the law says that the acceptance of such new lease is 
 of itself a surrender of the former."^' On the same principle a 
 surrender takes place after such acts on the part of the lessee a* 
 clearly give rise to the inference that he intends to terminate the 
 former estate. The most common illustration of such acts is where 
 the lessee accepts a new lease during the continuance of the old 
 one, and thereby shows his own intention, and at the same time 
 recognizes the power of the lessor to make a valid lease.^' A sur- 
 render will not be implied against the intent of the parties as mani- 
 
 is Strong V. Crosby, 21 Conn. 398; McKinney v. Reader, 7 Watts. (Pa.) 
 123; Greider's Appeal, 5 Pa. St. 422; Swanzey v. Moore, 22 111. 65; Webster 
 V. Nichols, 104 111. 160; Ross v. Schneider, 30 Ind. 423. 
 
 16 Greider's Appeal, 5 Pa. St. 422; Strong v. Crosby, 21 Conn. 398; Shep- 
 ard V. Spaulding, 4 Met. 416; Reed, Stat. Frauds, § 780. 
 
 17 Lyon V. Reed, 13 M. & W. 306, quoted in Tayl. Ev. (10th Ed.) § 1005. 
 "Wilson V. Sewell, 4 Burr. 1975; Donnellan v. Reed, 3 Barn. & Adol. 
 
 899; Davison v. Stanley, 4 Burr. 2210; Van Rensselaer v. Penniman, 6 
 Wend. 569. The rule is the same where the landlord takes possession him- 
 self with assent of the tenant, Talbot v. Whipple, 14 Allen, 177; Shaiour T. 
 Herzberg, 73 Ala. 59; Porter v. Noyes, 47 Mich. 55; 
 
§ 417 STATUTE OP FRAUDS. 523 
 
 f ested by their acts ; and when such intention cannot be presumed 
 without doing Tiolence to common sense, the presumption will not 
 be supported.^' So it is proof of the surrender, if the lessee ac- 
 cepts a new lease from the assignee of the lessor.^" To constitute 
 proof of surrender, the new lease accepted in the place of the old 
 one must be a valid lease.^^ As stated in a New York case, "the 
 farthest that our courts have gone is to hold that, to effect a sur- 
 render of an existing lease, by operation of law, there must be a 
 new lease, valid in law to pass an interest according to the contract 
 and intention of the parties." "" It is not necessary, however, that 
 the interest acquired by the new arrangement be of equal value 
 with the lease surrendered. Thus, if the tenant accepts from the 
 landlord a valid lease for a shorter term, it operates as a surren- 
 der.^' 
 
 § 417 (420). Cancellation of instruments creating interests in 
 land. — It is a rule, too well settled to require discussion, that the 
 cancellation, destruction or re-delivery of the instrument which 
 created an estate in land does not operate to divest the grantee of 
 his estate or to surrender it.^* Even though the parties fully con- 
 sent to the transaction, this does not change the rules of law which 
 provide the modes in which estates in land may be conveyed and 
 surrendered. Although the cancellation, re-delivery or alteration of 
 the instrument of conveyance is not a surrender within the mean- 
 ing of the statute, its practical operation may be such as to deprive 
 the grantee of the means of proving his title, since he cannot be 
 heard to prove by parol testimony the facts necessary to maintain 
 his fitle.^" The instruments may become invalid, so that no action 
 can be maintained upon the covenants contained in them, and yet 
 the titles which have been acquired under them may remain un- 
 affected. When a person has become the legal owner of real estate, 
 he cannot transfer it or part with his title, except in some of the 
 
 19 Coe V. Hobby, 72 N. Y. 141. 
 
 20 Donkersley v. Levy, 38 Mich. 54. 
 
 ai Doe V. Bridges, 1 Barn. & Adol. 860; Schleffelln v. Carpenter, 15 Wend. 
 400; Smith v. Niver, 2 Barb. (N. Y.) 180; Watt v. Maydewell, Hut. 104. 
 
 22 (Joe V. Hobby, 72 N. Y. 147. 
 
 23 Whitley v. Gough, Dyer, 140; Van Rensselaer v. Penniman, 6 Wend. 
 569; Plagg v. Dow, 99 Mass. 18. 
 
 2* Browne, Stat. Frauds (5th Ed.), § 58. See many authorities cited in 
 Reed, Stat. Frauds, § 782; § 557 infra. 
 
 2isChesley v. Frost, 1 N. H. 145; Barrett v. Thorndike, 1 Greenl. (Me.) 
 73; Jackson v. Gould, 7 Wend. 364. 
 
524 THE LAW OF EVIDENCE. § 418 
 
 forms prescribed by law. The grantee may destroy his deed, but 
 not his estate. He may deprive himself of his remedies upon the 
 covenants, but not of his right to hold the property.""" The rule 
 seems to prevail in some states that when the grantee of a deed, not 
 recorded, voluntarily surrenders or cancels it, and the grantor exe- 
 cutes a new deed to a purchaser in good faith, the latter obtains 
 the legal title.^^ These cases rest on the principle that, since the 
 grantor has put it beyond his power to produce his deed, the law 
 will not allow him to introduce secondary evidence in violation of 
 his undertaking and to defeat the fair intention of the parties.^' 
 
 § 418 (421). Trusts — How proved — Need not be created by 
 writing. — By the seventh and eighth sections of the statute of 
 frauds, it is provided that declarations or creations of trusts or con- 
 fidences in lands shall be manifested and proved by some writing 
 signed by the party who is by law enabled to declare such trust, or 
 by his last will in wriling ; otherwise they shall be void. The excep- 
 tion is made, however, as to trusts or confidences resulting by the 
 implication or construction of law. In considering the class of 
 express trusts referred to in this statute, it is to be observed that 
 the trust need not be created by writing. It is a compliance with 
 the terms of the statute, if the trust be manifested and proved by 
 writing, and, if so proved, it may be created by parol; and it is suf- 
 ficient to show the existence of the trust by written evidence.''" The 
 writing need not be in the form of an agreement between parties ; 
 and any writing subscribed by the party will be sufficient, if it eon- 
 tain the requisite evidence.'" Thus, letters, '^ promissory notes," 
 recitals in deeds or other agreements,'^ statements addressed to third 
 
 28 Chessman v. WMttemore, 23 Pick. 234. 
 
 27 Holbrook v. Tirrell, 9 Pick. 105; Nason v. Grant, 21 Me. 160; Mussey 
 V. Holt, 24 N. H. 248; Mallory v. Stodder, 6 Ala. 801; Cravener v. Bowser, 
 4 Pa. St. 259; Gilbert v. Bulkley, 5 Conn. 262; Holmes v. Trout, 7 Peters, 
 171; Raynor v. Wilson, 6 Hill (N. Y.) 469; Corliss v. Corliss, 8 Vt. 373; 
 Chase v. Hlnkley, 74 Me. 181. 
 
 28 Mussey v. Holt, 24 N. H. 252. 
 
 29 Miller v. Gotten, 5 Ga. 341; Evans v. Chism, 18 Me. 220; Urann v. 
 Coates, 109 Mass. 581. 
 
 so Cook v. Barr. 44 N. Y. 156. 
 
 31 Day V. Roth, 18 N. Y. 448; Steere v. Steere, 5 Johns. Ch. (N. T.) 1, 
 9 Am. Dec. 256; Maccuhbin v. Cromwell, 7 Gill & J. (Md.) 15; Forster v. 
 Hale, 5 Ves. 308; Crook v. Brooking, 2 Vern. 50. 
 
 32 Murray v. Glasse, 23 L. J. (Ch.) 126; Campbell v. Campbell, 2 Lea 
 (Tenn.) 66. 
 
 33 Wolfe V. Frost, 4 Sandf. (N. Y.) 72; Hutchinson v. Tindall, 2 Green 
 Ch. (N. J.) 357; Wright v. Douglass, 7 N. Y. 564. 
 
§ 419 STATUTE OP FRAUDS. 525 
 
 persons,'* memoranda in books of the trustee,"" receipts,'" the an- 
 swer or other pleading of the alleged trustee in the suit to enforce 
 the trust or in an action with another party," and other informal 
 writings have been held sufficient to satisfy the statute. It is not 
 necessary that the writing should have been prepared for the pur- 
 pose of declaring a trust, or intended for the use of the cestui que 
 trust. The trustee may be held to the legal effect of the writings." 
 § 419 (422). The trust to be proved by writing. — Although the 
 authorities fully justify the rule that the proof of the trust may 
 consist of informal writings, and that no particular form of expres- 
 sion is necessary for that purpose, yet the writing or writings must 
 clearly "manifest and prove" that a trust relation exists, as well 
 as the terms of the trust.'" Although it is the general rule that the 
 trust and the whole trust must be proved by the writing, there are 
 authorities to the effect that, if the existence of a trust is proved by 
 writing, parol evidence may be received to explain and complete 
 the trust, if it is imperfectly expressed in the writing.*" In other 
 eases, however, such testimony has been refused, and the other rule 
 is held that parol testimony is not admissiile to supply any defects 
 or omissions in the written evidence. Thus in a New York case, al- 
 though the parol evidence which had been admitted, as well as the 
 acts of the parties, clearly showed the alleged trust, it was held that 
 they could not be resorted to to help out the proof furnished by the 
 writings.*^ It is conceded in those eases where parol evidence is 
 admitted to explain or help out the writing that it should be re- 
 
 s* Morton v. Teward, 2 Younge & C. 67. 
 
 85 Keller v. Kunkel, 46 Md. 565; Lewin, Trusts (11th Ed.), ch. V. 5 2 p. 
 56. Contra, Homer v. Homer, 107 Mass. 82. 
 
 88 Miller v. Antle, 2 Bush (Ky.) 407, 92 Am. Dec. 495. 
 
 87 Cook V. Barr. 44 N. Y. 156; Maccubbin v. Cromwell, 7 Gill & J. (Md.) 
 157. See also, Jones v. Slubey, 5 Harf. & J. (Md.) 372. 
 
 88Forster v. Hale, 5 Ves. 308; Roberts, Frauds, 102. 
 
 39 Steere v. Steere, 5 Johns. Ch. (N. Y.) 1, 9 Am. Dec. 256; Forster v. 
 Hale, 5 Ves. 308; Miller v. Stokely, 5 Ohio St. 194. See also, OlliHe v. 
 Wells, 130 Mass. 221. 
 
 40 Kingsbury v. Burnside, 58 111. 310, 11 Am. Rep. 67; Gagney v. O'Brien, 
 83 111. 72; Cripps v. Jee, 4 Brown Ch. 472; Bring v. Bring, 2 Vern. 99, 
 where the will making the declaration of trust did not mention for whom, 
 but the confession of the executors and other proof was used to show what 
 was meant. 
 
 "Cook V. Bai;r, 44 N. Y. 156; Campbell v. Taul, 3 Yerg. (Tenn.) 548; 
 Leaman v. Whitley, 4 Russ. 423. See, Miller v. Cotten, 5 Ga, 341; Robson 
 V. Harwell, 6 Ga. 589. 
 
526 THE LAW OP EVIDENCaB. § 420 
 
 ceived with great caution.** The question has sometimes been raised 
 whether parol evidence is admissible to contradict the inference 
 drawn from the writings relied on to prove the trust. In an action 
 of this character Chancellor Kent expressed the following view: 
 "If the written proof was clear and positive, it could not be rebut- 
 ted by parol proof ; but considering the loose and ambiguous nature 
 of it, I am inclined to think the parol evidence is competent in sup- 
 port of the sheriff's deed, and to explain the obscurity of the case, 
 by showing what was the understanding of all the parties con- 
 cerned. ' ' *" The proof of the trust is not necessarily confined to any 
 single writing but may consist of several papers. Nor is it neces- 
 sary, in such case, that all of the writings be signed, provided they 
 are so linked together in meaning as to be understood without the 
 aid of parol evidence.** It is not necessary that the writing relied 
 upon to prove the trust should be contemporaneous with the cre- 
 ation of the trust. On the contrary, the declaration of trust may be 
 long subsequent to such creation.*'^ The statute under considpration 
 does not purport to relate to personal property; and its operation 
 is confined to real estate.*^ 
 
 § 420 (423). Exception as to resulting trusts. — ^It will be no- 
 ticed that a large class of trusts, those which arise from implication 
 of law and are commonly called resulting trusts, are excepted by 
 the terms of the act. The familiar classification of these trusts is 
 that of Lord Hardwicke, as follows: "First, where an estate is 
 purchased in the name of one person, but the money or considera- 
 tion is given by another, and a trust in the estate results to him who 
 gave the money or consideration ; Second, where a trust is declared 
 only as to part, and nothing said as to the rest, and what remains 
 undisposed of results to the heir-at-law ; and Third, where transac- 
 tions have been carried on mala fide." " In order to establish the 
 fact that a trust has been created by implication, on the ground 
 that an estate has been purchased in the name of one person, but 
 the money or consideration given by another, it must be clearly 
 
 *2Sayer v. Fredericks, 1 C. B. Green (N. J.) 205; Jackson v. Gary, 16 
 Jolins. 302. See -also, Mead v. Randolph, 8 Tex. 191. 
 
 *a Steere v. Steere, 5 Johns. Ch. (N. Y.) 1, 9 Am. Dec 263. 
 
 *4 Forster v. Hale, 5 Ves. 308. 
 
 « Barrel! v. Joy, 16 Mass. 221; Forster v. Hale, 5 Ves. 308. 
 
 48 Kimball v. Morton, 1 Halst. Ch. (N. J.) 26, 43 Am. Dec 621; Roberta, 
 Frauds, 94. 
 
 " Uoyd V. Splint, 2 Atk. 148; MUler v. Gotten, 5 Ga. 341. 
 
§ 421 STATUTE OF FRAUDS. 527 
 
 proved that such payment has been made,*^ and it must be proved 
 to have been made by the person who claims the benefit of the 
 trust,** and at or before the time of the purchase.'" 
 
 § 421 (424). Same, continued. — The following is a statement 
 by a learned writer of some of the other rules of evidence applica- 
 ble to this subject: "It is obvious that the purchase money must, 
 at the time of payment, be the property of the party paying it and 
 setting up the trust ; and the fact that the purchase was made with 
 borrowed money will not establish a resulting trust in favor of the 
 lender. If, however, the party who takes the deed lend or advance 
 the price to the party who claims the benefit of it, before or at the 
 time of the purchase so that the money or property paid actually be- 
 longs to the latter, a trust results. But it is otherwise where the 
 party taking the deed pays his own money for it, with an under- 
 standing or agreement that it may afterwards be repaid, and the 
 land redeemed by him who sets up the trust. If a trustee or ex- 
 ecutor purchase estates with the trust money, and take a conveyance 
 to himself without the trust appearing on the deed, the estate will 
 be liable to the trusts, if the application of the trust money to the 
 purchase be clearly proved. And so if one partner makes a pur- 
 chase of land to himself, paying for it with the partnership funds, 
 a trust results to his co-partners, though it is otherwise if the co- 
 partneship be not at the time actually existing, but only resting in. 
 executory agreement. The fact of payment or of the ownership of 
 the money may always be shown by parol evidence, but such evi- 
 dence must be clear and strong particularly after a considerable 
 lapse of time, or when the trust is not claimed until after the death 
 of the alleged trustee. The testimony of the trustee is competent 
 for this purpose ; but mere evidence, given during his life-time, of 
 his declarations to that effect seems to be inadmissible, as not being 
 the best existing evidence. So if it appears upon the face of the 
 conveyance, by recital or otherwise, that the purchase was made 
 with the money of a third person, that is clearly sufficient to create 
 a trust in his favor. Evidence is also admissible of the mean cir- 
 
 *8-WTiiting V. Gould, 2 Wis. 588; Olive v. Dougherty, 3 G. Greene (Iowa) 
 371. 
 
 *!> Burden v. Sheridan, 36 Iowa, 125, 14 Am. Rep. 505; Wright v. King, 
 Har. (Mich.) 12. 
 
 50 Jackson v. ivloore, 6 Cow. 706; Botsford v. Burr, 2 Johns. Ch. (N. Y.) 
 405; Buck v. Swazey, 35 Me. 41, 56 Am. Dec. 681; Alexander v. Tarns, 13 
 111. 221; Graves v. Dugan, 6 Dana (Ky.) 331; Brooks v. Shelton, 54 Miss. 
 353; Preston v. McMillan, 58 Ala. 84; Boyer v. Libey, 88 Ind. 235. 
 
528 THE liAW OF EVIDENGB. § 423 
 
 cumstances of the pretended owner of the estate, tending to show 
 it impossible that he should have been the purchaser, although that 
 fact alone would not probably be sufficient to establish the trust." " 
 
 § 422 (425). Same — Mode of proving the trust — ^Amount of 
 evidence. — The real facts as to the payment of the money by a 
 third person may be proved by parol, even though the deed recites 
 that the consideration was paid by the person named as grantee 
 therein ; "^ and it may be shown by parol that the purchase price 
 was wholly or partly paid by another person, and a trust pro tanto 
 may thus be created.^' But it is well settled that in such ease the 
 testimony must be strong and unequivocal, and of such character as 
 to disclose the exact rights and relations of the paraes.'* Indeed, 
 it may be stated more generally that the proof of trusts by parol is 
 not regarded with favor by the courts.'" The proof should be suffi- 
 cient in amount, and of such a character as to lead to definite conclu- 
 sions. When the evidence is so ambiguous and indefinite, or when 
 it relates to transactions so remote as to fall short of such a test, 
 it should be held inadequate to establish the trust." 
 
 § 423 (426) . Statutes limiting resulting trusts. — ^In some of the 
 states those resulting trusts which arise where the title to land is 
 taken in the name of one person, and the price is paid by another 
 have been abolished by statute. Although these statutes vary in 
 form, that of New York may be given as an illustration : "A grant 
 of real property for a valuable consideration, to one person, the 
 consideration being paid by another, is presumed fraudulent as 
 against the creditors, at that time of the person paying the consider- 
 ation, and, unless a fraudulent intent is disproved, a trust results 
 
 Bi Browne, Stat. Frauds (5th Ed.) § 90 and cases cited. As to the ad- 
 missibility of parol evidence to explain defective trusts, see article, 29 
 Cent. L. Jour. 269. 
 
 • BaBlodgett v. Hildreth, 103 Mass. 484; Page v. Page, 8 N. H. 187; Gardl- 
 r ,r Bank v. Wheaton, 8 Greenl. (Me.) 373. See also, Bo.sford T. Burr,' 2 
 Johns. Ch. (N. Y.) 405. 
 
 OS Case v. Codding, 38 Cal. 191; Mason v. Showalter, 85 111. 133; Bragg 
 V. Paulk, 42 Me. 502; Nelson v. Worrall, 20 Iowa, 470. 
 
 6* Baker v. Vining, 30 Me. 121, 50 Am. Dec. 617. See also. Perry v. Mc- 
 Henry, 13 111. 238; Perry v. Perry, 65 Me. 399; Whiting v. Gould, 2 Wis. 
 552. 
 
 «»Whitmore v. Learned, 70 -Me. 276; Getman v. Getman, 1 Barh. Ch. 
 (N. Y.) 499; Parmlee v. Sloan, 37 Ind. 469; Miller v. Blake, 30 Gratt (Va.) 
 744. 
 
 »o Barrow v. Greenough, 3 Ves. Jr. 152; Trout v. Trout, 44 Iowa, 471; 
 In re Cornman's Estate, 197 Pa. St. 125, 46 Atl. 940; Browne, Stat Frauds 
 (5th Ed.), S 91; Reed, Stat. Frauds, § 974. 
 
§ 424 STATUTE OF FRAUDS. 529 
 
 in favor of such creditors, to an extent necessary to satisfy their 
 just demands ; but the title vests in the grantee, and no use or trust 
 results from the payment of the person paying the considei ation, or 
 in his favor, unless the grantee either, 1, takes the same as an ab- 
 solute conveyance, in his own name, without the consent or knowl- 
 edge of the person paying the consideration, or, 2, in violation 
 of some trust, purchase the property so conveyed with money 
 or property belonging to another." " It is to be observed that, al- 
 though these statutes have in some states made very important 
 changes, they do not change the rule in those cases where the 
 grantee takes the conveyance in his own name without the knowl- 
 edge or consent of the person paying the consideration, or where 
 the grantee, in violation of some trust, purchases the land with the 
 money of another. 
 
 § 424 (427). Same— Object of the statute.— The statutes were 
 enacted to prevent frauds on creditors, and not to protect aad shield 
 an agent acting in a fiduciary or trust relation in the perpetration 
 of an actual fraud, or in the violation of a trust."^ Hence the stat- 
 ute does not apply in those cases where the person, furnishing the 
 money is not aware that the deed is taken in the name of another. 
 The statute implies the assent and co-operation of two persons, one 
 paying the money and so inducing the grant, and the other receiv- 
 ing it; °° and if it does not appear that the absolute character of the 
 deed was known to or designed by the person paying the considera- 
 tion, it will be presumed that it was so written by fraud or mistake, 
 and without any intention to violate the statutes."" If a debtor buys 
 land, paying for it with his own money, and knowingly takes title 
 in the name of another, he gains no title to the land, and runs the 
 risk of incurring a forfeiture of his estate. The grantee gains abso- 
 lute title, except that the creditors may prove the trust which has 
 resulted in their favor in a court of equity, after exhausting their 
 remedies at law.°^ 
 
 57 Birdseye, N. Y. R. S. (3d Ed.) p. 3025, § 74. See 3 Pom. Eq. Jur. (3d. 
 Bd.) § 1042, where the statutes of other states are cited. 
 
 58 Kluender v. Fenske, 53 Wis. 118. 
 
 BoReltz V. Reltz, 80 N. Y. 538, agent; Siemon v. Schurck, 29 N. Y. 598, 
 parent and child; Marvin v. Marvin, 53 N. Y. 607, partner; Fairchild v. 
 Falrchild, 64 N. Y. 471, partner; Reid v. Fitch, 11 Barb. (N. Y.) 399, insane 
 person. 
 
 60 Siemon v. Schurck, 29 N. Y. 598. 
 
 «i Garfield v. Hatmaker, 15 N. Y. 475; Kluender v. Fenske, 53 Wis. 118; 
 Siemon v. Schurck, 29 N. Y. 598. See also, Trask v. Green, 9 Mich. 358. 
 
 34 
 
530 THE LAW OF EVIDENCE. § 425 
 
 § 425 (428). Proof of trusts between those holding fiduciary 
 relations. — It is elementary that the statute of frauds does not 
 prevent the proof and enforcement of those implied trusts which 
 arise when one sustaining a fiduciary relation obtains the legal title 
 to property by fraud or in any other such manner that he cannot 
 equitably hold the property which justly belongs to another. This 
 is illustrated in the cases where executors or administrators pur- 
 chase land with the funds of the estate in their own names."^ The 
 same rule applies to guardians,^^ trastees,^^ and agents in the man- 
 agement of the property of their principals,*" and to an attorney 
 who takes title in his own name to property purchased with his 
 client's money, or in violation of his duty as attorney."* The same 
 principle has often been applied where the proofs showed that a 
 relation of trust and confidence existed by reason of the relationship 
 of the parties,"'' as well as in transactions where the money of a wife 
 has been invested in lands deeded to the hustand,"^ and in those 
 eases where a partner, by means of fiduciary relations, has gained 
 the legal title to property which in equity and good conscience be- 
 longs to the firm."" On the same general principle parol evidence 
 
 saSeamans v. Cook, 14 111. 501; Osborne v. Graham, 30 Ark. 66; Mosley 
 V. Lane, 27 Ala. 62, 62 Am. Dec. 752 ; Johnson v. Quarles, 46 Mo. 423, 
 
 68 Paschal! v. Hindever, 28 Ohio St. 568 ; Sweet v. Jacocks, 6 Paige Ch. 
 (N. Y). 355, 31 Am. Dec. 252; O'Hara v. Dllworth, 72 Pa. St. 403. 
 
 64 Brown v. Brown, 1 Strob. Eq. (S. C.) 363; Sanford v. Weeden, 2 Heisk. 
 (Tenn.) 74. 
 
 8»Malin v. Malin, 1 Wend. 625; Porestone v. Forestone, 49 Ala. 128; 
 Hardanbergh v. Bacon, 33 Cal. 357; Pillsbury v. Pillsbury, 17 Me. 107; 
 Kluender v. Penske, 53 Wis. 122. See also. Burden v. Sheridan, 36 Iowa, 
 125, 14 Am. Rep. 505; Minot v. Mitchell, 30 Ind. 228, 95 Am. Dec. 685. 
 
 seLlnsley v. Sinclair, 24 Mich. 380; Cameron v. Lewis, 56 Miss. 76; Lei- 
 senrlng v. Black, 5 Watts (Pa.) 303, 30 Am. Dec. 322; Howell v. Baker, 4 
 Johns. Ch. (N. Y.) 118, where property bought at a nominal price by 
 plaintiff's attorney at sheriff's sale. 
 
 »7 Robinson v. Leflore, 59 Miss, 148; Corse v. Leggett, 25 Barb. (N. Y.) 
 389, grandfather and his grandchildren; Warmouth v. Johnson, 58 Cal. 621, 
 purchase by son for the benefit of his mother. See §§ 139, 190 supra as to 
 burden of proof where fiduciary relations exist. 
 
 esGidney v. Moore, 86 N. C. 484; Hayward v. Cain, 110 Mass. 273; 
 Thomas v. Standiford 49 Md. 181; Newton v. Taylor, 32 Ohio St. 399; 
 Loften V. Witboard, 92 111. 461; Johnson v. Johnson, 187 111. 154, 58 N. E. 
 235. See also, where the money was paid by the husband and the title 
 taken in name of his wife, she was held to be a trustee for the husband, 
 Pembroke v. Allenstown, 21 N. H. 107. But see, Hocker v. Gentry, 3 Met. 
 (Ky.) 463. 
 
 «» Dewey v. Dewey, 35 Vt. 555; Anderson v. Lemon, 8 N. Y. 239; NlcoU v. 
 Ogden, 29 111. 323, 81 Am. Dec. 311. 
 
§ 426 STATUTE OP PEAXIDS. 531 
 
 may be given, notwithstanding the statute of frauds, to establish a 
 trust where a person by agreement acts for another or falsely rep- 
 resents that he is iidding for another at a public sale, and thereby 
 gains an unjust advantage.'* 
 
 § 426 (429). Wills — Procuring devise by fraud. — ^TJnder an- 
 other head there will be found a discussion of those rules of evi- 
 dence which relate to the explanation and revocation of wills. It 
 is beyond the proviace of this work to discuss the section of the 
 statute of frauds and the other English and American statutes 
 which relate to the mode of executing and proving wills. '^ It has 
 frequently been held that, if a person procures an absolute devise 
 or bequest to himself by orally promising the testator that he will 
 convey the property to, or hold it for, the benefit of third persons, 
 and afterwards refuses to perform his promise, a trust arises out of 
 the confidence reposed in him by the testator and his own fraud, 
 which a court of equity, upon clear or satisfactory proof of the 
 facts, will enforce against him at the suit of such third persons. 
 In the leading case in this country it is said : "It is contended that 
 parol evidence of a trust is contrary to our statute of wills which 
 corresponds, as far as regards the point in dispute, with the British 
 statute of frauds. Undoubtedly every part of a will must be in 
 writing ; and a naked parol declaration of a trust in respect of land 
 devised is void. The trust insisted on here, however, owes Its valid- 
 ity not to the will or the declaration of the testator, but to the fraud 
 of the devisee. It belongs to a class in which the trust arises ex 
 maleficio, and in which equity turns the fraudulent procurer of the 
 legal title into a trustee to get at him : and there is nothing in rea- 
 son or authority to forbid the raising of such a trust from the sur- 
 reptitious procurement of a devise.'"" We have seen that, in a 
 
 'ORyan V. Dox, 34 N. Y. 307; McQuat v. Cathcart, 84 Ind. 571; MeRarey 
 V. Huff, 32 Ga. 681; Paine v. Wilcox, 16 Wis. 202; Rives v. Lawrence, 41 
 Ga. 283; Green v. Ball, 4 Bush (Ky.) 586; Wolford v. Herrington, 86 Pa. 
 St. 39; Bethel v. Sharp, 25 111. 173, 76 Am. Dec. 790; Lindsay v. Planter, 23 
 Miss. 576. This principle is illustrated by many cases cited in Reed, Stat. 
 Frauds, § 930. 
 
 •Ji As to parol revocation and explanation of ambiguities In wills, see 
 §§ 479 et seq. infra, 191 supra. 
 
 T2Hoge V. Hoge, 1 Watts (Pa.) 163, 26 Am. Dec. 52; Brook v. Chappell, 
 34 Wis. 405; Oldham v. Litchfield, 2 Vern. 506; Chamberlain v. Chamber- 
 lain, 1 Freem. 34; Barrel v. Harnick, 42 Ala. 60; Hooker v. Oxford, 33 
 Mich. 453. A contract between the owner of land and third parties, 
 whereby in consideration of his care during life, the land at his death was 
 to belong to the latter, is not within the statute after full performance, 
 Soper V. Galloway (la.), 105 N. W. 399. 
 
532 THE LAW OF EVJDENOE. § 427 
 
 large class of cases, the statute of frauds is no bar to the proof by 
 parol of those facts which create a trust ex maleficio; that the 
 courts do not allow the statute to be thus interposed as a shield for 
 fraud. But the cases cited also illustrate the rule that in order to 
 constitute proof of fraud, in such eases, a mere refusal to perform 
 the trust is not enough. It is necessary that there should be an 
 agency, active or passive, on the part of the alleged trustee m pro- 
 curing the title.''^ 
 
 § 427(430). Proof of guaranty. — "Written evidence signed by 
 the party charged therewith or by his agent is by the same statute 
 required in every case of contract by executors or administrators 
 to answer damages out of their own estate ; in case of every promise 
 of one person to answer for the debt, default or miscarriage of an- 
 other person; every agreement made in consideration of marriage, 
 or which is not to be performed within a year from the time of 
 making it, and every contract for the sale of lands, tenements or 
 hereditaments, or of any interest in or concerning them. "Without 
 entering upon any general discussion of the broad subject of guar- 
 anties, it is important to state the principle that the statute does 
 not exclude parol proof to show that the promise in question, al- 
 though in form a guaranty, is in reality a promise to pay the debt 
 of the person himself. ^^ This is illustrated in those eases where the 
 promise relates to a debt on which the promisor was already liable 
 with others." An original promise to pay may be proved by parol, 
 although the goods or other consideration are furnished, not to the 
 promisor, but to some third person. In such a case the undertak- 
 ing, is in no sense a collateral undertaking, and is not within the 
 statute.'* The real question which arises is, to whom was the credit 
 given. The rule is generally stated that if any credit at all is given 
 to the person for whose benefit the promise is made, there should 
 
 78 Lantry v. Lantry, 5 111. 458, 2 Am. Rep. 310. See also, Hoge v. Hoge, 
 1 Watts (Pa.) 163, 26 Am. Dec. 52; Brook v. Chappel, 34 "Wis. 405. 
 
 74Hubon V. Park, 116 Mass. 541; Randall v. Kelsey, 46 Vt. 158; Smart 
 V. Smart, 97 N. Y. 559; Darst v. Bates, 95 111. 493; De Witt v. Root, 18 
 Neb. 567; Eastwood v. Kenyon, 11 Adol. & Ell. 438; Morin v. Martz, 13 
 Mian. 191; Dyer v. Gibson, 16 Wis. 557; Sutherland v. Carter, 52 Mich. 
 151. 
 
 75 Orrell v. Coppock, 26 L. J. (Ch.) 269, trustees; Durham v. Manrow, 2 
 N. Y. 533; Stephens v. Squire, 5 Mod. 205; Hopkins v. Carr, 31 Ind, 260. 
 
 76 West V. O'Hara, 55 Wis. 645; Bulkfyr v. Darnell, 2 Ld. Raym. 1085; 
 Chicago Coal Co. v. Liddell, 69 111. 639; Walker v. Hill, 119 Mass. 249; 
 Brown v. Harrell, 40 Ark. 429; Davis v. Tift, 70 Ga. 52; Newton Grain Co. 
 V. Pierce (Mo.), 80 S. W. 268. 
 
§ 428 STATUTE OF FRAUDS. 533 
 
 be written proof of the promise made by the one sought to be held 
 as defendantJ^ Nor does the statute apply where the owner of a 
 note transfers it to his creditor in payment of his own debt, and 
 represents the note to be collectible.''' The statute does not apply 
 in those eases where the promise is to pay a debt which attaches to 
 the promisor's own property, though the debt in the first instance 
 is that of a third person." It is generally held that before the pro- 
 visions of the statute can apply, it must appear that the liability of 
 the third person in whose behalf the promise is made continues: 
 and the two obligations must concur.*" In the application of the 
 statute it makes no difference whether the guaranty relates to a 
 past, present or future debt of another.'^ The rule has often been 
 stated that a new and sufficient consideration moving directly to 
 the guarantor will take the case out of the statute of frauds.*^ But 
 the rule is not accepted without objection; and in many states the 
 existence of such new consideration does not avail to take the prom- 
 ise out of the statute, if the original liability continues to exist, and 
 unless a new promise is substituted for the original liability.*' 
 
 § 428 (431). Sale of goods. — According to the same statute no 
 contract for the sale of goods for the price of ten pounds or up- 
 
 '7 Larson v. Wyman, 14 Wend. 246; Poster v. Napier, 74 Ala. 393; Bugbee 
 V. Kendricken, 130 Mass. 437; Barber v. Fox, 1 Stark. 270; Hull v. Wood, 
 4 Chand. (Wis.) 36; Langdon v. Richardson, 58 Iowa, 610; Wills v. Ross, 
 77 Ind. 1. 
 
 '8 Garden v. McNeil, 21 N. Y. 336; Fears v. Story, 131 Mass. 47; Wyman 
 V. Groodrich, 26 Wis. 21; Shafer t. Ryan, 84 Ind. 140; Mobile Ry. Co. v. 
 Jones, 57 Ga. 198; Power v. Rankin, 114 111. 52; Bruce v. Burr, 67 N. Y. 
 237; Wilson v. Hentges, 29 Minn. 102. See article by Isaac Redfield, 4 Am. 
 Law. Reg. (N. S.) 460. 
 
 79 Wills V. Brown, 118 Mass. 137; Weisel v. Spence, 59 Wis. 301; Walden 
 V. Karr, 88 111. 49; Walker v. Taylor, 6 Car. & P. 752; Stewart v. Campbell, 
 58 Me. 439; Morgan v. Overmann Mining Co., 37 Gal. 534; Mitchell v. 
 Griffin, 58 Ind. 559. 
 
 80 Booth V. Eighmie, 60 N. Y. 238; Stone v. Symmes, 18 Pick. 467; Good- 
 man V. Chase, 1 Barn. & Aid. 297; Watson v. Jacobs, 29 Vt. 169; Armstrong 
 V. Flora, 3 T. B. Mon. (Ky.) 43. 
 
 81 Emerson v. Slater, 22 How. 28; Doyle v. White, 26 Me. 341; Waller v. 
 Richards, 39 N. H. 259; Reed, Stat. Frauds, § 31. 
 
 82 Westmoreland v. Porter, 75 Ala. 452; Maxwell t. Haynes, 41 Me. 559; 
 Britton v. Angler, 48 N. H. 420; Fears v. Story, 131 Mass. 47; Kelly v. 
 Schupp, 60 Wis. 76; McCormick v. Johnson, 31 Mont. 266, 78 Pac 500; 
 Reed, Stat. Frauds, §§ 64, 65. 
 
 83IDOWS V. Swett, 134 Mass. 140; Vaughn v. Smith, 65 Iowa, 579; Ackley 
 V. Parmenter, 98 N. Y. 425. See other cases and discussion In 8 Am. & 
 Eng. Bncy. Law, 682; Reed, Stat Frauds, §§ 66, 67. 
 
534 THE LAW OP EVIDENCE. § 428 
 
 wards shall be good, unless the buyer shall accept part of the goods, 
 and actually receive the same, or give something in earnest to bind 
 the bargain or in part payment, or except some note or memoran- 
 dum in writing of the bargain be made and signed by the parties 
 to be charged by the contract or by their agents, lawfully authorized 
 thereto. This provision of the statute has been adopted quite gen- 
 erally in the United States, although such statutes in this country- 
 most generally fix the limit of value at the sum of fifty dollars in- 
 stead of ten pounds. It frequently becomes necessary to determine 
 whether some part of the goods has teen accepted and actually re- 
 ceived within the meaning of the statute and in such a manner as to 
 render the memorandum unnecessary. Ordinarily this is a matter 
 to be proved by parol evidence, which will generally consist of the 
 language and acts of the buyer. Among other acts relevant to 
 this issue are the continued possession of the buyer without objec- 
 tion;^* the opportunity for the full examination of the goods, and 
 the failure to make any objection to them,'" and the exercise of such 
 control or dominion over the goods as seems inconsistent with own- 
 ership in another.*" To satisfy the language of the statute it is nec- 
 essary to prove, not only that the tuyer has accepted, but that he 
 has received part of the goods. In other words there must be a de- 
 livery with the intent on the part of the seller to transfer the own- 
 ership, and on the part of the buyer to accept.*^ The delivery, how- 
 ever, may te constructive or symbolical, or by the agents of the 
 parties.*' It has sometimes been stated that in order to constitute 
 the acceptance and receipt contemplated by the statute, there must 
 be proof of more than mere words or promises; that the evidence 
 must show acts and conduct as well.*" This statement, however, has 
 
 84 Bushel V. Wheeler, 15 Q. B. 442; Coleman v. Gibson, 1 Moody & Rob. 
 168; Wilcox Co. v. Green, 72 N. Y. 17. But the statute does not apply to 
 a contract substantially for work and labor, Roubrick v. Haddad, 67 N. J. 
 L. 522, 51 Atl. 938; nor to an agreement to resign an office, Colton v. Ray- 
 mond, 114 Fed. 863. 
 
 86 See cases last cited. 
 
 soCurrie v. Anderson, 2 El. & El. 592; Marton v. Tibbett, 15 Q. B. 428; 
 Rogers v. Phillips, 40 N. Y. 519. 
 
 87 Atherton v. Newhall, 123 Mass. 141; Messer v. Woodman, 22 N. H. 172; 
 Jones V. Mechanics Bank, 29 Md. 287; Taylor v. Mueller, 30 Minn. 343; 
 Stone V. Browning, 68 N. Y. 598. 
 
 88 Cutwater v. Dodge, 6 Wend. 397; Chaplin v. Rogers, 1 Bast, 191; Cross 
 V. O'Donnell, 44 N. Y. 661; Dodsley v. Varley, 12 Adol. & Ell. 632; Snow v. 
 Warner, 10 Met. 132; King v. Jarman, 35 Ark. 190, 37 Am. Rep. 11 and 
 long note. Browne, Stat. Frauds (5th Ed.), § 319. 
 
 89 Basset v. Camp, 54 Vt. 232; Malone v. Plato, 22 Cal. 103; Edwards T. 
 3rand Trunk Ry. Co., 54 Me. 105; Shepard v. Pressey, 32 N. H. 49. 
 
§ 429 STATUTE OF FBAUDS. 535 
 
 been criticised by high authority on the ground that the statute does 
 not prescribe any mode of proving the change of possession."" 
 
 § 429 (432). What the memorandum is to contain. — Since it 
 was the object of the statute of frauds to compel parties to prove 
 certain kinds of contracts by written evidence, it follows that the 
 memorandum relied on should contain the terms of the contract 
 with such definiteness that no resort to parol testimony is neces- 
 sary.°^ Hence, if the memorandum is manifestly incomplete or fails 
 to state the essential terms of the contract, it cannot be helped out 
 by parol evidence.'^ Accordingly the memorandum contract can- 
 not be added to by parol proof of the names of the parties to be 
 bound."' But several letters or other writings may be construed 
 together as constituting the memorandum ; and if the names of the 
 parties appear from all the writings or from the initials or words 
 used so that the parties can be identified, it is enough."* Where the 
 description within the memorandum "points directly to one set of 
 persons, and but one, and their identity can be shown from the writ- 
 ing or from other written evidence or by parol evidence which can 
 indicate the persons described in the writing without involving in- 
 admissible parol proof of anything in the contract itself, the writing 
 is sufficient." "' It is not necessary that the memorandum should 
 
 »o Browne, Stat. Frauds (5th Ed.), § 320. 
 
 01 Williams y.. Morris, 95 U. S. 444; Lee v. Hills, 66 Ind. 474; Hales v. 
 Van Berchem, 2 Vern. 617; Fry v. Piatt, 32 Kan. 62; Brown v. Whipple, 58 
 N. H. 229; Guy v. Barnes, 29 Ind. 103; Vaughn v. Smith, 58 Iowa, 553; 
 Wright V. Weeks, 25 N. Y. 153; Williams v. Robinson, 73 Me. 186; Halsell 
 V. Renfrew, 14 Okl. 674, 78 Pac. 118; J. T. Stewart & Son v. Cook, 118 Ga. 
 541, 45 S. B. 398; Kingsley v. Siebrecht, 92 Me. 23, 42 Atl. 249; Kurdy v. 
 Rogers (Idaho), 79 Pac. 195. As to the general requirements, see notes, 
 G5 Am. Dec. 668; 47 Am. Rep. 532. 
 
 i^ See cases last cited. On the general subject of what the memorandum 
 is to contain with certainty, see elaborate note, 26 Am. Dec. 661. 
 
 83 Phelan v. Tedcastle, 15 L. R. Ir. 169 ; Graton v. Cummings, 99 tJ. S. 
 100; Lang v. Henry, 54 N. H. 57; Lewis v. Wood, 153 Mass. 321, 26 N. E. 
 862; Frahm v. Metcalf (Neb.), 106 N. W. 227; Horton v. McCarty, 53 Me. 
 394; Raubitschek v. Blank, 80 N. Y. 478; Drury v. Young, 58 Md. 546, 42 
 Am. Rep. 343 and long note. As to whether such memorandum is to be 
 signed by both parties, see long notes, 25 Am. Rep. 543; 55 Am. Dec. 344. 
 See also many examples cited in Reed, Stat. Frauds, §§ 401 et seg. 
 
 »* Salmon Falls (Jo. v. Goddard, 14 How. 454 ; Barry v. Coombe, 1 Peters, 
 640; Clark v. Rawson, 2 Den. 135; Drury v. Young, 58 Md. 546, 42 Am. Rep. 
 343 and long note; Reed, Stat. Frauds, § 401; Browne, Stat. Frauds (5th 
 Ed.), §§ 374 et seq. 
 
 »5Reed, Stat. Frauds, § 407; Newell v. Radford, L. R. 3 C. P. 52, parol 
 evidence received to Identify a party by showing his occupation; Bateman 
 V. Phillips, 15 East, %1%^ parol evidence to show agency; Reed, Stat. 
 Frauds, § 377. 
 
536 THE LAW OP EVIDENCE. . § 429 
 
 state the time of payment, as in such cases it will be presumed that 
 cash payment is intended.'" If, however, the memorandum shows 
 that credit is intended, and that the terms are so incomplete that the 
 real intent cannot be ascertained without a resort to parol evidence, 
 the omission is fatal."' Those provisions which are merely formal 
 and are not essential need not be expressed, as they will be implied. 
 In illustration of the rule that the memorandum must contain the 
 full terms of the contract, it may be added that the price should be 
 stated.'^ But if the memorandum contains the recital that the price 
 has been received, it is then unnecessary."' It is also unnecssary if 
 no price has been named or the property has been sold for what it 
 is reasonably worth. ^ In further illustration of the same general 
 subject, if the memorandum is relied upon as a contract relating to 
 land, the land must ie so descriied as to be capable of identifica- 
 tion.'' "While parol evidence is admissible to apply the description 
 to the property intended, and to show the surrounding circum- 
 stances, it cannot be allowed to add to the memorandum.' If any 
 such reference is made to the land that it can be definitely ascer- 
 tained, as where it is designated as the land of a certain estate, or 
 land having known names, it is sufficient.* Obviously the same 
 general principle applies when the contract within the statute of 
 frauds relates to sales of personal property.'^ 
 
 »«Atwood V. Cobb, 16 Pick. 227; O'Docnell v. Leeman, 43 Me. 158; 
 Hawkins v. Chace, 19 Pick, 502, as to time of delivery of goods. 
 
 »7Ryan v. Hall, 13 Met. 520; Grace v. Denison, 114 Mass. 16; Schmeling 
 V. Kriesel, 45 Wis. 328. 
 
 08 Morgan v. Milman, 3 De Gex, M. & G. 24; Grace v. Denison, 114 
 Mass. 16; Browne, Stat. Frauds (5tli Ed.), § 377. See note 60 Am. 
 St. Rep. 432-441. 
 
 89 Browne, Stat Frauds (5tli Ed.), § 379; Miller v. Kansas City, Ft. S. 
 & M. R. Co., 58 Kans. 189, 48 Pac. 853. 
 
 iHoadley v. McLaine, 10 Bing. 482; Browne, Stat. Frauds (5tli Ed.), 
 § 377. 
 
 2 Miller v. Campbell, 52 Ind. 125; Pulse v. Miller, 81 Ind 190; McGuire 
 v. Stevens, 42 Miss. 724; Church v. Farrow, 7 Rich. Eq. (S. C.) 378; 
 Meadows v. Meadows, 3 McCord (S. C.) 457; Coles v. Browne, 10 Paige 
 Ch. (N. Y.) 526; Stafford v. Lick, 10 Cal. 12. 
 
 3 See cases last cited. See also, Eggleston v. Wagner, 46 Mioh, 610; 
 Smith's Appeal, 69 Pa. St 474; Halsell v. Renfrew, 14 Okla. 674, 78 Pac. 
 118. Many illustrations will be found in Reed, Stat. Frauds, chap. 18. 
 
 * Smith V. Freeman, 75 Ala. 285; Springer v. KUnsorge, 83 Mo. 152; 
 Scanlon v. Geddis, 112 Mass. 15. 
 
 6 See cases illustrating the subject, cited in Reed, Stat Frauds, §§ 413 
 et seq. See §§ 441, 444, infra. 
 
§ 430 STATUTE OF FEAXJDS. 537 
 
 § 430 (433). Same, continued. — ^It has been the subject of in- 
 finite discussion and controversy whether, under the statute, the 
 memorandum must show the consideration. In some states statutes 
 have been enacted requiring a statement of the consideration. In 
 others, statutes declare that the consideration need not be expressed. 
 The English rule requiring the memorandum to state the considera- 
 tion has been rejected in this country in the greater number of 
 states, but it remains an open question as to which view is sustained 
 by the greater weight of authority.' But even in those jurisdictions 
 where the consideration must be expressed in the memorandum, it 
 need not he expressly stated. It suffices if the consideration appears 
 from the writing and the surrounding circumstances to be gathered 
 from it.'' And where the language of the memorandum is aw- 
 Mgiious, and may refer to different subjects, parol evidence may, 
 imder a familiar rule, be received to show the situation and circum- 
 stances of the parties at^the time in order to construe their agree- 
 ment.' It is to be borne in mind that the memorandum required 
 in the various sections of the statute of frauds is not the contract 
 itself. The writing is only the evidence of the contract showing the 
 terms and the parties." Hence the memorandum may be subsequent 
 to the making of the contract,^" but must be made "before the action 
 is brought,^^ and cannot be made before the making of the contract 
 itself .'^^ If the memorandum is shown to have been lost, its contents 
 may be proved by parol.'^ The memorandum need not on its face 
 
 8 See cases cited pro and con in 8 Am. & Eng. Ency. Law, 727. See 
 note 60 Am. St. Rep. 432-441. 
 
 ^ Shadwell v. Shadwell, 9 C. B. N. S. 159, 173; Church v. Brown, 91 
 N. Y. 315; Otis v. Hazeltine, 27 Cal. 80; Simons v. Steele, 36 N. H. 73. 
 The words "value received" are sufficient, Vlolett v. Fatten, 5 Cranch, 
 151; Dahlman v. Hammel, 45 Wis. 466; Marshall v. Cobleigh, 18 N. H. 485. 
 
 sWalrath v. Thompson, 4 Hill, 200; Haigh v. Brooks, 10 Add. & Ell. 
 309; Ellis v. Bray, 79 Mo. 227; Lee v. Butler, 167 Mass. 426, 46 N. B. 52; 
 Peycke v. Ahrens, 98 Mo. App. 456, 72 S. W. 151. See also, Doherty v. 
 Hill, 144 Mass. 465. 
 
 » Coles V. Trecothick, 9 Ves. 234; Bradford v. Roulston, 8 Ir. C. L. Rep. 
 468; Grimes v. Hamilton Co., 37 Iowa, 290; Bluck v. Gompertz, 7 Exch. 862. 
 
 10 Jenkins v. Harrison, 66 Ala. 345; Thayer v. Luce, 22 Ohio St. 62; 
 Gale v. NiKon, 6 Cow. 445; Phillips v. Ocmulgee Mills, 55 Ga. 633. 
 
 11 Williams v. Bacon, 2 Gray, 387; Heideman v. Wolf stein, 12 Mo. App. 
 366. 
 
 12 Reed, Stat. Frauds, § 357. 
 
 13 Raubetsohek v. Blank, 80 N. Y. 478; Irwin v. Irwin, 34 Pa. St. 625; 
 Wiley V. Mullins, 22 Ark. 394; Blackburn v. Blackburn, 8 Ohio, 81; Bent 
 V. Smith, 22 N. J. Eq. 560. 
 
538 THE LAW OF EVIDENCE. § 431 
 
 purport to he an agreement, nor need it be executed for the purpose 
 of creating or recognizing a liability. If it is delivered and ac- 
 cepted by the other party, it may suffice.^* Indeed, it has frequently 
 been held that such a memorandum may be binding within the 
 statute, although it disclaims all liability." And letters addressed 
 to third persons stating the terms of the contract may be sufficient 
 evidence to satisfy the statute.^* The memorandum need not he a 
 formal instrument, but may exist in almost any form, provided it 
 contains the signature of the party or parties to be charged, and the 
 terms of the agreement.^^ The entire memorandum need not he 
 contained in a single writing, but may consist of several, provided 
 they so refer to each other that parol evidence is not necessary to 
 show the relation between them.^* 
 
 § 431 (434). Subsequent modification by parol — Fraud — Mis- 
 take. — Under another head it will be seen that the statute of 
 frauds does not stand as an imperative bar to the subsequent parol 
 rescission or change of agreements within its terms.^' The courts 
 have held, with much less difficulty and reluctance, that the statute 
 of frauds can not stand in the way of oral proof of fraud, when it 
 
 i*Shippey v. Derrlson, 5 Esp. 190; Thayer v. Luce, 22 Ohio St 62; Ellis 
 V. Deadman, 4 Bibb (Ky.) 466. 
 
 16 Bailey v. Sweeting, 9 C. B. N. S. 843; Shlppey v. Derrison, 5 Esp. 
 190; Buxton v. Rust, L. R. 7 Exch. 279; Townsend v. Hargraves, 118 Mass. 
 325. 
 
 "Moss V. Atkinson, 44 Cal. 3; Wright v. Cobb, 5 Sneed (Tenn.) 143; 
 Wood V. Davis, 82 111. 311; Moore v. Mountcastle, 61 Mo. 424. 
 
 1' A receipt containing the terms of the agreement was received In 
 Raubetschek v. Blank, 80 N. Y. 478; a telegram in North v. Mendel, 73 
 Ga. 400, 54 Am. Rep. 879; Brewer v. Horst-Lachmund Co., 127 Cal. 643, 
 60 Pac. 418, 50 L. R. A. 240 and full note; Little v. Dougherty, 11 Colo. 
 103, 17 Pac. 292; and mere written offer with proof of acceptance in 
 Argus Co. v. Albany, 55 N. Y. 495; Western Union Co. v. Chicago 
 Ry. Co., 86 111. 246; letters. Miller v. Kansas City, Ft. S. & M. R. Co., 
 58 Kan. 189, 48 Pac. 853; resolution by corporation, Western Timber 
 Co. v. Kalama River Lumber Co. (Wash.), 85 Pac. 338; UUsperger v. 
 Meyer, 217 111. 262, 75 N. B. 482. 
 
 18 Raubetschek v. Blank, 80 N. Y. 478; Boydell v. Drummond, 11 East, 
 142; Hawkinson v. Harmon, 69 Wis. 551; Peck v. Vandemark, 99 N. Y. 
 29; Hollis v. Burgess, 37 Kan. 487; Tice v. Freeman, 30 Minn. 389; 
 Peycke v. Ahrens, 98 Mo. App. 456, 72 S. W. 151; Halsell v. Renfrew, 14 
 Okl. 674, 78 Pac. 118; American Oak Leather Co. v. Porter, 94 la. 117, 62 
 N. W. 658; Elbert v. Los Angeles Gas Co., 97 Cal. 244, 32 Pac 9; Cobb 
 V. Glenn Boom & L. Co. (W. Va.), 49 S. E. 1005. Lerned v. Wajine- 
 macher, 9 Allen, 412; Peabody v. Speyers, 56 N. Y. 230. 
 
 i» See § 444 infra. 
 
§ 432 STATUTE OF FRAUDS. 539 
 
 is charged. It has been said to be "absurd that a statute made to 
 prevent frauds shall be made a handle to support them. ' ' ^ For 
 example, parol evidence may be received to prove that a conveyance 
 or other contract has been obtained by fraud,^* or that the wrong 
 boundaries have been pointed out in the sale of land.*" So where 
 there was an oral agreement to make an absolute conveyance, and a 
 further one that the grantee should execute a defeasance, the court 
 compelled the grantee to execute the full agreement, when he, hav- 
 ing received the conveyance, relied on the statute and refused to 
 execute the defeasance.''^ Under another heading the rule has been 
 discussed that in equitable proceedings it may be shown by parol 
 that by reason of a mistake, surprise or fraud, a written contract 
 fails to state the actual agreement between the parties."* Many of 
 the illustrations there given show that the rule applies as well when 
 the contract is one which by the statute of frauds is required to be 
 in writing. 
 
 § 432 (435). Reformation — Part performance. — The court may, 
 in a proper proceeding, thus correct and reform such instruments as 
 those just mentioned either by striking out terms or clauses improp- 
 erly contained in the writing, or by adding others which, according 
 to the real agreement, belong there."" But the mere refusal to carry 
 out an oral agreement, otherwise defective under the statute of 
 frauds, is not a ground of action ; and oral evidence is not rendered 
 admissible to prove such a contract, merely by reason of its breach. 
 There can be no fraud or legal wrong in a breach of trust from 
 which the statute withholds the right of judicial recognition."' It 
 is, however, a well recognized power of the courts of equity to- com- 
 pel the specific performance of a verbal agreement within the stat- 
 
 sopeachy's case (not- reported) Rolls B. T. 1759; Day v. Lown, 51 
 Iowa, 364; Sanford v. Rose, 2 Tyler (Vt.) 428; Lamm v. Homestead Ass'n, 
 49 Md. 233; Ochsenkehl v. JefCers, 32 Mich. 482; 2 Reed, Stat. Frauds, 
 ch. 21. 
 
 21 Thompson v. Mason, 4 Bibb (Ky.) 195; Day v. Lown, 51 Iowa, 364. 
 
 22 Sanford v. Rose, 2 Tyler (Vt.) 428. 
 2»5 Vin. Abr. 523. 
 
 2* See §§ 435 et seq. infra. 
 
 26Beardsley v. Duntley, 69 N. Y. 577; Tilton v. Tllton, 9 N. H. 385; 
 Quinn v. Roath, 37 Conn. 16; Keisselbrack v. Livingston, 4 Johns. Ch. 
 (N. T.) 144; Coles v. Bowne, 10 Paige (N. Y.) 526. See § 437 infra. 
 
 28 Campbell v. Dearborn, 109 Mass. 130; Montacue v. Maxwell, 1 P. 
 Wms. 618; Dumphy v. Ryan, 116 U. S. 491; Scott v. Harris, 113 111. 447; 
 Puaey v. Gardner, 21 W. Va. 469; McClain v. McClain, 57 Iowa, 167; Reed, 
 Stat. Frauds, § 478. 
 
540 THE LAW OF EVIDENCE. § 432 
 
 ute of frauds, where the refusal to execute would be equivalent to a 
 fraud. Although the statute of frauds is binding alike upon courts 
 of law and equity,and although a mere breach of or refusal to exe- 
 cute a parol agreement, not valid according to the statute of frauds, 
 is not a ground for equitable jurisdiction, yet if one party to such 
 an agreement induces the other to partially perform it, and to 
 change materially his situation, the refusal to complete the agree- 
 ment is tantamount to a fraud.^' In such cases where the circum- 
 stances are such that the injured party cannot be restored to his 
 former condition, courts of equity receive parol evidence of the con- 
 tract and of the facts relied on to constitute a partial performance ; 
 and they compel the wrongdoer to perform his agreement, or give 
 compensation in damages.^* A familiar illustration of the part per- 
 formance which will remove an oral contract from the operation of 
 the statute of frauds is when the contract relates to land, and pos- 
 session is taken or valuable improvements are made.^° The proof 
 must show that the possession is pursuant to the contract relied 
 on,'° and it must be notorious and exqlusive.'^ Although the pos- 
 session is generally accompanied by other acts, possession alone is 
 sufficient part performance;^'' although the acts constituting part 
 performance may be proved by parol, such evidence should be clear 
 and convincing." 
 
 CT Attorney General v. Day, 1 Ves. Sr. 218; Williams v. Morris, 95 TJ. S. 
 444; Graham v. Theis, 47 Ga. 479; Sands v. Thompson, 43 Ind. 21; Glass 
 V. Hulbert, 102 Mass. 24; Ham v. Goodrich, 33 N. H. 32; Freeman v. 
 Freeman, 43 N. Y. 34; Horn v. Ludington, 32 Wis. 73; I^odge v. Levei> 
 ton, 42 Tex. IS; Reed, Stat. Frauds, § 550; Browne, Stat. Frauds (5th Ed.), 
 § 437. As to correcting a mutual mistake, see, Butler v. Threlkeld, 117 
 la. 116, 80 N. W. 584. As to what acts constitute part performance, so 
 as to take the contract out of the statute of frauds, see extended notes, 
 53 Am. Dec. 539; 32 Am. Dec. 129; 49 Am. Dec. 325. 
 
 28 See cases last cited. 
 
 ssCummings v. Gill, 6 Ala. 562; Terry v. Resell, 32 Ark. 478; Alderman 
 V. Chester, 34 Ga. 152; McDowell v. Lucas, 97 111. 489; Glass v. Hubert, 
 102 Mass. 24; Miller v. Ball, 64 N. Y. 286; Milliken v. Dravo, 67 Pa. St, 
 230; Smith v. Armstrong, 24 Wis. 446; Reed, Stat. Frauds, §§ 574 et seq. 
 See full note, 3 L. R. A. N. S. 790-817. 
 
 soGorham v. Dodge, 122 111. 528; Brown v. Brown, 33 N. J. Eq. 650; 
 Rlddell V. Ridden, 70 Neb. 472, 97 N. W. 609. 
 
 31 Brown V. Lord, 7 Ore. 302; Moore v. Small, 19 Pa. St. 401; Charpiot 
 V. Slgerson, 25 Mo. 63; Baldwin v. Baldwin (Kan.), 84 Pac. 568. See 
 note, 3 L. R. A. N. S. 813 et seq. 
 
 32 Reed, Stat. Frauds, § 584 and cases cited. 
 
 38Purcen V. Miner, 4 Wall. 513; Worth v. Worth, 84 111. 442; Reese v. 
 Reese, 41 Md. 554; Force v. Dutcher, 18 N. J. Eq. 401; Nlver v. Belknap, 
 
§ 433 STATUTE OP FRAUDS. 541 
 
 § 433 (436). Same — Original agreement must be proved. — Part 
 performance in no way dispenses with the necessity of proving the 
 original agreement. It is not the province of the courts to make con- 
 tracts; and it is a familiar rule that the party who relies on part 
 performance as removing the bar of the statute of frauds must pro- 
 duce definite and convincing proof as to the nature and terms of the 
 oral contract on which he relies.'* The consideration and the sub- 
 ject matter,^" as well as the other terms of the agreement, must be 
 proved by a clear preponderance of testimony in such a manner that 
 the court may know that the minds of the parties have met, and 
 that a definite and complete contract has been made.'" Although 
 acts of part performance may illustrate and indicate the contract, 
 they need not afford complete proof of its terms. It is sufSeient 
 if they are referable to, and consistent with the oral contract.'^ 
 
 2 Johns. 573; Blanchard v. McDougal, 6 Wis. 167; Ackerman V. Fisher, 57 
 Pa. St. 457; Reed, Stat. Frauds, § 637. 
 
 34Kmyon v. Young, 44 Mich. 339; Nicol v. Tackaherry, 10 Grant Ch. 
 109; Smith v. Crandall, 20 Md. 482. 
 
 85 Hart V. Carroll, 85 Pa. St. 508 ; Cooper v. Carlisle, 17 N. J. Bq. 525. 
 
 se Blanchard v. McDougal, 6 Wis. 167; Purcell v. Miner, 4 Wall. 513; 
 Aday v. Echols, 18 Ala. 353; Brewer v. Wilson, 17 N. J. Eq. 180. 
 
 37 Sitton V. Shipp, 65 Mo. 297; Church v. Sterling, 16 Conn. 388; Bard 
 V. Elston, 31 Kan. 274. 
 
CHAPTER 15. 
 
 PAROL EVIDENCE TO EXPLAIN WRITINGS. 
 
 § 434. Parol evidence inadmissible to vary written instruments — Reasons 
 for the ruie. 
 
 435. The rule does not prevent proof of fraud — Sealed and unsealed in- 
 
 struments. 
 
 436. Illegality of contract may be shown — Incapacity. 
 
 437. As to mistakes of fact — Reformation of contracts. 
 
 438. Mistakes as to dates. 
 
 439. Proof of independent or collateral contracts. 
 
 440. Parol evidence when the writing is incomplete. 
 
 441. Sale of personal property. 
 
 442. Parol proof of subsequent agreement. 
 
 443. Same — ^As to specialties. 
 
 444. Subsequent agreement as to contracts within the statute of frauds. 
 
 445. Same — Tendency of decisions in the United States. 
 
 446. To show that instruments apparently absolute are only securities. 
 
 447. Same — ^Real intention of the parties to be ascertained. 
 
 448. Not limited to deeds and mortgages. 
 
 449. Rule as to parol evidence not applicable to strangers to the in- 
 
 strujnent. 
 
 450. Parol evidence to identify the subject matter. 
 
 451. Same — Use of property — Identifying parties. 
 
 452. Same — Further Illustrations — General rule. 
 
 453. Proof of surrounding facts. 
 
 454. Such evidence only received when the language is of doubtful im- 
 
 port. 
 
 455. Proof of meaning of words. 
 
 456. Same — ^Intention — ^Meaning of words and phrases. 
 
 457. Usages of trade. 
 
 458. Same — Principal and agent. 
 
 459. Proof of usage — Bills of lading — ^Insurance. 
 
 460. Same — Contracts for services. 
 
 461. Proof of customs between landlord and tenant — Other contracts. 
 
 462. General requisites of usages — Must be reasonable. 
 
 463. The usage must be an established one. 
 
 464. The usage must be known. 
 
 465. The usage must be consistent with the contract. 
 
 466. Proof that the usage is general. 
 
 467. To admit parol proof the usage must be lawful. 
 
 468. Parol evidence as to the consideration. 
 
 469. Proof of consideration in deeds. 
 
 470. Same — ^In cases of fraud. 
 
5 434 PAEOL EVIDENCE. 643 
 
 § 471. Parol proof as to the execution and delivery. 
 
 472. Parol proof of latent ambiguities. 
 
 473. Parol evidence not allowed in case of patent ambiguities. 
 
 474. Patent ambiguity — ^How ascertained — Inaccuracies. 
 
 475. Parol evidence as to wills — ^In general. 
 
 476. Wills — Parol evidence to identify property. 
 
 477. Wills — Evidence to identify legatee. 
 
 478. The rule where the description is more applicable to one subject 
 
 or person than another. 
 
 479. Wills — Meaning of words and terms — Proof in case of latent am- 
 
 biguity — Dclarations of testator. 
 
 480. Where there la no latent ambiguity, declarations of testator re- 
 
 jected. 
 
 481. Proof of declarations of testator — ^Time of making. 
 
 482. Same — To show mental condition, etc. 
 
 483. Same — Declarations — How limited. 
 
 484. Parol proof of declarations as to revocation — Lost wills. 
 
 485. Parol evidence to explain deeds — Latent ambiguities. 
 
 486. Parol evidence inadmissible to prove reservation. 
 
 487. Parol evidence as to warranties. 
 
 488. Same, continued. 
 
 489. As to deficiency of land in deed. 
 
 490. Parol proof as to acknowledgments. 
 
 491. Parol evidence to explain receipts. 
 
 492. Effect of receipt when not explained. 
 
 493. Warehouse receipts. 
 
 494. Parol evidence as to bills and notes. 
 
 495. Qualifications of the general rule as applied to negotiable paper. 
 
 496. Indorsements on negotiable paper. 
 
 497. Same — Qualifications. 
 
 498. Bills of lading — Contractual stipulations — ^Receipts. 
 
 499. Parol evidence as to mortgages. 
 
 § 434 (437, 438, 439). Parol evidence inadmissible to vary writ- 
 ten instruments — ^Reasons for the rule. — ^There is another ancient 
 rule of evidence of wide application which rests upon the same gen- 
 eral principle as the rule discussed in the last chapter. Parol testi- 
 mony cannot be received to contradict, vary, add to or subtract from 
 the terms of a valid written instrument.^ Mr. Stephen states the 
 
 iTayl. Bv. (10th Ed.), § 1132; Greenl. Bv. § 275. For a general dis- 
 cussion of the admissibility of parol evidence and collection of the au- 
 thorities, see articles by James B. Thayer, 6 Harv. Law Rev. 325, 417. Val- 
 uable notes discussing the general subject of parol proof will be found In 
 11 Am. St. Rep. 394; 53 Am. Dec. 187; 5 Am. Rep. 241; 28 Am. Rep. 210; 6 
 Am. Rep. 678; 1 Am. Deo. 257; 51 Am. Dec. 546; 3 L. R. A. 308, 330, 761, 
 796, 801; 6 L. R. A. 33-47; 13 L. R. A. 621; 17 L. R. A. 270; 56 Am. St Rep. 
 659. A written contract cannot be altered by parol evidence to show that 
 a particiilar ship different from that described In the policy of insurance 
 
544 THE LAW OF EVIDENCE. § 434 
 
 rule more fully and. in mucli more guarded language as follows : 
 "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 
 
 was verbally accepted at the time of the contract, Weston v. Ernes, 1 
 Taunt. 115; that the acceptor of a draft should not be called on to pay, 
 Davis V. Randall, 115 Mass. 547, 15 Am. Rep. 146; that an indorsement 
 of a note In blank was agreed to be without recourse, Martin v. Cole, 104 
 U. S. 30; Thompson v. MoKee, 5 Dak. 172; Knoblauch v. Poglesong, 38 
 Minn. 352 ; Cake v. Pottsville Bank, 116 Pa. St. 164, 2 Am. St. Rep. 600 ; 
 that there was a guaranty of payment, where indorsement was without 
 recourse, Youngberg v. Nelson, 51 Minn. 172; that the date of payment 
 be changed. Wells v. Baldwin, 18 Johns. 45; Wright v. Taylor, 9 Wend. 
 538; Hoare v. Graham, 3 Camp. 57;Besant v. Cross, 10 C. B. 895; Hanson 
 V. Stetson, 5 Pick. 506; Van Syckle v. Dalrymple, 32 N. J. Eq. 233; Spring 
 V. Lovett, 11 Pick. 416; that the mode of payment be changed, Stull v. 
 Thompson, 154 Pa. St. 43; that payment should be made out of a particu- 
 lar fund, Campbell v. Hodgson, Gow. 74; or out of the profits of a busi- 
 ness, Smith V. Kemp, 92 Mich. 357; or on a contingency, Abrey v. Crux, 
 L. R. 5 C. P 37; Rawson v. Walker, 1 Stark, 361; Adams v. Wordley, 1 
 M. & W. 374; Erwin v. Saunders, 1 Cow. 249, 13 Am. Dec. 520; Hunt v. 
 Adams, 7 Mass. 518; that a certificate of deposit should bear interest, Reed 
 V. Bank of Attica, 124 N. Y. 671; that an agreement to pay might be re- 
 voked by giving notice, Wemple v. Knopf, 15 Minn. 446, 2 Am. Rep. 147; 
 that an obligor on a bond or indemnity should not be liable thereon, Cowel 
 V. Anderson, 33 Minn. 374; that a promissory note was Intended as o mere 
 receipt, Phillips v. Jarvis, 19 Wis. 204; that articles not described in a 
 contract of sale might be included, Osbom v. Hendrickson, 7 Cal. 282; 
 Angomar v. Wilson, 12 La. An. 857; that an agreement contemplated a 
 line of railroad already established, where the contract to convey read 
 "as It should be laid out," Applegate v. B. & S. W. Ry. Co., 41 Iowa, 211; 
 that timber should be cut by a certain time, where the contract provided 
 a reasonable time, Jenkins v. Sykes, 19 Pla. 148; that the risk under an 
 insurance policy was not to commence until the vessel reached a certain 
 point, Kaines v. Knightly, Skin. 54 ; that there were other exceptions than 
 those stated, Hovey v. Newton, 7 Pick. 28; that there was a prior or con- 
 temporaneous warranty not expressed in the contract, see § 441 infra and 
 cases cited; that a sale was for an agreed price, where the agreement is 
 for cost price or current rates, Sharp v. Radebaugh, 70 Ind. 547; that 
 goods might be delivered in parcels where the agreement was to deliver 
 a gross amount, Baker v. Higgins, 21 N. Y. 397; that credit was Intended, 
 where the contract fixes no time of payment. Ford v. Yates, 2 Man. & G. 
 549 ; that the seller agreed to furnish* the buyer the money with which 
 to buy, Snyder v. Koons, 20 Ind. 389; that an unconditional contract of 
 sale was intended as a bailment, Allen v. Bryson, 67 Iowa, 591; that a 
 condition was intended, Daly v. Kimball, 67 Iowa, 132; that inconsistent 
 conditions were intended in a deed, see §§ 485 et seg. infra; that omis- 
 sions were made in a will, Abercromble v. Abercrombie, 27 Ala. 489; 
 see § 475 infra; that the testator by the word "children" meant "illegiti- 
 
§ 434 PAEOL EVIDENCE. 545 
 
 documents, no evidence may be given of such judgment or proceed- 
 ing, 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 contained. Nor may the contents of any 
 such document be contradicted, altered, added to or varied by oral 
 evidence." ' It is hardly necessary to cite authorities in support of 
 the general rule above stated as it is recognized in nearly all the 
 cases hereafter cited in this chapter. The numerous exceptions and 
 qualifications which limit the rule will appear in the discussion that 
 follows. If the rule were strictly applied to those writings which 
 are incomplete, informal or transitory in their character, it might 
 be deemed unreasonably rigid and harsh, but there can be no such 
 criticism of the rule when applied to those more solemn documents 
 in which parties have made a distinct and complete memorial of 
 their agreement. In such cases it is impliedly, if not expressly, 
 agreed that, in the event of misunderstanding, the document shall 
 be taken as the best evidence of their intention. For many reasons , 
 such written instruments deliberately agreed to by the parties must 
 be deemed better evidence than the "uncertain testimony of slip- 
 pery memory." It is but a corollary of the main proposition that, 
 where there is no imperfection or ambiguity in the language of a 
 contract, it will be deemed to express the entire and exact meaning 
 of the parties, — that every material part of the contract is therein 
 expressed.^ On the same principle all conversations and parol 
 agreements between the parties prior to the written agreement are 
 so merged therein that they cannot be given in evidence for the pur- 
 mate children," Slaerman v. Angel, 1 Bailey Eq. (S. C.) 351; that there 
 Is a mistake In a will as to the description of land, Punk v. Davis, 103 
 Ind. 281; see §§ 475 et seq. infra; that there was a warranty that premises 
 were In good repair, there being a written lease, Naumberg v. Young, 44 
 N. J. L. 331, with full discussion of the rule. Parol evidence cannot be 
 given to contradict a legal presumption. Central Ry. Co. v. Hasselkus, 91 
 Ga. 382; Schultz v. Plankington Bank, 141 111. 116; or to change the legal, 
 effect of a written contract, Thompson v. Phelan, 22 N. H. 339; Barringer 
 V. Sneed, 3 Stew. (Ala.) 201, 20 Am. Dec. 74; Simpson v. Henderson, 1 
 Moody & M. 300. 
 
 2 Staph. Bv. art. 90. 
 
 8 Preston v. Mercean, 2 W. Black. 1249 ; Adams v. Wordley, 1 M. & W. 
 374; Bayard v. Malcolm, 1 Johns. 453; Glendale Woolen Co. v. Protection 
 Ins. Co., 21 Conn. 19, 54 Am. Dec. 309; Boorman v. Jenkins, 12 Wend. 
 566, 27 Am. Dec. 158; Whitworth v. Brown, 85 Wis. 375; Packer v. Rob- 
 erts, 140 111. 671; Culver v. Wilkinson, 145 U. S. 205; Rigdon v. Conley, 
 145 lU. 565; National Gas. Co. v. Bixby, 48 Minn. 323. 
 
 35 
 
546 THE liAW OF EVIDENCE, § 435 
 
 pose of changing the contraxjt or showng an intention or imdeir- 
 standing different from that expressed in the written agreement.* 
 It is a principle, to which we shall frequently have occasion to al- 
 lude, that, "in order to exclude oral evidence of a contract, it must 
 he first estalUshed that there is a subsisting written contract be- 
 tween the parties; and where the immediate issue is whether there 
 is or was a writing covering the contract, it is not competent 
 to exclude oral testimony bearing on that issue upon an, assumption 
 of such writing. To do so is to beg the question." " 
 
 § 435 (440). The rule does not prevent proof of fraud — Sealed 
 and unsealed instruments. — ^It may always be shown that the doc- 
 ument in question never had any legal existence. On this ground 
 rests the very important exception that duress or fraud in the incep- 
 tion of the contract may be proved, although accompanied by the 
 most solemn formalities. Such proof does not recognize the contract 
 as ever existing as a valid agreement, and is received, from the ne- 
 cessity of the case, to show that that which appears to be a contract 
 is not and never was a contract.* If the fraud is clearly proven, one 
 
 *DeWItt v. Berry, 134 U. S. 306; Cole v. Spann, 13 Ala. 537; Dean v. 
 Mason, 4 Conn. 428, 10 Am. Dec. 162; Logan v. Bond, 13 Ga. 192; Taylor 
 V. Davis, 82 Wis. 455; Savercool v. Farwell, 17 Mich. 308; Hemdon 
 V. Henderson, 41 Miss. 584; Cox v. Bennet, 13 N. J. L. 165; Societa v. 
 Sulzor, 138 N. Y. 468; Wallcer v. Engles, 30 Mo. 130; Beall v. Fisher, 95 
 Cal. 568; Cook v. First Nat. Bank, 90 Mich. 214; Smith v. Hlgbee, 12 Vt. 
 113; Watson v. Roods, 30 Neb. 264; Chadwiok v. Perkins, 3 Me. 399; 
 Downie v. White, 12 Wis. 176, 78 Am. Dec. 731; Cincinnati Ry. Co. v. 
 Pearce, 28 Ind. 502; Gelpcke v. Blake, 15 Iowa, 387, 83 Am. Dec. 418; 
 Bedford V. Flowers, 11 Humph. (Tenn.) 242; Ellmaker v. Franklin Fire 
 Ins. Co., 5 Pa. St. 183; Pllmer v. State Bank, 16' Iowa, 321. The same rule 
 has been held to apply although the written agreement is lost and must 
 itself be proved by parol, Nicholson v. Tarpey, 89 Cal. 617. Letters can- 
 not be received to change a contract subsequently made. Gage v. Phillips, 
 21 Nev. 150. 
 
 BBenJ. Sales § 232, note; Kalamazoo Works v. Macalister, 40 Mich. 84; 
 Thomas v. Barnes, 156 Mass. 581; Edwards Lumber Co. v. Baker, 3 N. 
 Dak. 170; Bank of British N. America v. Cooper, 137 U. S. 473. 
 
 eWaddell v. Glassell, 18 Ala. 561, 54 Am. Dec. 170; Bottomley v. United 
 States, 1 Story, 135; Gatling v. Newell, 9 Ind. 572; Hamilton v. Conyers, 
 28 Ga. 276; Akin v. Drummond, 2 La. An. 92; Parrell v. Bean, 10 Md. 217; 
 Holbrook v. Bart, 22 Pick. 546; Sanford v. Handy, 23 Wend. 260; Hunter 
 V. Bilyen, 30 111. 228; Razor v. Razor, 39 111. App. 527, 142 111. 375; Balti- 
 more Steamboat Co. v. Brown, 54 Pa. St. 77; Stark v. Littlepage, 4 Rand. 
 (Va.) 368; Isenhoot v. Chamberlain, 59 Cal. 630; Vicluiair v. Trosclair, 45 
 La. An. 373; Benicia Works v. Estes (Cal.), 32 Pac. 938; Thomas v 
 Scutt, 127 N. Y. 133; Lilienthal v. Herren, 42 Wash. 209, 84 Pac. 829. See 
 note, 6 L. R. A. 45. 
 
§ 435 PAROL EVIDENCE. 547 
 
 of the essential elements of the contract — consent — ^is wanting. 
 Thus, it may be proved by parol that any material part of the 
 contract was fraudulently omitted or inserted by the other party f 
 or that it was fraudulently misread to one not able to read, and that 
 he was thus induced .to give his signature f or that a part of the 
 contract was not reduced to writing because of the fraud of one of 
 the parties, in which ease the whole transaction is open to explana- 
 tion by parol evidence." For the purpose of proving the fraud, 
 verbal statements which are material and fraudulent, although made 
 before or at the same time with the written agreement, may be 
 proved. In such case the rule that prior negotiations are merged 
 in the written agreement does not apply.^° No rule is better settled 
 than this, — ^where fraud is alleged, a very broad range.is given to the 
 testimony. This is perhaps most often illustrated in those cases 
 where creditors attack transfers of property alleged to he fraudu- 
 lent. In such cases any secret agreement or trust may be shown by 
 them, although directly contradicting the face of the conveyances. 
 The consideration may be inquired into,^* the purpose and object of 
 mortgages or assignments may be shown,^' and generally the entire 
 transaction may be investigated. Again in actions upon a written 
 contract brought by one of the contracting parties against the other, 
 the rule under discussion is constantly invoked; and parties are 
 allowed to prove fraudulent representations or conduct which 
 formed an inducement to the contract. But in such cases the evi- 
 dence should be strong and clear; and the written contract should 
 
 1 See cases last cited. 
 
 8 McKesson v. Sherman, 51 Wis. 303; Kranlch v. Sherwood, 92 Mich. 
 397; Gross v. Drager, 66 Wis. 150, where the person could not read Eng- 
 lish. 
 
 sPhyfe V. Wardell, 2 Edw. Ch. (N. Y.) 47; Elliott v. Connell, 13 Miss. 
 91; Kennedy v. Kennedy, 2 Ala. 571; Blanchard v. Moore, 4 J. J. Marsh, 
 (Ky.) 471; Wesley v. Thomas, 6 Harr. & J. (Md.) 24; Chetwood v. Brit- 
 tain, 2 N. J. Bq. 438. 
 
 10 Prentiss v. Russ, 16 Me. 30; Mallory v. Leach, 35 Vt. 156, 82 Am. 
 Dec. 625; Holbrook v. Burt, 22 Pick. 546; Scrogin v. Wood, 87 Iowa, 497; 
 Dano V. Sessions, 65 Vt. 79; Hick v. Thomas, 90 Cal. 289; Tinsley v. 
 Jemison, 74 Fed. 177; Johnson v. Cummings, 12 Colo. App. 17, 55 Pac. 
 269; Leicher v. Keeney, 98 Mo. App. 394, 72 S. W. 145; Equitable Trust 
 Co. V. Milllgan, 31 Ind. App. 20, 65 N. E. 1044. In State v. Cass, 52 N. J. 
 L. 77, evidence of fraudulent representations was received, although there 
 was also a written warranty. 
 
 "Gray v. Handkinson, 1 Bay (S. C.) 278; Adams v. Wylie, 1 Nott & 
 McC. (S. 0.) 70. 
 
 12 Winner v. Hoyt, 66 Wis. 227, 57 Am. Rep. 257. 
 
548 THK LAW OP EVIDENCE. § 436 
 
 not be impeached or changed, unless it appears that one of the par- 
 ties was fraudulently misled or deceived. The rule which prefers 
 written in unwritten evidence does not so apply as to exclude the 
 latter, when its object is to prove that the former had been fraud- 
 ulently obtained, and thereby to avoid the contract evidenced by it, 
 or to secure indemnity to the party injured.^' Thus, in actions for 
 fraudulent representations on sales of chattels, or in defenses on the 
 ground of fraud, other representations than those contained in the 
 written agreement may be received ; ^* and the same rule applies to 
 contracts respecting the sale of lands.^' It was formerly held that, in 
 an action on a specialty, fraud could not be given in evidence as a 
 defense, unless it went to the very execution of the instrument. Al- 
 though it might be proved that the contract was falsely read or that 
 the party was deceived as to the nature of the instrument," yet it 
 coald not be proved that the contract was procured by false repre- ' 
 sentations as to other material f acts.^^ But later cases have applied 
 the general rule to contracts under seal, and have held in such cases 
 that false representations, material to the contract, may be shown 
 as a defense in courts of equity or of law.^' 
 
 § 436 (441). Illegality of contract may be shown — ^Incapacity. 
 — Since it may always be shown that the document in question nev- 
 er had legal existence, it follows that it may be shown to be tainted 
 
 isCozzens v. Wbltaker, 3 Stew. & P. (Ala.) 329; Beecker v. Vrooman, 
 13 Johns. 302; Johnson v. Miln, 14 Wend. 195; Tayloe v. Riggs, 1 Peters, 
 591; State v. Perry, 1 Wright (Ohio) 662. 
 
 "Cozzens v. Whitaker, 3 Stew. & P. (Ala.) 329; McParlane v. Moore, 
 1 Overt. (Tenn.) 174, 3 Am. Dec. 752; Fleming v. Slocum, 18 Johns. 403, 
 9 Am. Dec. 224. 
 
 15 Monell V. Golden, 13 Johns. 395, 7 Am. Dec. 390 ; Russell V. Rogers, 15 
 Wend. 351; Johnson v. Cummings, 12 Colo. App. 17, 55 Pac. 269. 
 
 16 Thoroughgood's Case, 2 Coke, 4; Greenfield's Estate, 14 Pa. St. 489; 
 Jackson v. Hayner, 12 Johns. 469; Farmers & Mechanic's Bank v. Whin- 
 field, 24 Wend. 419; Anthony v. Wilson, 14 Pick. 303; Chestnut Hill 
 Reservoir Co. v. Chase, 14 Conn. 123; Franohot v. Leach, 5 Cow. 506; Dale 
 V. Roosevelt, 5 Johns. Ch. (N. Y.) 174; Schuylkill County v. Copley, 67 Pa. 
 St. 386. As to subsequent modification of specialty by parol, see § 443 
 infra. 
 
 17 Vrooman v. Phelps, 2 Johns. 177; Stevens v. Judson, 4 Wend. 471; 
 Burrows v. Alter, 7 Mo. 424; Hartshorne v. Day, 19 How. 211; Taylor v. 
 King, 6 Munf. (Va.) 358, 8 Am. Dec. 746; Franchot v. Leach, 5 Cow. 506; 
 Parker v. Parmele, 20 Johns. 130, 11 Am. Dec. 253; Dale v. Roosevelt, 9 
 Cow. 307. 
 
 18 Partridge v. Messer, 14 Gray, 180; Holt v. Holcomb, 23 N. H. 535; 
 Chew V. Moffett, 6 Munf. (Va.) 120; Tomlinson v. Mason, 6 Rand. (Va.) 
 169; Phillips v. Potter, 7 R. 1. 289, 82 Am. Dec. 598; Hartshorne v. Day, 
 
§ 436 PAROL EVIDENCE. 549 
 
 with illegality.*' In such case the court will go behind the appar- 
 ently valid written instrument, and deal with the transaction on its 
 merits ; and it is immaterial whether the illegality of the instrument 
 is created by the statute, or whether it is immoral, or in some other 
 way contravenes the general policy of the law. Under such circum- 
 stances the parol agreement cannot be said to be merged in the pre- 
 tended written agreement, for it is only by virtue of its superior ob- 
 ligation that a written contract has the effect of extinguishing the 
 verbal contract upon which it is founded; and of course when it has 
 no obligation, it can have no such effect. '^^^ On the same general 
 principle under discussion it may be shown by parol that the appar- 
 ent written contract has no legal existence by reason of the incapac- 
 ity of the party to make a contract.*" 
 
 19 How. 222; Hazard v. Irwin, 18 Pick. 95; Johnson v. Miln, 14 Wend. 195, 
 by reason of statute. 
 
 19 As that the contract is usurious, Fenwick v. Ratcliff. 6 T. B. Mon. 
 (Ky.) 154; Newsom v. Thlghen, 30 Miss. 414; Ferguson v. Sutphen, 8 111. 
 547; Roe v. Kiser, 62 Ark. 92, 34 S. W. 534, 54 Am. St. Rep. 288; Cham- 
 berlain V. McClurg, 8 Watts & S. (Pa.) 31; Hammond v. Hopping, 13 
 Wend. 505; or champertous, Martim v. Clarke, 8 R. I. 389, 5 Am. Rep. 
 586; or that a lease was for an unlawful purpose, Sherman v. Wilder, 106 
 Mass. 537; or that the contract was in furtherance of an adulterous inter- 
 course. Succession of Fletcher, 11 La. An. 59; or in restraint of trade, 
 Detroit Salt. Co. v. Nat. Salt Co., 134 Mich. 103, 96 N. W. 1; or for com- 
 pounding a felony. Dale v. Roosevelt, 9 Cow. 307; Inhabitants of Worces- 
 ter V. Eaton, 11 Mass. 368; or for suppressing evidence on a criminal 
 prosecution. Dale v. Roosevelt, 9 Cow. 307; or for the sale of an offlce, 
 Dale V. Roosevelt, 9 Cow. 307; or for money won at play. Pope v. St. 
 Leger, 5 Mod. 3; Wheeler v. Metropolitan Stock Exch., 72 N. H. 315, 56 
 Atl. 754; or for any other contract forbidden by statute or common law, 
 Bank of United States v. Owens, 2 Peters, 527; Roby v. West, 4 N. H. 
 285, 17 Am. Dec. 423; Pettit v. Pettit, 32 Ala. 288; Chandler v. Johnson, 
 39 Ga. 85; Sherman v. Wilder, 106 Mass. 537; Snyder r. Willey, 33 Mich. 
 483; Lindsay v. Smith, 78 N. C. 328; Shackell v. Rosier, 2 Bing. N. C. 634. 
 
 18a Lear V. Yarnel, 3 Marsh. (Ky.) 421; Kranich v. Sherwood, 92 Mich.397. 
 
 20 As where he was intoxicated, Barrett v. Buxton, 2 Aik. (Vt.) 167; 
 Prentice v. Achorn, 2 Paige Ch. (N. Y.) 30; Taylor v. Purcell, 60 Ark. 
 606, 31 S. W. 567; Reynolds v. Dechayma, 24 Tex. 174, 76 Am. Dec. 101; 
 insane or otherwise mentally incompetent. Den v. Clark, 10 N. J. L. 217; 
 Grant V. Thompson, 4 Conn. 203, 10 Am. Dec. 119; Jackson v. King, 4 
 Cow. 207, 15 Am. Dec. 354; Mitchell v. Kingman, 5 Pick. 431; Rice v. 
 Peet, 15 Johns. 503; Hoder v. Beard, 54 Ohio St. 398, 43 N. E. 1040, 56 Am, 
 St. Rep. 720; or that some legal impediment prevented the making of a 
 binding contract, such as infancy. Van Valkenburgh v. Rourk, 12 Johns. 
 338; Webster v. Woodford, 3 Day (Conn.) 90; Ayers v. Burns, 87 Ind. 
 245, 44 Am. Rep. 759; or coverttire, Dale v. Roosevelt, 9 Cpw. 307; Peltzer 
 
550 THE LAW OP EVIDENCE. § 437 
 
 § 437 (442). As to mistakes of fact— Reformation of contract.— 
 
 One of the well recognized exceptions to the general mle against 
 varying the terms of a written contract by parol evidence is that the 
 rule does not apply in all cases to exclude evidence of mistake of 
 fact. But here no such broad latitude is allowed as in the case of 
 fraud Indeed, the right to vary a written instrument by proof of 
 mistake has often been based solely on the ground that it would 
 operate as a fraud upon the party in the given ease, if the alleged 
 mistake could not be corrected. The question is attended with the 
 least difficulty where actions are brought expressly to reform or cor- 
 rect a written instrument on the ground that a mutual mistake ot 
 fact has been made in reducing it to writing. For the purpose ot 
 reforming or rescinding written agreements on the ground of mu- 
 tual mistake, courts of equity allow full inquiry into all the facts 
 But it is well settled that,, before the writing can be thus changed 
 or reformed, the alleged mistake must le clearly proved by a strong 
 preponderance of evidence." "The jurisdiction to reform written 
 instruments in cases free from fraud is exercised only when the in- 
 strument actually executed differs from what both parties intended 
 to execute and supposed that they were executing or accepting. 
 It is also well settled that where actions are brought to compel a 
 defendant to specifically perform a written contract, parol evidence 
 may be given by him to show that the alleged agreement is not the 
 true agreement, in other words, that by reason of some mistake there 
 was no consent to the apparent agreement.- Under proper plead- 
 
 V. Durham, 37 S. C. 354, 16 S. E. 46; Bradley v. Caswell, 65 Vt. 231, 26 
 
 ^"; Brantley v. West. 27 Ala. 542; Pudge v. Payne, «6J- 30« ^^" 
 
 V Grover, 20 Me. 363; Blanchard v. Moore. 4 J. J. Marsh. (Ky.) 471, Perry 
 
 V PeaTson 1 Humpi. (Tenn.) 431; Van Ness v. City of Washington, 4 
 Peters 432- Gibson v Watts, 1 McCord Ed- (S, C.) 490; Brown v. 
 SSear. 35 Vt. 252; SU^khridge Co. v. Hudson Co.. 102 Mass^4S= J^^^ 
 V. Westchester Ins. Co., 64 N. Y. 453; Tesson y. Atlantic Ins. Co 40 Mo^ 
 Is 93 Am Dec. 293; Lestrade y. Barth, 19 Cal. 660; Newton v Holley 6 
 Wis 59^ Lyma. v.' mica Ins. Co., 17 Johns. 373; Shay - Peters, f f^ 
 360; Edmond's Appeal, 59 Pa. St. 220; Potter v. Potter 27 Ohio St. 84 
 Heavenridge v. Mondy. 49 Ind. 434. See also note. 6 L. R. A. 46. See 
 § 432 supra. 
 
 22 Whittemore v. Farrington. 76 N. Y. 452. 
 
 23 Webster v. Cecil, 30 Beav. 62; Goode v. Riley, 153 Mass 585; Quinn 
 V. Roath, 37 Conn. 16; Best v. Stow, 2 Sandf. Ch. (N. Y.) 298; Coles v. 
 Bowne, 10 Paige (N. Y.) 526; Ryno v. Darby, 20 N. J. Ea^23., Towner v 
 Lucas, 13 Gratt. (Va.) 705; Chambers v. ^ivermore, 15 Mich 381 Cath 
 cart V. Robinson, 5 Peters, 263; Fitschen v. Thomas. 9 Mont 52; Gillespie 
 
§ 438 PAEOti EVIDBNCE. 551 
 
 ings the defendant may have the mistake corrected in the same pro- 
 ceeding by showing the actual agreement; this is especially true 
 in those states where the modem system of pleadings has been 
 adopted.** So in other actions, legal or equitable in their nature, 
 brought on written instruments, either party is at liberty under 
 proper pleadings to prove a ijiistake, and to have reformation of the 
 contract."" In some cases it has been held that such a defense can 
 be proved, though no equitaile relief is asked by the defendant in 
 his pleading."" But in other states a different rule prevails. The 
 question is, however, rather one of pleading than of evidence." Pa- 
 rol evidence may be received in actions at law upon insurance poli- 
 cies to show an omission or insertion made by mistake by the in- 
 sured in the application for insurance, where it is claimed that the 
 insured made true answers and that the agent of the insurance com- 
 pany wrote the answers incorrectly. Such evidence is received on 
 the theory of estoppel."' 
 
 § 438 (443). Mistakes as to dates. — Dates of written instru- 
 ments are, like the consideration, prima facie correct. But the date 
 is treated as one of the mere formal parts of the instrument ; and 
 parol evidence is often admitted to show that, through mistake or 
 some other reason, the date named is incorrect."" The rule that 
 
 V. Moon; 2 Johns. Ch. (N. Y.) 587, 7 Am. Dec. 559 ; Somerville v. Coppage, 
 101 Md. 519, 61 Atl. 318; Welneke v. Deputy, 31 Ind. App. 621, 68 N. B. 921. 
 ' 24 Bradford v. Union Bank, 13 How. 57; Quinn v. Roath, 37 Conn. 16; 
 McCowoas v. Easley, 21 Gratt (Va.) 23; Chambers v. Livermore, 15 Mich. 
 381; Murphy v. Rooney, 45 Cal. 78. 
 
 25 Andrews v. Gillespie, 47 N. Y. 487; Kee v. Davis, 137 Cal. 456, 70 Pac. 
 294; Finishing & Warehouse Co. v. Ozment, 132 N. C. 839, 44 S. E. 681; 
 Knowlton v. Campbell, 48 W. Va. 294, 37 S. E, 581. 
 
 2aDobson v. Pearce, 12 N. Y. 156, 62 Am. Dec. 152; Seely v. Bngell, 13 
 N. Y. 542; New York Ins. Co. v. National Protection Ins. Co., 14 N. Y. 85; 
 Lloyd v. Sandusky, 203 111. 621, 68 N. B. 154. 
 
 27Pollett V. Heath, 15 Wis. 601; Lombard v. Cowham, 34 Wis. 486; Van 
 Horn V. Van Horn, 49 N. J. Bq. 327; Frost v. Brigham, 139 Mass. 43; Van 
 Syckel v. Dalrymple, 32 N. J. Bq. 263. 
 
 28 Moliere v. Pennsylvania Ins. Co., 5 Rawle (Pa.) 342, 28 Am. Dec. 
 675; Manhattan Ins. Co. v. Webster, 59 Pa. St. 227, 98 Am. Dec. 332; North 
 Am. F. Ins. -Co. v. Throop, 22 Mich. 146, 7 Am. Rep. 638; Plumb v. Cat- 
 taraugus Ins. Co., 18 N. Y. 392, 72 Am. Dec. 526 and note; Insurance Co. v. 
 Williams, 39 Ohio St. 584, 48 Am. Rep. 474; Planters' Ins. Co. v. Myers, 
 55 Miss. 479, 30 Am. Rep. 521; Grattan v. Metropolitan L. Ins. Co., 80 N. 
 Y. 281, 36 Am. Rep. 617, 92 N. Y. 274, 44 Am. Rep. 372; McCaJl v. Phoenix 
 Ins. Co., 9 W. Va. 237, 27 Am. Rep. 558. 
 
 20 It may be shown that a note offered in evidence is the one secured 
 by a naortgage, though it vary in date from the description of it given in 
 
552 THE LAW OP EVIDENCE. § 439 
 
 dates are presumed to be correct does not apply where there is rea- 
 son to suspect that the date is false because of collusion. The most 
 common illustration of this is in eases where adultery is the issue, 
 and the dates of letters between the parties become material. In 
 such cases no presumption of correctness should be relied upon, but 
 the dates should be proved to be correct.^" 
 
 § 439 (444). Proof of independent or collateral contracts. — 
 The general rule under discussion is not violated by allowing parol 
 evidence to be given of the contents of a distinct, valid, contempora- 
 neous agreement between the parties which was not reduced to writ- 
 ing, when the same is not in conflict with the provisions of the writ- 
 ten agreement.^^ The exception is thus stated somewhat more 
 guardedly by Mr. Stephen: The parties may prove "the existence 
 of any separate, oral agreement as to any matter on which a docu- 
 ment is silent, and which is not inconsistent with its terms, if, from 
 the circumstances of the case, the court infers that the parties did 
 
 the mortgage, Sweetser v. Lowell, 33 Me. 446; Clark v. Hougtiton, 12 
 Gray, 38; Goddard v. Sawyer, 9 Allen, 78; Partridge v. Swazey, 46 Me. 
 414; that a deed was executed. Miller v. Hampton, 37 Ala. 342; McComh v. 
 Gilkey, 29 Miss. 146; Draper v. Snow, 20 N. Y. 331, 75 Am. Dec. 408; 
 Moore v. Smead, 89 Wis. 558; or delivered, Bruce v. Slemp, 82 Va. 352; 
 Moody V. Hamilton, 22 Fla. 298; Saunders v. BIythe, 112 Mo. 1, 20 S. W. 
 319; Vaughan v. Parker, 112 N. C. 96, 16 S. B. 908, before or after the 
 date stated therein; that a writ bearing date on Sunday was in fact made 
 on a different day, Trafton v. Rogers, 13 Me. 315; that a release was 
 made subsequent to its date, Churchill v. Bailey, 13 Me. 64. Parol evi- 
 dence has been allowed to correct mistakes in the date of letters. Stock- 
 ham V. Stockham, 32 Md. 196; notes, Barlow v. Buckingham, 68 Iowa, 169; 
 wills, Reffel v. Reffel, L. J. 35 P. & M. 121 ; deeds, Harrison v. Trustees of 
 Phillips Academy, 12 Mass. 456; Jackson v. Schoonmaker, 2 Johns. 230; 
 Moore v. Smead, 89 Wis. 558, 62 N. W. 426; and other instruments, Hall 
 V. Cazenove, 4 Bast, 476; Hartsell v. Myers, 57 Miss. 135; Gately v. Irvine, 
 51 Cal. 172; Lambe v. Manning, 171 111. 612, 49 N. E. 509. 
 
 soTrelawney v. Coleman, 2 Stark. 193; Houliston v. Smyth, 2 Car. & P. 
 24 ; Sinclair v. Baggaley, 4 M. & W. 318. 
 
 31 Juilliard v. Chaffee, 92 N. Y. 529; Hahn v. Doolittle, 18 Wis. 196, 86 
 Am. Dec. 757; Willis v. Hulbert, 117 Mass. 151; Naumberg v. Young, 44 
 N. J. L. 331, 43 Am. Rep. 380; Green v. Randall, 51 Vt. 67; Heyworth v. 
 Hutchinson, L. R. 2 Q. B. 447; Bradshaw v. Combs, 102 111. 428; Sutton v. 
 Weber, 127 la. 361, 101 N. W. 775; Bonney v. Morrill, 57 Me. 368; Hersom 
 V. Henderson, 21 N. H. 224, 53 Am. Dec. 185; Lindley v. Lacey, 17 C. B. N. 
 S. 578; Chapin v. Dobson, 78 N. Y. 74, 34 Am. Rep. 512; Morgan v. Griffith, 
 L. R. 6 Exch. 70; Phoenix Co. v. Riverside Co., 54 Minn. 205; Harvey v. 
 Million, 67 Ind. 90; Hubbard v. Marshall, 50 Wis. 322; Shaw v. Mitchell, 
 2 Met. 65; Doty v. Martin, 32 Mich. 462; Coates v. Langston, 5 Md. 121. 
 
§ 440 PAROL EVIDENCE. 553. 
 
 hot intend the document to be a complete and final statement of the 
 whole of the transaction between them." '^ 
 § 440 (445). Parol evidence when the writing is incomplete. — 
 
 The examples given in the notes to the last section were cited more 
 particularly for the purpose of illustrating what the rule is when 
 there is a distinct and independent oral contract. Some of the cases 
 there cited also afford instances of the admission of parol evidence on 
 the ground of the incompleteness of the written contract. "Where a 
 writing, although embodying an agreement, is manifestly incomplete, 
 and is not intended by the parties to exhibit the whole agreement, 
 but only to define some of its terms, the writing is conclusive as far 
 as it goes. But such parts of the actual contract, as are not em- 
 's Steph. Ev. art. 90; Hope v. Balen, 58 N. Y. 380. Parol evidence may 
 be received of a collateral agreement to show that the contract never had 
 any legal existence, Brewster v. Reel, 74 Iowa, 506; see cases cited in 
 §§ 435 et seq. supra; of a contemporaneous agreement by the vendor of 
 property not to carry on a competing business, Fusting v. Sullivan, 41 Md. 
 162; Pierce v. Woodward, 6 Pick. 206 (contra, Smith v. Gibbs, 44 N. H. 
 335; Costello v. Eddy, 128 N. Y. 650); of an agreement of one, not an at- 
 torney, not to charge for certain services performed under a written 
 power of attorney authorizing him to defend a suit, Joannes v. Mudge, 6 
 Allen, 245; of an agreement as to the place of carrying out a contract, 
 the written agreement being silent on that point, Cummings v. Putnam, 
 19 N. H. 569; Musselman v. Stoner, 31 Pa. St. 265; of an oral agreement 
 of an indorser, as between indorser and indorsee, to waive demand and 
 notice, Sanborn v. Southerd, 25 Me. 409, 43 Am. Dec. 288; Fullerton v. 
 Rundlett, 27 Me. 31; Dye v. Scott, 35 Ohio St. 194, 35 Am. Rep. 604; see 
 § 496 infra; of an agreement by all the parties to a note that payment 
 should be demanded of the maker at a particular bank, the note being 
 silent as to the place of payment or demand. Brent's Ex. v. Bank of the 
 Metropolis, 1 Peters, 89 (as to notes and bills in general, see §§ 494 et seq. 
 infra) ; of an agreement by the payee to hold the sureties harmless by 
 paying the note out of a particular fund, Stewart v. Albuquerciue Bank 
 (Ariz.), 30 Pac. 303; of an oral agreement for transportation by a common 
 carrier, though a ticket is given. Van Buskirk v. Roberts, 31 N. Y. 661; of 
 an agreement to pay for property sold by bill of sale iy taking up the 
 vendor's note or acceptance, Lindley v. Lacey, 17 C. B. N. S. 578; or In 
 some other way, Sowers v. Eaenhart, 64 N. C. 96; of an agreement of 
 warranty where the bill of sale is silent on the subject, see discussion 
 and cases, § 441 infra; of an agreement between two endorsers as to the 
 mode of adjusting the loss between them, Phillips v. Preston, 5 How. 278; 
 of an agreement iy a grantor to pay for a sewer in process of construc- 
 tion at the time of the execution of the deed and adjacent to the 
 property sold, Carr v. Dooley, 119 Mass. 294; Cole v. Hadley, 162 Mass. 
 579 ; and of the mode of paying for land, the contract of sale being silent 
 on the subject, Paul v. Owlngs, 32 Md. 402; Sivers v. Slvers, 97 Cal. 518. 
 
554 THE LAW OP EVIDENCE. § 441 
 
 braced within its scope, may be established by parol. " " According 
 to one view the only criterion of the completeness of the writing is 
 the writing itself, at least where there is nothing therein to suggest 
 that it is incomplete.'* In other cases more latitude is allowed in 
 determining this fact in the light of the subject matter and the cir- 
 cumstances.'" If the contract is one required by law to be in writ- 
 ing it must be complete in itself.'" 
 
 § 441 (446). Sales of personal property. — ^It is clear, on princi- 
 ples already stated, that where a written contract for the sale of 
 personal property is manifestly a deliberate and complete contract 
 
 sswood, Ev. § 23; Franklin Co. v. Layman, 145 111. 138; Sheffield v. 
 Page, 1 Sprague (U. S.) 285; Keith v. Kerr, 17 Ind. 284; Taylor v. Galland, 
 3 G. Green (Iowa) 17; Palmer v. Roath, 86 Mich. 602; Moss v. Green, 41 
 Mo. 389; Landt v. Schneider, 31 Mont. 15, 77 Pac. 307; Johnson v. Kin- 
 dred Bank, 12 N. D. 336, 96 N. W. 588; Posha v. O'Donnell, 120 Wis. 336, 
 97 N. W. 924; Webster v. Hodgkins, 25 N. H. 128; Kentucky Cement Co. 
 V. Cleveland, 4 Ind. App. 171; Miller v. Fichthorn, 31 Pa. St. 252; Winn 
 V. Chamberlin, 32 Vt. 318; Gilbert v. Stockman, 76 Wis. 62, 20 Am. St. 
 Rep. 23; Seitz v. Brewers Refrigerating Mach. Co., 141 U. S. 510; Morrison 
 V. Dickey, 119 Ga. 698, 46 S. E. 863; Ebert v. Arends, 190 111. 221, 60 N. B. 
 580; Meader v. Allen, 110 la. 588, 81 N. W. 799; Locke v. Lyon Medicine 
 Co., 27 Ky. L. Rep. 1, 84 S. W. 307; Potter v. Easton, 82 Minn. 247, 84 N. W. 
 1011. For the purpose of completing the contract parol evidence Is admis- 
 sible to show the place where the timber is to be cut, Pinney v. Thomp- 
 son, 3 Iowa, 74; the amount of merchandise to be delivered. Potter v. Hop- 
 kins, 25 Wend. 417;. Norton v. Woodruff, 2 N. Y. 153; the amount of 
 compensation to be paid for services, Sayre v. Wilson, 86 Ala. 151; Guidery 
 V. Green, 95.Cal. 630; the date of delivery, Johnson v. McRary, 5 Jones 
 (N. C.) 369; the omitted terms of a contract which is clearly ambiguous, 
 Hurd V. Bovee, 134 N. Y. 595; Wolfort v. Pittsburg Ry. Co., 44 Mo. App. 
 330; Neal v. Rears, 88 Ga. 298; Paugh v. Paugh, 40 111. App. 143; Martin 
 Cooker Co. v. Olive, 82 Iowa, 122; MacDonald v. Dana, 154 Mass. 152; a 
 verbal acceptance of a written proposal. Pacific Works v. Newhall, 34 
 Conn. 67; where there is a memorandum, to show the entire contract, 
 Mobile Marine Dock Co. v. McMillan, 31 Ala. 711; Kreuzberger v. Wing- 
 field, 96 Cal. 251; the description of stock sold at auction, Hadley v. 
 Clinton Co., 13 Ohio St. 502, 82 Am. Dec. 454. Where there Is a direct 
 reference In the written agreement to an oral contract, the former may be 
 proved by parol, even though the effect is to add material terms to the 
 written instrument, Ruggles v. Swanwick, 6 Minn. 526. 
 
 84 Union Selling Co. v. Jones, 128 Fed. 672 ; Bandholz v. Judge, 62 N. J. 
 L. 526, 41 Atl. 723; Hei v. Heller, 53 Wis. 415, 10 N. W. 620; Case v. 
 Phoenix Bridge Co., 134 N. Y. 78, 31 N. B. 254; Telluride Power Transmis- 
 sion Co. V. Crane Co., 208 111. 218, 10 N. E. 319; Thompson v. Llbby, 34 
 Minn. 374, 26 N. W. 1. 
 
 seWheaton Roller Mill Co. v. Noye Mfg. Co., 66 Minn. 156, 68 N. W. 
 854; Juillard v. Chaffee, 92 N. Y. 529. 
 
 «« Smith V. Mason, 122 Cal. 426, 55 Pac. 143; Henry v. McCardell, 15 
 
§ 441 PAEOL EVIDENCE. 555 
 
 between the parties and there is no claim of fraud or mistake the 
 general rule excluding parol evidence applies in full force." This 
 is clearly the rule when the writing contains a warranty.'^ But, 
 as we have also seen, where the contract is manifestly incomplete, 
 or where an agreement wholly independent of and collateral to the 
 written instrument is entered into, parol evidence is admissible.^" 
 On these grounds, when a bill of sale contains no warranties, it has 
 been held in numerous cases that a parol warranty may be shown.^" 
 These cases rest on the reasoning that such instruments as assign- 
 ments, bills of sale and others of that character do not generally pur- 
 port or attempt to state the entire agreement, but are adapted mere- 
 ly to transfer title in execution of an agreement they do not profess 
 to show; and hence that the writing is not presumed to state the 
 whole contract.*^ Thus, where there was an agreement in writing 
 between the parties for the delivery of machinery at a designated 
 time and place, it was held admissible to show a guaranty that the 
 machinery would do good work.*^ So a parol warranty that a mort- 
 gage security is good, made at' the assignment of the note and mort- 
 
 Tex. Civ. App. 497, 40 S. W. 172; Potter v. Hopkins, 25 Wend. 417; Save- 
 land V. Railway Co., 118 Wis. 267, 95 N. W. 130. 
 
 37 Thomas v. Scutt, 127 N. Y. 133; Kinnard v. Cutter Tower Co., 159 
 Mass. 391; Lllienthal v. Brewing Co., 154 Mass. 185, 26 Am. St. Rep. 234; 
 Willis V. Byars, 2 Tex. Civ. App. 134; American Manfg. Co v. Klarquist, 
 47 Minn. 344; National Casli Register Co. v. Blumenthal, 85 Mich. 464; 
 Rennell v. Kimball, 5 Allen, 356; Exhaust Ventilator Co. v. Chicago Ry. 
 Co., 69 Wis. 454; Epping v. Mockler, 55 Ga. 376; Woodcock v. Parrel, 
 1 Met (Ky.) 437; Picard v. McCormick, 11 Mich. 68; Cushing v. Rice, 
 46 Me. 303, 71 Am. Dec. 579; Rohinson v. McNeil, 51 111. 225; Proctor v. 
 Cole, 66 Ind. 576; Smith v. Deere, 48 Kan. 416. See note 12 L. R. A. 24. 
 
 88 Osborne & Co. v. Wlgent, 127 Mich. 624, 86 N. W. 1022; Wlllard v. 
 Ostrander, 46 Kan. 591, 26 Pac. 1017; Case Thresher Mach. Co. v. Hall, 
 32 Tex. Civ. App. 214, 73 S. W. 835; McQuaid v. Ross, 77 Wis. 470, 46 
 N. W. 892. 
 
 89 See §§ 439 et seq. supra. 
 
 *oHerson v. Henderson, 21 N. H. 224, 53 Am. Deo. 185; Perrine v. 
 Cooley, 39 N. J. L. 449; Pilkins v. Whyland, 24 N. T. 338; Allen v. Pink, 
 4 M. & W. 140; Atwater v. Clancy, 107 Mass. 369; Foot v. Bentley, 44 
 N. T. 166, 4 Am. Rep. 652; Boorman v. Jenkins, 12 Wend. 566, 27 Am. 
 Dec. 158; Harris v. Johnson, 3 Cranch, 311; Irwin v. Thompson, 27 Kan. 
 643; Chapln v. Dobson, 78 N. Y. 74, 34 Am. Rep. 512; Thomas v." Barnes, 
 156 Mass. 581.' See note, 5 Am. St. Rep. 198. 
 
 41 Red Wing Manfg. Co. v. Moe. 62 Wis. 240 ; Hahn v. Doolittle, 18 Wis. 
 196, 86 Am. Dec. 757; Neal v. Flint, 88 Me. 72, 33 AU. 669. See also cases 
 above cited. As to parol proof of warranties not expressed in contracts, 
 see note, 5 Am. St. Rep. 197-199. 
 
 *i Chapln V. Dobson, 78 N. Y. 74, 34 Am. Rep. 512. 
 
556 THE LAW OF EVIDENCE. § Ml 
 
 gage, may be shown.*' It is well settled that a mere receipt or bill 
 of parcels does not give rise to any such presumption.** Where 
 there is a written agreement of sale, parol evidence has been re- 
 ceived to show that the sale was by sample, and that the goods did 
 not compare with the sample, although the contract was silent on 
 this subject.*" But the contrary view is maintained by the greater 
 weight of authority.*" But it has been held in many cases that 
 where the instrument for the sale of personal property seems to be 
 reasonably explicit, and to define the object and to measure the ex- 
 tent of the engagement, the writing will he presumed to contain the 
 entire agreement, and hence that, in the absence of fraud or mis- 
 take, no warranty can be added by parol.*'' But if it does not pur- 
 port to disclose the contract, but is merely the execution of some 
 part or detail of an unexpressed contract, and is the act of one of 
 the parties only in the performance of his promise, the oral agree- 
 ment, as we have already seen, may be shown. 
 
 *8 Hahn v. Doolittle, 18 Wis. 196, 86 Am. Dec. 757. 
 
 "Filkins v. Whyland, 24 N. Y. 338; Bank v. Cooper, 137 TJ. S. 473; 
 Brigg V. Hilton, 99 N. Y. 517; Webster v. Hodgkins, 25 N. H. 128; Smith 
 V. Coleman, 77 Wis. 343; Atwater v. Clancy, 107 Mass. 369. As to order 
 of goods see, Boynton Co. v. Clark, 42 Minn. 335. See § 491 infra. 
 
 *5 Koop V. Handy, 41 Barb. (N. Y.) 454; Boorman v. Jenkins, 12 Wend. 
 566, 27 Am. Dec. 159; Cassidy v. Begoden, 6 Jones & S. (N Y.) 180. 
 
 48 Meyer v. Evertb, 4 Camp. 22; Gardiner v. Gray, 4 Camp. 144; Weiner 
 V. Whipple, 53 Wis. 298, 40 Am. Rep. 775; Harrison v. McCormlck, 89 Cal. 
 327, 23 Am. St. Rep. 469; Thompson v. Libby, 34 Minn. 374; Dowaglac 
 Mfg. Co. V. Mahon, 13 N. D. 516, 101 N. W. 903; Thomas v. Gortner, 73 
 Md. 474, 21 Atl. 371. 
 
 47 Reed v. Van Ostrand, 1 Wend. 424, 19 Am. Dec. 529; Bnglehorn v. 
 Reitlinger, 122 N. Y. 76; Reed v. Wood, 9 Vt. 285; Mast v. Pearce, 58 
 Iowa, 579, 43 Am. Rep. 125 and note; Willard v. Ostrander, 46 Kan. 591; 
 Lamb v. Crafts, 12 Met. 353; Hills v. Farmington, 70 Conn. 450, 39 Atl. 
 795; Barrie v. Smith, 105 Ga. 34, 31 S. B. 121; Bhrsam v. Brown, 64 Kan. 
 466, 67 Pac. 867; McCray R. & C. S. Co. v. Woods, 99 Mich. 269, 58 N. W. 
 320; Quinn v. Moss, 45 Neb. 614, 63 N. W. 931; Shepherd v. Gilroy, 46 
 Iowa, 193; Rice v. Porsythe, 41 Md. 389; Frost v. Blanchard, 97 Mass. 155; 
 Thompson v. Libby, 34 Minn. 374; Linsley v. Lovely, 26 Vt. 120; DeWitt v. 
 Berry, 134 U. S. 306; Mirriam v. Field, 24 Wis. 640; Milwaukee Boiler Co. 
 V. Duncan, 87 Wis. 120, 41 Am. St. Rep. 33; Smith v. Williams, 1 Murph. 
 (N. C.) 426, 4 Am. Dec. 564; Telluride Power Trans. Co. v. Crane Co., 208 
 111. 218, 70 N. B. 319; Neal v. Flint, 88 Me. 72, 33 Atl. 609; Kemmer v. 
 Dubuque T. & R. Mills Co. (Neb.), 93 N. W. 938. See further citations, 
 9 Bncyc. of Bv. 484-485. This is clearly the rule, when the instrument 
 contains a warranty, De Witt v. Berry, 134 TJ. S. 312; McQuaid v. Ross, 
 77 Wis. 470; Cosgrove v. Bennett, 32 Minn. 371; Johnson v. Latimer, 71 
 Ga. 470; Shepherd v. Gilroy, 46 Iowa, 193. 
 
§ 442 PAROL EVIDENCE. 557 
 
 § 442 (447). Parol proof of subsequent agreement. — The gen- 
 eral rule under discussion does not prevent the proof of ' ' the exist- 
 ence of any distinct, subsequent, oral agreement to rescind or mod- 
 ify any such contract, grant or disposition of property, provided 
 that such agreement is not invalid under the statute of frauds or 
 otherwise. ' ' ^' The general rule does not purport to exclude nego- 
 tiations respecting written contracts, unless they are prior to or con- 
 temporaneous with the making of the written instrument, and in a 
 great variety of eases it has been held admissible to prove by parol a 
 subsequent modification or discharge. For example, it is admissible 
 to show by parol that the written contract has been abandoned ex- 
 cept in so far as it has been modified by a new parol agreement;*" 
 that the time or place of payment or of performance of the contract 
 has been changed f that performance has been prevented or waived 
 by the other, party,''^ or that the contract has been wholly dli.s- 
 charged.^^ It is no objection to the competency of such testimony 
 that the parol agrement is made soon after the written one, but it 
 must clearly appear to be subsequent to it, and, if this is left in 
 doubt, it will be presumed to be merged in the written agreemnt" 
 
 48 Steph. Ev. art. 90 p. 163; Goss v. Lord Nugent, 5 Bam. & Add. 58; 
 Homer v. Life Ins. Co., 67 N. Y. 478; Kennebec Co. v. Augusta Ins. Co., 
 6 Gray, 204; Piatt's Adm. v. United States, 22 Wall. 496; Allen v. Sowerby, 
 37 Md, 410; White v. Soto, 82 Cal. 654; Smith v. Lilley, 17 R. I. 119; 
 Prick Co. V. Western Mill Co., 51 Kan. 370; Bannon v. Aultman, 80 Wis. 
 307, 27 Am. St. Rep. 37; LePevre v. LePevre, 4 Serg. & R. (Pa.) 241, 8 
 Am. Bee. 696; Cummings v. Arnold, 3 Met. 486, 37 Am. Dee. 155; Morgan 
 V. Butterfield, 3 Mich. 623; JuUiard v. Chaffee, 92 N. Y. 529; McCauley v. 
 Keller, 130 Pa. St. 53, 17 Am. St. Rep. 758; Dunklee v. Goodenough, 69 Vt. 
 113, 34 Atl. 427. 
 
 loWilley v. Hall, 8 Iowa, 62; Chiles v. Jones, 3 B. Mon. (Ky.) 51; Raf- 
 fensberger v. Cullison, 28 Pa. St. 246; Bryan v. Hunt, 4 Sneed (Tenn.) 
 543, 70 Am. Dec. 262; Toledo Ry. Co. v. Levy, 127 Ind. 168; Graham v. 
 Houghton, 153 Mass. 384; Harris y. Murphy, 119 N. C. 34, 25 S. E. 708, 
 56 Am. St. Rep. 656. 
 
 60 Keating v. Price, 1 Johns. Cas. (N. Y.) 22, 1 Am. Dec. 92; Prost v. 
 Everett, 5 Cow. 497; Franklin v. Long, 7 Gill & J. (Md.) 407; Robinson 
 V. Batchelder, 4 N. H. 45; Niel v. Cheves, 1 Bailey (S. C.) 537; Stallings 
 V. Gottschalk, 77 Md. 429; Baker v. Whitesides, Breese (IlL) 174, 12 Am. 
 Dec. 1G8; Strauss v. Gross, 2 Tex. Civ. App. 432. See note, 56 Am. St 
 Rep. 664 et seq. 
 
 61 Medomak Bank v. Curtis, 24 Me. 36. 
 
 52 Law V. Treadwell, 12 Me. 441; Bailey v. Johnson, 9 Cow. 119; Brwin 
 V. Saunders, 1 Cow. 250, 13 Am. Dec. 520; Trumbo v. Cartwright, 1 Marsh. 
 (Ky.) 582; Bryant v. Thesing, 46 Neb. 244, 64 N. W. 967. 
 
 53 Brewster v. Countryman, 12 Wend. 446; Richardson v. Hooper, 13 
 Pick. 446. 
 
558 THE LAW OF EVIDENCE. § 443 
 
 It is not necessary to the admission of this kind of testimony that 
 any new consideration be proved. "The same consideration which 
 existed for the old agreement is imported into the new agreement 
 which is substituted for it."°* This subject gives little difdeulty 
 so long as the instrument sought to be altered or discharged relates 
 to simple contracts. As to such contracts the rule broadly declared 
 by Lord Denman in an early ease has been followed. "After the 
 agreement has been reduced into writing, it is competent to the par- 
 ties, at any time before breach of it, by a new contract not in writ- 
 ing, either altogether to waive, dissolve, or annul the former agree- 
 ments, or in any manner to add to, or subtract from or vary or qual- 
 ify the terms of it and thus to make a new contract; which is to 
 be proved partly, by the written agreement, and partly by the sub- 
 sequent verbal terms engrafted upon what will be thus left of the 
 written agreement. " °'* 
 
 § 443 (448). Same — As to specSalties. — Much more conflict of 
 opinion has arisen as to contracts by specialty, and especially as to 
 those contracts which are by statute required to be in writing. It 
 was a familiar rule of the common law that an agreement by deed 
 could only be dissolved by an instrument of an equally solemn char- 
 acter ;"" and yet in quite early cases in this country the rule was rec- 
 ognized that bonds or other sealed instruments might be defeated 
 by parol evidence of payment, or abandonment of the contract, 
 or waiver of literal performance by the obligee, or partial abandon- 
 ment of the written contract and of continuance under it as modified 
 by parol, as well as of a different place or mode of performance. So 
 there are many authorities which hold that in actions on insurance 
 policies a waiver of a breach of condition or warranty may be shown 
 after the breach."' In most of the eases where evidence of this 
 
 o*Lord Denman in Stead v. Dawber, 10 Add. & Ell. 57, 66; Brown v. 
 Everhard, 52 Wis. 205; Thomas v. Barnes, 156 Mass. 581; Rapp v. Sarpy 
 County, 71 Neb. 382, 98 N. W. 1042. 
 
 06 Goss V. Lord Nugent, 5 Barn. & Add. 58, 65. 
 
 BO Harris v. Goodwyn, 2 Man. & G. 405; Doe v. Gladwin, 6 Q. B. 953; 
 Rawlinson v. Clarke, 14 M. & W. 187. As to parol proof of fraud affecting 
 specialties, see § 435 supra. 
 
 ^T Payment, Munroe v. Perkins, 9 Pick. 298, 20 Am. Dec. 475; McCreery 
 V. Day, 119 N. Y. 1, 16 Am. St. Rep. 793; Kane v. Cortesy, 100 N. Y. 132; 
 abandonment, Dearborn v. Cross, 7 Cow. 48; partial abandonment, Munroe 
 V. Perkins, 9 Pick. 298, 20 Am. Dec. 475; Lattimore v. Harsen, 14 Johns. 
 330; waiver. Dearborn v. Cross, 7 Cow. 48; performance, Franchot v. 
 Leach, 5 Cow. 506; Canal Co. v. Ray, 101 U. S. 522; Dearborn v. Cross, 
 7 Cow. 48; Fleming r. Gilbert, 3 Johns. 528; waiver of ireach, in insurattce 
 
§ 444 PAEOL EVIDENCE. 559 
 
 character has been received to show a subsequent modification of 
 a written agreement, the parol contract had been executed, or so 
 acted upon by the parties that the enforcement of the original 
 agreement would have operated as a fraud upon one of the parties.'* 
 There have been many cases, especially the earlier ones, holding a 
 somewhat stricter rule, but even those cases recognized the doctrine 
 that courts of equity give relief, although the subsequent parol 
 agreement might not be allowed in courts of law. In view of the 
 modem tendency to administer legal and equitable relief in the 
 same courts, and in view of the fact that specialties are rapidly 
 losing their former superiority, as compared with other written 
 contracts, it is suggested that, so far as the rule under discussion 
 is concerned, no distinction between the two classes of contracts 
 should be made. 
 
 § 444 (449). Subsequent agreement as to contracts within stat- 
 ute of frauds. — A question of greater difficulty is whether those 
 contracts required by the statute of frauds to be in writing can be 
 discharged or modified by subsequent parol agreement. On this 
 question there have been many diverse decisions in the English and 
 American courts. The earlier cases held that the written agree- 
 ment might be modified in this manner on the ground that the stat- 
 ute did not declare contracts affected by it void unless in writing."* 
 Later cases have, however, adopted a stricter rule;"" and the more 
 recent English cases have very much guarded and limite'd the ap- 
 
 cases, Elliott v. Lycoming Ins. Co., 66 Pa. St. 22, 5 Am. Rep. 323. Oshkosh 
 Gaslight Co. v. Germanla P. Ins. Co., 71 Wis. 454, 5 Am. St. Rep. 233; 
 Wilson V. Minnesota F. M. F. Ins. Ass'n, 36 Minn. 112, 1 Am. St. Rep. 
 659; Sims v. State Ins. Co., 47 Mo. 54, 4 Am. Rep. 311; Pratt v. New York 
 Cent. Ins. Co., 55 N. Y. 505, 14 Am. Rep. 304; Webster v. Phoenix Ins. 
 Co., 36 Wis. 67, 17 Am. Rep. 479; Insurance Co. v. Wilkinson, 13 Wall. 222; 
 Van Scholck v. Niagara Ins. Co., 68 N. Y. 434; Combs v. Hannibal Ins. Co., 
 43 Mo. 148; Commercial Ins. Co. v. Spankneble, 52 111. 518, 4 Am. Rep. 
 582; Keith v. Globe Ins. Co., 52 111, 518, 4 Am. Rep. 624. See also the 
 authorities collected in Browne, Parol Ev. 113-115. 
 
 osMcKenzie v. Harrison, 120 N. Y. 260. 
 
 59 Cuff V. Penn, 1 Maule & S. 21; Cummings v. Arnold, 3 Met 486, 37 
 Am. Dec. 155; Steams v. Hall, 9 Cush. 31; Stryker v. Vanderbllt, 25 N. 
 J. L. 482; Negley v. Jeffers, 28 Ohio St. 90; Marsh v. Bellew, 45 Wis. 36; 
 Keating v. Price, 1 Johns. Cas. (N. Y.) 22, 1 Am. Dec. 92. On the general 
 subject of this section see note, 100 Am. Dec. 169-172. 
 
 80 Emerson v. Slater, 22 How. 28; Swain v. Seamens, 9 Wall. 254; Abell 
 V. Munson, 18 Mich. 306, 100 Am. Dec. 165; Stowell v. Robinson, 3 Bing. 
 N. C. 928; Marshall v. Lynn, 6 M. & W. 109; Hasbrouck v. Tappen, 15 
 Johns. 200; Blood v. Goodrich, 9 Wend. 68, 24 Am. Dec. 121. 
 
560 THE LAW OF EVIDENCE. § 445 
 
 plication of the rule laid down in the early cases.'* In his valuable 
 work Mr. Taylor concludes that although it is the better opinion 
 that such contracts may be wholly waived or abandoned by a subse- 
 quent oral agrement so as to prevent either party from recovering 
 on the original written agreement, yet it is certain that no verbal 
 agreement to abandon the contract in part or to modify its terms 
 can be received. ^^ 
 
 § 445 (450). Same — Tendency of decisions in the United States. 
 — It would be a difficult matter to reconcile the decisions in the 
 United States on this subject, and to formulate from them any satis- 
 factory rule." In numerous cases it has been held that substantial 
 parts of a written contract which are necessary to its existence can- 
 not be subsequently modified by parol, even when the contract itself 
 would not have been valid, if made by parol.'* On the other hand 
 it has frequently been held that the time or manner of payment or 
 mode of performing a contract which is within the statute of frauds 
 might be changed by parol.'" In the discussion of this class of con- 
 tracts, Mr. Benjamin says : "No verbal agreement to abandon it in 
 part or to add to or omit or modify any of its terms is admissible." " 
 
 •1 Ogle V. Earl Vane, L. R. 2 Q. B. 275; Leather Cloth Co. v. Heironlmus, 
 L. R. 10 Q. B. 140; Hickman v. Haynes, L. R. 10 C. P. 598. 
 
 «2Tayl. Ev. (10th Ed.) §§ 1143, 1144. 
 
 88 It was held In New York that a contract for the sale of goods which 
 was within the statute could not thus be changed to show that an in- 
 creased amount was to be delivered, Schultz v. Bradley, 57 N. T. 646. On 
 the subject of this section see note, 100 Am. Dec. 169-172. See § 431 
 supra. Where a contract for the sale of land specified that the same 
 should he surveyed by a certain person, it could not be shown by parol 
 that another had been agreed upon, Dana v. Hancock, 30 Vt. 616. 
 
 «*Hill V. Blake, 97 N. Y. 216; Blood v. Goodrich, 9 Wend. 68, 24 Am. 
 Dec. 121; Swain v. Seamens, 9 Wall. 254; Cook v. Bell, 18 Mich. 387; 
 Noble V. Ward, L. R. 1 Exch. 117; Brown v. Sanborn, 21 Mich. 402. 
 
 65 Cummings v. Arnold, 3 Met. 486, 37 Am. Dec. 155; Stearns v. Hall, 
 9 Cush. 31; Vanhouten v, McCarty, 4 N. J. Eq. 141; Negley v. Jeffers, 28 
 Ohio St. 90; Marsh v. Bellew, 45 Wis. 36; Reed's Heirs v. Cliambers, 6 
 Gill & J. (Md.) 490. Parol evidence is admissible to prove an agreement 
 to reduce the rate of interest on a mortgage, and to pay the Interest semi- 
 annually. Sharp V Wyckoff, 39 N. J. Bq. 376; a vendee's agreement to 
 waive a vendor's agreement to remove encumbrance's from the land 
 sold, Negley v. Jeffers, 28 Ohio St. 90; Devllng v. Little, 26 Pa. St 502; 
 time for the delivery of goods, no time having been stated iu the original 
 •contract, Neil v. Cheves, 1 Bailey (S. C.) 537. 
 
 68BenJ. Sales, § 240; Barton v. Gray, 57 Mich. 623, 24 N. W. 638; Hill 
 V. Blake, 97 N. Y. 216; Goldsmith v. Darling, 92 Wis. 363, 66 N. W. 397; 
 Hanson v. Gunderson, 95 Wis. 613, 70 N. W. 827; IU. Cent Ry. Co. T. 
 Manion (Ky.). 67 S. W. 40. 
 
§ 446 PAEOIi EVIDENOE. 561 
 
 This is the view taken by most of the text writers on the subject, 
 and it is, perhaps, supported by the weight of authority. Yet the 
 eases already cited have shown no little departure from the rule; 
 and other cases have limited or qualified the rule by allowing parol 
 evidence of a substituted agreement, especially when the latter has 
 been partly performed or so relied upon that its denial would oper- 
 ate as a fraud, or when the enforcement of the original contract 
 would cause serious injury." And especially when the proof shows 
 that the new parol agreement Jias been executed.^^ There is also 
 conflict of authority as to whether it may be shown by parol that 
 there has been a subsequent agreement for an abandonment or rescis- 
 sion of the whole contract. The view that such testimony is admis- 
 sible is sustained by much authority especially if the subsequent 
 agreement has been executed. °° 
 
 § 446 (451). To show that instruments apparently absolute are 
 only securities. — ^It has long been the settled rule that in courts 
 exercising equitable jurisdiction it is admissible to prove by parol 
 that instruments in writing apparently transferring the absolute 
 title are in fact only given as security. The doctrine is thus stated 
 by Mr. Justice Field: "It is an established doctrine that a court 
 of equity will treat a deed, absolute in form, as a mortgage, when 
 it is executed as security for loan of money. That court looks beyond 
 the terms of the instrument to the real transaction ; and when that 
 is shown to be one of security and not of sale, it will give effect to 
 the actual contract of the parties. As the equity, upon which the 
 court acts in such cases, arises from the real character of the trans- 
 action, amy evidence, written or oral, tending to show this is admis- 
 sible. The rule which excludes parol testimony to contradict or 
 vary a written instrument has reference to the language used by 
 the parties. That cannot be qualified or varied from its natural im- 
 port, but must^speak for itself. The rule does not forbid an in- 
 quiry into the object of the parties in executing and receiving the 
 
 »i Marsh v. Bellew, 45 Wis. 36; Price v. Dyer, 17 Ves. 356; Long v. Har*r 
 well, 34 N. J. L. 116. 
 
 ssDolierty v. Doe, 18 Colo. 456, 33 Pac. 165; Boos v. DuUn (Ia.|, ( 
 N. W. 707; Bowman v. Wriglit, 65 Neb. 661, 91 N. W. 580; McKenzle \c. 
 Harrison, 120 N. Y. 260, 24 N. B. 458, 17 Am. St. Rep. 638. 
 
 89 Goss V. Lord Nugent, 5 Barn. & Adol. 58 ; Jolinson v. Worthy, 17 Ga. 
 420; Morrill v. Colehour, 82 111. 618; Norton v. Simonds, 124. Mass. 19; 
 Stevens v. Cooper, 1 Johns. Ch. (N. Y.) 425, 7 Am. Dec. 499; Dearborn v. 
 Cross, 7 Cow. 48; Phelps v. Seely, 22 Gratt. (Va.) 573; Reed, Stat. Frauds, 
 § 461; Browne. Stat. Frauds (5th Ed.), §§ 434-436. 
 
 86 
 
562 THE liAW OF EVIDENCE. § 447 
 
 instrument." ™ Although in some of the earlier cases this evidence 
 was received only on the grounds of fraud or mistake,'^ yet in later 
 cases it was deemed sufficient evidence of fraud for the grantee to 
 treat the conveyance as absolute, when in fact it was not.^* But the 
 tindency of the modern decisions is that such evidence may be re- 
 ceived to show the real nature and object of the transaction, al- 
 though no fraud or mistake of ■ any kind is alleged or •proved.'" It 
 is held that ' ' the agreement for the defeasance, whether written or 
 unwritten, is no more than one of the conditions upon which the 
 deed was given, and therefore constitutes a part of the considera- 
 tion for the conveyance."^* 
 
 § 447 (452). Same — Real intention of the parties to be ascer- 
 tained. — In applying the exception under discussion the extrinsic 
 evidence will not be received because of any particular form of 
 language which the parties may have adopted. The intention of 
 the parties must govern; and it matters not what peculiar form 
 the transaction may have taken. The inquiry always is, was a se- 
 curity for the loan of money or other property intended.'"' But 
 
 ToPeugh V. Davis, 96 U. S. 336; Brick v. Brick, 98 U. S. 514; Swart v. 
 Service, 21 Wend. 36, 34 Am. Dec. 211 and note; Trogdon y. Walston, 164 
 111. 144, 45 N. E. 575; Kelso v. Kelso, 16 Ind. App. 615, 44 N. B. 1013; Wat- 
 kins V. Williams, 123. N. C. 170, 31 S. E. 388; Weiseham v. Hooker, 7 Okl. 
 250, 59 Pac. 464; Schierl v. Newburg, 102 Wis. 554, 78 N. W. 761. On this 
 general subject, see also notes, 15 Am. Dee. 47; 50 Am. Dec. 195; 17 Am. 
 Dec. 300-306. 
 
 71 Patchin v. Pierce, 12 Wend. 61; Swart v. Service, 21 Wend. 36, 34 Am. 
 Dec. 211; Strong v. Stewart, 4 Johns. Ch. 167; Marks v. Pell, 1 Johns. Ch. 
 594; Webb v. Rice, 6 Hill, 219; Richard v. Harrlll, 2 Jones Eq. (N. C.) 209; 
 Chaires v. Brady, 10 Fla. 133; McDonald v. McLeod, 1 Ired. Eq. (N. C.) 
 221. 
 
 72 Strong v. Stewart, 4 Johns. Ch. (N. T.) 167. 
 
 73 Washburn v. Merrills, 1 Day (Conn.) 139, 2 Am. Deo. 59; Ross v. 
 Norrell, 1 Wash. (Va.) 14, 1 Am. Dec. 422; Johnson v. Smith, 39 Iowa, 549; 
 Sweet V. Parker, 22 N. J. Eq. 453; Cotterell v. Long, 20 Ohio, 464; Nichols 
 V. Cabe, 3 Head (Tenn.) 93; Suavely v. Pickle, 29 Gratt. (Va.) 27; Anthony 
 V. Anthony, 23 Ark. 479; Ruckman v. Alwood, 71 111. 155; Heath v. Wil- 
 liams, 30 Ind. 495; Pond v. Eddy, 113 Mass. 149; Price v. _ Cover, 40 Md. 
 102; Klein v. McNamara, 54 Miss. 90; Shade v. Bessinger, 3 Neb. 140; 
 Edrington v. Harper, 3 J. J. Marsh. (Ky.) 353, 20 Am. Dec. 145; Ensign v. 
 Ensign, 120 N. Y. 655, 24 N. E. 942; Schierl v. Newburg, 102 Wis. 552, 78 
 N. W. 761; Libby v. Clark, 88 Me. 32, 33 Atl. 657; Stith v. Peckham, 4 
 Okl. 254, 46 Pac. 664. 
 
 74 McMiHan v. Blssell, 63 Mich. 66, 29 N. W. 737. 
 
 70 Dunham v. Dey, 15 Johns. 554, 8 Am. Dec. 282; Klock v. Walter, 70 
 111. 416; Marshall v. Stewart, 17 Ohio, 356; Colwell v. Woods, 3 Watts (Pa.) 
 188, 27 Am. Dec. 345; Brinkman v. Jones, 44 Wis. 498; Campbell y. Dear- 
 
§ 448 PAEOL EVIDENCE. 563 
 
 where the deed and accompanying papers on their face constitute 
 a mortgage, parol evidence is not competent to show the contrary.'" 
 In arriving at the real intent of the parties, their statements and 
 acts at the time of the transaction/' the inadequacy of the consid- 
 eration named in the deed,'^ the prior existence of a debt '* and the 
 recognition of Its continuance as by the payment of interest or 
 other acts,'" are all facts to be considered, and are relevant to the 
 issue. But although parol evidence is received in such cases to 
 show the real nature of the transaction, the presumption is that the 
 instrument is what it purports to be ; and before a deed absolute in 
 form can be shown to be a mortgage, the proof should be clear and 
 convincing. ^^ As the rule has often been stated, "to convert a 
 deed absolute into a mortgage, the evidence should be so clear as 
 to leave no substantial doubt that the real intention of the parties 
 was to execute a mortgage." ^^ 
 
 § 448 (453). Not limited to deeds and mortgages. — Although 
 evidence to show that an instrument, absolute in form, is not such 
 in fact, is most frequently used to show that an apparent deed 
 is a mortgage, it is not limited to this class of cases.*' The rule 
 
 born, 109 Mass. 130, 12 Am. Rep. 671; Knowlton v. Walker, 13 Wis. 273; 
 Kerr v. Gilmore, 6 Watts (Pa.) 405. 
 
 f« Snyder v. Griswold, 37 111. 216; Haines v. Thompson, 70 Pa. St. 434. 
 
 77Russ6ai V. Southard, 12 How. 139; Crane v. Bonnell, 2 N. J. Eq. 264; 
 Freeman v. Wilson, 51 Miss. 329; Montgomery v. Spect, 55 Cal. 352; Tibeau 
 V. Tibeau, 22 Mo. 77; Reigard v. McNeil, 38-111. 400; Biland v. Radford, 7 
 Ala. 724, 42 Am. Dec. 610; Carter v. Carter, 5 Tex. 93; Ingalls v. Atwood, 
 53 Iowa, 283; Staples v. Edwards Lumber Co., 56 Minn. 16; Thomas v. 
 Barnes, 156 Mass. 581; Work v. Beach, 129 N. Y. 651; Edwards Lumber Co. 
 V. Baker, 2 N. Dak. 289 ; Stahelin v. Sowle, 87 Mich. 124. 
 
 78 Crews V. Threadgill, 35 Ala. 334; Gibbs v. Penny, 43 Tex. 560; Klein v. 
 McNamara, 54 Miss. 90; Davis v. Stonestreet, 4 Ind. 101. 
 
 79 Ford V. Irwin, 14 Cal. 428, 18 Cal. 117; Suavely v. Pickle, 29 Gratt. 
 (Va.) 27; Montgomery v. Spect, 55 Cal. 352. 
 
 soRuffler V. Womack, 30 Tex. 332; Eaton v. Green, 22 Pick. 526; West- 
 lake V. Horton, 85 111. 228; Klein v. McNamara, 54 Miss. 90; Budd v. Van 
 Orden, 33 N. J. Eq. 143; Montgomery v. Spect, 55 Cal. 352; Lawrence v. 
 DuBois, 16 W. Va. 443. 
 
 siHowland v. Blake, 97 tJ. S. 624; Bingham v. Thompson, 4 Nev. 224; 
 Williams v. Stratton, 18 Miss. 418; Moore v. Ivey, 8 Ired. Eq. (N. C.) 192; 
 Williams v. Cheatham, 19 Ark. 278; Butler v. Butler, 46 Wis. 430; Johnson 
 V. Van Velsor, 43 Mich. 208; Maher v. Parwell, 97 111. 56; Ahern v. Mc- 
 Carthy, 107 Cal. 382, 40 Pac. 482; Beebe v. Wisconsin Mtge. Loan Ass'n, 
 117 Wis. 328, 93 N. W. 1103. 
 
 82 Becker v. Howard, 75 Wis. 415. 
 
 88 Transfer of stock, Reeve v. Dennett, 137 Mass. 315; Burgess v. Selig- 
 man, 107 U. S. 20; Butman v. Howell, 144 Mass. 66; Brick v. Brick, 98 U. 
 
564 THE LAW OP EVIDENCE. § 449 
 
 that deeds and other instruments, absolute in terms, can be thus 
 transformed into instruments for the security of money is purely 
 an equitable doctrine; and it has sometimes been held that in ac- 
 tions at law evidence for this purpose is not admissible.** But in 
 some states such evidence has been held proper in legal actions as 
 well as in those of an equitable nature f^ and as the differences be- 
 tween legal and equitable procedure become less marked, there will 
 doubtless be a tendency toward the adoption of the same rule of 
 evidence both in legal and in equitable proceedings. We have dis- 
 cussed under another head the mode of proving trusts.*" 
 
 § 449 (454). Rule as to parol evidence not applicable to 
 strangers to the instrument. — The general rule under discussion 
 does not apply as against strangers to the instrument. Mr. Green- 
 leaf thus states the law on the subject: "The rule under consider- 
 ation is applied only (in suits) between the parties to the instru- 
 ment, as they alone are to blame if the writing contains what was 
 not intended or omits that which it should have contained. It can- 
 not affect third persons who, if it were otherwise, might be preju- 
 diced by things recited in the writings contrary to the truth 
 through the ignorance, carelessness or fraud of the parties; and 
 who, therefore, ought not to be precluded from proving the truth, 
 however contradictory to the written statements of others. ' ' *^ 
 Thus, when the debt secured by a mortgage is incorrectly described 
 
 S. 514; Riley v. Bank, 164 Mass. 482, 41 N. E. 679; deed, Coffiman v. Cofe- 
 man, 79 Va. 504; Mil of sale, Seavey v. Walker, 108 Ind. 78; Booth v. Rob- 
 inson, 55 Md. 419; Votaw v. Diehl, 62 Iowa, 676; Howard v. O'Dell, 1 Allen, 
 85; Blanchard v. Fearing, 4 Allen, 118; Hazard v. Loring, 10 Cush. 267; 
 Caswell V. Keith, 12 Gray, 351; Manufacturers' Bank v. Rugee, 59 Wis. 221; 
 assignment, Hazard v. Leving, 10 Gush. 267; Caswell v. Keith, 12 Gray, 
 351; Booth v. Robinson, 55 Md. 419; Marsh v. McNair, 99 N. Y. 174; Gettle- 
 man v. Assur. Co., 97 Wis. 237, 72 N. W. 627; Hieronymons v. Glass, 120 
 Ala. 46, 23 So. 674; Trogdon v. Walston, 164 111. 144, 45 N. E. 575; note, 
 Clark V. Ducheneau, 26 Utah, 97, 72 Pac. 331; insurance policy, Dixon v. 
 Ins. Co., 168 Mass. 48, 46 N. E. 430. 
 
 84 Bryant v. Crosby, 36 Me. 562, 58 Am. Deo. 767; Stinchfleld v. Milliken, 
 71 Me. 567; Benton v. Jones, 8 Conn. 186; Reading v. Weston, 8 Conn. 117, 
 20 Am. Dec. 97; Farley v. Goocher, 11 Iowa, 570; Webb v. Rice, 6 Hill, 219; 
 Bragg v. Massie, 38 Ala. 89, 79 Am. Dec. 82; Belote v. Morrison, 8 Minn. 
 87; Moore v. Wade, 8 Kan. 380. 
 
 85 Tillson V. Moulton, 23 111. 648; Kent v. Agard, 24 Wis. 378; Emery v. 
 Fugina, 68 Wis. 505; Odenbaugh v. Bradford, 67 Pa. St. 96; Moreland v. 
 Barnhart, 44 Tex. 275; Ruffier v. Womack, 30 Tex. 332; Reeve v. Dennett, 
 137 Mass. 315. 
 
 88 See §§ 418 et seq. supra. 
 
 87 1 Greenl. Ey. § 279; Talbot v. Wilkins, 31 Ark. 411; Brown v. Thurber, 
 77 N. T. 613; Egerly v. Emerson, 23 N. H. 555, 55 Am. Deo. 207; Hlghstone 
 
§ 450 PAROL EVIDENCE, 565 
 
 or the relation of the parties incorrctly stated, these facts are ad- 
 missible against a stranger to the instrument.** So it has been 
 held admissible, as between those not' parties to the instrument, to 
 show a mistake in the language of the instrument,*" or that lands 
 described in a conveyance as in one parish were in fact situated in 
 another."" On this principle ia an action on an insurance policy 
 the plaintiff was allowed to show that another policy which came 
 in question did not cover the property insured, although so pur- 
 porting on its face."' There are many other cases which hold that 
 in a controversy between a party to an iustrument and a stranger 
 to it, either party may show that the instrument does not speak the 
 truth, and that the general rule does not apply as it does in cases 
 where the controversy arises between the parties to an instrument 
 which they have made the written memorial of their agreement."'' 
 It is to be observed, however, that the right of a stranger to vary a 
 written contract by parol is limited to rights which are independent 
 of the instrument. ^^ Even in respect to strangers, the writing 
 itself is the best evidence of its contents, and must, if possible, be 
 produced."'' 
 
 § 450 (455). Parol evidence to identify the subject matter. — 
 It is a doctrine which, perhaps, has its most frequent application in 
 respect to wUls, but which is by no means confined to such instru- 
 
 V. Burdette, 61 Mich. 54; Fonda v. Burton, 63 Vt. 355; National Car Co. v. 
 Cyclone Co., 49 Minn. 125; Clerihew v. West Side Bank, 50 Minn. 538; Kel- 
 logg V. Tompson, 142 Mass. 76; Randolph v. Junker, 1 Tex. Civ. App. 517; 
 Central Coke & Coal Co. v. Good, 120 Fed. 793; British & Amer. Mtge. Co. 
 V. Cody, 135 Ala. 622, 33 So. 832; Dunn v. Price, 112 Cal. 46, 44 Pac. 354; 
 Dickey v. Grice, 110 Ga. 315, 35 S. E. 291; Livingston v. Heck, 122 la. 74, 
 94 N. W. 1098; First Nat. Bank v. Tolerton & Stetson (Neb.), 97 N. W. 248; 
 French v. Westgate, 71 N. H. 570, 53 Atl. 310; Barber v. Martin, 67 Neb. 
 445, 93 N. W. 722; Myers v. Taylor, 167 Tenn. 364, 64 S. W. 719. 
 
 88 Bruce v. Roper Lumber Co., 87 Va. 381, 24 Am. St. Rep. 657; Lee v. 
 Adsit, 37 N. Y. 78; Powell v. Young, 51 Ala. 518. 
 
 89 Fuller V. Acker, 1 Hill, 473. 
 
 80 Rex V. Cheadler, 3 Barn. & Adol. 833. 
 
 81 Lowell Mfg. Co. V. Safeguard Fire Ins. Co., 88 N. Y. 591. 
 
 92 McMaster v. Insurance Co., 55 N. Y. 222, 14 Am. Rep. 239 ; Furbush v. 
 Goodwin, 25 N. H. 425; Venable v. Thompson, 11 Ala. 147; Strader v. Lam- 
 beth, 7 B. Mon. (Ky.) 589; Hussman v. Wilke, 50 Cal. 250; Talbot v. Wil- 
 klns, 31 Ark. 411; Powell v. Young, 51 Ala. 518; Burns v. Thompson, 91 
 lad. 146; Horn v. Hanson, 56 Minn. 43, 57 N. W. 315; Follinsbeev. Sawyer, 
 157 N. Y. 196, 51 N. B. 994; Pacific Biscuit Co. v. Dugger, 42 Ore. 513, 70 
 Pac. 523; Carmack v. Drum, 32 Wash. 236, 73 Pac. 377; Northern Assur. 
 Co. V. Chicago Mut. Bldg. Ass'n, 198 111. 474, 64 N. E. 979. 
 
 88 Wodock V. Robinson, 148 Pa. St. 503; Browne, Parol Ev. § 28. 
 
 94 Clow V. Brown, 134 Ind. 2S7; Browne, Parol Ev. § 29. 
 
566 THE LAW OP EVIDENCE. § 450 
 
 ments, that parties have the right to claim that the court in con- 
 struing written instruments shall, if necessary, place itself in the 
 situation of the parties to the instrument by means of extrinsic evi- 
 dence in order that the true meaning of the language may be as- 
 certained.''* Extrinsic evidence may be necessary for this purpose 
 to identify the subject matter to which the instrument refers; and 
 in such case the admission of parol evidence is not forbidden by the 
 general rule under discussion."" To use the familiar illustration, 
 if an estate is correctly described as "Blackacre," extrinsic evi- 
 dence is necessary to identify the land intended by that description. 
 The same rule has been adopted in this country as to any similar 
 phrase of description."' For example, in a Massachusetts case cer- 
 tain land was described in a contract as a certain parcel of real 
 estate known as the "Aldrich farm," and described in another cer- 
 tain deed. The court held that the evidence as to the subject mat- 
 ter, the situation of the parties and the circumstances under which 
 the agreement was made were admissible to make plain the meaning 
 of the parties."' 
 
 »»Guy V. Sharp, 1 Mylne & K. 602; Brown v. Thomdyke, 15 Pick. 388; 
 Sargent v. Towne, 10 Mass. 303; Doe v. Provoost, 4 Jolins. 61; Webster v. 
 Atkinson, 4 N. H. 21; Ely v. Adams, 19 Jolins. 313; Etting v. United States 
 Bank, 11 Wheat. 59; Bagley v. Saranac Co., 135 N. Y. 626; Kretschmer v. 
 Hard, 18 Colo. 223. See §§ 475 et seq. infra. 
 
 8« Buckley v. DeYlne, 127 111. 406; Doolan v. Carr, 125 TJ. S. 618; Edwards 
 V. Bender, 121 Ala. 77, 25 So. 1010; Ontario Deciduous Fruit Growers Ass'n 
 V. Cutting Fruit Packing Co., 134 Cal. 21, 66 Pac. 28, 86 Am. St. Rep. 231; 
 Hildreth v. Hartford M. & R. T. Co., 73 Conn. 631, 48 Atl. 963; Johnson v. 
 McKay, 121 Ga. 763, 49 S. E. 757; Gage v. Cameron, 212 111. 146, 72 N. E. 
 204; Baldwin v. Boyce, 152 Ind. 46, 51 N. E. 334; Burk v. Mead, 159 Ind. 
 252, 64 N. E. 880; Turner v. Gonzales, 3 Ind. Terr. 649, 64 S. W. 565; Gill 
 V. Ferrin, 71 N. H. 421, 52 Atl. 558; Crossen v. Carr, 70 N. J. L. 393, 57 Atl. 
 158; Petrie v. Trustees, 158 N. Y. 458, 53 N. E. 216; King v. N. Y. & C. 
 Gas Coal Co., 204 Pa. St 628, 54 Atl. 477; Dorris v. King (Tenn.), 54 S. W. 
 683; Newman v. Buzard, 24 Wash. 225, 64 Pac. 139; Skinker v. Haagsma, 
 99 Mo. 208; Harris v. Alden, 104 N. C. 86; Van Husen v. Omaha B. & T. R. 
 Co., 118 la. 366, 92 N. W. 47; Bagley v. Rose Hill Sugar Co., Ill La. 249, 
 35 So. 539; McManus v. Donohue, 175 Mass. 308, 56 N. E. 291; Woods v. 
 Hart, 50 Neb,. 497, 70 N. W. 53; Wussow v. Hase, 108 Wis. 382, 84 N. W. 
 433; Ham v. Johnson, 55 Minn. 115; Kennedy v. Gramling, 33 S. C. 367, 26 
 Am. St Rep. 676. See §§ 475 et seq. infra. 
 
 87 Doe ex dem. Preedy v. Holtom, 4 Adol. & Ell. 76, 81; Doe ex dem. Gore 
 V. Langton, 2 Barn. & Adol. 680; Doolittle v. Blakesley, 4 Day (Conn.) 265, 
 4 Am. Dec. 218; Venable v. McDonald, 4 Dana (Ky.) 336; Whitaker v. 
 Sumner, 9 Pick. 308; Jackson ex dem. Van Vechten v. Sill, 11 Johns. 201, 
 6 Am. Dec. 363; Peart v. Brice, 152 Pa. St 277; Vejar v. Mound City Co., 97 
 Cal. 659 ; Baker v. Hall, 158 Mass. 361. 
 
 •8 Aldrich v. Aldrich, 135 Mass. 153. This rule has been applied to 
 
§ 451 PAEOL EVIDBNOB. 567 
 
 § 451 (456). Same — Use of property — ^Identifying parties. — It 
 
 is under the same rule that evidence is sometimes admitted to show 
 how property has been formerly used or where it has been kept, as 
 these circumstances may throw light upon the meaning of the in- 
 strument. For example, if the question arises whether a bequest of 
 stock is specific or pecuniary, the court will not only look to the con- 
 text of the will and the terms of the gift, but will ascertain by ex- 
 trinsic evidence as well, the state of the testator's funded property.*" 
 Mr. Stephen thus 'states in very general terms the rule which gov- 
 erns in respect to the subjects discussed in this and the following 
 section : "In order to ascertain the relation of the words of a doc- 
 ument to facts, every fact may be proved to which it refers, or may 
 probably have been intended to refer, or which identifies any person 
 or thing mentioned in it. " ^ On the same principle parol evidence is 
 admissible to identify the parties. It has long been well settled that, 
 if the description of the person intended is applicable to more than 
 one person, extrinsic evidence may be introduced for the purpose of 
 explaining the real meaning of the instrument, and of applying the 
 same to the person intended. Thus, an administration, which 'prima 
 
 identify a mill and its appurtenances where it Is conveyed by general de- 
 scription, Scheibel v. Slagle, 89 Ind. 323 ; Hall v. Benner, 1 Pen. & W. (Pa.) 
 402, 21 Am. Dec. 394; the Presbyterian church intended In a grant of con- 
 veyance when there were two Presbyterian churches in the city, Wyan- 
 dotte County Com. v. Wyandotte Presbyterian Church, 30 Kan. 620; to 
 show that two different descriptions refer to the same land, Stewart v. 
 Chadwick, 8 Iowa, 463; McGregor v. Brown, 5 Pick. 170; Webster v. Blount, 
 39 Mo. 500; to identify land described in an instrument by metes and 
 bounds, Robertson v. McNeil, 12 Wend. 581; Scott v. Sheakley, 3 Watts 
 (Pa.) 50; to identify a monument named in a deed, McAfferty v. Conover's 
 Lessee, 7 Ohio St. 99, 70 Am. Dec. 57; to locate a highway referred to In 
 a deed. Rich v. Rich, 16 Wend. 663; to show what is included by the term 
 "farm" used in a deed. Madden v. Tucker, 46 Me. 367; to show what buildr 
 ings are included in a building described in a policy of insurance as "D's 
 car factory," Blake v. Exchange Mutual Ins. Co., 12 Gray, 265; and gen- 
 erally the meaning of general terms in an instrument. Doe v. Martin, 4 
 Barn. & Add. 785; Doe v. Burt, 1 T. R. 704; Castle v. Pox, L. R. 11 Eq. 
 542; Ropps v. Barker, 4 Pick. 239; Farrar v. Stackpole, 6 Greenl. (Me.) 
 154, 19 Am. Dec. 201; to identify the particular animals or other personal 
 property sold under a written contract of sale, Marshall v. Gridley, 46 111. 
 247; Rugg v. Hale, 40 Vt. 138; Haller v. Parrott, 82 Iowa, 42; Clark v. 
 Crawfordville Co., 125 Ind. 277; Edwards v. Wisconsin Investment Co., 
 124 Wis. 315, 102 N. W. 575; to identify particular wood covered by a 
 chattel "mortgage, Sargeant y. Solberg, 22 Wis. 132. 
 »» Colpoys V. Colpoys, Jac. 451. 
 
 1 Steph. Ev. art. 91; Scraggs v. Hill, 37 W. Va. 706. Other parties ' 
 same name, Newbury y. Railway Co., 133 N. C. 45, 35 S. E. 356. 
 
568 THE LAW OF EVmENCE. § 452 
 
 facie would be deemed to be granted on the estate of the father, may 
 be shown to be granted on that of the son, where their names are 
 alike ;^ and if a deed is made to the son having the same name as the 
 father, it may be shown by parol which one was intended.' And 
 when a name in a writing is not the correct one parol evidence is 
 often received to show that it was the result of some unintentional 
 act, omission or error and to identify the person actually intended.* 
 Such evidence does not contradict the instrument, but only explains 
 the transaction." The addition of the official character of the person 
 to the name signed to a contract is such an indication of the repre- 
 sentative character of such signer as will warrant a resort to parol 
 evidence to prove extrinsic circumstances, such as to whom the con- 
 sideration passed, and to whom crediit was given, the agent's au- 
 thority and similar facts by which the respective liability of the 
 principal and agent may be determined.' 
 
 § 452 (457). Same — Further illustrations — General rule. — On 
 the same general principle parol evidence is often received to show 
 the capacity in which a person acts, the real relation of parties to a 
 writing, and that persons not named therein are in fact interested.' 
 
 aMoseley v. Mastin, 37 Ala. 216. See §§ 476 et seq. infra. 
 
 8 Coit V. Starkweather, 8 Conn. 289. Where a fund was deposited In a 
 bank in the name of the depositor, "in trust for Sarah," the beneficiary 
 may be identified by parol, Bartlett v. Remington, 59 N. H. 364. It may be 
 shown that a certificate of deposit made by a guardian in his own name 
 was for the benefit of his ward, Peasley v. Watson, 41 Ala. 234; that the 
 plaintiff is the person named in a deed delivered to him, although there 
 is an inaccuracy in the name in such deed, Mobberly v. Mobberly, 60 Md. 
 376. Where a deed was made to "an association of persons" without nam- 
 ing all of them, the court may ascertain by parol evidence what persons 
 compose the association, Pratt v. California Mining Co., 24 Fed. 869. 
 
 i Henderson v. Hackney, 23 Ga. 383, 68 Am. Dec. 529 ; Wolff v. Elliott, 
 68 Ark. 326, 57 S. W. 1111; Williams v. Carpenter, 42 Mo. 327; Scanlan v. 
 Wright, 13 Pick. 523, 25 Am. Dec. 344; Beauvais v. Wall, 14 La. An. 199; 
 Peabody v. Brown, 10 Gray, 45; Colt v. Starkweather, 8 Conn. 289; Wake- 
 field V. Brown 38 Minn. 361, 37 N. W. 788, 8 Am. St. Rep. 671; Salmer v. 
 Lathrop, 10 S. D. 216, 72 N. W. 570; Stokes v. Riley, 29 Tex. Civ. App. 
 373, 68 S. W. 703; Cleveland v. Burnham, 64 Wis. 347, 25 N. W. 407. See 
 §§ 485 et seq. infra. 
 
 5 Baldwin v. Bank of Newbury, 1 Watt. 234; Michigan State Bank v. 
 Peck. 28 Vt. 200, 65 Am. Dec. 234. 
 
 « Smith V. Alexander, 31 Mo. 193; Michigan State Bank v. Peck, 28 Vt. 
 200, 65 Am. Dec. 234. 
 
 TRagsdale v. Ragsdale, 105 La. 405, 29 So. 906; Curran v. Holland, 141 
 Cal. 437, 75 Pac. 46; Baldwin v. Hill, 97 la. 586, 66 N. W. 889; Morrison 
 y. Baechtold, 93 Md. 319, 48 Atl. 926; Moore v. Williams, 26 Tex. Civ. App. 
 
§ 452 PABOL. EVIDENOB. 569 
 
 Although if one signs an agreement without indicating in any way 
 that he acts as agent for a principal, he cannot in order to escape lia- 
 bility prove by parol that he was merely acting for another,' yet 
 such agency may be proved for the purpose of binding the princi- 
 pal, or for the purpose of giving the principal the benefit of the con- 
 tract." In the one case such testimony is rejected because it clearly 
 contradicts the written instrument, in the other it is received be- 
 cause the testimony does not change the written instrument, but 
 merely identifies the person who is charged or benefited thereby. In 
 a Massachusetts case it was held admissible, where a contract was 
 signed "B. by C," to show by parol that B. was only an agent of A., 
 and thus to charge A. as principal, although there was no intimation 
 of such agency in the contract.^" It will be seen that most of the 
 cases cited in this and the foregoing section are examples of the 
 principle which has been stated in the following language : "If the 
 language of the instrument be alike applicable to each of several 
 persons, parcels _of land, species of goods, monuments, boundaries, 
 writings or circumstances, or if the terms be vague and general or 
 have divers meanings, parol evidence wiU always be admissible of 
 any extrinsic circumstances tending to show what person or persons 
 
 142, 62 S. W. 977. Extrinsic evidence is admissible to identify the 
 parties to an instrument or record, Garwood v. Garwood, 29 Cal. 514; 
 Shirley v. Fearne, 33 Miss. 653, 69 Am. Dec. 375; Sawyer v. Boyle, 21 
 Tex. 28; Walker v. Wells, 25 Ga. 141, 71 Am. Dec. 164; Simons v. 
 Marshall, 3 G. Greene (Iowa), 502; Tuggle v. McMath, 38 Ga. 648; 
 that other defendants are interested in the contract, Woodhouse v. 
 Duncan, 106 N. Y. 527, 13 N. B. 334 (hut the contrary was held where 
 the contract was under seal. Bridge v. Partridge, 64 N. Y. 357) ; 
 that goods sold at auction were actually bid off by two persons, although 
 the memorandum mentions but one, Scott v. McKinney, 98 Mass. 344; that 
 a party to an instrument or record acted in fiduciary capacity, Johnson v. 
 Galnan, 19 Colo. 168, 34 Pac. 905, 41 Am. St. Rep. 224; Graham v. Troth, 
 69 Kan. 861, 77 Pac 92; Mareck v. Minneapolis Trust Co., 74 Minn. 538, 
 77 N. W. 428; Schmittler v. Simon, 114 N. Y. 176, 21 N. E. 162, 11 Am. St. 
 Rep. 621. 
 
 sHiggins v. Senior, 8 M. & W. 834; Sowerby v. Butcher, 2 Car. & M. 
 371; Stackpole v. Arnold, 11 Mass. 27, 6 Am. Dec. 150; Shankland v. Wash- 
 ington, 5 Peters, 394; Osgood v. Bauder, 82 Iowa, 171. 
 
 »Paterson v. Gandasequi, 15 East, 62; Calder v. Doebell, L. J. 40 C. P. 
 89; Higgins v. Senior, 8 M. & W. 834; Garrett v. Handley, 4 Barn. & C. 
 664; Bateman v. Phillips, 15 Bast, 272; Weston v. McMillan, 42 Wis. 567; 
 Northern Bank v. Lewis, 78 Wis. 475; Curran v. Holland, 141 gal. 437, 75 
 Pac. 46. 
 
 i» Learned v. Johns, 9 Allen, 419. 
 
570 THE LAW OP EVIDENCE. § 453 
 
 or what things were intended by the party, or to ascertain his mean- 
 ing in any other respect. ' ' '^ 
 
 § 453 (458, 459). Proof of surrounding facts. — It may fre- 
 quently be necessary, in order to construe written instruments, to 
 receive evidence of other accompanying facts than those which serve 
 to apply the instrument to the subject matter or the persons in- 
 tended. There is a class of cases which have carried the rule some- 
 what further than is indicated in the last three sections. These cases 
 hold that under some circumstances, not only the situation and rela- 
 tions of the parties, but their acts, negotiations and statements may 
 be proved as part of the surrounding facts which throw light on the 
 transaction. It would be impossible to prescribe by general rule 
 the precise limits within which, under the ever varying facts, such 
 testimony may be admitted. The circmnstances under which such 
 testimony is admissible will be best understood from instances of ad- 
 judicated cases. Thus, in construing a memorandum of sale, the 
 Massachusetts court held that, although parol evidence is not ad- 
 missible to prove that other terms than those expressed are agreed to 
 or that the parties have other intentions than those to be inferred 
 from it, yet that it is competent to prove not only the relations of 
 the parties and the nature and conditions of the property, but also 
 the acts of the parties at and subsequent to the date of the contract 
 as a means of showing their own understanding of its terms. The 
 same rule has been adopted by other courts in the interpretation of 
 written instruments.^^ It is a familiar rule that where the language 
 
 11 Tayl. Ev. (lOtli Ed.), § 1195; First National Baak v. North, 2 S. Dak. 
 480; Neal v. Reams, 88 Ga. 298. 
 
 12 Knight V. Worsted Co., 2 Gush. 271; Block v. Columbia Ins. Co., 42 N. 
 Y. 393; Watson v. Kirby, 112 Ala. 436, 20 So. 624; Excelsior Needle Co. 
 V. Smith, 61 Conn. 56; Case Manufacturing Co. v. Soxman, 138 TJ. S. 431; 
 Birch V. Depeyster, 1 Stark. 167; Bradley v. Washington Packet Co., 13 
 Peters, 89; Bainbridge v. Wade, L. J. 20 Q. B. N. S. 7. Evidence of sur- 
 rounding circumstances has been held admissible to show what was meant 
 by the expression "five hundred dollars in an order" on W. & T., Hlnne- 
 mann v. Rosenback, 39i N. Y. 98; by the expression "$50 for inserting a 
 business card on 200 copies of his advertising chart," Stoops v. Smith, 100 
 Mass. 63, 1 Am. Rep. 85; by the expression "to be paid out of the last 
 payment" Proctor v. Hartigan, 139 Mass. 554; that a note payable In 
 "dollars" executed in Alabama during the Civil War while the confed- 
 erate currency was in use, should in fact be paid In such currency, Thor- 
 ington V. Smith, 8 Wall. 1; Confederate Note Case, 19 Wall. 548; Pauley 
 V. Tindall, 32 Tex. 43; Austin v. Kinsman, 13 Rich. Eq. (S. C.) 259; Craig 
 V. Pervis, 14 Rich. Bq. (S. C.) 150; Hightower v. Maull, 50 Ala. 495; that 
 a guaranty was intended to be a. continuing one, Heffield v. Meadows, L, 
 
§ 454 PAEOIi EVIDENCE. 571 
 
 of the written instrument is ambiguous or indefinite, the practical 
 interpretation of the parties may be proved and is often entitled to 
 great weight.^' 
 
 § 454 (460). Such evidence only received vrhen the language is 
 of doubtful import. — The rule has frequently been laid down in 
 the adjudicated eases that no evidence of the language employed by 
 the parties in making the contract can be given in evidence except 
 that which is furnished by the writing itself.^* It has been seen, 
 however, from the examples already given that in numerous cases 
 much greater latitude has been given to the introduction of parol 
 evidence than is implied in the statement just given. It will be found 
 that nearly all, if not aU, the illustrations given in the last section 
 recognize the general rule that the written contract must govern, 
 and that proof of the acts, situation and statements of the parties 
 can have no other effect than to ascertain the meaning of the parties 
 as expressed in the writing}^ It will also be found that in the cases 
 where evidence of the declarations of parties, has been received the 
 language of the writing admitted of more than one construction, 
 either upon its face or as explained by the parol evidence concern- 
 ing the surrounding facts or identifying the subject matter or the 
 parties. Where the language of the writing does thus admit of more 
 than one construction, there is considerable authority for the view 
 that such language may be construed by the court in the light of 
 the statements and acts of the parties contemporaneous with and 
 subsequent to the contract, in other words, that such language and 
 statement of the parties may be used to expla/in the ambiguity. 
 
 R. 4 C. P. 596; to show occupancy of premises at the time of making the 
 lease as affecting the question as to whether they were wholly or partly 
 included in the lease, Doe v. Burt, 1 T. R. 701; to show the acts, dealings 
 and situation of parties to an instrument in determining whether a given 
 instrument created a joint tenancy or a tenancy in common, Harrison v. 
 Barton, 30 L. J. (Ch.) 213. 
 
 isGanson v. Madigan, 15 Wis. 144, 82 Am. Dec. 659; Dent v. North 
 American Co., 49 N. Y. 390; Ellmaker v. Franklin Ins. Co., 5 Pa. St. 183; 
 Bedford v. Flowers, 11 Humph. (Tenn.) 242 ; Consolidated Dental Mfg. Co. 
 V. Holliday, 131 Fed. 384; Bray v. Loomer, 61 Conn. 456, 23 Atl. 831; Wil- 
 son V. Carries, 140 Ind. 533, 40 N. E. 50, 49 Am. St. Rep. 213; Dodd v. Witt, 
 139 Mass. 63, 29 N. E. 475, 52 Am. Rep. 700; Gregory v. Lake Linden, 130 
 Mich. 368, 90 N. W. 29; Phetteplaoe v. Ins. Co., 23 R. I. 26, 49 Atl. 33; 
 Wussow V. Hase, 108 Wis. 382, 84 N. W. 433. A vague and general con- 
 versation, not admissible, Ingraham v. Mariner, 194 111. 269, 62 N. E. 609. 
 
 "Dent V. North Am. Steamship Co., 49 N. Y. 390; Ellmaker v. Insurance 
 Co., 5 Pa. St 183; Bedford v. Flowers, 11 Humph. (Tenn.) 242. 
 
 IB See articles, 9 Alb. Law Jour. 117, 281. 
 
572 THE LAW OF EVIDENCE. § 455 
 
 But it must be borne in mind that, although declarations of the par- 
 ties may in some eases be received to explain contracts or words of 
 doubtful meaning, yet no other words can he added to or substituted 
 for those of the writing. The courts are not at liberty to speculate 
 as to the general intention of the parties, but are charged with the 
 duty of ascertaining the meaning of the written language. It is no 
 doubt true that, with the aid of the proper extrinsic evidence, in- 
 struments are construed and made effective which could not other- 
 wise be construed to have any effect at all; and in these cases a 
 very different construction is given from that which would follow 
 from the bare inspection of the writing. But the court cannot give 
 effect to any intention which is not expressed by the language of the 
 instrument, when examined in the light of facts that are properly 
 before the court. ^^ For still stronger reason such evidence cannot 
 he received to contradict the clear and settled meaning of the con- 
 tract." And it is only in exceptional cases that the statement at the 
 time of execution of the contract and prior negotiations between the 
 parties will be received.'-* 
 
 § 455 (461, 462). Proof of meaning of words. — A distinction is 
 often made between that testimony which is offered to contradict a 
 written instrument and that which is offered merely to explain or 
 to assist in construing the document. It is a familiar principle that 
 the court may ascertain the situation of the parties to a contract 
 and all the surrounding circumstances, whenever this may be neces- 
 sary to interpret or construe the writing in question or to apply the 
 contract to the proper subject matter. It has long been settled that 
 if the language of the writing is such that the court does not under- 
 stand it, evidence may be received to ascertain the real meaning. 
 For example, if the writing is in a foreign language, if technical 
 words are used or if there are any expressions which at the time of 
 the contract had gained a definite meaning generally or by local 
 usage, extrinsic evidence may be received to enable the court to un- 
 
 18 Farmers Loan & Trust Co. v. Commercial Bank of Racine, 15 Wis. 
 424, 82 Am. Dec. 689; Jones v. Swearingen, 42 S. C. 58; Naughton v. Elli- 
 ott, 68 N. J. Eq. 259, 59 Atl. 869; McAfferty v. Conover, 7 Oh. St. 99, 70 
 Am. Dec. .57; Griffin v. Hall, 115 Ala. 482, 22 So. 162. Matters which ap- 
 pear in the writing, not to be excluded by parol evidence, Lawrence v. 
 Comstock, 124 Mich. 120, 82 N. W. 808; King v. New York & Cleveland 
 Gas Coal Co., 204 Pa. St. 628, 54 Atl. 477. 
 
 "The Delaware, 14 Wall. 579; Gilbert v. Moline Plough Co., 119 U. S. 
 491; Corse v. Peck, 102 N. Y. 513; Blofrson v. Lindsay, 90 Wis. 203, 63 N. 
 W. 89. 
 
 18 See many cases cited, 9 Bncyo. of Bv. 375-377. 
 
§ 455 PAKOL EVIDENCE. 573 
 
 derstand such meaning.^' It is on this principle that, in a great 
 variety of cases in England and in this country, the courts have re- 
 ceived testimony as to the meaning of words and phrases in written 
 instruments ; and that such testimony has not been held repugnant 
 to the general rule under discussion. It will be seen in some of the 
 cases that the words used were of a technical character, or that they 
 were words having a local meaning; and in other cases, while the 
 words had a common or popular meaning, they also had a limited 
 meaning as used in some locality or some branch of business.^" In 
 many of the cases cited the claim was made that the meaning of the 
 words was so plain that there could be but one conclusion as to the 
 intention, but in such cases it was held that where the evidence 
 showed an ambiguity in the meaning, the court might receive evi- 
 dence to remove the doubt. 
 
 19 Shore v. Wilson, 9 Clark & F. 355; Birch v. Depeyster, 1 Stark. 210; 
 Sheldon v. Benham, 4 Hill, 129, 40 Am. Dec. 271; Com. v. Morgan, 107 
 Mass. 199; Atlanta v. Schmeltzer, 83 Ga. 609; Scott v. Neeves, 77 Wis. 
 305; Clay v. Field, 138 U. S. 464; Converse v. Wead, 142 111. 132, meaning 
 of abbreviations used in the record. See notes, 6 Am. Rep. 678-682; 42 
 Am. Rep. 679; 6 L. R. A. 42. 
 
 20 Parol evidence has been allowe'd to show the commercial meaning 
 of the terms "cotton in bales," Taylor v. Briggs, 2 Car. & P. 525; "in 
 the month of October," Chaurand v. Angersteln, Peake 43; "two next 
 months," Bissell v. Beard, 28 Law T. 740; "duly honored," Lucas v. Gron- 
 ing, 7 Taunt. 164; "Baltic sea," Udhe v. Walters, 3 Camp. 16; "bale," Gor- 
 rissen v. Perrin, 2 C. B. N. S. 681; "depart with convoy," Luthuller's Case, 
 2 Salk. 443; "loading of£ shore" in a marine policy, Johnson v. North- 
 western Nat. Ins. Co., 39 Wis. 87; "assist" as used in making up trains, 
 Memphis Ry. Co. v. Graham, 94 Ala. 545; "at and from" in an insurance 
 policy, Vallance v. Dewar, 1 Camp. 503; "British weight," in a charter 
 party, Goddard v. Bulow, 1 Nott & McC. (S. C.) 45, 9 Am. Dec. 663; 
 "Bankers" and "Mod" in sculptors will. Goblet v. Berckey, 3 Sim. 24; 
 "thousand," Smith v. Wilson, 3 Barn. & Adol. 728; "good custom cow- 
 hide," Wait V. Fairbanks, Brayt. (Vt.) 77; "weeks" as used In a theatri- 
 cal contract. Grant v. Maddox, 15 M. & W. 737; "farm" and "homestead 
 farm," Locke v. Rowell, 47 N. H. 46; "coppered ship," in a policy of in- 
 surance, Hazzard v. Marine Ins. Co., 1 Sum. (U. S.) 218; "per foot," Ford 
 V. Tirrell, 9 Gray, 401, 69 Am. Dec. 297; "per square yard," Walls v. Bai- 
 ley, 49 N. Y. 464, 10 Am. Rep. 407, as used in plastering; "Canada money," 
 Thompson v. Sloan, 23 Wend. 71, 35 Am. Dec. 546; "cargo," Allegre v. 
 Maryland Ins. Co., 2 Gill & J. (Md.) 136, 20 Am. Dec. 424; "north" as used 
 in a deed, Jenny Lind Co. v. Bower, 11 Cal. 194; "team," Ganson v. Madi- 
 gan, 15 Wis. 144, 82 Am. Dec. 659; "dollars," Thorington v. Smith, 8 Wall. 
 9; Confederate Note Case, 19 Wall. 548; Austin v. Kinsman, 13 Rich. Eq. 
 (S. C.) 259; Craig v. Pervis, 14 Rich. Eq. (S. C.) 150; Hightower v. Maull, 
 50 Ala. 4.^5; Donley v. Tindall, 32 Tex. 43; "months," Jolly v. Young, 1 
 
574 THE LAW OF EVIDENCE. § ,456 
 
 § 456 (463). Same — Intention — Meaning of words and phrases. 
 — Although some of the cases, which have been referred to as illus- 
 trations of the rule that the surrounding facts and circumstances 
 may be proved in evidence, may be deemed to have trenched unduly 
 upon the ancient rule, it will be found that even those decisions rec- 
 ognized that written contracts cannot in general be varied by parol. 
 The real difficulty arises in determining in each case whether the 
 language of the instrument is ambiguous as shown, either by the con- 
 text or by the circumstances attending the making of the same. If 
 no such ambiguity exists, no extrinsic evidence can he received to 
 show the secret intention of the parties or that any other than the 
 natural and primary meaning of the language used was intended." 
 
 Esp. 186; "freight," Paisch v. Dickson, 1 Mason (U. S.) 11; Lewis v. 
 Marshall, 7 Man. & G. 729; "barrels," in a contract for petroleum, Miller 
 V. Stevens, 100 Mass. 518, 97 Am. Dec. 123, 1 Am. Rep. 139; "product of 
 hogs," Stewart v. Smith, 28 111. 397; "hard pan," Blair v. Colby, 37 Mo. 
 313; "cost," Gray v. Harper, 1 Story, 574; "your account," Walrath v. 
 Thompson, 4 Hill, 200; "winter strained lamp oil," Hart v. Hammett, 18 
 Vt. 127; that "horn chains" were made partly of hoof horn, Swett v. Shum- 
 way, 102 Mass. 365, 3 Am. Rep. 471; "to be discharged in fourteen days," 
 Cochran v. Retberg, 3 Esp. 121; that sarsaparilla was not a "root" within 
 the meaning of a policy of insurance, Coit v. Commercial Ins. Co., 7 
 Johns. 385, 5 Am. Dec. 282 ; that by the understanding of the trade, "furs" 
 were not included in the phrase "skins and hides," Aster v. Union Ins. Co., 
 7 Cow. 202; that in a contract for the sale of goods the phrase "with all 
 faults" has a specific meaning, Whitney v. Boardman, 118 Mass. 242; that 
 the phrases "satisfaction due from man to man" and authorizing a friend 
 to make "necessary arrangements" contained in a letter meant a challenge 
 to a duel. Com. v. Pope, 3 Dana (Ky.) 418; "accepted," Colg9,te v. Latta, 115 
 N. C. 127, 20 S. B. 388; "account," Waldheim v. Miller, 97 Wis. 300, 72 
 N. W. 869; "artesian," Hattiesburg Plumb. Co. v. Carmichael, 80 Miss. 66, 
 31 So. 536; "due bill," Andrews v. Robertson, 111 Wis. 334, 87 N. W. 190, 
 87 Am. St. Rep. 870; "due diligence," Hartley v. Phillips, 165 Pa. St. 325, 
 30 Atl. 842; "inch of water," JacKson Mill. Co. v. Chandos, 82 Wis. 437, 52 
 N. W. 759; "necessary signals and switchmen," Louisville & N. R. Co. 
 V. Illinois C. R. Co., 174 111. 448, 51 N. E. 824; "to work a street," In re 
 Curtis, 64 Conn. 501, 30 Atl. 769, 42 Am. St. Rep. 200; "subject to strikes," 
 Hesser-Milton-Repalian Coal Co. v. La Crosse Fuel Co., 114 Wis. 654, 90 
 N. W. 1094; "warehouse," Fireman's Fund Ins. Co. v. Ins. Co., 2 Cal. App. 
 090, 84 Pac. 253. 
 
 21 Shore v. Wilson, 9 Clark & F. 525; American Bible Society v. Pratt, 
 9 Allen, 109; Best v. Hammond, 55 Pa. St. 409; Drew v. Swift, 46 N. Y. 
 204; Jackson v. Sill, 11 Johns. 201, 6 Am. Dec. 363; Cotton v. Smithwick, 
 66 Me. 360; Sherwood v. Sherwood, 45 Wis. 357, 30 Am. Rep. 757; Fitzpat- 
 rick V. Fitzpatrick, 36 Iowa, 674, 14 Am. Rep. 538; Kurtz v. Hibner, 55 111. 
 514, 8 Am. Rep. 665; King v. Merriman, 38 Minn. 47; Hill v. Priestley, 52 
 N. Y. 635; Morss v. Salisbury, 48 N. Y. 637; Yates v. Pym, 6 Taunt 446. 
 
§ 456 PAEOL EVIDENCE. 575 
 
 We sliall see that this view is not inconsistent with the admission of 
 proof of usage to explain the writing ; nor is it at all inconsistent 
 with the weU settled rule that parol evidence may be given of the 
 meaning of illegible or not commonly intelligible characters, of for- 
 eign, obsolete, technical, local and provincial expressions, of abbre- 
 viations and of common words which, from the context, appear to 
 have been used in a peculiar sense. ^^ "If it is a word which is of 
 technical and scientific character, then it must be construed accord- 
 ing to that which is the primary meaning in that technical and 
 scientific character, and before you can give evidence of the second- 
 ary meaning of the word you must satisfy the court, from the in- 
 strument itself or from the circumstances of the case, that the word 
 ought to be construed, not in its popular and primary signification, 
 but according to its secondary intention. " "' In all these cases the 
 court is simply ascertaining the meaning oi the written language 
 and the intention of the parties, not their secret or unexpressed in- 
 tention, but the intention as stated in the writing. "Words are to be 
 understood In their ordinary and popular sense, unless they have 
 acquired a particular sense in respect to the subject matter, distinct 
 from the popular sense.^* In the same way if the handwriting is 
 obscure or blurred, defaced or for any reason difficult to be read, 
 the testimony of experts may be received to ascertain the real Ian- . 
 guage." 
 
 Evidence excluded to explain meaning of "guarantee," Plielps v. Gamewell 
 Fire Alarm Tel. Co., 72 Hun, 26; "delivered," Lippert v. Saginaw Mill 
 Co., 108 Wis. 512, 84 N. W. 831; "lielp," Hooker v. Hyde, 61 Wis. 204, 21 
 N. W. 52; "assume," WrigM v. United States Mtge. Co. (Tex. Civ. App.), 
 42 S. W. 789; "suitable and usual saw logs," Johnson v. Hamilton, 24 Ore. 
 320, 33 Pac. 571; "deal," First Nat. Bank v. Coffin, 162 Mass. 180, 38 N. E. 
 444; "incompatible," Gray v. Sbepard, 147 N. Y. 177, 41 N. B. 500; "lum- 
 ber," Williams v. Stevens Point Lumber Co., 72 Wis. 487, 40 N. W. 154; 
 "thermostat," Murphey v. Weil, 92 Wis. 467, 66 N. W. 532; "legitimate 
 railroad purposes," Abraham v. Oregon & C. R. Co., 37 Ore. 495, 60 Pac. 
 899, 82 Am. St. Rep. 779. 
 
 22 Nelson v. Sun Ins. Co., 71 N. Y. 453; Loom Co. v. Higgins, 105 U. S. 
 580; Houghton v. Watertown Ins. Co., 131 Mass. 300; Mercer Co. v. Mc- 
 Kee's Adm., 77 Pa. St. 170; Hatch v. Douglas, 48 Conn. 116, 40 Am. Rep. 
 154; Walrath v. Whittekind, 26 Kan. 482. 
 
 23 Holt V. Collyer, 44 L. T. N. S. 214, L. R. 16 CI. Div. 718. 
 
 21 Robertson v. French, 4 East. 135; Taylor v. Briggs, 2 Car. & P. 525; 
 Smith v. Wilson, 3 Barn. & Adol. 728; Clayton v. Gregson, 4 Nev. & M. 
 602: United States v. Peck, 102 U. S. 64; Emery v. Webster, 42 Me. 204, 
 66 Am. Dec. 274; French v. Hayes, 43 N. H. 30, 80 Am. Dec. 127; Cornwell 
 v. Cornwell, 91 111. 414; Nelson v. Morse, 52 Wis. 240. 
 
 25 Masters v. Masters, 1 Wms. (P.) 425; Norman v. Morrell, 4 Ves. 769; 
 
576 THE LAW OP EVIDENCE. § 457 
 
 § 457 (464). Usages of trade. — In respect to contracts parol 
 evidence is often received on the ground that the parties have not 
 stated the contract in all its details, but only those which were neces- 
 sary to be stated by specific agreement ; and that there has been left 
 to implication those incidents which a uniform usage would annex, 
 and according to which the parties must be understood to contract, 
 unless they expressly exclude them. It is on this principle that, in 
 a great number and variety of cases in England and in this country, 
 parol evidence has been admitted of local or general usages of trade 
 and commerce to ascertain the true meaning of written contracts.'" 
 
 Goblet V. Beechey; 3 Sim. 24; Armstrong v. Burrows, 6 Watts (Pa.) 266; 
 Penderson v. Owen, 54 Me. 372, 92 Am. Dec. 551; Paine v. Ringold, 43 
 Mich. 341; County of Des Moines v. Hinkley, 62 Iowa, 642. Cipher ex- 
 plained, Wilson V. Frisble,_57 Ga. 269; DeBlols v. Russ, 32 La. An. 586; 
 Wlngate v. Mechanics Bank, 10 Pa. St. 104; foreign language, Llnney v. 
 Wood, 66 Tex. 22, 17 S. W. 244; Erusha v. Tomash, 98 la. 510, 67 N. W. 
 390; Com. Title Ins. & T. Co. v. Coleman, 205 Pa. St. 535, 55 Atl. 320; 
 abbreviations, Reeves v. Cross, 80 Minn. 466, 83 N. W. 443; Dages v. Brake, 
 125 Mich. 64, 83 N. W. 1039, 84 Am. St. Rep. ,556; White v. McMillan, 114 
 N. 0. 349, 19 S. E. 234; Penn Tobacco Co. v. Leman, 109 Ga. 428, 34 S. E. 
 79. 
 
 28 Southwell V. Bowditch, 1 C. P. Div. 374, 45 L. J. (C. P.) 374, 630; Fleet 
 V. Murton, L. R. 7 Q. B. 126, 41 L. J. (Q. B.) 49; Humphrey v. Dale, 7 
 Bl. & B. 266, 26 L. J. (Q. B.) 137; Imperial Bank v. London Docks Co., 5 
 Ch. Dlv. 195, 46 L. J. (Ch.) 335; Smith v. Wilson, 3 Barn. & Adol. 728; 
 Brown V. Byrne, 3 El. & B. 702, 77 B. C. L. 702 ; Wood v. Allen, 111 la. 97, 
 82 N. W. 451; Petrie v. Phoenix Ins. Co., 132 N. Y. 137, 30 N. E. 380; Ras- 
 tetter v. Reynolds, 160 Ind. 133, 66 N. E. 612; Kalamazoo Corset Co. v. 
 Simon, 129 Fed. 144; Lamb v. Klaus, 30 Wis. 94. But see, Sweeney v. 
 Thomason, 9 Lea (Tenn.) 359, 42 Am. Rep. 676 and note. On this general 
 subject see exhaustive note, 1 Smith L. C. 934-965 ; also notes, 6 Am. Rep. 
 678-682; 10 L. R. A. 786. Evidence has been held admissible in an action 
 on a contract for sale and delivery of a large quantity of barley to show 
 that in the absence of special agreement the custom of trade is to deliver 
 grain in sacks, Robinson v. United States, 13 Wall. 363; that by the usage 
 ill the trade the phrase "crop of flax" Included the amount of the current 
 year's production which the party had on hand whether purchased or pro- 
 duced by him, Goodrich v. Stevens, 5 Lans. (N. Y.) 230; that in the lum- 
 her trade a general usage prevailed by which two packs of shingles of 
 given denominations were estimated as a thousand, Soutier v. Kellerman, 
 18 Mo. 509; the general usage as to the mode of estimating, weighing or 
 measuring the qvantity of goods sold or materials furnished, Merrick v. 
 McNally, 26 Mich. 374; Heald v. Cooper, 8 Me. 32; Newhall v. Appleton, 
 114 N. Y. 140; Humphreysville Co. v. Vermont Co., 33 Vt. 92; Patterson 
 V. Crowther, 70 Md. 124; Breen v. Moran, 51 Minn. 525; Jones v. Hoey. 
 128 Mass. 585; Merchant v. Howell, 53 Minn. 295; Destrehan v. Louisiana 
 Co., 45 La. An. 920; Thompson v. Brannon, 94 Ky. 490; that a person 
 
§ 459 PAROL EVIDENCE. 577 
 
 § 458 (465). Same — ^Principal and agent. — It has frequently 
 ieen found necessary to prove some usage which added to the con. 
 tract of principal and agent some incident or term not expressed 
 therein. Contracts by agents for their principals are frequently 
 mere memoranda in which only a few of the details are expressed. 
 In such cases the usages or customs governing the trade must neces- 
 sarily be proved by parol. It has been held competent to show that, 
 by a custom of trade, where a broker purchases without disclosing 
 the name of his principal, he is liable as principal.*' 
 
 § 459 (466). Proof of usage — Bills of lading — ^Insurance. — ^Evi- 
 dence of usage is often admitted to show the real intention of the 
 parties in shipping contracts. Thus in a New York case, it was held 
 admissible to prove that in transportation contracts the words 
 "quantity guaranteed," used in a bill of lading, meant that the car- 
 rier should pay for any shortage;^' and where a railroad company 
 gave a bill of lading for goods to the terminus of its line, it was 
 
 whose name appears at the head of an invoice aa vendor is not the 
 contracting party, Holding v. Elliott, 5 Hurl. & N. 117; that by the 
 custom of trade sales of a given article are hy sample although the 
 memorandum of sale is silnnt on the subject, Syers v. Jones, 2 Bxch. 
 Ill; Boorman v. Jenkins, 12 Wend. 566, 27 Am. Deo. 158; Oneida Manfg. 
 Co. V. Lawrence. 4 Cow. 440; that usage of trade allows one month for 
 warehouse rent, Fawes v. Lamb, 8 Jur. N. S. 385; that a contract which 
 on its face would be otherwise construed as a bailment or other contract 
 is in fact a sale, Dawson v. Kittle, 4 Hill, 107; Goodyear v. Ogden, 4 Hill, 
 104; Irwin v. Clark, 13 Mich. 10; Chase v. Washburn, 1 Ohio St. 244, 
 59 Am. Dec. 623; Carlisle v. Wallace, 12 Ind. 252, 74 Am. Dec. 207; Hughes 
 V. Stanley, 45 Iowa, 622; and of the usage as to payment of commissions, 
 Garneld v. Peerless Motor Car Co., 89 Mass. 395, 75 N. E. 695. 
 
 27 Dale V. Humfrey, El., Bl. & El. 1004; Hutchinson v. Tatham, E. R 8 
 C. P. 482. But see, Trueman v. Loder, 11 Adol. & Ell. 589. The custom 
 of market in which deals are made are admissible, Sutton v. Tatham, 10 
 Adol. & Ell. 27; Bayliffe v. Butterworth, 1 Bxch. 425; see extended notes, 1 
 Smith L. C. 934-965; 50 Am. Dec. 103-105; as between principal and hroker, 
 a usage in London as to annulment of contract if not satisfactory admitted, 
 Hodgson V. Davies, 2 Camp. 536. Usage not admissible to prove that a 
 broker has the right to disregard the positive written instructions of the 
 principal, Barksdale v. Brown, 1 Nott & McC. (S. C.) 517, 9 Am. Deo. 720; 
 Hall V. Storrs, 7 Wis. 253; Bliss v. Arnold, 8 Vt. 252, 30 Am. Deo. 467; 
 Hutchins v. Ladd, 16 Mich. 493; Leland v. Douglas, 1 Wend. 490; Catlin 
 v. Smith, 24 Vt. 85; Day v. Holmes, 103 Mass. 306; Parsons v. Martin, 11 
 Gray, 111; or when directed to sell for cash, he may properly sell In some 
 other manner, Catlin v. Smith, 24 Vt. 85; Hall v. Storrs, 7 Wis. 253; Bliss 
 V. Arnold, 8 Vt. 252, 30 Am. Dec. 467; Barksdale v. Brown, 1 Nott & McC. 
 (S. C.) 517, 9 Am. Dec. 720. 
 
 M Blssell V. Campbell, 64 N. Y. 353. 
 
 37 
 
578 THE LAW OF EVIDENCE. § 460 
 
 held admissible to prove a usage to deliver to the next common car- 
 rier, when the goods were billed to a point beyond such terminus.*' 
 In an English case it was held that where the bill of lading was 
 silent on the subject, it was admissible to prove the custom of Liver- 
 pool whereby the ship owner was entitled to a deduction of three 
 months' discount from the freight.^" In like manner usage was 
 proved to show that an agreement for the carriage of a "fuU and 
 complete cargo of sugar and molasses, ' ' meant such cargo packed in 
 the way in which such merchandise is generally packed to be car- 
 ried.'^ But where the law has attached a fixed and certain mean- 
 ing to words used in a bill of lading, evidence of a usage to change 
 this meaning is not proper. A familiar ease illustrating this rule 
 is that in which Justice Story refused to admit evidence offered 
 to prove that the exception of dangers of the sea extended to all 
 losses, except those arising from the carrier's neglect.^'' In numerous 
 cases there has been proof of usage to explain the meaning of insur- 
 ance contracts. Many of the cases cited in a foregoing section were 
 illustrations of this character, where proof of the meaning of words 
 and phrases was held necessary and competent. The general doo- 
 trin<^ is that in such contracts, where the meaning of the words ap- 
 pears from the face of the contract to be ambiguous, or where it is 
 made so by proof of extrinsic circumstances, parol evidence is ad- 
 missible to explain the usage. ^' Thus, when the policy stipulated, 
 ' ' a watchman kept on the premises, ' ' it was held admissible to prove 
 a usage among similar establishments to keep a watchman only dur- 
 ing certain hours each day.'* And when a policy on a factory pro- 
 vided for the keeping of water on each floor, together with a watch- 
 man at night, it was held proper to show that, by the usage of trade, 
 the attic and the basement were not considered floors.'" 
 
 § 460 (467). Same — Contracts for services. — The rule under 
 discussion has been frequently applied in contracts for furnishing 
 materials, or erecting buildings, and in other similar contracts. 
 
 29 Hooper v. Chicago & N. W. Ry. Co., 27 Wis. 81, 9 Am. Rep. 439. 
 80 Browne v. Byrne, 3 El. & B. 703, 18 Jur. 700. 
 
 31 Cathbert v. Gumming, 10 Bxch. 809, 11 Exch. 405. 
 
 32 The Reeside, 2 Sum. (U. S.) 567. But see, Sampson v. Gazzam, 6 
 Port. (Ala), 123, 30 Am. Dec. 578; Boon v. The Belfast, 40 Ala. 184. 
 
 s3Coit V. Commercial Ins. Co., 7 Johns. 385, 5 Am. Dec. 282; Sleght v. 
 Rhinelander, 1 Johns. 193, 2 Johns. 532; Astor v. Union Ins. Co., 7 Cow. 
 203 ; Phoenix Ins. Co. v. Wilcox & Gibbs Guano Co., 65 Fed. 724. See §§ 455 
 et seq. supra. 
 
 34 Crocker v. People's Ins. Co., 8 Cush. 79. 
 
 88 New York Bolting Co. v. Washington Ins. Co., 10 Bosw. (N. Y.), 428. 
 
^ 461 PAROL EVIDENCE. 579 
 
 Thus, under a written contract to work for a year and to lose no 
 time, it was held admissible to prove a custom of the trade whereby 
 the workmen were in the habit of taking certain holidays, and of 
 being absent without the master's permission.'* So under a con- 
 tract wherein the plaintiff engaged as an actor for three years at 
 a given salary per week, the defendant was allowed to prove the us- 
 age that, under an agreement in that business to continue for one or 
 more years, actors were only paid during the theatrical season.'^ 
 In cases where the written agreement does not specifically state the 
 nature of the services to be rendered or the mode or place, evidence 
 of the usages of the trade is admissible to show the true meaning of 
 the contract.'' 
 
 § 461 (468). Proof of custom between landlord and tenant — 
 Other contracts. — The relaxation of the general rule in such man- 
 ner as to allow parol evidence of customs and usage for the purpose 
 of annexing incidents to or explaining the meaning of certain con- 
 tracts has for a long time been of frequent occurrence in respect to 
 contract dealings between landlord and tenant. In a well' known 
 case Baron Parke explained that the courts had looked with favor 
 upon evidence of usage and custom in this class of cases for the rea/- 
 son that the common law had done little to prescribe the relative 
 duties of landlord and tenant; and that justice required proof of 
 those usages which had grown up i.^d become beneficial to the parr 
 ties.'* It was held in the leading English case on this subject that 
 the tenant could have the benefit of a usage allowing the tenant his 
 
 88 R. V. Stoke-upon-Trent, 5 Q. B. 303. 
 
 SI Grant v. Maddox, 15 M. & W. 737. 
 
 is Hagan v. Domestic Co., 9 Hun, 73; Price v. Mouat, 11 C. B. N. S. 509; 
 Mumlord v. Gething, 7 C. B. N. S. 305; Baron v. Plande, 7 La. An. 229. 
 Parol proof allowed of custom of the trade as to the mode of estimating 
 the number of brick in a pavement or wall, Lowe v. Lehman, 15 Ohio 
 St. 179 (contra, Sweeney v. Thomason, 9 Lea (Tenn.) 359, 42 Am. Rep. 
 676) ; the custom of making deductions for openings in walls in the 
 estimation of the work of masons or plasterers; Walls v. Bailey, 49 N. Y. 
 464, 10 Am. Rep. 407; Symonds v. Lloyd, 6 C. B. N. S. 691 (but see, 
 Kendall v. Russell, 5 Dana (Ky.), 501, 30 Am. Dec. 696); the meaning of 
 the expression, "a frame house filled with brick," Fowler v. Aetna Ins. Co., 
 7 Wend. 270; the usage of the trade that ten hours constitute a day's work, 
 as well as the right to charge a day and a quarter for each full day of 
 twelve hours and a half, Hinton v. Locke, 5 Hill, 437; the meaning of 
 "order obtained," Newhall v. Appleton, 114 N. Y. 140, 21 N. E. 105; but not 
 of the word "incompatible" as used in a contract. Gray v. Shepard, 147 
 N. Y. 177, 41 N. E. 500. 
 
 3» Hutton V. Warren, 1 M. & W. 474. See also note 3 L. R. A. 331. 
 
580 THE LAW OF EVIDENCE. § 461 
 
 way-going crop after the expiration of his term, if not repugnant 
 to the lease;*" and in a leading case in this country, the court al- 
 lowed proof of a local usage for the tenant to remove fixtures erected 
 by himself during the term.*^ In each of the eases just cited, the 
 lease was a formal written instrument. These decisions rest on the 
 doctrine that, as to those matters concerning which the lease is si- 
 lent, proof of general usage is competent, for the persons are deemed 
 to contract with reference thereto. It is obvious from the illustra- 
 tions given in this and in the preceding sections that very wide lati- 
 tude has been given for the explanation of written contracts by 
 parol proof of usage. For the purposes of illustration, instances 
 have been selected from those classes of written instruments in 
 which such evidence is most frequently offered, but it need hardly 
 be added that the same principle applies to other contracts and that 
 when the requisite conditions exist, the real meaning of any written 
 contract may in the same manner be affected by proof of usages 
 which must have been relied upon by the parties. In order to ascer- 
 tain the intention of those who have executed written instruments 
 the courts have often found it necessary to receive proof of usage 
 not only in respect to informal contracts, but in respect to those 
 more formal and solemn instruments lilte deeds and grants which 
 are generally assumed to state in detail the full meaning of the par- 
 ties." 
 
 40 Wigglesworth v. Dallison, Doug. 201, 1 Smith L. C. 928 and extended 
 note; Stultz v. Dickey, 5 Binn. (Pa.) 285. 
 
 *i Van Ness v. Pacard, 2 Peters, 138. Evidence admissible of a custom 
 to receive compensation for seed and labor, known as tenant riglit, Sen- 
 ior V. Armitage, Holt N. P. 197; that the incoming tenant should pay the 
 outgoing tenant for straw left on the farm, Muncy v. Dennis, 1 Hurl. & N. 
 216; whether a structure of a given character is removable by the tenant. 
 Wade V. Johnston, 25 Ga. 331; Youngblood v. Eubank, 68 Ga. 630; Thomas 
 V. Davis, 76 Mo. 72, 45 Am. Rep. 756; Keogh v. Daniell, 12 Wis. 163; Van 
 Ness V. Pacard, 2 Peters, 138; Davis v. Jones, 2 Barn & Aid. 166; as to the 
 time of paying rent, Doe v. Benson, 4 Barn. & Aid. 588; Buckley v. Taylor, 
 2 T. R. 600; Slay v. Milton, 64 Tex. 421; that the way-going tenant for 
 years may harvest the grain sown the autumn before the termination 
 of the lease, Templeman v. Biddle, 1 Har. (Del.) 522; Howell v. Schenck, 
 24 N. J. L. 89; Foster v. Robinson, 6 Ohio St. 90; Biggs v. Brown, 2 Serg. 
 & R. (Pa.) 14; Shaw v. Bowman, 91 Pa. St. 414; that the owner is to 
 make repairs, Shute v. Bills, 191 Mass. 433, 78 N. E. 96. But a custom 
 cannot be proved for the purpose of making the landlord liable for repairs, 
 Biddle v. Reed, 33 Ind. 529; Weinstein v. Harrison, 66 Tex. 546; nor to 
 control the express covenant of the landlord to repair, Stultze v. Locke, 47 
 Md. 562. 
 
 42 Shore v. Wilson, 9 Clark & F. 355; Doe t. Allen, 12 Adol & Ell. 451; 
 
§ 462 PABOL EVIDENCB. 581 
 
 § 462 (469). General requisites Of usages— Must be reasonable. 
 
 — In this chapter the discussion of the admissibility of evidence to 
 prove usage has been confined to those cEises in which the object is 
 to vary or explain written instruments by parol. This is not the place 
 for any detailed treatment of those general rules of evidence which 
 govern when parol contracts are to be affected by proof of custom. 
 There are, however, certain essentials which should be shown to exist 
 before any proof of usage can be given to affect any contract, either 
 written or oral. To these essentials or qualities of usages we will now 
 briefly call attention in this and in the following sections. The us- 
 age must he reasonable. The view has been suggested that usages 
 of trade which are vmrea^onable will not gain a permanent foothold, 
 and that if a usage has grown up this is of itself well nigh conclu- 
 sive evidence that the usage is not unreasonable;*' but it is, per- 
 haps, a sufficient concession to this line of argument to admit that 
 clear proof of the existence of a custom radses a presumption in fa- 
 vor of its ieing a reasonable custom and one not injurious to the 
 community or to those who acquiesce in it.** Usages, although 
 clearly proved to exist, do not necessarily have the force of law ; and, 
 as appears from the cases cited below, the courts have very generally 
 claimed the right to reject those usages which they have deemed 
 prejudicial to public interests or likely to work injury to the per- 
 sons whom they affect.*" 
 
 Amer. Bible Soc. v. Wetmore, 17 Conn. 186; Howard v. Amer. Peace Soc, 
 49 Me. 298; Button v. Amer. Tract. Soc, 23 Vt. 349; Oortelyou v. Van 
 Bmndt, 2 Johns. 357, 3 Am. Dec. 439; Mitchell v. United States, 9 Peters, 
 711. 
 
 *3McMasters v. Pennsylvania Ry. Co., 69 Pa. St. 374, 8 Am. Rep. 264; 
 Barksdale v. Brown, 1 Nott. & McC. (S. C.) 517, 9 Am. Dec. 720. 
 
 44 Cox V. Charleston Ins. Co., 3 Rich. L. (S. C.) 331, 45 Am. Dec 771. 
 
 45 It is not a reasonable custom for an agent to take compensation from 
 tooth buyer and seller. Raisin v. Clark, 41 Md. 158, 20 Am. Rep. 66; to ac- 
 cept checks as payment for the claim of his principal against third par- 
 ties, Whitney v. Bsson, 99 Mass. 308, 96 Am. Dec. 762; to cancel all for- 
 mer policies and transfer the insurance to other companies after the ter- 
 mination of the agency. Merchants' Ins. Co. v. Prince, 50 Minn. 53, 36 Am. 
 St. Rep. 626; nor for a meclianic who works up the material of an em- 
 ployer to keep for his own use so much of the material as may remain 
 without the consent of the employer, Wadley v. Davis, 63 Barb. 500; nor 
 to show that a badly constructed building is according to custom, Ander- 
 son V. Whitaker, 97 Ala. 690; Cook v. Hawkins, 54 Ark. 423; nor that a 
 miller's receipt for wheat is intended as a sale, and not bailment, Wads- 
 worth v. Allcott, 6 N. Y. 64 ; nor on a sale of sheep, that the wool did not 
 go to the purchaser. Groat v. Gile, 51 N. Y. 431; nor to deny days of grace 
 on a Mil of exchange, Woodruff v. Merchant Bank, 25 Wend. 673; nor for a 
 
582 THE IjAw of evidence. § 463 
 
 § 463 (470). The usage must be an established one. — It was the 
 
 familiar common law doctrine that, in order to be binding, a usage 
 must have existed time out of mind, or, to use the old phrase, "so 
 long that the memory of man runneth not to the contrary." *' But 
 this rule was greatly relaxed in England, and has not in this coun- 
 try been deemed applicable to usages of trade.*^ In a New York case 
 the testimony showed that a usage had existed for thirty years. The 
 court held this sufficient, and thus stated the rule: "The true test 
 of a commercial usage is its having existed a sufficient length of time 
 to have become generally known, and to warrant a presimiption 
 that contracts are made in reference to it. ' ' *^ Substantially the 
 same rule has been declared by the supreme court of the United 
 States.** If the usage is well established and generally known at 
 
 railroad company to require all claims for losses to be made on the de- 
 livery of the goods, Memphis Ry. Co. v. IJolloway, 4 Law. & Eq. Rep. 425; 
 nor for a railroad company to leave all turntables unfastened, Ilwaco Ry. 
 Co. V. Hedrick, 1 Wash. 446; that no title should pass on sale and delivery 
 Df cotton without payment of the consideration within ten days, Haskins v. 
 Warren, 115 Mass. 514; that 'banks should not correct mistakes unless dis- 
 covered before the customer leaves the room, Gallatin v. Bradford, 1 Bibb. 
 (Ky.) 209. Courts will not sustain a usage as reasonable which tends to 
 promote dishonesty or unfair dealing, Paxton v. Courtney, 2 Fost. & F. 131; 
 see § 467 infra; or which gives to one class an unfair advantage over an- 
 other or takes away from any class the right to direct enjoyment of their 
 own labor, Metcalf v. Weld, 14 Gray, 210; or which clearly tends to pro- 
 mote indecency or immorality, Seagar v. Sligerland, 2 Caines (N. Y.) 219; 
 Holmes v. Johnson, 42 Pa. St. 159 ; or which is in restraint of trade, Mayor 
 V. Wilkes, 11 Mod. 48 ; nor is It admissible, when negligence Is the issue, to 
 justify carelessness by proof of facts showing a custom of negligence. Calf 
 V. Chicago, St. P., M. & O. Ry. Co., 87 Wis. 273; Rumpel v. Oregon Co. 
 (Idaho), 35 Pac. 700; Congdon v. Howe Scale Co., 66 Vt. 255; Bast T., V. & 
 Q. Ry. Co. V. Kane, 92 Ga. 187; Kansas City, M. & B. Ry. Co. v. Burton, 
 97 Ala. 240; Earl v. Crouch, 16 N. Y. S. 770, affirmed in 131 N. Y. 613. But 
 the rules and customs which govern In the running of railway trains are 
 proper subjects of proof in determining the question of negligence, Kansas 
 City Ry. Co. v. Webb, 97 Ala. 157; Flanders v. Chicago, St. P., M. & O. Ry. 
 Co., 51 Minn. 193; O'Mellia v. Kansas City, St. J. & C. B. Ry. Co., 115 Mo. 
 205. 
 
 «R. V. Johns, Lofft. 76; R. v. Joliffe, 2 Bam. & C. 54; Jenkins v. Har- 
 vey, 1 Cromp., M. & R. 877; Simpson v. Welles, L. R. 7 Q. B. 214; Beau- 
 fort V. Smith, 4 Bxch. 450; Bailey v. Appleyard, 3 Nev. & P. 257; Scales 
 V. Key, 11 Adol. & BU. 819; Welcome v. Upton, 5 M. & W. 398. 
 
 « Sewell V. Corp, 1 Car. & P. 392; Gould v. Oliver, 4 Bing. N. C. 134; 
 Noble V. Kennoway, 1 Doug. 510. 
 
 18 Smith V. Wright, 1 Caines (N. Y.) 45, 2 Am. Dec. 162. See numerous 
 cases cited, 12 Cyc. 1034. 
 
 4» Adams v. Otterback, 15 How. 539. 
 
§ 464 PAROL EVIDBNCB. 583 
 
 the time of the execution of the contract, and the contract is exe- 
 cuted with reference to it, it is not necessary to show how long the 
 usage has existed."" 
 
 § 464 (471). The usage must be known. — There are certain 
 commercial customs and usages of which every person in the com- 
 munity is deemed to be cognizant, such, for example, as those be- 
 longing to the law merchant. But the usages of special trades, and 
 those local usages which may be limited to certain communities can 
 not, of course, be presumed to be known to all."^ These have been 
 called usages, as contradistinguished from the generally recognized 
 customs of business."*^ In respect to these usages there should be 
 either proof of actual knowledge on the part of the person to be 
 affected, or proof of circumstances from which such knowledge may 
 be fairly implied."' But the exact reverse is held in regard to noto- 
 rious and uniform usages of trade, for one who seeks to avoid the 
 effect of such a usage must show that he was ignorant of it, the 
 the presumption being that all persons know general usages of 
 trade.'* The customs of an individual in his private business are not 
 binding upon others, unless known."" It is obvious, however, that a 
 
 BO Lamb v. Klaus, 30 "Wis. 94. The following are cases in which differ- 
 ent periods of time have been held sufficient or insufficient according to 
 circumstances: Lowe v. Lehman, 15 O^io St. 179, seven years; Cooper v. 
 Berry, 21 Ga. 526; Adams v. Otterback, 15 How. 539. 
 
 51 Sleight V. Hartshome, 2 Johns. 531; Hutchlns v. Webster, 165 Mass. 
 439, 43 N. B. 186. 
 
 02 Clark V. Baker, 52 Mass. 186. As to customs and usages In general, 
 see extended note, 1 Smith L. C. 934-965. 
 
 63 Moore v. Voughton, 1 Stark. 396; Brunnell v. Hudson Saw Mills, 86 
 Wis. 587; Chateaugay Co. v. Blake, 144 U. S. 476; National Bank v. 
 Burkhardt, 100 U. S. 691; Milwaukee Investment Co. v. Johnston, 35 Neb. 
 554; Miller v. Burke, 68 N. Y. 615; Caldwell v. Dawson, 4 Met. (Ky.) 121; 
 Pierce v. Whitney, 29 Me. 188; Martin v. Maynard, 76 N. H. 165; Mills 
 V. Ushe, 16 Tex. 295; Pennell v. Delta Co., 94 Mich. 247; Marlatt v. Clary, 
 20 Ark. 251; Walsh v. Mississippi Trans. Co., 52 Mo. 434; Scott v. Whit- 
 ney, 41 Wis. 504; Insurance Co. of North America v. Hibernia Insurance 
 Co., 140 U. S. 565; Hostetter v. Park, 137 U. S. 30. 
 
 *4 Robertson v. National Steamship Co., 139 N. Y. 416; A. J. Tower Co. 
 V. Southern Pac. Co., 184 Mass. 472, 69 N. E. 348. 
 
 i!5 This is true of a particular hotel, Berkshire Woolen Co. v. Proctor, 7 
 Cush. 417; of a single lessor, Beatty v. Gregory, 17 Iowa, 109, 85 Am. Dec. 
 546; of a particular mill, Schlessinger v. Dickinson, 5 Allen, 47; railroad 
 company, Detroit Ry. Co. v. Van Steinburg, 17 Mich. 99; or 'banlc, Allen 
 V. Merchants' Bank, 22 Wend. 215, 34 Am. Dec. 289; Chesapeake Bank v. 
 Brown, 29 Md. 483; of a city as against non-residents, Farmers' Bank v. 
 Sprague, 52 N. Y. 605; of a particular merchant to charge his customers 
 
584 THE LAW OF EVIDENCE. § 46t) 
 
 different rule should prevail -when the usage relates, not to the mode 
 of business of a particular individual, but to that of a profession or 
 trade. It has frequently been declared that, if there is a general 
 usage applicable to a particular profession, parties employing a pro- 
 fessional or business man are supposed to deal with him according 
 to that usage."' Although this may be a reasonable presumption, 
 it is a presumption of fact merely which may be rebutted. In a 
 New York case the proof showed that there was a uniform usage 
 among the plasterers of Buffalo as to the mode of measuring work, 
 and that the party against whom evidence of the usage was given 
 was a builder who had resided in the city for ten years, yet in the 
 decision Folger, J., after reviewing the authorities, held that the de- 
 fendant might testify that he had no knowledge of the usage." The 
 question under discussion has frequently arisen in the dealings of 
 principals with their brokers. It has been held that one who em- 
 ploys a broker to deal in a particular market is bound by the usages 
 of that market, whether he has actual knowledge of such usages or 
 not. Those decisions have been placed on the groimd that the agent 
 could not act for his principal at all without conforming to the pre- 
 scribed rules or usages ; and that the principal must be deemed to 
 know that f act."** 
 
 § 465 (472). The usage must be consistent with the contract. — 
 Since evidence of usage is received for the very purpose of ascertain- 
 ing the true meaning of the contract, on the theory that the parties 
 
 interest, Wood v. Hickock, 2 Wend. 501; Trotter v. Grant, 2 Wend. 413; 
 Fisher v. Sargent, 10 Cush. 250; Turner v. Dawson, 50 111. 85; Goodnow 
 V. Parsons, 36 Vt. 47; of a loan agency, Citizens State Bank v. Chambers 
 (la.), 105 N. W. 692; of an employer to require that notice be given by 
 servants before they leave his employment, Stevens v. Reeves, 9 Pick. 
 198; in actions on insurance policies where evidence was offered to prove 
 the special usages of insurance companies. Carter v. Boehm, 3 Burr. 1905; 
 Luce V. Dorchester Ins. Co., 105 Mass. 297, 7 Am. Rep. 522; Taylor v. 
 Aetna Life Ins. Co., 13 Gray, 434; Stebbins v. Globe Ins. Co., 2 Hall (N. 
 Y.) 632; Washington Ins. Co. v. Davison, 30 Md. 91; Hartford Ins. Co. v. 
 Harmer, 2 Ohio St. 452, 59 Am. Dec. 684; Illinois Mut. Ins. Co. v. O'Neile, 
 13 111. 89; Schwartz v. Germania Ins. Co., 18 Minn. 448; Goodall v. New 
 England Ins. Co., 25 N. H. 169; North Am. Ins. Co. v. Hibernia Ins. Co., 
 140 U. S. 565. 
 
 ooSewell v. Corp, 1 Car. & P. 392; Pollock v. Stables, 12 Q. B. 765; 
 Clayton v. Gregson, 5 Adol. & Ell. 302; Mayor v. O'Neill, 1 Pa. St. 342; 
 Walls V. Bailey, 49 N. Y. 472, 10 Am. Rep. 407. 
 
 67 Walls V. Bailey, 49 N. Y. 464, 10 Am. Rep. 407. 
 
 »8 Sutton V. Tatham, 10 Adol. & Ell. 27; Bayliffe v. Butterworth, 1 Bxcli. 
 425; Walls v. Bailey, 30 N. Y. 464, 10 Am. Rep. 407; Harris v. Tumbridge, 
 83 N. Y. 92„ 38 Am. Rep. 398; Samuel v. Oliver, 130 111. 73. 
 
§ 465 PAEOL EVIDENCB. 585 
 
 entered into their contract with reference to such usage, it is clear 
 that proof of the usage should not be received, if it contradicts ex- 
 pressly or by implication the language of the contract. As was said 
 by Lord Lyndhurst : ■>" " Usage may be admissible to explain what is 
 doubtful; it is never admissible to contradict what is plain." This 
 principle has long been generally recognized as the one which 
 should govern, although it would be difficult to reconcile many of 
 the decisions which have attempted to apply the rule to the special 
 contracts which were under consideration.^" It need hardly be 
 
 «8Blaokett v. Royal Ins. Co., 2 Cromp. & J. 249; DeCordora v. Bamum, 
 130 N. Y. 615, 27 Am. St. Rep. 538; Sheffield Furnace Co. v. Hull Co., 101 
 Ala. 446; Baltimore Base Ball Club v. Pickett, 78 Md. 375; Gilbert v. 
 McGinnis, 114 111. 28 ; Portland Flouring Mills Co. v. Ins. Co., 130 Fed. 860. 
 
 60 Courts have refused to receive evidence of a custom by which other 
 property, tor example, other brands of flour of equal quality to that speci- 
 fied In the contract might he delivered, Seals v. Terry, 2 Sandf. (N. Y.) 
 127; of the understanding by stock dealers of the notice to be given under 
 a contract providing for delivery at buyer's option, "by giving ten days' 
 notice at any time in December," Wilmerins v. McGaughey, 30 Iowa, 205, 
 6 Am. Rep. 673 and note; of a usage where the contract provided for 
 delivery of goods on cars at the place of shipment, that the place of de- 
 livery and payment is the place of destination, Duncan v. Green, 43 Iowa, 
 678; of a usage providing for a different mode of compensation than that 
 specifically provided for In the contract. Partridge v. Insurance Co., 15 
 Wall. 573; Detroit Advertiser v. Detroit, 43 Mich. 116; Lonergan v. Court- 
 ney, 75 111. 580; of the usage of the business of hanlcing where a note is 
 given to the bank with authority to sell certain stock placed as collateral 
 for the nonperformance of a promise, whereby the bank had the right to 
 dispose of collaterals at pleasure and on payment or tender of the debt 
 to return an equal number of the shares of the same kind of stock, Allen 
 v. Dykers, 3 Hill, 593; of a usage to change the well known meaning of 
 the letters C. O. D. on an express receipt, Collender v. Dinsmore, 55 
 N. Y. 200, 14 Am. Rep. 224; of a custom where the contract Is to transport 
 stock In open cars to carry stock In other kind of cars, Sager v. Ports- 
 mouth Ry. Co., 31 Me. 228, 50 Am. Dec. 659; of a usage inconsistent with 
 the terms of an express contract for the sending of a telegram, Grinnell 
 V. Western XJ. Tel. Co., 113 Mass. 299, 18 Am. Rep. 485; of a usage that an 
 insurance policy In blank is equivalent to one "for whom it may con- 
 cern," Turner v. Burrows, 5 Wend. 541; of usage to establish a rate of 
 premium on insurance policies different from that agreed upon. Insurance 
 Co. V. Wright, 1 Wall. 456; of a usage providing for a different liability 
 on the part of insurance company than that specified in the contract, Bar- 
 gett y. Orient Ins. Co., 3 Bosw. (N. Y.) 385; of a usage giving the waygoing 
 crop to the tenant when the lease provides that it shall go to the landord, 
 Stultz V. Dickey, 5 Binn. (Pa.) 285, 6 Am. Dec. 411; of a custom of termin- 
 ating a contract for hire at any time without notice where the hire is for a 
 stated time, Peters v. Stavely, 15 Law T. N. S. 275. 
 
586 THE liAW OF EVIDENCE. § 466 
 
 stated that parties are not compelled to incorporate usages, no mat- 
 ter how well established, into their written agreements. It may, 
 however, be the maia object of the writing to furnish evidence that 
 in the particular case the usage has been disperised with. The rule 
 on this subject was stated by Davis, J., in a decision by the supreme 
 court of the United States : ' ' The proper offtee of a custom or usage 
 in trade is to ascertain and explain the meaning and intention of the 
 parties to a contract, whether written or parol, which could not 
 be done without the aid of this extrinsic evidence. It does not go 
 beyond this, and is used as a mode of interpretation on the theory 
 that the parties knew of its existence and contracted with reference 
 to it. It is often employed to explain words or phrases in a con- 
 tract of doubtful signification, or which may be understood in differ- 
 ent senses according to the subject matter to which they are applied. 
 But if it be inconsistent with the contract, or expressly or by neces- 
 sary implication contradicts it, it cannot be received in evidence to 
 affect it. " °^ An English case well illustrates the rule that, if there 
 is an implied contradiction of the contract, the usage is not admis- 
 sible. The custom of the country required a tenant to plow, sow and 
 manure a certain portion of the land in the last year of his tenancy 
 and entitled him on quitting to receive from the landlord a reason- 
 able compensation for his labor, seed and manure. It was held that 
 evidence of such custom should be rejected where the tenant had 
 covenanted to plow, sow and manure in accordance with the custom, 
 and where he was to be paid for the ploughing.*^ 
 
 § 466 (473). Proof that the usage is general. — Since it is nec- 
 essary that there should be knowledge of the usage, either actual or 
 presumptive, before parties are bound thereby, it frequently becomes 
 important to show that the usage is general in its character. In most 
 cases it may not be possible to prove the actual knowledge of the 
 usage ; and in such cases the usage must be shown to be so notorious 
 or general that notice may be presumed. It is, of course, not neces- 
 essary to the validity of a us^ge that it should exist throughout the 
 whole country. It suffices to show that the usage exists generally 
 among the persons of any given class in a city or locality."' It is 
 
 «i Barnard v. Kellogg, 10 Wall. 390. 
 
 «2Hutton V. Warren, 1 M. & W. 477; Webb v. Plummer, 2 Bam. & 
 Aid. 746. 
 
 «3 Gleason v. Walsh, 43 Me. 397; Thompson v. Hamilton, 12 Pick. 425, 
 23 Am. Dec. 619; Perkins v. Jordan, 35 Me. 23; Clark v. Baker, 11 Met. 
 186, 45 Am. Dec. 199; Lane v. Union Nat. Bank, 3 Ind. App. 299; Shute T. 
 Bills, 191 Mass. 433, 78 N. E. 96, 
 
§ 467 PAKOL BVIDENCB. 587 
 
 very clear that a few isolated instances of a mode of doing business 
 do not establish a usage of trade.'* The rule was thus stated in a 
 Massachusetts case in the charge to the jury which was approved by 
 supreme court: "It must be a custom of sufSciently long continu- 
 ance that all parties may be presumed to know it; it must be uni- 
 form; it must be universal. It does not show a usage of trade to 
 show that many persons or a majority of persons engaged in a busi- 
 ness practice in a particular mode. To constitute a usage of trade, 
 so as to have it affect the contract, the practice must be universal. 
 It must be the mode in which persons in that trade do their busi- 
 ness.""'' It has been held, however, that there may be exceptions 
 to the usage, provided they are such as prove the rule."' 
 
 § 467 (474). To admit parol proof the usage must be lawful. — 
 Evidence is not admissible to prove a usage which would contra/vene 
 the statute law of the forum."^ It has frequently been declared that 
 no usage can be shown in opposition to the established rules of com- 
 mon law; °' but many cases might be cited in which proof has been 
 allowed of usages inconsistent with common law rules. "But if it 
 conflicts with an established rule of public policy, which it is not to 
 the general interest to disturb, if its effect is injurious to the parties 
 
 8* Berry v. Cooper, 28 Ga. 543; Champion v. Wilson, 94 Ga. 184; Bank 
 V. Abell, 29 Md. 483; Larkin v. Lumber Co., 42 Mich. 296. 
 
 85 Porter v. Hills, 114 Mass. 110; Chicago, M. & St P. Ry. Co. v. Llnde- 
 man, 143 Fed. 946. 
 
 68 Champion v. Wilson, 64 Ga. 184; Berry v. Cooper, 28 Ga. 543; Bank 
 V. Abell, 29 Md. 483; Larkin v. Lumber Co., 42 Mich. 296. 
 
 67 The rule has been applied to usage to collect usurious interest, Dun- 
 ham V. Dey, 13 Johns. 40; Dunham v. Gould, 16 Johns. 367, 8 Am. Dec. 
 323; Green v. Tyler, 39 Pa. St. 361; Jones v. McLean, 18 Ark. 456; Niag- 
 ara Bank v. Baker, 15 Ohio St. 68; Gare v. Lewis, 109 N. C. 539; usage by 
 which notaries in New York made demand on tills of exchange different 
 from that provided by statute, Otsego Bank v. Warren, 18 Barb. 290; Com- 
 mercial Bank V. Varnum, 3 Lans. (N. Y.) 86; attempt to enlarge the 
 power of officers whose authority is defined by statute of usages, Walters 
 V. Senf, 115 Mo. 524, 22 S. W. 511; to the sales of a largernumber of pounds 
 to the ton than required by sta;tute, Evans v. Myers, 25 Pa. St. 114; Weaver 
 V. Fegely, 29 Pa. St. 27, 70 Am. Dec. 151; or a larger nimiber of ounces per 
 pound of butter, Noble v. Durell, 3 T. R. 271. 
 
 88Bdie V. East India Co., 1 W. Black. 295, 2 Burr. 1216; Eager v. Atlas 
 Ins. Co., 14 Pick. 141, 25 Am. Dec. 363; Bapp v. Palmer, 3 Watts (Pa.) 
 178; Raisin v. Clark, 41 Md. 158, 20 Am. Rep. 66; Thompson v. Riggs, 5 
 Wall. 663; Barnard v. Kellogg, 10 Wall. 383; Frith v. Barker, 2 Johns. 
 327; Southwestern Freight Co. v. Stanard, 44 Mo. 71, 100 Am. Dec. 255; 
 Meaher v. Lufkin, 21 Tex. 383; Inglebright v. Hammond, 19 Ohio, 337, 53 
 Am. Dec. 430. 
 
588 THE LAW OF EVIDENCE. § 468 
 
 themselves in their relations to each other, if, in short, it is an un- 
 just, oppressive or impolitic usage, then it will not be recognized in 
 courts of justice, for it will lack one of the requisites of a valid cus- 
 tom, viz. reasonableness." "^ 
 
 § 468 (475). Parol evidence as to consideration. — ^It is another, 
 exception to the general rule under discussion that, in actions where 
 written agreements are involved, the consideration stated is gener- 
 ally open to explanation. Thus, in actions on notes or other con- 
 tracts, the defense is frequently interposed that the agreement was 
 without consideration, or that the consideration has failed; and 
 proof sustaining such a defense is admissible, provided it does not in 
 other repects vary the legal effect of the contract.'" For example, 
 when the consideration stated has failed, another can be proved ; " if 
 a bill of sale, release or other written instrument ''" fails to state the 
 entire consideration, the same may be shown ; and if the considera- 
 tion stated is in ambiguous terms or if it is clear that the whole con- 
 sideration is not stated the true consideration may be proved,''^ and 
 it is now the rule generally adopted that the real consideration may 
 be proved although different from that expressed.''* But if the 
 
 09 Lawson, Usages, 465 et seg. and many Illustrations. See § 462 supra. 
 
 70 Long v. Davis, 18 Ala. 801; Waymack v. Heilman, 26 Ark. 449; Petti- 
 bone V. Roberts, 2 Root (Conn.) 258; Smith v. Brooks, 18 Ga. 440; Stack- 
 pole V. Arnold, 11 Mass. 27, 6 Am. Dec. 150; Erwin v. Saunders, 1 Cow. 
 249; Foy v. Blackstone, 31 111. 538, 83 Am. Dec. 246; Meyer v. Casey, 57 
 Miss. 615; Griffin v. Cowan, 15 La. An. 487; Anthony v. Harrison, 74 N. T. 
 613; Herrick v. Bean, 20 Me. 51; Eaton v. Eaton, 35 N. J. L. 290; Thomp- 
 son V. Thompson, 9 Ind. 323, 68 Am. Dec. 638 and note; Cross v. Rowe, 
 22 N. H. 77; Fechheimer v. Trounstine, 15 Colo. 386; Barbee v. Barbee, 
 108 N. C. 581; Macomb v. Wilkinson, 83 Mich. 486; Halpin v. Stone, 78 
 Wis. 183; Fitzpatrick v. Moore, 53 Ark. 4; Walker v. Haggerty, 30 Neb. 
 120; Pray v. Rhoades, 42 Minn. 93; Volkenand v. Drum, 154 Pa. St. 616. 
 See note, 1 L. R. A.^ 816-817. 
 
 "Leifchild's Case", L. R. 1 Eq. 231; TuU v. Parlett, 1 Moody & M. 472; 
 Dorsey v. Hagard, 5 Mo. 420; Cowan v. Cooper, 41 Ala. 187; Barbee v. 
 Barbee, 109 N. C. 299, where the consideration stated was an advance- 
 ment. 
 
 72 Bin of sale, Nedvidek v. Meyer, 46 Mo. 600; Halpin v. Stone, 78 Wis. 
 183; release, Pennsylvania Ry. Co. v. Dolan, 6 Ind. App. 109; Osborne v. 
 Stringham, 1 S. Dak. 406; endorsement of note. Farmers' Sav. Bank v. 
 Hausmann, 114 la. 49, 86 N. W. 31. 
 
 73 street v. Robertson (Tex. Civ. App.), 66 S. W. 1120; Mills v. Dow, 
 133 U. S. 423; First Nat. Bank v. Snyder, 79 la.' 191, 44 N. W. 356. 
 
 7* Butt V. Smith, 121 Wis. 566. Thus it the consideration of a mortgage 
 is stated to be for money advanced, it may be shown to have been as 
 security for the indorsement of a note, McKinster v. Babcock, 26 N. Y. 
 
^ 469 PAROL EVroENCB. 589 
 
 parol testimony proposed tends to change the contract itself, instead 
 jf the consideration, it should he rejected.''^ 
 
 § 469 (476). Proof of consideration in deeds. — ^Among the 
 earlier decisions there was much conflict as to the rule in respect to 
 deeds and other instruments under seal ; and in numerous cases it 
 was held that the clause stating the consideration must he held con- 
 clusive like other parts of the instrument, and not open to contra- 
 diction and explanation.''" But the rule is now well settled that al- 
 though the consideration expressed in the deed is prima facie the 
 sum a^eed to be paid,'' it may still he shown, as between the par- 
 ties, that the real consideration of a deed or mortgage is different 
 from that expressed.''^ The rule on this subject has been thus stated 
 
 378; Harrington v. Samples, 36 Minn. 200; or that It was given partly 
 as security for the debt of a third person, Metzner v. Baldwin, 11 Minn. 
 150; or to secure future responsibilities, Poster v. Reynolds, 38 Moi 553; 
 McKlnster v. Babcock, 37 Barb. 265; Truscott v. King, 6 N. Y. 147; Law- 
 rence V. Tucker, 23 How. 14; or merely as collateral security, Chester v. 
 Bank of Kingston, 16 N. Y. 336; Pond v. Eddy, 113 Mass. 149; PuUwood v. 
 Blanding, 26 S. C. 312; Kimball v. Myers, 21 Mich. 276, 4 Am. Rep. 487; 
 Mulford V. MuUer, 1 Keyes (N. Y.) 31; Aller v. Aller, 40 N. J. L. 446. So 
 It may be shown than an instrument silent upon the subject was executed 
 for a sufficient consideration. Trustees v.. Saunders, 84 Wis. 570, 54 N. W. 
 1094; Guidery v. Green, 95 Cal. 630. 
 
 T5 Stillings V. Timmins, 152 Mass. 147, 25 N. E. 50; Indianapolis Union 
 R. Co. V. Houlihan, 157 Ind. 494, 60 N. E. 943; Milch v. Armour Packing 
 Co., 66 Kan. 229, 56 Pac. 1; Stevens v. Wiley, 165 Miss. 932, 18 So. 428; 
 Hubbard y. Marshall, 50 Wis. 322, 6 N. W. 497j Kahn v. Kahn, 94 Tex. 
 114, 58 S. W. 825. 
 
 76 Schemerhorn v. Vanderheyden, 1 Johns. 139, 3 Am. Dec. 304 and 
 note; Maigley v. Hauer, 7 Johns. 341. See valuable note discussing the 
 whole subject of parol evidence as to the consideration of deeds in 20 
 L. R. A. 101-114. 
 
 ^^ Clements v. Landrum, 26 Ga. 401; Belden v. Seymour, 8 Conn 304, 21 
 Am. Dec. 661; McCrea v. Purmort, 16 Wend. 460, 30 Am. Dec. 103 and 
 note; Barbee v. Barbee, 108 N. C. 581', 13 S. B. 215. 
 
 78 Morris Canal Co. v. Ryerson, 27 N. J. L. 467; Silvers v. Potter, 48 N. 
 J. Eq. 539, 22 Atl. 584; See v. Mallonee, 107 Mo. App. 721, 82 S. W. 557; Fall 
 V. Glover, 34 Neb. 522; Rabsuhl v. Lack, 35 Mo. 316; Hoover v. Binckley, 
 66 Ark. 645, 51 S. W. 73; Carty v. Connolly, 91 Cal. 15, 27 Pac. 599; Bris- 
 tol Sav. Bank v. Steger, 86 la. 344, 53 N. W. 265; Cardinal v. Hadley, 
 158 Mass. 352, 33 N. B. 575, 35 Am. St. Rep. 492; Mueller v. Cook, 126 Wis. 
 504; Hill v. Whidden, 158 Mass. 267; Louisville Ry. Co. v. Neafus, 93 Ky. 
 53; Pierce v. Brew, 43 Vt. 292; Cutler v. Steele, 93 Mich. 204; Harper v. 
 Perry, 28 Iowa, 63; Parker v. Foy, 43 Miss. 260, 5 Am. Rep. 484; Reynolds 
 V. Vilas, 8 Wis. 471, 76 Am. Dec. 238; McCrea v. Purmort, 16 Wend. 460, 
 30 Am. Dec. 103; Halpin v. Stone, 78 Wis. 183. The true consideration 
 may be shown where none is expressed in the deed, Warren v. Walker, 23 
 
590 THE LAW OP EVIDENCE. § 469 
 
 in a Maine case: "The only effect of the consideration clause in a 
 deed is to estop the grantor from alleging that it was executed with- 
 out consideration, and to prevent a resulting trust in the grantor. 
 For every other purpose, it may be varied or explained by parol 
 proof. The grantor may show, notwithstanding the acknowledgment 
 of payment, that no money was paid, and recover the price, in whole 
 
 Me. 453; where the consideration is expressed in general terms, Pierce v. 
 Brew, 43 Vt. 292. Then the particular consideration may he shown, as 
 that the grantee agreed to assume a certain incumbrance. Hays v. Peck, 
 107 Ind. 389; McDill v. Gunn, 43 Ind. 315; Bristol Bank v. Stiger, 86 Iowa, 
 344; or it may be shown to have been 'property, instead of money, as ex- 
 pressed, Carneal v. May, 2 A. K. Marsh. (Ky.) 587, Vi Am. Dec. 453; Steele 
 V. Worthlngton, 2 Ohio, 182; McCrea v. Purmort, 16 Wend. 460, 30 Am. Dec. 
 103 ; the sum named in the deed may be shown to include payment of a deM 
 as well as the purchase price, Harwood v. Harwood, 22 Vt. 507; to be in 
 satisfaction of claims, as for all the grantees' prior trespasses on the land 
 conveyed, Hodges v. Heal, 80 Me. 281, 6 Am. St. Rep. 199; that the real con- 
 sideration was the extinguishment of a debt, Mason v. Buchanan, 62 Ala. 
 110; that the consideration was paid hy another person than the one 
 named in the instrument, Anthony v. Chapman, 65 Cal. 73; Marks v. 
 Spencer, 81 Vt. 751; that there was a consideration in addition to the one 
 stated. Vail v. McMillan, 17 Ohio St. 617; Miller v. Goodwin, 8 Gray, 542; 
 Henderson v. Dodd, 1 Bailey Ch. (S. C.) 138; Perry v. Central Ry. Co., 5 
 Coldw. (Tenn.) 138; Hayden v. Mentzer, 10 Serg. & R. (Pa.) 329; Wood 
 Machine Co. v. Gaertner, 55 Mich. 453; BoUes v. Sachs, 37 Minn. 315; 
 Nichols V. Burch, 128 Ind. 324; Mobile Bank y. McDonnell, 89 Ala. 434, \i 
 Am. St. Rep. 137; Fraley v. Bentley, 1 Dak. 25; Nedvidek v. Meyer, 46 
 Mo. 600; that the grantee should hold the entire consideration and apply 
 it to extinguish existing incumbrances, Becker v. Knudson, 86 Wis. 14; 
 when after the mention of a particular consideration, the clause in the 
 deed read "and for yarious other considerations" proof of such other con- 
 siderations, was allowed, Benedict v. Lynch, 1 Johns. Ch. (N. Y.) 381, 7 
 Am. Dec. 491; Norris v. Ham, R. M. Charlt. (Ga.) 267; Pomeroy v. Bailey, 
 43 N. H. 118; Chesson v. Pettijohn, 6 Xred. (N. C.) 121; Tull v. Parlett, 
 1 Moody & M. 472; where nominal consideration is expressed, other con- 
 sideration may be shown, Hattersley v,. Bissett, 51 N. J. Eq. 597, 29 Atl. 
 187, 40 Am. St. Rep. 532; where the action is for breach of covenant, the 
 true consideration may be shown though it differs from that expressed, 
 Doulon V. Evans, 40 Minn. 501, 42 N. W. 472; so it may be shown that the 
 real consideration for a deed was an advancement. Palmer v. Culbertson, 
 143 N. Y. 213, 38 N. E. 199; Barber v. Barber, 108 N. C. 581, 13 S. E. 216, 
 (but see, Schmidt v. Schmidt, 123 Wis. 295, 101 N. W. 678) ; or a gift, 
 velten v. Carmack, 23 Or. 282, 31 Pac. 658; or contemplated marriage, 
 Tolman v. Ward, 86 Me,. 303, 29 Atl. 1081, 41 Am. St. Rep. 556; or the 
 support of grantor, Coleman v. Gammon (la.), 83 N. W. 898; that the 
 grantor agreed as part of the consideration to pay existing incumbrance. 
 Harts V. Emery, 184 111. 560, 56 N. E. 865; Lowry v. Downey, 150 Ind. 
 364, 50 N. E. 79; Langan v. Iverson, 78 Minn. 299, 80 N. W 1051. 
 
§ 469 PABOL EVIDENCE. 691 
 
 or part, against the grantee." " • It has been held in numerous cases 
 that while the grantor cannot so far impeach the deed as to defeat 
 the title which has passed by showing want of consideration, yet he 
 may show that the consideration remains unpaid in an action to re- 
 cover the same.** So in actions on a warranty in a deed, the defend- 
 ant may show for the purpose of reducing damages that the real 
 consideration was less than that stated.'^ But in an action on a 
 £ovenant of warranty brought by one to whom the grantee in a deed 
 had conveyed, it was held that the grantor was not at liberty to show 
 that the consideration was less than the sum stated in the deed.'^ 
 Although the grantor cannot show want of consideration to defeat 
 the conveyance, it need hardly be said that, as against strangers 
 who attack the conveyance for fraud, no conclusive force can be 
 claimed for the recital which states the consideration.'' Generally, 
 as against third persons, the recital of consideration is no evidence 
 whatever ; ** and as againfet creditors or innocent purchasers without 
 notice, the mere statement that a nominal consideration has been 
 paid raises no presumption of a substantial consideration. In such 
 cases the burden is on the grantee to prove a sufficient considera- 
 tion.*"* It will be seen from the illustrations already given that the 
 tendency of later decisions is in the direction of the doctrine that 
 the acknowledgment of payment in a deed is open to almost unlim- 
 ited explanation, — ^in short, that the consideration clause is of no 
 greater effect than a separate receipt for the money which might al- 
 ways be explained.*' It is held however, by one class of cases that 
 
 7» Goodspeed v. Puller, 46 Me. 147, 71 Am. Dec. 576 and note; Cardinal 
 T. Hadley, 158 Mass. 352, 35 Am. St. Rep. 492. 
 
 80 'Wilkinson v. Scott, 17 Mass. 249; Kumler v. Ferguson, 7 Minn. 442; 
 Rhine v. Ellen, 36 Cal. 362; Bullard v. Briggs, 7 Pick. 533, 19 Am. Dec. 
 292; McCrea v. Purmort, 16 Wend. 460, 30 Am. Dec. 103; Belden v. Sey- 
 mour, 8 Conn. 304, 21 Am. Dec. 661; Watson v. Blaine, 12 Serg. & R. (Pa.) 
 131, 14 Am. Dec. 669; Whitbeck v. Whitbeck, 9 Cow. 266, 18 Am. Dec. 503; 
 Eppes V. Randolph, 2 Call (Va.) 185; Duval v. Bibb, 4 Hen. & M. (Va.) 
 113, 4 Am. Dec. 506. 
 
 81 Garrett v. Stewart, 1 McCord (S. C.) 514. 
 
 8? Greenvault v. Davis, 4 Hill, 643. 
 
 83 Rose V. Taunton, 119 Mass. 99; Spaulding v. Knight, 116. Mass. 148. 
 
 84Tutwiler v. Munford, 68 Ala. 124; Rose v. Taunton, 119 Mass. 99. 
 
 85 Kelson v. Kelson, 10 Hare, 385. 
 
 86 McCrea v. Purmort, 16 Wend. 460, 30 Am. Dec. 103; Goodspeed v. 
 Fuller, 46 Me. 141, 71 Am.' Dec. 572; Witbeck v. Waine, 16 N. Y. 532; Mc- 
 Kinster v. Babcock, 26 N. Y. 378; Wilkinson v. Scott, 17 Mass. 249; Col- 
 lins V. Tillou, 26 Conn. 368, 68 Am. Dec. 398; Harrison v. Castner, 11 
 Ohio St. 339; Holbrook v. Holbrook, 30 VL 432; Swafford v. Whipple, 3 
 
592 THE LAW OF EVIDENCE. § 470 
 
 when the deed contains a warranty against incumbrances parol 
 proof is inadmissible to show an agreement by the grantee to pay 
 the incumbrances.^' 
 
 § 470 (477). Same— In cases of fraud. — As has been stated, the 
 widest latitude is allowed to those attacking a conveyance for fraud. 
 Whatever the consideration that is stated they may show the actual 
 facts, as that the conveyance was a gift or advancement, or that it 
 was for a less consideration than the one stated.^' In order to sup- 
 port the deed when attacked by third persons it has in such eases 
 been held admissible to show that there was another consideration 
 or one in addition to that named in the deed, as that, in addition to 
 the expressed consideration of love and affection, there was also a 
 valuable consideration.*" As between the parties and privies to a 
 deed, evidence was held admissible to show that a conveyance was 
 in reality an advancement from father to son, although a money con- 
 sideration was the only one recited."" But in other cases it has been 
 held that, where only a consideration of love and affection is stated, 
 a money consideration cannot be proved, in other words, that the 
 deed cannot be changed by showing a consideration of an entirely 
 different species."^ It must be borne in mind that, although wide 
 
 Iowa, 261, 54 Am. Dec. 498; Bolles v. Beach, 22 N. J. L. 680; Hamilton v. 
 Maguire, 3 Serg. & R. (Pa.) 355; Prichard v. Brown, 4 N. H. 400; Peck v. 
 Vandenberg, 30 Cal. 23; Ewmg v. Wilson, 132 Ind. 223. See note, 3 Am. 
 Dec. 306, as to parol proof. As to execution and delivery of deeds, see 
 § 471 infra. 
 
 87 Slmanovich v. Wood, 145 Mass. 180, 13 N. E. 391; Flynn v. Boumeouf, 
 143 Mass. 277, 9 N. E. 650, 58 Am. Rep. 135. But see, Perkins v. Mc- 
 AuUffe, 105 Wis. 582, 81 N. W. 645; Johnson v. EUmen, 24 Tex. Civ. App. 
 43, 59 S. W. 605. 
 
 88 Gelpcke v. Blake, 19 Iowa, 263; Johnson v. Taylor, 4 Dev. (N, C.) 355; 
 Myers v. Peek, 2 Ala. 648; Gordon v. Gordon, 1 Met. (Ky.) 285; Abbott v. 
 Marshall, 48 Me. 44; McKinster v. Babcock, 26 N. T. 378; Foster v. Rey- 
 nolds, 38 Mo. 553; Metzner v. Baldwin, 11 Minn. 150. 
 
 89 Gale V. Williamson, 8 M. & W. 405; Brown v. Lunt, 37 Me. 423; Walt 
 V. Wait, 28 Vt. 350; Buckley's Appeal, 48 Pa. St. 491, 88 Am. Dec. 468; 
 Potter V. Everitt, 7 Ired. Eq. (N. C.) 152; Gordon y. Gordon, 1 Met. (Ky.) 
 285; Miller v. Bagwell, 3 McCord (S. C.) 562; Hair v. Little, 28 Ala. 236; 
 Bystra v. Capelle, 61 Mo. 578; Reynolds v. Vilas, 8 Wis. 471, 76 Am. Dec. 
 238. But see, Ellinger v. Growl, 17 Md. 361; Harrison v. Castner, 11 
 Ohio St. 339. 
 
 00 Clifford V. Turrill, 9 Jur. 633; Harrison v. Castner, 11 Ohio St 339; 
 Rockhill V. Spraggs, 9 Ind. 30, 68 Am. Dec. 607. 
 
 81 Emery v. Chase, 5 Me. 232; Hum v. Soper, 6 Harr. & J. (Md.) 276; 
 firiswold V. Messenger, 6 Pick. 517; Ellinger v. Growl, 17 Md. 361; Pea- 
 cock T. Monk, i Ves. Sr. 127. 
 
§ 471 PAROL EVIDENCa 593 
 
 latitude is given in other eases, it is not admissible as between par- 
 ties and their privies, in the absence of fraud, to explain or con- 
 tradict the consideration expressed for the purpose of defeating or 
 changing the legal effect of the conveyance.^' 
 
 § 471 (478) . Parol proof as to execution and delivery. — On the 
 principle so often referred to that parol evidence is admissible to 
 show that there never was any actual agreement, it may of course 
 be shown that there was no proper execution or delivery of the ap- 
 parent agreement."' The question has most frequently arisen in re- 
 spect to negotiable paper, and is elsewhere discussed.'* If a deed 
 has never been delivered or if a party to an instrument obtains pos- 
 session thereof by fraud or in any improper manner, this of neces- 
 sity must be shown by parol ; and such evidence is no contradiction 
 of the writing."" It is a familiar rule that parol proof will be re- 
 ceived to show that a deed was delivered in escrow,^^ and when an 
 agreement was without consideration and was delivered on condi- 
 tions, such conditions may be proved." The rule was thus stated in 
 
 92 Wilkinson v. Scott, 17 Mass. 257; Shephard v. Little, 14 Johns. 211; 
 Morse v. Shuttuck, 4 N. H. 229, 17 Am. Dec. 419; Emery v. Chase, 5 Me. 
 332; Brooks v. Maltbie, 4 Stew. & P. (Ala.) 96; McCrea v. Furmort, 16 
 Wend. 460, 30 Am. Dec. 103; Belden v. Seymour, 8 Conn. 304, 21 Am. Dec. 
 661; Arnold v. Arnold, 137 Cal. 291, 70 Pao. 23; Bruns v. Schreiber, 43 
 Minn. 468, 45 N. W. 861. 
 
 98 See §§ 435, 436 supra. It may be shown that the party signing the 
 instrument was deceived, that its contents were falsely stated to him, or 
 that his signature was obtained by the fraudulent substitution of a spur- 
 ious document, Franchot v. Leach, 5 Cow. 506; Dale v. Roosevelt, 9 Cow. 
 311; Van Valkenburgh v. Rouk, 12 Johns. 337; Johnson v. Miln, 14 Wend. 
 195; Tribble v. Oldham, 5 J. J. Marsh. (Ky.) 141; that the note was signed 
 ■ with a fictitious name, Bartlett v. Tucker, 104 Mass. 336, 6 Am. Rep. 240; 
 that the paper was never intended as a contract, Jones v. Hardesty, 10 Gill. 
 & J. (Md.) 404, 32 Am. Dec. 180; or that the paper was a mere memoran- 
 dum, and not a contract, Lathrop v. Bramhill, 64 N. Y. 365. 
 
 94 See § 495 infra. 
 
 95 Roberts v. Jackson, 1 Wend. 478; Clark v. Gifford, 10 Wend. 310; 
 Black V. Sharkey, 104 Cal. 279; Jackson v. Myers, 11 Wend. 533. As to 
 deeds in general, see §§ 485 et seg. infra. 
 
 96Beall V. Poole, 27 Md. 645; Demesmey v. Gravelin, 56 111. 93. But not 
 that the deed was delivered in escrow directly to the grantee or his 
 agent, Hubbard v. Greeley, 84 Me. 340; Morrall v. Munn, 5 N. Y. 229; 
 Duncan v. Pope, 47 Ga. 445. But it may be shown that the grantee re- 
 ceived the deed merely for inspection, Curry v. Colburn, 99 Wis. 319, 
 74 N. W. 778, 67 Am. St. Rep. 860. 
 
 97Cuthrell v. Cuthrell, 101 Ind. 375; Julliard v. Chaffee, 92 N. Y. 535; 
 Wilson v. Powers, 131 Mass. 539; Skaarass v. Finnegan, 31 Minn. 48; 
 Beall V. Poole, 27 Md. 675; Clever v. Kirkman, 33 L. T. Rep. N. S. 672. 
 
594 THE LAW OF EVIDENCE. § 471 
 
 a Massachusetts case : "The manual delivery of an instrument may 
 always be proved to have been on a condition which has not been 
 fulfilled, in order to avoid its effect. This is not to show any mod- 
 ification or alteration of the written agreement, but to show that it 
 never became operative, and that its obligation never commenced." °' 
 The question whether a paper setting forth a bilateral executory con- 
 tract, signed only by one of the parties, was delivered and assented 
 to as containing the whole contract is one for the jury under suitable 
 instructions; and evidence of previous and contemporaneous con- 
 versations between the parties to prove that the paper was only a 
 partial memorandum is admissible, this being consistent on its face 
 with that view.*' In a New York case it was held that, in an action 
 on a written contract for the sale of lumber on credit, the defendants 
 might show a verbal agreement with the plaintiff that their ohliga- 
 tion to sell should he contingent on their obtaining satisfactory re- 
 ports as to the plaintiff's financial condition. The court held the 
 case within the rule, now quite well established, that parol evidence 
 is admissible to show that a written paper, which in form is a com- 
 plete contract of which there has been a manual tradition, was 
 nevertheless not to become a binding contract until the perform- 
 ance of some condition precedent resting in parol. ^ But it cannot 
 be shown that an agreement was made to the effect that a deed 
 
 »8 Wilson V. Powers, 131 Mass. 539; Hurlburt v. Dusenberg, 26 Colo. 
 240, 57 Pac. 860; Oakland Cemetery Ass'n v. Lakins, 126 la. 121, 101 N. W. 
 778; Candle v. Ford (Ky.), 72 S. "W. 270; Nutting v. Ins. Co., 98 
 Wis. 26, 73 N. W. 432; Sweet v. Stevens, 7 R. I. 375; Rawlins v. Fisher, 24 
 Ind. 52; Reynolds v. Robinson, 110 N. Y. 654; Burke v. Dulaney, 153 V. S. 
 228; Tug River Coal & Salt Co. v. Brigel, 86 Fed. 818; Elastic Tip Co. v. 
 Graham, 185 Mass. 597, 71 N. B. 117; Fulton v. Priddy, 123 Mich. 298, 82 
 N. W. 65, 81 Am. St. Rep. 201; Mendenhall v. Ulrich, 94 Minn. 100, 101 
 N. W. 1057; Cleveland Ref. Co. v. Dunning, 115 Mich. 238, 73 N. W. 239. 
 
 »» Thomas v. Barnes, 156 Mass. 581; Edwards Lumber Co. v. Baker, 2 
 N. Dak. 289; Courtenay v. Fuller, 65 Me. 156; Pym v. Campbell, 6 El. & B. 
 370, 88 E. C. L. 370. It may be shown by parol that a deed was delivered to 
 the grantee to await his decision whether he would accept or not, Brackett 
 V. Barney, 28 N. Y. 340; that it was to be carried by the grantee to a third 
 party, Gilbert v. North Am. Fire Ins. Co., 23 Wend. 43, 35 Am. Dec. 543; 
 that it was to be examined and returned, if found defective. Graves v. Dud- 
 ley, 20 N. Y. 76; that it was delivered to await complete execution by other 
 parties, Chouteau v. Suydam, 21 N. Y. 179; Brackett v. Barney, 28 N. Y. 
 333; that the contract should not be binding until other signatures had 
 been secured. Manufacturers Furn. Co. v. Kromer, 7 S, D. 463, 64 N. W. 
 528. 
 
 1 Reynolds v. Robinson, 110 N. Y. 654; Golden v. Meier, 129 Wis. 14, 
 107 N. W. 27. 
 
§ 472 PAROL EVIDENCE. 595 
 
 should not be operative, or that the land should be conveyed with- 
 out consideration.^ It is on the same principle that it has often 
 been held that one of the signers of a bond, when it is not executed 
 by all whose names appear on its face, may show that there was an 
 express agreement that it should not be operative, unless signed by 
 aU.* It is no violation of the general rule to admit parol proof 
 that a written instrument w£is in fact executed, when this fact 
 comes in issue incidentally or collaterally ; and where no attempt is 
 made to prove the contents, the paper need not be produced.* In 
 this connection we will give one of the exceptions as stated very 
 broadly by Mr. Stephen: Parol evidence may be given to prove 
 "the existence of any separate oral agreement constituting a con- 
 dition precedent to the attaching of any obligation under any such 
 contract, grant or disposition of property." ° In an English case 
 which illustrates this rule, a lease was to be given on a parol pro- 
 mise that the rabbits of the premises would be destroyed. The 
 lease, however, did not mention the destruction of the rabbits, but 
 simply reserved sporting rights. Parol proof of the verbal agree- 
 ment was allowed." 
 
 § 472 (479). Parol proof of latent ambiguities. — ^A latent am- 
 biguity is described by Lord Bacon to be "that which seemeth cer- 
 tain and without ambiguity for anything that appeareth upon the 
 deed or instrument, but there is some collateral matter out of the 
 deed that breedeth the ambiguity.'" In a will case, the supreme 
 court of the United States thus classified latent ambiguities : ' ' La- 
 tent ambiguities are of two kinds: first, where the description of 
 the devisee or the property devised is clear upon the face of the will, 
 but it turns out that there is more than one estate or person to 
 which the description applies; and second, where the devisee or 
 property devised is imperfectly or, in some respects, erroneously 
 
 2 Hutchins v. Hutchins, 98 N. T. 56. 
 
 s Pawling v. United States, 4 Cranoh, 219 ; State Bank v. Evans, 15 
 N. J. L. 155, 28 Am. Dec. 400; Fletcher v. Austin, 11 Vt. 447, 34 Am. Dec. 
 698; Guild v. Thomas, 54 Ala. 414, 25 Am. Rep. 703 and note; Chouteau v. 
 Suydam, 21 N. Y. 179 ; Whitford v. Laidler, 94 N. Y. 145, 46 Am. Rep. 131. 
 The same rule is applied to stock subscriptions. Gibbons v. Ellis, 83 Wis. 
 434; Oilman v. Gross, 97 Wis. 224, 72 N. W. 885. 
 
 * Roberts v. Burgess, 85 Ala. 192. 
 
 B Steph. Ev. art. 90 p. 163; Richards v. Day, 137 N. Y. 183, 33 Am. Rep. 
 704. 
 
 e Morgan v. Griffiths, 6 Exch. 70. 
 
 7 Bacon, Max. 23; Broom, Leg. Max. 608. In general, see note, 6 L. R. A. 
 12. 
 
596 THE LAW OF EVIDENCE. § 472 
 
 described, so as to leave it doubtful what person or property is 
 meant."' An illustration of a latent ambiguity which has borne 
 the test since the time of Lord Bacon was thus stated by him: "If 
 I grant my manor of S. to I. F. and his heirs, here appeareth no 
 ambiguity at all, but if the truth be that I have the manors both of 
 South S. and North S., this ambiguity is matter of fact ; and, there- 
 fore, it shall be hoi den by averment whether of them was that the 
 party intended should pass." ° No ambiguity is apparent in such 
 cases to the person construing the written instrument, until from 
 the evidence of relevant surrounding circumstances, ;t is found 
 that there is more than one person or thing answering the descrip- 
 tion given. In other words, the ambiguity does not appear on the 
 face of the instrument, but lies hidden in the person or subject 
 whereof it speaks.^" It is an old and familiar rule that, when the 
 ambiguity is thus raised by extrinsic evidence, it may be removed 
 by the same means.^^ The general rule is stated by Tyndal, C. J., 
 that "in all cases in which a difficulty arises in applying the words 
 of a will to the thing which is the subject matter of the devise, or 
 to the person of the devisee, the difficulty or ambiguity which is 
 introduced by the admission of extrinsic evidence may be rebutted 
 and removed by the production of further evidence upon the same 
 subject, calculated to explain what was the estate or subject matter 
 
 8 Patch V. White, 117 U. S. 210; Gilmer v. State, 120 U. S. 586. 
 
 » Bacon, Max. 25 ; Putnam v. Bond, 100 Mass. 58, 1 Am. Rep. 82. A 
 latent ambiguity arises if a conveyance is made to John Smith, and it 
 appears that there are father and son or other persons bearing that 
 name, Colt v. Starkweather, 8 Conn. 289; or if a grant is made to a Pres- 
 byterian church of a given city, and the testimony shows that there are 
 two Presbytlerlan churches in that city, Wyandotte Comity Com. v. Wyan- 
 dotte Presbyterian Church, 30 Kan. 620; if land Is described as in a cer- 
 tain section, the township and range being omitted, Halladay v. Hess, 147 
 111. 588, 35 N. B. 380; or If fifty cords of wood situated on a certain lot are 
 mortgaged, and it appears that there was other wood on the same lot, Sar- 
 gent V. Solberg, 22 Wis. 132. See also, Thacker v. Howell (Ky.). 26 S. W. 
 82. 
 
 10 Hand v. Hoffman, 8 N. J. L. 78; Storer v. Freeman, 6 Mass. 435, 4 
 Am. Deo. 155; Pelsch v. Dickson, 1 Mason (U. S.) 10; Mann v. Mann, 1 
 Johns. Ch. (N. Y.) 231. 
 
 11 Putnam v. Bond, 100 Mass. 58, 1 Am. Rep. 82 ; Patch v. White, 117 
 U. S. 210; Clay v. Field, 138 U. S. 464; Webster v. Atkinson, 4 N. H. 21; 
 Jackson v. Sill, 11 Johns. 201, 6 Am. Dec. 363; Vernor v. Henry, 3 Watts 
 (Pa.) 385; Thomas v. Troxel, 26 Ind. App. 322, 59 N. E. 683; McGhee v. 
 Alexander, 104 Ala. 116, 16 So. 148; Halladay v. Hess, 147 111. 588, 35 N. E. 
 380. 
 
§ 473 PAEOL EVIDENCE. 597 
 
 really intended to be devised." ^^ This explanatory evidence is, of 
 course, not admissible to contradict, or add to, or subtract from the 
 writing. The theory on which the testimony is allowed is that the 
 instrument does describe the person or subject intended, and that 
 the extrinsic evidence only enables the court to reject one of the 
 subjects to which the description might apply, and to determine 
 which was intended. Although a latent ambiguity does not usually 
 render the instrument void, yet it may be as fatal as a patent am- 
 biguity. This is true where the extrinsic evidence proves entirely 
 unsatisfactory, and results in leaving the matter wholly to con- 
 jecture.^' 
 
 473 (480). Parol evidence not allovred in case of patent am- 
 biguities. — A patent ambiguity has been defined as one "which 
 appears to be ambiguous upon the deed or instrument," ^* and the 
 instrument is void for uncertainty.^'' In that class of cases the 
 persons or the subjects named in the instrument cannot he definitely 
 ascertained, either from the paper itself or from such testimony as 
 to the surrounding circumstances as is admissible under the rules 
 already given. It has long been stated as a familiar rule that pat- 
 ent ambiguities cannot be explained by extrinsic evidence.^' The 
 difficulty arises in determining whether the ambiguity is patent 
 within the meaning of the rule. It is very clear that all extrinsic 
 evidence is not to be rejected merely because the instrument is of 
 such doubtful meaning on its face as to admit of more than one in- 
 terpretation. A great number of cases already cited in former sec- 
 tions show that words or phrases having an equivocal meaning may 
 be thus explained.^' But if the instrument is unintelligible on its 
 
 12 Miller v. Travers, 8 Bing. 244; Atkinson v. Cummings, 9 How. 486. 
 
 18 Thomas v. Thomas, 6 T. R. 671; Tayl. Ev. (10th Ed.), § 1214. 
 
 1* 1 Greenl. Ev. § 297. See also note, 6 L. R. A. 41. Illustrations of 
 patent ambiguities are a bequest to the "poor children" of a certain 
 church, Dashlell v. Attorney General, 5 Harr. & J. (Md.) 392, 9 Am. Dec. 
 572; Estate of Hoffen, 70 Wis. 522, where a bequest to "the poor of Green 
 Bay" was held void for uncertainty; "a handsome gratuity to each of 
 my executors," Jubber v. Jubber, 9 Sim. 503; a "bequest of some of my 
 best linen," Peck v. Halsey, 2 P. Wms. 382; a devise to the "best men 
 of the White Towners," Year Book, 49 Ed. 3, cited in Winter v. Perratt, 
 9 Clark & F. 688; a devise to the "heirs of A. B.," who Is living. Hall v. 
 Leonard, 1 Pick. 27. 
 
 15 Pearce v. Watts, L. R. 20 Eq. 492. 
 
 18 Broom, Leg. Max. 608. 
 
 "Fish v. Hubbard, 21 Wend. 651; Ely v. Adams, 19 Johns. 313; Galla- 
 gher V. Black, 44 Me. 99; Fenderson v. Owen, 54 Me. 372, 92 Am. Dec. 
 551; Crawford v. Jarrett, 2 Leigh (Va.) 630; Ennis v. Smith, 14 How. 
 
598 THE LAW OP EVIDENCE. § 474 
 
 *ace or inconsistent with itself, and remains so after all the extrin- 
 sic evidence as to the situation of the parties and the surrounding 
 circumstances have been received, then a patent ambiguity exists.^' 
 In such cases no further extrinsic evidence can be received of the 
 intention of the parties. As stated by Mr. Stephen : " 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 say. ' ' ^° 
 
 § 474 (48i). Patent ambigiiity — How ascertained — ^Inaccura- 
 cies. — There are comparatively few cases in which a bare inspec- 
 tion of the instrument will show that no proper extrinsic evidence 
 will afford any light on the construction of the writing. Hence the 
 court cannot generally determine whether there is a patent ambig- 
 uity until extrinsic evidence of the surrounding circumstances has 
 been received.^" A distinguished writer has more fully expressed 
 this view in the following language : ""Words cannot be ambiguous 
 because they are unintelligible to a man who cannot read; nor can 
 they be ambiguous merely because the court which is called upon 
 to explain them may be ignorant of a particular- fact, art or science 
 which was familiar to the person who used the words, and a knowl- 
 edge of which is therefore necessary to a right understanding of 
 the words he has used. If this be not a just conclusion, it must fol- 
 low that the question whether a will is ambiguous might be depend- 
 ent, not upon the propriety of the language the testator has used, 
 but upon the degree of knowledge, general or even local, which a 
 particular judge might happen to possess, nay, the technical pre- 
 cision and accuracy of a scientific man might occasion his intestacy, 
 a proposition too absurd for an argument. ' ' ^^ The courts are reluc- 
 tant to declare contracts void for uncertainty. It has been said that 
 every shift will be resorted to rather than declare the gift void for 
 uncertainty."^ It by no means necessarily follows that an instru- 
 ment fails as unmeaning or ambiguous because it may contain inac- 
 curacies of description."^ In conformity with the old maxim, falsa 
 
 400; Smith v. Bell, 6 Peters, 68; Citizens Bank v. Brighan?, 61 Kan. 727, 
 60 Pac. 754; Lee v. Carter, 52 La. An. 1453, 27 So. 739; Thomas v. Scott, 
 127 N. Y. 133, 27 N. E. 961. See §§ 455 et seq. supra. 
 
 18 Elphinatone, Deeds, 105; 4 Phlll. Ev. 524. 
 
 I'Steph. Ev. art. 91; Campbell v. Johnson, 44 Mo. 247. 
 
 20 Wig. Wills, 260. 
 
 21 Wig. Wills, 259. 
 
 22 Doe ex Oem. Winter v. Parratt, 6 Man. & G. 362. 
 
 23 GreeiU. Ev. § 299; Wig. Wills, 174. 
 
§ 475 PAEOL EVIDENCE. 599 
 
 demonstratio non nocet, the instrument does not become inoperative 
 by reason of some inaccuracy wben there remains a sufficient de- 
 scription after rejecting the erroneous addition.''* Thus, if one 
 grants his house in A-, which formerly belonged to B., and it ap- 
 pears that the grantor had at the time only one house in A., it will 
 pass though it never belonged to B.^" 
 
 § 475 (482, 483). Parol evidence as to wills — ^In general. — 
 Every consideration which can be urged in favor of the rule that 
 written contracts can not be varied or contradicted by parol evi- 
 dence applies with peculiar force to wills. Such instruments are 
 formal and solemn documents, often diverting from the natural 
 course of inheritance large estates. They, are presumed to have 
 been made after due deliberation, and to express the final and full 
 intention of the testator. Yet the illustrations already given, as well 
 as those which follow, show that the books abound in eases where it 
 has been held necessary in the construction of wills to ascertain 
 their intent, not only from their face, but from the surrounding cir- 
 cumstances. As in the case of other instruments, the judges may, in 
 interpreting the documents, put themselves in the place of the party 
 as far as that is possible.^" While extrinsic evidence of the circum- 
 stances, situation and surroundings of the testator and of his prop- 
 erty is legitimate to place the court which expounds the will in the 
 situation of the testator and thus to enable the court to understand 
 the meaning and application of his language, yet the intention must 
 be determined from the language of the instrument as explained by 
 such extrinsic evidence, and no proof, however conclusive in its na- 
 ture, can be admitted with a view of setting up an intention incon- 
 sistent with the writing itself.^' When the word "revoke" was used 
 
 24Goodtitle v. Southern, 1 Maule & S. 299; Miller v. Travers, 8 Blng. 
 244; Esty v. Baker, 50 Me. 325, 79 Am. Dec. 616; Bailey v. White, 41 N. H. 
 343; Park v. Pratt, 38 Vt. 552; Sargent v. Adams, 3 Gray, 72, 63 Am. Dec. 
 718; Putnam v. Bond, 100 Mass. 58, 1 Am. Rep. 82; Loomis v. Jackson, 19 
 Johns. 449; Lodge v. Barnett, 46 Pa. St. 484; Hildehrand v. Fogle, 20 
 Ohio, 147; Evansville v. Paige, 23 Ind. 527; Colton v. Seavey, 22 Cal. 496; 
 Atkinson v. Cummins, 9 How. 479; Broom, Leg. Max. 629; Elphinstone, 
 Deeds, 159. See note, 16 L. R. A. 321. 
 
 26 Proctor V. Pool, 4 Dev. (N. G.) 374; Den v. Leggatt, 3 Murph. (N. C.) 
 543; Boardman v. Reed, 6 Peters, 344. 
 
 28 Smith v. Bell, 6 Peters, 74 ; 1 Greenl. Ev. § 287. 
 
 2TWhitmore v. Learned, 70 Me. 276; Fitzpatrick v. Pitzpatrick, 36 Iowa, 
 674; Magee v. McNeal, 41 Miss. 17, 90 Am. Dec. 354; Heidenheimer v. 
 Bauman, 84 Tex. 174, 31 Am. St. Rep. 29; Waldron v. Waldron, 45 Mich. 
 350; Bingel v. Volz, 142 111. 214, 34 Am. St. Rep. 64; Charter v. Charter, 
 L. R. 7_ H. L. 364; Jlarl of Newburgh v. Countess of Newburgh, 6 Madd. 
 
600 THE LAW OF EVIDENCE. § 476 
 
 in a codicil, where the word "confirm" was intended, it was held 
 that the mistake could not be corrected by parol. ^^ It by no means 
 follows, however, that a will necessarily fails because a mistake has 
 been made. In many of the cases hereafter cited extrinsic evidence 
 was held admissible to ascertain which of the two persons or subjects 
 answering the description equally well was in the mind of the testa- 
 tor, and intended by him. In many such cases the extrinsic evidence 
 enables the court to ascertain the intention and apparently to cor- 
 rect the mistake, while in fact, no violence is done to the terms of 
 the will. 
 
 § 476 (484). Wills — Parol evidence to identify property. — The 
 rule so often referred to, that extrinsic evidence may be given to ap- 
 ply the instmment to its proper subject matter or to the person in- 
 tended is one of frequent application in the construction of wills, as 
 has already appeared from the cases heretofore cited. It requires 
 but little examination of the cases or but little actual experience in 
 the courts to ascertain that the descriptions of property in wills, and 
 even the descriptions of the intended beneficiaries are very often 
 somewhat indefinite and even inaccurate. The courts deal somewhat 
 
 364; Miller v. Travers, 8 Bing. 244; Pickering v. Pickering, 50 N. H. 349; 
 Griscom v. Evens, 40 N. J. L. 402, 29 Am. Rep. 251; Weston v. Foster, 7 
 Met. 297; Judy v. Gilbert, 77 Ind. 96, 40 Am. Rep. 289 and note; Avery v. 
 Chappel, 6 Ck>nn. 270, 16 Am. Dec. 53; Collins v. Hope, 20 Ohio. 492; 
 Thomas v. Thomas, 6 T. R. 671; Hodgson v. Hodgson, 2 Vem. 593; Beau- 
 mont V. Fell, 2 P. Wms. 141. On the general subject of this and the suc- 
 ceeding sections see notes, 3 Am. Dec. 395; 40 Am. Rep. 292-295; 6 Ii. R. A. 
 321-324; 8 L. R. A. 740-749. It cannot be proved by parol that a devise 
 absolute on its face, was intended to be held in trust, Elliott v. Morris, 1 
 Harp. Eq. (S. C.) 281; that a bequest was intended to be in lieu of dower, 
 Timberlake v. Parish, 5 Dana (Ky.) 345; that a clause was omitted by 
 mistake, Webb v. Webb, 7 Mon. (Ky.) 626; that a legacy was intended to 
 be a charge on land, Massaker v. Mas'saker, 13 N. J. Eq. 264; that the word 
 "children" was intended to include Illegitimate children, Shearman v. 
 Angel, 1 Bailey Eq. (S. C.) 351, 23 Am. Dec. 166; that some other language 
 in the will was intended, Taylor v. Morris, 90 N. C. 619; to supply a com- 
 plete Ijlanlc in the name of the devisee, Higgins v. Carlton, 28 Md. 115, 92 
 Am. Dec. 666; or In the description of the land, Sewell v. Slingluft, 57 Md. 
 537. Although in some cases courts of equity have corrected mistakes in 
 wills by supplying names or clauses, Geer v. Winds, 4 Desaus. (S. 0.) 85; 
 Webb V. Webb, 7 Mon. (Ky.) 626; as a general rule, no such omission 
 can be supplied by parol, Abercrombie v. Abercrombie, 27 Ala. 489; Sher- 
 wood v. Sherwood, 45 Wis. 357, 30 Am. Rep. 757. It cannot be proved by 
 parol that a testatrix, who had made no provision for a child, believed 
 him dead, there being nothing in the will to indicate such belief, GifEord 
 V. Dyer, 2 R. I. 99, 57 Am. Dec. 708. 
 88 la re Davy, 5 Jur. N. S. 252. 
 
§ 476 PAEOL EVIDENCE. 601 
 
 leniently with such cases and seek to ascertain the intent of the tes- 
 tator, if this can be done without violation of the settled rules of 
 evidence.^' "Where the words of a will, aided by evidence of the 
 material facts of the case are insufficient to determine the testator's 
 meaning, no evidence will be admissible to prove what the testator 
 intended; and the will will be void for uncertainty.""* On this 
 general principle it often becomes necessary to prove by extrinsic 
 evidence whether or not the testator had property answering to the 
 exact description in the will, and, if not, what property he did have 
 which sufficiently answers such description. The books abound in 
 cases in which wills have leen upheld, although the subject matter 
 has been indefinitely or inaccurately descrihed.^^ A decision of the 
 supreme court of the United States well illustrates the principle un- 
 der discussion. A testator in his will described a lot as numbered 
 six in square number four hundred and three; parol evidence was 
 , received to show that he did not own the lot described, but did own 
 lot number three in square number four hundred and six. It was 
 held by a divided court that the extrinsic evidence raised a latent 
 ambiguity and, taken in connection with the context of the will, 
 showed that the lot really devised was the latter one.'* This case 
 
 2»Townsend v. Downer, 23 Vt. 225; Jackson v. Wilkinson, 17 Johns. 
 146; McCorry v. King's Heirs, 3 Humph. (Tenn.) 267, 39 Am. Deo. 165; 
 Merrick v. Merrick, 37 Ohio St. 126, 41 Am. Rep. 493; Chamljers v. Wats- 
 son, 60 Iowa, 339, 46 Am. Rep. 70; Patch v. White, 117 TJ. S. 210. See 
 elaborate notes, 8 Am. Rep. 669; 16 L. R. A. 321; 6 L. R. A. 43; 6 L. R. A. 
 N. S. 942. 
 
 80 Wig. Wills, prop. VI; Estate of Hoffen, 70 Wis. 522, bequest to the 
 "Poor of the City of Green Bay." 
 
 »i The rule has been applied where the testator bequeathed "4 per cent, 
 stock;" although several years before the bequest he had sold the stock 
 and purchased annuities with the proceeds, Lindgrew v. Lindgrew, 9 
 Beav. 358; Selwood v. Mildmay, 3 Ves. Jr. 306, see note, 8 Am. Rep. 669; 
 where land was described correctly as land purchased of P., but! the de- 
 scription was erroneous in other respects, Winkley v. Kaime, 32 N. H. 268; 
 Allen V. Lyons, 2 Wash. C. C. 475. Contra, Kurtz v. Hibner, 55 111. 514, 
 8 Am. Rep. 665, 10 Am. L. Reg. N. S. 93; Fitzpatrick v. Fitzpatrick, 36 
 Iowa, 674, 14 Am. Rep. 538; Judy v. Gilbert, 77 Ind. 96, 40 Am. Rep. 289; 
 Sherwood v. Sherwood, 45 Wis. 357, 30 Am. Rep. 757; Bishop v. Morgan, 
 82 111. 358, 25 Am. Rep. 327. Where land was described In a township 
 in which the testator owned no land, the devise was upheld, there being 
 in the will a reference to a "big spring" which was relied on to designate 
 the land intended, Riggs v. Myers, 20 Mo. 239. Other illustrations of the 
 same rule, Jackson v. Sill, 11 Johns. 201, 6 Am. Dec. 363; Allen v. Lyons, 
 2 Wash. C. C. 475; Winkley v. Kaime, 32 N. H..268. 
 
 82 Patch V. White, 117 U. S. 210. The same rule was applied in the fol- 
 
602 THE LAW OF EVIDENCE. § 477 
 
 and some of those last cited seem to hold that where there is an er- 
 roneous particular description of the devise, the express assertion 
 of ownership by the devisor is in the nature of a description, and is 
 sufficient to authorize extrinsic evidence to identify the land. The 
 instances cited sufficiently illustrate the liberality with which the 
 modem decisions admit evidence to identify the subject matter of 
 the devise. It is clear that the maxim, falsa demonstratio non no- 
 cet, is given full effect, and that errors of description do not make 
 void the bequest, provided enough is given to show with reasonable 
 certainty what was intended."^ 
 
 § 477 (485, 486). Wills— Evidence to identify legatee.— On the 
 same principle stated in the last section, extrinsic evidence of the 
 character there referred to is frequently allowed to identify the leg- 
 atee or devisee named in a will. Hence a misnomer or misdescrip- 
 tion of a legatee or devisee does not invalidate the bequest, if either 
 from the will itself or from some relevant extrinsic evidence the ob- 
 ject of the testator's bounty can be ascertained.'* Where a latent 
 ambiguity of this kind is apparent, and it appears that there is no 
 
 lowing cases: Hawkins v. Young, 52 N. J. Eq. 508; Bckford v. Bckford, 
 91 Iowa, 54, 58 N. W. 1093; Halliday v. Hess, 147 111. 588, 35 N. E. 380; 
 Tewksbury v. Howard, 138 Ind. 105, 37 N. B. 355; Ladnier v. Ladnier, 75 
 Miss. 777, 23 So. 430; Skinner v. Harrison, 116 Ind. 139; Pooock v. Red- 
 dinger, 108 Ind. 573, 58 Am. Rep. 71; Grubb v. Poust, 99 N. C. 286; Decker 
 V. Decker, 121 111. 341; Covert v. Sebern, 73 Iowa, 564; Seebrook v. Fe- 
 dawa, 33 Neb. 413, 29 Am. St. Rep. 488; Chambers v. Watson, 60 Iowa, 
 339, 46 Am. Rep. 70 and long note; Hanley v. Kraftezyk, 119 Wis. 352, 
 96 N. W. 820; Sberwood v. Sherwood, 45 Wis. 357, 30 Am. Rep. 757; Stew- 
 art V. Stewart, 96 la. 625, 65 N. W. 976. See note 16 L. R. A. 321. But 
 see Lomax -tr. Lomax, 218 111. 629. 75 N. B. 1076, 6 L. R. A. N. S. 942 and 
 note. 
 
 33 Selwood V. MUdway, 3 Ves. Jr. 306; Jackson v. Sill, 11 Johns. 201, 6 
 Am. Dec. 363; Bckford v. Bckford, 91 Iowa, 54, 58 N. W. 1093; Heiden- 
 heimer v. Bauman, 84 Tex. 174, 31 Am. St. Rep. 29 and note. See elab- 
 orate notes, 8 Am. Rep. 669; 10 Am. L. Reg. N. S. 97. Cases In which 
 testimony has been rejected: Kurtz v. Hibner, 55 111. 514, 8 Am. Rep. 
 665 and note, 10 Am. L. Reg. N. S. 93 and note; Doe v. Oxenden, 3 Taunt. 
 147; Bingel v. Volz, 142 111. 214, 34 Am. St. Rep. 64; Doe v. Hiscocks, 5 M. 
 & W. 363; Miller v. Travers, 8 Ring. 244; Jackson v. Sill, 11 Johns. 212, 
 6 Am. Dec. 363; Jackson v. Wilkinson, 17 Johns. 146; Mann v. Mann, 1 
 Johns. Ch. (N. Y.) 231. See dissenting opinion, Bckford v. Bckford, 91 
 Iowa, 54, 58 N. W. 1093 citing many cases. 
 
 34 St. Luke's Home v. Association, 52 N. Y. 191, 11 Am. Rep. 697 
 Holmes v. Mead, 52 N. Y. 332; Gardner v. Heyer, 2 Paige (N. Y.) 11 
 Andrews v. Dyer, 81 Me. 104 ; Gordon v. Burrls, 141 Mo. 602, 43 S. W. 642 
 Covert V. Sebern, 73 Iowa, 564^ Smith v. Kimball, 62 N. H. 606. See note, 
 6 L>. R. A. 43. 
 
§ 477 PABOL BVIDENCB. 60b 
 
 person in existence precisely answering the description in the will, 
 parol evidence may be received to ascertain who was intended.^' 
 This principle has been applied in a greater number of English 
 cases. In a comparatively recent case it was extended somewhat be- 
 yond the usual rule. The devise was to "my nephew, Joseph 
 Grant;" and it was found that both the testator's brother and the 
 brother of the testator's wife had a son by that name. As the term 
 "my nephew" was applicable to both these persons, the court held 
 it a latent ambiguity which could be explained by parol evidence.'" 
 Extrinsic evidence is, however, most frequently introduced where 
 there is no person precisely answej-ing the description in the will. 
 In such cases the evidence is in perfect harmony with this rule of 
 construction given by Sir James Wigram: "Where there is nothing 
 in the context of a will from which it is apparent that a testator 
 has used the words in which he has expressed himself in any other 
 than their strict and primary sense, and where his words so inter- 
 preted are sensible with reference to extrinsic circumstances, it is 
 an inflexible rule of construction that the words of the will shall be 
 interpreted in their strict and primary sense, and in no other, al- 
 though they may be capable of some popular or secondary interpre- 
 tation, and although the most conclusive evidence of intention to 
 use them in such popular or secondary sense be tendered." '^ Mr. 
 Wigram thus illustrates the subject: "Though the word child may 
 be construed to mean illegitimate child, where the proper meaning 
 of the word is of absolute necessity excluded, yet, if no such abso- 
 lute necessity exist, the word shall receive no other than its strict 
 and proper interpretation." ^* "So although the words son, child, 
 grandchild, etc. may be construed in a secondary sense, where the 
 will would be insensible, if the primary meaning of the words were 
 adhered to, yet it is only where that is the case that a departure 
 from the strict sense of the words is permitted. ' ' "* 
 
 «B Webster v. Morris, 66 Wis, 366, 57 Am. Rep. 278. 
 86 Grant v. Grant, 5 C. P. 727. 
 S7 Wig. Wills, prop. II. 
 
 88 Wig. Wills, prop. II. 
 
 89 Wig. Wills, prop. II. § 28. Extraneous evidence has been received 
 when the bequest was tp "my son John," and the testator had two sons of 
 that name, Cheney's Case, 5 Coke, 686 ; where the devise was to J. C. and 
 there were two persons, father and son, of that name, Jones v. Newman, 1 
 W. Black. 60; where the bequest was to "Robert Careless, my nephew, the 
 son of Joseph Careless," and the testator had two nephews by the name of 
 Robert, but had no brother Joseph, Careless v. Careless, 19 Ves. 
 <iOl, J Met. 88'4; where a legacy was given to ' Price, the son at — ; — 
 
604 THE LAW OF EVIDENCE. § 478 
 
 § 478 (487). The rule where the description is more applicable 
 to one subject or person than another. — The rule under discussion 
 has been applied in a large number of cases where there is no per- 
 son or corporation which corresponds in all particulars to the de- 
 scription given in the will, but where there is one which corresponds 
 in many particulars, and no other which can be intended. In such 
 case, the corporation or person will take under the will.*" Thus, 
 where a bequest was to be "equally divided between the Board of 
 Foreign and the Board of Home Missions," extrinsic evidence was 
 allowed to show that the testator had in mind the Board of Foreign 
 Missions and the Board of Home Missions of the Presbyterian 
 Church of the United States.*^ "If the document has one distinct 
 meaning in reference to the circumstances of the case, it must be 
 constraed accordingly; and evidence to show that the author iu- 
 
 Price, Price v. Page, 4 Ves. Jr. 680; In re Rosaz, 2 Prob. Div. 66, 20 
 Eng. Rep. 597; when neither of two claimants bore the name of the legatee 
 in the will, Washington v. Lee "W. Appeal, 111 Pa. St. 572. (as to corpora- 
 tions see, St. Luke's Home v. Association, 52 N. T. 191, 11 Am. Rep. 697; 
 Chappel V. Missionary Society, 3 Ind. App. 356; Lefevre v. Lefevre, 59 
 N. Y. 434; Faulkner v. National Sailors' Home, 155 Mass. 458; Tucker v. 
 Aid Society, 7 Met 188; Tilton v. American Bible Soc, 60 N. H. 377, 49 
 Am. Rep. 321) ; where there were two or more of the same name as that 
 given in the will, Bodman v. American Tract. Soc, 9 Allen, 447; where 
 the devise was to "the four boys," and it appeared that the testator had 
 seven sons, Bradley v. Rees, 113 111. 327, 55 Am. Rep. 422; where a be- 
 quest was to Samuel, such evidence was allowed to show that William 
 was intended, though there were persons of both names, Powell v. Bid- 
 die, 2 Dall. (Pa.) 70, 1 Am. Dec. 263; Thomas v. Stevens, 4 Johns. Ch. 
 607. Other illustrations: In re Gregory, 34 Beav. 600; Masters v. Mas. 
 ters, 1 P. Wms. 421; Lee v. Pain, 4 Hare, 251; Gallup v. Wright, 61 How. 
 Pr. (N. Y.) 286; where there is no person bearing the name mentioned 
 in the will, Hawkins v. Garland, 76 Va. 149, 44 Am. Rep. 158; Connolly v. 
 Pardon, 1 Paige (N. Y.) 291, 19 Am. Dec. 433; Hockinsmith v. Slusher, 
 26 Mo. 237; Cresson's Appeal, 30 Pa. St. 437; Mound v. McPhail, 10 Leigh 
 (Va.) 199. 
 
 40 American Bible Society v. Wetmore, 17 Conn. 181; Ayers v. Weed, 
 16 Conn. 291; Trustees v. Teaslee, 15 N. H. 317; Dunham v. Averlll, 45 
 Conn. 621, 29 Am. Rep. 642; Howard v. American Soc, 49 Me. 288; Web- 
 ster V. Morris, 66 Wis. 366. 
 
 41 Gilmer v. Stone, 120 U. S. 586. Other cases Illustrating rule as cor- 
 porations: Tilton y. American Bible Soc, 60 N. H. 377, tS Am. Rep. 321; 
 Webster v. Morris, 66 Wis. 366; St. Luke's Home v. Asaoo.lation, 52 N. Y. 
 191, 11 Am. Rep. 697; Holmes v. Mead, 52 N. Y. 332; Giu--''ner v. Heyer, 
 2 Paige (N. Y.) 11; Dunham v. Averill, 45 Conn. 61, 29 i.m. Rep. 642; 
 Tucker v. Seaman's Aid Soc, 7 Met. 188; Van Nostrand v. Board, 59 
 N. J. Eq. 19, 44 AU. 472; 1 Jarm. Wills, 330. See extended note, 46 Am. 
 Rep. 72. 
 
§ 479 PABOIi EVIDENCE. 605 
 
 tended to express some other meaning is not admissible."" We 
 have seen that the courts deal very liberally in cases of misdescrip- 
 tion where it is possible by rejecting erroneous particulars to arrive 
 at the real intention of the testator. But it is to be constantly borne 
 in mind that the extrinsic evidence of the character which has been 
 discussed is to be received to apply the will to the subject matter or 
 person, in other words, to ascertain the real intent expressed in the 
 will, and not to correct the mistakes of the testator, or to change the 
 terms of the will, or to interpolate new provisions therein.*' 
 
 § 479 (488, 489). Wills— Meaning of words and terms— Proof 
 in case of latent ambiguity — Declarations of testator. — It is well 
 settled that it may be shown by extrinsic evidence, for the purpose 
 of identifying the person or subject matter, that the testator was ac- 
 customed to apply special names to certain persons as nicknames, or 
 that he used to designate his property in some peculiar manner.** 
 Evidence of mere collateral statements respecting persons or things 
 which it is necessary to identify are not regarded as declarations of 
 intention within the meaning of the general rule that declarations 
 of intention are not admissible. In accordance with rules already 
 stated, if a will is in a foreign language,*" in shorthand, in a ci- 
 
 ,«2Stepli. Ev. art. 91 § 6; American Bible See. v. Pratt, 9 Allen, 109; 
 Best V. Hammond, 55 Pa. St. 409; Jackson t. Sill, 11 Johns. 201, 6 Am. 
 Dec. 363; Cotton v. Smithwick, 66 Me. 360; Sherwood v. Sherwood, 45 
 Wis. 357, 30 Am. Rep. 757; Fitzpatrick v. Pitzpatrick, 36 Iowa, 674, 14 
 Am. Rep. 538; Kurtz v. Hibner, 55 111. 514, 8 Am. Rep. 665; Van Nos- 
 trand v. Moore, 52 N. Y. 12. 
 
 43 Andrews v. Dobson, 1 Cox, 425; Dowsett v. Sweet, Ambler, 175; Fran- 
 cis V. Dichfleld, 2 Coop. 531; Miller v. Travers, 8 Bing. 244; Doe v. His- 
 cocks, 5 M. & W. 370; Patch v. White, 117 TJ. S. 210; Eckford v. Eckford, 
 91 Iowa, 54, 58 N. W. 1093; Wallize v. WalUze, 55 Pa. St. 242. 
 
 «Austee v. Nelms, 1 Hurl. & N. 225; Lee v. Paine, 4 Hare, 251; Doe 
 V. Collins, 2 T. R. 498; Goodtitle v. Southern, 1 Maule & S. 299. Where 
 a testator had owned two farms that he habitually described one of them 
 as tlie "home farm," Boggs v. Taylor, 26 Ohio St. 604; that the testator 
 and his neighbors habitually described certain lands as "back lands," 
 Ryerss v. Wheeler, 22 Wend. 148; that a testator had habitually called a 
 person by a wrong name, Lee v. Paine, 4 Hare, 251; that ministers were 
 known by the name of "Godly preachers of Christ's holy Gospel," Shore 
 V. Wilson, 9 Clark & F. 565; where land was described as "sixty acres, 
 sec. 25, Town 7 and forty acres, sec. 24, town 6, Jasper county," that the 
 testator stated at the time of the drawing of the will that he did not 
 remember the range, but that the will was to Include all the land that 
 he owned in that county, Chambers v. Watson, 60 Iowa, 339, 46 Am , 
 Rep. 70 and valuable note. 
 
 *ii Masters v. Masters, 1 P. Wms. 421. 
 
606 THE LAW OF EVIDENCE. § 480 
 
 pher,^' or obscurely written " or if technical terms are used,** parol 
 evidence as to the meaning may be received; "and where the testa- 
 tor makes use of the words which in their ordinary sense are intel- 
 ligible, but which are used, by certain class of persons to whom the 
 testator belonged or in a certain locality where he dwelt, in a pecu- 
 liar sense, parol evidence may be given to show the fact of such us- 
 age, unless it appears on the face of the will that the testator used 
 the word in its ordinary sense. ' ' *" The rule has been established by 
 a long line of cases that, when the words of the will apply with equal 
 propriety to two or more subjects or persons, in other words, when 
 there is a latent ambiguity, the intention of the testator may be 
 
 shown by his declarations.^" When the bequest was to " ^Price, 
 
 the son of Price," a question was raised as to the identity of the 
 
 legatee, as the description applied equally well to the father of the 
 claimant; parol evidence was received of the declarations of the 
 testator that he had made or would make provision by will for the 
 claimant."^ 
 
 § 480 (490), Where there is no latent ambiguity, declarations 
 of testator rejected. — "But if there is anything in the words of 
 the will which renders the bequest obviously more applicable to one 
 object or subject, than to any other, that must prevail; and no case 
 for the admission of extrinsic evidence exists. " °^ In other words 
 
 *8 Clayton v. Lord Nugent, 13 M. & W. 200. 
 
 «7 Goblet V. Beechy, 3 Sim. 24. 
 
 *8 Goblet V. Beecby, 3 Sim. 24. 
 
 49 Jarm. Wills (R. & T. Ed.) 732. 
 
 BO In re Wolverton, 7 Ch. Div. 197; Reynolds v. Whelan, 16 L. J. (Ch.) 
 434; Doe v. Allen, 12 Add. & Ell. 451; Bumet v. Burnet, 30 N. J. Eq. 595; 
 Griscom v. Evans, 40 N. J. L. 402; Morgan v. Burrows, 45 Wis. 211; Tur- 
 ner V. Hollowell Sav. Inst, 76 Me. 527; Keith v. Scales, 124 N. C. 497, 32 
 S. B. 809; Grant v Grant, 3 L. J. N. S. 17. See elaborate note, 46 Am. 
 Rep. 72. 
 
 61 Price T. Page, 4 Ves. Jr. 680. Applied where the bequest was to 
 "W. R., my farming man," and it appeared that the testator had two 
 Carming men answering to the description, Reynolds v. Whelan, 16 L. J. 
 (Ch.) 434; where a bequest was made for the benefit of the "children in 
 G. S. District," Gass v. Ross, 3 Sneed (Tenn.) 211; the declarations of 
 the testator made at the time of the execution of the will that he In- 
 tended to include in one of the devises the land upon which a certain 
 barn was situated, Morgan v. Burrows, 45 Wis. 211, 30 Am. Rep. 717; 
 where the will might mean either $5.00 or $500, evidence of testatrix' in- 
 structions was received to explain which was intended, Schlottman v. 
 Hofeman, 73 Miss. 188, 18 So. 893, 55 Am. St. Rep. 527. 
 
 02Redf. Wills, B65; Doe v. Westlake, 4 Barn. & Aid. 57; Doe v. His- 
 cocks, 5 M. & W. 363; Jefferies v. Mitchell, 20 Beav. 15. 
 
§ 480 PABOL EVIDENCE. 607 
 
 the rule that direct evidence to prove the intention of the testator 
 should be excluded, unless there appears to be a latent ambiguity, 
 should be applied with some strictness. In the absence of such la- 
 tent ambiguity the declarations of the testator cannot be proved by 
 the scrivener who drew the will to show that the will does not accord 
 with the instructions given.°' The question sometimes arises whether 
 a given document is to be construed as a will or as a deed or otheo: 
 disposition of property. This is a question to be settled, not by the 
 declarations of the testator, but by the language of the document,^* 
 although when such doubt of the nature of the instrument is raised, 
 the situation of the parties and the surrounding circumstances may 
 be shown as in other cases. ''^ In aU such eases, there being no latent 
 ambiguity, the admission of the declarations of the testator would be 
 repugnant to the general rule of evidence that the written instru- 
 ment mnst be interpreted according to its terms. A further limita/- 
 tion in respect to the admission of the declarations of a testator has 
 been thus declared: "If the description of the person or thing be 
 partly applicable and partly inapplicable to each of the several sub- 
 jects though extrinsic evidence of the surrounding circumstances 
 may be received for the purpose of ascertaining to which of such 
 subjects the language applies, yet evidence of the author's declara- 
 tions of intention will be admissible. " °° In some of the states 
 there are statutes making provision for children unintentionally 
 
 BsCanfield v. Bostwick, 21 Conn. 550; Dew v. Kuehn, 64 Wis. 293. See 
 also, Jackson v. Sill, 11 Johns. 201, 6 Am. Dec. 363; Tucker v. Seaman's 
 Aid Sec, 7 Met. 188. Such declarations are inadmissible to prove the 
 reason for the striking out of certain words which were in the original 
 draft of the will, Canfield v. Bostwick, 21 Conn. 550; to show that in a 
 gift to "children" testator did not Intend to Include "daughters," Den ■>. 
 Baskerville, 11 How. 329; to show that a bequest of property described 
 with legal certainty was intended to cover other properly, not Included 
 in such description, Crosby v. Mason, 32 Conn. 482 ; that testator intended 
 to charge legacies upon land, Massaker v. Massaker, 13 N. J. Eq. 264; to 
 show the extent of the interest given to a devisee, Klrkland v. Conway, 
 116 111. 438. 
 
 64 Burlington University v. Barrett, 22 Iowa, 60, 92 Am. Dec. 376 and 
 note; Jordan v. Jordan, 65 Ala. 301; Patterson v. English, 71 Pa. St. 454; 
 Hester v. Young, 2 Ga. 31; Walker v. Jones, 23 Ala. 448; Robertson v. 
 Dunn, 2 Murph. (S. C.) 133, 5 Am. Dec. 525; Edwards v. Smith', 35 Miss. 
 197; Habergham v. Vincent, 2 Ves. Jr. 204; Gage v. Gage, 12 N. H. 371. 
 See valuable note, 92 Am. Dec. 383-389. 
 
 66 Evans v. Smith, 28 Ga. 98, 73 Am. Dec. 751; Gage v. Gage, 12 N. H. 
 371; Robertson v. Smith, 2 Pro. & Div. 43. 
 
 68 Tayl, Bv. (10th Ed.), § 1226; Doe v. Hlsoocks, 5 M. & W. 369. 
 
608 THE LAW OP EVIDBNCE. § 481 
 
 omitted from the will. It has been held by several courts that the 
 declarations of the testator may be received when this question is 
 raised to show whether the omission was intentional or not.*' 
 
 § 481 (491). Proof of declarations of testator — Time of making. 
 — The earlier eases intimated that declarations of this class by 
 the testator were not admissible, unless contemporaneous with the 
 execution of the will.^^ But the later cases have rejected this dis- 
 tinction; and although contemporaneous declarations may be en- 
 titled to greater weight than those made before or after, they are 
 admissible in evidence on the same principle.'" In a well known 
 English case it was held after the consideration of former cases that 
 declarations made by the testatrix ten months after the execution 
 of the will should not be rejected on the ground that they were not 
 contemporaneous with the wiU.;'"' and the same rule applies where 
 the declarations are made prior to the execution of the will.^' 
 "Neither will the admissibility of declarations rest on the manner 
 in which they were made, or on the occasions which called them 
 forth, for whether they consist of statements gravely made to the 
 parties chiefly interested, or of instructions to professional men, or 
 of light conversations, or of angry answers to impertinent inquiries 
 of strangers, they will be alike received in evidence, though the 
 
 67 Converse v. Wales, 4 Allen, 512 ; Ramsdill v. Wentworth, 101 Mass. 
 125, 106 Mass. 320; Buckley v. Gerard, 123 Mass. 8; Lorings v. Marsh, 6 
 Wall. 337; Geer v. Winds, 4 Desaus. (S. C.) 85; Lorieux v. Keller, 5 Iowa, 
 196, 68 Am. Dec. 696; Wilson v. Fosket!, 6 Met. 400, 39 Am. Dec. 736; 
 Coulam v. Doull, 133 U. S. 216; Atwood's Estate, 14 Utah 1, 45 Pac. 1036, 60 
 Am. St. Rep. 878. See valuable note, 39 Am. Dec. 740-744. See also, 
 Hawke v. Railway Co., 165 111. 561, 46 N. E. 248; In re O'Connor, 21 R. I. 
 465, 44 Atl. 591, where evidence of surrounding circumstances was ad- 
 mitted to show intention. But see the different rule adopted under the 
 statutes of other states, Garraud's Estate, 35 Cal. 336; Re Salmon's Es- 
 tate, 107 Cal. 614, 40 Pac. 1030, 48 Am. St. Rep. 164; Bradley v: Bradley, 
 24 Mo. 311; Estate of Stevens, 83 Cal. 322, 17 Am. St. Rep. 252 and note; 
 Pounds V. Dale, 48 Mo. 270; Chace v. Chace, 6 R. I. 407, 78 Am. Dec. 446. 
 
 68 Thomas v. Thomas, 6 T. R. 671; Wagner's Appeal, 43 Pa. St. 102; 
 Langham v. Sanford, 19 Ves. Jr. 649; Whitaker v. Tatham, 7 Bing. 637. 
 See note, 6 L. R. A. N. S. 966. So evidence may be given of declarations, 
 showing testator's Intention to revise a former will by cancelling one 
 made subsequently, Pickens v. Davis, 134 Mass. 252, 45 Am. Rep. 322; 
 Couch V. Eastham, 27 W. Va. 796, 55 Am. Rep. 346. 
 
 69 Doe V. Allen, 12 Adol. & Ell. 455; Doe v. Hiscocks, 5 M. & W. 369; 
 Robinson v. Hutchinson, 26 Vt. 38. 
 
 80 Doe V. Allen, 12 Adol. & BU. 455. 
 
 oiJarm. WiUs, 756. See note, 6 L. R. A. N. S. 966. 
 
§ 482 PAKOL EVIDENCE. 609 
 
 credit due to them will of course vary materially according to the 
 time and circumstances." '^ 
 
 § 482 (492). Same — To show mental condition, etc. — Where the 
 issue is vrhether the will was obtained through undue influence or 
 executed while the testator was mentally incompetent, the testi- 
 mony takes a very wide range. The declarations of the testator may 
 then be relevant as to his mental condition."' They may show his 
 mental weakness and inability to resist the influence of others, or 
 his strength, and should be received whenever the fair inference 
 from all the circumstancs is that they truly represent the testator's 
 state of mind at the time.'^ Necessarily in this case the declarations 
 are not confined to the time of the execution of the will, but those 
 both before and after may be received, provided these are not too 
 remote to throw light upon the mental condition of the testator at 
 the time of the execution of the will.°° Declarations showing the 
 former state of mind of the testator, his long settled purposes, his 
 affections or dislike, and the execution and contents of former wills, 
 are all admitted when they may fairly be deemed to throw light 
 upon his state of mind at the time of the execution of the will.'" 
 Such declarations are admissible when the competency of the testa- 
 tor in its issue, not only for the purpose of attacking the wiU, but 
 also in support of it." 
 
 «2Tayl. Ev. (10th Ed.), § 1209; Trimmer v. Bayne. 7 Ves. Jr. 508. 
 
 83 Williamson v. Nabers, 14 Ga. 286; Waterman v. "V^Tiitney, 11 N. Y. 
 157, 62 Am. Dec. 71; Shailer v. Bumstead, 99 Mass. 112; Boylan v. Meeker, 
 28 N. J. L. 274; McTaggart v. Thompson, 14 Pa. St. 149; Dennis v. Weaker, 
 
 51 Ga. 24; Robinson v. Adams, 62 Me. 369, 16 Am. Rep. 473; Comstock v. 
 Hadlyme, 8 Conn. 254, 20 Am. Dec. 100; Roberts v. Trawick, 17 Ala. 55, 
 
 52 Am. Dec. 164 and full note. See also note, 3 Am. Dec. 395-399. 
 
 64 Haines v. Hayden, 95 Mich. 332, 54 N. W. 911, 35 Am. St. Rep. 556; 
 Wall V. Dimmitt (Ky.), 72 S. W. 300; acts showing weakness, Robinson 
 V. Robinson, 203 Pa. 400, 53 Atl. 258; Bryant v. Pierce, 95 AVis. 331; state 
 of feeling. Wood v. Zibble, 131 Mich. 655, 92 N. W. 348; Gordon v. Burrls, 
 141 Mo. 602, 43 S. W. 642; Coghill v. Kennedy, 119 Ala. 641, 24 So. 459. 
 
 06 Waterman v. Whitney, 11 N. Y. 157, 62 Am. Dec. 71; Shailer v. Bmn- 
 stead, 99 Mass 112; Boylan v. Mpeker, 28 N. J. L. 274; McTaggart v. 
 Thompson, 14 Pa. St. 149; Dennis v. Weeker, 51 Ga. 24. 
 
 «8 Shailer v. Bumstead, 99 Mass. 112; In re Goldthrop's Estate, 94 la. 
 336, 62 N. W. 845, 58 Am. St. Rep. 400; affections, Staser v. Hogan, 12e 
 Xnd. 207, 21 N. E. 911; Perkins' Estate, 109 la. 216, 80 N. W. 335; contents 
 of former wills, Taylor v. Pegram, 151 111. 106, 37 N. E. 837; intention Be 
 fore execution, to show continued intention. Harp v. Parr, 168 111. 459, 48 
 N. B. 113; Kaenders v. Montague, 180 111. 300, 54 N. E. 321; Slieehan v. 
 Kearney (Miss.), 21 So. 41; Perret v. Perret. 184 Pa. ,131, 39 Atl. 33; HiU 
 V. Bahms, 158 111. 314, 41 N. E. 912. 
 
 •7 Doe V. Palmer, 16 Adol. & Ell. N. S. 758; Dennison's Appeal, 29 Conn. 
 39 
 
610 THE LAW OF EVIDENCE. § 483 
 
 § 483 (493). Same — Declarations — How limited. — ^But declara- 
 tions of the character treated in the last section are admissible only 
 for the purpose of proving the condition of the testator. They af- 
 ford no substantive proof of fraud, duress or undue influence, and 
 are admissible for no such purpose. There must be independent 
 proof and evidence exclusive of such declarations."' If the state- 
 ments are mere recitals of facts, and there is no such independent 
 proof of undue influence they are, of course, pure hearsay and in- 
 admissible."" Of course, if the declarations are made at the time the 
 fraud or undue influence is being effected, they might be admissible 
 on other grounds, that is, as part of the res gestae. These declara- 
 tions may, it is true, so far as they show the mental condition of the 
 testator, constitute a part of the proof of undue influence, but stand- 
 ing alone they furnish no proof of the alleged undue influence. As 
 was said in a New York case :'"' " The difference certainly is very 
 obvious between receiving the declarations of a testator to prove a 
 distinct external fact, such as duress or fraud, for instance, and as 
 evidence merely of the mental condition of the testator. In the 
 former case, it is mere hearsay, and liable to all the objections to 
 which the mere declarations of third persons are subject. While in 
 the latter, it is the most direct and appropriate species of evidence." 
 The same general rule was applied in a Massachusetts case where 
 the declarations were received subsequent to the will, but the proper 
 limitations of the rule were stated, and the authorities reviewed.''' 
 
 402; Nell v. Potter, 40 Pa. St. 484; Roberts v. Trawlck, 17 Ala. 55, 52 Am. 
 Dec. 164. 
 
 88 Jackson v. Kniffen, 2 Johns. 31, 3 Am. Dec. 390 and note; Bryant v. 
 Pierce, 95 Wis. 331, 70 N. W. 297; Gordon v. Burres (Mo.), 43 S. W. 642; 
 "Wood V. Zlbble, 131 Mich. G55, 92 N. "W. 348; Comstock v. Hadlyme, 8 
 Conn. 254, 20 Am. Dec 100; In re Hess Will, 48 Minn. 504, 31 Am. St. 
 Rep. 665 and elaborate note on undue influence. See note, 6 L. R. A. 
 N. S. 965. 
 
 6» Calkins' Estate v. Calkins, 112 Cal. 296, 44 Pac. 577; Donovan's Estate, 
 140 Cal. 390, 73 Pac. 1081; Underwood v. Thurman, 111 Ga. 325, 36 S. E. 
 788; Gwin v. Gwin, 5 Ida. 271, 48 Pac. 295; Schierbaum v. Schemme, 157 
 Ky. 1, 57. S. W. 526; Loennecker's Will, 112 Wis. 461, 88 N. W. 215. 
 
 70 Waterman v. Whitney, 11 N. T. 157, 165, 62 Am. Dec. 71, 76 and note. 
 
 71 Shailer v. Bumstead, 99 Mass. 112; Potter v. Baldwin, 133 Mass. 427; 
 Jackson v. Kniffen, 2 Johns. 31, 3 Am. Dec. 390 and note; Reel v. Reel, 
 1 Hawks (N. C.) 248, 9 Am. Dec. 632; Rambler v. Tryon, 7 Serg. & R. (Pa.) 
 90, 10 Am. Dec. 444; Davis v. Calvert, 5 Gill. & J. (Md.) 269, 25 Am. Dec. 
 282; Irish v. Smith, 8 Serg. & R. (Pa.) 573, 11 Am. Dec. 648; Comstock v. 
 Hadlyme, 8 Conn. 254, 20 Am. Dec. 100; Nelson v. McGiffert, 3 Barb. Ch 
 (N. Y.) 158, 49 Am. Dec. 170; Robinson v. Hutchinson, 26 Vt 38, 60 Am 
 
§ 485 PAEOL EVIDENCE. 611 
 
 § 484 (494). Parol proof of declarations as to revocation — Lost 
 wills. — Generally statutes require the revocation of a will to be 
 %n writing with certain formalities, or to be accompanied by some 
 act amounting to a virtual destruction of the instrument, such as 
 burning or tearing. Hence, the rule has become settled that no 
 declarations of the testator as to the question of revocation are ad- 
 missible, except such as accompany the act of revocation. If made 
 contemporaneously with such act, they tend to show the animus rev- 
 ocandi, and are part of the res gestae.''^ Although there has been 
 considerable discussion of the question and some conflict of opinion, 
 the weight of authority seems to 'be that subsequent declarations of 
 a testator are admissible to prove the existence and contents of a 
 lost will, as well as the fact that it had not been cancelled.'' When 
 a will cannot be found such declarations may be received to rebut 
 the presumption of revocation.'^ But the due and formal execution 
 of the wiU must be proved according to the statute, although it 
 may be by a single witness."* 
 
 § 485 (495, 496) . Parol evidence to explain deeds — ^Latent ambig- 
 uities. — The general rule on this subject respecting deeds was long 
 ago stated by Lord Thurlow as follows: "The rule is perfectly 
 clear that, where a deed is in writing, it will admit of no contract 
 that is not part of the deed ; whether it adds to or deducts from the 
 
 Dec. 298. See note, 62 Am. Dec. 80. Contra, Roberts v. Trawick, 17 Ala. 
 55, 52 Am. Dec. 164. 
 
 72 Waterman v. Whitney, 11 N. Y. 157, 62 Am. Dec. 71; Will of Ladd, 
 SO Wis 187, 50 Am. Rep. 355; Doe ex dem. Perkes v. Perkes, 3 Bam. & 
 Aid. 489; Doe ex dem. Reed v. Harris, 6 Adol. & Ell. 209; Bibb y. Thomas, 
 2 W. Black. 1044; Dan v. Brown. 4 Covr. 483, 15 Am. Dec. 395; Gay v. 
 Gay, 60 Iowa, 415, 46 Am. Rep. 78; Bschbach v. Collins, 61 Md. 478, 48 
 Am. Rep. 123; Graham v. Burch, 47 Minn. 171, 28 Am. St. Rep. 339 and 
 note; Jackson v. Kniffln, 2 Johns. 31, 3 Am. Dec. 390 and long note; Ken- 
 nedy's Will, 167 N. Y. 163, 60 N. E. 442; Earp v. Edington, 107 Tenn. 23, 
 64 S. W. 40. See very elaborate note on revocation of wills,' 28 Am. St. 
 Rep. 344-362. 
 
 73 Harring v. Allen, 25 Mich. 505; Sugden v. Lord St. Leonards, 1 Proo. 
 Div. 154, 17 Eng. Rep. 453; Weeks v. McBeth, 14 Ala. 474; Patterson v. 
 Hickey, 32 Ga. 156; Poster's Appeal, 87 Pa. St. 67, 30 Am. Rep. 340; Wil- 
 bourn v. Shell, 59 Miss. 205, 42 Am. Rep. 363; Schnee v. Schnee, 61 Kan. 
 643, 60 Pac. 738; Muller v. Muller, 108 Ky. 511, 56 S. W. 802; Lane v. Hill, 
 68 N. H. 275, 44 Atl. 393, 73 Am. St. Rep. 591. 
 
 74 Re Page, 118 111. 581, 8 N. E. 852, 59 Am. Rep. 395; Steinke's WiU, 
 95 Wis. 121, 70 N. W. 61; McBeth v. McBeth, 11 Ala. 602. See McDon- 
 ald v. McDonald, 142 Ind. 55, 41 N., B. 336, an important case citing many 
 others. But see also. In re Kennedy's Will, 167 N. Y. 163, CO N. E. 442. 
 
 T« Matter of Page, 118 111. 576, 59 Am. Rep. 395 and note. 
 
612 THE LAW OP EVIDENCE. § 485 
 
 contract, it is impossible to introduce it on parol evidence." " "We 
 will now call attention only to some of the exceptions. On the gen- 
 eral principles already stated, parol evidence may be receivpd for the 
 purpose of showing' that the deed never had any legal existence, as 
 that it was invalid on account of fraud or duress; or that it was in 
 violation of the laiv of the land, or contrary to 'public policy, or 
 not binding by reason of coverture, infancy or mistake,'''' or that it 
 comes within one of the general exceptions already discussed in this 
 chapter. Although a deed is presumed to have been executed and 
 delivered on the day of its date, yet, if it has no date or bears an er- 
 roneous or impossible date, parol evidence may be given of the time 
 of its execution and delivery.''^ So an erroneous description of a 
 
 Te Elphinstone, Deeds, 3; Trullinger v. Webb, 3 Ind. 198; Skinner v. Hen- 
 drick, 1 Root( Conn.) 253, 1 Am. Dec. 43; May v. Shields, 117 Ga. 814, 45 
 S. E. 68; Walton v. Follansbee, 165 111. 480, 46 N. B. 459; McEnery v. Mc- 
 Enery, 110 Iowa, 718, 80 N. W. 1071; Clark v. Hedden, 109 La. 147, 33 So. 
 116; Dye v. Tbompson, 126 Mich. 597, 85 N. W. 1113; Powers v. Spaulding, 
 . 96 Wis. 487, 71 N. W. 891; Timms v. Shannon, 19 Md. 296, 81 Am. Dec. 
 632; Dodge v. Nichols, 5 Allen, 548; Stine v. Sherk, 1 Watts & S. (Pa.) 
 195; Vermont Railway Co. v. Hills, 23 Vt. 681; Marshall v. Dean, 4 
 J. J. Marsh. (Ky.) 583; Kimball v. Morrell, 4 Me. 368; Snyder v. 
 Snyder, 6 Binn. (Pa.) 483, 6 Am. Dec. 493; Jackson v. Sternberg, 20 Johns. 
 49; Tobin v. Gregg, 34 Pa. St. 446; Kelley v. Saltmarsh, 146 Mass. 582; 
 Lowdermilk v. Bowstick, 98 N. C. 299; Kirch v. Dayies, 55 "Wis. 287; 
 Palmer v. Culbertson, 143 N. T. 213. Parol evidence will not be re- 
 ceived to extend or enlarge the estate granted, Lothrop v. Foster, 51 Me. 
 367; Miller v. Washburn, 117 Mass. 371; or to vary or enlarge covenants 
 • of warranty, Raymond v. Raymond, 10 Cush. 134; Johnson v. Walter, 60 
 Iowa, 315; MacLeod v. Skiles, 81 Mo. 595; Bever v. North, 107 Ind. 544; 
 Cartier v. Douville, 98 Mich. 22; or to show that an aisolute deed was only 
 a conditional one, Haworth v. Norris, 28 Pla. 763; McGee v. Allison, 94 la. 
 527, 63 N. W. 322; McClendon v. Brockett, 32 Tex. Civ. App. 150, 73 S. W. 
 854; Schwalbach v. Railway Co., 73 Wis. 137, 40 N. W. 579; or that part 
 of the lands described in a sheriff's deed was intended to be excepted, 
 Todd v. Philhower, 24 N. J. L. 796; or otherwise to vary the description, 
 if it is unambiguous. Madden v. Tucker, 46 Me. 367; Clark v. Baird, 9 N. T. 
 183; Bratton v. Clawson, 3 Strob. (S. C.) 127; Rowland v. McCown, 20 
 Ore. 538; or that a reconveyance should be made or a lite estate reserved, 
 Hutchins v. Hutchins, 98 N. Y. 56; or an agreement that the consideration 
 should be refunded in case of partial failure of title, Putnam v. Russell, 86 
 Mich. 389; or otherwise to change the legal effect, HoUey v. Younge, 27 
 Ala. 203. 
 
 Tt Ex parte Morgan, 2 Ch. Div. 84; Collins v. Blantern, 2 Wils. 341; El- 
 phinstone. Deeds, 5. 
 
 78 Styles V. Wardle, 4 Bam. & C. 908; Miller v. Hampton, 37 Ala. 342; 
 McComb V. Gllkey, 29 Miss. 146; Draper v. Snow, 20 N. Y. 331, 75 Am. 
 
§ 485 PABOL EVIDENCE. 613 
 
 party to the deed or otlier person may be corrected by extrinsic evi- 
 dence which discloses the person intended.'" There is an important 
 difference between the description of the grantees in a deed which 
 is inherently uncertain and one which is merely imperfect and cap- 
 able, on that account, of different applications. Extrinsic evidence 
 is not admissible in the former case to make the conveyance effectual 
 in favor of any particular person, while in the latter ease, a resort 
 to extraneous facts and circumstances may become necessary; and 
 it is proper in order to ascertain the individual to whom the de- 
 scription was intended to apply.*" It is frequently necessary in the 
 construction of deeds to apply the rules already given as to latent 
 ambiguities in order to identify the land intended to be conveyed. 
 Thus, where, although the description in a conveyance is sufficiently 
 definite, it appears from extrinsic evidence that the words used are 
 equally applicable to two different pieces of land, a latent ambig- 
 uity arises ; and it may be shown by parol what land it was intended 
 to convey.*^ In the absence of any latent ambiguity, it would be a 
 
 Dec. 408; Elphinstone, Deeds, 6, 125. But see, Hill v. Frfeeman, 73 Ala. 200, 
 49 Am. Rep. 48 and note. 
 
 79 Morgan v. Bonlat, 9 La. An. 29; Cleveland v. Bumham, 64 Wis. 347; 
 WakeHeld v. Brown, 38 Minn. 361, 37 N. W. 788, 8 Am. St. Rep. 671; Sal- 
 mer v. Lathrop, 10 S. D. 216, 72 N. W. 57; Keith v. Scales, 124 N. C. 
 497, 32 S. B. 809. So where there is a mistake in the christian name of the 
 grantor or grantee, Henderson v. Hackney, 16 Ga. 520; Peahody v. Brown, 
 10 Gray, 45; or surname of grantor or grantee, Scanlan v. Wright, 13 Pick. 
 523, 25 Am. Dec. 344; who of two or more persons of the name given in the 
 deed was intended, Avery v. Stites, Wright (Ohio) 56; Coitv. Starkweather, 
 8 Conn. 289; christian name of the grantee Is left blank, to show who 
 was intended, DeAy ray's Case, 11 Coke, 21a; Leach v. Dodson, 64 Tex. 
 185; where there was an erasure in a deed changing the name of the 
 grantee from Elizabeth to Eliza, to show that the two names referred to 
 the same person, Hanrick v. Patrick, 119 U. S. 156. But it cannot be 
 shown by parol that the person named as grantee was not the one in- 
 tended, Whitmore v. Learned, 70 Me. 276. 
 
 80 Morse v. Carpenter, 19 Vt. 613. 
 
 81 Hardy v. Mathews. 38 Mo. 121; Wharton v. Ebom, 88 N. C. 344; Stone 
 V. Clark, 1 Met. 378, 35 Am. Dec. 370; Hall v. Davis, 36 N. H. 569; Miles 
 V. Barrows, 122 Mass. 579; Lanman v. Crooker, 97 Ind. 163, 49 Am. Rep. 
 437; Swayne v. Vance, 28 Ark. 282; Elofrson v. Lindsay, 90 Wis. 203. For 
 an exhaustive discussion of the authorities on parol explanation of am- 
 biguities in deeds, see Browne, Parol Ev. beginning p. 305. See also note, 
 12 Bug. Rep. 241-250; 40 Am. Dec. 109-111. When land was described as 
 the "north twenty feet" of a lot, where the northerly line of the lot deflected 
 twenty-five degrees from a due east and west course, it was held proper 
 to prove by parol the general understanding among real estate dealers and 
 conveyancers in that city as to the m-eaning of the term "north twenty 
 
614 THE LAW OF EVIDBNCK § 485 
 
 clear violation of the rules of evidence to receive parol proof to show 
 that the grantor intended to convey a different tract from that de- 
 scribed in the deed/^ for example, that when the whole is described, 
 only a moiety was intended.*^ But if the lands are vaguely de- 
 scribed, such evidence may be received not to contradict the deed, 
 but to identify the landf^ for example, to show that certain lands 
 are well known in the community by the description given in the 
 deed'" and to identify land thus indefinitely described, evidence has 
 in some cases been received of the acts of the parties as tending to 
 show their understanding and construction of the deed.** But pri- 
 vate declarations of the grantor as to boundary lines are not admis- 
 sible to control the language of the deed.^'' 
 
 feet." when used and applied to lots in that plat, Jenkins v. Sharpf, 27 
 Wis. 477; when 12ie 'boundary called for in the plaintiff's deed was the 
 "Shirley line," and the defendant's deed the "Lunenburg line," it was 
 held admissible to explain by parol evidence the latent ambiguity thus 
 disclosed, Putnam v. Bond, 100 Mass. 58, 1 Am. Rep. 82. See also, Cham- 
 ■jers V. RingstafE, 69 Ala. 140. 
 
 82 Norwood V. Byrd, 1 Rich. L. (S. C.) 135, 42 Am. Dec. 406; Emerick v. 
 Kohler, 29 Barb. (N. Y.) 165; Griffin v. Hall, 115 Ala. 482, 22 So. 162; Dug- 
 gan v. Uppendahl, 197 111. 179, 64 N. E. 289; King v. New York & C. G. C. 
 Co., 204 Pa. 628, 54 Atl. 477; Elofrson v. Lindsay, 90 Wis. 203, 63 N. W. 89; 
 Reed v. Shenck, 2 Dev. (N. C.) 415; Massingill v. Boyles, 4 Humph. 
 (Tenn.) 205; Pride v. Lunt, 19 Me. 115; Waugh v. Waugh, 28 N. Y. 94; 
 Vosburgh v. Teator, 32 N. Y. 561; Ritchie v. Pease, 114 111. 353; Bratton v. 
 Clawson, 3 Strob. (S. C.) 127. 
 
 S3 Child v. Wells, 13 Pick. 121; Butler v. Gale, 27 Vt. 739. 
 
 siPettit V. Shepard, 32 N. Y. 97; Halladay v. Hess, 147 111. 588; Ropley 
 v. Klugh, 40 S. C. 134; Miles v. Miles, 78 Miss. 904, 30 So. 2; House v. 
 .Johnson (Tex. Civ App.), 36 S. W. 916; Murray Hill Land Co. v. Milwau- 
 kee L. H. & T. Co., 110 Wis. 555, 86 N. W. 199. To locate boundaries, 
 Diggs V. Kurtz, 132 Mo. 250, 33 S. W. 815, 53 Am. St. Rep. 488; Bartlett v. 
 LaRochelle, 68 N. H. 211, 44 Atl. 302; Hanlon v. Railway Co., 40 Neb. 
 52, 58 N. W. 590. 
 
 80 Shewalter v. Pirner, 55 Mo. 218; Woods v. Sawin, 4 Gray, 322; Dough- 
 erty V. Chestnutt, 86 Tenn. 1, 5 S. W. 444; Enllss v. McAdams, 108 N. C. 
 507, 13 S. E. 162; Dorgan v. Weeks, 86 Ala. 329, 5 So. 581. 
 
 86Moran v. Lezotte, 54 Mich. 83; Truett v. Adams, 66 Cal. 218; Lovejoy 
 
 Lovett, 124 Mass. 270; Clark v. Wethey, 19 Wend. 320; Fletcher v. Phelps, 
 28 Vt. 258. 
 
 87Gainey v. Hays, 63 N. C. 497; Clark v. Wethey, 19 Wend. 320; Olson 
 v.. Kt'ith, 162 Mass. 485, 39 N. E. 410; Shaffer v. Gaynor, 117 N. C. 15, 
 23 S. E. 154. Where the description of the land only contained the survey 
 numbers Df section, town and range, omitting the state, county and basis 
 meridian, parol evidence was admitted to show that, when the conveyance 
 was made, the grantor owned and resided upon lands in a given county 
 
§ 486 PAROL EVIDENCE. 615 
 
 § 486 (497) . Paxol evidence inadmissible to prove reservation. 
 
 — No reservation can be engrafted upon a deed by parol in respect 
 to fixtures which have become part of the realty, or in respect to the 
 natural products of the soil, such as growing trees. This would not 
 only be in violation of the common law rules of evidence, but of the 
 Statute of Frauds.^' There is, however, a decided conflict in the de- 
 cisions as to whether parol proof may be given of a prior or of a 
 contemporaneous agreement by paxol for the reservation of growing 
 crops of the grantor, when there is no exception in the deed. It has 
 been held in numerous cases that the admission of such proof is a 
 clear violation of the rule under consideration f and on the same 
 principle, it has been held that such evidence cannot be given of a 
 parol contemporaneous agreement that the grantor may hold pos- 
 session until the maturity of another crop,"" or that possession may 
 be retained until a part of the purchase price has been paid."^ So 
 it has been held that no such proof can be given of the reservation of 
 rent.'* On the other hand the doctrine is declared in other cases 
 that by parol agreement, prior to or contemporaneous with the deed, 
 the grantor may sever and reserve the growing crops, although the 
 deed contain no exception.*' So it has been held admissible to prove 
 an agreement by parol that the grantor might remain in posses- 
 sion for a time without the payment of rent;"* that the purchaser 
 
 in Alabama known by the same numbers as those In the conveyance. Cham- 
 bers v. Ringstaff, 69 Ala. 140. 
 
 88 Backenstoss v. Stahler's Adm., 33 Pa. St. 251, 75 Am. Dec. 592; Bank 
 V. Crary, 1 Barb. 542; Slocum v. Seymour, 36 N. J. L. 138, 13 Am. Rep. 
 432; Sterling v. Baldwin, 42 Vt. 306; Jones v. Timmons, 21 Ohio St. 596; 
 Detroit Ry. Co. v. Forbes, 30 Mich. 166; In re Perkins' Estate, 65 Vt. 313. 
 On this general subject see extended note, 12 Eng. Rep. 241-250. 
 
 89 Austin V. Sawyer, 9 Cow. 39 ; Gibbons v. Dillingham, 10 Ark. 9, 50 
 Am. Dec. 233; Smith v. Price, 39 111. 28, 89 Am. Dec. 284; Mcllvaine v. 
 Harris, 20 Mo. 457, 64 Am. Dec. 196; Wintermute v. Light, 46 Barb. 278. 
 Contra, Backenstoss v. Stahler's Adm., 33 Pa. St. 251, 75 Am. Dec. 592; 
 Flynt V. Conrad, Phill. (N. C.) 190, 93 Am. Dec. 588; Merrill v. Blodgett, 
 34 Vt. 480; Harvey v. Million, 67 Ind. 90; Adams v. Watkins, 103 Mich. 
 431, 61 N. W. 774. 
 
 80 Melton v. Watkins, 24 Ala. 433, 60 Am. Dec. 481. But see, Hamilton 
 T. Clark (Tex. Civ. App.), 26 S. W. 515; Willis v. Hulbert, 117 Mass. 
 151. 
 
 »i Gilbert v. Buckeley, 5 Conn. 262, 13 Am. Dec. 57. 
 
 82 Winn v. Murehead, 52 Iowa, 64. 
 
 83 Simanek v. Nemetz, 120 Wis. 42, 97 N. W. 508. See cases cited under 
 note 89 supra. 
 
 »* Hersey v. Verrill, 39 Me. 271, 
 
616 THE LAW OP EVIDENCE. § 488 
 
 should be entitled to the crop, such agreement not being inconsistent 
 with the language of the deed,°^ and that a distinct agreement prior 
 to the deed had been made whereby the grantor should have the 
 right to sell the manure on the land sold.°° Decisions of this char- 
 acter rest on the general exception, already stated, that the general 
 rule under discussion does not apply to agreements which are en- 
 tirely distinct from, and which are collateral to the written instru- 
 ment; and in some cases on the ground that such proof is admis- 
 sible as showing the real consideration.^'' 
 
 § 487 (498). Parol evidence as to warranties. — The question has 
 often arisen whether a luarranty, prior to or contemporaneous with 
 the deed, can be proved by parol. "Where the instrument purports 
 to contain the covenants of the grantor with respect to the property, 
 to admit such evidence would seem a clear violation of the familiar 
 rule that written contracts are not to be changed by parol testi- 
 mony.*^ For example, where a deed contains a covenant of war- 
 ranty against "all persons claiming under the grantor," parol evi- 
 dence is not admissible to prove a general warranty against a title 
 from other sources."* So where the grantor covenants against in- 
 cumbrances generally, parol evidence is not admissible to show, in 
 the absence of fraud or mistake, that certain known encumbrances 
 were excluded ;^ and where a deed is absolute in form, verbal war- 
 ranties in the nature of conditions made prior to the execution of 
 the deed are not admissible.^ WTiere a deed contains an express 
 warranty against all claims except certain taxes, parol evidence is 
 admissible to show that the warrantor agreed to pay such taxes. 
 Under such circumstances a party can not accept a deed with such 
 a covenant, and escape its form and effect by verbal protestations 
 and stipulations to the contrary. By acceptance of the deed, the 
 parol agreement is waived.' 
 
 § 488 (499). Same, eontimied. — On the same general principle, 
 it has been held in an action for breach of covenant against incum- 
 
 05 Robinson v. Pitzer, 3 W. Va. 335. 
 08 Strong v. Doyle, 110 Mass. 92. 
 
 07 See §§ 439, 468 supra. 
 
 08 Cabot V. Christie, 42 Vt. 121, 1 Am. Rep. 313. On this general subject 
 see note, 5 Am. St. Rep. 199-201. 
 
 00 Raymond r. Raymond, 10 Cush. 134. 
 
 iLong V. Moler, 5 Ohio St. 271; Hunt v. Amidon, 4 Hill, 345, 40 Am. 
 Dec. 283; Johnson v. Walter, 60 Iowa, 315; Bever v. North, 107 Ind. 544. 
 
 2 Marshall Co. v. Iowa Synod, 28 Iowa, 360; Bryan v. Swain, 56 Cal. 616. 
 
 8 MacLeod v. Skiles, 81 Mo. 595, 51 Am. Rep. 254; Gilbert v. Stockman, 
 76 Wis. 62, 20 Am. St. Rep. 23. 
 
§ 488 PAKOL EVIDENCE. 617 
 
 brances in a deed of land that parol evidence is not admissible for 
 the purpose of proving that, prior to the execution of the deed, an 
 oral agreement wa's made that the grantee vFould assume a liability 
 growing out of an assessment upon the land for improvements, -when 
 such agreement is inconsistent vfith what was written.* But the 
 courts receive evidence of such agreements when they are not in- 
 consistent tvith the deed itself, and when they will serve to explain 
 it, especially when they are an inducement to the making of the 
 contract. For example, parol evidence has been received of an 
 agrtBement by vendor of land to pay for filling the same,° or for 
 building a sewer," as well as an agreement to grade a street which 
 was made an inducement to the grantee to buy a lot bounded by it.' 
 Although the familiar rule that parol evidence cannot be received 
 to vary or contradict instruments in writing is generally recognized 
 as applicable to deeds, there is a class of decisions in which evidence 
 of prior and contemporaneoixs agreements has been received, and 
 in which it has even been held competent to prove warranties by 
 parol. Thus, in a Wisconsin case the action arose on a note for a 
 portion of the purchase price ; it was held competent for the grantee 
 to prove by parol a warranty on the part of the grantor that the 
 lands were good meadow lands, and also a breach of such warranty. 
 While the general rule of evidence is recognized by the court, the 
 distinction is made that contracts in respect to the sale and convey- 
 ance of land do not come within such general rule, as the deed is 
 merely adapted to transfer the title, and generally contains only the 
 ordinary covenants of title ; and that covenants as to quality consti- 
 tute a collateral or independent agreement.^ On the same theory 
 in an action by grantors to restrain the grantee from using the 
 property for the sale of intoxicating liquors, evidence was held ad- 
 missible to prove a parol agreement that part of the consideration 
 
 *Flynn v. Bourneof, 143 Mass. 277, 58 Am. Rep. 135; Desmond v. Mo- 
 Namara, 107 Wis. 126, 82 N. W. 701. 
 
 » McCormick v". Cheevers, 124 Mass. 262. See also, Page v. Monks, 5 
 Gray, 492. 
 
 8 Carr v. Dooley, 119 Mass. 294. 
 
 ' Durkin v. Cobleigh, 156 Mass. 108, and cases there cited. See also 
 note, 32 Am. St. Rep. 441. 
 
 8 Green v. Batson, 71 Wis. 54, 5 Am. St. Rep. 194 and full note; Miller 
 V. Fichthom, 31 Pa. St. 260; Carr v. Dooley, 119 Mass. 294; McCormick v. 
 Cheevers, 124 Mass. 262; Ludeke v. Sutherland, 87 111. 481, 29 Am. Rep. 
 66; Buzzell v. Willard, 44 Vt. 44; Ingersoll v. Truebody, 40 Cal. 603; 
 Kingsbury v. Moses, 45 N. H, 223. But see, Button v. Gerrish, 9 Cush. 
 89, 55 Am. Dec. 45; Martin v. Hamlin, 18 Mich. 354, 100 Am. Dec. 181. 
 
618 THB LAW OF EVIDENCE. § 490 
 
 for the grant was that the property should not be used for such 
 purposes.' "Where a deed of land which included a store building 
 provided with shelving contained this clause, "this grant includes 
 all the shelving in the building," it was held competent to receive 
 the proof of the sale of personal property at the same time in order 
 to show that it did not pass by the terms of the deed.^" So parol 
 evidence of an agreement not to carry on the same business within a 
 a given area has been held admissible.^' 
 
 § 489 (500). As to deficiency of land in deeds. — The question 
 has frequently arisen whether parol eAddence can be received in an 
 action for damages or for money had and received to show that the 
 number of acres designated in the deed in question is incorrect. In 
 the absence of fraud, it has generally been held that, in a court of 
 law, when the deed states by way of description the number of 
 acres in the whole tract, parol evidence cannot be received to show 
 that the land was sold at a given price per acre, and that there is a 
 deficiency in the amount of land ; '^ nor can a verbal warranty, 
 prior to the conveyance be proved. '' But in a court of equity 
 parol evidence may be received to correct a mistake as to the quan- 
 tity of land named in the deed.'* 
 
 § 490 (501). Parol proof as to acknowledgments. — ^Although 
 the acknowledgement of deeds before an officer is, under statutes, 
 generally an act necessary to entitle the deed to record, the fact of 
 such acknowledgement is not in all cases established beyond dispute 
 by the eertiiieate of an officer. It is true, however, that the making 
 of the official certificate is generally regarded as a judicial act; that 
 the certificate itself is the best evidence of the facts stated therein, 
 and that the law imposes upon the officer the duty of ascertaining 
 the truth of the matters stated by him." But as between the pa/r- 
 
 Hall V. Soloman, 61 Conn. 476. 
 
 loBretto V. Levlne, 50 Minn. 168. 
 
 n Pierce v. Woodward, 6 Pick. 206; Pusting v. Sullivan, 41 Md. 162; 
 Contra, Zanturjian v. Boornazian, 25 R. I. 151, 55 Atl.' 199; Slaughter v. 
 Smither, 97 Va. 202, 33 S. E. 544. 
 
 12 Carter v. Beck, 40 Ala. 599 ; Howes v. Barker, 3 Johns. 506, 3 Am. 
 Dec. 526; Kerr v. Calvit, 1 Miss. 115, 12 Am. Dec. 537; Cameron v. Irwin, 
 5 Hill, 272; Nixon v. Porter, 38 Miss. 401; Faure v. Martin, 7 N. Y. 210; 
 Clarke v. Lancaster, 36 Md. 196, 11 Am. Rep. 486. But see, White T. 
 Miller, 22 Vt. 380; Ludeke v. Sutherland, 87 111. 481, 29 Am. Rep. 66. 
 
 "Cook V. Combs, 39 N. H. 592, 75 Am. Dec. 241; Cabot v. Christie, 42 
 Vt. 121, 1 Am. Rep. 313; Wadhams v. Swan, 109 111. 46. 
 
 "Paine v. Upton, 87 N. Y. 327, 41 Am. Rep. 371; Hill v. Buckley, 17 
 Ves. Jr. 394; Darling v. Osborne, 51 Vt 148.- 
 
 iBHeeter v. Glasgow, 79 Pa. St. 79, 21 Am. Rep. 46; Lickmon v. Hard 
 
§ 490 PAEOL EVIDENCE. 619 
 
 ties to the conveyance, it is well settled that the aelmowledgement 
 may be impeached by parol proof that the same was never actually 
 made, or that it was obtained by fraud, duress or collusion of which 
 the grantee had knowledge.^" The certificate of acknowledgment 
 is prima facie evidence of the facts stated therein ; " and the proof 
 should be clear and conclusive to overcome the presuni^jtion of reg- 
 ularity.*' There are strong and manifest reasons for the rule 
 which has come to prevail that acknowledgments cannot be thus 
 impeached as against those wJio purchased subsequently and in 
 good faith, without notice of any irregularity or fraud. Purchasers 
 in a majority of cases are compelled to rely upon the public records 
 in their examination of titles ; and there could be no reliance upon 
 such records or upon titles, if the claims of hona fide purchasers 
 might be defeated by parol evidence that parties had not in fact 
 acknowledged deeds signed by them and recorded in compliance 
 with every formality of law. The decisions uniformly establish 
 the rule that, in cases where the certificate is regular in form, and 
 the grantor knew that he was in the presence of a competent ofScer 
 who was making an attempt to take the acknowledgment, it cannot 
 be impeached as against an innocent purchaser on account of any 
 error or omission in its taking.^" On the other hand, when the 
 acknowledgment is materially defective on its face, as where some- 
 
 ing, 65 ni. 505; Cover v. Manaway, 115 Pa. St. 338, 2 Am. St. Rep. 552. 
 On the subject of this section see note, 1 Am. Dec. 81. Further as to 
 acknowledgments, see § 520 infra. See also, 1 Bncyc. of Ev. pp. 187 et seq. 
 isHeeter v. Glasgow, 79 Pa. St. 79, 21 Am. Rep. 46; Miller v. Went- 
 worth, 82 Pa. St. 280; Pickens v. Knisely, 29 W. Va. 1, 6 Am. St. Rep. 622 
 and note; Jamison v. Jamison, 3 Whart. (Pa.) 457, 31 Am. Dec. 536; Baiv 
 net V. Barnet, 15 Serg. & R. (Pa.) 72, 16 Am. Dec. 516; Schrader v. Decker) 
 9 Pa. St. 14, 49 Am Dec. 538; Barrett v. Davis, 104 Mo. 549; Smith v. 
 Ward, 2 Ropt (Conn.) 378, 1 Am. Dec. 80 and note; Stauch v. Hathaway, 
 101 111. 11, 40 Am. Rep. 193; Jordan v. Corey, 2 Ind. 385, 52 Am. Dec. 516 
 and note. 
 
 17 Borland v. Walrath, 33 Iowa, 130; Hortienne v. Schnoor, 33 Mich. 
 274; Lickmon v. Harding, 65 111. 505; Van Orman v. McGregor, 23 Iowa, 
 300. 
 
 18 Van Orman v. McGregor, 23 Iowa, 300; Banning v. Banning, 80 Cal. 
 271, 13 Am. St. Rep. 156; Northwestern L. & B. Co. v. Jona"sen, 11 S. D. 
 566, 79 N. W. 840; Shelden v. Freeman, 116 Mich. 646, 74 N. W. 1004; 
 Berdel'v. Egan, 125 111. 298, 17 N. E. 709; Albany Bank y. McCarty, 149 
 N. Y. 71, 43 N E. 427, full discussion. 
 
 19 Williams v. Baker, 71 Pa. St. 476; Ridgely v. Howard, 3 Har. & McH. 
 (Md.) 321; Pickens v. Knisely, 29 W. Va. 1, 6 Am. Rep. 622 and note; 
 Kerr v. Russell, 69 III. 666, 18 Am. Rep. 634; Kocourek v. Marak, 54 Tei. 
 201, 38 Am. Rep. 623; White v. Graves, 107 Mass. 325, 9 Am. Rep. 38. See 
 many cases cited in 1 Encyc. of Ev. pp. 187 et seq. 
 
620 THE LAW OF EVIDENCE. § 49] 
 
 thing required by the statute is omitted, such defect cannot be 
 helped out by parol evidence.^" So where the record is irregular 
 because the person taking the acknowledgment gives himself no 
 official character in his certificate or subscription, it has been held 
 that parol evidence cannot be given to show that the person was in 
 fact duly qualified to take the acknowledgment.*^ But in aid of 
 such acknowledgment, the court may examine and take into consid- 
 eration maiters stated in the deed itself or in any part of it." 
 
 § 491 (502). Parol evidence to explain receipts. — ^It has been 
 long well settled that a written receipt for the payment of money is 
 not conclusive, and that it is open to explanation by parol.^' Re- 
 ceipts are usually general in their expressions, and many matters 
 
 20 Watson v. Bailey, 1 Biirn. (Pa.) 470, 2 Am. Dec. 462, Barnet v. Bar- 
 net, 15 Serg. & R. (Pa.) 72, 16 Am. Dec. 516; Ennor v. Thompson, 46 111. 
 214; Harty v. Ladd, 3 Ore. 353; Merritt v. Yates, 71 111. 636, 22 Am. Rep. 
 128; Cox V. Holcomb, 87 Ala. 589, 13 Am. St. Rep. 79; Jourdan v. Jourdan, 
 9 Serg. & R. (Pa.) 268, 11 Am. Dec. 724; Barnet v. Shakleford, 6 J. J. 
 Marsh. (Ky.) 532, 22 Am. Dec. 100. See note, 52 Am. Dec. 520. 
 
 21 Johnston v. Haines, 2 Ohio, 55; Shults v. Moore, 1 McLean, 520, 22 
 Fed. Gas. No. 12,824. But see. Van Ness v. Bank of U. S., 13 Pet. 17; Sil- 
 cock V. Baker (Tex. Civ. App.), 61 S. W. 939. 
 
 22 Carpenter v. Dexter, 8 Wall. 513; Brunswick-Balke-CoUender Co. v. 
 Brackett, 37 Minn. 58, 33 N. W. 214. See § 520 infra. 
 
 23Rambert v. Cohen, 4 Esp. 214; Skaife v. Jackson, 3 Barn. & C. 421; 
 Wallace v. Kelsall, 7 M. & W. 273; Lynn v. Bean (Ala.), 37 So. 515; Haw- 
 ley V. Bader, 15 Cal. 44; Calhoun v. Richardson, 30 Conn. 210; Barghorn v. 
 Moore, 6 Ida. 531, 57 Pac. 265; Higley v. Railway Co., 99 la. 503, 68 N. W. 
 829, 61 Am. St. Rep. 250; Truworthy v. French, 97 Me. 143, 53 Atl. 1005; 
 Brown v. South Boston Sav. Bank, 148 Mass. 300, 19 N. E. 382; French 
 V. Newberry, 124 Mich. 147, 82 N. W. 840; Hennessey v. Kennedy Furni- 
 'ture Co., 30, Mont. 264, 76 Pac. 291; Kemp v. Raymond, 175 N. Y. 102, 67 
 N. B. 113; Dunnagan v. Dunnagan, 38 Ga. 554; Carr v. Minor, 42 111. 179; 
 Henry v. Henry, 11 Ind. 236, 71 Am. Dec. 354; Knox v. Barbee, 3 Bibb (Ky.) 
 526; Dund v. Pipes, 20 La. An. 276; Cramer v. Shriner. 18 Md." 140; Brooks 
 V. White, 2 Met. 283, 37 Am. Dec. 95; Hart v. Gould, 62 Mich. 262; Elsbarg 
 v. Myrman, 41 Minn. 641; Shotwell v. Hamblin, 23 Miss. 156, 55 Am. Dec. 
 83; McFadden v. Missouri Pac. Ry. Co., 92 Mo. 343, 1 Am. St. Rep. 721; 
 Edgerly v. Emerson, 23 N. H. 555, 55 Am. Dec. 207; Swain v. Prazier, 35 
 N. J. Eq. 326; Johnson v. Weed, 9 Johns. 310, 6 Am. Dec. 279; Harper v. 
 Dall, 92 N.'C. 394; Shoemaker v. Stiles, 102 Pa. St. 549; Bulwinkle v. 
 Cramer, 27 S. C. 376, 13 Am. St. Rep. 645; Tuley v. Barton, 79 Va. 387; 
 McLane v. Johnson, 59 Vt. 237; Hill v. Durand, 58 Wis. 160; Lady Frank- 
 lin, 8 Wall. 325; Erickson v. Brookings Co., 3 9 Dak. 434; Morse v. Rice, 
 36 Neb. 212; Fire Ins. Co. v. Wickham, 141 TJ. S. 564; Bank of British 
 America v. Cooper, 137 U. S. 473; Seeger v,. Manitowoc Boiler Wks. 120 
 Wis. 11, 97 N. W. 485. As to the general subject of receipts see also note, 
 11 Am. St. Rep. 393. 
 
§ 492 PAEOL EVIDENCE. 621 
 
 not considered at the time might be controlled by such general ex- 
 pressions contrary to right and to the intention of the parties, 
 hence such instruments are generally treated as admissions open to 
 explanation, and not as conclusive.'"' So it may be shown that a 
 receipt purporting to be for money was in fact given for securi- 
 ties.^" Receipts which are executed in the form of releases under 
 seal purporting to be in full of all demands may be explained by 
 proof of fraud or mista^e.^" But where the receipt purports to he 
 a full settlement or compromise of a claim, the courts have fre- 
 quently refused to admit parol proof of the omission of other terms 
 or conditions.^' In such case the document is contractual and can- 
 not be varied."' 
 
 § 492 (503). Effect of receipts vsrhen not explained. — ^A written 
 receipt is evidence of a high character. Although it is not conclu- 
 sive, it is prima facie evidence of the truth of the recitals which it 
 
 24 Tbus, a tax receipt Is not conclusive evidence upon tte question for 
 whom taxes are paid. Rand v. Scofield, 43 111. 167; Elston v. Kennicott, 40 
 111. 187; nor that the description of land therein is correct, Paris v. 
 Lewis, 85 111. 597; it may be shown that a receipt for "currency" is for 
 money, Reading v. Traver, 83 111. 372; that a receipt of payment for a bill of 
 goods was given for a note of a third person, Johnson v. Weed, 9 Johns. 
 310, 6 Am. Dec. 279; that the receipt was given on condiUon that it should 
 not be binding until a certain act should be performed. House v. Low, 
 2 Johns. 378; that a recital in partnership articles of the amount contrib- 
 uted by a partner is incorrect, Lowe v. Thompson, 86 Ind. 503. A certifi- 
 cate of deposit issued by a bank is in the nature of a receipt, and may be 
 explained, Hotchkiss v. Mosher, 48 N. Y. 478; and the same is true of 
 hankers' pass hooTcs, Commercial Bank v. Rhind, 3 Maoq. 643. 
 
 26Trisler v. Williamson, 4 Har. & McH. (Md.) 219, 1 Am. Dec. 396; 
 Rarden v. Cunningham, 136 Ala. 263, 34 So. 26; Mounce v. Kurtz, 101 la. 
 192, 70 N. W. 119; Ireland v. Spickard, 95 Mo. App. 53, 68 S. W. 748; 
 Twohy Mercantile Co. v. McDonald, 108 Wis. 21, 83 N. W. 1107. 
 
 28 Jones V. Ward, 10 Yerg. (Tenn.) 160; Schultz y. Chicago Ry. Co., 44 
 Wis. 638; Butler v. Regents, 32 Wis. 124; Kentucky Cement Co. v. Cleve- 
 land, 4 Ind. App. 171; Fire Ins. Co. v. Wickham, 141 U. S. 564. 
 
 27 State V. Messick, 1 Houst. (Del.) 347; Coon v. Knap, 8 N. Y. 402, 59 
 Am. Dec. 502; Squires v. Amherst, 145 Mass. 192; Goodwin v. Goodwin, 59 
 N. H. 548; Stapleton v. King, 33 Iowa, 28, 11 Am. Rep. 109; White v. Rich- 
 mond Ry. Co., 110 N. C. 456; Clark v. Mallory, 185 111. 227, 56 N. B. 1099; 
 Indianapolis U. R. Co. v. Houlehan, 157 Ind. 494, 60 N. E. 943; Drum Plats 
 Commission Co. v. Barnard, 66 Kan. 568, 72 Pac. 257; Cassilly v. Cassilly, 
 57 Oh. St. 582, 49 N. E. 795. 
 
 2aBoffinger v. Tuyes Bank, 120 U. S. 198; Cummings v. Baars, 36 Minn. 
 350, 31 N. W. 449; Squires v. Amherst, 145 Mass. 192, 13 N. E. 609; Conant 
 V. Kimball, 95 Wis. 550, 70 N. W. 74; Pratt v. Castle, 91 Mich. 484. 52 
 N. W. 52. 
 
622 THE LAW 01' EVIDENCE. § 492 
 
 contains. It is evidence of so satisfactory a character as not to he 
 overcome, except hy clear and convincing testimony; and the bur- 
 den of proof as a matter of course rests upon the one attacking it.^" 
 But such circumstances of fraud or mistake or suspicion as would 
 lead a court of equity to set aside a contract may be shown, either 
 in an equitable or legal proceeding, to vary or impugn the receipt.^" 
 Although an instrument is in form a receipt, if it is in fact a com- 
 plete contract, it is governed by the same rules in this respect as are 
 other contracts, and cannot be varied by parol.^^ But if the instru- 
 ment is of a dual character, being both a receipt and a contract, the 
 part which is a receipt may be explained; '^ and, if a contract is in- 
 corporated in a receipt, or a receipt in a contract, the receipt may 
 be varied, although the contract may not.'' Thus, an instrument 
 in the form of a receipt for goods specifying kinds, numbers, prices 
 and total value, which is in the handwriting of the receiver and on 
 which the other party indorses the money paid, is a contract of sale, 
 and cannot be varied by parol.'* "But when the receipt contains 
 no general or vague expressions, but all is definitely descriptive of 
 what is intended to be effected by it, such a receipt, like other writ- 
 ings in general, must not be assailed with parol testimony, unless 
 on the ground of fraud; " '" and a receipt "in full of all demands" 
 includes judgments; and parol proof to show the contrary is not 
 admissible.'^ Obviously if the contents of a receipt are to be 
 
 29 Harden v. Gordon, 2 Mason (U. S.) 560; Winchester v. Grosvenor, 
 44 111. 425; Twoliy Mercantile Co." v. Estate of McDonald, 108 Wis. 21, 83 
 N. W,. 1107. 
 
 30 Fuller v. Crittenden, 9 Conn. 401, 23 Am. Dec. 364 ; Sessions v. Gil- 
 bert, Brayt. (Vt.) 75; Jones v. Ward, 10 Yerg. (Tenn.) 160. 
 
 31 Henry v. Henry, 11 Ind. 236, 71 Am. Dec. 354; Squires v. Amherst, 
 145 Mass. 192; James v. Bligh, 11 Allen, 4; Sencerbox v. McGrade, 6 
 Minn. 484, 496; Coon v. Knap, 8 N. Y. 402, 59 Am. Dec. 502; Brown v. 
 Brooks, 7 Jones (N. C.) 93; Stone v. Vance, 6 Ohio, 246; Harrison v. 
 Juneau Bank, 17 "Wis. 340; Carpenter v. Jamison, 75 Mo. 285; Goodwin 
 V. Goodwin, 59 N. H. 548; Thompson v. Williams, 30 Kan. 114; Stevens v. 
 Wiley, 165 Mass. 402, 43 N. E. 177; Sloman v. Nat. Exp. Co., 134 Mich. 
 16, 95 N. W. 999; Morse v. Rice, 36 Neb. 212, 54 N. W. 308; Jackson v. 
 Ely, 57 Oh. St. 450, 49 N. E. 792; Vaughn v. Mason, 23 R. I. 348, 50 Atl. 
 390; Kammermayer v. Helz, 107 Wis. 101, 82 N. W. 689. 
 
 32 Prairie School v. Haseleu, 3 N. Dak. 328; Burke v. Ray, 40 Minn. 
 34; Gravlee v. Lamkin, 120 Ala. 210, 24 So. 756. 
 
 33 Alcorn v. Morgan, 77 Ind. 184; Smith v. Holland, 61 N. Y. 635; Tuley 
 V. Barton, 79 Va. 387. 
 
 34 Schultz V. Coon, 51 Wis. 416, 37 Am. Rep. 839. 
 
 36 Raymond v. Roberts, 2 Aikens (Vt.) 204, 16 Am. Dec. 698. 
 «• Henry v. Henry, 11 Ind. 236, 71 Am. Dec. 354. 
 
§ 493 PAROL EVIDBNCE. 623 
 
 proved, the receipt is the best evidence." Although the rule that 
 receipts may be modified and explained by parol is one of very 
 wide application, yet there are circumstances under which one giv- 
 ing a receipt may be estopped from offering proof of this character. 
 Thus, it has frequently been held that a receiptor cannot relieve 
 himself from liability by showing that attached property which was 
 receipted for by him was not subject to attachment or not the prop- 
 erty of the defendant,'* although there has been much discussion 
 and considerable conflict of opinion on this subject.'" 
 
 § 493 (504). Warehouse receipts. — ^Receipts given by ware- 
 housemen are an exception to the general rule respecting the mod- 
 ification of receipts by parol. By statutes these receipts are gen- 
 erally made negotiable; and when the rights of third persons who 
 have relied upon the receipt are involved, warehousemen are held 
 to be estopped from denying the representations made on their re- 
 ceipts.*" The principle of estoppel does not extend so far as to 
 preclude the warehouseman from showing in all cases that the goods 
 do not correspond with the description in the receipt. This is 
 especially true if the warehouseman has had no opportunity for an 
 inspection of the goods.*^ So far as the document is a receipt 
 merely it may be varied by parol evidence as to the quantity and 
 condition of the goods.*^ But those parts of the instrument which 
 are contractual in their nature cannot be changed by parol.*' 
 
 87 Humphries v. McCraw, 5 Ark. 61; Zube v. Weber, 67 Mich. 52. 
 
 S8 Cornell v. Dakin, 38 N. Y. 253; People v. Reader, 25 N. Y. 302; Bur- 
 rail V. Acker, 23 Wend. 606, 35 Am. Dec. 582; Dezell v. Odell, 3 Hill, 
 215, 38 Am. Dec. 628. See note, 25 Am. Dec. 426-9. 
 
 «» Penobscot Boom Co. v. Wilklns, 27 Me. 345; Learned v. Bryant, 13 
 Mass. 224; Fisher v. Bartlett, 8 Greenl. (Me.) 122, 22 Am.' Dec. 225; Bar- 
 ron V. Cobleigh, 11 N. H. 557, 35 Am. Dec. 505; Parks v. Sheldon, 36 
 Conn. 466, 4 Am. Rep. 95; Bursley v. Hamilton, 15 Pick. 40, 25 Am. Dec. 
 423 and note. 
 
 *o McNeil V. Hill, 1 Woolw. (U. S.) 96; Griswold v. Haven, 25 N. Y. 
 595, 82 Am. Dec. 380; Adams v. Gorham, 6 Gal. 68; Goodwin v. Scannell, 
 6 Cal. 541.) See note, 100 Am. Dec. 243; 19 L. R. A. 302. It has been so 
 held as between the parties, Thompson v. Thompson. 78 Minn. 379, 81 
 N. W. 204. 
 
 *i Hale V. Milwaukee Dock Co., 23 Wis. 276, 99 Am. Dec. 169, 29 Wis. 
 482. 
 
 «Abbe V. Eaton, 51 N. Y. 410; Witzler v. Collins, 70 Me. 290, 35 Am. 
 Rep. 327; Mears v. Railway Co., 75 Conn. 171, 52 Atl. 610, 96 Am. St. 
 Rep. 192. 
 
 *s Missouri, etc. Ry. Co. v. Simonson, 64 Kan. 802, 68 Pac. 653, 91 Am. 
 St Rep. 248; Morganton Mfg. Co. v. Railway Co., 121 N. C. 514, 28 S. B. 
 
624 THE loAW OP EVIDENCE. § 494 
 
 § 494 (505, 506). Parol evidence as to bills and notes. — The 
 
 same reasons whieh require that other written contracts should not 
 be contradicted by parol evidence apply to contracts in the form of 
 negotiable paper. "Negotiable notes are written instruments, and 
 as such they can not be contradicted nor can their terms be varied 
 by parol evidence; and that proposition is universally true where 
 the promissory note is in the hands of an innocent holder."** 
 There is the additional consideration that the usefulness of com- 
 mercial paper would be greatly impaired if secret reservations and 
 agreements could be freely engrafted upon bills and notes by parol 
 testimony. For example, when the time of payment is stated in 
 the instrument, a prior or contemporaneous agreement can not be 
 shown fixing a different time or extending the time.*" On the same 
 
 474, 61 Am. St Rep. 679. Rule different If there has been fraud. Sonla 
 Cotton Oil Co. V. The Red Rover, 106 La. 42, 30 So. 303, 87 Am. St. Rep. 
 293. 
 
 "Brown v. SpofEord, 95 U. S. 474, 480; Bohn Mfg. Co. v. Reif, 116 Wis. 
 471, 93 N. W. 466. See also notes, 45 Am. Dec. 242; 42 Am. Dec. 86; 18 
 L. R. A. 36; 1 L. R. A. 816; 6 L. R. A. 33; 20 L. R. A. 705-713. 
 
 *is Litchfield v. Falconer, 2 Ala. 280; Brown v. Wiley, 20 How. 442; 
 Joyner v. Turner, 19 Ark. 690; Dorsey v. Armor, 10 Colo. App. 255, 50 
 Pac. 726; Murchle v. Peck, 160 111. 175, 43 N. E. 356; Allen v. Thompson, 
 22 Ky. L. Rep. 164, 56 S. W. 823; Van Etten v. Howell, 40 Neb. 850, 59 
 N. W. 389; Inge v. Hanee, 29 Mo. 399; Campbell v. Upshaw, 7 Humph. 
 (Tenn.) 185, 46 Am. Dec. 75; Doss v. Peterson, 82 Ala. 253; McClanaghan 
 V. Hines, 2 Strob. (S. C.) 162; DeLong v. Lee, 73 Iowa, 53; Thompson v. 
 Ketcham, 8 Johns. 190, 5 Am. Dec. 332; Stucksleger v. Smith, 27 Iowa, 
 286; Doss v. Peterson, 82 Ala. 253. Parol evidence not admissible to 
 establish an agreement that payment should not 6e demanded on ma- 
 turity, Hoare v. Graham, 3 Camp. 57; Bond v. Morely, 26 Mo. 253; Cairo 
 Ry. Co. V. Parker, 84 111. 613; Lakeside Land Co. v. Droomgole, 89 Ala. 
 505; Payne v. Ins. Co., 141 Fed. 339; or until after the death of the 
 maker. Graves v. Clark, 6 Blackf. (Ind.) 183; Woodbridge v. Spooner, 3 
 Barn. & Aid. 233; or so long as the interest should be paid. Trustees v. 
 Stetson, 5 Pick. 506; that the note should be paid in installments. Barton 
 ^v. Wilkins, 1 Mo. 74; Eaton v. Emerson, 14 Me. 335; Doss v. Peterson, 82 
 Ala. 256; that the payee should foreclose a collateral mortgage and 
 not hold the maker, Gillman v. Henry, 53 Wis. 465; Stewart v. Alber- 
 querque Nat. Bank (Ariz.), 30 Pac. 303; that it should not be paid until 
 after the sale of the maker's property. Free v. Hawkins, 8 Taunt. 92; or 
 until after a certain dividend should be paid, Rawson v. Walker, 1 Stark 
 361; a draft received, Kincaid v. Higgins, 1 Bibb (Ky.) 396; or certain 
 profits realized, Campbell v. Upshaw, 7 Humph. (Tenn.) 185, 46 Am. Deo 
 75; McClanaghan v. Hines, 2 Strob. (S. C.) 122; Litchfield v. Falconer, 
 2 Ala. 280; DeLong v. Lee, 73 Iowa, 53. But if no time of payment is fixed 
 by the note, the maker may, as between the parties, show a parol con,' 
 
§ 494 paSol bvidenob. &25 
 
 principle, it is inadmissible to prove an agreement by parol that the 
 instrument should be paid in some other manner than that stated 
 therein.*" It is the general rule in this respect that it cannot be 
 shown by parol, in the absence of fraud or mistake, that an tmiount 
 different from that stated was agreed upon.*^ In actions on nego- 
 'tifeble paper which is absolute on its face, parol evidence is inadmis- 
 sible to prove an agreement that payment should depend upon 
 
 temporaneous agreement that It should be paid only on the happening of 
 a contingency, Horner v. Horner, 145 Pa. St. 258; see also § 495 infra. 
 
 46 Or in a certain way, as that a note, payable In "lawful money," is to 
 be paid in silver, Alsop v. Goodwin, 1 Root (Conn.) 196; that a note, pay- 
 able in "dollars," is to he paid in commonwealth paper or in other money, 
 not recognized by federal law, Williams v. Beazley, 3 J. J. Marsh. (Ky.) 
 577; Baugh v. Ramsey, 4 T. B. Men. (Ky.) 155; Thorington v. Smith, 8 
 Wall. 12; Noe v. Hodges, 3 Humph. (Tenn.) 162; Stewart v. Salamon, 94 
 U. S. 434; Hair v. Le Brouse, 10 Ala. 548; or in bank or individual notes, 
 Noe V. Hodges, 3 Humph. (Tenn.) 162; Pack v. Thomas, 21 Miss. 11, 51 
 Am. Dec. 135; Baugh v. Ramsey, 4 T. B. Mon. (Ky.) 155; Langenberger 
 V. Kraeger, 48 Cal. 147, 17 Am. Rep. 418; Clark v. Hard, 49 Ala. 86; or in 
 merchandise or other articles, or. Indeed, in any mode different from that 
 stated. Oilman v. Moore, 14 Vt. 457; Billings v. Billings, 10 Cush. 178; 
 Fields v. Stlmson, 1 Coldw. (Tenn.) 40; Racine Bank v. Keep, 13 Wis. 209; 
 Pack V. Thomas, 21 Miss. 11, 51 Am. Dec 135; Watson v. Hurt, 6 Gratt. 
 (Va.) 633 (but see, Lang v. Johnson, 24 N. H. 302; Clarke v. Tap- 
 pen, 32 Conn. 56; Van Valkenburgh v. Stupplebeen, 49 Barb. 99); 
 that the payment should be made out of a particular fund, Camp- 
 bell V. Hodgson, Gow. 74; Rawson v. Walker, 1 Stark. 361; Brown 
 V. Spofford, 95 U. S. 482; Adams v. Wilson, 12 Met. 138; Currier v. Hale, 
 8 Allen, 47; Smith v. Kemp, 92 Mich. 357; that no money should be paid 
 except from the proceeds of certain sales, DeLong v. Lee, 73 Iowa. 53; 
 that an account against the payee should be deducted from the amount 
 stated. Eaves v Henderson, 17 Wend. 190; St. Louis Perpetual Ins. Co. 
 V, Homer, 9 Met. 39; that the amount due and the rate of interest were 
 other than that expressed, Catlln v. Harris, 7 Wash. 542; but an ambiguity 
 as to the kihd of funds intended may be explained, as the meaning of 
 "Canada money," Thompson v. Sloan, 23 Wend. 71, 35 Am. Dec. 546. 
 
 47 Downs V. Webster, Brayt. (Vt.) 79; Gazaway v. Moore, Harp. (S. C.) 
 401. When the instrument contains an absolute promise to pay a certain 
 sum, it is inadmissible to show by parol that the whole amount is not to 
 6e paid, and that in a certain event an endorsement is to be made upon it, 
 Allen V. Young, 62 Ga. 617; Barton v. Wilkins, 1 Mo. 74; Blakemore v. 
 Wood, 3 Sneed (Tenn.) 470; Sturdivant v. Hull, 59 Me. 172; Roache v. 
 Roanoke Seminary, 56 Ind. 198; Ziegler v. McFarland, 147 Pa. St. 607; 
 that the value of certain articles should be credited, when ascertained, 
 Featherston v. Wilson, 4 Ark. 154; St. Louis Ins. Co. v. Homer, 9 Met S9; 
 that the maker may return property for which the note is given, pro- 
 vided the same does not prove satisfactory, Isaacs v. Elkins, 11 Vt. 679; 
 Allen V. Furbish. 4 Gray, 504, 64 Am. Dec. 87; Henderson v. Thompson, 62 
 
 40 
 
626 THE LAW OF EVmENCE. § 495 
 
 some contingency or condition.^^ Nor is it admissible, in an action 
 against a surety, to prove by parol an agreement that the payee 
 should sue the note when it should become due, and that the surety 
 signed only on that condition; nor in such case does it yary the 
 rule when the proposed evidence is that of the admissions of the 
 plaintiff. Such testimony would establish nothing more than a 
 verbal agreement, made concurrently with the written contract, 
 engrafting upon it a new stipulation materially changing the na- 
 ture of the promise.*' The importance of adhering to the general 
 rule with reasonable strictness in respect to commercial paper is 
 everywhere recognized. "It is a firmly settled principle that parol 
 evidence of an oral agreement, alleged to have been made at the 
 time of the drawing, making or indorsing of a bill or note, cannot 
 be permitted to vary, qualify or contradict, to add to or subtract 
 from the absolute terms of the written contract. ' ' """ 
 
 § 495 (507). Qualifications of the general rule as applied to 
 negotiable paper. — The exceptions to the general rule which ex- 
 
 Ga. 149; that, if any mistaJce should he found in a settlement for which 
 a note is given, the mistake should he corrected, Clute v. Frasier, 58 Iowa, 
 268. 
 
 48 As a condition that the payee should, furnish certain goods to the 
 maker, Holzworth v. Koch, 26 Ohio St. 33; that it was only given as a 
 matter of form, Wright v. Remington, 41 N. J. L. 48, 32 Am. Rep. 180; 
 Zeigler v. McParland, 147 Pa. St. 607, 23 Atl. 1045; First National Bank 
 V. Foo.te, 12 Utah, 157, 42 Pac. 205; that a note should be paid out of com- 
 missions to he earned by the maker as agent of the payee. Van Vechten 
 V. Smith, 59 Iowa, 173; that an acceptance was on the verbal condition of 
 the completion of certain work by the drawer, Heaverin v. Donnell, 15 
 Miss. 244, 45 Am. Dec. 302; that the bill should not &e presented until 
 after a certain other draft was provided for. Brown v. Wiley, 20 How. 
 442; or on other conditions, Myer v. Beardsley, 30 N. J. L. 236; that the 
 note was intended as a receipt only. City Bank v. Adams, 45 Me. 455; Dick- 
 son V. Harris, 60 Iowa, 727; Billings v. Billings, 10 Cush. 178 (contra, 
 Beals V. Beals, 20 Ind. 163) ; that the instrument was not intended as a 
 note, but only as a memorandum, not to be enforced, Burnes v. Scott, 
 117 U. S. 582; that a guaranty was on a condition which has not been 
 performed, Wright v. Morse, 9 Gray, 337, 69 Am. Dec. 291; that a note 
 should not be negotiated, Knox v. Clifford, 38 Wis. 651, 20 Am. Rep. 28; 
 McSherry v. Brooks, 46 Md. 103; Waddle v. Owen, 43 Neb. 489; that an 
 acceptance of a draft was on the condition that the acceptor should not 
 be called on to pay according to its tenor, Davis v. Randall, 115 Mass. 
 547, 15 Am. Rep. 146; Robinson v. Kanawha Valley Bank, 44 Ohio St 
 441, 58 Am. Rep. 829; Heaverin v. Donnell, 15 Miss. 244, 45 Am. Deo. 
 302; see note, 1 Am. St. Rep. 134-138. 
 
 49Hanchet v. Birge, 12 Met. 545; Altman v. Anton, 91 la. 746, 60 N. W. 
 191. 
 
 00 Specht V. Howard, 16 Wall. 564, 566. 
 
§ 495 PAKOL EVIDENCE. 627 
 
 elude parol evidence to explain written instruments apply in re- 
 spect to negotiable paper, as well as to other contracts. "We have 
 seen in a former section that wide range is given to the proof when 
 the issue of fraud is raised."^ On the same principle, illegality,^^ 
 alteration °^ and want of consideration "* may be shown. As between 
 the original parties, the conditional delivery of a note may be 
 shown," as that it was delivered in escrow."" So it may be shown, 
 as between the original parties, that the note had been discharged 
 by the performance of an oral agreement,^' or that the delivery was 
 conditioned upon a certain event.'^* So it may be proved by parol 
 that a mistake has been made in the writing as to dates.°° This 
 would be very clear in an equitable proceeding ; and in some cases, 
 the correction of such mistakes by parol has been allowed in legal 
 proceedings.*" Under rules already Stated, if there is a latent am- 
 iiguity, and if the instrument is obscurely written or erased in 
 part,'^ or if the language admits of several meanings,'^ or if it is 
 
 »! See §§ 435, 442 supra. See many illustrations and cases cited in 2 
 Bncye. of Ev. 495. 
 
 62Newson v. Thiglien, 30 Miss. 414; Buck v. First National Bank, 27 
 Mich. 293, 15 Am. Rep. 189; Woods v. Armstrong, 54 Ala. 150, 25 Am. 
 Rep. 671; Henderson v. Palmer, 71 111. 579, 22 Am. Rep. 117; Donley v. 
 Tindall, 32 Tex. 43, 5 Am. Rep. 234; Moffit v. Bulson, 96 Cal. 106, 31 Am. 
 St. Rep. 192; Wolf v. Troxell's Estate, 94 Micli. 573. 
 
 63 Buck V. Appleton, 14 Me. 284; Brown v. Straw, 6 Neb. 536, 29 Am. Rep. 
 369; McCaulay v. Gordon, 64 Ga. 221, 37 Am. Rep. 68; First Nat. Bank 
 V. Fricke, 75 Mo. 178, 42 Am. Rep. 397; Nicholson v. Combs, 90 Ind. 515, 
 46 Am. Rep. 229. 
 
 6* Solly V. Hinde, 2 Cromp. & M. 516; Raw'son v. Walker, 1 Stark. 361; 
 Stackpole v. Arnold, 11 Mass. 27, 6 Am. Dec. 150; Dexter v. Clemans, 17 
 Pick 175; Barker v. Prentiss, 6 Mass. 430; Folsom v. Mussey, 8 Greenl. 
 (Me.) 400, 23 Am. Dec. 522; West v. Kelley, 19 Ala. 353, 54 Am. Dec. 192; 
 Lewis V. Gray, 1 Mass. 297, 2 Am. Dec. 21; First Nat Bank v. Nugen, 99 
 Ind. 160; Maltz v. Fletcher, 52 Mich. 484. 
 
 60 Sweet V. Stevens, 7 R. I. 375; Bernhardt v. Brunner, 4 Bosw. (N. T.) 
 528; Benton v. Martin, 52 N. Y. 574. 
 
 06 Couch V. Meeker, 2 Conn. 302; Taylor v. Thomas, 13 Kan. 217; Alex- 
 ander V. Wilkes, 11 Lea (Tenn.) 221. 
 
 57Buclianon v. Adams, 49 N. J. L. 636, 60 Am. Rep. 666; Howard v. 
 Stratton, 64 Cal. 487; Grossman v. Fuller, 17 Pick. 171. 
 
 68 Couch V. Meeker, 2 Conn. 302; Benton v. Martin, 52 N. Y. 570; Mc- 
 Farland v. Sikes, 54 Conn. 250, 1 Am. St. Rep. Ill; Davis v. Davis, 97 
 Mich. 419; Clark v. Ducheneau, 26 Utah, 97, 72 Pac. 331. 
 
 69 Drake v. Rogers, 32 Me. 524; Barlow v. Buckingham, 68 Iowa, 169; 
 Bayley v. Taber, 5 Mass. 286, 4 Am. Dec. 57; Towne v. Rice, 122 Mass. 71; 
 Biggs V. Piper, 86 Tenn. 589; Smith v. Mussetter, 58 Minn. 159. 
 
 60 Barlow v. Buckingham, 68 Iowa, 169; Paysant v. Ware, 1 Ala. 160. 
 «i Paine v. Ringold, 43 Mich. 341. 
 •2 2 Pars. Bills & N. 517, 
 
628 THE LAW OF EVIDENCE. § 495 
 
 made somewhat uncertain in meaning by the omission of words,"' 
 or if the contract is made with reference to a usage,'^* the uncer- 
 tainty may be explained by parol. It is also admissible to show 
 by parol the capacity and true relations of the parties,^^ such as 
 that a signer of a note is a surety, and that this was known to the 
 plaintiff ; "^ or that the plaintiff and defendant sustain toward each 
 other the relation of surety and co-surety.'^ But the apparent 
 relation of the parties cannot be changed to the injury of innocent 
 third persons.^^ When no place of payment is named in the note, a 
 parol agreement as to the place intended may be shown ; °' and 
 when it is doubtful on the face of the paper whether principal or 
 agent is liable, the intention may be shown by parol.''" So, in ease 
 of ambiguity, the parties may be identified by parol proof .'^ . Nor 
 is it any violation of the rule to show by extrinsic evidence an en- 
 tirely distinct and collateral contract; ''" or to show whether the in- 
 
 «3 Lockhard v. Avery, 8 Ala. 502 ; Agawam Bank v. Strever, 18 N. Y. 
 502. 
 
 84 Renner v. Bank of Columbia. 9 Wheat. 581. 
 
 esHeckscher v. Binney, 3 Wood. & M. (U. S.) 333; Lacy v. Lofton, 23 
 Ind. 324 ; Germania Nat. Bank v. Mariner, 129 Wis. 544, 109 N. W. 574. 
 
 es Pollard v. Stanton, 5 Ala. 451; Bank of St. Mary's v. Mumford, 6 Ga. 
 44; Ward v. Stout, 32 111. 399; Bank v. Kent, 4 N, H. 221; Adams v. Flan- 
 agan, 36 Vt. 400; Riley v. Gregg, 16 Wis; 666; Irvine v. Adams, 48 Wis. 
 468, 33 Am. Rep. 817; Hubbard v. Gurney, 64 N. Y. 457; Vestal v. Knight, 
 54 Ark. 97. But in case of a bond, a principal cannot show that one sign- 
 ing as surety really signed as principal. Coots v. Farnsworth, 61 Mich. 
 497. 
 
 6THunt V. Chambliss, 15 Miss. 532; Sweet v. McAllister, 4 Allen, 353; 
 Home V. Bodwell, 5 Gray, 457; Bright v. Carpenter, 9 Ohio, 139, 34 Am. 
 Dec. 432; Williams v. McAtee, 86 Va. 681. For the rule as between oo- 
 indorsers, see McPherson v. Weston, 85 Cal. 90. See note, 17 Am. Dec. 
 416. 
 
 88 Stephens v. Monongahela Bank, 88 Pa. St. 157, 32 Am. Rep. 438; 
 Jordan v. Jordan, 10 Lea (Temi.) 124, 43 Am. Rep. 294; Martin v. Cole, 
 104 TJ. S. 30. 
 
 69 Brent v. Bank, 1 Peters, 89 ; McKee v. Boswell, 33 Mo. 567. 
 
 70 Dow V. Moore, 47 N. H. 419; Johnson v. Smith, 21 Conn. 627; Early 
 V. Wilkinson, 9 Gratt. (Va.) 68; Schmittler v. Simon, 114 N. Y. 176, 11 Am. 
 St Rep. 621; Musser v. Johnson, 42 Mo. 74, ,97 Am. Dec. 316; Bean v. 
 Pioneer Mining Company, 66 CaL 451, 56 Am. Rep. 106; Hardy v. Pilcher, 
 57 Miss. 18, 34 Am. Rep. 432; Laflin v. Sinshelmer, 48 Md. 411, 30 Am. 
 Rep. 472. Contra, Robinson v. Bank, 44 Ohio St. 441, 58 Am. Rep. 829. 
 
 " Cork V. Bacon, 45 Wis. 192 ; Kinney v. Flynn, 2 R. I. 319 ; Jenkins v. 
 Bass, 88 Ky. 397, 21 Am. St. Rep. 344; McCullough v. Wainwright, 14 Pa, 
 St. 171; Jackson v. Sill, 11 Johns. (N. Y.) 201, Am. Dec. 363. 
 
 '2 Brent v. Bank, 1 Peters, 89 ; Brook v. Latimer, 44 Kan. 431, 21 Am. St. 
 Rep. 292; PhiUips v. Preston, 5 How. 278 
 
§ 496 PAEOL, EVIDENCE. 629 
 
 strument was given in satisfaction of a former note, or as security 
 therefor ; ^^ or that the note has been discharged by the performance 
 of an agreementJ^ 
 
 § 496 (508). Endorsements on negotiable paper. — In some cases 
 a distinction has been made in respect to blank indorsements on 
 negotiable paper; and parol evidence has been received to show a 
 contemporaneous verbal agreement that the endorsee should not 
 have recourse on the endorser, and that the instrument was deliv- 
 ered on that condition.'" Parol evidence has been received in such 
 cases, not as a variation of the agreement, but to prevent the party 
 from making use of the blank indorsement, contrary to the trust 
 and virtually in fraud of the indorser's rights.'" Other decisions 
 to the same effect have been based on the ground that the contract 
 of indorsement is one implied by law from the blank indorsement, 
 and hence is not subject to the rule which excludes parol evidence 
 to vary written instruments, but that the parties may prove an 
 agreement that the blank indorsement should only have the effect 
 to transfer the title." But by the clear weight of authority, this 
 distinction, thus proposed between blank indorsements and those 
 written out in full, is held untenable.''^ The better view is that 
 when the legal effect of a contract is clear and definite, as in the 
 
 TsHale V. Rice, 124 Mass. 292; Flrsf Nat. Bank v. Nugen, 99 Ind. 160; 
 Famham v. Ingham, 5 Vt. 514; Lippincott v. Lawrie, 119 Wis. 573, 97 N. 
 W. 179. 
 
 74 Buchanon v. Adams, 49 N. J. L. 636, 60 Am. Rep. 666. 
 
 T6 Hill V. Ely, 5 Serg. & R. (Pa.) 363, 9 Am. Dec. 376 and full note; 
 Castrique v. Battigieg, 10 Moore P. C. 94; Smitli v. Morrell, 54 Me. 49; 
 Holmes v. First Nat. Bank, 38 Neb. 326, 56 N. W. 1011, 41 Am. St. 
 Rep. 733; Witherow v. Slaybrick, 158 N. Y. 649, 53 N. B. 681, 70 Am. St. 
 Rep. 507; Susquehana Bank v. Evans, 4 Wash. C. C. 480; Ross v. Espy, 
 66 Pa. St. 481, 5 Am. Rep. 394; Taylor v. French, 2 Lea (Tenn.) 257, 31 
 Am. Rep. 609; Truman v. Bishop, 83 Iowa, 697. See cases cited in Browne, 
 Parol Ev. § 84. Also notes, 42 Am. Dec. 378; 9 Am. Dec. 381; 39 Am. Rep. 
 116-123; 13 L. R. A. 52; 18 L. R. A. 33. 
 
 76 Hill V. Ely, 5 Serg. & R. (Pa.) 363, 9 Am. Dec. 376 and note. 
 
 77 Ross V. Espy, 66 Pa. St. 481, 5 Am. Rep. 394; Susquehana Bank v. 
 Evans, 4 Wash. C. C. 480; Barclay v. Weaver, 19 Pa. St. 396, 57 Am. Dec 
 661; Patterson v. Todd, 18 Pa. St. 426, 57 Am. Dec. 622. See note, 9 Am. 
 Dec. 381-385. 
 
 78 Free v. Hawkins, 8 Taunt. 92; Hoare v. Graham, 3 Camp. 57; Martin 
 v. Cole, 104 U. S. 30; Charles v. Denis, 42 Wis. 56, 24 Am. Rep. 383; Lee 
 V. Pile, 37 Ind. 107; Fassin v. Hubbard, 55 N. Y. 465; Chaddock v. Vanness, 
 35 N. J. L. 517, 10 Am. Rep. 256; Dale v. Gear, 38 Conn. 15, 9 Am. Rep. 353; 
 Prescott Bank v. Caverly, 7 Gray, 217, 66 Am. Dec. 473; Howe v. Merrill, 
 5 Gush. 80; Woodward v. Foster, 18 Gratt. (Va.) 205; Sanborn v. Southard, 
 
630 THE LAW OF EVIDENCE. § 497 
 
 case of a blank indorsement, the intention of the parties is, in a 
 legal sense, as well understood as if they had expressed in words 
 what the law implies, and that the contract can no more be varied 
 by parol in the one case than in the other." There has been no con- 
 flict of opinion in those cases where the rights of bona fide holders 
 are concerned. In such cases, the admission of such testimony 
 would be a palpable violation of legal rules.*" 
 
 § 497 (509). Same — Qualifications. — In the cases already cited, 
 the question has arisen between the indorser and the indorsee, 
 where the indorser was a party to the note, as a payee. It has 
 been held in numerous eases that a different rule obtains where 
 the note is non-negotiable, or where it, is made by one not a party 
 to the note, and prior to an endorsement by the payee.'^ So it may 
 be shown by parol that a principal made the blank endorsement to 
 an agent for a particular purpose f^ or that the endorsement was 
 for collection merely,*^ or that the relation was that of principal 
 and surety, and that the endorsement was made for the accommoda- 
 tion of the immediate indorsee.** It has become the well settled rule 
 that a contemporaneous parol agreement may be shown between in- 
 dorser and indorsee to the effect that no demand or notice of non- 
 payment need be given, and that, without such demand and notice, 
 the indorser shall be absolutely bound for payment.*" In many of 
 
 25 Me. 409, 43 Am. Dec. 288 and note; Stack v. Beach, 74 Ind. 571, 39 Am. 
 Rep. 113. See cases last cited. 
 
 79 Charles v. Denis, 42 Wis. 56, 24 Am. Rep. 383; Halbach v. Trester, 
 102 "Wis. 530, 78 N. W. 759; Stack v. Beach, 74 Ind. 571, 39 Am. Rep. 113; 
 Smith v. Bayer (Ore.), 79 Pac. 497; and cases last cited. 
 
 80 Dale V. Gear, 38 Conn. 15, 9 Am. Rep. 353. 
 
 81 Dale V. Gear, 38 Conn. 15, 9 Am. Rep. 353; Kingsland v. Koeppe, 137 
 111. 344, 28 N. E. 48; Stack v. Beach, 74 Ind. 571, 39 Am. Rep. 113; Houck 
 V. Graham, 106 Ind. 195, 55 Am. Rep. 727; Deering v. Creighton, 19 Ore. 
 118, 20 Am. St. Rep. 800; Owings v. Baker, 54 Md. 82, 39 Am. Rep. 353; 
 Kealing v. Van Sickle, 74 Ind. 529, 39 Am. Rep. 101; Barton v. American 
 Nat. Bank, 8 Tex. Civ App. 223, 29 S. W. 210; Burton v. Hansford, 10 
 W. Va. 4f0, 27 Am. Rep. 571 and note. 
 
 82 Dale V. Gear, 38 Conn. 15, 9 Am. Rep. 353 ; Chaddock v. Vanaess, 35 
 N. J. L. 517, 10 Am. Rep. 256. 
 
 ssRlcketts V. Pendleton, 14 Md. 320; McWhirt v. Mekee, 6 Kan. 412; 
 Wallis v. Llttell, 11 C. B. N. S. 369; Bell v. Lord Ingestre, 12 Q. B. 317; 
 Stack V. Beach, 74 Ind. 571, 39 Am. Rep. 113; Hudson v. Wolcott, 39 Ohio 
 St. 618. 
 
 8* Dale V. Gear, 38 Conn. 15, 9 Am. Rep. 353; Smith v. Carter, 25 Wis. 
 283; Chaddock v. Vanness, 35 N. J. L. 520, 10 Am. Rep. 256; Lewis v.Dun- 
 lap, 72 Mo. 178; Breneman y. Furniss, 90 Pa. St. 186, 35 Am. Rep. 651; 
 Hamburger v. Miller, 48 Md :!25; Martin v. Marshall, 60 Vt. 321. 
 
 SB Barclay v. Weaver, 19 Pa. St. 396, 57 Am. Deo. 661 and full note; 
 
§ 498 PAEOL EVIDENCE. 631 
 
 the cases this rule is based upon the ground that the condition of 
 demand and notice is not a part of the contract, but only a step in 
 the legal remedy which may be waived at any time.'* 
 
 § 498 (510). Bills of lading — Contractual stipulations — Re- 
 ceipts. — ^We have already seen that, where an instrument in writ- 
 ing partakes both of the qualities of a contract and of a receipt, it 
 is open to explanation or contradiction by parol as to those particu- 
 lars which constitute a receipt, but that parol evidence is inadmis- 
 sible to contradict those particulars which import a contract.'^ Per- 
 haps there is no class of writings which afford so frequent illustra- 
 tion of this principle as bills of lading. From the nature of such in- 
 struments, they must contain recitals as to the receipts of goods, 
 such as those of the time, quantity, quality and condition of the 
 goods, as well as certain other statements which are rather in the 
 nature of agreements than recitals. "While the recitals of the char- 
 acter named are generally open to explanation and contradiction,*' 
 yet the agreements or promises are not.'° For example, the carrier 
 may show, in an action between himself and the one claiming to 
 have shipped the goods, that no goods were received." This may 
 
 Sanbom v. Southard, 25 Me. 409, 43 Am. Dec. 288; Hibbard v. Russell, 16 
 N. H. 410, 41 Am. Dec. 733; Puller v. McDonald, 8 Greenl. (Me.) 213, 23 
 Am. Dec. 499; Hazard v. White, 26 Ark. 155; Schmied v. Prank, 86 Ind. 
 250; Cheshire v. Taylor, 29 Iowa, 492; Wall v. Bry, 1 La. An. 312; Central 
 Bank v. Davis, 19 Pick. 373; Sheldon v. Horton, 43 N. Y. 93, 3 Am. Rep. 
 669; Dye r. Scott, 35 Ohio St. 194, 35 Am. Rep. 604; Taylor v. French, 2 
 Lea (Tenn.) 257, 31 Am. Rep. 609; Worden v. Mitchell, 7 Wis. 161. Contra, 
 Rodney v. Wilson, 67 Mo. 123, 29 Am. Rep. 499; Beeler v. Frost, 70 Mo. 
 185; Doolittle v. Ferry, 20 Kan. 230, 27 Am. Rep. 166; Farwell v. St Paul 
 Trust Co., 45 Minn. 495, 48 N. W, 326. 
 
 86 Barclay v. Weaver, 19 Pa. St. 396, 57 Am. Dec. 661; Struthers v. 
 Blake, 30 Pa. St. 139; Sherer v. Easton Bank, 33 Pa. St. 142; Pollard v. 
 Bowen, 57 Ind. 239; Alrey v. Pearson, 37 Mo. 428; Worden y. Mitchell, 7 
 Wis. 161. 
 
 87 See § 492 supra. On. the general subject of this section, see extended 
 notes, 38 Am. Dec. 409-426; 105 Am. St. Rep. 347 et seq. 
 
 88 Bates V. Todd, 1 Moody & Rob. 106; Berkley v. Watllng, 7 Adol. & EIL 
 29, 34 B. C. L. 22; Maryland Ins. Co. v. Ruder, 6 Cranch, 38; The Lady 
 Franklin, 8 Wall. 325; O'Brien v. Gilchrist, 34 Me. 554, 56 Am. Dec. 676; 
 Richards v. Doe, 100 Mass. 52^; Baltimore St. Co. v. Browne, 54 Pa. St. 
 77; Chapin v. Chicago Ry. Co., 79 Iowa, 582; Atwell v. Miller, 11 Md. 348, 
 69 Am. Dec. 206; Witzler v. Collins, 70 Me. 290, 35 Am. Rep. 327; Black 
 V. Wilmington & W. Ry. Co., 92 N. C. 42, 53 Am. Rep. 450. 
 
 88 The Delaware, 14 Wall. 579 and cases cited; Cincinnati Ry Co. v. 
 Pontius, 19 Ohio St. 221, 2 Am. Rep. 391; McElveen v. Southern Ry. Co., 
 109 Ga. 249, 34 S. B. 281, 77 Am. St. Rep. 371; and cases above cited. 
 
 «o Berkley y. Watlin^, 7 Adol. & EU. 29; Schooner Freeman, 18 How. 
 
632 THE LAW OF EVIDENCE. § 498 
 
 even be shown as against a iona fide holder of the bill of lading, as 
 it is held that the common carrier is not estopped to deny such a 
 statement which the agent could have no authority to make,'^ al- 
 though the authorities are not entirely agreed upon this proposition, 
 and the contrary rule has been vigorously asserted in several cases."" 
 It has been frequently held that the common carrier may contradict 
 statements in bills of lading as to the condition in which the goods 
 are received,"^ as that, owing to some latent defect, they were not in 
 good order, although the bill of lading so imported. But of couise 
 the burden of proof of this fact in such ease is upon the common 
 carrier.'* On the same principle the recitals in the bill of lading as 
 to quantity are not conclusive, unless it contains some guaranty or 
 warrant}' on that subject, constituting a contract.'" As illustrations 
 
 182; Fellows v. Steamer Powell, 16 La. An. 316, 79 Am. Dec. 581; Balti- 
 more Ry. Co. v.~ Wilkins, 44 Md. 11, 22 Am. Rep. 26; Sears v. Wingate, 3 
 Allen, 103; Louisiana Nat. Bank v. Laveille, 52 Mo. 380; The Lady Frank- 
 lin, 8 Wall. 325; Black v. Wilmington & W. Ry. Co., 92 N. C'. 42, 53 Am. 
 Rep. 450; Pollard v. Vinton, 105 U. S. 7; National Bank v. Chicago Ry. 
 Co., 44 Minn. 224, 46 N. W. 342, 20 Am. St. Rep. 566, 9 L. R. A. 263; The 
 Willie D. SandhOYal, 92 Fed. 286. See note, 38 Am. Dec. 410-426. 
 
 »i Pollard V. Vinton, 105 U. S. 7; Sutton v. Kettell, Sprague (TJ. S.) 309; 
 The Loon, 7 Blatchf . (U. S.) 244 ; Friedlander v. Texas Ry. Co., 130 U. S. 
 416; Robinson v. Memphis Ry. Co., 9 Fed. 129; Black v. Wilmington 
 Ry. Co., 92 N. C. 42, 53 Am. Rep. 450 and note; Baltimore Ry. Co. v. Wil- 
 kins, 44 Md. 11, 22 Am. Rep. 26; Grant v. Norway, 10 C. B. 665; National 
 Bank V. Chicago Ry. Co., 44 Minn. 224, 20 Am. St. Rep. 566; Sears v. Win- 
 gate, 3 Allen, 103. See elaborate note, 38 Am. Dec. 404. 
 
 92 Sioux City Ry. Co. v. First Nat. Bank, 10 Neb. 556, 35 Am. Rep. 488; 
 Armour v. Michigan Cent. Ry. Co., 65 N. Y. Ill, 22 Am. Rep. 603; Savings 
 Bank v. Atchison, T. & S. F. Ry. Co., 20 Kan. 519; Bank of Batavia v. 
 New York Ry. Co., 106 N. Y. 195, 60 Am. Rep. 440; Brooke v. New York 
 Ry. Co, 108 Pa. St, 529. Cases are collected in Browne, Parol Ev. § 107. 
 
 88 Barrett v. Rogers, 7 Mass. 297, 5 Am. Dec. 45; Choate v. Crownin- 
 shield, 3 Clife. (U. S.) 184; The Oriflamme, 1 Sawy. (U. S.) 176; The 
 Adriatic, 16 Blatchf. (U. S.) 424; Illinois Cent. Ry. Co. v. Cobb, 72 111. 148; 
 Witzler v. Collins, 70 Me. 290, 35 Am. Rep. 327; Mitchell v. United States 
 Ex. Co., 46 Iowa, 214; Steamboat v. Webb, 9 Mo. 192; Richards v. Doe, 100 
 Mass. 524; Ellis v. Willard, 9 N. Y. 529. See note, 38 Am. Dec. 404. 
 
 84 Nelson v. Woodruff, 1 Black, 156; The Oriflamme, 1 Sawy. (U. S.) 
 176; Nelson v. Stephenson, 5 Duer (N. Y.) 538; Barrett v. Rogers, 7 Mass. 
 297, 5 Am. Dec. 45; Clark v. Barnwell, 12 How. 272; Tarbox v. Eastern 
 Steamboat Co., 50 Me. 339; Richards v. Doe, 100 Mass. 524; Price v. Powell, 
 3 N. Y. 322; Mears v. Railway Co., 75 Conn. 171, 52 Atl. 610, 56 L. R. A. 
 884, 96 Am. St. Rep. 192. 
 
 «•> Bates V. Todd, 1 Moody & Rob. 106 ; The J. W. Brown, 1 Biss. (U. S.) 
 76; Wallace v. Long, 8 Bradw. (111.) 504; Steamboat Wis. v. Young, 3 G. 
 Greene (Iowa), 268; Sears v. Wingate, 3 Allen, 103; Hall v. Mayo, 7 Allen, 
 
§ 499 PAKOL EVIDENCH. 633 
 
 of the rule that stipulations in bills of lading, which constitute a 
 contract cannot be varied by parol, it has been held that prior parol 
 negotiations respecting the terms of the contract cannot be given 
 in evidence."" So evidence is inadmissible to show an agreement to 
 deliver the goods at a different place, or to a different person from 
 the one stated,"' or an agreement to forward them at a different 
 time,"' or to carry the goods in a different mode, or on a different 
 part of the vessel from that implied in the contract.'" Although, 
 as a general rule, where a bill of lading is delivered to the shipper 
 before shipment, he is bound by its contents so far as they consti- 
 tute a contract,'^ yet if there is no hill of lading, or if the bill is not 
 delivered until after shipment,^ or if it is delivered to a person not 
 authorized to receive it,' the parol agreement may be shown. 
 
 § 499 (511). Parol evidence as to mortgages. — One important 
 qualification of the general rule excluding parol evidence to vary 
 written instruments has already been discussed in its bearing on 
 mortgages. We have seen that instruments purporting to be deeds 
 may be shown to be mortgages. But the converse of this is not true. 
 An instrument in form a mortgage cannot he shown hy parol to he 
 a deed.^ On the principle already discussed, parol evidence is ad- 
 missible to connect a deed and a defeasance, though in separate in- 
 struments, and to show that they were intended as a mortgage;* it 
 
 454; O'Brien v. Gilchrist, 34 Me. 554, 56 Am Dec. 676; Meyer v. Peck, 
 28 N. Y. 590; Abbe v. Eaton, 51 N. Y. 410; Chapin v. Chicago, M. & St. P. 
 Ry. Co , 79 Iowa, 582. 
 
 S6 Southern Ex. Co. v. Dickson, 94 U. S. 549 ; Collender v. Dinsmore, 55 
 N. Y. 200, 14 Am. Rep. 224; Long t. New York G. Ry. Co., 50 N. Y. 76; 
 Belger v. Dinsmore, 51 N. Y. 166, 10 Am. Rep. 575; Shaw v. Gardner, 12 
 Gray, 488. 
 
 »7Wolf V. Myers, 3 Sandf. (N. Y.) 7. But see, Baltimore Ry. Co. v. 
 Brown, 54 Pa. St. 77; Malpas v. London Ry. Co., 1 0. P. 336. 
 
 88 Indianapolis Ry. Co. v. Remmy, 13 Ind. 518. 
 
 99 Barber v. Brace, 3 Conn. 9, 8 Am. Dec. 149 ; The Wellington, 1 Biss. 
 (U. S.) 279; The Delaware, 14 Wall. 579; Creery v. Holly, 14 Wend. 26. 
 
 1 Long V. New York C. Ry. Co., 50 N. Y. 76; Germania Ins. Co. v. Mem- 
 phis & C. Ry. Co., 72 N. Y. 90, 28 Am. Rep. 113. 
 
 2 Bostwick v. Baltimore & O. Ry. Co., 45 N. Y. 712. 
 
 3 Mobile Ry. Co. v. Jurey, 111 U. S. 584. 
 
 i McClintock v. McClintock, 3 Brews. (Pa.) 76; Wharf v. Howell, 5 Blnn. 
 (Pa.) 499; Reitenbaugh v. Ludwick, 31 Pa. St. 131. See also cases cited 
 under §§ 446 et seg. supra, where this general rule is discussed and Its 
 application shown in the cases of the various kinds of written instru- 
 ments. 
 
 5 Gay V. Hamilton, 33 Cal. 686; Preschbaker v. Peaman, 32 111. 475; Till- 
 son V. Moulton, 23 111. 648; Kelly v. Thompson, 7 Watts (Pa.) 401. Ad- 
 missible to show that a bill of sale, absolute in form, is a chattel mort- 
 
634 THE liAW OF EVIDENCE. § 499 
 
 is also admissible to identify by parol a note secured by mortgage, 
 although the description of the same in the mortgage may be inac- 
 curate as to date or in other respects.' This is on the familiar prin- 
 ciple that parol evidence may be received to apply an instrument to 
 its proper subject matter.'' So parol evidence is admissible to show 
 the true character of a mortgage, and also for what purpose it was 
 given; although it be for a definite sum and secures the payment of 
 notes for definite amounts, it may be shown that the mortgage was 
 simply one of indemnity.* Of course the general rules already 
 given ,wliich permit proof of the true consideration, illegality, am- 
 biguities and the like apply." 
 
 gage, Parks v. Hall, 2 Pick. 206; Coe v. Cassldy, 72 N. T. 133; Laeber v. 
 Langhor, 45 Md. 477; Stokes v. Hollls, 43 Ga. 262; Parish v. Gates, 29 
 Ala. 254; Watson v. James, 15 La. An. 386; National Ins. Co. v. Webster, 
 83 111. 470; Love v. Blair, 72 Ind. 281; an agreement that the mortgagor 
 of chattels might remain in possession, Pierce v. Stevens, 30 Me. 184. 
 
 8 Clark V. Houghton, 12 Gray, 38; Johns v. Church, 12 Pick. 557, 23 Am. 
 Dec. 651; Hall v. Tufts, 18 Pick. 455; Pierce v. Parker, 4 Met. 84. 
 
 ' Jones V. Guaranty Co., 101 U. S. 622; Aull v. Lee, 61 Mo. 160; Duval v. 
 McLoskey, 1 Ala. 708; Bell v. Fleming, 12 N. J. Eq. 13; Jackson v. Bowen, 7 
 Cow. 13; Johnes v. Church, 12 Pick. 557, 23 Am. Dec. 651; Goddard v. 
 Sawyer, 9 Allen, 78; Ellis v. Kenyon, 25 Ind. 134; Partridge v. Swazey, 
 46 Me. 414; Bourne v. Littlefield, 29 Me. 302. 
 
 s Jones V. Guaranty Co., 101 U. S. 622; Price v. Gover, 40 Md. 102; Mayer 
 V. Grottendick, 68 Ind. 1; Cutler v. Steele, 93 Mich. 204; Kimball v. 
 Meyer, 21 Mich. 276, 4 Am. Rep. 487. 
 
 « Consideration, Abbott v. Marshall, 48 Me. 44; Clark v. Houghton, 12 
 Gray, 38; Poster v. Reynolds, 38 Mo. 553; ambigvAty, Hancock v. Watson, 
 18 Cal. 137; Heaston v. Squires, 9 Ind. 27; Galene v. Brown, 22 N. Y. 37; 
 Merrill v. Cooper, 36 Vt. 314; First Nat. Bank v. North, 2 S. D. 480; ille- 
 gality, Haugen v. Hackemeister, 114 N. Y. 566, 21 N. B. 1046. Parol evi- 
 dence cannot be received in the absence of fraud or mistake to contradict 
 or vary the mortgage to show other conditions than those expressed, Adair 
 V. Adair, 5 Mich. 204, 71 Am. Dec. 779; Hunt v. Bloomer, 5 Duer (N. Y.) 
 202; Townsand v. Empire Stone Co., 6 Duer (N. Y.) 208; Kracke v. Ha- 
 meyer, 91 la. 51, 58 N. W. 1056; Holmes v. Holmes, 129 Mich. 412, 89 N. W. 
 47, 95 Am. St. Rep. 444; Connersville Buggy Co. v. Lowry, 104 Mo. App. 
 186, 77 S. W. 771; First Nat. Bank v. Prior, 10 N. D. 146, 86 N. W. 362; 
 as that the mortgage was taken subject to a lease, Sinclair v. Jackson, 8 
 Cow. 543; that timber should be removed from the premises before fore- 
 closure, Berthold v. Fox, 13 Minn. 501, 97 Am. Dec. 243; an agreement 
 between mortgagor and mortgagee that two mortgages of the same date, 
 executed to secure notes falling due at different times, should be equal 
 liens, Isett v. Lucas, 17 Iowa, 503; that the mortgage should constitute a 
 mere pledge, Whitney v. Lowell, 33 Me. 318; that a discharge was intended 
 as an assignment. Wade v. Howard, 6 Pick. 492; that the mortgagor of 
 chattels may sell or exchange the property, Clark v. Houghton, 12 Gray, 38. 
 
CHAPTER 16 
 
 DOCUMENTARY EVIDBNCB. 
 
 i 500. Documentary evidence — Definitions, etc. 
 
 501. Proof of statutes of the state. 
 
 502. Proof of foreign laws — Unwritten law. 
 
 503. Same, continued. 
 
 504. Proof of laws of sister states — Statutes. 
 
 505. Same, continued. 
 
 506. Same — Proof of the unwritten law. 
 
 507. Proof of acts of state — Proclamations — Legislative Journals. 
 
 508. Official registers — Books of public officers. 
 
 509. Proof of facts contained in official registers. 
 
 510. Registers of marriage, birth and death. 
 
 511. Same, continued. 
 
 512. Ship registers. 
 
 513. Log-books as evidence. 
 
 514. Records of municipal corporations. 
 
 515. Same — How authenticated and proved. 
 
 516. Records of private corporations — For what purposes admitted. 
 
 517. Same — In actions on stock subscriptions and other actions. 
 
 518. Same — As admissions — ^As. account books. 
 
 519. Recording acts — Conveyances — Documents recorded when admissi- 
 
 ble. 
 
 520. Same — Requisites — Certificates of acknowledgment — Defects In. 
 
 521. Defective records — Evidence for some purposes. 
 
 522. Public documents — Provable by copies — Corporate records. 
 
 523. Copies of records — Different classes. 
 
 524. Examined and certified copies as evidence. 
 
 525. Effect of copies as evidence — Cannot exclude originals — By whom 
 
 certified. 
 
 526. Proof of execution of documents. 
 
 527. Proof of attested documents — Attesting witnesses to be called. 
 
 528. Exceptions to the general rule — Absence or disability of witnesses. 
 
 529. Diligence necessary, if witness is absent. 
 
 530. Exception where adverse party claims under the document. 
 
 531. Exception — -Ancient documents. 
 
 532. Same — Office bonds, etc. 
 
 533. Best evidence after non-production of subscribing witnesses. 
 
 534. Same, continued. 
 
 535. Same — ^Absence of subscribing witness, etc. 
 
 536. Same — Mode of proving execution by subscribing witnesses. 
 
 537. Statutes affecting proof of documents — Recording acts, eta 
 
 538. Non-judicial records — Proof of — Federal statutes. 
 
636 THE LAW OP EVIDENCE. § 500 
 
 § 539. Same — Department records — Federal statutes. 
 
 540. Proof of records of public departments — Copies — Certificates. 
 
 541. Same — Effect of these statutes. 
 
 542. Same — Certificates. 
 
 543. Mere certificates not evidence. 
 
 544. Exceptions to the rule that mere certificates are not evidence. 
 
 545. Proof of handwriting — ^Writer need not be called. 
 
 546. One who has seen another write is competent to testify to hig hand- 
 
 writing. 
 
 547. Knowledge of handwriting may be gained by correspondence. 
 
 548. Such knowledge may be gained in the course of business. 
 
 549. Value of the testimony — How affected by the means of knowledge. 
 
 550. Use of writing written at the trial for comparison. 
 
 551. Comparison of handwriting — English rule. 
 
 552. Same — Conflicting views in the United States. 
 
 553. Comparison of simulated signatures — Proof of identity. 
 
 554. Exceptions — Allowing comparison of hands. 
 
 555. Writings used for comparison must be shown to be genuine. 
 
 556. Proof of handwriting — -Expert evidence. 
 
 557. Effect of alteration of instruments^What constitutes alteration. 
 
 558. Same rule although the change is to the disadvantage of the wrong- 
 
 doer. 
 
 559. Immaterial alterations — Conflicting views. 
 
 560. Test of the materiality of the alteration. 
 
 561. Implied consent to alterations — Blanks. 
 
 562. Unauthorized filling of blanks — Deeds. 
 
 563. Presumption in case of alteration — English rule. 
 
 564. Same — Conflicting views in the United States. 
 
 565. Question of alteration is for the jury. 
 
 566. Fraudulent intent — Alteration of negotiable paper. 
 
 § 500(512). Documentary evidence — Definitions, etc. — Sir 
 
 James Stephen defines a document as "any substance having any 
 Tnatter expressed or described upon it by marks capable of being 
 read. ' '^ Documents or vrritings are divisible into two classes, name- 
 ly, pullic and private. "The former consists of the acts of public 
 functionaries in the executive, legislative and judicial departments 
 of government, including under this general head the transactions 
 which official persons are required to enter in books or registers in 
 the course of their public duties, and which occur within the circle 
 of their own personal knowledge and observation. To the same head 
 may be referred the consideration of documentary evidence of the 
 acts of state, the laws and judgments of courts of foreign govern- 
 ments. Public writings are susceptible of another division, they 
 being either (1) judicial, or (2) not judicial; and with respect to 
 
 iSteph. Ev. art I. 
 
§ 501 DOCUMENTARY EVIDENiCSB. 637 
 
 the means and mode of proving them, they may be classed into 
 (1) those which are of record and (2) those which are not of rec- 
 ord."" 
 
 § 501 (513). Proof of statutes of the state. — We have already 
 discussed the subject of judicial notice of public statutes; and it has 
 been seen that, although the public statutes of a state prove them- 
 selves within the state, private statutes must be proved.^ Public 
 statutes are read to the court, but not as evidence. The judges are 
 presumed to know the law, but the statutes are read to refresh their 
 memory.* But private statutes, if relied upon, must be offered in 
 evidence, and appear in the record or bill of exceptions ;* and un- 
 less they appear, the appellate court will ignore such statutes, when 
 produced." At common law private statutes and resolutions of leg- 
 islative bodies were proved by sworn or exemplified copies authen- 
 ticated by the great seal.^ Generally statutes are enacted providing 
 that volumes containing th e statutes of the state, whether public or 
 private, which are published by the state authority, are sufficient 
 evidence of such statutes.* Such statutes greatly facilitate the proof 
 of private statutes, as they dispense with the necessity of copies 
 authenticated by officers of state, but they do not dispense with 
 proof of the statute." In some states, however, the courts are re- 
 quired to notice judicially private as well as public statutes ;^'' and in 
 some it has been held, in the absence of statutes on the subject, that 
 an edition of the laws of the state published under the authority of 
 the legislature is evidence both of public and private laws.^^ The 
 revised statutes of the United States, printed under the direction of 
 the Secretary of State at the government printing office, and em- 
 bracing the statutes of the United States, general and permanent in 
 
 zGreenl. Ev. § 470. 
 
 sLeland v. Wilkinson, 6 Peters, 317; Ellis v. Eastman, 32 Cal. 447; 
 Pearl v. Allen, 2 Tyler (Vt.) 315. See also §§ 112 et seq. supra. As to 
 proof of statutes and laws, see note, 11 Am. Dec. 780. 
 
 < Lincoln v. Battelle, 6 Wend. 475. 
 
 6 Pearl v. Allen, 2 Tyler (Vt.) 315; Osborn v. Blackburn, 78 Wis. 209; 
 Hanley v. Donoghue, 116 U. S. 1. 
 
 6 Eastman v. Crosby, 8 Allen, 206; Haines v. Hanrahan, 105 Mass. 480. 
 
 f Rex T. Forsyth, Russ. & R. 275; 1 Greenl. Ev. § 480. 
 
 8 See statutes of the forum. 
 
 « Walker v. Armstrong, 2 Kan. 198. 
 
 10 Junction Railroad Co. v. Bank of Ashland, 12 Wall. 226; Halbert v. 
 Skyles, 1 A. K. Marsh. (Ky.) 368; Farmers' Bank v. Jarvis, 1 Mon. (Ky.) 4. 
 
 iiBiddis v. James, 6 Binn. (Pa.) 321, 6 Am. Dec. 456; Gray v. Monon- 
 gahela Nav. Co., 2 Watts & S. (Pa.) 156, 37 Am. Dec. 500. 
 
638 THE LAW OF EVIDElSrCE. § 502 
 
 their nature, whieli were in force on December 1, 1873, as revised 
 and consolidated, and including also the amendatory acts passed by 
 congress between that date and the year 1878 are legal evidence in 
 all the courts of the United States and of the several states and ter- 
 ritories of the laws therein contained, but do not preclude reference 
 to, or control, in case of any discrepancy, the effect of any original 
 act as passed by congress since December 1, 1873 ; and copies of the 
 acts of congress, printed as aforesaid at the close of each session 
 of congress, are legal evidence in such courts of the laws and treat- 
 ies therein contained. "^^ 
 
 § 502 (514). Proof of foreign laws — Unwritten law. — ^It is set- 
 tled beyond doubt that the laws of a foreign country do not prove 
 themselves in our courts, but that they must be proved as facts.^^ 
 The common or unwritten law of a foreign country may be proved 
 by the testimony of lawyers or jurists of that country whose 
 studies have afforded opportunities of knowledge of the subject. In 
 other words, it is a proper subject for proof by the testimony of ex- 
 pert witnesses.^* It does not necessarily follow that testimony of 
 this character can be given only by jurists or professional lawyers. 
 The unwritten law of a foreign country may also be proved by those 
 who have held such official position or had such, business experience 
 that they may be fairly deemed qualiiied to speak upon the sub- 
 ject.^" Thus, one who had long acted as magistrate in Canada was 
 allowed to testify as to the mode of executing notarial instruments 
 in that country.^' So in England, it was held competent for a Ro- 
 man catholic bishop who had resided in Rome and who had studied 
 the church law and the Roman law to testify concerning the mar- 
 
 12 U. S. Rev. Stat. 1878, Appendix pp. 1091-1092. 
 
 -isEnnis v. Smith, 14 How. 400; Church v. Hubbart, 2 Cranch, 187; Lou- 
 isville & N. R. Co. V. Sullivan (Ky.), 76 S. W. 525; Owen v. Boyle, 15 Me. 
 147, 32 Am. Dec. 143; Bowditch v. Soltyk, 99 Mass. 136; Com. v. Kenney, 
 120 Mass. 387; Nashua Savings Bank v. Anglo-American Co., 189 U. S. 221. 
 See full notes, 11 Am. Dec. 779; 113 Am. St. Rep. 868. 
 
 14 Kenney v. Clarkson, 1 Johns. (N. Y.) 385, 3 Am. Dec. 336; Brush v. 
 Wilkins, 4 Johns. Ch. (N. Y.) 506; Ennls v. Smith, 14 How. 400; Sussex 
 Peerage Case, 11 Clark & F. 134; Barber V. Hildebrand, 42 Neb. 400, 60 
 N. W. 594; State v. Moy Looke, 7 Ore. 55. See § 368 supra; also valuable 
 discussion In 25 L. R. A. 449-468; notes, 66 Am. Dec. 233; 113 Am. St. 
 Rep. 882. 
 
 15 In re Dost Aly Khan, 6 Prob. Div. 6; Pickard v. Bailey, 26 N. H. 
 152; Dauphin v. United States, 6 Ct. of CI. 221. An American lawyer who 
 had spent six months in England and studied somewhat their corpora- 
 tion laws allowed to testify. Barber v. International Co., 73 Conn. 587, 
 48 Atl. 758. See note, 113 Am. St. Rep. 883.' 
 
 "Pickard v. Bailey, 26 N. H. 152. 
 
§ 503 DOOUMENTAEY EVIDENCE. 639 
 
 riage laws of Rome/' and for one who had been a stock broker in 
 Brussels to testify concerning the law of negotiable paper in that 
 city.^' But it has been held in several cases that one who has merely 
 studied the laws of a foreign country is not competent to give ex- 
 pert testimony on that subject.^' The obvious objection to parol 
 evidence of foreign statutes is that it is not the best evidence. On 
 this ground it has generally been held that the written foreign law 
 should be proved by a copy of the law, properly authenticated.^" 
 But if there is no proof that the foreign law is statutoiy, it may be 
 proved by parol ; ^^ and the party offering such proof is not bound 
 to show that there is no written law on the subject."^ 
 
 § 503 (515). Same, continued. — In a leading ease on this sub- 
 ject in the supreme court of the United States, it was held that for- 
 eign statutes "may be verified by an oath, or by an exemplification 
 of a copy under the great seal of the state, or by a copy proved to 
 be a true copy by a witness who has examined and compared it with 
 the original, or by the certificate of an officer, properly authorized 
 by law to give the copy, which certificate must be duly proved."*' 
 But such modes of proof are not exclusive of others, especially of 
 codes of laws and accepted histories of the law of a country.** Ac- 
 cordingly it has frequently been held admissible to receive as evi- 
 dence volumes of foreign statutes, when authenticated by the oath 
 of a competent person, or by some other method equivalent to the 
 
 17 Sussex Peerage Case, 11 Clark & F. 134. See also, Massucco v. 
 Tomassi, 78 Vt. 188, 62 Atl. 57. 
 
 18 VanderDonckt v. Thellusson, 8 C. B. 812. 
 
 19 Bristow V. Sequevllle, 9 Exch. '275; In re BouelU, 1 Prob. Dlv. 69. But 
 see Hall v. Costello, 48 N. H. 176, 2 Am. Rep. 207; Barrows v. Downs, 9 R. I. 
 446, 27 Am. St. Rep. 777. Mere general knowledge as to the history of law 
 and government held not to qualify a witness to testify. Banco De Sonora v. 
 Bankers' Casualty Co. (la.), 95 N. W. 232. 
 
 20Ennis v. Smith, 14 How. 400; Robinson v. Clifford, 2 Wash. C. C. 1; 
 .United States v. Ortega, 4 Wash. C. C. 531; Watson v. Walker, 23 N. H. 
 471; Kenny v. Clarkson, 1 Johns. 385, 3 Am. Dec. 336; Packard v. Hill, 2 
 Wend. 411; Chanoine v. Fowler, 3 Wend. 173; Lincoln v. Battelle, 6 Wend. 
 475; Church v. Hubbart, 2 Cranch, 187; Talbot v. Seaman, 1 Cranch, 1; 
 Nashua Savings Bank v. Anglo-American Co., 189 II. S. 221, where the 
 testimony of ^n English .solicitor of thirty years' experience was held 
 suflScient authentication of English statutory law; Lacon v. Higgins, 3 
 Starkie, 178, where similar proof was held suflBcient authentication of 
 the French Code. See note, 113 Am. St. Rep. 883. 
 
 21 Dougherty v. Snyder, 15 Serg. & R. (Pa.) 84, 16 Am. Dec. 520; Liv- 
 ingston V. Maryland Ins. Co., 6 Cranch, 274. 
 
 22Newsom v. Adams, 2 La. 153, 22 Am. Dec. 126. 
 
 28 Bnnis v. Smith, 14 How. 400. See note, 113 Am. St Rep. 883. 
 
 ** Ennis v. Smith, 14 How. 400. 
 
640 THE LAW OF EVIDENCE. § 503 
 
 sanction of an oath.^^ Thus, the printed statutes of Ireland, with 
 the affidavit of an Irish barrister that he had received them from 
 the public printer, and that they were commonly received as evi- 
 dence in that country, were held admissible.^" So it has been held 
 in this country that a volume purporting to be the civil code of 
 France, sent by that government to the supreme court of the United 
 States in the course of national exchanges of laws, and so received 
 by our government was sufficiently authenticated.^^ In Maine a 
 printed volume of the laws of a foreign province, proved by wit- 
 nesses to have received the sanction of the executive and judicial 
 officers of that province, was received in evidence;^* and where ordi- 
 nances of France on a subject of common concern to all nations 
 were promulgated by the president of the United States, no further 
 authentication was held necessary.^" But a volume purporting to 
 contain the laws of a foreign country, with no authenticating evi- 
 dence, except that it was purchased in that country, is not admis- 
 sible.^" The same is true of a non-official volume, although proved 
 to be comformable to the official edition; '^ and the mere certificate 
 of a consul was held not to be a sufficient authentication of a foreign 
 statute.'^ Although the rule formerly prevailed in England that 
 foreign written laws must be proved by copies, properly authenti- 
 cated, the later cases seem to have held otherwise.^' In his work on 
 evidence JVLr. Taylor says that the old doctrine is exploded, and that 
 "whenever foreign written law is to be proved, that proof cannot 
 be taken from the book of the law, but must be derived from some 
 skillful witness who describes the law." But he further says: "the 
 witness may refresh and confirm his recollection of the law, or as- 
 sist his own knowledge by referring to text-books, decisions, statutes, 
 codes or other legal documents or authorities." '* A distinguished 
 federal judge held in an admiralty case that the written laws of 
 
 20 Jones V. Maffit, 5 Serg. & R. (Pa.) 523; "Watson v. Walker, 23 N. 
 H. 471. 
 
 26 Jones V. Maffit, 5 Serg. & R. (Pa.) 523. 
 
 27 Ennis v. Smitli, 14 How. 400. 
 
 28 Owen v. Boyle, 15 Me. 147, 32 Am. Dec. 143. 
 
 29 Taltot V. Seaman, 1 Cranch, 1. 
 
 so Packard v. Hill, 2 Wend. 411; Hill v. Packard, 5 Wend.' 378. 
 
 31 Chanolne v. Fowler, 3 Wend. 173. 
 
 82 Church V. Hubbart, 2 Cranch, 187, 236. 
 
 S3 Sussex Peerage Case, 11 Clark & F. 85; Barron de Bode'a Case, 8 
 Q. B. 20S; Lord Nelson v. Lord Bridgport, 8 Beav. 527; Cocks V. Purday, 
 2 Car. & K. 269; Bremer v. Freeman, 10 Moody P. C. 306. 
 
 8* Tayl. Ev. (10th Ed.) § 1423. 
 
§ 504 DOCUMENTAEY EVIDENCE. 641 
 
 England might be proved by printed copies of the statutes, and that 
 the court could determine from an inspection of the volume, as well 
 as from an expert, whether it was genuine. He expressed the view 
 that, as to the English statutes, the same liberal role should be 
 adopted as that which in some courts prevails relative to the admis- 
 sion of statutes of sister states, but that the old and more rigid rule 
 might properly be continued as to those foreign countries where 
 an entirely different system of law prevails.^" In most of the states 
 statutes now provide that printed statute books of any foreign 
 government purporting to be printed under the authority thereof 
 may be admitted.'" 
 
 § 504 (516). Proof of the lavirs of sister states — Statutes. — We 
 have already seen that the courts of one state within the XJLited 
 States do not take judicial notice of the laws of another state.'' 
 Where a statute of a sister state is to be proved, the proof should 
 conform to the provisions of the act of congress providing for the 
 authentication of the statutes of the several different states or the 
 laivs of the state in which the cause is tried.'* Under the constitu- 
 tional provision requiring that full faith and credit shall be given 
 in each state to the public acts, records and judicial proceedings of 
 every other state, and authorizing congress to prescribe the manner 
 in which such acts and records shall be proved,'" a law was long 
 since enacted providing that acts of the legislature of any state or 
 territory or of any country, subject to the jurisdiction of the United 
 States, shall be authenticated by having the seal of such state, ter- 
 ritory or country affixed thereto.*" It will be observed that this 
 statute prescribes no other authentication or formality than that 
 the seal of the state be affixed to the copy of the act to be proved. 
 The seal" itself is supposed to import absolute verity. The annexa- 
 tion must, in the absence of all contrary evidence, always be pre- 
 sumed to be by a person having the custody thereof and competent 
 authority to do the act.** Another clause of the statute above quoted 
 
 85 The Pewashick, 2 Low. (U. S.) 142. See also, Wilcocks v. Phillips, 1 
 Wall. Jr. (U. S.) 47. 
 
 3« See citations of statutes, 3 Wig. Ev. § 1684. 
 
 STgee §§ 118 et seq. supra. 
 
 |38 United States v. Amedy, 11 Wheat. 392; Ashley v. Root, 4 Allen, 504; 
 State V. Carr, 5 N. H. 367; Warner v. Com., 2 Va. Cas. 95; Hewitt v. Bank 
 of Indian Terr., 64 Neb. 463, 92 N. W. 741. See note, 113 Am. St. Rep. 
 868 et seq. 
 
 3»U. S. Const, art. 4 § 1. 
 
 "U. S. Rev. Stat. § 905 (U. S. Comp. Statutes 1901, p. 677). 
 
 "United States v. Amedy, 11 Wheat. 392; United States v. Johns, 4 
 41 
 
642 THE LAW OF EVIDENCB. § 505 
 
 makes its provisions applicable to the United States courts, as well 
 as the state courts.*^ It has been held in some states that this mode 
 of authentication is the only one that may be used.*^ But although 
 the seal of the state may afford the highest evidence of the authen- 
 ticity of the statute of another state, yet such authentication is not 
 generally deemed the best evidence in such a sense as to exclude 
 other modes of proof ; and, indeed, it is believed that the more com- 
 mon mode is to introduce hooks proved to be printed under the au- 
 thority of the state. It has been held in many states that the vol- 
 umes of statutes of another state, purporting to be printed by au- 
 thority, are admissible as evidence without other authentication.** 
 While in other states it has been held that such volumes are not ad- 
 missible without extrinsic evidence of their authenticity.*" In most 
 of the states this subject is regulated by statute. 
 
 § 505 (517). Same, continued. — It is clear that mere unofficial 
 volumes, purporting to contain the statutes or digests of the stat- 
 utes of other states, are not admissible.*' But a volume of laws 
 which has printed upon its page the words "by authority" meets 
 the requirements of this rule of law.*^ Statutes have been quite 
 
 Dall. 416; Henthorn v. Doe, 1 Blaokf. (Ind.) 157; State v. Carr, 5 N. H. 
 367; Warner v. Com., 2 Va. Cas. 95. 
 
 «U. S. Rev. Stat. § 905 (U. S. Comp. Statutes 1901, p. 677); Mills v. 
 Duryee, 7 Crancli, 481; Galpin v. Page, 3 Sawy. (U. S.) 93. 
 
 *3 State V. Twltty, 2 Hawks (N. C), 441, 11 Am. Dec. 779 and note; 
 Craig V. Brown, 1 Peters C. C. 352; Canal Co. v. Railroad Co., 4 Gill & 
 J. (Md.) 1. 
 
 ** Barkman v. Hopkins, 11 Ark. 157 ; Comparet v. Jernegan, 5 Blackf . 
 (Ind.) 375; Crake v. Crake, 18 Ind. 156; Thomas v. Davis, 7 B. Mon. 
 (Ky.) 227; Merrifield v. Robbins, ,8 Gray, 150; Stewart v. Swanzjr, 25 Miss. 
 502; Bright v. White, 8 Mo. 421; Mullen v. Morris, 2 Pa. St. 85; Allen v. 
 Watson, 2 Hill (S. C.) 319; Ellis v. Wiley, 17 Tex. 134; State v. Abbey, 
 29 Vt. 60, 67 Am. Dec. 754; Simms v. Southern Ex. Co., 38 Ga. 129; People 
 V. Calder, 30 Mich. 85; Clanton v. Barnes, 50 Ala. 260; Young v. Bank 
 of Alexandria, 4 Cranch, 384. 
 
 "Bailey v. McDowell, 2 Har. (Del.) 34; Stanford v. Pruet, 27 Ga. 243, 
 73 Am. Dec. 734; Lord v. Staples, 23 N. H. 448; Van Busklrk v. Mulock, 
 18 N. J. L. 184; State v. Twitty, 2 Hawks (N. C.) 441, 11 Am. Dec. 779; 
 Packard v. Hill, 2 Wend. 411; Duncan v. Duboys, 3 Johns. Cas. (N. Y.) 
 125. 
 
 *oYarbrough v. Arnold, 20 Ark. 592; Dixon v. Thatcher, 14 Ark. 141; 
 Kinney v. Hosea, 3 Har. (Del.) 77; Canfield v. Squire, 2 Root (Conn.) 300, 
 1 Am. Dec. 71; Goodwin v. Provident Sav. Bank, 97 la. 226, 66 N. W. 157, 
 59 Am. St. Rep. 411. 
 
 "Merrifield v. Robbins, 8 Gray, 150; Vaughn v. Griffeth, 16 Ind. 353; 
 Crake v. Crake, 18 Ind. 156; Cutler v. Wright, 22 N. Y. 472. See note, 
 
§ 506 DOCUMENTARY EVIDENCE. 643 
 
 generally enacted in the different states controlling this subject. 
 Their general purport is such as to remove doubt on the subject, 
 by providing that printed statutes of other states are admissible, 
 when they purport to be printed by public authority, or when they 
 are proved to be generally admitted as presumptive evidence in the 
 courts of the state where they are in foree.^' In a Virginia ease, it 
 was held that, when a section of a statute of Maryland was authenti- 
 cated by the seal of that state it was admissible, and that other sec- 
 tions of the statute need no be offered in evidence ;*" and where the 
 existence of a statute is proved, such statute is presumed to con- 
 tinue in force until the contrary is shown."" In the absence of any 
 statute upon the subject, the careful practitioner will either produce 
 an exemplified copy of the statute or a volume purporting to con- 
 tain the statutes of the state in question and to be printed by au- 
 thority, as well as the evidence of some person having knowledge of 
 the subject, to the effect that the volume is official, or that it is gen- 
 erally received in evidence in the courts of the state whose laws are 
 to be proved. A statute may also be proved like other records by a 
 sworn copy.^'^ In some other states statutes exist providing that 
 printed books of ordinances purporting to be printed by authority 
 of the city are admissible. 
 
 § 506 (518). Same — Proof of the unwritten law. — The common 
 or unwritten law of a sister state may be proved by the testimony 
 of witnesses having knowledge of the subject, that is by expert testi- 
 mony.'^'^ In some of the eases cited, the rule seems to have been so 
 
 113 Am. St. Rep. 883. But where the statutes are printed by public author- 
 ity but private enterprise, the courts will In case the verity of any part 
 is Questioned, resort to the original enactments, Clagett v. Duluth Tp., 
 143 Fed. 824. 
 
 *8 Latterett v. Cook, 1 Iowa, 1; Cummings v. Brown, 31 Mo. 309; Glenn 
 V. Hunt, 120 Mo. 330; Wilt v. Cutler, 38 Mich. 189; Pacific Pneumatic Gas 
 Co. V. Wheelock, SO N. Y. 278; Harryman v. Roberts, 52 Md. 64; Eagan v. 
 Connelly, 107 111. 458; Meracle v. Down, 64 Wis. 323; Merrifleld v. Rob- 
 bins, 8 Gray, 150; Bride v. Clark, 161 Mass. 130; Cutler v. Wright, 22 
 N. Y. 472; Cochran v. Ward, 5 Ind. App. 89; State v. Check, 13 Ired. (N. 
 C.) 114; Falls v. United States Building Co., 97 Ala. 417; Rice v. Rankans, 
 101 Mich. 378; Regero v. Zippel, 33 Fla. 625. See the statutes of the 
 jurisdiction. 
 
 19 Hunter v. Fulcher, 5 Rand. (Va.) 126, 16 Am. Dec. 738. 
 
 00 State V. Patterson, 2 Ired. (N. C.) 346, 38 Am. Dec. 699. 
 
 Bi Ennis v. Smith, 14 How. 400. 
 
 02Territt v. Woodruff, 19 Vt. 182; McRae v. Mattoon, 13 Pick, 53; Bark- 
 man v. Hopkins, 11 Ark. 157; Crafts v. Clark, 38 Iowa, 237; Walker v. 
 Forbes, 31 Ala. 9; Hooper v. Moore, 5 Jones (N. C.) 130; State v. Behr- 
 
644 THE LAW OF EVIDENCE. § 507 
 
 extended as to allow the opinions of experts, not only as to the com- 
 mon law of the state in question, but also as to the construction of 
 statutes.^^ But the general rule is that the statute law of a sister 
 state, like that of a foreign country, must be proved by a copy au- 
 thenticated in some of the ways already stated.^* In a few in- 
 stances, it has been held that the common law of a sister state may 
 be proved by printed reports of decisions of that state ; °^ and in 
 many of the states, statutes have been enacted making such reports 
 admissible.'^" Although recitals in private statutes may be evidence 
 of the matters recited, as between the person in whose behalf they 
 are enacted and the state, yet they are not evidence against stran- 
 gers to the act,^' not even yliere the act, though private in its 
 nature, contains a clause declaring it to be a public act."' 
 
 § 507(519). Proof of acts of state — Proclamations — Legislative 
 journals. — "Acts of state may be proved by production of the 
 original printed document from a press authorized by the govern- 
 ment. Proclamations and other acts and orders of the exeeutiye of 
 the like character may be proved by production of the government 
 gazette in which they were authorized to be printed. Printed copies 
 of public documents transmitted to congress by the president of the 
 United States, and printed by the printer to congress are evidence 
 of those documents. ' ' "' Thus, it was held that a volume of public 
 
 man, 114 N. C. 797. The testimony of attorneys skilled in the law of the 
 respective states has heen received to show that certain acts 'would consti- 
 tute valid service of process in another state, Jlowry v. Chase, 100 Mass. 
 79; the practice of justice courts, Dyer v. Smith, 12 Conn. 384; the suffi- 
 ciency of the execution of a deed, Wilson v. Carson, 12 Md. 54; and 
 that a certain note was negotiable in another state, Tyler v. Trahue, 
 8 B. Mon. (Ky.) 306. See note, 113 Am. St. Rep. 882. 
 
 53 Dyer v. Smith, 12 Conn. 384; Greasons v. Davis, 9 Iowa, 219; "Walker 
 V. Forbes, 31 Ala. 9; Danforth v. Reynolds, 1 Vt. 259; Barkman v. Hop- 
 kins, 11 Ark. 157. 
 
 !>* See § 504 supra. 
 
 6s Cragin v. Lamkin, 7 Allen, 395; Marguerite v. Chouteau, 3 Mo. 540; 
 Raynham v. Canton, 3 Pick. 293; McRae v. Mattoon, 13 Pick, 53; 
 Dougherty v. Snyder, 15 Serg. & R. (Pa.) 84; Latimer v. Eglin, 4 Desaus. 
 Eq. (S. C.) 26; Brush y. Scribner, 11 Conn. 388, 29 Am. Dec. 303; Chicago 
 Ry. Co. V. Tuite, 44 111. App. 535, but not of a dissenting opinion; Ely v. 
 James, 123 Mass. 36. 
 
 56 See statute of forum. 
 
 67 Elmondorff v. Carmichael, 3 Litt. (Ky.) 472, 14 Am. Dec. 86; Parme- 
 lee V. Thompson, 7 Hill, 77. 
 
 68 Brett V. Seals, 1 Moody & M. 416. 
 
 «»GreenI. Ev. § 479 and cases cited. Post v. Supervisors, 105 U. S. 
 
§ 508 DOCUMENTARY EVIDENCE. 645 
 
 documents printed by authority of the senate of the United States, 
 containing letters to and from various officers of state, communi- 
 cated by the president of the United States to the senate, v^as as 
 competent evidence as the original documents themselves."" The 
 federal statutes provide that "extracts from the journals of the sen- 
 ate or of the house of representatives, and of the executive journal 
 of the senate, when the injunction of secrecy is removed, certified 
 by the secretary of the senate or by the clerk of the house of repre- 
 sentatives, shall be admitted as evidence in the courts of the United 
 States, and shall have the same force and effect as the originals 
 would have, if produced and authenticated in court." ^^ So when 
 public statutes or legislative resolutions contain recitals of public 
 events, as that a state of war exists or of other events peculiarly 
 within the knowledge of the government, they are deemed competent 
 evidence of the facts so recited."^ 
 
 § 508 (520). OflBcial registers — Books of public officers. — When 
 persons in public office are required by statute or by the nature of 
 their office to write down particular transactions occurring in the 
 course of their public duties and under their personal observation, 
 such records are generally admissible in evidence. Wlien such en- 
 tries are made by authorized public agents in the course of public 
 duty, and relate to matters in which the whole public may be inter- 
 ested, these are deemed sufficient sanctions to dispense with the ne- 
 cessity of an oath and cross-examination."^ The rule is thus stated 
 by Mr. Stephen : ' ' An entry in any record, official book or register 
 kept in any state, or at sea, or in any foreign country, stating, for 
 the purpose of being referred to by the public, a fact in issue or rel- 
 evant, or deemed to be relevant 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. ' ' ®* Such entries are gener- 
 ally made by those who can have no motive to suppress the truth or 
 to fabricate testimony. Moreover, in many cases they are made in 
 the discharge of duty, pursuant to an oath of office."" In his work 
 
 667; Root v. King, 7 Cow. 636. See notes, 58 Am. Dec. 754; 51 Am. Dec. 
 616. 
 
 ooWhiton v. Albany Ins. Co., 109 Mass. 24. 
 
 «iU. S. Rev. Stat. § 895 (U. S. Comp. Statutes 1901, p. 673). 
 
 «2Rex V. Deberenger, 3 Maule & S. 67; Thelluson v. Gosling, 4 Esp. 266. 
 
 63 Greenl. Bv. § 483. 
 
 e* Steph. Bv. art. 34. 
 
 «5 Greenl. Bv. §§ 483-484. 
 
646 THE LAW OF EVIDENCE. § 508 
 
 on evidence Mr. Taylor mentions a large number of books of this 
 character which the law recognizes as official registers : for example, 
 among others, parish registers, registers of births, marriages and 
 deaths, made pursuant to the registration acts, land tax assessments, 
 bishops' registers, books fiept at public prisons, official log-books, 
 books kept by the coast guard showing the state of wind and 
 weather, registers of parliamentary votes, custom-house revenue 
 books and books of other public offices."' Many others are men- 
 tioned but these sufficiently illustrate the class of books usually re- 
 ferred to. In this country the same rule has been recognized in 
 many instances." 
 
 ««Tayl. Ev. (lOth Ed.) § 1595; Doe v. Barnes, 1 Moody & Rob. 386, 
 marriage register; Doe v. Seaton, 2 Adol. & Ell. 178, land tax assess- 
 ments; Arnold v. Bishops, 5 Bing. 316, bishop's register; Salte v. Thomas, 
 3 Bos. & P. 188, prison books; D'Israell v. Jowett, 1 Esp. 427, log-books; 
 Catherina Maria, L. R. 1 Adm. & Bcc. 53, coast guard books; Reed v. 
 Lamb, 29 L. J. (Exch.) 452, parliamentary register; Johnson v. Ward, 6 
 Esp. 487, custom books. See statute 6 & 7 Will. IV. ch. 86. 
 
 6' In the admission of registries of deeds and mortgages, Conway v. 
 Case, 22 111. 127; Dixon v. Doe, 5 Blackf. (Ind.) 106; Booge v. Parsons, 
 2 Vt. 456, 21 Am. Dec. 557; books of accounts and of grants in the office 
 of an alcalde, Downer v. Smith, 24 Cal. 114; the records of miners' 
 claims, Pralus v. Pacific Co., 35 Cal. 30; Attwood v. Pricot, 17 Cal, 37, 76 
 Am. Dec. 567; records of registered letters received at a post-offlce, Gurney 
 V. Howe, 9 Gray, 404, 69 Am. Dec. 299; the registration of vessels in the 
 custom-house. United States v. Johns, 4 Dall. (Pa.) 416; Catlett v. Pacific 
 Ins. Co., 1 Wend. 561; the records of city ordinances, Com. v. Chase, 6 
 Cush. 248; of the attendance of pupils at school, Thurston v. Luce, 61 
 Mich. 29?; the registry of Mrths, deaths and marriages kept by a 
 religious society, Stoever v. Whitman, 6 Binn. (Pa.) 416; Jacob! v. Order 
 of Germania, 26 N. Y. S. 313; Hyman v. Edwards, 1 Dall. (Pa.) 2; or by a 
 town clerk, Sumner v. Sebec, 3 Me. 223; Jacocks v. Gilliam, 3 Murph. 
 (N. C.) 47; the records of baptism, Durfee v. Abbott, 61 Mich. 471; the 
 records of a city or village. Barker v. Fogg, 34 Me. 392; of a school dis- 
 trict, Sanborn v. School Dist., 12 Minn. 17; Thurston v. Luce, 61 Mich. 
 292; of town officers showing accounts and expenses, Thornton v. Camp- 
 ton, 18 N. H. 20; of town meetings, Isbell v. New York Ry. Co., 25 Conn. 
 556; Bishop v. Cone, 3 N. H. 513; Grafton v. Reed, 34 W. Va. 172; of acts 
 of boards of supervisors. People v. Bircham, 12 Cal. 50; Blackman v. 
 Dunkirk, 19 Wis. 183; of county commissioners. Cuttle v. Brockway, 24 
 Pa. St. 145; Johnson v. Wakulla Co., 28 Fla. 720; of town oflScers, Jay 
 V. Carthage, 48 Me. 353; Chatham v. Young, 113 N. C. 161; maps, plat- 
 books and field books of surveyors, prepared and deposited according to 
 statute In a public .office. People v. Denison, 17 Wend. 313 ; Miller v. In- 
 dianapolis, 123 Ind. 196; Com. v. King, 150 Mass. 221; Polhill v. Brown, 
 84 Ga. 338; dockets of the clerk of a court showing issuing and return 
 of writs, after proof has been made of the loss of the writ in question, 
 
§ 509 DOCUMENTAEY EVIDENCE. 647 
 
 § 509 (521). Proofs of facts contained in oflGicial registers. — The 
 contents of books of the character described in the last section are 
 proven by the production of the books or documents themselves, 
 and by proof that they come from the proper custody ; °' and in 
 some cases, sworn °° or certified ■"* copies of such books have been re- 
 ceived, where the books themselves could not readily be obtained. 
 Although such records are admissible, they do not in general import 
 absolute verity, but are treated as prima facie evidence of the facts 
 entered and of the documents recorded.^' But they afford no evi- 
 dence of facts which they do not properly contain, or of any fact 
 which can only be inferred from the record by argument. Thus, 
 army registers published by the secretary of war afford no evidence 
 from which the pay of army officers can be inferred, although, if 
 properly authenticated, they may afford evidence as to the names, 
 dates of commissions and similar facts.'^ And an entry in a regis- 
 try of baptism is not evidence of the date of birth,''* though it may 
 be received on this issue in connection with other facts.''* But a bap- 
 tismal registry -describing the person as illegitimate was received as 
 giving some evidence of this fact.'"' "It is deemed essential to the 
 official character of these books that the entries in them be made 
 
 Bronning v. Flanagin, 22 N. J. L. 567; tlie record of weather kept by a 
 person employed in the signal service of the United States, Bvanston v. 
 Gunn, 99 XT. S. 660; Chicago Ry. Co. v. Trayes, 17 111. App. 136; Knot v. 
 Raleigh Ry. Co., 98 N. C. 73, 2 Am. St. Rep. 321; Moore v. Gaus Manfg. 
 Co., 113 Mo. 98; DeArmond v. Neasmith, 32 Mich. 231 (see also, Hart v. 
 Walker, 100 Mich. 406, where private weather records were admitted) ; 
 and records of the state house of correction. People v. Kemp, 76 Mich. 410. 
 
 88 Atkins V. Hatton, 2 Anstr. 387; Armstrong v. Hewett, 4 Price, 216; 
 Pulley V. Hilton, 12 Price, 625; Swinnerton v. Stafford, 3 Taunt. 91. 
 
 6» Jackson v. King, 5 Cow. 237, 15 Am. Dec. 468; Jackson v. Boneham, 
 15 Johns. (N. Y.) 226. 
 
 70 Lewis v. Marshall, 5 Peters, 470; Jay v. Carthage, 48 Me. 353; Miller 
 v. City of Indianapolis, 123 Ind. 196. 
 
 71 westerhaven v. Clive, 5 Ohio, 136; Chapman v. Herrold, 58 Pa. St. 
 106; Gurney v. Howe, 9 Gray, 404, 69 Am. Dec. 299. 
 
 72 Wetmore v. United States, 10 Peters, 647. 
 
 78Wihen v. Law, 3 Stark. 63; Duins v. Donovan, 3 Hagg. Ecc. 301; 
 Burghart v. Augenstein, 6 Car. & P. 690; R. v. N. Petherton, 5 Barn. & 
 C. 508; R. V. Clapham, 4 Car. & P. 29; Lavin v. Mutual Aid Society, 74 
 Wis. 349; Durfee v. Abbott, 61 Mich. 471; Mutual Benefit Co. v. Tisdale, 
 91 U. S. 238; McGuirk v. Mutual Benefit Co., 20 N. Y. S. 908; Houlton v. 
 Manteuffel, 51 Minn. 185. The same rule was adopted in. Hegler v. 
 Faulkner, 153 U. S. 109. 
 
 74 Whitcher v. McLaughlin, 115 Mass. 167. 
 
 7* Cope v. Cope, 1 Moody & Rob. 269, 
 
648 THE liAW OP EVIDENCE. § 510 
 
 promptly, or at least without such long delay as to impair their cred- 
 ibility, and that they be made by the person whose duty it was to 
 make them, and in the mode required by law, if any has been pre- 
 scribed. ' ' ''" "Where thus made, they may be introduced in favor of 
 the officer making them, as presumptive evidence of the perform- 
 ance of the acts registered.^' Although most of the records known 
 as official registers, within the meaning of the rule under discussion, 
 are required to he kept liy statute, yet this is not in all cases a pre- 
 requisite to the admission of the record as evidence.'* It is neces- 
 sary that they should be in writing.'" 
 
 § 510 (522). Registers of marriage, birth and death. — ^In most 
 countries where the civil law prevails, registers of marriages, births 
 and deaths, kept by the clergy, are received as primary evidence 
 of such facts.*" But in England and at common law, such registries 
 were not admissible. It was insisted that before such registries 
 were admissible, it must be shown that they were required by law 
 as kept for the public benefit. "So the records of baptisms and 
 marriages formerly performed at the Fleet and Kings Bench Pris- 
 ons, at May Fair, at the Mint in Southwark and in certain other 
 places are inadmissible on the ground that they were not compiled 
 under public authority. So a marriage register kept by a clergy- 
 man in Ireland, prior to the 31st day of March, 1845, when the 
 Irish Marriage Act came into operation, has, for a similar reason, 
 been rejected. So a Jewish register of circumcision, kept at the 
 great synagogue in London, has been rejected, though it was proved 
 that the entries in it were in the handwriting of the deceased Chief 
 Rabbi, whose duty it was to perform the rites of circumcision, and 
 to mali:e corresponding entries in the book. So the birth, marriage 
 or burial register of a Wesleyan or other dissenting chapel will be 
 rejected, unless it has been deposited in the office of the Registrar- 
 General, and entered in his list pursuant to the provi^sions of the 
 act of 3 and 4 Vict. c92."" 
 
 ToGreenl. Ev. § 485; Doe v. Bray, 8 Barn. & C. 813; Walker v. Wingfleld, 
 18 Ves. 443. 
 
 77 Bissell V. Hamblin, 6 Duer (N. Y.) 512. 
 
 J&Evanston v. Gunn, 99 U. S. 660; Bell v. Kendrick, 25 Pla. 778; Miller 
 V. City of Indianapolis, 123 Ind. 196; Hesser v. Rowley, 139 Cal. 410, 73 
 Pac. 156; State v. Hall (S. D.), 91 N. W. 325; White v. U. S., 164 U. S. 100. 
 
 '» The entry may be made by a deputy, Steinke v. Graves, 16 Utah, 293, 
 52 Pac. 386. 
 
 80 Whart. Ev. § 649. 
 
 siTayl. Ev. (10th Ed.) § 1592. 
 
§ 512 DOCUMENTAKT EVIDENCE. 649 
 
 § 511 (523). Same, continued. — ^In the United States, somewhat 
 greater latitude seems to have been allowed; and it has frequently 
 been held that such entries are admissible, if made in the course of 
 ofBcial duty, although not required to be made by law.*" Thus, it 
 was held that, independently of any statute, a baptismal register 
 of a church in which the entries are made in the ordinary course of 
 a clergyman's business is admissible to prove the fact and date of 
 baptism, but not the legitimacy of the child,'' nor the date of 
 birth.'* But in other cases, it has been held that such entries, where 
 .tliey are not by law required to be made, are not admissible, unless 
 the person who made them is deceased, in which case they are ad- 
 missible upon the ground that they are entries of deceased persons 
 made in the exercise of their calling contemporaneously with the 
 event. '° Statutes will be found in most of the states which require 
 public ofScers to keep records of marriages, births and deaths. In 
 such cases, on principles already stated, the records should be re- 
 ceived as evidence. Indeed, in some instances the statutes require 
 the records to be received as presumptive evidence of the marriage, 
 birth or death so recorded.'^ Under statutes copies of records from 
 other states properly authenticated have been frequently admitted.'^ 
 Biit even where the statute makes the record presumptive evidence, 
 it is no more than presumptive evidence, and does not supersede the 
 testimony of those having knowledge of the facts." 
 
 § 512 (524). Ship registers. — Statutes have been enacted by 
 congress regulating the registry of vessels, for the purpose of show- 
 ing the character of the vessel, and to entitle her to the advantages 
 
 82Bvanston v. Gunn, 99 U. S. 660; Blackburn v. Crawfords, 3 Wall. 175; 
 Lewis V. Marshall, 5 Peters, 470; Jackson v. King, 5 Cow. 237, 15 Am. Dec. 
 468; Kyburg v. Perkins, 6 Cal. 674; Durfee v. Abbott, 61 Mich. 471; Hunt 
 V. Order of Friends, 64 Mich. 671, 8 Am. Rep. 855. 
 
 83 Blackburn v. Crawfords, 3 Wall. 175; Supreme Assembly, Royal 
 Society v. McDonald, 59 N. J. L. 248, 35 Atl. 1061. 
 
 84Houlton V. ManteufCel, 51 Minn. 185; Berry v. Hull, 6 Gild. (N. M.) 
 643, 30 Pac. 936. 
 
 86 Kennedy v. Doyle, 10 Allen, 161; Chambers v. Chambers, 32 N. Y. S. 
 875; Whitcher v. McLaughlin, 115 Mass. 167. 
 
 86 See the statutes of the jurisdiction. See also statutes cited, 3 Wig. 
 Bv. § 1644. 
 
 87 Howls V. State, 88 Ala. 37, 7 So. 302; Brwln v. English, 61 Conn. 502, 
 23 Atl. 753; Hunt v. Chosen Friends, 64 Mich. 671, 31 N. W. 576, 8 Am. 
 St. Rep. 855; Tessman v. United Friends, 103 Mich. 185, 61 N. W. 261. See 
 note, 5 L. R. A. N. S. 938-984. 
 
 88 Herman v. State, 73 Wis. 248, 9 Am. St. Rep. 789. 
 
650 THE LAW OP EVIDENCE. § 513 
 
 secured by law to the vessels of our country.'" The registries are 
 made and kept by sworn public officers, in the usual course of busi- 
 ness, and hence are entitled to confidence as official registers. They 
 may be used as evidence of ownership of the vessel against the per- 
 sons who have procured the registry to be made,'" and as tending 
 to prove the warranty of American property in the policy;'^ in 
 such cases, it is prima facie evidence but not conclusive."^ The 
 ownership of the vessel depends upon other proof; and is not con- 
 clusively settled by the registry, since our laws recognized the pos- 
 sibility that the register exists in the name of one, while the prop- 
 erty is really in another person."'' Thus, in an indictment for pi- 
 racy, the national character of a merchant vessel of the United 
 States may be proved without the certificate of registry or other 
 documentary evidence.'* In an action to recover a premium of in- 
 surance on the ground that the plaintiff had no interest in the vessel 
 at the time of insurance, the register, which was in the name of 
 other persons, was held not even prima facie evidence to prove that 
 the plaintiff was not the owner."'' So the fact that the register re- 
 mains in the name of A. does not necessarily make him liable for 
 repairs after a sale by him."^ 
 
 § 513 (525). Log-books as evidence. — Under acts of congress 
 providing that masters of vessels shall have official log-books, and 
 make certain entries therein, such books are frequently received in 
 evidence to establish such facts as are contemplated by the act."^ 
 But they are evidence of no other facts."* Such an entry in the 
 log-book is indispensable evidence of the fact of desertion, when a 
 forfeiture of wages is insisted upon."" "The log-book, in general 
 ought not to be admitted to establish any facts, save such as are con- 
 so u. S. Rev. Stat. §§ 4131 et seq. (U. S. Comp. Stat. 1901, pp. 2803 et seq.) 
 See also, Sharp v. United Ins. Co., 14 Johns. 201. 
 
 soLigon v. Orleans Nav. Co., 7 Mart. N. S. (La.) 682. 
 
 01 Catlett V. Pacific Ins. Co., 1 Wend. 561. 
 
 o^Colson V. Bonzy, 6 Me. 474. 
 
 83 Sharp v. United Ins. Co., 14 Johns. 201; Leonard v. Huntington, IB 
 Johns. 298. 
 
 »* United States v. Furlong, 5 Wheat. 184. 
 
 05 Sharp v. United Ins. Co., 14 Johns. 201. 
 
 »8 Leonard v. Huntington, 15 Johns. 298. But see. Star v. Knox, 2 Conn. 
 215. 
 
 fV. S. Rev. Stat. § 4290 (U. S. Comp. Stat. 1901, p. 2948). 
 
 »« Jones v. Brig Phoenix, 1 Peters Adm. (U. S.) 201. 
 
 »»The Mary, 1 Peters Adm. (U. S.) 139; Phoebe v. Dignum, 1 Wash. C. 
 C. 48; Douglas v. Eyre, 1 Gilp. (U. S.) 147, 
 
§ 514 DOCUMENTARY EVIDENCE. 651 
 
 templated by the act of congress. It is in no sense, per se evidence 
 except in certain cases provided for by statute. It does not import 
 legal verity; and in every other case is mere hearsay, not under 
 oath. It may be used against persons, to whom it should be brought 
 home as having a concern in writing or directing what should be 
 contained therein, to contradict their statements or their defense. 
 But it cannot be received as evidence for such persons or others, 
 \except by force of a statute rendering it so. ' '^ The log-book must 
 be identified before it can be introduced in evidence.' It will then 
 be presumed that the entries were made in due time as provided by 
 the statute. 
 
 § 514 (526). Records of municipal corporations. — The same rea- 
 sons which authorize the admission of entries in official registers 
 apply iu favor of the introduction of the records of public and mu- 
 nicipal corporations. The acts of such corporations and of their 
 officers concern the rights of the public ; and the presumption exists 
 that the records of such acts are authentic. It has often been de- 
 cided that the books of such corporations, when properly identified, 
 should be received to prove their acts.' The records of public or 
 municipal corporations are properly received in evidence, not only 
 when they constitute admissions on the part of the corporation as 
 evidence generally of those transactions which the law requires 
 such corporations to record, but they are received on the same 
 grounds on which other records are admissible.* Hence where the 
 records are of a public character and have been kept by the proper 
 officers they may be received, not only against the corporation and 
 in litigation between third parties, but in behalf of the corporation 
 itself, or its agents." The original minutes of a municipal corpora- 
 
 1 United States v. Glbert, 2 Sum. 77. 
 
 2 United States v. Mitchell, 2 Wash. C. C. 478. 
 
 sR. V. Mothersell, 1 Str. 93; RonkendorfC v. Taylor, 4 Peters, 349; 
 Owings v. Speed, 5 Wheat. 420; Denning v. Roome, 6 Wend. 651; White- 
 house V. Bickford, 29 N. H. 471; People v. Murray, 57 Mich. 396; O'Mally 
 V. McGinn, 53 Wis. 353; City of Greeley v. Hammon, 17 Colo. 30. See 
 note, 13 Am. St. Rep. 550. They are admissible to show taxes assessed 
 against individuals, Ronkendorff v. Taylor, 4 Peters, 349; Com. v. 
 Heffron, 102 Mass. 148; Whitney v. Port Huron, 88 Mich. 268; to prove 
 acts of trustees appointed by the statute, Owings v. Speed, 5 Wheat. 420; 
 the records of cities, Rust v. Boston Mill Corp., 6 Pick. 158; and also to 
 prove appointment of town officers, Bishop v. Cone, 3 N. H. 513. 
 
 * See § 267 supra as to admissions by public corporations. 
 
 BR. V. Mothersell, 1 Str. 93; Thetford's Case, 12 Vln. Abr. 90; School 
 Dist. V. Blakeslee, 13 Conn. 227; Denning v. Roome, 6 Wend. 651; Troy v. 
 Railroad Co., 11 Kan, 5X9, 13 Kan. 70. 
 
652 THE LAW OF EVIDENCE. § 516 
 
 tion are competent evidence of the acts of the corporation without 
 further proof of their verity.* The minutes of a regular meeting 
 of a city council, written down by the clerk and approved by the 
 council, are evidence of the proceedings, although not recorded in a 
 book, in the absence of any law requiring it; ' and when the min- 
 utes of a meeting state that a certain ordinance was passed by the 
 council, it is to be presumed that it passed in the mode required by 
 the charter.^ But when the statute prescribes certain formalities,, 
 it must be proved that these have been complied with in the pas- 
 sage of the ordinance, if such issue is raised.® But such entries are 
 not admissible, if of a mere private nature, although contaiaed in 
 public records.^" 
 
 § 515 (527). Same — How authenticated and proved. — Such rec- 
 ords should be authenticated by the proper of&cers, having their 
 custody ; and when so authenticated, the originals are competent evi- 
 denced^ Like other public records, they may be proved, not only by 
 the use of originals, but by the use of sworn or certified copies; such 
 copies are only prima facie evidence, which may be controlled by 
 proof of their inaccuracy or forgery.^^ Statutes very generally ex- 
 ist allowing such proof to be made by the use of certified copies. 
 When an error has been made by the clerk in preparing municipal 
 records, he may amend the record to conform to the fact while he 
 remains in oifice.^' Such amendments cannot, however, be allowed 
 after the term of ofRce has expired.'^* 
 
 § 516 (528). Records of private corporations — ^For what pur- 
 poses admitted. — The records of private corporations cannot be 
 
 'People V. Zeyst, 23 N. Y. 140; Com. v. Chase, 6 Cush. 248; Denning t. 
 Roome, 6 Wend. 651. 
 
 I O'Mally V. McGinn, 53 Wis. 353, 10 N. W. 515. 
 
 8 O'Mally V. McGinn, 53 Wis. 353, 10 N. W. 515; State v. King, 37 Iowa, 
 469. 
 
 » Larkin v. Burlington, C. R. & N. Ry. Co., 85 Iowa, 492, 52 N. W. 480. 
 10 Marriage v. Lawrence, 3 Barn. & Aid. 142. 
 
 II O'Mally V. McGinn, 53 Wis. 353; Com. v. Hayden, 163 Mass. 453, 
 authentication by a deputy; Lindsay v. Chicago, 115 111. 120; Cleveland, 
 C. C. & St. L. Ry. Co. v. Tart, 64 Fed. 823. See also, Denning v. Roome, 
 6 Wend. 651. 
 
 12 Com. V. Chase, 6 Cush. 248; New York, N. H. & H. R. Co. v. Horgan, 
 26 R. I. 448, 59 Atl. 310. See § 522 infra. 
 
 13 Welles V. Battelle, 11 Mass. 477; President of St. Charles v. O'Malley, 
 18 111. 407; Mott v. Reynolds, 27 Vt. 206; Boston Turnpike Co. v. Pomfret, 
 20 Conn. 590. 
 
 "Hartwell v. Littleton, 13 Pick, 229; School Dist v. Atherton, 12 Met. 
 105. 
 
§ 517 DOCUMENTARY EVIDENCE. 653 
 
 deemed public records; and therefore quite different rules govern 
 their reception as evidence. By the common law rules, a private 
 corporation has no more right than an individual to make book en- 
 tries evidence in its own behalf. In England numerous statutes 
 have been enacted making the books of such corporations prima fa- 
 cie evidence in their own behalf as to certain facts recorded there- 
 in ;^° and in the United States, it is held that the books and minutes 
 of a corporation, if there is nothing to show irregularity in the 
 proceedings, are competent evidence to show that the acts necessary 
 to the legal incorporation and organization have been performed.** 
 The eases just cited show that for this purpose the books may be re- 
 ceived in evidence, even in iehalf of the corporation. Accordingly 
 it has been held that, in actions by the corporation for subscriptions 
 to the corporate stock, the subscription books and orders for pay- 
 ment are proper evidence to establish liability,^'' and also in actions 
 for calls, to establish the amount of the installment, and the fact of 
 the calls.^^ So the minutes have been used as prima facie evidence 
 that a quorum was present at a given meeting.** The ordinary pre- 
 sumption as to regularity of proceedings applies to the transactions 
 at corporate meetings; and when the records show the transaction 
 of business at such meetings, it will be presumed that it was per- 
 formed in the manner required by law, in the absence of evidence to 
 the contrary.^" 
 
 § 517 (529). Same — In actions on stock subscriptions and other 
 actions. — In an action where the books of a corporation were used 
 to prove that the defendant was a stockholder, the supreme court of 
 
 16 25 and 26 Vict. ch. 89 § 67; 33 and 34 Vict. ch. 75 § 30; 8 and 9 Vict, 
 ch. 16 § 28. Tayl. Ev. (10th Ed.) § 1781. See note, 13 Am. St. Rep. 550. 
 
 16 Trumbull v. Payson, 95 TJ. S. 421; Grant v. Henry Clay Coal Co., 80 
 Pa. St. 208; Penobscot Ry. Co. v. Dunn, 39 Me. 587; Ryder v. Alton Ry. 
 Co., 13 111. 516; Duke v. Cahawba Nav. Co., 10 Ala. 82, 44 Am. Dec. 472; 
 Hall V. Carey, 5 Ga. 239; Wood v. Jefferson Bank, 9 Cow. 194; First 
 Baptist Church v. Harper, 191 Mass. 196, 77 N. E. 778. Morawetz, Priv. 
 Corp. § 75. 
 
 I'Peake v. Wabash Ry. Co., 18 111. 88; Trumbull v. Payson, 95 U. S. 
 421; Rockwell Co. v. Van Ness, 2 Cranch, C. C. 449; Mudget v. Horrell, 
 33 Cal. 25; Coffin v. Collins, 17 Me. 440; Hammond v. Staus, 53 Md. 1; 
 Pittsburg Ry. Co. v. Applegate, 21 W. Va. 172; Lewis' Adm'r v. Glenn 
 (Va.), 6 S. E. 866; South Branch Ry. Co. v. Long's Adm'r (W. Va.), 27 
 S. E. 297. See next section. 
 
 isBavington v. Pittsburg Ry. Co., 34 Pa. St. 358; White Mts. Ry. Co. v. 
 Eastman, 34 N. H. 124. 
 
 i» Com. T. Woelper, 3 Serg. & R. (Pa.) 29, 8 Am. Dec. 628. 
 
 20 See § 55 supra. Thomp. Corp. Ch. 30. 
 
654 THE LAW Of evidbncb. § 517 
 
 the United States held that where the name of an individual appears 
 on the stock book of a corporation, as a stockholder, the prima facie 
 presumption is that he is the owner of the stock, in a case where 
 there is nothing to rebut that presumption ; and in an action against 
 him as a stockholder, the burden of proving that he is not a stock- 
 holder, or of rebutting that presumption is cast upon the defend- 
 ant.^^ Referring to the rule that, in cases of this character, books 
 of the company are admissible in its own behalf, Mr. Morawetz, said: 
 "While the rule stated in the preceding section appears to be well 
 established by authority, it is difficult to support it by any principle 
 of the common law. The stock-books of a corporation are undoubt- 
 edly evidence against it, as admissions ; but they cannot be admitted 
 on this ground for the company, against a person who denies that 
 he is a shareholder.")?^ Although the books of a corporation may- 
 be received to prove the acceptance of its charter, its organization, 
 the election of officers, the holding of meetings, the adoption of reso- 
 lutions and other similar corporate acts, yet it is the general rule 
 that they are not admissible in evidence in matters of a private na- 
 ture in support of the claims of the corporation against strangers; '' 
 nor even against a memter who claims adversely, and not under the 
 corporation.^* They are not admissble as evdence of am agreement 
 alleged to have been made 61/ stockholders, as individuals, and not 
 intended to bind the corporation.^'^ It has frequently been declared 
 that the books cannot in general be adduced by the corporation in 
 support of its own claims against a stranger, or to affect strangers 
 in any way.^° But there are numerous cases in which the books of 
 private corporations have been received in their behalf as against 
 strangers. These cases are for the most part those in which it has 
 been necessary to prove some act of the corporation, a record of 
 
 21 TurnbuU v. Payson, 95 U. S. 418. See cases cited last section. 
 
 22 Morawetz, Priv. Corp. § 76; Wheeler v. Walker, 45 N. H. 355; Chase 
 V. Sycamore Ry. Co., 38 111. 215; Fish v. Smith, 73 Conn. 377, 47 Atl. 711, 
 84 Am. St Rep. 161; Carey v. Williams, 79 Fed. 906. For full discussion 
 see, Thomp. Corp. Ch. 30 art. 3. 
 
 23 Attorney Gen. v. Warwick, 4 Russ. 222; Wheeler v. Walker, 45 N. H. 
 355; Chase v. Sycamore Ry Co., 38 111. 215; Union Bank v. Call, 5 Fla. 
 409; Hare v. Waring, 3 M. & W. 362; Cook, Corp. (5th Ed.) § 714; Thomp. 
 Corp. Ch. 30 art. 3. 
 
 2* Wheeler v. Walker, 45 N. H. 355; Trainer v. German Am. Sav., L. and 
 B. Ass'n (111.), 68 N. E. 650. 
 
 26 Black V. Shreve, 13 N. J. Eq. 455; Thomp. Corp. § 1931. 
 
 28 Com. V. Woelper, 3 Serg. & R. (Pa.) 29, 8 Am. Dec. 628; Greenl. Bv. 
 § 493; Whart Ev. S 662. 
 
§ 518 DOOUMENTAET EVIDENCE. 655 
 
 which is required to be kept, either by statute or by the rules of the 
 company. Examples of such records are the minutes of the corpor- 
 ate meetings, at which acts have been performed which are relevant 
 to the issue, the stock books in which subscriptions to stock have 
 been received and those records which are necessarily made in the 
 organization of the corporation.^'' "Whenever the action of a de- 
 liberative body — ^whether that of a corporation at large, its board or 
 a committee — ^is competent to be proved, either in favor of or against 
 the corporation, its officers, members or strangers, the contempora- 
 neous corporate record of their action is competent, though not al- 
 ways alone sufficient.^' It is very commonly the case that the act of 
 a private corporation is not competent, unless shown to have been 
 communicated to the other party; and in such case, the books are 
 competent to show the act, provided other evidence of commu- 
 nication is given to connect. The first question therefore to be de- 
 termined is whether the corporate act is competent under the issue, 
 and between the particular parties ; if so, the minutes may be re- 
 sorted to as evidence of it. ' ' ''^ 
 
 § 518 (530). Same — As admissions — As account books. — ^It is 
 very clear that corporate books and records may be introduced 
 against the corporation as admissions. In like manner they may 
 constitute admissions on the part of the members of the corporation, 
 when the circumstances are such that the members can be deemed 
 conversant with their contents. Thus, the books of a bank showing 
 its account with the president, who had access to such books, may be 
 
 27 Wood V. JefEerson Bank, 9 Cow. 194; Morawetz, Priv. Cotp. § 75, and 
 cases cited. 
 
 28 Bank of V. S. v. Dandridge, 12 Wheat. 64; Grant v. Henry Clay Co., 
 80 Pa. St. 208; Schell t. Second Nat. Bank, 14 Minn. 43; Rayburn v. Elrod, 
 43 Ala. 700; Smith v. Natchez Co., 2 Miss. 479. The act of organizing 
 may be proved by the books in favor of the corporation or creditors, and 
 against members, Ryder v. Alton Ry. Co., 13 111. 516; Penobscot Ry. Co. 
 V. Dunn, 39 Me. 587; Highland T. Co. v. McKean, 10 Johns. 154, 6 Am. 
 Dec. 324; Coffin v. Coffin, 17 Me. 440; and strangers, Duke v. Cahawba Nav. 
 Co., 10 Ala. 82, 44 Am. Dec. 472; and in an action between strangers, one 
 claiming a professional degree may prove it by the books of the college 
 that granted It, Moises v. Thornton, 8 T. R. 303; and one claiming as 
 assignee of a corporation may prove the assignment by the corporate 
 books, Edgerly v.' Emerson, 23 N. H. 555, 55 Am. Dec. 207; on the question 
 of negligence the books of a corporation are competent to prove its own 
 precautions taken by the appointment of a committee, etc., Weightman v. 
 Washington, 1 Black. 39. 
 
 2» Abbott, Trial Bv. p. 46. See full note as to parol evidence of unre- 
 corded acts of corporation, 74 Am. Dec. 310-312. 
 
656 THE LAW OF EVIDENCE. § 518 
 
 admitted in an action against him by a receiver of tHe bank to show 
 the state of accounts with the bank/" or to show, in such action, the 
 proceedings of a' directors' meeting."^ Although in general the books 
 of a corporation are not competent evidence to affect strangers, they 
 are admissible as between the members on proof of knowledge on 
 their part of such entries.'^ But there is no rule of law which 
 charges a stockholder or even a director of a corporation with ac- 
 tual knowledge of its business transactions merely because he is such 
 stockholder or director. Hence the books of account of a corpora- 
 tion are not suffteient alone to establish an. account or claim against 
 such person in an action brought in behalf of a corporation, and a 
 shareholder is not chargeable with constructive notice of resolutions 
 adopted by the board of directors or by provisions in the by-laws 
 regulating the mode in which its business shall be transacted with 
 its customers.'* Although the books and records of a corporation 
 are prima facie evidence against it as admissions, they are not oon- 
 clusive, unless they are the records of its proceedings duly made by 
 the recording officer, or unless some person who has had proper ac- 
 cess to them or knowledge of them has become aware of their con- 
 tents, and has acted upon the faith that they were the records of its 
 proceedings. A corporation is not bound, as to third persons, by 
 interpolations fraudulently inserted in its records, where such third 
 persons have not acted on, or seen or known of the existence of the 
 matters so interpolated and appearing to be recorded. It is not es- 
 topped or bound by such fraudulent addition, unless it is shown to 
 have been negligent in omitting to make due correction of the rec- 
 ords, and that some innocent third person has been misled thereby.'* 
 The books of corporations may be received in evidence for the 
 purpose of showing the state of accounts or a course of dealing, 
 where under similar circumstances the books of individuals would 
 be admitted.'^ Thus, entries in the books of banks showing receipts 
 and payment of money in the regular course of business, as well as 
 
 so Olney v. Chadsey, 7 R. I. 224. See §§ 268, 270 supra. 
 
 ai Olney v. Chadsey, 7 R. I. 224. 
 
 82 Chase v. Sycamore Ry. Co., 38 111. 215; Union Bank v. Call, 5 Pla. 
 409; Cook, Corp. (5th Ed.) § 727. 
 
 ssRudd V. Robinson, li£ N. Y. 113; Pearsall v. Western Union Tel. Co., 
 124 N. Y. 256; Wheeler ■=■ Walker, 45 N. H. 355; Hager v. Cleveland, 36 
 Md. 477; Thomp. Corp. § 1932. 
 
 84Holden v. Hoyt, 134 Mass. 184. 
 
 »» St. Louis Gas Co. v. St. Louis, 86 Mo. 495; Cormac v. Western Bronze 
 Co., 77 Iowa, 32; Ganther v. Jenks, 76 Mich. 510, to show payment of 
 money In behalf of the corporation. 
 
§ 519 DOOUMENTAEY EVIDBNCB. 657 
 
 the state of a despositor's account have been held admissible."* Like 
 other records, the records of a private corporation should be au- 
 thenticated as the corporation books, kept as such; and the proof 
 should show that the entries have been made by the proper officer, 
 or some other person in his necessary absence."' 
 
 § 519(531). Eecording acts — Conveyances — Documents re- 
 corded when admissible. — From an early period in the history of 
 this country statutes have existed in the several states providing for 
 the recording of conveyances of land which had been duly proved 
 or acknowledged; and providing also that such records or copies, 
 duly authenticated, should be as effectual evidence, as if the origi- 
 nal had been produced in court.'* There are now statutes in all 
 the jurisdictions of this country regulating the subject in more or 
 less detail. In some states the statutes are very broad including 
 not only conveyances but all other documents executed or acknowl- 
 edged in such manner as to be entitled to record in the office speci- 
 fied by the statute. The statutes sometimes include documents re- 
 corded in other states or in foreign countries. In a few states' the 
 statute dispenses with proof of execution except in cases where the 
 grantee himself or his heirs seeks to make the proof."' But where 
 there is no such statute, neither the record nor copies thereof are 
 competent evidence ; such records unlike judicial records and official 
 registers are mere copies, and open to the objection that they are not 
 the best evidence. In such cases, the original should be produced, if 
 within the power of the one claiming under it ; in other words, the 
 copy cannot be used without laying the usual foundation for the 
 introduction of secondary evidence.*" Obviously the record or copy 
 is not evidence to prove the original, unless the record is in compli- 
 
 36 Thornton v. Campton, 18 N. H. 20; Wheeler v. Walker, 45 N. H. 355; 
 Union Bank v. Knapp, 3 Pick. 96, 15 Am. Dec. 181; Jordan v. Osgood, 109 
 Mass. 457, 12 Am. Rep. 731; Culver v. Marks, 122 Ind. 554; Goff v. 
 Stoughton Bank, 84 Wis. 369. In dealings with depositors the pass books 
 may be introduced in evidence. First Nat. Bank v. Williams, 4 Ind. App. 
 501; Kux V. Central Savings Bank, 93 Mich. 511. But the bank cannot 
 introduce its ledger in its own behalf. First Nat. Bank v. Williams, 4 Ind. 
 App. 501. 
 
 »7 Highland Co. v. McKean, 10 Johns. 154, 6 Am. Dec. 324; Lowry Nat. 
 Bank v. Fickett (Ga.), 50 S. B. 396. 
 
 88 Van Cortlandt v. Tozer, 17 Wend. 338; Conley v. State, 85 Ga. 348. 
 
 s» See statutes of jurisdiction. 
 
 <o Brooks v. Marbury, 11 Wheat. 78; Den v. Gustin, 12 N. J. L. 42; 
 Rucker v. McNelly, 5 Blackf. (Ind.) 123; Peck v. Clark, 18 Tex. 239. 
 But see Reinboth v. Zerbe Run Co., 29 Pa. St 139; Cranfurd v. State, 6 
 Harr. & J. (Md.) 231. 
 
 43 
 
658 THE LAW OP EVIDENCE. § 520 
 
 ance with the statute. Thus, where the statute makes the ackriowl- 
 edgment of the instrument,*^ or its proof by subscribing witnesses *' 
 a requisite to be complied with before recording, and these condi- 
 tions are wholly omitted, or not substantially complied with, the rec- 
 ord is not evidence.*' 
 
 § 520 (532). Same — ^Requisites — Certificates of acknowledg- 
 ment — Defects in. — Under registry laws of the character now 
 under discussion, the acknowledgment should purport on its face 
 to be taken before an officer having authority to take the same.** 
 Such statement in the certificate of aclmowledgment is prima facie 
 evidence that he is such an officer. *° Although the statutes relating 
 to the recording of instruments must be substantially complied with 
 before the record or copy can be admitted as evidence, yet certifi- 
 cates of acknowledgment are to be liberally construed, and sustained 
 if possible by fair legal intendment. This is especially true as to 
 forms of acTmowledgments which have been long in use, and on 
 which the validity of titles depends.*" In some eases, words omitted 
 from the acknowledgment by mistake, have been supplied by refer- 
 ence to the body of the deed ■" and in other cases, where the officer's 
 
 *i Johnston v. Haines, 2 Ohio, 55; Hall v. Gittings, 2 Harr. & J. .(Md.) 
 380; Hayden v. Westcott, 11 Conn. 129; Jackson v. Gould, 7 Wend. 364; 
 Krueger v. Walker, 80 Iowa, 733. See § 537 infra. 
 
 •*2Pidge V. Tyler, 4 Mass. 541; Maxwell v. Light, 1 Call (Va.) 117. 
 
 *s The same is true if the acknowledgment is taken after the time 
 allowed by law, Hog v. Perry, 1 Litt. (Ky.) 171; Womack v. Hughes, Litt. 
 Sel. Cas. (Ky.) 292; Cunningham v. Buckingham, 1 Ohio, 264; Shields v. 
 Buchanan, 2 Yeates (Pa.) 219; or before an officer having no authority, 
 Helster v. Fortner, 2 Binn. (Pa.) 40, 4 Am. Dec. 417; Johnston v. Haines, 
 2 Ohio, 55; Connelly v. Bowie, 6 Harr. & J. (Md.) 141; or if no official seal 
 is affixed, when this Is required by the statute. Miller v. Henshaw, 4 Dana 
 (Ky.) 325; or if the record is not recorded, in the county or the office 
 required by law, Jackson v. Rice, 3 Wend. 180, 20 Am. Dec. 683; or if the 
 instrument is not of the class included in the registry laws. Miller v. Holt, 
 1 Tenn. Ill; Cheney v. Watkins, 1 Harr. & J. (Md.) 527, 2 Am. Dec. 530; 
 Dick v. Balch, 8 Peters, 30; where the acknowledgment Is not according 
 to law, the record is inadmissible, nor can it be remedied by proof of a 
 custom of the recorder's office to record deeds without recording the 
 certificate, Velott v. Lewis, 102 Pa. St. 326. 
 
 ** Downing v. Gallagher, 2 Serg. & R. (Pa.) 455; Shield v. Buchanan, 2 
 Yeates (Pa.) 219. 
 
 45Rhoadea v. Selin, 4 Wash. C. C. 715; Willlnk v. Miles, 1 Peters, C. C. 
 429; Johnston v. Haines, 2 Ohio, 55. 
 
 *8 Hayden v. Westcott, 11 Conn. 129; Jackson v. Gumaer, 2 Cow, 552; 
 M'Keen v. Delancy, 5 Cranch, 22; Hosier v. Momsen, 13 Okl. 41, 74 Pac. 
 905; Ford v. Ford, 27 App. D. C. 401, 6 L. R. A. N. S. 442. See § 550 infra. 
 
 *7Fuhrman v. London, 13 Serg. & R. (Pa.) 386, 15 Am. Dec. 608; 
 
§ 521 DOCUMENTARY EVIDENCE. 659 
 
 title was not written out in full, but only indicated by abbreviation, 
 the acknowledgment has been held good ;*^ and in other cases, parol 
 evidence has been received to supply the defect, when there was no 
 designation of the official title.*" Where a discrepancy exists be- 
 tween the date of the deed and the dat'e of the certificate of acknowl- 
 edgment, the latter date must prevail ; and a copy of the record of 
 such deed cannot be objected to on account of such discrepancy."' 
 Under the registry system the due acknowledgment and record of the 
 deed raises a presumption that the deed was duly executed, and that 
 the grantor had sufficient seisin to enable him to convey."^ But the 
 acknowledgment or other proof of a deed, entitling it to registry is 
 an ex parte act, and only prima facie proof of the execution or of 
 the seisin of the parties, and is liable to be rebutted." Thus, it may 
 be shown that an acknowledgment was taken by an officer while out 
 of his jurisdiction,"^ or that the person who made the acknowledg- 
 ment was non compost* 
 
 § 521 (533). Defective records — Evidence for some purposes. — 
 Although an instrument imperfectly acknowledged, or one which is 
 not required by law to be recorded, derives no efficacy from being 
 placed on record, and although the record of such an instrument is 
 not admissible as a record, yet it may be received as a sworn copy 
 constituting secondary evidence, when verified by the testimony of 
 a witness knowing the facts."" So certified or exemplified copies of 
 a record which cannot be found may be used, if the record has been 
 compared with the original."" Such records or copies, though not 
 admissible as records, have been frequently used to prove the origi- 
 nals in connection with other facts and circumstances, generally in 
 those cases where the records were of long standing and other proof 
 was not obtainable, or where they were corroborated by possession of 
 
 Luffborough v. Parker, 12 Serg. & R. (Pa.) 48. As to parol proof of ac- 
 kno-wledgments, see § 490 supra. 
 
 *8 Duval v. Covenhoven, 4 Wend. 561. 
 
 4» Rhoades v. Selln, 4 Wash. C. C. 715. 
 
 BO Buck v. Gage, 27 Neb. 306; Moody v. Hamilton, 22 Fla. 298. 
 
 01 Ward V. Fuller, 15 Pick. 185; Samuels v. Barrowscale, 104 Mass. 207; 
 Clark V. Troy, 20 Cal. 219; Knight v. Lawrence, 19 Colo. 425; Chamberlain 
 T. Showalter, 5 Tex. Civ. App. 226. 
 
 62. Ward V. Puller, 15 Pick, 185; Jackson v. Schoonmaker, 4 Johns. 161. 
 
 63 Jackson v. Calden, 4 Cow. 266; Jackson v. Humphrey, 1 Johns. 498. 
 
 64 Jackson v. Schoonmaker, 4 Johns. 161. As to defective acknowledg- 
 ments, see full note, 108 Am. St. Rep. 525-578. 
 
 66 Winn V. Patterson, 9 Peters, 663. 
 
 «• Jackson v. Rice, 3 Wend. 180, 20 Am. Dec. 683. 
 
660 THE LAW OF EVIDENCE. § 522 
 
 the property in question."'' The mode of authenticating records of 
 deeds and other instruments from other states is discussed else- 
 where.°^ 
 
 § 522 (534). Public documents — Provable by copies — Corporate 
 records. — It is a rule of wicie application that those documents 
 which are public in their nature, whether judicial or non-judicial, 
 which the public has the right to inspect, and which could not, with- 
 out inconvenience to the public interests, be removed from their 
 place of custody, may be proved by copies, exemplified or otherwise 
 duly authenticated.^' It has also been held a test that such copies 
 are not admissible where the law does not require or authorize the 
 recording of the original.'" But in the absence of statutory regula- 
 
 67 Webster v. Harris, 16 Ohio, 490. 
 
 68 See §§ 539 et seq. infra. 
 
 59 Gresley, Ev. 410. A few cases are cited as illustrations. Many 
 statutes will be found, cited in 3 Wig. Ev. §§ 1651, 1680. As to. admis- 
 sibility of copies of records of other states, see full note, 5 L. R. A. N. S. 
 938-984. 
 
 eoFitler v. Shotwell, 7 Watts & S. (Pa.)- 14. The rule has been applied 
 to deeds and similar instruments recorded in the registry authorized by 
 statute, Dick v. Balch, 8 Peters, 30; Morton v. Webster, 2 Allen, 352; 
 VanCortlandt v. Tozer, 17 Wend. 338; Curry v. Raymond, 28 Pa. St. 144; 
 patents for lands issued by the United States, Lane v. Bommelmann, 17 
 111. 95; Barton v. Murrain, 27 Mo. 235, 72 Am. Dec. 259; records in the 
 office of the collector of internal revenue. State v. Loughlin (N. H.), 20 
 Atl. 981; affidavits as to pre-emption rights, on file in the office of 
 the register of the land office. Smith v. Mosier, 5 Blackf. (Ind.) 51; letters 
 of the commissioner of public lands affecting titles, Davis v. Freeland, 
 32 Miss. 645; Darcy v. McCarthy, 35 Kan. 722; other records, required by 
 law to be filed in the general land office. Culver v. Uthe, 133 U. S. 655; 
 Lee V. Getly, 26 111. 76; Harris v. Doe, 4 Blackf. (Ind.) 369; Hardin v. 
 Ho-yo-po-nubby, 27 Miss. 567; Liddon v. Hodnett, 22 Fla. 442; as well as 
 those required to be filed in the state land offices, Franklin v. Woodland, 
 
 14 La. An. 188; Finley v. Woodruff, 8 Ark. 328, by statute; Wray v. 
 Ho-yo-po-nubby, 10 S. & M. (Miss.) 452; Grant v. Levan, 4 Pa. St. 393; Ma- 
 son V. McLaughlin, 16 Tex. 24; Van Sickle v. Cutlett, 75 Tex. 404; grants 
 from a state recorded in the office of the secretary of state, Linning v. Craw- 
 ford, 2 Bailey (S. C.) 296; pardons by the executive. Cox v. Cox, 26 Pa. St. 
 375, 67 Am. Dec. 432; books of the state treasurer to show payment of the 
 state tax, Hodgdon v. Wright, 36 Me. 326; contracts for public works on 
 file with the state auditor, McCoy v. Lightner, 2 Watts. (Pa.) 347; 
 manifests and other records required to be kept at the custom house, 
 United States v. Johns, 4 Dall. (Pa.) 412; White v. Kearney, 2 La. An. 
 639; Sampson v. Noble, 14 La. An. 347; registries of marriages, births and 
 deaths, Lewis v. Marshall, 5 Peters, 470; Jackson v. King, 5 Cow. 237, 
 
 15 Am. Dec. 468; Jackson v. Boneham, 15 Johns. 226; Hyam v. Edwards, 
 1 Dall. (Pa.) 2; records of warrants for calling town meetings, State T. 
 
§ 523 DOCUMENTAEY EVIDENCE. 661 
 
 tions, there is no principle on which copies of records of private 
 corporations axe admissible, unless by reason of some act of the 
 party they may be regarded as admissions."^ 
 
 § 523 (535). Copies of records — Different classes. — It is often 
 necessary to prove original records by copies. Such copies are classi- 
 fied as follows : Exemplifications, or copies verified by the great seal 
 or the seal of the court ; "^ examined or sworn copies, or those copies 
 "proved by oral evidence 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 per- 
 sons, one reading the original and the other the copy. It is not nec- 
 essary that each should alternately read both. " "' Of course the wit- 
 ness must have knowledge that the copy is correct, or if he gives 
 parol evidence of a lost document he must show competent tnowl- 
 edge.°* Office copies are those made by officers entrusted with the 
 original and authorized by law to prepare copies."^ Certified copies 
 are those signed and certified as true by the officers to whose custody 
 the original is entrusted."" Exemplifications are proved by their 
 own production, since the courts take judicial notice of the seal."'' 
 ' ' They are deemed of higher credit than examined copies, being pre- 
 sumed to have undergone a more critical examination ' ' "' Although 
 certified copies are official and more often used they are of no higher 
 grade than sworn copies."* Copies of certified or examined copies 
 are not clearly admissible,'" unless the original and first copy are 
 
 Bailey, 21 Me. 62; records of the acts of towns and town officers, Jay v. 
 Carthage, 48 Me. 353; Willey v. Portsmouth, 35 N. H. 303; and of the 
 by-laws of cities and towns. Com. v. Chase, 6 Cush. 248 (but see, Lumbard 
 V. Aldrich, 8 N. H. 31, 28 Am. Dec. 381; Moor v. Newfield, 4 Me. 44). 
 
 81 Atlantic Ins. Co. v. Sanders, 36 N. H. 252. 
 
 62 Gilbert, Ev. 19. 
 
 83 Steph. Bv. art. 75, Greenl. Ev. § 508. Hill v. Packard, 5 Wend. 375, 
 387; Krise v. Neason, 66 Pa. St. 253; Kellogg v. Kellogg, 6 Barb. (N. Y.) 
 116. But see. Rice v. Rice (N. J. Eq.), 25 Atl. 321. 
 
 8*Edisto Phos. Co. v. Stanford, 112 Ala. 493, 20 So. 613; Propst v. 
 Mathis, 115 N. C. 526, 20 S. E. 710; Re Gazett, 35 Minn. 532, 29 N. W. 
 347. 
 
 65 Greenl. Ev. § 507; Best, Ev. (10th Ed.) § 486. See § 622 infra. As to 
 press copies, Ford v. Cunningham, 87 Cal. 209, 25 Pac. 403. 
 
 68 Best, Ev. (10th Ed.) § 486. 
 67 See § 111 supra. ' 
 
 88Tayl. Ev. (10th Ed.) § 1537. 
 
 69 Union R. & T. Co. v. Shacklet, 119 111. 232, 10 N. E. 896; State v. 
 Lynde, 77 Me. 561, 1 Atl. 687; State v. Collins, 68 N. H. 299, 44 Atl. 495; 
 Otto v. Trump, 115 Pa. 425, 8 Atl. 786. 
 
 TO Goodrich v. Weston, 102 Mass. 362, 3 Am. Rep. 469; Lasater v. 
 
662 THE LAW OF EVIDENCE. § 524 
 
 lost or inaccessible, and it is necessary to produce secondary evi- 
 deneeJ'- 
 
 § 524(536). Examined and certified copies as evidence. — Mr. 
 Stephen lays down the rale that "the contents of any public docu- 
 ment whatever may in ail cases be proved by an examined copy." '^ 
 This is the mode most commonly adopted ia England. But, 
 although such copies are used in the United S|tates, the usual 
 method of proof, when copies are used, is by exemplified or certified 
 copies. If an examined copy is used, it should be an accurate and 
 complete copy ; and it is not admissible if abbreviations are used in 
 the copy for words written out at length in the original.''^ Office 
 copies are seldom used in this country, and have been for the most 
 part superseded by exemplified and certified copies. The copies now 
 most frequently used in the United States are certified copies. In 
 most of the states there are statutes providing for the introduction 
 of certified copies of judicial and non-judicial records.'* These stat- 
 utes are in some states very general and sweeping, admitting certi- 
 fied copies by every public officer having custody of any public writ- 
 ing which a citizen has a right to inspect. In others there are gen- 
 eral statutes and also special statutes covering in great and unneces- 
 sary detail almost every kind of public writing as well as large 
 classes of documents of private corporations. Where copies of this 
 class are offered it is clear that the mode of authentication provided 
 by the statute must ie substantially followed, or the copy is inadmis- 
 sible ; '"^ for such certificates are evidence, only so far as they are 
 made so by statute.'" Thus, where a statute provided, as the mode 
 of certifying, that "such copy shall be certified by the officer, in 
 whose custody the same is required by law to be, to have been com- 
 pared by him with the original, and to be a correct transcript there- 
 from," it was held that a single certificate of the officer annexed to 
 
 Van Hook, 77 Tex. 650, 14 S. W. 270; State v. Cohen, 108 la. 208, 78 N. W. 
 857, 75 Am. St. Rep. 213. 
 
 71 Com. v. Corkery, 175 Mass. 460, 56 N. E. 711; Cornett v. Williams, 20 
 Wall. 226; Knoxville Nursery Co. v. Com., 108 Ky. 6, 55 S. W. 691. 
 
 '2 Steph. Bv. art. 75. 
 
 73 R. v. Christian, Car. & M. 388. 
 
 7* See statutes of the jurisdiction. In the absence of statute it may be 
 presumed, that clerlis of courts of record have authority to furnish 
 certified copies, Gunn v. Pealies, 36 Minn. 177. 
 
 78 Greene v. Durtee, 6 Cush. 362; People v. Toby (N. Y.), 47 N. B. 800. 
 
 78 Smith v. United States, 5 Peters, 292; Smith v. Brannan, 13 Cal. 
 107; Brown v. Cady, 11 Mich. 535; Maxwell v. Light, 1 Call (Va.) 117; 
 Byers v. Wallace, 87 Tex. 503; Dixon v. Thatcher, 14 Ark. 14; Billlngsley 
 y. Hiles, 6 S. D. 445, 61 N. W. 687. 
 
§ 525 DOCUMBNTAEY EVIDENCE. 663 
 
 several deeds was insufficient, and that each document should be au- 
 thenticated.''^ So a copy verified by comparison with a certified 
 copy has been held inadmissible.''^ It was formerly held and in 
 some jurisdictions is still held, that an officer has no implied author- 
 ity to make certified copies.^^ But the modem tendency is toward 
 the rule that a copy certified by a public officer whose duty it is to 
 keep the original should be received.*" 
 
 § 525 (537). Effect of copies as evidence — Cannot exclude origi- 
 nals — By whom certified. — ^Although examined or exemplified 
 copies or, under some statutes, certified copies of certain records are 
 competent evidence, this mode of proof is not exclusive. In other 
 words, in such cases either the original or the authenticated copy 
 may be used. Although the courts may not compel the production 
 of public records as evidence, such records, when produced, are at 
 least of as high a nature as copies. No authentication can make 
 the copy of higher dignity than the original.*^ Nor do statutes en- 
 ' abling parties to use copies interfere with or exclude the common 
 law rules which allow the execution and contents of documents to 
 be shown by other kinds of secondary evidence.^'' The certificate of 
 a copy from an official record must be hy the officer having the rec- 
 ord in charge and authorized to certify. A copy certified by a 
 stranger, or by an officer, wholly unauthorized, cannot be received.*' 
 To certify copies is, however, within the ordinary powers of a duly 
 
 ■f Newell V. Smith, 38 Wis. 39. Excluded if the officer fails to state that 
 the copy is a correct one, Naanes v. State, 143 Ind. 299, 42 N. B. 609. 
 
 78 Lasater v. Van Hook, 77 Tex. 650. 
 
 ^» State v. Cake, 24 N. J. L. 516; State v. Board, 57 N. J. L. 313, 
 3u Atl. 581. 
 
 sou. S. V. Percheman, 7 Pet. 51; Banking House v. Durr, 139 Mo. 660, 
 41 S. "W. 227; Barcello v. Hapgood, 118 N. C. 712, 24 S. E. 124. 
 
 siGoodwyn v. Goodwyn, 25 Ga. 203; Davis v. City of Clinton (Ky.), 
 79 S. W. 259; Vose v. Manley, 19 Me. 331; Day v. Moore, 13 Gray, 522; 
 Sheehan v. Davis, 17 Ohio St. 571; Miller v. Hale, 26 Pa. St. 432; Brush 
 V. Taggart, 7 Johns. (N. Y.) 19; Otto v. Trump, 115 Pa. St. 425; State v. 
 Voight, 90 N. C. 471; Smith v. Veysey, 30 Wash. 18, 70 Pac. 94. This 
 rule has been applied to letters of administration and letters testa- 
 mentary. Green v. Durfee, 6 Cush. 362; records of suits, Lawson v. Orear, 
 4 Ala. 156; records of deeds, Davis v. City of Clinton (Ky.), 79 S. W. 
 259; writs and executions. Day v. Moore, 13 Gray, 522; orders of court, 
 Sheehan v. Davis, 17 Ohio St. 571; and of courts martial. Brooks v. 
 Daniels, 22 Pick. 498; as well as an insolvent's discharge. Green v. Durfee, 
 6 Cush. 362. 
 
 82 United States v. Laub, 12 Peters, 1; Loftin v. Nalty, 24 Tex. 565; 
 Green v. Durfee, 6 Cush. 362. 
 
 88 Woods V. Bank, 14 N. H. 101; State v. Cake. 24 N. J. L. 616; Devling 
 v. Williamson. 9 Watts (Pa.) 311. 
 
664 THE liAW OP EVIDENCE. § 526 
 
 appointed deputy of the officer named by law to keep the charge of 
 a record ; and a copy certified by a deputy acting for his principal 
 is good.** On principles already stated, a certifying officer has no 
 authority to state facts explanatory of or collateral to the record 
 certified by him, or mere conclusions, not required to be certified,*' 
 or facts as to which his statements are hearsay. ^^ When copies of 
 records are admissible in evidence, the handwriting of the record- 
 ing or attesting officer is prima facie presumed to be genuine.*' The 
 seal on the original instrument need not be produced. The letters 
 "ss" or other indication that there is a seal are sufficient.*' It has 
 frequently been held that the certificate affords at least prima facie 
 evidence of the genuineness of the original document thus certified 
 to.*» 
 
 § 526 (538.) Proof of executi'on of documents. — The general 
 rule in respect to the proof of private writings is that, before they 
 are admissible in evidence, their execution must be proved."" If the 
 instrument is not attested iy a stiiscriM^ig witness, its execution is 
 sufficiently proven to warrant its introduction by proof of the sig- 
 nature. It is then presumed that the date is correct and the docu- 
 ment genuine,"'^ although the other party is not concluded thereby."' 
 Where there is prima facie proof of execution, the document must 
 go to the jury, for the court will not allow the other party to intro- 
 
 81 Hague V. Porter, 45 111. 318; Greason v. Davis, 9 Iowa, 219; Trlplett 
 V. Gill, 7 J. J. Marsh. (Ky.), 438. 
 
 86 Brown v. Galloway, Peters C. C. 291; Stewart v. Allison, 6 Serg. & R. 
 (Pa.), 324, 9 Am. Dec. 433; Martin v. Anderson,, 21 Ga. 301; Littleton v. 
 Christy, 11 Mo. 390; Lavin v. Mutual Aid Society, 74 Wis. 349; Lamar v. 
 Pearre, 90 Ga. 377; Fisher v. UUman, 3 Tex. Civ. App. 322. 
 
 8W Garwood v. Dennis, 4 Binn. (Pa.) 314. 
 
 87 Com. v. Chase, 6 Gush. 248. 
 
 ssHolbrook v. Nichol, 36 111. 161; State v. Bailey, 7 la. 390; Heddon v. 
 Overton, 4 Bibb (Ky.) 406; Wilson v. Braden (W. Va.), 49 S. E. 409. 
 
 89Krom V. Vermillion, 143 Ind. 75, 41 N. E. 539; Webb v. Holt, 113 
 Mich. 338, 71 N. W. 637; Griffith v. Richmond, 126 N. C. 377, 35 S. E. 620. 
 
 80 Linn v. Ross, 16 N. J. L. 55; Francis v. Hazlerig, 1 A. K. Marsh. (Ky), 
 93; Dunlap v. Glidden, 31 Me. 510; Williams v. Keyser, 11 Fla. 234, 89 Am. 
 Dec. 243; Stamper v. Griffin, 20 Ga. 312, 65 Am. Dec. 628; Equitable- 
 Endowment Ass'n V. Fisher, 71 Md. 430; Baker v. Massengale, 83 Ga. 137; 
 Robertson v. Du Bose, 76 Tex. 1. In some states, however, such prelim- 
 inary proof of execution is not required unless the execution is denied. 
 Mobile & M. Ry. Co. v. Gilmer, 85 Ala. 422; Belton v. Smith, 45 Ind. 291. 
 
 siPullen V. Hutchinson, 25 Me. 249; Glenn v. Grover, 3 Md. 212; Savery 
 v. Browning, 18 Iowa, 246. 
 
 »2Pressly v. Hunter, 1 Spear (S. C), 133. 
 
§ 527 DOCUMENTARY EVIDEaTCB. 665 
 
 duce counter evidence before the instrument is read, and then ex- 
 clude it from the jury.'' Where a deed or other instrument is in- 
 troduced only to prove some collateral fact, slight proof of execution 
 is sufficient;'* and in such cases the subscribing witness need not 
 be called ; the proof may be made by means of any other competent 
 testimony.*" If the instrument purports to be executed by an agent 
 or attorney in fact, and the execution is denied, the authority must 
 be proved. °° Although instruments cannot be read without some 
 proof of authenticity, such proof may consist of facts and circum- 
 stances from which the jury may infer the execution ; " in other 
 words, the execution may be proved by circumstantial evidence,^' or 
 by admissions; °° and the document may furnish internal evidence 
 of the source from which it was derived.^ It is a general rule that 
 the execution of the instruments by all the parties thereto, should be 
 proved, but there are instances in which it has been held sufficient to 
 prove the execution hy those sought to be charged.^ 
 
 § 527 (539, 540) . Proof of attested documents — Attesting wit- 
 nesses to be called. — ^It is an ancient rule of the law that, where 
 an instrument is attested, the attesting or subscribing witness should 
 be produced at the trial to prove the execution.' Among the rea- 
 
 »8 Flournoy v. Warden, 17 Mo. 435. 
 
 »* Means v. Means, 7 Rich. L. (S. C), 533. 
 
 ee Kitchen v. Smith, 101 Pa. St. 452. 
 
 »8Bliott V. Pearce, 20 Ark. 508; James v. Gordon, 1 Wash. 333; Camall 
 V. Duval, 22 Ark. 136; Hughes v. Holliday, 3 G. Greene (Iowa) 30; 
 Yarborough v. Beard, 1 Tayl. (N. C.) 25; Darst v. Doom, 38 111. App. 397. 
 
 "Siegfried v. Levan, 6 Serg. & R. (Pa.) 308, 9 Am. Dec. 427; Stahl v. 
 Berger, 10 Serg. & R. (Pa.) 170, 13 Am. Dec. 666; Piggott v. Halloway, 
 1 Binn, (Pa.) 442; Dodge v. Bank of Kentucky, 2 A. K. Marsh. (Ky.) 
 616; Curtis v. Hall, 4 N. J. L. 148. 
 
 OS See cases last cited. 
 
 »» Wright V. Wood, 23 Pa. St. 120; Powell v. Adams, 9 Mo. 758. 
 
 1 Singleton v. Bremer, 1 Harp. (S. C.) 210. 
 
 2 Conrad v. Atlantic Ins. Co., 1 Peters, 386; Kingwood v. Bethlehem, 
 13 N. J. L. 221; St. John v. Kidd, 26 Cal. 263. 
 
 sMcPherson v. Rathbone, 11 Wend. 96; Willoughby v. Carlton, 9 Johns. 
 136; Jackson v. Gager, 5 Cow. 383; Jackson v. Waldron, 13 Wend. 178; 
 Whltaker v. Salisbury, 15 Pick, 534; Petit v. McAdam, 2 Serg. & R. (Pa.) 
 420; Clarke v. Courtney, 5 Peters, 319; Brock v. Saxton, 5 Ark. 708; 
 Stevens v. Irwin, 12 Cal. 306; Mallet v. Mallet, 1 Root (Conn.) 501; Handy 
 V. State, 7 Harr. & J. (Md.) 42; Glasgow v. Ridgely, 11 Mo. 34; Foye v. 
 Lelghton, 24 N. H. 29; Colies v. Vannote, 16 N. J. L. 324; Hudson v. Puett, 
 86 Ga. 341; International & G. N. Ry. Co. v. McRae, 82 Tex. 614; Richmond 
 & D. Ry. Co. V. Jones, 92 Ala. 218; Coody v. Gress Lumber Co., 82 Ga. 
 793; Greenl. Ey. § 569. See full note, 35 L. R. A. 321-351. 
 
666 - THE LAW OP EVIDENCB, § 527 
 
 sons that have been given as the foundation of this rule are that the 
 subscribing witnesses have been agreed upon by the parties as the 
 persons first to be called upon for proof of the execution of the in- 
 strument ; * that such witnesses are presumed to have better knowl- 
 edge as to the facts than other persons," and that some fact may be 
 known to the subscribing witness, not within the knowledge or recol- 
 lection of the party." The rule at common law is of very wide ap- 
 plication and relates not only to deeds and similar instruments of 
 a formal character, but generally to written instruments having sub- 
 scribing witnesses^ In England the rule has been so changed as 
 to apply only to those documents required by law to he attested; and 
 unless the document comes within this description, although it is in 
 
 1 Henry v. Bisliop, 2 Wend. 576; Clark v. Saunderson, 3 Binn. (Pa.) 194, 
 5 Am. Dec. 368; McMurtry v. Frank, 4 Mon. (Ky.) 39; Handy v. State, 7 
 Harr. & J. (Md.) 49; Kinney v. Flynn, 2 R. I. 319; Jones v. Phelps, S 
 Mich. 218; Hollenbach v. Fleming, 6 Hill, 303; Melcher v. Flanders, 40 N. 
 H. 139; Davis v. Alston, 61 Ga. 225; Barry v. Ryan, 4 Gray, 523; Chaplain 
 V. Briscoe, 19 Miss. 372. 
 
 6 McMurtry v. Frank, 4 Mon. (Ky.) 39; Handy v. State, 7 Harr. & J. 
 (Md.) 48; McPherson v. Rathbone, 11 Wend. 96; Whittmore v. Brooks, 
 1 Me. 57; Cook v. Woodrow, 5 Cranch, 13. 
 
 «Call V. Dunning, 4 East, 53; Manners v. Postan, 4 Esp. 239. For cases 
 criticising these reasons see, Hall & Phelps, 2 Johns. 451; Garratt v. 
 Hanshue, 53 Oh. 482, 42 N. E. 256; Swancey v. Parrish, 62 S. C. 240, 40 S. E. 
 554. 
 
 7 As notices to quit. Doe v. Durnford, 2 Maule & S. 62; releases. Citizens 
 Bank V. Nantucket Steamboat Co., 2 Story, 16; Barry v. Ryan, 4 Gray, 523; 
 contracts sealed or unsealed, Bennet v. Robinson, 3 Stew. & P. (Ala.), 
 227; Henry v. Bishop, 2 Wend. 575; Trammell v. Roberts, 1 McMull. 
 (S. C.) 305; King v. Smith, 21 Barb. (N. Y.) 158; receipts, McMahon 
 V. McGrady, 5 Serg. & R. (Pa.) 314; and leases, Barry v. Ryan, 4 Gray, 523; 
 mortgage of personalty, Jones v. State, 113 Ala. 95, 21 So. 229; chattel 
 mortgage required by statute to be attested, Brynjolfson v. Elev. Co., 6 N. 
 D. 450, 71 N. W. 555, 66 Am. St. Rep. 612; agency contract, Hannan v. 
 Greenfield, 36 Or. 97, 58 Pac. 888. This rule is the same though the 
 party has admitted the execution of the instrument in question; Smith 
 V. Carolin, 1 Cranch C. C. 99; Turner v. Green, 2 Cranch C. C. 202; 
 Pox v. Reil, 3 Johns. 477; Shaver v. Ehle, 16 Johns. 201; Zerby v. 
 Wilson, 3 Ohio, 42, 17 Am. Dec. 577; Kinney v. Flynn, 2 R. I. 319 
 (but see, Blake v. Sawin, 10 Allen, 340). Parties may waive such 
 proof by express admissions in the pleadings, Thorpe v. Keokuk Coal 
 Co., 48 N. Y. 254; Smith v. Gale, 144 U. S. 509; or by failing in the answer 
 to deny the allegations as to execution, Robert v. Good, 36 N. Y. 408. This 
 rule applies if the witnesses are known where the document has been 
 turned. Gillies v. Smithen, 2 Stark, 528; or cancelled, Breton v. Cope, 
 Peake, 43; or lost, Hewitt v. Morris, 5 Jones & Sp. (N. Y.) 18; Kelsey v. 
 Hammer, 18 Conn. 311; Porter v. Wilson, 13 Pa. St. 641; and although the 
 
§ 528 DOCUMENTARY EVIDENCB. 667 
 
 fact attested, it may be proved as if unattested.' In this country 
 similar statutes have been enacted in some states." Of course spe- 
 cial provisions apply to wills, and statutes on the subject exist in 
 most states. "An attesting or subscribing witness is one who was 
 present when the instrument was executed, and who, at that time, 
 at the request and with the assent of the party, subscribed his name 
 to it as a witness of the execution. If his name is siglied, not by 
 himself, but by the party, it is no attestation. Neither is it such if, 
 though present at the execution, he did not subscribe the instrument 
 at that time, but did it afterwards, and without request, or by the 
 fraudulent procurement of the other party. But it is not necessary 
 that he should have actually seen the party sign, or have been 
 present at the very moment of signing ; for if he is called in imme- 
 diately afterwards, and the party ackaowledges his signature to the 
 witness, and requests him to attest it, this will be deemed part of the 
 transaction, and therefore a sufficient attestation."^* 
 
 § 528 (541). Exceptions to the general rule — Absence or dis- 
 ability of witnesses. — Although the rule under discussion was de- 
 clared by Lord EUenborough to be "as fixed, formal and universal 
 as any that can be stated in a court of justice, ' ' ^' yet it has several 
 important qualifications or exceptions. The rule does not apply if 
 the subscribing witness is dead,^^ or can not be f ound,^' or is without 
 the jurisdiction of the eourt,^* or is insane,^' or incompetent*' or 
 
 subscribing witness is blind, Cronk v. Frith, 9 Car. & P. 197; or the person 
 who executed the document is prepared to testify to his own execution of 
 it, R. V. Harringworth, 4 Maule & S. 350. 
 
 8 17 & 18 Vict. ch. 125 § 26; 28 & 29 Vict. ch. 18 §§ 1, 7; Steph. Ev. arts. 
 66, 69. 
 
 8 Laws 1883 N. Y. ch. 195; Gen Laws R. I. (1896) ch. 244 § 43. 
 
 loGreenl. Ev. § 569a; Hollenbach v. Fleming, 6 Hill, 303; Cussons v. 
 Skinner, 11 M. & W. 168. 
 
 11 R. V. Harrington, 4 Maule & S. 352. 
 
 12 Adam v. Kerr, 1 Bos. & P. 360; Mott v. Doughty, 1 Johns. Cas. (N. Y.) 
 230; Mardis v. Shackleford, 4 Ala. 493; Waldo v. Russell, 5 Mo. 387 
 McGowan v. Laughlan, 12 La. An. 242; Howard v. Snelling, 32 Ga. 195 
 Fitzhugh V. Crogiian, 2 J. J. Marsh. (Ky.) 429, 19 Am. Dec: 139 
 Armstrong v. Den, 15 N. J. L. 186. 
 
 13 Falmouth v. Roberts, 9 M. & W. 469; Parker v. Hoskins, 2 Taunt. 223 
 Burt V. Walker, 4 Barn. & Aid. 697; Clark v. Courtney, 5 Peters, 319 
 Spring V. Insurance Co., 8 Wheat. 269; Henry v. Bishop, 2 Wend. 575 
 Jackson v. Chamberlain, 8 Wend. 620; Clark v. Sanderson, 3 Binn. (Pa.) 
 192, 5 Am. Dec. 368; Gallagher v. London Assurance Corps., 149 Pa. St. 25. 
 
 14 Prince v. Blackburn, 2 East, 250; Glubb v. Edwards, 2 Moody & Rob. 
 300; Smith v. Keyser, 115 Ala.-455, 22 So. 149; Beattie v. Hilliard, 55 N. H. 
 
668 THE LAW OP EVIDENCE. § 528 
 
 otherwise incapable of being produced as a witness.^^ Nor does it 
 apply if the instrument is lost, and the name of the subscribing Tsrit- 
 ness is unknown/^ or if the witness is unable to remember the fact 
 or denies that he was present/" Although it has been held in many- 
 cases that secondary evidence is admissible where the subscribing 
 witness is proved to reside beyond the jurisdiction of the court/" yet 
 the mere temporary absence of the witness beyond the jurisdiction 
 of the court,^^ or his absence in a distant part of the state are not 
 sufficient.^^ The absence of the witness is sufficiently accounted for, 
 if, after diligent inquiry, he can not be found.^^ But in such case 
 inquiry should be made in due season ^ and in good faith at the 
 place of residence of the witness, if known, and of the persons most 
 likely to know of his whereabouts.^' The answers to such inquiries 
 are treated as part of the res gestae, and may be, given in evidence.^' 
 
 428; Valentine v. Piper, 22 Pick. 85, 33 Am. Dec. 715 and note; Den v. 
 Van Houten, 10 N. J. L. 270; Dorsey v. Smith, 7 Harr. & J. (Md.) 345; 
 Richards v. Skiff, 8 Ohio St. 586; Balllnger v. Davis, 29 Iowa, 512; Selby 
 V. Clark, 4 Hawks (N. C.) 265; Clardy v. Richardson, 24 Mo. 295;. Teal v. 
 Sevier, 26 Tex. 516; Tatum v. Mohr, 21 Ark. 349; Mariner v. Saunders, 10 
 111. 113; Gould V. Kelley, 16 N. H. 551; McMinn v. Whelan, 27 Cal. 300; 
 Gordon v. Miller, 1 Ind. 531; Troedor v. Hyams, 153 Mass. 536; Swancey 
 V. Parrish, 62 S. C. 240, 40 S. E. 554. See note, 35 L. R. A. 325. 
 
 IB Bennett v. Taylor, 9 Ves. 381; Currie v. Child, 3 Camp. 283; Neely v. 
 Neely, 17 Pa. St. 227. See note, 35 L. R. A. 336. 
 
 18 Goss V. Tracy, 1 P. Wms. 289; Haynes v. Rutter, 24 Pick, 242; Packard 
 v. Dunsmore, 11 Cush. 283; Hamilton v. Marsden, 6 Binn. (Pa.) 45; Keefer 
 V. Zimmerman, 22 Md. 274; Robertson v. Allen, 16 Ala. 106; Tinnin v. 
 Price, 31 Miss. 422. 
 
 17 Clarke v. Courtney, 5 Peters, 343; Steph. Ev. art. 66. See note, 35 
 L. R. A. 326 et seq. 
 
 IS Hewitt v. Morris, 5 Jones & Sp. (N. Y.) 18; Kelsey V. Hammer, 18 
 Conn. 311; Porter v. "Wilson, 13 Pa. St. 641. 
 
 18 Dewey v. Dewey, 1 Met. 349; Whitaker v. Salisbury, 15 Pick. 534; 
 Wynn v. Small, 102 N. C. 133. 
 
 20 See cases cited jinder note 14 supra. 
 
 21 Mills V. Twist, 8 Johns. 121. 
 
 22McCord V. Johnson, 4 Bibb (Ky.) 531; Tarns v. Hitner, 9 Pa. St 441; 
 Jackson v. Root, 18 Johns. 60. 
 
 23 Clark V. Sanderson, 3 Binn. (Pa.) 192, 5 Am. Dec. 368; Jackson v. 
 Cody, 9 Cow. 140; Whittemore v. Brooks, 1 Me. 57; Jackson v. Chamber- 
 Iain, 8 Wend. 620. 
 
 24 Mills V. Twist, 8 Johns. 121. 
 
 26 Jackson v. Waldron, 13 Wend. 199 ; Clark v. Sanderson, 3 Binn. (Pa.) 
 192, 5 Am. Dec. 308; Greenl. Ev. § 574. 
 26Greenl. Ev. § 574. 
 
§ 529 DOCUMENTABY EVIDENCE. 669 
 
 § 529 (542). Diligence necessary, if witness is absent. — What 
 is due diligence must, of course, depend somewhat upon the circum- 
 stances of each case. The proof should show satisfactorily that a 
 reasonable, honest and diligent inquiry has been made. After such 
 proof is given, the decision of the question depends to a considerable 
 extent upon the sound discretion of the court." Parties will be re- 
 quired to use a less degree of effort to produce the subscribing wit- 
 ness, if the proof shows that the witness is seeking to avoid appear- 
 ing.''^ If it is shown that there is collusion between the witness and 
 the adverse party, or that such party has prevented the attendance 
 of the witness, the rule will not be enforced; "' nor is the rule en- 
 forced where the one party relies upon the document which is wrong- 
 fully withheld hy the other.'"' If the absent witness is out of the 
 state, it is not necessary to take his deposition, for parties are not 
 bound to send original documents out of the state to be proved by 
 the subsei-ibing witnesses.^^ If the document was executed outside 
 the state, the presumption is that the subscribing witnesses are non- 
 residents, and the rule does not apply ; '^ and in such cases it is suffi- 
 cient to prove the handwriting of the party to the insDrument.'" 
 "An instrument, purporting to be attested by a subscribing witness, 
 may be proved as if there were no subscribing witnesses, where the 
 name of a fictitious person is inserted as the name of the attesting 
 witness, or where the person who has put his name as attesting wit- 
 ness did so without the knowledge or consent of the parties, or where 
 the attesting witness, on being called, denies having any knowledge 
 of the execution. ' ' ^* 
 
 27 Jackson v. Burton, 11 Jolins. 65; Jackson v. Waldron, 13 Wend. 199; 
 Belletreau v. Jackson, 11 Wend. 110; Troeder v. Hyams, 153 Mass. 536. 
 Cases illustrating what is due diligence, Cunliffe v. Sefton, 2 Bast,' 183; 
 Crosby v. Percy, 1 Taunt. 364; Dudley v. Sumner, 5 Mass. 444; Morgan 
 V. Morgan, 9 Bing. 359; Evans v. Curtis, 2 Car. & P. 296; Spring v. South 
 Carolina Ins. Co., 8 Wheat. 268; Holman v. Bank of Norfolk, 12 Ala. 369, 
 witness never heard of in locality; Nicks v. Rector, 4 Ark. 251, four years 
 absence, unheard of. 
 
 28 Warden v.'Fermor, 2 Camp. 282. 
 
 29 Mills v. Twist, 8 Johns. 121. 
 
 30 Davis V. Spooner, 3 Pick. 284. 
 
 31 Clark V. Houghton, 12 Gray, 38; Clark v. Boyd, 2 Ohio, 56. 
 32McMinn v. O'Connor, 27 Cal. 238; Sherman v. Champlain Co., 31 Vt. 
 
 162; Valentine v. Piper, 22 Pick. 85, 33 Am. Dec. 715 and note. 
 • 33McMinn v. Whelan, 27 Cal. 300; Valentine v. Piper, 22 Pick. 85, 33 
 Am. Dec. 715, witness to a deed executed in foreign country. 
 3*2 Phill. Ey. 214; Jackson v. Waldron, 13 Wend. 183; Pelletreau v. 
 
670 THE LAW OF EVIDENCE. § 531 
 
 § 530 (543). Exception where adverse party claims under the 
 document. — ^Another exception to the general rule is that, where 
 the adverse party claims a beneficial interest under the document ' 
 in the same cause, and produces it pursuant to a notice, he practi- 
 cally admits the execution of the instrument, and cannot insist upon 
 proof thereof,'^ as, for example, where both parties claim the same 
 interest under the same deed.^° .The mere fact that the document 
 comes from the possession of the adverse party, under notice to pro- 
 duce, is not enough to dispense with the rule. It is essential that 
 the one producing the paper should claim a beneficial interest under 
 it.^'' Nor can a party take advantage of this exception for the pur- 
 pose of introducing irrelevant testimony ; ^* and, if a party admits 
 on cross-examination that a document under which he claims title 
 is in his possession, the instrument may be ordered to be produced, 
 and put in evidence without calling the attesting witnesses.'" 
 
 § 531 (544). Exception — ^Ancient documents. — Another excep- 
 tion to the general rule requiring the proof of execution of attested 
 instruments by the subscribing witness is that ancient documents, 
 or those thirty years old or more, prove themselves.*" The obvious 
 
 Jackson, 11 Wend. 123; Clark v. Sanderson, 3 Blnn. (Pa.) 192, 5 Am. 
 Dec. 368; Handy v. State, 7 Harr. & J. (Md.) 42; Whlttemore v. Brooks, 
 
 1 Me. 57; Halloway v. Lawrence, 1 Hawks (N. C.) 49; Gilliam v. Perkin- 
 son, 4 Rand. (Va.) 525; Parnsworth v. Briggs, 6 N. H. 561; Bennet v. 
 Robinson, 3 Stew. & P. (Ala.) 229. See § 535 infra. 
 
 sopearce v. Hooper, 3 Taunt. 60; Carr v. Burdis, 1 Comp., M. & R. 782; 
 Bradshaw v. Bennett, 1 Moody & Rob. 143; Rearden v. Mlnter, 5 Man. & 
 G. 205; Jackson v. Kingsley, 17 Johns. 158; McGregor v. Wait, 10 Gray, 
 72, 69 Am. Dec. 305; Herring v. Rogers, 30 Ga. 6] 5; Rhodes v. Selin, 4 
 Wash. C. C. 715. See note, 35 L. R. A. 348. 
 
 soGreenl. Bv. § 571; Roe v. Wilkins, 4 Adol. & BU. 86; Knight v. 
 Martin, 1 Gow. 26. 
 
 S7 Doe V. Cleveland, 9 Barn. & C. 864. 
 
 38 McGee v. Guthrie, 32 Ga. .307. 
 
 8» McGregor v. Wait, 10 Gray, 72, 69 Am. Dec. 305. See note, 35 L. 
 R. A. 346 et seq. 
 
 40 Doe V. Da vies, 10 Q. B. 314; Green v. Chelsea, 24 Pick. 71; Jackson 
 V. CLristman, 4 Wend. 277; Clark y. Owens, 18 N. Y. 434; R. v. Farrington, 
 
 2 T. R. 466; Doe v. Wolley, 8 Barn. & C. 22; Chelsea Waterworks v. 
 Cowp, 1 Esp. 275; R. v. Buckby, 7 East, 45; Winn v. Patterson, 9 Peters, 
 674; Aldrich v. Griffith, 66 Vt. 390; Baldwin v. Goodfrank (Tex.), 31 S. W. 
 1064; Davidson v. Morrison, 86 Ky. 397, 9 Am. St. Rep. 295; Woods v. 
 Montvallo Co., 84 Ala. 560, 5 Am. St. Rep. 393; McGuire v. Blount, 199 
 U. S. 142; Bradley v. Lightcap, 201 111. 511, 66 N. B. 546; Ford v. Ford, 
 27 App. D. C. 401, 6 L. R. A. N. S. 442. See note, 35 L. R. A. 341 et seq. 
 
§ 532 dOoumentaey evidence. 671 
 
 difficulty of producing witnesses after so long a period rendered it 
 necessary to fix some limit in cases of this character ; and although 
 the exception has often been said to be based upon the presumption 
 of the death of the subscribing witnesses,*^ there are cases in which 
 after thirty years have elapsed, it has been held unnecessary to call 
 the subscribing witnesses, although they were proved to be living,** 
 or even in court.*' This exception to the general rule would there- 
 for seem to be based on grounds of public expediency or necessity, 
 rather than on the presumption that the witnesses are dead.** But 
 it is an important qualification of the rule that ancient documents 
 prove themselves, that they must on their face be free from suspi- 
 cion, come from the proper custody and be accompanied by some 
 corroborating evidence. If there are erasures or interlineations, or 
 other facts giving rise to suspicion, the ancient document should be 
 proved, like other documents, by the subscribing witnesses, oi" by 
 proof of their handwriting.*' In England, it seems to be sufficient 
 if the document is ancient, comes from proper custody and is other- 
 wise free from suspicion.*' But in this country, the clear weight of 
 authority sustains the proposition that there must be some corrobo- 
 rating evidence beyond the mere production of the instrument from 
 the proper custody.*^ This principle is recognized in most of the 
 cases cited to other propositions in the next section. 
 
 § 532 (545). Same — OflSce bonds, etc. — Possession of the prop- 
 erty claimed to have been conveyed by the instrument is the most 
 
 When the corroborating evidence is strong the rule has heen applied to 
 instruments twenty-five years old, Blackburn v. Norman (Tex. Civ. App.), 
 30 S. W. 718. This applies also to maps. Whitman v. Shaw, 166 Mass. 
 451, 44 N. E. 33a. 
 
 ♦1 1 Greenl. Bv. § 570; 1 Selw. N. P. 540 note. 
 
 *2 Marsh v. CoUnet, 2 Bsp. 665; Doe 'v. Burdett, 4 Adol. & Ell. 1; Doe 
 V. Wolley, 8 Barn. & C. 22; Doe v. Deakin, 3 Car. & P. 402; Jackson v. 
 Christman, 4 Wend. 277. But see, Tolman v. Emerson, 4 Pick. 160. 
 
 *s Marsh v. Collnet, 2 Esp. 666. 
 
 ** See cases above cited. 
 
 «B1 Stark. Ev. (6th Am. Ed.) 330. 
 
 *« Tayl. Ev. (10th Ed.) § 871; Steph. Ev. art. 88. 
 
 *7 Homer v. Cilley, 14 N. H. 85; Bank of Middlebury v. Rutland, 33 Vt 
 414; Dishazer v. Maitland, 12 Leigh (Va.) 524; Jackson v. Luquere, 6 
 Cow. 221; Willson v. Betts, 4 Den. 203; Clark v. Owens, 18 N. Y. 434; 
 Wilson V. Simpson, 80 Tex. 279; Pridgen v. Green, 80 Ga. 737, 7 S. E. 97. 
 As to what places are proper custody, Whitman v. Shaw, 166 Mass. 451, 44 
 N. B. 333; Applegate v. Lexington & C. C. M. Co., 117 U. S. 255; Temple- 
 ton T. Luckett, 75 Fed. 254. 
 
672 THE LAW OP EVIDENCE. § 532 
 
 usual evidence offered to confirm the instrument in case of the con- 
 veyance of property. ^^ It has been intimated in some cases that 
 proof of such possession is indispensable/" But the clear weight 
 of authority sustains the view that proof of possession is not indis- 
 pensable and that other corroborative circumstances may be suffi- 
 cient to establish the authenticity of the document, though circum- 
 stantial in their character."" In such cases the courts are less strict 
 in admitting proofs of the handwriting of witnesses, than in respect 
 to instruments of recent date."^ It is not necessary to prove a cor- 
 responding possession of every portion of the premises claimed to be 
 conveyed. A possession of a part under the deed affords evidence 
 of its authenticity of as high a character as though that possession 
 extended to the whole.'"' It has generally been held that where pos- 
 session is the only corroborative fact supporting the ancient deed, 
 such possession must be shown for the period of thirty years.^^ But 
 Mr. Wharton holds that "proof of contemporaneous possession is 
 unnecessary, though without such proof the deeds may be entitled 
 to little or no weight." ^* The presumptions in favor of an ancient 
 deed are greatly weakened, if not rebutted, by proof that the 
 grantor, soon after its date, conveyed the premises to another per- 
 son.°" Another exception has been recognized in the case of office 
 
 *8 Roberts v. Stanton, 2 Munf. (Va.) 129, 5 Am. Dec. 463; Carroll v. 
 Norwood, 1 Harr. & J. (Md.) 167; Middleton v. Mass., 2 Nott & McC. 
 (S. C.) 55; Waldron y. Tuttle, 4 N. H. 371; McGennls v. Allison, 10 Serg. 
 & R. (Pa.) 197; Tolman v. Emerson, 4 Pick. 162; Bell v. McCawley, 29 
 Ga. 355; Taylor v. Cox, 2 B. Mon. (Ky.) 429; Stockbridge v. West Stock- 
 bridge, 14 Mass. 257; Hewlett v. Cock, 7 Wend. 371; Havens v. Sea Shore 
 Land Co., 47 N. J. Eq. 365. 
 
 *» Jackson v. Blanshan, 3 Johns. 292, 3 Am. Dec. 485; Jackson v. Laro- 
 way, 3 Johns. Cas. (N. Y.) 283, dissenting opinion of Kent, Oh. 
 
 ooBarr v. Gratz, 4 Wheat. 213; Clark v. Owens, 18 N. Y. 434; Whitman 
 V. Heneberry, 73 111. 109; Burgin v. Chenault, 9 B. Mon. (Ky.) 285; 
 Caruthers v. Eldridge, 12 Gratt. (Va.) 670; Renter v. Stuckart, 181 111. 
 529, 54 N. E. 1014; Harlan v. Howard, 79 Ky. 373; Cunningham v. Davis, 
 175 Mass. 213, 56 N. E. 2; Long v. McDow, 87 Mo. 197; Sanger v. Merritt, 
 120 N. Y. 109, 24 N. E. 386; Applegate v. Mining Co., 117 U. S. 255. 
 
 eiCoulson V. Walton, 9 Peters, 62; Edmonston v. Hughes, 1 Cheves (S. 
 C.) 81; Stump v. Hughes, 5 Hayw. (Tenn.) 93. 
 
 62 Jackson v. Davis, 5 Cow. 123, 15 Am. Dec. 451; Jackson v. Luquere, 
 5 Cow. 221; Townsend v. Downer, 32 Vt. 183. So the payment of taxes 
 is prima facie evidence of possession, Williams v. Hillegas, 5 Pa. St. 492. 
 
 53 Jackson v. Luquere, 5 Cow. 221; Jackson v. Blanshan, 3 Johns. 292, 
 3 Am. Deo. 485. But see, Wagner v. Alton, 1 Rice (S. C.) 100. 
 
 6*Whart. Ev. § 733. 
 
 »B Willson T. Betts, 4 Den. 203. 
 
§ 533 DOCUMBNTAEY EVIDENCB. 673 
 
 hands. Like those of executors, guardians and similar persons, such 
 bonds are generally deposited in a public ofSce. They are for the 
 benefit of various persons who may be interested, and are not gen- 
 erally delivered until they have the approval of some public officer. 
 These facts have been deemed a sufficient guaranty of the authen- 
 ticity of bonds of this character to dispense with the evidence of the 
 subscribing witness.'" It has also been held that where an instru- 
 ment in writing is collaterally or incidentally introduced in pro- 
 ceedings between persons, not parties to it, or when it is not offered 
 as part of a chain of title, it is not necessary to call the subscribiug 
 witnesses. ^^ 
 
 § 533 (546). Best evidence after non-production of subscribing 
 witnesses. — If there are several subscribing witnesses, it is suffi- 
 cient to produce one who has the requisite Jraowledge.'' If there are 
 several witnesses, the absence or non-production of all of them must 
 be accounted for before secondary evidence of handwriting can be 
 received.'" As to what constitutes the best evidence after the non- 
 production of subscribing witnesses has been accounted for, there 
 has been considerable conflict of opinion. One of the views enter- 
 tained may be thus expressed iu the language of Judge Story: 
 "Where the subscribing witness is dead or cannot be found, or is 
 without the jurisdiction, or is otherwise incapable of being pro- 
 duced, the next iest secondary evidence is the proof of his hamd- 
 writing; and that, when proved, affords prima facie evidence of a 
 due execution of the iastrument, for it is presumed that he would 
 not subscribe his name to a false attestation. If upon due search 
 and inquiry, no one can be found who can prove his handwriting, 
 there is no doubt that resort may then be had to proof of the hcmd- 
 
 «8Greenl..Ev. § 573. 
 
 o'Kitcliin v. Smith, 101 Pa. St. 452; Ayers v. Hewett, 19 Me. 281; 
 Curtis V. Belknap, 21 Vt. 433; Com. v. Castles, 9 Gray, 121, 69 Am. Dec. 
 278; Greenl. Bv. § 5736; Whart. Ev. § 724. Contra, Jackson v. Chrlstman, 
 4 Wend. 277. 
 
 68 Andrew v. Motley, 12 C. B. N. S. 526; Adam v. Kerr, 1 Bos. & P. 
 360; Belbin v. Skeats, 1 Swab. & T. 148; Jackson v. Sheldon, 22 Me. 569; 
 Melcher v. Flanders, 40 N. H. 139; Burke v. Miller, 7 Cush. 547; McAdams 
 V. Stilwell, 13 Pa. St. 90; Burnett v. Thompson, 13 Ired. (N. C.) 379; 
 Jackson v. Gager, 5 Cow. 383; Gelott v. Goodspeed, 8 Cush. 411. 
 
 6» Jackson v. Gager, 5 Cow. 383; Davison v. Bloomer, 1 Dall. (Pa.) 
 123; Jackson v. Cody, 9 Cow. 140; Jackson v. Root, 18 Johns. 60; Hautz 
 V. Rough, 2 Serg. & R. (Pa.) 349; Whittemore v. Brooks, 1 Me. 57; Shep- 
 herd V. Goss, 1 Tenn. 487; McPherson v. Rathbone, 11 Wend. 96; Jackson 
 T. Waldron, 13 Wend. 178; Howard v. Russell, 104 Ga. 230, 30 S. E. 802. 
 43 
 
674 THE LAW OP EVIDENCE. § 534 
 
 writing of the party who executed the instrument; indeed, such 
 proof may always be produced as corroborative evidence of its due 
 and valid execution, though it is not, except under the limitations 
 above suggested, primary evidence. ' ' "" Another eminent judge thus 
 expressed the same view : "In proving deeds, the proper course is 
 first to call the subscribing witness ; if he cannot be had, you may 
 then prove his handwriting as the next best evidence. When it ap- 
 pears that that cannot be done, and not before, proof may be given 
 of the handwriting of the grantor." °^ 
 
 § 534 (547). Same, continued, — Mr. Stephen thus states the 
 English rule : " If it be shovm that no attesting witness is alive or 
 can be found, it must be proved that the attestation of one attest- 
 ing witness at least is in his handwriting, and that the signature 
 of the person executing the document is in the handwriting of that 
 person.'"^ But the rule prevails in some jurisdictions in the 
 United States that the secondary evidence may consist of proof of 
 the handwriting of the party; and that such evidence is of as high 
 order as that of the handwriting of the witness.'' In one of the 
 cases last cited, the court expressed the view that evidence of the 
 handwriting of the party is the more satisfactory. °* But in most 
 jurisdictions, it is conceded that evidence of the handwriting of the 
 witness is sufficient; ^^ and that where there were several witnesses, 
 proof of the handwriting of one is sufScient.'" In some states stat- 
 utes regulate this subject not only as to wills but other documents. 
 If there are any suspicious circumstances attending the instrument, 
 it may be necessary to take the precaution to rebut them by proving 
 in addition the identity of the person executing the instrument or 
 
 •0 Clarke v. Courtney, 5 Peters, 344. 
 
 eiWillson v. Betts, 4 Den. 203; Raines v. Phillips, 1 Leigh (Va.) 483; 
 Whittemore v. Brooks, 1 Me. 60; Halloway v. Laurence, 1 Hawks (N. C.) 
 49; -Homer v. Wallis, 11 Mass. 309, 6 Am. Dec. 169; Wilson v. Royston, 2 
 Ark. 315; Farnesworth v. Briggs, 6 N. H. 561; Pelletreau v. Jackson, 11 
 Wend. 110; Jones v. Roberts, 65 Me. 273; Yocum v. Barnes, 8 B. Mon. 
 (Ky.) 496. 
 
 82 Steph. Ev. art. 66. 
 
 08 Cox V. Davis, 17 Ala. 714, 52 Am. Dec. 199; Landers v. Bolton, 26 
 Cal. 393; Leonard v. Neale, 1 Cranch C. C. 493; Clark v. Sanderson, 3 
 Binn. (Pa.) 192, 5 Am. Dec. 368; McPherson v. Rathhone, 11 Wend. 96; 
 Homer v. Wallis, 11 Mass. 309, 6 Am. Dec. 169; Valentine v. Piper, 22 Pick. 
 85, 33 Am. Dec. 715; Charities v. Connolly, 157 Mass. 272, 31 N. E. 1058. 
 
 64 Valentine v. Piper, 22 Pick. 85, 33 Am. Dec. 715. 
 
 66 See cases already cited. 
 
 86 Stebbins v. Duncan, 108 U. S. 32; Gelott T. Goodspeed, 8 Cush. 409, 
 
§ 535 DOCUMENTARY EVIDENCE. 675 
 
 his handwriting."^ But ordinarily the identity of the maker will 
 be assumed from the identity of name."^ Proof of the handwriting 
 of the party in addition to that of the witness is, of course, admis- 
 sible in corroboration, and this is necessary, if the handwriting of 
 the witness is not fully proved, or where he has signed by the use of 
 a mark."' In New Tork, where it is held that the handwriting of 
 the absent witness must be shown in preference to that of the party, 
 if possible, it was held that "the same diligence should be exacted 
 in endeavoring to prove the handwriting, that is required in the 
 endeavor to find and procure the personal attendance of the witness, 
 at least, before the third degree of evidence is admitted, to-wit : the 
 handwriting of the party." ■"• 
 
 § 535 (548). Same — Absence of witnesses, etc. — When the 
 proper foundation has been laid, by proof that the subscribing wit- 
 ness cannot be produced or his handwriting shown, the execution 
 of the instrument may be proved, not only by evidence of the hand- 
 writing of the maker, but by evidence of his express admissions,''^ 
 or of his acknowledgment, acquiescence or other recognition of the 
 validity of the instrument.''^ The proof of the handwriting of a 
 subscribing witness is in general prima facie evidence of the execu- 
 tion of the instrument by the apparent maker, as it is presumed 
 that the witness would not have attested the instrument, but for its 
 due execution.^^ The same is true when evidence is admissible as 
 to the handwriting of the maker.''' Delivery may also be presumed 
 when proof is made of the signature of the subscribing witness.'" 
 But the presumption arising from proof of the handwriting of the 
 
 67 Brown v. Kimball, 25 Wend. 259 and cases cited. 
 
 •sAtchinson v. McCullock, 5 Watts (Pa.) 13; Jackson v. Goes, 13 Johns. 
 518, 7 Am. Dec. 399; Jackson v. Cody, 9 Cow. 140; Jackson v. King, 5 
 Cow. 237, 15 Am. Dec. 468. See § 100 supra. 
 
 MNelins v. Briokell, 1 Hayw. (N. C.) 19; Gilliam v. Perkinson, 4 Rand. 
 (Va.) 325. 
 
 ToPelletreau v. Jackson, 11 Wend. 110; McPherson v. Rathbone, 11 
 Wend. 96. 
 
 71 Pelletreau v. Jackson, 11 Wend. 110; Conrad v. Farrow, 5 Watts 
 (Pa.) 536; Halloway v. Laurence, 1 Hawks (N. C.) 49. 
 
 72 Hill V. Scales, 7 Yerg. (Tenn.) 410. 
 
 73 Sigfried v. Levan, 6 Serg. & R. (Pa.) 308, 9 Am. Dec. 427; Pelletreau 
 V. Jackson, 11 Wend. 110; Ingram v. Hall, 1 Hayw. (N. C.) 193; Jackson 
 V. Waldron, 13 Wend. 178; Carroll v. Norwood, 1 Harr. & J. (Md.) 167; 
 Boss V. Gould, 5 Me. 204; Farnsworth v. Briggs, 6 N. H. 561; Clarke v. 
 Courtney, 5 Peters, 319; Winn v. Patterson, 9 Peters, 674. 
 
 74 Sigfried v. Levan, 6 Serg. & R. tPa.) 308, 9 Am. Dec. 427. 
 76 Burling v. Paterson, 9 Car. & P. 570. 
 
676 THE LAW OF EVIDENCE. § 536 
 
 witness or of the party is not conclusive; ''" it may be rebutted by 
 the uncontradicted testimony of the witness/^ If the subscribing 
 witness fails to establish the execution, as where he does not remem- 
 ber the act, or denies the attestation, the party calling him to prove 
 the instrument is, by a positive rule of the law, not concluded by his 
 testimony. He may establish the fact by other testimony.''' In 
 other words, the execution of the instrument, even though it be a 
 will, may be established by competent evidence against the positive 
 testimony of the subscribing witnesses.''" 
 
 § 536 (549). Same. — Mode of proving execution by subscribing 
 witnesses. — The party seeking to prove the instrument may cross- 
 examine the subscribing witness,^" or corroborate or add to his testi- 
 mony by other evidence.*^ But he cannot impeach the general 
 reputation of such witness for trtith and veracity.'^ Nor can he 
 impeach a deceased subscribing witness by proving his declarations 
 denying his signature,*' although it has been held in a few cases 
 that, on cross-examination, he may prove previous statements of the 
 subscribing witness contradicting his testimony.** It is not neces- 
 sary, in order to prove the execution, that the subscribing witness 
 should remsmber the transactions involved in the execution of the 
 instrument. Documents have often been submitted to the jury, as 
 sufficiently proved, where the witness has recognized his signature, 
 and from that fact stated his belief that the document was executed 
 in his presence, without having any positive recollection as to the 
 execution.*"* Nor need the witness be -present at the moment of the 
 
 76 Sommerville v. Sullivant, 1 Call (Va.) 560. 
 
 77 Booker v. Bowles, 2 Blackf. (Ind.) 90. 
 
 78 Talbot V. Hodson, 7 Taunt. 251; Whltaker v. Salisbury, 15 Pick. 534; 
 Sigfried v. Levan, 6 Serg. & R. (Pa.) 308, 9 Am. Dec. 427; Hamsher v. 
 Kline, 57 Pa. St. 397; Harrington v. Gable, 81 Pa. St. 406; Matter of 
 Cottrell, 95 N. Y. 329; Patterson v. Tucker, 9 N. J. L. 322, 17 Am. Dec. 
 472; Thomas v. LeBaron, 8 Met. 355; Tompson v. Fisher, 123 Mass. 559; 
 Frost V. Deering, 21 Me. 156; Steph. Bv. art. 68. 
 
 79 Matter of Cottrell, 95 N. Y. 329. 
 
 80 Bowman v. Bowman, 2 Moody & Rob. 501. 
 
 81 Whitaker v. Salisbury, 15 Pick. 534. 
 
 82Whitaker v. Salisbury, 15 Pick. 534; Brown v. Bellows, 4 Pick. 194. 
 See §§ 853, et seq. infra. 
 
 8s Stobart v. Dryden, 1 M. & W. 615. 
 
 8* Brown v. Bellows, 4 Pick. 194; Cowden v. Reynolds, 12 Serg. & R. 
 (Pa.) 281; Sigfried v. Levan, 6 SeY-g. & R. (Pa.) 308, 9 Am. Dec. 427. 
 
 86 Maugham v. Hubbard, 1 Man. & R. 7; Russell v. Coffin, 8 Pick. 143; 
 Merrill v. Ithaca Ry. Co., 16 Wend. 598, 30 Am. Dec. 130; Brown v. An- 
 derson, 1 Men. (Ky.) 198. 
 
§ 537 DOCUMENTARY EVIDENCE. 677 
 
 execution. "If he is called in by the parties immediately after- 
 wards, and told that it is their deed or agreement, and requested to 
 subscribe his name as a witness, that wiU be enough. The execution 
 by the parties, and the subscribing by the witness are then consid- 
 ered as parts of the same transaction." ^° 
 
 § 537 (550). Statutes affecting proof of documents — ^Recording 
 acts, etc. — Although considerable space has been necessarily given 
 to the discussion of the common law rules for the proof of attested 
 documents, it should be observed that various statutes have been 
 enacted in the several states which greatly modify the old rules in 
 certain classes of cases. It is, of course, beyond the scope of this 
 work to enter into any general discussion of these statutes, or to do 
 more than point out in the most general way their effect upon the 
 common law rules. Among the most important of the statutes re- 
 ferred to are those which provide for the acknoivledgment or proof 
 of conveyances and other instruments before public officers in such 
 manner as to entitle them to be recorded under the registry laws; 
 and that, when so acknowledged, they shall be received in evidence 
 without further proof of execution, subject to rebuttal by compe- 
 tent testimony. Generally when these statutes make the instrument 
 prima facie evidence of its execution by reason of such acknowl- 
 edgement, they also give like effect to the record and to certified 
 copies of such record.*^ Where such statutes exist, the document, 
 which has been proved or acknowledged pursuant to the statute, 
 is admitted without calling the attesting witnesses or giving any 
 proof of signature or other execution.** Of course the instrument 
 must be acknowledged in substantial compliance with the statute.^" 
 For example, if the statute requires the certificate to state that the 
 party is known to the officer, this is essential.^" So if the statute 
 requires two witnesses as a condition of recording, and the instru- 
 
 soHollenback v. Fleming, 6 Hill, 303, 305. 
 
 8T See § 519 supra. See statutes of the jurisdiction. 
 
 88 Doe V. Johnson, 3 111. 522; Morris v. Wadsworth, 17 Wend. 103; Thur- 
 man v. Cameron, 24 Wend. 87; Keichline v. Keichline, 54 Pa. St. 75; 
 Baton V. Campbell, 7 Pick. 10; Hinchliff v. Hinman, 18 Wis. 130; Gragg 
 V. Learned, 109 Mass. 167; Clark v. Troy, 20 Cal. 219; Simpson v. 
 Mundee, 3 Kan. 181; Smith v. Gale, 144 U. S. 509, acknowledged out of 
 the state. 
 
 ssLowry v. Harris, 12 Minn. 255; Winlock v. Hardy, 4 Litt. (Ky.) 272; 
 Aubuchon v. Murphy, 22 Mo. 115; Andrews v. Marshall, 26 Tex. 212; 
 Wood V. Weiant, 1 N. Y. 77. See § 519 supra. 
 
 so Morgan v. Curtenlus, i McLean (U. S.) 366; Job v. Tebbetts, 9 111. 
 143; Bone v. Greenlee, 1 Coldw. (Tenn.) 29. 
 
678 THE LAW OP EVIDENCE. § 538 
 
 ment has only one, the execution must be proved."^ But instru- 
 ments so acknowledged may be admitted in evidence, although there 
 are errors which appear from the face of the instrument to be the 
 result of inadvertence or clerical mistake, for example, in respect to 
 such matters as dates or names. "^ They are not excluded, although 
 the acknowledgment has been made since the bringing of the suit.°^ 
 In some states, statutes have been enacted authorizing the acknowl- 
 edgment of other instruments than those affecting real property; 
 and making such acknowledgment prima facie evidence of execu- 
 tion, although promissory notes, bills of exchange and wills are 
 generally excepted.'* Other statutes relating to the proof of docu- 
 ments are those which provide that either party may exhibit to the 
 other, before the trial, any material document, and request an ad- 
 mission of its genuineness,; and that on default of such admission, 
 and on due proof at the trial, the one declining to make the admis- 
 sion be required to pay the expense of such proof. There is an- 
 other class of statutes materially modifying the common law rule 
 with respect to proof of signatures. These statutes generally pro- 
 vide that written instruments, purporting to have been signed by 
 a person, shall be proof of such signatures until the person by 
 whom they purport to have been so signed shall specifically deny 
 the signature by oath or affidavit, or by a pleading, duly verified. 
 It has been held that the provisions of these statutes apply to in- 
 struments signed by strangers, as well as to those signed by parties 
 to the action. '" Under such a statute, it has been held that the 
 affidavit denying the signature may, in the discretion , of the court, 
 be filed at the trial."" 
 
 § 538 (551.) Non-judicial records — Proof of — Federal statutes. 
 — It is impracticable in this work to discuss the various statutes 
 existing in the different states relating to the authentication of 
 non-judicial records. There are, however, certain federal statutes, 
 operative in all jurisdictions, to which attention should be called. 
 
 »i Eastland v. Jordan, 3 Bibb (Ky.) 186. 
 
 »2 Carpenter v. Dexter, 8 Wall. B13; Fisher v. Butcher, 19 Ohio, 406, 53 
 Am. Dec. 436; Hosier v. Momsen, 13 Okl. 41, 74 Pac. 905; Page v. Arnim, 
 29 Tex. 53; Jordan v. Mead, 12 Ala. 247; Emanuel v. Gates, 53 Fed. 772; 
 Smith V. Gale, 144 U. S. 509. 
 
 »3Lanning v. Dolph, 4 Wash. C. C. 624; Shelden v. Strykes, 42 Barb. 
 (N. Y.) 284. 
 
 «*As to the provisions of the various statutes on this subject, the 
 statutes of the jurisdiction should be consulted. 
 
 »5 Parroskl v. Goldberg, 80 Wis. 339. 
 
 ««Parroski v. Goldberg, 80 Wis. 339; Wallis V. White, 58 Wis. 28. 
 
§ 538 DOCUMENTAET EVIDENCB. 679 
 
 One of these statutes is as follows: "All records and exemplifica- 
 tions of books which may be kept in any public ofiice of any state 
 or territory, or of any country subject to the jurisdiction of the 
 United States, not appertaining to a court, shall be proved or ad- 
 mitted in any court or ofBce in any other state or territory, or in 
 any such country, by the attestation of the keeper of the said 
 records or books, and the seal of his office annexed, if there be a 
 seal, together with 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 at- 
 testation 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 p^othonotary of the said court 
 who shall certify under his hand and the seal of his ofiice that the 
 said presiding justice is duly commissioned and qualified, or, if 
 given by such governor, secretary, chancellor or keeper of the 
 great seal, it shall be under the great seal of the state, territory, or 
 country aforesaid in which it is made; and the said records and 
 exemplifications, so authenticated, shall have such faith and credit 
 given to them in every court and office within the United States, as 
 they have by law or usage in the courts or offices of the state, ter- 
 ritory or country, as aforesaid, from which they are taken."" 
 In case they do form part of judicial records, they should be 
 authenticated as stated in sections 624 et seq. infra or according to 
 local statutes. The record must he relevant to the issue,'^ and 
 the authentication must be as required iy the statute, and be cor- 
 
 "Rev. Stat. U. S. § 906 (U. S. Comp. St. 1901, p. 677); Desty, Fed. 
 Proc. (9tli ed.) § 906. This mode of authentication has been held appli- 
 cable to marriage certificates, King v. Dale, 2 111. 513; deeds, Drummond v. 
 Magruder, 9 Cranch, 122; Johnson v. Fowler, 4 Bibb (Ky.) 521; Pennel v. 
 Weyant, 2 Har. (Del.) 501; Warren v. Wade, 7 Jones (N. C.) 494; Peter- 
 mans V. Laws, 6 Leigh (Va.) 523; Kidd v. Manley, 28 Miss. 156; Brown 
 V. Edson, 23 Vt. 435; King v. Mims, 7 Dana (Ky.) 267 (but see. State v. 
 Bngle, 21 N. J. L. 347); pardons. United States v. Wilson, Bald. (U. S.) 
 78; surveys, Smith v. Redden, 5 Har. (Del.) 321; and to other docu- 
 ments, when they do not form part of the records of courts, such as 
 wills, Bwlng V. Savory, 4 Bibb (Ky.) 424; patents, Henthorn v. Shepherd, 
 1 Blackf. (Ind.) 157; and guardians' bonds, Carlisle v. Tuttle, 30 Ala. 
 613. Under this statute copies of records are also admissible, Wilcox v. 
 Bergman, 96 Minn. 219, 104 N. W. 955, 5 L. R. A. N. S. 938 and full note, 
 938-984. 
 
 »8 Qydway V. Conroe, 4 Wis. 45- 
 
680 THE LA.W OF EVIDENCE. § 539 
 
 rect in form.'* It has been held in some cases that the copy of the 
 record is not admissible in such cases, unless there is also proof of 
 the effect of such copy under the laws of the state where recorded.* 
 § 539 (552). Same — Department records — ^Federal statutes. — 
 There are numerous other federal statutes which provide for the 
 admission of copies of records of the governmental departments and 
 bureaus. The scope of this work will only admit a reference to 
 these statutes, and a brief statement of their general purport. It 
 is provided that ' ' copies of any books, records, papers or documents 
 in any of the executive departments, authenticated under the seals 
 of such departments respectively, shall be admitted in evidence 
 equally with the originals thereof. " ^ In an action brought for 
 the delinquency of any person accountable for public money, a 
 transcript from the toohs or proceedings of the treasury depart- 
 ment, certified by the secretary or assistant secretary and authenti- 
 cated under the seal of the department, or, if the suit involves the 
 accounts of the war or navy departments, certified by the auditors 
 respectively charged with the examination of those accounts, and 
 authenticated under the seal of the treasury department, afford evi- 
 dence on which the court may grant judgment. So copies of bonds, 
 contracts or other papers relating to or connected with the settle- 
 ment of any account between the United Stales and an individual, 
 when certified by the secretary or assistant secretary or the auditor 
 and authenticated under the seal of such department, may be an- 
 nexed to such transcript and have equal effect with the original pa- 
 pers, except that, if the action is upon a bond or other sealed instru- 
 ment, and the plea is non est factum, the court may require the 
 production of the original.' By statute such transcripts are sufB- 
 cient evidence to show a balance against the defendant in an indict- 
 
 s«Drummond v. Magruder, 9 Cranch, 122; Fennel v. Weyant, 2 Har. 
 (Del.) 501; Mott v. Ramsay, 92 N. C. 152; Graham v. Trotli, 69 Kan. 
 861, 77 Pac. 92; Taylor v. McKee (Ga.), 45 S. E. 672. 
 
 1 Dickson v. Grisson, 4 La. An. 538; Kldd v. Manley, 28 Miss. 156; 
 Stevens v. Bomar, 9 Humph. (Tenn.) 546; Dunlap v. Dougherty, 20 111. 
 397; Powell v. Knox, 16 Ala. 364. 
 
 2 Rev. Stat. U. S. § 882 (U. S. Comp. Stat. 1901, p. 669). As to copies 
 of records and papers in the office of the solicitor of the treasury, Rev. 
 Stat. U. S. § 883 (U. S. Comp. Stat. 1901, p. 669); comptroller of the 
 currency, Rev. Stat. U. S. § 884 (U. S. Comp. Stat. 1901, p. 669) ; including 
 certificate of the organization of national banks. Rev. Stat. U. S. 885 (U. 
 S. Comp. Stat. 1901, p. 670). 
 
 8 Murphy v. Cady (Mich.), 108 N. W. 493; Rev. Stat. U. S. § 886 (U. 
 S. Comp. Stat. 1901, p. 670). 
 
§ 540 DOCUMENTARY EVIDENCE. 681 
 
 ment for embezzlement of public moneys,* and of false swearing to 
 affidavits made by officers which are required to be returned to the 
 department of the interior." So certified copies of records, books 
 and papers belonging to the general land office " or to the patent 
 office,'' are evidence in all eases wherein the original would be evi- 
 dence. 
 
 § 540 (553). Proof of records of public departments — Copies — 
 Certificates. — Some of the statutes referred to in the last section 
 have long been on the statute books ; and have been frequently ap- 
 plied in the federal courts in actions against officers and sureties on 
 their bonds, and in other similar actions. It is a familiar rule that 
 the copy must he authenticated in the mode provided by the statute ; 
 and the statute must, in this respect, be strictly pursued.^ It has 
 been held a sufficient authentication of copies of records from the 
 executive departments, where the certificate was signed by the head 
 of the department, as by the secretary of the treasui-y,' or of state," 
 and authenticated by the seal of the department; thus, a copy of a 
 collector 's bond, so authenticated, is admissible,^^ but not if the exe- 
 cution of the bond is denied on oath.^^ If the document is in the 
 immediate possession of a subordinate officer, it is sufficient, if he 
 makes the certificate, and his official character is certified to by the 
 head of the department under its seal.^' But where the transcript 
 
 4 Rev. Stat. U. S. § 887 (U. S. Comp. Stat. 1901, p. 671). 
 
 6 Rev. Stat. U. S. § 888 (U. S. Comp. Stat. 1901, p. 671). As applied to 
 copies of records of the post-offlce department. Rev. Stat. U. S. § 889 (U. 
 S. Comp. Stat. 1901, p. 671) ; United States v. McCoy, 193 U. S. 593. 
 
 6 Rev. Stat. U. S. § 891 (TJ. S. Comp. Stat. 1901, p. 672). 
 
 'Rev. Stat. U. S. § 892 (U. S. Comp. Stat. 1901, p. 673). So copies of 
 oflacial papers or official entries in tlie records of the offices of consuls, 
 vice consuls or commercial agents of the United States, certified under 
 their hand and seal, are also admitted in evidence in the courts of the 
 United States, Rev. Stat. U. S. § 896 (U. S. Comp. Stat. 1901, p. 674). 
 
 8 Smith V. United States, 5 Peters, 292; Block v. United States, 7 Ct. 
 of CI. 406; James v. James, 35 Wash. 650, 77 Pac. 1080; Desty, Fed. Proc. 
 (9th Ed.) § 406 and note. See also. West Jersey Traction Co. v. Board 
 of Public Works (N. J. L.) 30 Atl. 581. 
 
 9 United States v. Hunt, 105 U. S. 183; Chadwick v. United States, 3 
 Fed. 750; White v. St. Guirons, Minor (Ala.) 331, 12 Am. Dec. 56. 
 
 10 United States v. Benner, Bald. (U. S.) 234; United States v. Llddle, 
 2 Wash. C. C. 205; Ballew v. United States, 160 U. S. 187, by commis- 
 sioner of pensions. 
 
 11 Chadwick v. United States, 3 Fed. 750. 
 
 12 United States v. Humason, 8 Fed. 71. 
 
 18 Thompson v. Smith, 2 Bond (U. S.) 320; Stephens v. Westwood, 26 
 Ala. 716. 
 
C82 THE LAW OF EVIDBNCB. § 541 
 
 is offered under section eight hundred and eighty-six of the revised 
 statutes, referred to in the last section, the certificate should be by 
 the auditor and authenticated by the seal of the department, both 
 having been held necessary/* 
 
 § 541 (554). Same — Effect of these statutes. — It will be ob- 
 served that, by provisions of some of the statutes referred to in a 
 former section, the copies of the statements of account appearing 
 upon the books of the departments, properly certified and authen- 
 ticated, are admissible in evidence, and that they afford sufficient 
 basis for the entry of judgment. '^^ Such transcripts are admissible, 
 not only against the principals, but also against their sureties;^" 
 and it is no objection to their introduction as evidence that the 
 party against whom they are offered had no notice of the adjust- 
 ment of the accounts.^' But although such transcripts are admis- 
 
 i< Smith V. United States, 5 Peters, 292. Thus copies of papers and 
 records have been received as evidence of the fact that officials were 
 indebted to the government, United States v. Hunt, 105 U. S. 183; of the 
 official character of an accredited minister and of the date of his recogni- 
 tion, United States v. Benner, Bald. 234; United States v. Liddle, 2 Wash. 
 C. C. 205; that an officer or other person received the money charged 
 to him on the accounts certified, Bruce v. United States, 17 How. 437; 
 United States v. Lee, 2 Cranch C. C. 462. In like manner certified copies 
 have been received of a vessel's register, Carlett v. Pacific Ins. Co., 1 
 Paine (U. S.) 594; of official bonds, Chadwick v. United States, 3 Fed. 
 750; United States v. Lent, 1 Paine (U. S.) 417; of accounts and returns 
 rendered by officers. United States v. Gaussen, 19 Wall. 198; United 
 States V. Vanzandt, 2 Cranch C. C. 338; of certificates of organization 
 of national banks. Rev. Stat. U. S. § 885 (U. S. Comp. Stat. 1901, p. 670) ; 
 First Nat. Bank v. Kidd, 20 Minn. 234; Washington Nat. Bank v. Lee, 112 
 Mass. 521; copies of patents, Hines v. Greenlee, 3 Ala. 73; Stevenson v. 
 Wait, 8 Blackf. (Ind.) 508; Lane v. Bommelman, 17 111. 95; Lacey v. 
 Davis, 4 Mich. 140, 66 Am. Dec. 524; Barton v. Murrain, 27 Mo. 235, 
 72 Am. Dec. 259; Avery v. Adams, 69 Mo. 603; plats and descriptions 
 in the general land office, Lee v. Getty, 26 111. 76; Davis v. Freeland, 32 
 Miss. 645; LeBleu v. North Am. Land Co., 46 La. An. 1465; and cer- 
 tificates of receivers, McDonald v. Edmunds, 44 Cal. 328. The certificate 
 of a consul, under his seal of office, is admissible as evidence that a 
 master of a vessel refused to receive a destitute seaman in a foreign 
 port, when the essential facts are stated, Mathews v. Offley, 3 Sum. 
 (U. S.) 115; that ship's- papers were lodged with him. United States v. 
 Mitchell, 2 Wash. C. C. 478; and that a seaman was discharged in a 
 foreign port with his own consent, Lamb v. Baird, Abb. Adm. (U. S.) 367. 
 
 15 Rev. Stat. ti. S. §§ 886-889 (U. S. Comp. Stat. 1901, pp. 670-671). 
 See § 539 supra. 
 
 18 United States v. Gaussen, 19 Wall. 198; United States v. Vanzandt, 
 2 Cranch 0. C. 338. 
 
 17 Watkins v. United States, 9 Wall. 759. 
 
§ 542 DOCUMENTARY BVIDENCB. 683 
 
 sible as eyidence, they are only prima facie evidence of the facts 
 recited ; and it is open to proof that they are erroneous.^^ Accounts 
 which do not arise in the ordinary course, of business in the depart- 
 ments are not proven by transcripts. Under these statutes, state- 
 ments can only establish items for moneys disbursed through the 
 ordinary channels of the department, where the transactions are 
 shown by its books.^' Items which become known to the depaii>- 
 ment only through hearsay do not become evidence under these stat- 
 utes.^" The words "papers and documents" relate to such as are 
 made in the discharge of official duty, which it is the duty of the 
 officers to file.^^ They are not evidence of unofficial acts, for exam- 
 ple, the certificate of a consul as to the foreign laws,"* or as to the 
 arrival of a vessel,^' and the facts as to the imprisonment of a sea- 
 man.'^* The statement of the account should contain the items of 
 the account, the debits and credits as acted upon by the accounting 
 officers, and not a statement of the balance in gross.'" But it has 
 been held in several cases that statements of accounts with post- 
 masters are competent, although not containing the credits allowed; 
 that it is sufficient in such cases, if the balances on the quarterly 
 returns are stated.^" 
 
 § 542 (555). Same — Certificates. — It is not a necessary incident 
 to the admissibility of transcripts under the statutes that all of 
 every account should be contained in the extracts; if not garbled 
 or mutilated, they may be received, provided they contain the items 
 of credit and debit relating to the subject matter, and are not con- 
 fined to the results or balances. ^^ So a transcript of documents in 
 the patent office may be received, though it is not a transcript of 
 
 18 United States v. Irving, 1 How. 250; United States v. Gaussen, 19 
 Wall. 198; Soule v. United States, 100 U. S. 8; United States v. Hunt, 
 105 U. S. 187; United States v. Ralston, 17 Fed. 895. 
 
 19 Rev. Stat. U. S. § 886 (U. S. Comp. Stat. 1901, p. 670) ; United States 
 v. Buford, 3 Peters, 12; United States v. Jones, 8 Peters, 385. 
 
 20 United States v. Forsythe, 6 McLean (U. S.) 584. 
 
 21 Rev. Stat. U. S. § 882 (U. S. Comp. Stat. 1901, p. 669); Block v. 
 United States, 7 Ct. of CI. 406. 
 
 22 Church v. Hubbart, 2 Cranch, 187. 
 
 23 Levy y. Burley, 2 Sum. (U. S.) 355. 
 2* The Cariolanus, Crabbe (U. S.) 239. 
 
 26 United States v. Jones, 8 Peters, 375; United States v. Kuhn, 4 Cranch 
 C. C. 401; United States v. Edwards, 1 McLean (U. S.) 467. 
 
 26 United States v.* Harrill, 1 McAll. (U. S.) 243; United States v. 
 Hodge, 13 How. 478; Lawrence v. United States, 2 McLean (U. S.) 581. 
 
 81 United States v. Gaussen, 19 Wall. 198. 
 
684 THE LAW OF EVIDENCE. § 543 
 
 all the proceedings, or of anything in the nature of a record, but 
 only of certain documents in that office relevant to the issue. ^' 
 Although copies, properly certified and authenticated, may be used 
 as evidence, instead of the originals, yet officials can not certify as a 
 fact that certain acts were performed at a given time, for example, 
 that a patent was issued.^' When certificates are admissible under 
 the statutes referred to, they are prima facie evidence of the gen- 
 uineness of the originals.^" 
 
 § 543 (556). Mere certificates not evidence. — ^Under the fa- 
 miliar rule that it is the province of the court to determine the 
 effect of written instruments, and that the best evidence must be 
 produced, it is clear that the certifying officer should attach his 
 certificate to the copy of the instrument to be proven. Both under 
 the federal statutes, we have discussed, and under the statutes of 
 the states, it is the rule that the mere certificate of the clerk or 
 other custodian of a paper, as to its substance, contents or legal 
 effect, or that the paper attached is an abstract or summary of the 
 original, is no evidence whatever. Such certificates are pure hear- 
 say.^^ Clerks and other recording officers may make and verify 
 copies of their records ; and in doing so, they act under the obliga- 
 tion of their oath of office. Their certificate may be evidence of the 
 correctness of such copies, but it is no part of their d/aty to certify 
 to other facts, than that the copy is correct.^'' The courts will not 
 assume that the conclusions drawn by such officers from the inspec- 
 tion of the records are correct.^* Many illustrations might be 
 
 28 Toohey v. Harding, 1 Fed. 174. 
 
 28 Davis v. Gray, 17 Ohio St. 331. 
 
 30 Lee V. Blandy, 1 Bond (U. S.) 361. As to certificates generally see 
 note 5 L. R. A. N. S. 954-973. 
 
 81 Griffiths V. Tunckhouser, Peters C. C. 41S; Maguire v. Sayward, 22 
 Me. 230; Cox v. Cox, 26 Pa. St. 375, 67 Am. Dec. 432; Drake v. Merrill, 2 
 Jones (N. C.) 368; Foute v. McDonald, 27 Miss. 610; Tessman v. Supreme 
 Commandery, 103 Mich. 185, 61 N. "W. 261; Brill v. Christy, 7 Ariz. 217, 
 63 Pac. 757; TJ. S. v. Lew Poy Dew, 119 Fed. 786; Francis v. Mayor, 58 
 N. J. L. 522, 33 Atl. 853; State v. Champion, 116 N. C. 987, 21 S. B. 700; 
 Sykes v. Beck, 12 N. D. 242, 96 N. W. 844. See also, Wlckersham v. 
 Johnson, 104 Cal. 407. See § 525 supra. 
 
 32 0akes v. Hill, 14 Pick. 442. 
 
 33 Hanson v. South Scituate, 115 Mass. 336. This rule has been applied 
 to the certificate of a justice as to what was claimed on a trial before 
 him, Wolfe v. Washburn, 6 Cow. 262; the certificate of the cleric of a court 
 as to the events of a trial, Barry v. Rhea, 1 Overt. (Tenn.) 345; Wilcox 
 V. Ray, 1 Hayw. (N. C.) 410; or the loss of a paper, Robinson v. Clifford, 
 2 Wash. C. C. 1; Wilcox v. Ray, 1 Hayw. (N. C.) 410 (contra, Ruggles 
 
§ 544 DOCUMENTARY EVIDENCE. 685 
 
 given of the general rule that the certificate of a public officer and 
 for stronger reasons, that of a private individual, is not competent 
 evidence of facts in issue. Unless the certificate accompanies a copy 
 of the record, it has no probative force. The courts do not admit 
 as evidence the certificate that no document or record of a given 
 character exists in his office, or that it cannot be found after dili- 
 gent search. Such a fact must be proven by the deposition or tes- 
 timony of the proper ofiicers taken in open court.'* But frequently 
 statutes admit certificates that documents cannot be found, or have 
 not been filed. 
 
 § 544 (557). Exceptions to the rule that mere certificates are 
 not evidence. — ^Although the rule is very general that official cer- 
 tificates are not evidence, except as authentication of accompanying 
 copies, yet occasionally cases are to be found in which such certifi- 
 cates have been received. Thus, the certificates of foreign digni- 
 taries, have been received as evidence in a few cases where the cer- 
 tificate related to, or was part of an official act, or where it was 
 probable that the ofiicial would not give a deposition'" By a fa- 
 miliar rule of the law merchant, the certificate of a notary public 
 that he made due demand and presentment of a foreign negotiable 
 bill, and of its dishonor is proof of such demand and refusal to pay 
 
 V. Alexander, 2 Rawle (Pa.) 232) ; the certificate of the chairman of 
 county commissioners to prove that work on a highway has been ac- 
 cepted, Reed v. Scituate, 7 Allen, 141; the surveyor's return on a warrant 
 for the collection of highway taxes, Davis v. Clements, 2 N. H. 390; the 
 certificate of the secretary of state that a certificate of a certain character 
 has not been filed in his ofiBce, Cross v. Pinckneyville Mill Co., 17 111. 54; 
 and that a certain grant has not been recorded in his office, Ayres v. 
 Stewart, 1 Overt. (Tenn.) 220; the certificate of the commissioner of 
 patents that a patent of the kind designated has been issued, Stoner v. 
 Ellis, 6 Ind. 152; Reed v. Chicago, M. & St. P. Ry. Co., 71 Wis. 399; the 
 certificate of the register that certain lands have been listed to a state. 
 Murphy v. Sumner, 74, Cal. 316; the certificate of a judge of probate to 
 show who are the heirs of a deceased person. Greenwood v. Spiller, 3 111. 
 502; or that a person is public administrator, Littleton v. Christy, 11 Mo. 
 390; or other facts known to him by inspection of his office records, 
 Armstrong v. Boylan, i N. J. L. 76; the certificate of a register of deeds 
 that there is no plat on record of a certain kind, Bemis v. Becker, 1 Kan. 
 226; the certificate of the register of the land office that a map is a correct 
 representation of part of a township. Doe v. King, 4 Miss. 125. 
 
 34 Bullock V. Wallingford, 55 N. H. 619; Stoner v. Ellis, 6 Ind. 152; 
 Daniel v. Braswell, 113 Ga. 372, 38 S. E. 829. 
 
 as United States v. Acosta, 1 How. 24; Bingham v. Cabot, 3 Dall. 19; 
 United States v. Mitchell, 3 Wash. C. C. 95. But see Wood v. Pleasants, 
 3 Wash. C. C. 201. 
 
686 THE LAW OP EVIDENCE. § 544 
 
 or accept." "On the other hand, the protest of inland hills, how- 
 ever common, is not necessary by the law merchant; and, when 
 made, is extra-official ; and therefore a certificate or record of it is 
 not evidence, either of presentment, demand or dishonor, or of notice 
 to any party." '^ Statutes, have, however, frequently been enacted 
 in this country making such certificates evidence in the case of the 
 protest of inland bills and promissory notes.^* In such cases, the 
 statute must be strictly complied with before the certificate will 
 be admitted ; ^' neither is the, notary thereby authorized to act be- 
 yond his territorial limits.*" The certificate of protest is only evi- 
 dence of such facts as it properly states. It is not evidence of col- 
 lateral facts, for example, as to the statements or conduct of the 
 parties.*^ The presumption is that acts alleged to be done were 
 regularly performed in all cases. *^ This mode of proof is exclusive 
 as to foreign bills of exchange,*" but the statutes relating to the 
 protest of inland bills of exchange do not exclude other modes of 
 proof ,*^ such as the admission of the party, or the oral testimony 
 of the notary.*" But in general the certificates of notaries, unless 
 relating to bills of exchange or protests of ships, are, like other offi- 
 cial certificates, not evidence of any controverted fact.*" Cases of 
 
 so 2 Dan. Neg. Inst. (5th Ed.) § 959; 2 Pars. Notes & B. 498. 
 
 3' 2 Pars. Notes & B. 498; Young v. Bryan, 6 Wheat. 146; Union Bank 
 V. Hyde, 6. Wheat 572; NichoUs v. Webb, 8 Wheat. 326; Bank of United 
 States V. Leathers, 10 B. Mon. (Ky.) 64; Bond v. Bragg, 17 111. 69; Carter 
 V. Burley, 9 N. H. 558; Sumner v. Bowen, 2 Wis. 524. 
 
 38 Dan. Neg. Inst. (5th Bd.) § 926. See the statutes of the jurisdiction. 
 
 30 Rogers v. Jackson, 19 Wend. 383. 
 
 *o Dutchess Co. Bank v. Ibbotson, 5 Den. 110; Kirkland v. Wanzer, 2 
 Duer (N. Y.) 278; Dan. Neg. Inst. (5th Bd.) § 959. 
 
 ••iBradshaw v. Hedge, 10 Iowa, 402; Sprague v. Tyson, 44 Ala. 338; 
 Turner v. Rogers, 8 Ind. 139; Sullivan v. Deadman, 19 Ark. 484; Stiles v. 
 Inman, 55 Miss. 469; Dan. Neg. Inst. (5th Ed.) § 966. 
 
 *2Bank of United States v. Smith, 11 Wheat. 171; Pattie v. McCrillis, 
 53 Me. 410; Simpson v. White, 40 N. H. 540; Union Bank v. Middlebrook, 
 33 Conn. 95; Bank of Commonwealth v. Mudgett, 44 N. Y. 514; Coleman v. 
 Smith, 26 Pa. St. 255; Stainback v. Bank, 11 Gratt. (Va.) 260; Elliott v. 
 White, 6 Jones (N. C.) 98; Whaley v. Houston, 12 La. An. 585; Wamsley 
 V. Rivers, 34 Iowa, 466; McParland v. Pico, 8 Cal. 626. 
 
 43 Union Bank v. Hyde, 6 Wheat. 572; Carter v. Union Bank, 7 Humph. 
 (Tenn.) 548. 
 
 "Bailey v. Dozier, 6 How. 23; Wanzer v. Tupper, 8 How. 234. 
 
 *5 Derickson v. Whitney, 6 Gray, 248; Long v. Cra-ffford, 18 Md. 220; 
 Terbell v. Jones, 15 Wis. 253. 
 
 48Talcott V. Delaware Ins. Co., 2 Wash. C. C. 449; Moore v. Worthington, 
 
§ 545 docUmentabt evidence. 687 
 
 this character do not at all modify the general rule that mere cer- 
 tificates are not evidence. On a principle elsewhere discussed, the 
 entries or certificates of persons, since deceased, made in the regular 
 course of business may be admissible.*^ 
 
 § 545 (558). Proof of handwriting' — Writer need not be called. 
 — ^When it is necessary to prove handwriting, probably no mode 
 would ordinarily seem so satisfactory to the jury as to call the 
 alleged writer himself as a witness ; this has sometimes been called 
 the strongest proof of such a fact.** But while this may be gen- 
 erally true, it is not necessarily so in all cases. It might frequently 
 happen that an ignorant person could form a less accurate judg- 
 ment as to his own handwriting after a considerable lapse of time, 
 than could be formed by a third person acquainted with his hand- 
 writing and accustomed to pass- judgment upon such questions. It 
 is well settled, therefore, that the alleged writer need not he called 
 as a witness in the first instance. His testimony is not the best evi- 
 dence within the meaning of the rule that the best evidence must 
 be produced. "There is not such a distinction between one man's 
 knowledge of his own handwriting, and the knowledge of another 
 on the same subject as constitutes the former evidence of a superior 
 degree to the latter. "*° The same rule prevails in both civil and 
 criminal cases.^° The general rule which admits proof of the hand- 
 writing of a party by others who are acquainted with such writing 
 rests on the ground that in every person's handwriting there is a 
 
 2 Duv. (Ky.) 307. Certificates have been received as evidence when they 
 have been issued as part of the act to be proven, and were made contemp- 
 oraneously therewith, such as receipts of public officers for money, 
 Newport v. Cooper, 10 La. 155; Goddard v. Glodinger, 5 Watts (Pa.) 209; 
 Fager v. Campbell, 5 Watts (Pa.) 287; Lewisburg v. Augusta, 2 Watts & 
 S. (Pa.) 65; Johnson vi Thompson, 4 Bibb (Ky.) 294; the certificate of 
 a marine inspector, Perkins v. Augusta Ins. Co., 10 Gray, 310; the 
 certificates of officers' in service of process, Knowlton v. Ray, 4 Wis. 288, 
 or on sale of property on legal process, Knowlton v. Ray, 4 Wis. 288. 
 
 *iSee § 319 supra. 
 
 <8 Eagleton v. Kingston, 8 Ves. 474; Brewster v. Countryman, 12 Wend. 
 449. 
 
 « Stark. Bv. 339 (6th Am. Ed.); R. v. Benson, 2 Camp. 508; Arnsworth 
 V. Greenlee, 1 Hawks (N. C.) 190; Lefferts v. State, 49 N. J. L. 26, 6 
 Atl. 521; Hess v. State, 5 Oh. 5, 22 Am. Dec. 767. See also, Williams v. 
 Deen, 5 Tex. Civ. App. 575, 24 S. W. 536; Burgess v. Burgess, 44 Neb. 16, 
 62 N. W. 242. 
 
 50 De la Motte, 21 How. St. Tr. 810; Hammond's Case, 2 Greenl. (Me.) 
 33, 11 Am. Dec. 39. 
 
688 THE IiAW OP EVIDENCB. § 546 
 
 peculiar prevailing character whicli distinguishes it from the hand- 
 writing of every other person.'^ 
 
 § 546 (559). One who has seen another write is competent to 
 testify as to his handwriting. — ^A witness is deemed competent to 
 testify to the handwriting of another, if he has seen that person 
 write. This rule is recognized in all the cases that will be cited on 
 the .subject. Discussion and differences of opinion have arisen, not 
 as to the general rule just stated, but with respect to the degree of 
 weight to be given to testimony of this character. This kind of tes- 
 timony may be so weak as to be unsafe to act upon, or so strong as, 
 in the mind of every reasonable man, to produce conviction. But 
 whatever degree of weight his testimony may deserve, which is a 
 question exclusively for the jury, it is an established rule that, if 
 one has seen the person write, he will be competent to speak as to 
 such handwriting ; and this is true, although the impression on the 
 mind of the witness may be faint and inaccurate.'" Thus, the testi- 
 mony has been admitted, although the witness has not seen the per- 
 son write for many years before the trial,"' and although he has only 
 seen the person write on a single occasion,"* and even though he 
 only saw the person write his name,"" or even his surname,"* or 
 although he never saw the person write before the date of the dis- 
 puted paper ; " and it is not necessary that the witness should be 
 
 01 Strong V. Brewer, 17 Ala. 706. 
 
 oa Hopper v. Ashley, 15 Ala. 463; Hammond's Case, 2 Greenl. (Me.) 31, 
 11 Am. Dec. 39 and note; Stoddard v. Hill, 38 S. C. 385; Riggs v. Powell, 
 142 111. 453, 32 N. E. 482; State v. Farrington, 90 Iowa, 673, 57 N. W. 
 606; State v. Hall, 16 S. D. 6, 91 N. W. 325; as to proof of handwriting by 
 witnesses, see article, 16 Am. L. Rev. 569. 
 
 53 Home Tooke's Case, 25 How. St. Tr. 71, nineteen years; Warren v. 
 Anderson, 8 Scott, 384, ten years; Smith v. Walton, 8 Gill (Md.) 18, six 
 years; Edelen v. Gough, 8 Gill (Md.) 87, three years; Com. v. Nefus, 135 
 Mass. 533; Wilson v. Van Leer, 127 Pa. St. 371, 17 Atl. 1097, 14 Am. St 
 Rep. 854 and note; Renshaw v. First Nat. Bank (Tenn.), 63 S. W. 194; 
 Dlgglns' Estate, 68 Vt. 198, 34 Atl. 696. 
 
 "Hammond v. Varlan, 54 N. Y. 398; Com. v. Nefus, 135 Mass. 533; 
 McNair v. Com., 26 Pa. St. 388; Rediout v. Newton, 17 N. H. 71; Pepper 
 V. Harnett, 22 Gratt. (Va.) 405; Home Tooke's Case, 25 How. St. Tr. 71; 
 Wilman v. Worrall, 8 Car. & P. 380; Diggins' Estate, 68 Vt. 198, 34 Atl. 
 696; State v. Goodwin, 37 La. An. 713. See also Egan v. Murray, 80 Iowa, 
 180, 45 N. W. 563. 
 
 B«Willman v. Worrall, 8 Car. & P. 380; Warren v. Anderson, 8 Scott, 
 384; Rediout v. Newton, 17 N. H. 71. 
 
 58 Smith v. Walton, 8 Gill (Md.) 18. 
 
 67 Keith V. Lothrop, 10 Cush. 453; RatlifC v. Ratliff, 131 N. C. 425, 42 
 S. E. 887; Tucker v. Hyatt, 144 Ind. 635, H N. B. 1047, 43 N. H. 872. 
 
§ 546 DOCUMENTAET EVIDENOB. 689 
 
 an eajperf ." These are matters affecting, not the admissibility, but 
 tiie weight of such testimony ; °' and it is within the discretion of 
 the court to determine them in the first instance."" The same is 
 true when the witness is unable to read afld write, but testifies to 
 handwriting with which he says he is f amiliar,"^ or when a witness 
 testifies that he is familiar with the mark of another, used as a sig- 
 nature."'' One may be competent to testify as to the signature of 
 another, if acquainted with it, although he is not acquainted with 
 his general handwriting."' So he may testify as to the signature 
 of a firm, although he is not acquainted with the handwriting of 
 either member of the firm."* It has also been held that a witness is 
 competent to testify as to the handwriting of another, although he 
 has not actually seen him write, if the witness has seen writing 
 which such person has acknowledged or admitted to be his.'" Such 
 acknowledgment may not only be in express terms, as where a per- 
 son has formally acknowledged the signature or other writing to 
 have been executed by him,"" but may be inferred as will be seen 
 from other facts and circumstances or from the course of business." 
 
 88 Moon V. Crowder, 72 Ala. 79; "Williams v. Deen, 5 Tex. Civ. App. 575. 
 
 oe Hammond v. Varian, 54 N. T. 398; Com. v. Nefus, 135 Mass. 533; 
 McNair v. Com., 26 Pa. St. 388; Miles v. Loomis, 75 N. Y. 288, 31 Am. 
 Rep. 470. 
 
 00 Wilson V. Van Leer, 127 Pa. St. 371, 17 Atl. 1097, 14 Am. St. Rep. 854. 
 The following cases illustrate the ruling of the court as to the admission 
 of such testimony, admitted, In re Marchall's Estate, 126 Cal. 95, 59 Pac. 
 449; Salazer v. Taylor, 18 Colo. 538, 33 Pac. 369; Kendall's Ex'r v. Collier, 
 97 Ky. 446, 30 S. W. 1002; Com. v. Hall, 164 Mass. 152, 41 N. B. 133; State 
 V. Hall, 16 S. D. 6, 91 N. W. 325; Poncin v. Furth, 15 "Wash. 201, 46 Pac. 
 241; State v. Harvey, 131 Mo. 339, 32 S. "W. 1110; excluded, Gibson v. 
 Trowbridge, 96 Ala. 357, 11 So. 365. 
 
 oiFoye v. Patch, 132 Mass. 105. 
 
 «2 Strong V. Brewer, 17 Ala. 706; Fogg v. Dennis, 3 Humpl*. (Tenn.) 47; 
 Jackson v. "Van Dusen, 5 Johns. 144, 4 Am. Dec. 330; Thompson v. Davltte, 
 59 Ga. 472; Pearcy v. Dicker, 13 Jur. 997; George v. Surrey, Moody & M. 
 516. Contra, Shinkle v. Crock, 17 Pa. St. 159; State v. Tice, 30 Ore. 457, 
 48 Pac. 367; Ex parte Miller, 49 Ark. 18, 3 S. W. 883, 4 Am. St. Rep. 17; 
 Phoenix Nat. Bank v. Taylor, 113 Ky. 61, 67 S. "W. 27. 
 
 osMcConkey v. Gaylord, 1 Jones (N. C.) 94; In re Marchall's Estate, 
 126 Cal. 95, 58 Pac. 449. 
 
 04 Gordon v. Price, 10 Ired. (N. C.) 385. 
 
 05 Hammond v. "Varian, 54 N. Y. 398; Cabarga v. Seezer, 17 Pa. St. 514; 
 Berg V. Peterson, 49 Minn. 420, 52 N. W. 37; Pierce v. De Liong, 46 111. 
 App. 462. 
 
 •« Cabarga v. Seezer, 17 Pa. St. 514. 
 
 oTRiggs V. Powell, 142 111. 453, 32 N. E. 482; Tucker v. Kellogg, 8 
 Utah, 11. 
 
 44 
 
690 THE LAW OP EVIDENCE. § 548 
 
 But when a witness has testified that he has neither seen a certain 
 person write, nor any writing which he knew to be the writing of 
 the person, his opinion as to the genuineness of such writing is not 
 admissible. °* It must appear that the witness has the requisite 
 knowledge of the handwriting.'" 
 
 § 547 (560). Knowledge of handwriting may be gained by cor- 
 respondence. — One is deemed competent to testify to the hand- 
 writing of another person when he has received letters or documents 
 purporting to be written by that person in answer to those written 
 by himself, or under his authority, and addressed to that person. 
 In such case there is a presumption that the letter or document is 
 genuine.'"' It has sometimes been held that the receipt of letters, 
 purporting to come from another, which have been acted upon as 
 such will render the testimony of the person so receiving them com- 
 petent to prove the handwriting.''^ But the decisions generally 
 establish the proposition that the rule is not changed by the mere 
 fact that the one receiving the letters has acted upon them, although 
 such acts may be part of a chain of evidence from which the ac- 
 knowledgment or approval of the supposed author may be inferred. 
 In order to bind the alleged writer he must have recognized or rati- 
 fied such instrument or letter.''^ But it is well settled that the mere 
 receipt of letters or papers, standing alone, is not evidence that 
 they were written by the person whose name they bear.''' 
 
 § 548 (561). Such knowledge may be gained in the course of 
 business. — ^A person is deemed to be acquainted with the hand- 
 writing of another when, in the ordinary course of business, docu- 
 
 «8 Spotteswood V. Weir, 80 Cal. 448; Gibson v. Trowbridge F. Co., 96 Ala. 
 357; Arthur v. Arthur, 38 Kan. 691; Talbott v. Hedge, 5 Ind. App. 555. 
 
 «» Richardson v. Stringfellow, 100 Ala. 416, 14 So. 283; Riggs v. Powell, 
 142 111. 453, 32 N. B. 482. 
 
 ■!o Chaffee / Taylor, 3 Allen, 598; Clark v. Freeman, 25 Pa. St. 133; 
 Cunningham v. Hudson Riv. Bank, 21 "Wend. 557; Campbell v. Woodstock 
 Iron Co., 83 Ala. 351, 3 So. 369; Violet v. Rose, 39 Neb. 660, 58 N. W. 216; 
 Southern Exp. Co. v. Thornton, 41 Miss. 216; Pearson v. McDaniel, 62 Ga. 
 100; Atlantic Ins. Co. v. Manning, 3 Colo. 224; Bullis v. Easton, 96 la. 513, 
 C5 N. W. 395; Redding v. Redding's Estate, 69 Vt. 500, 38 Atl. 230; Parker 
 V. The Amazon Ins. Co., 34 Wis. 363; Steph. Ev. art. 51. See § 46 supra. 
 But this is sometimes held to be insufficient authentication, McKeone v 
 Barnes, 108 Mass. 344. 
 
 71 Tharpe v. Gisburne, 2 Car. & P. 21. 
 
 72 Doe v. Suckermore, 5 Adol. & Ell. 703; Cunningham v. Hudson Riv. 
 Bank, 21 Wend. 557; Nunes v. Perry, 113 Mass. 274; Murray v. Walker. 
 83 la. 202, 48 N. W. 1075. See § 583 infra. 
 
 73 White S. M. Co. v. Gordon, 124 Ind. 495; Pinkham v. Cockell, 77 
 
§ 549 DOCUMENTARY EVIDENCE. 691 
 
 ments purporting to be written by that person have been habitually 
 submitted to himJ* It has sometimes been held that in order to 
 prove the signatures of hanh officers on tank Mils to be genuine, or 
 forged, the officers themselves should be called, or at least other wit- 
 nesses who have seen such officers write or have received letters from 
 them in correspondence.'" But the weight of authority holds that, 
 since the bills are known to the public, persons who have been in the 
 habit of receiving such bills and who are skilled in the detection 
 of counterfeits may testify in such cases.'" 
 
 § 549 (562). Value of the testimony— How affected by the 
 means of knowledge. — When a witness states that he is acquainted 
 with the handwriting in question, but is not asked his means of 
 
 Mich. 272, 43 N. W. 921; Hightower v. Ogletree, 114 Ala. 94, 21 So. 934; 
 State V. Hall, 14 S. D. 161, 84 N. W. 766; Flowers v. Fletcher, 40 W. Va. 
 103, 20 S. B. 870. 
 
 "Doe V. Suckermore, 5 Adol. & Ell. 703; Titford v. Knott, 2 Johns. Cas. 
 (N. Y.) 211; Com. v. Smith, 6 Serg. & R. (Pa.) 568; Com. v. Webster, 5 
 Gush. 295, 52 Am. Dec. 711 and note; Jones v. Hugglns, 1 Dev. (N. C.) 
 223, 17 Am. Dec. 567 and note; Murray v. Walker, 83 la. 202, 48 N. W. 
 1075. This rule has been applied where an agent or cleric takes the letters 
 of his principal to the post. Doe v. Suckermore, 5 Adol. & Ell. 703; 
 where public officers have seen many official documents of importance 
 filed in their office which purported to bear the signature of another 
 officer, Rogers v. Ritter, 12 Wall. 317; Yates v. Yates, 76 N. C. 142; Gtoddard 
 V. Glonlnger, 5 Watts (Pa.) 209; Amherst Bank v. Root, 2 Met. 522; wherfe 
 the writing or signature of the person whose handwriting is in question 
 has come before such officer in other ways. Sill v. Reese, 47 Cal. 343; 
 where one has received and paid notes bearing the name of the party 
 whose handwriting is in question, Johnson v. Daverne, 19 Johns, 134, 10 
 Am. Dec. 198; Hess v. State, 5 Ohio 5, 22 Am. Dec. 767 and note; where 
 the officers of a bank, who are called on to testify, have been in the habit 
 of paying checks of a customer. State v. Candler, 3 Hawks (N. C.) 393; 
 Hess V. State, 5 Ohio, 5, 22 Am. Dec. 767; Allen v. State, 3 Humph. (Tenn.) 
 367; Johnson v. State, 35 Ala. 370; or have seen Ms signature to papers 
 known to have been signed by him, Ennor v. Hodson, 28 111. App. 445; 
 where the witness has in the course of business seen orders, Cody v. 
 Conly, 27 Gratt. (Va.) 313; receipts or other papers, Armstrong v. Fargo, 
 8 Hun (N. Y.) 175; Hess v. State, 5 Ohio, 5, 22 Am. Itec. 767 and note; 
 which the party, whose handwriting is in question has acknowledged by 
 payment or other mode of approval; surveyor as to signature on maps 
 with which he is familiar, Hamilton v. Smith, 74 Conn. 374, 50 Atl. 884; 
 clerk, XJ. S. v. Ortiz, 176 U. S. 422; administrator as to signature of 
 deceased from seeing it on checks, Tucker v. Kellogg, 8 Utah, 11, 28 
 Pac. 870. 
 
 '6 state V. Allen, 1 Hawks (N. C.) 6, 9 Am. Deo. fl6. 
 
 76 Com. V. Carey, 2 Pick. 47; State v. Lawrence, Brayt. (Vt) 78; State 
 V. Anderson, 2 Bailey (S. C.) 565; State v. Carr, 5 N. H. 369. 
 
692 THE LAW OP EVIDENCB. § 549 
 
 knowledge, his testimony is prima fade competent. But his means 
 of knowledge or the fact that he has not sufficient data for knowl- 
 edge may be drawn out by the adverse party; and if it appear to 
 the court that he is not suificiently acquainted with the writing, the 
 testimony will not be admitted.'^ "Knowledge of handwriting, ac- 
 quired for the purpose of testifying, will qualify only where it is 
 clear that there was no motive either in the writer or the witness to 
 manufacture testimony. ' ' '^ The value or weight to be given to the 
 opinion of a witness as to the authorship of handwriting is to be de- 
 termined by the opportunity and circumstances under which he has 
 acquired his knowledge. If he is an illiterate man, or one whose 
 business seldom brings him into contact with writing, his opinion is 
 entitled to much less weight than if he were an educated man accus- 
 tomed to correspondence, and to seeing people write.'' If a witness 
 has become familiar with the handwriting of a person, he may tes- 
 tify as to the genuineness of the alleged handwriting of that person, 
 although it appears to be simulated and disguised}" It will be 
 seen from the cases already cited that the witness must be familiar 
 with the handwriting concerning which he testifies. "When he shows 
 such an acquaintance, he may give his opinion or belief; and it is 
 not necessary that he should know or be certain that the specimen is 
 the handwriting of the person who, it is claimed, wrote it.*^ But 
 t|he witness should be able to state that he has an opinion}^ 
 
 7T Goodhue v. Bartlett, 5 McLeaa (U. S.) 186; Henderson v. Bank of 
 Montgomery, 11 Ala. 855; Smith v. Walton, 8 Gill (Md.) 77; Whittier v. 
 Gould, 8 Watts (Pa.) 485; Arthur v. Arthur, 38 Kan. 691; Talbott v. 
 Hedge, 5 Ind. App. 555. But see, Carrier v. Hampton, 11 Ired. (N. C.) 307. 
 
 78Lawson, Exp. Ev. rule 54; Reese v. Reese, 90 Pa. St. 89, 35 Am. Rep. 
 634 and note; Sanderson v. Osgood, 52 Vt. 309; Reid v. State 20 Ga. 681; 
 Trustees v. Misenheimer, 78 111. 22; Keith v. Lathrop, 10 Gush. 453; 
 Stranger v. Searle, 1 Esp. 15; R. v. Crouch, 4 Cox Cr. C. 163; Greaves v. 
 Hunter, 2 Car. & P. 477; Territory v. O'Hare, 1 N. Dak. '30. 
 
 78 United States v. Gleason, 37 Fed. 331. 
 
 80 Com. V. Webster, 5 Cush. 301, 32 Am. Dec. 711. 
 
 81 Garrels v. Alexander, 4 Esp. 37; Eagleton v. Kingston, 8 Ves. 474; 
 Talbott v. Hedge, 5 Ind. App. 555; Beverly y. Williams, 4 Dev. & B. 
 (N. C.) 236; Magee v. Osborn, 32 N. Y. 669; Bell v. Brewster, 44 Ohio 
 St. 690; Taylor v. Sutherland, 24 Pa. St. 333; Salmon v. Peinour, 6 Gill 
 & J. (Md.) 60; Wiggin v. Plumer, 31 N. H. 251; State v. Minton, 116 Mo. 
 605; Salazar v. Taylor, 18 Colo. 538; Egan v. Murray, 80 Iowa, 180; 
 State V. Harvey, 131 Mo. 339, 82 S. W. 1110; Com. v. Andrews, 143 Mass. 
 23, 8 N. B. 643; People v. Bidleman, 104 Cal. 608, 38 Pac. 502; Mosher v. 
 Farmers' & Merchants' Nat. Bank, 51 Neb. 55, 70 N. W. 540. In Holmes v. 
 Goldsmith, 147 U. S. 150, the witness was allowed to state that he would 
 act on the signature In question. 
 
 *2 Wiggin V. Plumer, 31 N. H. 251; Burnham v. Ayer, 36 N. H. 182; 
 
§ 551 DOCUMENTAEY EVIDENCB. 693 
 
 § 550 (563) . Use of writing written at the trial for comparison. 
 
 — The use of handwriting for the purpose of comparison at the trial 
 is, by the. great weight of authority, confined to that written before 
 the trial. Most of the courts hold that a person is not entitled to 
 ofEer a specimen of his handwriting written during the trial. This 
 rule is based on the ground that the party might be influenced by 
 the interests, then at stake, to disguise his handwriting, if, by so 
 doing, he could promote his cause.^^ But if the writing is done at 
 the request of the adverse party on cross-examination, such writing 
 is admissible.'* So it was held error not to allow an expert on 
 cross-examination to show before the jury the effect that the use of 
 a blotter has on the color of ink.*" In England, there is a statute 
 by which a person whose handwriting is in dispute may be called 
 upon by the court to write his name in the presence of the jury J'" 
 In this country, there is high authority for the rule that, in the 
 absence of a statute, the court may, in the exercise of a sound dis- 
 cretion, require a party in a civil action to write his signature in 
 the presence of the jury as a basis of comparison.'^ 
 
 § 551 (564). Comparison of handwriting — English rule. — ^It has 
 been the subject of much discussion in the courts whether hand- 
 writing can be proved in court by a direct comparison of hands, 
 that is, by a collation of the two papers in juxtaposition for the pur- 
 pose of ascertaining by inspection whether they were written by 
 the same person. Cases have arisen many times in England in 
 which it was contended, and in some of which it was held, that hand- 
 writing might be proved by the immediate comparison by a witness 
 
 Fash V. Blake, 38 111. 363; People v. Spooner, 1 Den. 343, 43 Am. Dec. 
 672 and note; Succession of Morvant, 45 La. An. 207. Only an expert, 
 however, can state an opinion derived from comparison, Spottiswood v. 
 Weir, 80 Cal. 448. 
 
 83 King V. Donahue, 110 Mass. 155, 14 Am. Rep. 589; Com. v. Allen, 128 
 Mass. 46, 35 Am. Rep. 356; Gudzom v. Tyler, 64 Cal. 334; McGlasson v. 
 State, 37 Tex. Cr. 628, 40 S. W. 503, 66 Am. St. Rep. 842; Whittle v. State, 
 43 Tex. Cr. 468, 66 S. W. 771; Hickory v. TJ. S., 151 U. S. 303. 
 
 s^Bronner v. Loomis, 14 Hun (N. Y.) 341; Bridgman v. Corey's Estate, 
 62 Vt. 1; Huff v. Nims, 11 Neb. 363; Chandler v. LeBarron, 45 Me. 534; 
 Bradford v. People, 22 Colo. 157, 43 Pac. 1013; Smith v. King, 62 Conn. 
 515, 26 Atl. 1059. 
 
 85 Farmers' Bank v. Young, 36 Iowa, 451. 
 
 88Cohet V. Kilminister, 4 Fost. & F. 490; Reg. v. Taylor, 6 Cox Cr. 
 C. 58. 
 
 87 Smith V. King, 62 Conn. 515; Williams v. Riches, 77 Wis. 569; King 
 T. Donahue, 110 Mass. 155, 14 Am. Rep. 589; Hickory v. United States, 
 151 U. S. 303. But see. First Nat. Bank v. Robert, 41 Mich. 709. See § 403 
 supra. 
 
694 THE LAW OF KVIDENCE. § 552 
 
 of the paper in dispute with some other specimen proved to have 
 been written by the supposed writer of the first. But the English 
 rule finally became settled that such comparison could not J)e made.^* 
 The grounds on which this rule rest are thus stated by Mr. Best: 
 ' ' First, that the writings offered for the purpose of comparison with 
 the document in question might be spurious, and consequently that, 
 before any comparison between them and it could be instituted, a 
 collateral issue must be tried to determine their genuineness. Nor 
 is this all, — if it were competent to prove the genuineness of the 
 main document by comparison with others, it must be equally so to 
 prove that of the latter by comparison with fresh ones ; and so the 
 inquiry might go on ad infinitum, to the great distraction of the 
 attention of the jury and delay in the administration of justice.*^ 
 Secondly, that the specimens might not be fairly selected.'" Thirdly, 
 that the persons composing the jury might be unable to read, and 
 consequently be unable to institute such comparison. ' ' "'■ Although 
 the rule as above stated has become well settled after long discussion 
 in the courts of England and has become known as the English rule, 
 yet a statute was finally enacted to the effect that ' ' comparison of 
 a disputed handwriting with any writing, proved to the satisfaction 
 of the judge to be genuine, is permitted to be made by witnesses; 
 and such writings, and the evidence of witnesses respecting the 
 same, may be submitted to the court and jury as evidence of the 
 genuineness or otherwise of the writing in dispute. ' ' °^ 
 
 § 552 (565). Same — Conflicting views in United States. — In the 
 United States this has long been a mooted question, and in some 
 states the rulings are still inconsistent. The federal courts and the 
 courts of many states have adopted the old English rule stated in 
 the last section."' In other states the English rule was never fol- 
 
 88 Doe V. Suckermore, 5 Adol. & Ell. 703; Hickory v. United States, 151 
 U. S. 303. 
 
 89 Doe V. Suckermore, 5 Adol. & Ell. 706. 
 «o Burr v. Harper, Holt N. P. 420. 
 
 »iBest, Ev. (lOth Ed.) § 238; Eagleton v. Kingston, 8 Ves. 475; Peck v. 
 Callaghan, 95 N. Y. 75. 
 
 »2 Steph. Ev. art. 52; 17 & 18 Vict. ch. 125 § 27; 28 Vict. ch. 18 § 8. 
 
 »3 U. 8., Hickory v. U. S., 151 U. S. 303; Stokes v. U. S., 157 U. S. 194; 
 Withaup v. U. S., 127 Fed. 530; Ala., Moon v. Crowder, 72 Ala. 79; Snyder 
 V. Burks, 84 Ala. 53; ArTc., Miller v. Jones, 32 Ark. 338; Cal, Cal. Code 
 § 1944, notes (comparison made by expert, Marshall v. Hancock, 80 Cal. 
 82)-; Colo., Wilber v. Bicholtz, 5 Colo. 240; Bradford v. People, 22 Colo. 
 157, 43 Pac. 1013; III., Putnam v. Wadley, 40 111. 346; Gitchell v. Ryan, 
 24 111. App. 372 (contra, Northfield Ins. Co. v. Sweet, 46 111. App. 598; 
 
§ 552 DOCUMENTARY EVIDBNCE. 695 
 
 lowed and the reasons whieli led to its adoption in England were 
 held no longer applicable.'* But the strong tendency in the United 
 States has been toward the adoption of the more liberal rule. In 
 several states the earlier rulings adopting the old English rule were 
 modified by later decisions and before the adoption of statutes. At 
 present in nearly aU the states statutes exist having more or less re- 
 semblance to the English statute quoted in the last section. In 
 some jurisdictions the statutes prescribe that the comparison may 
 be made by experts or the jury.'° But without any such provision 
 in the statute the testimony based on a comparison of hands should 
 obviously be limited to those having some special skill, since it is in 
 the nature of opinion evidence calling for more than ordinary 
 
 Frank v. Taubman, 31 111. App. 592) ; Jnd., McDonald v. McDonald, 142 
 Ind. 55, 41 N. B. 336; Ky., Hawkins v. Grimes, 13 B. Mon. (Ky.) 260; 
 see also, Pee v. Taylor, S3 Ky. 259; Md., Herrick v. Swomley, 56 Md. 
 439 (the fact that there is a genuine and a disputed signature on same 
 page does not render proper a comparison of them by the jury, Williams 
 V. Drexel, 14 Md. 566) ; Mich., Foster's Will, 34 Mich. 21; People v. Parker, 
 67 Mich. 222 (but see, Dritz v. Fourth Nat. Bank, 69 Mich. 287); Mo., 
 Rose V. First Nat. Bank, 91 Mo. 399, 60 Am. Rep. 258; State v. Thompson, 
 132 Mo. 301, 34 S. W. 31; N. Y., People v. Spooner, 1 Den. 343, 43 Am. 
 Dec. 672; Miles v. Loomis, 75 N. Y. 288, 31 AmC Rep. 470; Peck v. 
 Callaghan, 95 N. Y. 73; N. C, Fuller v. Fox, 101 N. C. 119, 9 Am. St. Rep. 
 27; Pope v. Askew, 1 Ired. (N. C.) 16, 35 Am. Dec. 729 (but see. State v. 
 De Graff, 113 N. C. 688); N. D., Territory v. O'Hare, 1. N. Dak. 30; B. I., 
 Kinney v. Flynn, 2 R. I. 319; Tenn., Clark v. Rhodes, 2 Heisk. (Tenn.) 
 206; Wright v. Hussey, 3 Baxt. (Tenn.) 42 (but see. Powers v. McKenzle, 
 90 Tenn. 167) ; Texas, Hanley v. Gandy, 28 Tex. 211, 91 Am. Dec. 315 (but 
 see, Cannon v. Sweet (Tex. Civ. App.), 28 S. W. 718); Vo., Burress' 
 Case, 27 Gratt. (Va.) 934 (but see, Hanrlot v. Sherwood, 82 Va. 1); 
 W. Va., Clay v. Alderson, 10 W. Va. 49; Wis., Hazelton v. Union Bank, 
 32 Wis. 47. 
 
 »*'Gonn., Tyler v. Todd, 36 Conn. 218; Ga., Wimbish v. State, 89 Ga. 294; 
 Iowa, Riordan v. Guggerty, 74 Iowa, 688; State v. Farrington, 90 Iowa, 673; 
 57 N. W. 606; Ean., State v. Zlmmermann, 47 Kan. 242; State v. Stegman, 
 '62 Kan. 476, 63 Pac. 746; Me., State v. Thompson, 80 Me. 194, 6 Am. St. 
 Rep. 172; Mass., Homer v. Wallis, 11 Mass. 309, 6 Am. Dec. 169 and note; 
 Costello V. Crowell, 139 Mass. 588; Af ten., • Morrison v. Porter, 35 Minn. 
 425, 59 Am. Rep. 331; Miss., Wilson v. Beauchamp, 50 Miss. 24; N. H., 
 University of 111. v. Spaulding, 71 N. H. 163, 51 Atl. 731; Neb., Grand 
 Island Banking Co. v. Shoemaker, 31 Neb. 124; Ohio, Koons v. State, 36 
 Ohio, St. 195; 8. G., Weaver v. Whildon, 33 S. C. 190; Pa., In re Rockey's 
 Estate, 155 Pa. St. 453; Yt, State v. Hopkins, 50 Vt. 316; Utah, Tucker 
 V. Kellogg, 8 Utah, 11; Wash., Moore v. Palmer, 14 Wash. 134, 44 Pac. 142. 
 
 »5 Consult the statute ol the Jurisdiction. See summary of statutes, 3 
 Wig. Ev. § 2016, 
 
696 THE liAW OF EVIDENCE. § 553 
 
 knowledge." The fact that in most states the subject is now gov- 
 erned by statutes renders it unnecessary to discuss the many de- 
 cisions based on common law rules. 
 
 § 553(566). Comparison of simulated signatures — Proof of 
 identity. — On the issue as to the genuineness of a signature, it is 
 not competent, on cross-examination, to submit to the witness simu- 
 lated signatures and to require his opinion as to their genuineness." 
 In South Carolina, the rule was adopted that comparison of hand- 
 writing might be competent when the evidence is conflicting; and it 
 was held that in such a case the witnesses making the comparison 
 need not be experts." Under the statute of New York authorizing 
 the comparison of a disputed writing with any writing proved, to 
 the satisfaction of the court, to be genuine, it was held inadmissible 
 to offer in evidence writings other than those of the person whose 
 signature was in question, and that specimens of the handwriting 
 of a person, who, it was claimed, had forged the signature, should 
 be excluded."' But in a later and celebrated case the court held 
 that "if a disputed handwriting is itself either a fact in issue, or a 
 fact relevant to the issue, it may be proved by the means pointed 
 out by the statutes. If it is neither in issue nor relevant to the issue, 
 it must be excluded. " ' It is the general rule that a signature, 
 made for the occasion post litem motam, and merely for use at the 
 trial, ought not to be taken as a standard. It is only when the pa- 
 per is written, not by design, but unconstrainedly and in the natural 
 manner, so as to bear the impress of the general character of the 
 party's writing, as the involuntary and unconscious result of con- 
 stitution, habit or other permanent cause, and therefore of itself 
 permanent, that it furnishes, if otherwise admissible, any satisfac- 
 tory test of genuineness.'' It often happens, however, that signa- 
 
 80 Mixer v. Bennett, 70 Iowa, 331, 30 N. W. 587; Lowe v. Dorsett, 125 
 N. C. 301, 34 S. E. 442; Birmingham Nat. Bank v. Bradley, 108 Ala. 205, 
 19 So. 791; Bradford v. People, 22 Colo. 157, 43 Pac. 1013; State v. David, 
 131 Mo. 380, 33 S. W. 28; "Wheeler & W. M. Co. v. Buckhout, 60 N. J. L. 
 102, 36 Atl. 772; Kornegay v. Kornegay, 117 N. C. 242, 23 S. E. 257. 
 
 »7 Rose V. First Nat. Bank, 91 Mo. 399, 60 Am. Rep. 258 and note; Massey 
 V. Parmer's Bank, 104 111. 327.* 
 
 88 Benedict v. Flanlgan, 18 S. C. 506, 44 Am. Rep. 583. 
 
 88 Peck V. Callaghan, 95 N. Y. 73 ; Bruyn v. Russell, 52 Hun (N. Y.) 17. 
 
 1 People V. Molineux, 168 N. Y. 264, 61 N. E. 286, 306, 62 L. R. A. 193. 
 In a criminal case the genuiness of the paper to be, compared must be 
 proved beyond a reasonable doubt, Id. 
 
 2 King v. Donahue, 110 Mass. 155; Chandler v. Le Barron, 45 Me. 534; 
 Hickory v. United States, 151 U. S. 303; Doe v. Suckermore, 5 Adol. & 
 
§ 554 DOOUMBNTAEY EVIDENCE. 697 
 
 tures made on the trial are, by consent of parties, allowed to be com- 
 pared by the jury. A comparison of hands has frequently been re- 
 sorted to for the purpose of proving the identity of a person. This 
 was illustrated in a celebrated murder case, where such evidence 
 was introduced for the purpose of showing that certain anonymous 
 letters, written in a disguised hand, addressed to the city marshal 
 between the date of the disappearance of the deceased and the arrest 
 of the defendant, containing suggestions designed to mislead the offi- 
 cers of the law, had been written by the defendant, — the object be- 
 ing to incriminate the accused by identifying him with the person 
 who wrote the anonymous letters.' Evidence of this character was 
 received in the celebrated Tiehborne case; and such evidence has 
 been received for the purpose of identifying parties in various other 
 actions, such as those for sending threatening letters, for arson, and 
 in suits for libel and the like. 
 
 § 554 (567). Exceptions — Allowing comparison of hands. — ^Be- 
 fore the English statute was adopted, two exceptions to the general 
 rule excluding a comparison of hands to prove handwriting were 
 well established. One of these exceptions relating to ancient docu- 
 ments has been thus stated: "When a document is of such a date 
 that it cannot reasonably be expected to find living persons ac- 
 quainted with the handwriting of the supposed writer, either by 
 having seen him write or by having held correspondence with him, 
 the law, acting on the maxim, lex non cogit impossihilia, allows 
 other ancient documents,, which are proved to have been treated 
 and regularly preserved as authentic, to be compared with the dis- 
 puted one."* The other exception is that, when different instru- 
 ments are properly in evidence in the case for other purposes, the 
 handwriting of such instruments may be compared by the jury, and 
 the genuineness or simulation of the handwriting in question be 
 inferred from such comparison.^ These exceptions are still recog- 
 
 Bll. 703; McGlasson v. State, 37 Tex. Cr. 620, 40 S. W. 503, 66 Am. St. 
 Rep. 842; State v. Koontz, 31 "W. Va. 127, 5 S. B. 328. 
 
 3 Com. V. Webster, 5 Gush. 295, 52 Am. Dec. 711. 
 
 *Best, Bv. (10th Ed.) § 240; Doe v. Suckermore, 5 Adol. & Ell. 703; 
 Strother v. Lucas, 6 Peters, 763; Sweigart v. Richards, 8 Pa. St. 436; 
 Jackson v. Brooks, 8 Wend. 426; Wilson v. Betts, 4 Den. 201; Turnipseed 
 V. Hawkins, 1 McCord (S. C.) 272; West v. State, 22 N. J. L. 212; Clark v. 
 Wyatt, 15 Ind. 271, 77 Am. Deo. 90. See note, 6 Am. Dec. 171. 
 
 6 Moore v. United States, 91 U. S. 270; Van Wyck' v. Mcintosh, 14 N. Y. 
 439; Rogers v. Tyley, 144 111. 652; Swales v. Grubbs, 126 Ind. 106, 25 
 N. E. 877; Stokes v. United States, 157 U. S. 187; Castor v. Bernstein 
 (Cal.), 84 Pac. 244; Tower v. Whip, 53 W. Va. 158, 44 S. E. 179, 63 L. R. A. 
 
698 THE LAW OP EVIDENCE. § 555 
 
 nized and well established in those jurisdictions where the common 
 law, or so-called English rule, prcYails. Concerning this subject 
 Mr. Justice Bradley used the following language : "But the general 
 rule of the common law, disallowing a comparison of handwriting 
 as proof of signature, has exceptions equally weU settled as the rule 
 itself. One of these exceptions is that, if a paper admitted to be in 
 the handwriting of the party, or to have been subscribed by him, 
 is in evidence for some other purpose in the cause, the signature or 
 paper may be compared with it by the jury. ' ' ' 
 
 § 555 (568, 569). Writings used for comparison must be shown 
 to be genuine. — ^In those states in which the common law rule has 
 not been followed, or in which statutes authorize the comparison 
 with other writings, proved or admitted to be genuine, it is, of 
 course, not necessary that the writing used as a standard should be 
 in evidence or relevant for any other purpose.^ "Where writings, 
 otherwise irrelevant, are allowed to be used for the purpose of com- 
 parison, such writings should clearly be proved to be the genuine 
 handwriting of the party sought to be charged.' Any other rule 
 would lead to many collateral issues; and thus be clearly open to 
 the most serious objection which has been urged against the com- 
 parison of handwriting. It has been held that a paper, proposed 
 to be used as a standard, cannot be proved to be original and gen- 
 uine merely by the opinion of a witness that it is so, when such 
 opinion is derived solely from his general knowledge of the hand- 
 
 937; or otherwise properly In the record, as evidence taken at coroner's 
 Inquest, State v. David, 131 Mo. 380, 33 S. "W. 28; application for 
 attachment. Hunt v. State, 33 Tex. Cr. 252, 26 S. W. 206; bill of review, 
 Grooms v. State, 40 Tex. Cr. 319, 50 S. "W. 370; bail bond. State v. Noe, 119 
 N. C. 849, 25 S. B. 812; plea. Tower v. Whip, 53 W. Va. 158, 44 S. E. 
 179, 63 L. R. A. 937 (but see Springer v. Hall, 83 Mo. 693, 53 Am. Rep. 
 598). 
 
 « Moore v. United States, 91 U. S. 274; Hickory v. United States, 151 
 U. S. 303; Van Wyck v. Mcintosh, 14 N. Y. 442; Randolph v. Laughlln, 
 48 N. Y. 459; Brobston v. Cahill, 64 111. 354; State v. Fritz, 23 La. An. 55; 
 Hanley v. Gandy, 28 Tex. 213, 91 Am. Dec. 315; Johnston Co. v. Miller, 72 
 Mich. 265, 16 Am. St. Rep. 536; Swales v. Grubbs, 126 Ind. 106, 25 N. E. 
 877; State v. DeGraffl, 113 N. C. 688; Green v. Terwilleger, 56 Fed. 384; 
 State V. Farrington, 90 Iowa, 673; Williams v. State, 27 Tex. App. 466, 
 11 S. W. 481. 
 
 7 See cases cited In § 552 supra. 
 
 sHolmberg v. Johnson, 45 Kan. 197; Gaunt v. Harkness, 53 Kan. 405; 
 State v. Minton, 116 Mo. 605; Hanrlot v. Sherwood, 82 Va. 1; Walker v. 
 Steele, 121 Ind. 436; Spottiswood v. Weir, 80 Cal. 448; Com. v. Coe, 115 
 
§ 555 DOCUMENTARy EVIDENCE. 699 
 
 writing of the person whose handwriting it purports to he." The 
 genuineness of a writing offered for comparison cannot be shown 
 merely by comparison with another writing.^" Generally, where 
 such writings are admitted for the purpose of comparison, they must 
 be proved to the satisfaction of the judge as a prelirmnary ques- 
 tion; ^^ and his decision on such preliminary question is conclusive, 
 
 Mass. 481; Martin v. Magulre, 1 Gray, 177; Com. v. Eastman, 1 Cush. 189, 
 48 Am. Deo. 596. 
 
 oEborn v. Zimpelman, 47 Tex. 503, 26 Am. Rep. 315; Com. v. Eastman, 
 1 Cush. 189, 48 Am. Dec. 596; Jester v. Steiner, 86 Tex. 415; Sankey v. 
 Cook, 82 Iowa, 125. But a more liberal rule has been adopted in New 
 York and Ohio, McKay v. Lasher, 121 N. Y. 477; Bell v. Brewster, 44 
 Ohio St. 690. The 'production of a written Instrument ty a party Is not 
 such an admission that the body of the instrument or the signature Is 
 in his handwriting, that the writing can be used for the purpose of 
 comparison, Com. v. Coe, 115 Mass. 481; Martin v. Magulre, 7 Gray, 177 
 (in Michigan such writing was received where a witness admitted Its 
 genuineness on cross-examination, Dletz v. Fourth Nat. Bank, 69 Mich. 
 287) (but see, Doud v. Ried, 53 Mo. App. 553); nor for thjs purpose is 
 the possession of a diary proof that the owner is the writer of its contents. 
 Van Sickle v. People, 29 Mich. 61; nor is the possession of papers proof 
 that they are genuine, McCombs v. State, 109 Ga. 496, 34 S. E. 1021; nor 
 does the certificate of acknowledgment of a deed prove the signature so 
 that It is competent for this purpose, Hyde v. Woodfolk, 1 Iowa, 162; nor 
 Is a letter admissible for this purpose, when the only proof of its genuine- 
 ness is the fact that it has been received, purporting to be a reply to 
 another letter, Desbrow v. Farrow, 3 Rich. L. (S. C.) 382; "White S. M. Co. 
 V. Gordon, 124 Ind. 495, 19 Am. St. Rep. 109. This rule has been applied 
 to copies of letters In letterbooks. Com. v. Eastman, 1 Cush. 189, 48 Am. 
 Dec. 596; Cohen v. Teller, 93 Pa. St. 123; Spottiswood v. Weir, 66 Cal. 525, 
 6 Pac. 381; to photographic or enlarged copies of writings, Taylor's Will 
 Case, 10 Abb. Pr. N. S. (N. Y.) 300; Crane v. Dexter, 5 Wash. 479; White 
 S. M. Co. V. Gordon, 124 Ind. 495, 19 Am. St. Rep. 109; but In other cases, 
 after preliminary proofs as to the accuracy of such copies, they have 
 been allowed as proper standards of comparison, Marcy v. Barnes, 16 Gray, 
 162, 77 Am. Dec. 405; Hynes v. McDermott, 82 N. Y. 41, 37 Am. Rep. 538; 
 Busard v. McAnulty, 77 Tex. 438; Roswell v. Puller's Estate, 59 Vt. 688; 
 see § 581 infra; and the jury may use a magnifying glass In comparing 
 handwriting. White S. M. Co. v. Gordon, 124 Ind. 495, 19 Am. St. Rep. 
 109; Kannon v. Galloway, 2 Baxt. (Tenn.) 231 (see note by M. D. Elwell 
 in 29 Am. L. Reg. 553, as to the use of the microscope and camera in the 
 detection of forgery). 
 
 10 Archer v. United States, 9 Okla. 569, 60 Pac. 268; Winch v. Norman, 
 65 la. 186, 21 N. W. 511. 
 
 11 Com. v. Coe, 115 Mass. 504; Univ. of 111. v. Spaulding, 71 N. H. 163, 
 51 Atl. 731; Rowell v. Fuller, 59 Vt. 688; State v. Thompson, 80 Me. 194, 
 6 Am. St. Rep. 172; Walker v. Steele, 121 Ind. 436; Sankey v. Cook, 82 
 
700 THE LAW OF EVIDENCE. § 556 
 
 unless it appears to have been based on some erroneous view of law, 
 or was clearly not justified by the state of the evidence at that time.^" 
 The comparison of handwriting should be made at the trial ^' and 
 the writing used for comparison as well as the disputed writing 
 should be before the court and jury.^* 
 
 § 556(570,571). Proof of handvyriting — Expert evidence. — It 
 is often necessary to make use of the testimony of experts in the 
 proof of handwriting. This rule has been illustrated in a great 
 variety of cases.^° When comparison of handwriting is allowed, 
 
 Iowa, 125; McKay v. Lasher, 121 N. Y. 477; Powers v. McKenzie, 90 Tenn. 
 167; People v. Molmeux, 168 N. Y. 264, 61 N. E. 286; Rowell v. Fuller, 59 
 Vt. 692, 10 Atl. 853. Contra, State v. Hastings, 53 N. H. 461; Travis v. 
 Brown, 43 Pa. St. 17, 82 Am. Dec. 540. 
 
 12 State v. Thompson, 80 Me. 194, 6 Am. St. Rep. 174; Rowell v. Fuller, 
 5a Vt. 688; Com. v. Coe, 115 Mass. 504. 
 
 13 Kendall v. Collier, 97 Ky. 446, 30 S. "W. 1002. 
 
 1* Spottiswood V. Weir, 66 Cal. 525, 6 Pac. 381; Hynes v. McDermott, 
 82 N. Y. 41, 37 Am. Rep. 538; Collins v. Ball, 82 Tex. 259, 17 S. W. 614, 
 27 Am. St. mep. 877. 
 
 IB Whether certain words on a paper were written before or after the 
 paper was folded, Bacon v. Williams, 13 Gray, 525; whether a certain writ- 
 ing was thirty years old or more, or whether it had been recently written, 
 Eisfield V. Dill, 71 Iowa, 442; whether the whole of an instrument was 
 written by the same hand, with the same pen and Ink and at the same time, 
 Fulton V. Hood, 34 Pa. St. 365, 75 Am. Dec. 664; Reese v. Reese, 90 Pa. 
 St. 91, 35 Am. Rep. 634; Quinsigamond Bank v. Hobbs, 11 Gray, 250; 
 Cooper V. Bockett, 4 Moore P. C. 433; Porell v. Cavanaugh, 69 N. H. 364, 
 41 Atl. 860; whether certain words were written over others, Dubois v. 
 Baker, 30 N. Y. 355; whether words have been added since the execution 
 of the paper, Moye v. Herndon, 30 Miss. 118 (but see, Jewett v. Draper, 
 6 Allen, 434); whether anonymous letters written in a disguised hand 
 and calculated to divert suspicion from the defendant are in his hand- 
 writing. Com. V. Webster, 5 Cush. 295, 52 Am. Dec. 711 and note; whether 
 a word or writing has been altered, Vinton v. Peck, 14 Mich. 287; Ballen- 
 tine V. White, 77 Pa. St. 20; Bdelin v. Saunders, 8 Md. 118; whether 
 an old deed originally had a seal, Follett v. Rose, 3 McLean (U. S.) 332; 
 what differences exist between the disputed parts and other parts of the 
 instrument, and whether erasures and insertions have been made, Haw- 
 kins v. Grimes, 13 B. Mon. (Ky.) 258 (but see, Swan v. O'Fallon, 7 Mo. 
 251) ; whether two writings were written by the same hand, and which of 
 two writings exhibits the greater ease and facility of writing, Dermerritt v. 
 Randall, 116 Mass. 331; whether a certain writing could be that of a 
 very old man, Lansing v. Russell, 3 Barb. Ch. (N. Y.) 325; whether 
 writings were -vritten by a feigned or a natural hand, King v. Cator, 4 
 Esp. 117; Doe v. Suckermore, 5 Adol. & Ell. 703; Tally v. Cross, 124 Ala. 
 567, 26 So. 912; and in deciphering illegible writings, Knox v. Bank, 93 
 Mich. 511, 53 N. W. 828; Dresler v. Hard, 127 N. Y. 238, 27 N. E. 823; 
 
§ 557 DOCUMENTAKY EVIDENCK 701 
 
 the testimony of experts is, of course, admissible ; and they may ex- 
 press their opinions after making such comparisdn.^" But the courts 
 have often spoken of evidence derived from the comparison of hand- 
 writing as weak and unsatisfactory.^'' On the cross-examination of 
 experts on the subject of handwriting very considerable latitude 
 should be allowed. Thus, any writings or pa,rts of writings may be 
 exhibited to them for their opinion as to the identity of the hand- 
 writing with that in question. It was even held in a Georgia case 
 that neither the expert nor the opposite counsel is entitled to know 
 what writings will be used for this purpose, or whether they are 
 genuine.^' In some cases spurious writings or writings prepared 
 for the purpose have been allowed to be used in cross-examination." 
 In order that a witness should be competent as an expert in respect 
 to handwriting, it is not necessary that he should belong to any par- 
 ticular calling or profession.^" It is only necessary that the busi- 
 
 State V. Wetherell, 70 Vt. 274, 40 Atl. 728. But it Is not competent, for 
 the purpose of proving the genuineness of a signature against a party 
 to be charged thereby, to show by such testimony that the signature Is 
 not in a simulated handwriting, Rowing v. Manley, 49 N. Y. 192, 10 Am. 
 Rep. 346; and it has been held that it is not competent for experts to 
 testify whether, in their opinion, accounts purporting to extend through 
 a period of time were all written at the same time, Phoenix Ins. Co. v. 
 Philip, 13 Wend 81; Bllingwood v. Bragg, 52 N. H. 488. As to expert tes- 
 timony In general, see §§ 359, 392 supra. 
 
 18 State V. Shinborn, 46 N. H. 497, 88 Am. Dec. 224; State v. Ward, 39 
 Vt. 225; Com. v. Williams, 105 Mass. 62; Lyon v. Lyman, 9 Conn. 55; 
 Finch V. Gridley, 25 Wend. 469; Himrod v. Oilman, 147 111. 293; Hanriot 
 V. Sherwood, 82 Va. 1; Johnston Co. v. Miller, 72 Mich. 265, 16 Am. St. 
 Rep. 536; State v. Thompson, 80 Me. 194, 6 Am. St. Rep. 172; Bennett v. 
 Mathewes, 5 S. C. 478; State v. Harris, 5 Ired. (N. C.) 287. Contra, Hei> 
 rick V. Swomley, 56 Md. 439; Huston v. Schindler, 46 Ind. 40; Moye v. 
 Herndon, 30 Miss. 118; Hanley v. Gandy, 28 Tex. 213, 91 Am. Dec. 315; 
 Territory v. O'Hare, 1 N. Dak. 30; Fee v. Taylor, 83 Ky. 259; Snyder v. 
 Burks, 84 Ala. 53. See note, 63 L. R. A. 937-944. 
 
 "Turner v. Hand, 3 Wall. Jr. 115; Foster's Will, 34 Mich. 21; Whitaker 
 V. Parker, 42 Iowa, 585. See note, 66 Am. Dec. 240; see §§ 390, 392 supra. 
 
 18 Travelers' Ins. Co. v. Sheppard, 85 Ga. 751, 12 S. B. 18 ; Johnston 
 Harvester Co. v. Miller, 72 Mich. 265. But see. Gaunt v. Harkness, S3 
 Kan. 405, 36 Pac. 739, 42 Am. St. Rep. 297 and note. See § 389 supra. 
 
 i»Hoag V. Wright, 174 N. Y. 36, 66 N. E. 579; First Nat. Bank v. Allen, 
 100 Ala. 476, 14 So. 335, 46 Am. St. Rep. 80; Johnston Harvester Co. v. 
 Miller, 72 Mich. 272, 40 N. W. 429, 16 Am. St. Rep. 536; Browning v. 
 Gosnell, 91 la. 448, 59 N. W. 340. Excluded, Gaunt v. Harkness, 53 Kan. 
 405, 36 Pac. 739, 42 Am. St. Rep. 297; Howard v. Patrick, 43 Mich. 128, 5 
 N. W. 84. 
 
 20 The rule has been applied to 6onfc officers or clerks, Stone v. Hub- 
 
702 THE LAW OP EVIDENCE. § 557 
 
 ness opportunities and intelligence of the witness should be such as 
 to enable him to have reasonable skill in judging of handwriting.^^ 
 While it is not necessary that the witness should have made the 
 comparison of handwriting a specialty, it should appear that he has 
 been engaged in some business which calls for frequent comparisons, 
 and that he has in faqt been in the habit for a length of time of 
 making such comparisons.^^ 
 
 § 557 (572). Effect of alteration of instruments — ^What consti^ 
 tutes alteration. — The strictness of the ancient rule as to the al- 
 teration of documents is well illustrated in an early case, known as 
 Henry Pigot 's case,^' in which it was declared that a deed becomes 
 void, when the obligor or a stranger alters it in any material point, 
 without the privity of the obligee, be it by interlineation, addition, 
 erasing or by the drawing of a pen through the midst of any ma- 
 terial word. It was also declared that "if the obligee himself alters 
 the deed by any of said ways, although it is in words not material, 
 yet the deed is void." Afterward the same rigid doctrine was ap- 
 plied in the case of other contracts." But it has been wholly re- 
 pudiated, both in England and in this country, and has been de- 
 clared repugnant to justice and common sense."" While the pres- 
 
 bard, 7 Cush. 595; Speiden v. State, 3 Tex. App. 159; Pate v. People, 8 
 111. 644; Birmingham Nat. Bank v. Bradley, 108 Ala. 205, 19 So. 791; 
 merchants, Hyde v. Woolfolk, 1 Iowa, 159; Bdmondston v. Henry, 45 Mo. 
 App. 346; writing engravers, R. v. Williams, 8 Car. & P. 434; lawyers, 
 Hyde V. Woolfolk, 1 Iowa, 519; State v. Phair, 48 Vt 366; conveyancers, 
 Vinton v. Peck, 14 Mich. 287; teachers, Bacon v. Williams, 13 Gray, 525; 
 tooTc-keepers, State v. Ward, 39 Vt. 225; State v. De Graff, 113 N. C. 688; 
 Bradford v. People, 22 Colo. 157, 43 Pac. 1013; and officials in public 
 offices, Yates v. Yates, 76 N. C. 142; State v. Phair, 48 Vt. 366; State v. 
 De Graff, 113 N. C. 688; register of deeds, Kornegay v. Kornegay, 117 N. 
 C. 242, 23 S. E. 257; county cleric, Wheeler & W. M. Co. v. Buckhout, 60 
 N. J. L. 102, 36 Atl. 772. See cases cited 6 Encyc. of Ev. 416. 
 
 21 Cases just cited above; also note, 66 Am. Dec. 241. The mere fact 
 that one Is skilled in the use of a microscope does not make him compe- 
 tent to testify as' to handwriting as an expert, Stevenson v. Gunning's 
 Estate, 64 Vt. 601. 
 
 22 Ort V. Fowler, 31 Kan. 478. But see, Sweetzer v. Lowell, 33 Me. 450. 
 In some cases a somewhat stricter rule has been enforced than in the 
 cases already cited. Heacock v. State, 13 Tex. App. 97; State v. Tomp- 
 kins, 71 Mo. 616. 
 
 23 Pigot's Case, 11 Coke Rep. 27. See note, 86 Am. St. Rep. 102 et seq. 
 2* Master v. Miller, 4 T. R. 320, 1 Smith L. C. 857 (star paging) and 
 
 valuable note; Powell v. Divett, 15 East, 29; Davidson v. Cooper, 11 M. 
 & W. 778, 13 M. & M. 343. See note, 86 Am. St. Rep. 102 et seq. 
 
 2sAldons V. Cornwall, L. R. 3 Q. B. 573; United States v. Spalding, 2 
 Mason (U. S.) 478; Bigelow v. Stilphen, 35 Vt. 521; Bellows v. Weeks, 
 
§ 557 DOOUMBNTAEY EVIDBNOB. 703 
 
 ent rule of law is mucli more liberal on this subject, it is still the 
 rule "that any change in the terms of a written contract which va- 
 ries its original legal effect and operation, whether in respect to the 
 obligation it imports, or to its force as a matter of evidence, when 
 made by any party to the contract, is an alteration thereof, unless 
 all the parties to the contract gave their express or implied consent 
 to such change. And the effect of such alteration is to nullify and 
 destroy the altered instrument as a legal obligation, whether made 
 with fraudulent intent or not. " ^^ In other words, the later cases 
 make a distinction, not recognized by the earlier ones, between the 
 alteration and the spoliation of written instruments, that is, between 
 a change made by a party or privy and that made by a stranger; 
 and it is now the rule that parties are not to be deprived of the 
 benefit of their contracts through the wrongful act of a stranger." 
 If it appears that the alteration has been made since the instrument 
 came into the hands of the plaintiff, he may show that it was not 
 his act or the act of any agent ; and may recover, if the jury believe 
 that the alteration was made by a stranger, and that it was therefore 
 a spoliation.^* Parol evidence is admissible to impeach an instru- 
 ment by proof of a material alteration.^" 
 
 41 Vt. 590; Ames v. Brown, 22 Minn. 257. As to this general subject see 
 notes, 10 Am. Dec. 267-273; 1 Smith L. C. 1304-1316; 37 Am. Rep. 260; 4 
 Am. St. Rep. 25;. 25 Am. Rep. 481-484; 17 Am. Rep. 97-106; 86 Am. St. 
 Rep. 80-134. 
 
 28 Daniel, Neg. Inst. (5tli Ed.) § 1373; Mersman v. Werges, 112 U. S. 
 139; Wood v. Steele, 6 Wall. 80; Kilkelly v. Martin, 34 Wis. 525; Greenfield 
 Bank v. Stowell, 123 Mass. 196, 25 Am. Rep. 67; Bckert v. Louis, 84 Ind. 
 99; Adair v. England, 58 Iowa, 314. See full note, 86 Am. St. Rep. 80-134. 
 
 27Clopton v. Elkin, 49 Miss. 95; Puller v. Green, 64 Wis. 159; Bigelow 
 V. Stilphen, 35 Vt. 521; Piersol v. Grimes, 30 Ind. 129, 95 Am. Dec. 673; 
 Bellows V. Weeks, 41 Vt. 590; Fisher v. King, 153 Pa. St. 3; Ames v. 
 Brown, 22 Minn. 257; Rees v. Overbaugh, 6 Cow. 746; Gleason v. Hamilton, 
 138 N. y. 353 and cases cited; Lubbering v. Kolbrecher, 22 Mo. 596; Lee 
 V. Alexander, 9 B. Mon. (Ky.) 25, 48 Am. Dec. 412; Nichols v. Johnson, 
 10 Conn. 192; Boyd v. McConnell, 10 Humph. (Tenn.) 68; Hunt v. Gray, 
 35 N. J. L. 227, 10 Am. Rep. 232; Ford v. Ford, 17 Pick. 418; City of 
 Orlando v. Gooding, 34 Fla. 244, 15 So. 770; White v. Harris, 69 S. C. 
 65, 48 S. E. 41, 104 Am. St. Rep. 791. 
 
 28 Drum V. Drum, 133 Mass. 566; Murray v. Peterson, 6 Wash. 418; 
 Cheek v. Nail, 112 N. C. 370; White Sewing Mach. Co. v. Dakin, 86 Mich. 
 581; Union Nat Bank v. Roberts, 45 Wis. 373. See note, 36 Am. St 
 Rep. 12S. 
 
 2» Goodwin v. Norton, 92 Me. 532, 43 Atl. Ill; Montgomery v. Crosthwait, 
 90 Ala. 553, 8 So. 498, 24 Am. St. Rep. 832; Courcamp v. Weber, 39 Neb. 
 533, 58 N. W. 187; Winters v. Mowrer, 163 Pa. St 239, 29 Atl. 916. 
 
704 THE LAW OF EVIDENCE. § 559 
 
 § 558 (573). Same rule although change is to the disadvantage 
 of the wrongdoer. — When a material alteration is made, the con- 
 tract is vitiated, even though the change might operate to the dis- 
 advantage of the wrongdoer or to the benefit of the other party. 
 The party objecting to such alteration can well say that the con- 
 tract sued on is a contract which he never made, and that the one 
 which was executed has been cancelled by the change. The identity 
 of the contract is destroyed; and the mutilated paper affords no evi- 
 dence of the contract.^" As illustrations of this rule, a change in 
 the date of payment of a note, although the payment is delayed, 
 vitiates the note ; ^^ and the addition of a new surety vitiates the 
 note as to a surety who has already signed.'^ The same is true of a 
 change diminishing the amount of interest to be paid.'' 
 
 § 559(574). Immaterial alterations — Conflicting views. — It 
 does not necessarily follow that all alterations made by a party or 
 privy after delivery vitiate the contract. In a great variety of 
 cases where such alterations have been made, the instrument has 
 been admitted as evidence of the rights of the parties. But in 
 such cases, they have been alterations of so little importance as to 
 be wholly immaterial, or they have been made to correct obvious and 
 clerical errors, and for the purpose of making the contract con- 
 form to the actual agreement.'* Alterations in deeds are governed 
 
 sowoodworth v. Bank of America, 19 Johns. 391, 10 Am. Dec. 239 and 
 elaborate note; Angle v. Northwestern M. L. Ins. Co., 92 U. S. 330; Green- 
 field Bank v. Stowell, 123 Mass. 196, 25 Am. Rep. 67; Draper v. Wood, 112 
 Mass. 315, 17 Am. Rep. 92; Brown v. Straw, 6 Neb. 536, 29 Am. Rep. 369; 
 Benedict v. Cowden, 49 N. Y. 396, 10 Am. Rep. 382; Miller v. Finley, 26 
 Mich. 249, 12 Am. Rep. 306; Warrington v. Early, 2 Ell. & B. 763; Fordyce 
 V. Kosmlnski, 49 Ark. 40, 4 Am. St. Rep. 18; National Ulster Co. Bank v. 
 Madden, 114 N. Y. 280, 11 Am. St. Rep. 633; Burrows v. Klunk, 70 Md. 
 451, 14 Am. St. Rep. 371; Hartley v. Carboy, 150 Pa. St 23. See notes, 
 71 Am. Dec. 369; 86 Am. St. Rep. 87 et seq. 
 
 31 Brown v. Straw, 6 Neb. 537, 29 Am. Rep. 369. 
 
 saWoodworth v. Bank of America, 19 Johns. 391, 10 Am. Dec. 239 and 
 note; Browning v. Gosnell, 91 Iowa, 448, 59 N. W. 340; Barnes v. Van 
 Keuren, 31 Neb. 165; Little Rock Trust Co. v. Martin, 57 Ark. 277, 21 
 S. W. 468. 
 
 asCoburn v. Webb, 56'Ind. 96, 26 Am. Rep. 15; Palmer v. Poor, 121 Ind. 
 135; Sanders v. Bagwell, 37 S. C. 145; First Nat Bank v. Hall, 83 Iowa, 645, 
 50 N. W. 944. 
 
 s* Adding words "on demand" to a note expressing no time of payment, 
 Aldons V. Cornwall, L. R. 3 Q. B. 573 (see notes, 36 Am. St. Rep. 128; 17 
 Am. Rep. 101) ; inserting in a note the rate of interest which had actu- 
 ally been agreed upon. First Nat. Bank v. Carson, 60 Mich. 432; Rainbolt 
 V. Eddy, 34 Iowa, 440, 11 Am. Rep. 152 (contra, Wyerhauser v. Dun, 100 
 
§ 559 DOCUMENTARY EVIDENCE. 705 
 
 by the same rule where neither the rights, interests, duties nor ob- 
 ligations of either of the parties are in any manner affected or 
 changed.'" There are two distinct lines of decisions as to whether 
 an alteration, which would otherwise be immaterial, made by the 
 party interested, with a frcmdiilent intent and with a view to gain 
 some improper advantage, will prevent the use of the instrument 
 as evidence. The older decisions hold that, if the alteration be 
 fraudulently made, it makes little difference whether it be in a ma- 
 terial or immaterial part, for, in either case, the person has trans- 
 gressed the rule for the prevention of fraud, and having fraudu- 
 lently destroyed the identity of the instrument, he must accept all 
 the consequences.'" This view is thus expressed by Lord Kenyon : 
 
 N. Y. 150) ; Inserting in a promissory note the words "in gold," Bridges 
 V. Winters, 42 Miss. 135, 97 Am. Dec. 443, 2 Am. Rep. 598 (but see, Ho- 
 garth V. Breedlove, 39 Tex. 561, where it is held that it avoids the note 
 as to sureties) ; adding an immaterial date, Inglish v. Breneman, 5 Ark. 
 377, 41 Am. Dec. 96; changing the date or the name of a payee so as 
 to conform to the intent and agreement of the parties, Duker v. Pranz, 
 7 Bush (Ky) 273, 3 Am. Rep. 314; Jessup v. Dennison, 2 Disn. (Ohio) 150; 
 Dirby v. Thrall, 44 Vt. 413, 8 Am. Rep. 389; Cole v. Hills, 44 N. H. 227; 
 Ames V. Colbum, 11 Gray, 390, 71 Am. Dec. 723; King v. Rea, 13 Colo. 
 69; Westmoreland v. Westmoreland, 92 Ga. 233, 17 S. B. 1033; retracing 
 of a name, Dunn v. Clements, 7 Jones (N. C.) 58; Reed v. Roark, 14 Tex. 
 329, 65 Am. Dec. 127; inserting a dollar marJc before numbers, Houghton 
 V. Francis, 29 111. 244; adding the name of a witness, omitted in a note, 
 Fuller V. Green, 64 Wis. 159; changing the figures so as to make the mar- 
 ginal figures and the written amount correspond. Smith v. Smith, 1 R. I. 
 398, 53 Am. Dec. 652; Johnston Harvester Co. v. McLean, 57 Wis. 258, 
 15 N. W. 177, 46 Am. Rep. 39; changing phraseology without affecting 
 sense or legal effect of instrument. State v. Riebe, 27 Minn, 315, 7 N. W. 
 262; Gushing v. Field, 70 Me. 50, 35 Am. Rep. 293; interlining the word 
 "before" over word "by," held not material under circumstances. Express 
 ji'ub. Co. v. Aldine Press, 126 Pa. St. 347, 17 Atl. 608; changing the serial 
 numbers of railroad bonds, Wylie v. Railway Co., 41 Fed. 623; indorser 
 erasing his name from face of note and placing it on the back, Reilly 
 V. First Nat. Bank, 148 111. 349, 35 N. B. 1120; red ink memorandum on 
 back of note stating amount of interest due and resulting total, Yost v. 
 Watertown Steam Bngine Co. (Tex. Civ. App.), 24 S. W. 657. For further 
 Illustrations, see 1 Encyc. of Ev. 784 et seq. See also note, 86 Am. St. Rep. 
 87 et seq. 
 
 36 Smith V. Crooker, 5 Mass. 538; Dexby v. Thrall, 44 Vt. 413, 8 Am. Rep. 
 389; Reilly v. First Nat. Bank, 148 111. 349; Gordon v. Third Nat. Bank, 
 144 U. S. 97 and note. Same rule as to contracts, Consaul v. Sheldon, 35 
 Neb. 247; Cline v. Goodale, 23 Ore. 406. See note, 1 Smith, L. C. 1304-1316. 
 36 First' Nat. Bank v. Fricke, 75 Mo. 178, 42 Am. Rep. 397; Turner v. 
 Billagram, 2 Cal. 523; Den v. Wright, 2 Halst. (N. J.) 175, 11 Am. Dec. 
 45 
 
706 THE LAW OF EVIDENCB. § 560 
 
 "No man shall be permitted to take the chance of committing a 
 fraud without running any risk of losing by the event when it is 
 detected. ' ' ^^ But the later and, in the opinion of .the author, the 
 better rule is that as such an alteration is wholly immaterial and in 
 no way changes the liability of the parties, it is also immaterial with 
 what intent such alteration was in fact made. Many of the cases 
 often cited to support the other doctrine are obiter, beiug in refer- 
 ence to changes which were in fact material, whereby the document 
 had lost its identity; but these reasons will not apply when such 
 alterations are whoUy immaterial. According to this view, an im- 
 material alteration is not made material simply by a fraudulent 
 intent, and, if such intent was not effectuated into a material 
 change, the intent alone does not make it material. The motive 
 for the act cannot be inquired into, unless the act itself affect ma- 
 terially the rights of the parties.^' And, although an alteration by 
 the party, if unexplained, may authorize the inference of a fraud- 
 ulent intent, such inference may be rebutted.'* 
 
 § 560 (575). Test of the materiality of the alteration. — ^It will 
 be observed that the cases in which it has been held that alterations 
 are not fatal to the contract are all those in which the alteration 
 was of such a character as not to change the legal effect or opera- 
 tion of the contract. But within the meaning of the rule under dis- 
 cussion, very slight changes in the instrument may he material, 
 and prevent its use as evidence, or as the foundation of any claim. 
 The rule rests not only upon the principle that the altered con- 
 tract is not the one agreed iipon, but also upon the ground that a 
 party who has the custody of an instrument made for his benefit 
 is bound to preserve it in its original state. The public interest 
 demands that the integrity of legal instruments should be pre- 
 served ; and the party who may suffer by reason of his own altera- 
 tion of such an instrument has no right to complain.*" The f oUow- 
 
 596; Hunt v. Gray, 35 N. J. 227, 10 Am. Rep. 232; Greenl. Ev. § 568. But 
 see Williams v. Jenson, 75 Mo. 681. 
 
 87 Cited in Hunt v. Gray, 35 N. J. 227, 10 Am. Rep. 232. 
 
 88 Fuller V. Green, 64 Wis. 159, 24 N. W. 907, 54 Am. Rep. 600; Thornton 
 V. Appleton, 29 Me. 298; Miller v. Gilleland, 19 Pa. St. 119; Robinson v. 
 Phoenix Ins. Co., 25 Iowa, 430; Moj^e v. Herndon, 30 Miss. 120. 
 
 89 Shroeder v. Webster, 88 Iowa, 627, 55 N. W. 569; Booth v. Powers, 
 56 N. Y. 22. Contra, Moon v. Hutchinson, 69 Mo. 429. 
 
 *o Davidson v. Cooper, 11 M. & W. 795, 13 M. & W. 343. On the subject 
 of materiality of alterations, see notes, 17 Am. Rep. 101; 4 Am. St. Rep. 
 25; 86 Am. St. Rep. 86 et seq; and notes cited under § 557 supra. 
 
§ 560 DOCUMENTARY EVIDENCE. 707 
 
 ing is the test given by Mr. Stephen for determining whether the 
 change is material: "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 what- 
 ever."** Whether an alteration is material is a question for the 
 court." 
 
 *i Steph. Ev. art. 89; White S. M. Co. v. Saxon, 121 Ala. 399, 25 So. 784; 
 McCormlck Harv. Mach. Co. v. Lauber, 7 Kan. App. 730, 52 Pac. 577; 
 Phoenix Ins. Co. v. McKeman, 100 Ky. 97, 37 S. W. 490. Among illustra- 
 tions of alterations in contracts, which have been held material, are 
 alterations in the date. Wood v. Steele, 6 Wall. 80; Miller v. Gilleland, 19 
 Pa. St. 119; Lisle v. Rogers, 18 B. Mon. (Ky.) 528; Taylor v. Taylor, 12 
 Lea (Tenn.) 714; Outhwaite v. Luntley, 4 Camp. 179; Bathe v. Taylor, 
 15 East, 412; McCormick Harv. Mach. Co. v. Lauber, 7 Kan. App. 730, 52 
 Pac. 577; Ruby v. Talbott, 5 N. M. 251, 21 Pac. 72; Low v. Merrill, 1 Pin. 
 340 (see notes, 17 Am. Rep. 101; 10 Am. Dec. 268; 71 Am. Dec. 724; 86 
 Am. St Rep. 99); in the place of payment by erasing or inserting the 
 place of payment, Winter v. Pool, 100 Ala. 503; Baugh v. Anderson, 91 
 Ga. 831; Woodnorth v. Bank, 19 Johns. 391, 10 Am. Dec. 239 and full note; 
 note, 86 Am. St. Rep. 98; or by erasing the place and inserting another, 
 Tidmarsh v. Grover, 1 Maule & S. 735; Bank of 0. "Valley v. Lockwood, 13 
 W. Va. 392, 81 Am. Rep. 758; by writing "waive notice and protest" over 
 an indorsement in blank, Davis v. Bppler, 38 Kan. 629; by inserting a 
 place of payment, when none is mentioned, Nazro v. Fuller, 24 Wend. 
 374; Townsend v. Star Wagon Co., 10 Neb. 615, 35 Am. Rep. 493; White- 
 sides V. Northern Bank, 10 Bush (Ky.) 501, 19 Am. Rep. 74; by changing 
 the name, McAra v. Watson, 2 S. (Scotch, June, 1823) 366; Home v. Pur- 
 vis, 14 S. (Scotch, June, 1836) 898; Hollis v. Harris, 96 Ala. 288; by add- 
 ing or erasing "junior" in the signature, Broughton v. Fuller, 9 Vt. 373; 
 by changing the nature of the note, as to its being joint or joint and 
 several, Perring v. Home, 4 Bing. 28, 12 Moore, 135, 2 Car. & P. 401; Heath 
 V. Blake, 28 S. C. 406; Humphreys v. Guillow, 13 N. H. 385, 38 Am. Dec. 
 499; Hemmenway v. Stone, 7 Mass. 58, 5 Am. Dec. 27; Bckert v. Louis, 
 84 Ind. 99; by striking off or adding signatures, Hamilton v. Hooper, 46 
 Iowa, 515, 26 Am. Rep. 161; Wallacp v. Jewell, 21 Ohio St. 163, 8 Am. 
 Rep. 48; Lunt v. Silver, 5 Mo. App. 186; Hoiick v. Graham, 106 Ind. 195, 
 55 Am. Rep. 727; Sullivan v. Rudisill, 63 Iowa, 158; Monson v. Drakeley, 
 40 Conn. 552, 16 Am. Rep. 74; Gardner v. Welsh, 5 El. & B. 82; Smith 
 v. United States, 2 Wall. 219; Mason v. Bradley, 11 M: & W. 590; note, 86 
 Am. St. Rep. 91 et seg; by changing the consideration, Knill v. Williams, 
 10 East, 431; Low v. Argrove, 30 Ga. 129; or amount to be paid. Brown 
 V. Jones, 3 Port. (Ala.) 420; Waterman v. Vose, 43 Me. 504; Schwarz v. 
 Oppold, 74 N. Y. 307; Jones v. Bangs, 40 Ohio St. 139, 48 Am. Rep. 664; 
 Neff V. Horner, 63 Pa. St. 327, 3 Am. Rep. 555; Green v. Snead, 101 Ala. 
 205; note, 86 Am. St. Rep. 96; by changing the amount or mode of paying 
 interest, Schnewind v. Hacket, 54 Ind. 248; Gwin v. Anderson, 91 Ga. 831; 
 Harsh v. Klepper, 28 Ohio St. 200; Hoopes v. Collingwood, 10 Colo. 107; 
 Heath v. Blake, 28 S. C. 406; Woodworth v. Anderson, 63 Iowa, 503; Davis 
 
708 THE LAW OF EVIDENCE. § 561 
 
 § 561 (576). Implied consent to alteration — Blanks. — Many of 
 the cases already cited afford illustrations of the rule that material 
 alterations in negotiable paper avoid the contract, even in the 
 hands of a bona fide holder.*' But if the* maker leave room for 
 alteratioThs to be made or ilanks to te filled in such manner as to ex- 
 cite no suspicion, he may be liable to a bona fide holder, if such 
 changes are made when there are no marks on the instrument giving 
 notice of the alterations.^* If the alteration is made before delivery 
 
 V. Henry, 13 Neb. 497, see note, 48 Am. Rep. 667; note, 86 Am. St. Rep. 96; 
 by inserting the rate of interest, Merritt v. Dewey, 218 111. 599, 75 N. E. 
 1066, 2 Li. R. a. N. S. 217 and note; by adding or inserting any special 
 stipulations, American Pub. Co. v. Fisher, 10 Utah, 147; Mclntyre v. 
 Velte, 153 Pa. St. 350; Flanigan v. Phelps, 42 Minn. 186; by making a 
 change in the description of property, Marcy.v. Dunlap, 5 Lans. (N. Y.) 
 365; Sherwood r. Merritt, 83 Wis. 233; Hollingsworth v. Holbrook, 80 
 Iowa, 151; by changing a non-negotiable to a negotiable instrument, Cros- 
 well V. Labree, 81 Me. 44, 10 Am. St. Rep. 238; Johnson v. United States 
 Bank, 2 B. Mon. (Ky.) 310; Pepoon v. Stagg, 1 Nott & McC. (S. C.) 102; 
 Brown v. Straw, 6 Neb. 536, 29 Am. Rep. 369; McAuley v. Gordon, 64 
 Ga. 221; Union Nat. Bank v. Roberts, 45 Wis. 373; Needles v. Shaffer, 60 
 Iowa, 65; Walton Plow Co. v. Campbell,. 85 Neb. 173, 52 N. W. 883; First 
 Nat. Bank v. Laughlin, 4 N. D. 391, 61 N. W. 473; note, 86 Am. St. Rep. 
 95 et seq; by adding the words "subject to settlement between us" to a 
 note, Payne v. Long, 121 Ala. 385, 25 So. 780; by the erasure of the name 
 of a surety from a bond. Smith v. United States, 2 Wall. 219; note, 86 
 Am. St. Rep. 90-91; by cutting off, Sharpe v. Bagwell, 1 Dev. Bq. (N. 
 G.) 115; or adding the natne of a vAtness, Brackett v. Mountfort, 11 Me. 
 115; Homer v. Wallis, 11 Mass. 309, 6 Am. Dec. 169; although it has been 
 held otherwise where the name has been accidentally omitted. Smith v. , 
 Dunham, 8 Pick. 246.' Any alteration as to the time of payment, Wyman 
 V. Yeomans, 84 III. 403; Long v. Moore, 3 Esp. 155 and note; Alderson v. 
 Langdale, 3 Barn. & Adol. 660; or as to the mode or article in which 
 payment is to be made has the same effect, Stevens v. Graham, 7 Serg. 
 & R. (Pa.) 505; Martendale v. Follptt, 1 N. H. 95; Schwalm v. Mclntyre, 
 17 Wis. 232; Angle v. Northwestern Ins. Co., 92 U. S. 330. For further 
 illustrations see 1 Encyc. of Ev. 788 et seq. 
 
 42 Belfast Bank v. Harriman, 68 Me. 522; Keen v. Monroe, 75 Va. 424; 
 Pritchard v. Smith, 77 Ga. 463. 
 
 43 Benedict v. Cowden, 49 N. Y. 396, 10 Am. Rep. 382; Angle v. North- 
 western Mut. L. Ins. Co., 92 U. S. 330. 
 
 44 Bank of Pittsburg v. Neal, 22 How. 96; Goodman v. Simonds, 20 How. 
 343; Angle v. Northwestern M. Life Ins. Co., 92 U. S. 330; Garrard v. 
 Lewis, 10 Q. B. Div. 30; Abbott v. Rose, 62 Me. 194, 16 Am. Rep. 427; Bene- 
 dict V. Cowden, 49 N. Y. 396, 10 Am. Rep. 382; Garrard v. Hadden, 67 Pa. 
 St. 82, 5 Am. Rep. 412; Blakey v. Johnson, 13 Bush (Ky.) 197, 26 Am. 
 Rep. 254; Canon v. Grigsby, 116 111. 151, 56 Am. Rep. 769; Johnston Har- 
 vester Co. V. McLean, 57 Wis. 258, 15 N. W. 177, 46 Am. Rep. 39. Contra, 
 
§ 562 DOCUMENTAKT EVIDENCE. 709 
 
 or with the consent of all the parties, of course the validity of the 
 instrument as a contract or as a means of evidence is not affected.*" 
 Such consent is often implied where an instrument is signed and de- 
 livered, and blank places are left unfilled. It ha^ often been held 
 in such cases that the holder has the implied authority to fill the 
 blanks in conformity to the general character of the papei*.*" 
 
 § 562 (577). Unauthorized filling of blanks—Deeds.— But the 
 depositary of a written instrument containing blanks has no implied 
 authority to make a new instrument by erasing what is written or 
 printed, nor by filling the blanks with stipulations repugnant to the 
 plainly expressed intention of the same, as shown by its written or 
 printed terms ; " and although the name of a grantee in a deed may 
 be inserted after execution, pursuant to parol authority, there is no 
 implied authority to insert the name of a person other than the one 
 
 Homes v. Trumper, 22 Mich. 427, 7 Am. Rep. 661; Worrall v. Gheen, 39 
 Pa. St. 388; Greenfield Bank v. Stowell, 123 Mass. 196, 25 Am. Rep. 67; 
 Goodman v. Eastman, 4 N. H. 455; Knoxville Bank v. Clarke, 51 Iowa, 
 264. See notes, 10 Am. Dec. 267-273; 4 Am. St. Rep. 25. 
 
 *BRavlsies v. Alston, 5 Ala. 297; Stewart v. Preston, 1 Pla. 10, 44 Am. 
 Dec. 621; Wickes v. Caulk, 5 Harr. & J. (Md.) 36; Boston v. Benson, 12 
 Cush. 61; Camden Bank v. Hall, 14 N. J. L. 583; Lewis v. Payn, 8 Cow. 
 71, 18 Am. Dec. 427; Bell v. Boyd, 76 Tex. 133; Janney v. Goehringer, 
 52 Minn. 428. See note, 86 Am. St. Rep. 107 et seq. 
 
 46 Bank of Commonwealth v. McChord, 4 Dana (Ky.) 119, 29 Am. Dec. 
 398; Spitler v. James, 32 Ind. 202, 2 Am. Rep. 334; Redllch v. Doll, 54 
 N. Y. 234, 13 Am. Rep. 573; Gillaspie v. Kelley, 41 Ind. 158, 13 Am. Rep. 
 318; Garrard v Hadden, 67 Pa. St. 82, 5 Am. Rep. 412; McGrath v. Clark, 
 56 N. y. 34, 15 Am. Rep. 372; Rainbolt v. Eddy, 34 Iowa, 440, 11 Am. Rep. 
 152; Van Duzer v. Howe, 21 N. Y. 531; Yocum v. Smith, 63 111. 321, 14 
 Am. Rep. 120; Geddes v. Blackmore, 132 Ind. 551. See long notes, 10 
 Am. Dec. 271; 13 Am. Dec. 669; 17 Am. Rep. 97. As deeds, Eagleton v. 
 Gutteridge, 11 M. & W. 465; West v. Steward, 14 M. & W. 47; Vose v. 
 Dolan, 108 Mass. 155, 11 Am. Rep. 331; Devin v. Himer, 29 Iowa, 297; 
 Clark V. Allen, 34 Iowa, 190; Schintz v. McManamy, 33 Wis. 299; Murray 
 V. Klinzing, 64 Conn. 78; powers of attorney to transfer stock. Commer- 
 cial Bank v. Kortright, 22 Wend. 348, 34 Am. Deo. 317; promissory notes, 
 Angle V. Northwestern M. L. Ins. Co., 92 U. S. 330; Redllch v. Doll, 54 
 N. Y. 234, 13 Am. Rep. 573; Wilson v. Henderson, 17 Miss. 375, 48 Am. Dec. 
 716; Michigan Bank v. Bldred, 9 Wall. 544; appeal bonds. Ex parte Decker, 
 6 Cow. 59; Ex parte Kerwin, 8 Cow. 118; iail bonds. Hale v. Russ, 1 Me. 
 334; Gordon v. Jeffery, 2 Leigh (Va.) 410 (but see, Gilbert v. Anthony, 
 1 Yerg. (Tenn.) 69, 24 Am. Dec. 439); blank indorsements on promissory 
 notes, Edwards v. Scull, 11 Ark. 325; Dunham v. Clogg, 30 Md. 284; Spitler 
 V. James, 32 Ind. 202, 2 Am. Rep. 334. See note, 86 Am. St. Rep. 107 et seq. 
 
 *7 Angle V. Northwestern M. L. Ins.' Co., 92 U. S. 330; McCoy v. Lock- 
 wood, 71 Ind. 319. 
 
710 THE LAW OF EVIDENCE. § 563 
 
 designated." But the authority to insert a name after the delivery 
 of the deed,*" or to fill up the blanks of a deed which has nothing 
 but the signature and seals attached °'' will not be implied. An al- 
 teration in a deed of conveyance after delivery does not operate to 
 reconvey the title to the original grantor. The title remains in the 
 grantee, and he may bring ejectment upon it. The title passed by 
 the deed has performed its office, and its continued existence or in- 
 tegrity is not essential to the title, although a fraudulent and ma- 
 terial change may disable the holder from bringing an action upon 
 its covenants ; °^ and there is doubt whether such a deed can be used 
 as any evidence of title.^^ 
 
 § 563 (578). Presumption in case of alteration — English rule. — 
 When alterations appear in written iustruments offered as evidence, 
 what presumptions arise, and on whom rests the burden of proof? 
 These are questions which have given rise to elaborate discussion in 
 England, and as to which great diversity of opinion exists in this 
 country. Mr. Stephen thus states the rule as now established in 
 England: "Alterations and interlineations appearing on the face 
 of a deed are, in the absence of all evidence relating to them, pre- 
 sumed to have been made before the deed was completed. Altera- 
 tions and interlineations appearing on the face of a will are, in the 
 absence of all evidence relating to them, presumed to have been made 
 after the execution of the will. There is no presumption as to the 
 time when alterations and interlineations appearing on the face 
 of writings, not under seal, were made, except that it is presumed 
 that they were so made that the making would not constitute an 
 offense." "' As vrill be seen when the different views are stated, it 
 would be in vain to attempt to reconcile the decisions upon this sub- 
 ject in the United States. It wiU be found, however, that the dis- 
 
 *8 Schlntz V. McManamy, 33 Wis. 299. 
 
 48 Allen V. Withrow, 110 U. S. 119. 
 
 BO Burns v. Lynde, 6 Allen, 305; Gilbert v. Anthony, 1 Yerg. (Tenn.) 
 69, 24 Am. Dec. 439. 
 
 Bi Woods V. HUderbrand, 46 Mo. 284, 2 Am. Rep. 513; Lewis v. Payn, 
 8 Cow. 71, 18 Am. Dec. 427; Jackson v. Gould, 7 Wend. 364; Herrick v. 
 Malin, 22 Wend. 388; Alexander v. Hickox, 34 Mo. 496, 86 Am. Dec. 118; 
 Waring v. Smyth, 2 Barb. Ch. (N. Y.) 119, 47 Am. Dec. 299; Burgess v. 
 Blake, 128 Ala. 105, 28 So. 963, 86 Am, St. Rep. 78 and note. 
 
 02 Woods V. Hilderbrand, 46 Mo. 284, 2 Am. Rep. 513; Waring v. Smyth, 
 2 Barb. Ch. (N. Y.) 119, 47 Am. Dec. 299; Burgess v. Blake, 128 Ala. 
 105, 28 So. 963, 86 Am. St. Rep. 78 and note. See § 417 supra. 
 
 o» Steph. Ev. art. 89. See Franklin v. Baker, 48 Ohio St. 296, 27 N. E. 
 550, 29 Am. St. Rep. 547. See also note, 86 Am. St. Rep. 128 et seq. 
 
§ 564 DOCUMENTAEY EVIDENCE. 711 
 
 tinction which exists in England with respect to deeds and other in- 
 struments' is not generally made in this country. The mere fact that 
 there is an interlineation or alteration would not seem to call for any 
 explanation, provided the appearance of the writing and ink is such 
 as to iadicate that the whole was written at the same time and hy 
 the same person. In such eases, it is clear that the usual presump- 
 tion in favor of innocence and against wrong doing will obtain ; and 
 the burden will rest upon the person asserting that a wrongful al- 
 teration has been made."* So the alteration taaj be sufficiently ex- 
 plained, if properly noted in the attestation clause.^'^ The difficulty 
 arises when it is evident from the difference in handwriting or ink, 
 or from other indications that an alteration has been made ; and in 
 those other cases where it may seem doubtful whether the interlinea- 
 tion or change was made in the same ink and handwriting. 
 
 § 564 (579). Same — Conflicting views in the United States. — ^In 
 some states where the rule prevailing in England as to deeds is 
 adopted, it is held, if nothing is shown to the contrary, that the al- 
 teration of a written instrument should be presumed to have been 
 made before or at the time of its execution ; and it has been argued 
 that this rule is better adapted to this country where so many con- 
 tracts are drawn by the parties without great care in regard to inter- 
 lineations and alterations. "^^ In accordance with this view the su- 
 preme court of Minnesota have thus stated the rule as held by them : 
 "We are therefore of opinion that the correct rule is that the burden 
 is upon the maker to show that the alteration was made after deliv- 
 er Yakima Bank v. Knipe, 6 Wash. 348; "Wolferman v. Bell, 6 Wash. 84, 
 36 Am. St. Rep. 126 and note; Des Moines Bank v. Harding, 86 Iowa, 153; 
 Houston v. Jordan, 82 Tex. 352; McLain v. Bedgood, 89 Ga. 793; Shroeder 
 V. Webster, 88 Iowa, 627; Conger v. Crabtree, 88 Iowa, 536; Zimmennan 
 V. Camp, 155 Pa. St. 152. See note, 86 Am. St. Rep. 128 et seq. 
 BO Smith V. United States, 2 Wall. 232. 
 
 66 Little v. Herndon, 10 Wall. 26; Sirrine v. Briggs, 31 Mich. 443; Stover 
 V. Ellis) 6 Ind. 152; Des Moines Nat. Bank v. Harding, 86 Iowa, 153; 
 Rainbolt v. Eddy, 34 Iowa, 440, 11 Am. Rep. 152; Wolferman v. Bell, 6 
 Wasfc. 84, 36 Am. St. Rep. 126 and note; Stillwell v. Patton, 108 Mo. 352, 
 18 S. W. 1075; North River Co. v. Shrewsbury, 22 N. J. L. 424, 53 Am. Dec. 
 258; Beaman v. Russell, 20 Vt. 205, 49 Am. Dec. 775; Wicker v. Pope, 12 
 Rich. L. (S. C.) 387, 75 Am. Dec. 732; Franklin v. Baker, 48 Ohio St. 
 296, 27 N. E. 550, 29 Am. St. Rep. 547 and note; Kendrick v. Latham, 
 25 Pla. 819; Sharpe v. Orme, 61 Ala. 263; Hagan v. Merchants Co., 81 
 Iowa, 321; Insurance Co. v. Brim, 111 Ind. 281, 12 N. E. 315; Ward v. 
 Cheney, 117 Ala. 238, 22 So. 996; Smith v. Parker (Tenn.), 49 S. W. 285; 
 Dorsey v. Conrad, 49 Neb. 443, 68 N. W. 645 ; Cass Co. v. Am. Exch. State 
 Bank, 9 N, D. 263, 83 N. W- 12- See note, 86 Am. St. Rep. 128 et se^. 
 
712 THE LAW OF EVIDENCE. § 564 
 
 ery, or perhaps, to state the proposition with more precision, the 
 proof or admission of a signature of a party to an instnunent is 
 prima facie evidence that the instrument written over it is his act ; 
 and this prima facie evidence will stand as binding proof, unless the 
 maker can rebut it by showing by evidence that the alteration was 
 made after delivery ; and that the question when, by whom and with 
 what intent the alteration was made is one of fact to be submitted 
 to the jury upon the whole evidence, intrinsic and extrinsic." "^ In 
 other states, it is held that a material alteration will be presumed to 
 have been made after the execution of the contract, and the burden 
 rests upon the person offering the paper to explain the alteration."* 
 While in still other states, it is held that there is no presumption of 
 law either that the alterations and interlineations apparent on the 
 face of the instrument were made prior to its execution or subse- 
 quently. It is there held that the question is to be settled by the 
 jury upon all the evidence in the case offered by the parties, includ- 
 ing, of course, the character of the alterations and the appearance 
 of the instrument alleged to have been altefed.''' It is apparent that 
 there is great confusion of the authorities upon this subject. But 
 whatever conflict of opinion there may be as to the legal presump- 
 tions to be raised, there seems to be quite general concurrence in the 
 view that when suspicious circumstances, tending to discredit the 
 document, appear either upon its face or from extrinsic facts, the 
 
 6T Wilson V. Hayes, 40 Minn. 531, 42 N. W. 467, 12 Am. St Rep. 754. 
 But If It Is shown that an alteration has been made after execution and 
 delivery it will be presumed to be fraudulent, "Warder v. Willyard, 46 
 Minn. 531. 
 
 58 Cole V. Hills, 44 N. H. 227; Provost v. Gratts, Peters C. C. 369; United 
 States V. Linn, 1 How. 104; Morris v. Vanderen, 1 Dall. (Pa.) 67; Jackson v. 
 Osborn, 2 Wend. 555, 20 Am. Dec. 649; Herrick v. Malin, 22 Wend. 388; 
 Hills V. Barnes, 11 N. H. 395; Barrington v. Bank of Wash., 14 Serg. & 
 R. (Pa.) 405; McMicken v. Beauchamp, 2 La. 290; Von Bhrenkrook v. 
 Webber, 100 Mich. 314; Hodnett v. Pace, 84 Va. 873, 6 S. E. 217; Catlin Coal 
 Co. V. Lloyd, 180 111. 398, 54 N. E. 214, 72 Am. St. Rep. 216. See notes, 1 
 Smith L. C. 1314; 86 Am. St. Rep. 128 et seq. In California, by the pro- 
 visions of the code an alteration after execution must be explained by 
 the party producing the instrument. Code, § 1982; Galland v. Jackman, 
 26 Cal. 85. The rule is less rigid, however, when words in a printed form 
 are erased, Corcoran v. Doll, 32 Cal. 88. As to statutory provisions In 
 some states see, Mulkey v. Long, 5 Idaho, 213, 47 Pac. 949; First Nat. 
 Bank v. Mark, 35 Ore. 122, 57 Pac. 326. 
 
 09 Ely V. Ely, 6 Gray, 439; Newman v. Wallace, 121 Mass. 323; Huston 
 v. Plato, 3 Colo. 402; Robinson v. Myers, 67 Pa. St. 9; Milliken v. Marlln, 
 66 HI. 13;Magee v. Allison, 94 Iowa, 527, 63 N. "W. 322. 
 
§ 565 DOCUMENTARY EVIDENCE. 713 
 
 burden of removing such suspicion is upon the party seeking to use 
 the instrument.'"' 
 
 § 565 (580). Question of alteration is for the jury. — ^There is 
 also general concurrence in the view that the question whether an 
 alteration has been made is a matter to be determined hy the jury.^^ 
 Where the instrument is submitted to them, either with or without 
 explanation, the appearance of the document, the possible motive for 
 or against the alteration, the advantage or disadvantage to the party 
 claiming under the instrument which would be likely to follow from 
 an alteration, are all circumstances from which the jury may deter- 
 mine the fact of alteration, as well as the time and the intent.'" 
 While there are numerous cases in which it has been held that instru- 
 ments in which the alteration was manifest from their face, as from 
 difference in ink or handwriting, might be submitted to the jury 
 without any explanation,*' yet it is clearly the safer and better 
 practice for the person relying on such an instrument to give evi- 
 dence explaining the same, if possible; and in many cases this has 
 been held indispensable.'* When the maker testifies that an altera- 
 
 60 Henman v. Dickinson, 5 Bing. 183; Kniglit v. Clements, 8 Adol. & 
 Ell. 215; Glover v. Gentry, 104 Ala. 222, 16 So. 38; Newcomb v. Presbrey, 
 8 Met. 406; Dodge v. Haskell, 69 Me. 429; Huntington v. Finch, 3 Ohio 
 St. 445; Jordan v. Stewart, 23 Pa. St. 244; Courcamp v. Weber, 39 Neb. 
 533; United States v. Linn, 1 How. Ill; Smith v. United States, 2 Wall. 
 219; Catlin Coal Co. v. Lloyd, 180 111. 398, 54 N. B. 214, 72 Am. St. Rep. 
 216. But see, Wilson v. Ha'yes, 40 Mian. 531, 42 N. W. 467, 12 Am. St. 
 Rep. 754. 
 
 61 See cases collected, 1 Encyc. of Ev. 822 et seq. See also note 86 Am. 
 St. Rep. 127 et seq. 62. 
 
 62 Bailey v. Taylor, 11 Conn. 531, 29 Am. Dec. 321; Heffelflnger v. Shute, 
 16 Serg. & R. (Pa.) 44; Commissioners v. Hanion, 1 Nott & McC. (S. C.) 
 554; Ault v. Fleming, 7 Iowa, 143; Commercial Bank v. Lum, 8 Miss. 
 414; Maybee v. Sniffln, 2 E. D. Smith (N. Y.) 1; Schwartz v. Herrenkind, 
 26 111. 208; Stockton v. Graves, 10 Ind. 294; Reinhart v. Miller, 22 Ga. 
 402, 68 Am. Dec. 506; Dodge v. Haskell, 69 Me. 429'; Cole v. Hills, 44 
 N. H. 227; Beaman v. Russell, 20 Vt. 205, 49 Am. Dec. 775; Mathews v. 
 Coalter, 9 Mo. 696; Martin v. Klein, 157 Pa. St. 473; Pearson v. Hardin, 
 95 Mich. 360; Courcamp v. Weber, 39 Neb. 533; Goodln v. Plugge, 47 Neb. 
 284, 66 N. W. 407. 
 
 63 Cole V. Hills, 44 N. H. 227; Wicker v. Pope, 12 Rich. (S. C.) 387, 75 
 Am. Dec. 732; Stayner v. Joyce, 120 Ind. 99; Hunt v. Gray, 35 N. J. 227, 
 10 Am. Rep. 232. 
 
 64 Wilde V. Armsby, 6 Cush. 314; Davis v. Jenny, 1 Met. 223; Commer- 
 cial Bank V. Lum, 8 Miss. 414; Warren v. Layton, 3 Har. (Del.) 404; 
 Stoner v. Ellis, 6 Ind. 159; Fontaine v. Gunther, 31 Ala. 258; Jackson 
 V. Osborn, 2 Wend. 555, 20 Am. Dec. 649; Clark v. Eckstein, 22 Pa. St. 
 507, 62 Am. Dec. 307; Page v. Danaher, 43 Wis. 221. See note, 86 Am. 
 St. Rep. 129 et seq. 
 
714 THE LAW OF EVIDENCB. § 566 
 
 tion has been made, it is clearly a question for the jury." "When an 
 alteration, after execution, is shown, it is incumbent on the person 
 claiming under the instrument to prove consent.'" It has been held 
 that there is no burden on the party producing ancient documents 
 which have been exposed to the inspection of numerous persons who 
 have thus had opportunity to make additions or araiotations, pro- 
 vided such documents come from the proper repositories." 
 
 § 566 (581). Fraudulent intent — Alteration of negotiable paper. 
 — In most cases it is immaterial whether the alteration is made 
 fraudulently or without actual fraudulent intent. If the alteration 
 is material, the instrument is invalidated ; and a material alteration, 
 after delivery, if unexplained, is presumptively fraudulent."' "We 
 have seen, however, according to one line of decisions that, if even 
 an immaterial alteration is made with a fraudulent purpose, the re- 
 sult is the same.*" In another case fraudulent intent may materially 
 affect the rights of the parties. Thus, although no action can be 
 maintained upon the contract materially altered, yet an action may 
 in some cases be brought upon the orginal debt or consideration for 
 which such contract was given, provided it is shown that the altera- 
 tion was made by mistake and without fraudulent intent.'" But in 
 some courts this has been limited to those cases where the original 
 indebtedness could be regarded as independent of the altered con- 
 tract, and not discharged by or merged in it.'^ It is the object of 
 the general rule under discussion to prevent the perpetration of 
 fraud ; and it is obvious that, if the guilty party may, when defeated 
 on his contract, recover on the original debt, the salutary purpose of 
 
 «B Von Eherenkrook v. Webber, 100 Mich. 314. See also, Martin v. • 
 Kline, 157 Pa. St. 473. 
 
 «« Emerson v. Opp, 9 Ind. App. 581; Shroeder v. Webster, 88 Iowa, 627. 
 See also, Gleason v. Hamilton, 138 N. Y. 353 and cases there cited. 
 
 87 Evans v. Rees, 10 Adol. & Ell. 151; Little v. Herndon, 10 Wall. 26; 
 Stevens 'v. Martin, 18 Pa. St. 101; Walls v. McGee, 4 Har. (Del.) 108. 
 
 88 Russell V. Reed, 36 Minn. 376; Pew v. Laughlin, 3 Fed. 39; Osgood 
 V. Stevenson, 143 Mass. 399; State v. Craig, 58 Iowa, 238; Hartley v. 
 Corboy, 150 Pa. St. 23, 24 Atl. 295. As to intent generally see note, 86 
 Am. St. Rep. 114 et seq. 
 
 «» See § 559 supra. 
 
 70Matteson,v. Ellsworth, 33 Wis. 488, 14 Am. Rep. 766; Hunt v. Gray, 
 35 N. J. 227, 10 Am. Rep. 232; Clough v. Seay, 49 Iowa, 111; Clute v. 
 Small, 17 Wend. 238; Booth v. Powers, 56 N. Y. 22; Eckert v. Pickle, 
 59 Iowa, 545; State Sav. Bank v. Shaffer, 9 Neb. 1, 31 Am. Rep. 395; Mer- 
 rick V. Boury, 4 Ohio St. 60; Courcamp v. Weber, 39 Neb. 533. 
 
 71 Booth V. Powers, 56 N. Y. 22. See also, Wheelock v. Freeman, 13 
 Pick. 165, 23 Am. Dec. 674 and note. 
 
§ 566 DOCUMENTAEY EVIDENCE. 715 
 
 the rule would be defeated. A party should not be permitted to 
 take the chances of gain by the commission of a fraud, without run- 
 ning the risk of loss in case of detection.^" As respects the burden 
 of proof, a somewhat stricter rule prevails in the case of negotiable 
 instruments, than in the case of other instruments. Although there 
 is the same conflict of opinion on this subject, which has already 
 been pointed out in respect to other instruments, yet the tendency 
 is to require the holder of negotiable paper to explain alteratiohs 
 and erasures appearing on its face. It is urged that as notes and 
 bills are intended for negotiation, and as payees do not receive 
 them when clogged with impediments to their circulation, there is a 
 presumption that such an instrument is fair and untarnished, until 
 such presumption is repelled, and that the very fact that the holder 
 received negotiable paper is presumptive evidence that it was unal- 
 tered at the time.'° 
 
 72 Warder Co. v. Wlllyard, 46 Minn. 531, 49 N. W. 300. 
 
 73 Simpson V. Stackhouse, 9 Barr (Pa.) 186, 49 Am. Dec. 554; Henman 
 V. Dickenson, 5 Bing. 183; Hill v. Barnes, 11 N. H. 395; Humphreys v. 
 Guillow, 13 N. H. 385, 38 Am. Dec. 499; Estate of Christian Nagle, 134 
 Pa. St. 31, 19 Atl. 434, 19 Am. St. Rep. 669 and note; McClintock v. State 
 Bank, 52 Neb. 130, 71 N. W. 978; J. I. Case Threshing Mach. Co. v. 
 Peterson, 51 Kan. 213, 33 Pac. 470; Dan. Neg. Inst (5th Ed.) f 1417. 
 
CHAPTER 17. 
 
 DOCUMENTARY EVIDENCE— Continued. 
 
 § 567. Books of account as evidence. 
 
 568. Same — ^Statutes — Of what transactions books are evidence. 
 , 569. Books should be those of original entry. 
 
 570. Form of books of account. 
 
 571. Books are to be those used in the course of business. 
 
 572. Time of making the entries. 
 673. Suppletory oath. 
 
 574. Account books not evidence of collateral facts. 
 
 575. Degree of credit to be given to books of account. 
 
 576. Defects in books as affecting admissibility. 
 
 577. Impeachment of books of account — They must be produced In court 
 
 578. Scientific books. 
 
 579. Use of scientific books in the examination of experts. 
 
 580. Reading from scientific books in argument to the jury. 
 
 581. Admissibility of photographs. 
 
 582. Newspapers — When admissible. 
 
 583. Proof and effect of letters. 
 
 584. Admissibility of facts in histories. 
 
 585. Effect of judgments — General rule. 
 
 586. As to what persons judgments are conclusive. 
 
 587. Effect of judgments on persons in privity with each other. 
 
 588. Admissibility of judgments as against strangers. , 
 
 589. Judgments in civil cases, no bar in criminal cases. ^ 
 
 590. Judgments admissible against third persons for incidental pur- 
 
 poses. 
 
 591. Judgments against principals in actions against their sureties. 
 
 592. Same— Other classes of bonds. 
 
 593. Judgments — When admissible as against third persons who are 
 
 liable to make indemnity. 
 
 594. Judgment must be final. 
 
 595. Finality of judgments — ^Must be on the merits. 
 
 596. Effect of nonsuit or discontinuance, or appeal. 
 
 597. Conclusive only as to matters in issue. 
 
 598. As affected by form of action. 
 
 599. Elxtrinsic evidence to identity this issue. 
 
 600. Same, continued. 
 
 601. Proof that issues are the same — Burden. 
 
 602. Effect of judgment where cause of action is different. 
 
 603. Effect of judgment — General issue. 
 
 604. Matters which might have been litigated in former suit. , 
 
 605. Same, continued. 
 
§ 567 DOOUMENTAEY EVIDENCE. 717 
 
 § 60G. Judgments in rem as evidence. 
 
 607. Same— Juagments of divorce. 
 
 608. Same, continued. 
 
 609. Judgments in probate — Conclusive effect of — Proof of death, etc. 
 
 610. Same — Jurisdiction. 
 
 611. Collateral proof to show want of jurisdiction. 
 
 612. Contrary view — Qualifications of general rule. 
 
 613. Inferior courts — Jurisdiction to appear on record. 
 
 614. Merits of foreign judgments — Not open to inquiry. 
 
 615. Same — Conflicting views. 
 
 618. Foreign judgments — ^May be impeached for fraud or want of juris- 
 diction. 
 
 617. Judgments of sister states— Want of jurisdiction may be shown. 
 
 618. Same — Regularity presumed — Proof of fraud. 
 
 619. Domestic judgments not impeachable by parties for fraud. 
 
 620. Judgments — How proved — Should be complete. 
 
 621. Proof of parts of record — Verdict. 
 
 622. Proof of judgments in courts where rendered. 
 
 623. Proof of records of other courts in the same state. 
 
 624. Mode of proof of foreign records. 
 
 625. Same — Mode of authentication. 
 
 626. Proof of records of sister states — Federal statutes, 
 
 627. Proof of judgments in federal courts. 
 
 628. Authentication — ^Attestation by clerk. 
 
 629. Same — Certificate of judge. 
 
 630. Same — Seal. 
 
 631. Return of officers — Not evidence of collateral facts. 
 
 632. As between parties, the return cannot be collaterally attacked. 
 
 633. Same — How far conclusive upon the officer — ^As to strangers. 
 
 § 567 (582). Books of account as evidence. — The discussion in 
 another portion of this work shows that it has long been the settled 
 common law rule that entries made in the regular course of business 
 in shop books by the clerk or agent of a person are, with proper 
 restrictions, admissible in evidence after the death of such clerk on 
 proof of his handwriting.^ It has also been shown that the Ameri- 
 can cases extended this principle so as to include entries made by 
 such hired clerk or agent when authenticated by his oath, although 
 he is not able to remember the fact so recorded, in other words, the 
 entries may be admissible during the life of the one who made them." 
 Such entries are admitted, not on the principle that they were dec- 
 
 1 As to the general subject of this and the succeeding sections, see 
 notes, 15 Am. Dec. 191-198; 30 Am. Dec. 142; 52 L. R. A. 545-610; 52 L. 
 R. A. C89-723; 53 L. R. A. 513-544; also extended discussion of the 
 authorities in 1 Smith L. C. 567-614. As to books of corporations, see 
 § 518 supra. See § 319 supra. 
 
 2 See §§ 320 et seq. supra. 
 
718 THE LAW OF EVIDENCE. § 568 
 
 larations against interest, or the declarations of persons since de- 
 ceased, but on the ground that they were a part of the acts they pur- 
 ported to record, in other words, part of the res gestae; and it was 
 but another step to admit entries in books made in the regular 
 course of business which were kept by the party himself. This rule 
 before the enactment of statutes was founded upon a supposed ne- 
 cessity and was intended for small traders who kept no clerks.' Ac- 
 cordingly it has long been the practice in most of the states to admit 
 as evidence entries made by the parties themselves, as well as those 
 made by clerks, to prove the sale, delivery and price of goods and 
 the performance of work and labor. The change of the old rule, 
 prohibiting parties from testifying in their own behalf, operated to 
 give much more latitude to testimony of this character. In many 
 of the states statutes have been enacted which furnish rules for the 
 admission of entries in books of account made in the regular course 
 of business. Most of these statutes permit parties to testify to and 
 verify their books, although a few still confine the entries to those 
 made by deceased persons, and in a few states the party is not per- 
 mitted to authenticate the books except on proof that the clerk who 
 made the entries is absent or deceased or that he had no clerk. It 
 will, of course, be impossible to state in detail the statutes in the sev- 
 eral states, or the decisions in which such statutes have been con- 
 strued. 
 
 § 568 (583). Same — Statutes — Of what transactions books axe 
 evidence. — But there are certain rules which, although by no 
 means of universal application, will be found to prevail quite gen- 
 erally. Although there is considerable diversity in the statutes of 
 the several states, yet they contain such points of similarity that 
 the decisions in one state are frequently useful in construing the 
 statutes of another ; and it will be found that in some of the states 
 where no statute exists, and in which the practice has grown up as 
 a part of the common law, the rules adopted by the couiis are quite 
 similar to the regulations prescribed in the statutes of other states.* 
 It wiU, of course, be borne in mind that the general view of the sub- 
 ject here taken is liable to be controlled by the statutes or decisions 
 of the jurisdiction. Generally these entries relate to articles sold 
 or to services rendered in the regular course of business, without 
 reference to their value or the number of items." In some states 
 
 3 Faxon v. Hollis, 13 Mass. 427; Smith v. Rentz, 131 N. Y. 169, 30 N. 
 E. 54; Pratt v. White, 132 Mass. 477. 
 * Schettler v. Jones, 20 Wis. 412. 
 B lisach V. Sheppard, 5 Vt 363; Levine v. Ins. Co., 66 Minn. 138, 68 N. W. 
 
§ 568 DOCUMENTAfiY EVIDENCE. 719 
 
 books are not admissible to prove cash items, such as the loan of 
 money. Goods are generally sold in the regular course of business 
 and under circumstances of some publicity. Services are generally 
 performed \inder such circumstances that third persons may have 
 some knowledge of the subject. But the payment of money occurs 
 as frequently in private as in public, and it has been deemed unsafe, 
 as a rule, to allow mere book entries as evidence of such transac- 
 tions.* In some states entries in accoimt books are not evidence of 
 items of money exceeding certain specified amounts.' Althougih 
 the loan or payment of money is not ordinarily such a subject of 
 charge in book accounts as to be proved thereby, yet it has been held 
 that books of account may be books of evidence to prove the pay- 
 ment of money, when it appears that the party offering the books 
 is engaged in a business that justifies the charges, such as hanking 
 or receiving money on deposit and paying it out for others.' It has 
 also been held that, although entries may not be competent to prove 
 the facts recorded, they may be used as memoranda for refreshing 
 the memory of the witness.^ Such a special course of dealing may 
 exist between parties as to render entries admissible which would 
 otherwise be incompetent, in other words, the usage and conduct of 
 the parties may have been such as to create an implied contract that 
 their dealings may be proven in such mode.^° In some cases, the 
 practice has been so far extended as to receive in evidence memo- 
 
 853. A note or collection register kept by a banker is not a book of 
 account, Laboree v. Klosterman, 33 Neb. 150. 
 
 «Inslee v. Prall, 23 N. J. L. 457; Townsend v. Townsend, 5 Har. (Del.) 
 125; Case v. Potter, 8 Johns. 211; Smith v. Renz, 131 N. T. 169, 30 N. E. 54; 
 Harrold v. Smith, 107 Ga. 849, 33 S. B. 640; Hauser v. Leviness, 62 N. 
 J. L. 518, 41 Atl. 724. But see, Clark v. Savage, 20 Conn. 258. 
 
 TKelton v. Hill, 58 Me. 114; Winner v. Bauman, 28 Wis. 563; Union 
 Bank v. Knapp, 3 Pick. 109, 15 Am. Dec. 181; Basset v. Spofford, 11 N. 
 H. 167; Waldron v. Priest, 96 Me. 36, 51 Atl. 235; Brown v. Warner, 116 
 Wis. 358, 93 N. W. 17; nor for large sujns of money, Pettit v. Teal, 57 Ga. 
 145; Winner v. Bauman, 28 Wis. 563; nor for immoral purposes, Frank 
 V. Pennle, 117 Cal. 254, 49 Pac. 208. See the statutes of the jurisdiction. 
 
 sVeiths V. Hagge, 8 Iowa, 163; Lyman v. Bechtel, 55 Iowa, 437; Culver 
 V. Marks, 122 Ind. 554; Lehman v. Rothbarth, 111 111. 185. They may 
 afford some evidence of non-payment, when properly kept, if no credit 
 appears. Union School Co. v. Mason, 3 S. D. 147. But see, Lewis v. Eng- 
 land (Wyo.), 82 Pac. 869, 2 L. R. A. N. S. 401 and note. 
 
 » Winner v. Bauman, 28 Wis. 563; Schettler v. Jones, 20 Wis. 412; Cobb 
 V. Wells, 124 N. Y. 77; Lester v. Thompson, 91 Mich. 245. In Missouri 
 books can only be used to refresh the memory, Robertson v. Reed, 38 
 Mo. App. 32. 
 
 10 Case V. Berry, 3 Vt. 332; Monroe v. Snow, 131 111. 126; Beach t. 
 Mills, 5 Conn. 493; Snodgrass v. Coldwell, 90 Ala. 319; Swing v. Sparka, 
 
720 THE LAW OP EVIDENCE. § 569 
 
 randa wHcli contain other items than charges for goods sold or 
 ser%'ices rendered, when such entries are shown to have been cor- 
 rectly made and in the regular course of business.^^ 
 
 § 569 (584). Books should be those of original entry. — There is 
 general concurrence in the rule that the books offered should be 
 books of original entry. Thus, if the entries are made in a day book 
 or journal, and transferred thence to a ledger, the entries in the 
 ledger are not competent.^^ But it is no objection to the book, if 
 otherwise regular, that the entries which they contain were first 
 made temporarily.^^ In Pennsylvania, it has been intimated that 
 the entries should be transcribed not later than the next day after 
 that on which they were first made.^* But other decisions in that 
 state seem to adopt a more liberal rule.*" In this particular, every 
 case must be made to depend very much upon its own peculiar cir- 
 cumstances, having regard to the situation of the parties, the kind 
 of business, the mode of conducting it and the time and manner of 
 making entries. Upon questions of this sort, much must be left to 
 the discretion of the judge who presides at the trial, because, having 
 the books before him, and understanding all the circumstances of 
 
 7 N. J. L. 59; GofC v. Stoughton Bank, 84 Wis. 369; Spear v. Peck, 15 
 Vt. 556. 
 
 "Mayor of New York v. Second Ave. Ry. Co., 102 N. Y. 572; Cobb 
 V. Wells, 124 N. Y. 77; West v. Van Tuyl, 119 N. Y. 620; Blumhardt 
 V. Robr, 70 Md. 328; Goff v. Stoughton Bank, 84 Wis. 369. 
 
 12 Woodbury v. Woodbury, 50 Vt. 152; Wall v. Dovey, 60 Pa. St. 212; 
 Stetson V. Wolcott, 15 Gray, 545; In re Huston's Estate, 167 Pa. St. 217; 
 Kerns v. Dean, 77 Cal. 555. See also, Woolsey v. Bohn, 41 Minn. 235. See 
 note, 15 Am. Dec. 196. But see note 18 of the next section. 
 
 13 As upon a slate. Hall v. Glidden, 39 Me. 445; Faxon v. Hollis, 13 
 Mass. 427; Barker v. Haskell, 9 Cush. 218; McGoldrick v. Traphagen, 88 
 N. Y. 334; Landis v. Turner, 14 Cal. 573; Nichols v. Vinson, 9 Houst. (Del.) 
 274; on slips of paper or other memoranda, Paine v. Sherwood, 21 Minn. 
 225; Davison v. Powell, 16 How. Pr. (N. Y.) 467; Taylor v. Davis, 82 
 Wis. 455; Robinson v. Mulder, 81 Mich. 75; Way v. Cross (Iowa), 63 
 N. W. 691; Plummer v. Mercantile Co., 23 Colo. 190, 47 Pac. 294; Levine 
 V. Ins. Co., 66 Minn. 138, 68 N. W. 855; on a blotter, Montague v. Dougan, 
 68 Mich. 98; on notched sticks, shingles or boards, Davison v. Powell, 
 16 How. Pr. (N. Y.) 467; Rowland v. Burton, 2 Har. (Del.) 288; Paine 
 V. Sherwood, 21 Minn. 225; Smith v. Sanford, 12 Pick. 139, 22 Am. Deo. 
 415. Even if not made for a period of from two to four weeks, Hall v. 
 Glidden, 39 Me. 445. But if the entries do not itemize the transactions 
 recorded but comprise the details of several transactions, the book is not 
 admissible, Putnam v. Grant, 101 Me. 240, 63 AO. 816. 
 
 iiPorsythe v. Norcross, 5 Watts (Pa.) 432, 30 Am. Dee. 334. 
 16 Jones V. Long, 3 Watts (Pa.) 325; Yeardsley's Appeal, 48 Pa. St. 531; 
 Hartley v. Brooks, 6 Whart. (Pa.) 189. See 1 Smith L. C. (8tli Ed.) 599. 
 
§ 570 DOCUMENTAKY EVIDE^ICB. 721 
 
 the case, lie is best able to decide upon all questions involving the 
 fairness and regularity of the entries sought to be proved.^' The 
 transfer must be shown to have been made within a reasonable time 
 under all the circumstances, so that it may appear to have taken 
 place while the memory of the facts was recent, or the source from 
 which the knowledge of the matter was acquired was unimpaired.'^'' 
 § 570 (585). Form of books of account. — No particular form of 
 books of accounts is generally prescribed, although books are far 
 more satisfactory when kept in the form of daily entries of debits 
 and credits in a day book or journal. They may be kept in the form 
 of a ledger, if this is the general mode in which the party keeps his 
 books, provided the entries are original entries.*' The entries may 
 be made in pencil,'" or iu the form of a time book, and be used as 
 proof, not only of the labor of the plaiutiff, but of his apprentice 
 as well.^" Although regularly prices ought to be specified, yet the 
 book is not necessarily inadmissible, even if measure, weight, price 
 and quantity are not given in connection with the items charged,*' 
 though, of course, the book in such case furnishes no evidence as to 
 matters omitted.^^ But the book should be such a regular and usual 
 accmmt booh as explains itself and as appears on its face to create 
 a liability in an account with the party against whom it is offered, 
 and not to be a mere memorandum for some other purpose.^' Hence, 
 mere loose sheets of paper are not admissible; ^* and a single entry 
 
 le Barker v. Haskell, 9 Cush. 221. 
 
 iTRedlich V. Bauerlee, 98 111. 134, 38 Am. Rep. 87. 
 
 18 Faxon V. Hollis, 13 Mass. 427; Gltson v. Bailey, 13 Met. 537; Wells 
 V. Hatch, 43 N. H. 246; Cogswell v. Dollivar, 2 Mass. 217, 3 Am. Dec. 
 45; Gifford v. Thomas' Estate, 62 Vt. 34. 
 
 19 Gibson v. Bailey, 13 Met. 537. 
 
 20Mathes V. Robinson, 8 Met. 269, 41 Am. Dec. 505. 
 
 21 Pratt V. "White, 132 Mass. 477. 
 
 22 Hagaman v. Case, 4 N. J. L. 370. 
 
 23 Wilson V. Goodin, Wright (Ohio) 219, check-book; Cooper v. Morrell, 
 4 Yeates (Pa.), 341; Thompson v. McKilvey, 13 Serg. & R. (Pa.) 126, 
 scraps of paper; Van Every v. Fitzgerald, 21 Neb. 36, 59 Am. Rep. 835; 
 Pollard V. Turner, 22 Neb. 366; Gleason v. Kinney, 65 Vt. 560, 27 
 Atl. 208; Re Diggins' Estate, 68 Vt. 198, 34 Atl. 696; Hay v. Peterson, 
 6 Wyo. 419, 45 Pac. 1073. Rejected, Thompson v. Ruez, 134 Cal. 26, 
 66 Pac. 24; Barber's Appeal, 63 Conn. 393, 27 Atl. 973; Costello v. Com., 
 139 Mass. 592, 2 N. E. 698; Riley v. Boehm, 167 Mass. 183, 45 N. B. 84; 
 Countryman v. Bunker, 101 Mich. 218, 59 N. W. 422; Fulton's Estate, 178 
 Pa. 78, 35 Atl. 880. 
 
 24 Richardson v. Emery, 23 N. H. 220; Jones v. Jones, 21 N. H. 219; 
 Thompson v. McKilvey, 13 Serg. & R. (Pa.) 126; Hough v. Doyle, 4 
 Rawle (Pa.) 291. 
 
722 THE LAW OF EVIDENCE. § 571 
 
 does not constitute an account book.^' Charges may be so isolated 
 and separated from others as to indicate that they were not made 
 in the regular course of business, in which case, they should be re- 
 jected.^" When books are proved to be the "only books" of the 
 party, they are books of original entry.^' So where the entries were 
 by stipulation transferred to a new set of books, made by experts 
 for the purpose of making the entries intelligible, it was held that 
 the new set of books, prepared in this way, were properly admitted 
 in evidence.^* The statutes do not generally prescribe the form in 
 which books should be kept, nor the degree of definiteness to be ob- 
 served in making entries. They have been so framed as to have a 
 very general application. The account books of an illiterate laborer, 
 as well as those of a tradesman or a banker are admissibble in evi- 
 dence, if within the statutory conditions, the purposes of which are 
 to secure authenticity and credibility in respect to the evidence, 
 rather than to prescribe the form of it."' 
 
 § 571 (586). Books are to be those used in the course of busi- 
 ness. — From what has already been stated, it may be implied that ' 
 books are not admissible, unless they are those used in the regular 
 course of business, and kept by the party as boolfs of account.'" 
 Such entries are by no means confined to mercantile transactions, 
 but may relate to the accounts of persons, generally made in the 
 regular course of business, where goods, services or materials are 
 fumished.'"^ It makes little difference in what capacity the services 
 are rendered, provided they are in the regular course of business,'" 
 and that they have been performed." But such entries have fre- 
 
 z'Kibbe v. Bancroft, 77 111. 18; Fitzgerald v. McCarty, 55 Iowa, 702. 
 2« Prince v. Smith, 4 Mass. 455; Lynch v. McHugo, 1 Bay (S. C.) 33; 
 Swing v. Sparks, 7 N. J. L. 59. 
 
 27 Patrick v. Jack, 82 111. 81. 
 
 28 Roherts v. Eldred, 73 Cal. 394. 
 28 Woolsey v. Bohn, 41 Minn. 235. 
 
 socostello V. Crowell, 139 Mass. 588; Walter v. Bollman, 8 Watts 
 (Pa.) 544; Curren v. Crawford, 4 Serg. & R. (Pa.) 3; Stuckslager v. 
 Neel, 123 Pa. St. 53; Plummer v. Mercantile Co., 23 Colo. 190, 47 Pac. 294. 
 
 SI As accounts of carpenters and other mechanics and laborers, Slade 
 V. Teasdale, 2 Bay (S. C.) 172; ferrymen, Frazier v. Drayton, 2 Nott. 
 & McC. (S. C.) 471; farmers, Holden v. Spier, 65 Kan. 412, 70 Pac. 348; 
 manufacturers, Cobb v. Wells, 124 N. Y. 77; millers, Gordon v. Arnold, 
 1 McCord (S. C.) 517; publishers. Ward v. Powell, 3 Har. (Del.) 379; 
 physicians and those In other professions. Lynch v. Hugo, 1 Bay (S. C.) 
 33; Thayer v. Deen, 2 Hill (S. C.) 677; Murphy v. Gates, 81 Wis. 370. 
 
 82 Howell v. Barden, 3 Dev. (N. C.) 449; Bell v. McLeran, 3 Vt 185; 
 Minor v. Irving, 1 Kirby (Conn.) 158. 
 
 S3 Howell V. Barden, 3 Dev. (N. C.) 449. 
 
§ 572 DOCUMENTARY EVIDENCE. 723 
 
 quently been rejected when they consisted of charges in gross for 
 continued services.^* But in a charge for work and labor continu- 
 ing from day to day for several days, it is not necessary to set down 
 a charge for each day itself. This is a matter which must rest very 
 largely in the discretion of the judge according to the nature of 
 the subject and its susceptibility of being precisely charged.^" So 
 charges have been rejected when the articles sold or furnished were 
 outside the line of the party's general business.^" But it may be 
 suggested that, in respect to charges of this character, much would 
 depend upon the nature and amount of business carried on by the 
 party, in other words, whether the transaction should appear to be 
 in the regular course of his business. 
 
 § 572 (587). Time of making the entries. — It is another requi- 
 site that the entry should be made at or about the time of the trans- 
 actions. The entries should not be a recital of past transactions, 
 but an account of transactions as they occur. It is very clear that 
 there is no principle on which shop books should be received as evi- 
 dence, where the entries are not made at or about the time of the 
 transaction. If not so made, the entries are no part of the register. 
 They are mere independent declarations of the party in his own 
 favor. '^ In some of the states, the statutes prescribe that the entries 
 shall be contemporaneous with the transaction. But it is believed 
 that the same rule generally prevails in the states where no such 
 statute exists.'^ A reasonable construction will be given to the re- 
 quirement; and it is not indispensable that the entries should be 
 made immediately or upon the same day.'" The learned American 
 
 34 As a charge for three months' labor, made In one term, Henshaw 
 V. Davis, 5 Gush. 145; a charge, for the erection of a building, Sloan v. 
 Grinshaw, 4 Houst. (Del.) 326; a charge "four months' work, $300," 
 Karr v. Stivers, 34 Iowa, 123; a charge for labor extending through the 
 period of a year made in a single item, entered when the work was 
 done, Earle v. Sawyer, 6 Gush. 142; a charge for "repairing brick ma- 
 chine, $1,932.76," Garr v. Sellers, 100 Pa. St. 169, 45 Am. Rep. 370; a 
 charge of "seven gold American lever watches," Bustin v. Rogers, 11 
 Gush. 346; a charge in a single item of labor and materials for $636, 
 White V. St. Philip's Ghurch, 2 McMull (S. G.) 306, 39 Am. Dec. 125. 
 
 85Gummlngs v. Nichols, 13 N. H. 420, 38 Am. Dec. 501; Bay v. Gook, 
 22 N. J. L. 343. 
 
 36 As a charge for a sale of a horse by a dry goods merchant, Shoe- 
 maker V. Kellogg, 11 Pa. St. 310. 
 
 37Bentley v. Ward, 116 Mass. 333; Grlesheimer v. Tanenbaum, 124 N. 
 Y. 650. See cases cited below. 
 
 s8Rev. Stat. Wis. § 4186; Iowa Gode § 4623; Minn. R. Laws of 1905, 
 § 4719. 
 
 a» Morris v. Briggs, 3 Gush. 342. 
 
724 THE LAW OP EVIDENCE. § 573 
 
 editors of Smith's Leading Cases quote and approve the rule as de- 
 clared by the courts of Pennsylvania : ' ' The law fixes no precise in- 
 stant when the entries should he made. It is not to be a register of 
 past transactions, but of transactions as they occur."*" It is evi- 
 dent that much must depend upon the nature of the transactions 
 and the general mode of carrying on the business. Although the 
 entries are not strictly contemporaneous, the circumstances and na- 
 ture of the business may be such as to satisfy the court that the de- 
 lay was not unreasonable or inconsistent with the due course of 
 business. The authorities already cited as to the transfer of tem- 
 porary entries seem to sanction this principle.*^ The precise day of 
 the month need not be affixed to the charge in all cases. *^ 
 
 § 573 (588). Suppletory oath. — In most jurisdictions it is neces- 
 sary that testimony should be given authenticating the book of ac- 
 count and showing it to be the book of original entries kept for that 
 purpose ; also that the entries were true and correct, and contempo- 
 raneous with the transactions. It is obvious that the statutes on 
 this subject must be complied with in order to render the book ad- 
 missible.*' This testimony should be given by the party, if the 
 entries are in his handwriting,** or by a clerk, if the entries are in 
 his handwriting, unless he is dead or out of the state, in which ease, 
 the books are admissible upon proof of the handwriting.*" In some 
 states statutes dispense with the calling of the party or the clerk 
 who made the entries, if sufficient reason is shown therefor.** If 
 
 10 1 Smith L. C. (8th Ed.) 598; Jones v. Long, 3 Watts (Pa.) 325; 
 National Ulster Co. Bank v. Madden, 114 N. Y. 280. 
 
 11 See § 569 supra. 
 
 12 As where no day of the month was specified, when It was regular 
 in other respects, Cummings v. Nichols, 13 N. H. 420, 38 Am. Dec. 501; 
 or where a book had no date, as the date of the account might be proved 
 by other evidence, Doster v. Brown, 25 Ga. 24, 71 Am. Dec. 153. 
 
 13 Security Co. v. Graybeal, 85 Iowa, 543 ; Watroua v. Cunningham, 71 
 Cal. 30. See, Hurst v. Webster Mfg. Co., 128 Wis. 342, 107 N. W. 666. See 
 cases cited below. 
 
 11 Van Swearingen v. Harris, 1 Watts & S. (Pa.) 356; Alter v. Berghaus, 
 8 Watts (Pa.) 77; Hoover v. Gehr, 62 Pa. St. 136; Foster v. Sinkler, 1 
 Bay (S. C.) 40; Hooper v. Taylor, 39 Me. 224; Marsh v. Case, 30 Wis. 
 531; Merrill v. Ithaca & O. Ry. Co., 16 Wend. 586, 30 Am. Dec. 130; Mc- 
 Donald v. Carnes, 90 Ala. 147; Ford v. Cunningham, 87 Cal. 209. It is 
 not necessary to call other persons who have settled accounts by the 
 books. Seventh Day Ass'n v. Fisher, 95 Mich. 274. 
 
 15 Sterrett v. Bull, 1 Binn. (Pa.) 234; Merrill v. Ithaca & 0. Ry. Co., 16 
 Wend. 586, 30 Am. Dec. 130; Holland v. Commercial Bank, 22 Neb. 571; 
 Cobb V. Wells, 124 N. Y. 77. 
 
 18 Volker v. First National Bank, 26 Neb. 602. 
 
§ 573 DOCUMENTARY BVIDBNCB. 725 
 
 the party is deceased, his handwriting may be shown and the books 
 verified by the oath of his administrator or executor, showing that 
 the books have come into his possession in such capacity and his be- 
 lief that the entries are correct, and that they were made contem- 
 poraneously with the transactions." When a ivife keeps her hus- 
 band's accounts, she may testify to that fact, and also that they 
 were made under his direction; and the husband may testify that 
 the charges are just and true/* When the entries are made by two 
 partners, one should not be allowed to testify to entries made by the 
 other, unless he knows that the sales were actually made.*" Where 
 temporary entries are made by one person who delivers the goods 
 and transferred by another, both should be witnesses to render the 
 book admissible."" The person making the entries should have per- 
 sonal knowledge of the facts recorded, or his testimony should be 
 supported by that of some person who has such knowledge."^ If 
 the witness who verifies the books can swear positively that the en- 
 tries were made according to the truth, and that the fact stated ac- 
 tually existed, that is sufficient, although he has no present recollec- 
 tion about such facts."" In a few states the suppletory oath of the 
 party or clerk may be dispensed with, if a sufficient reason is shown 
 
 I'McLellan v. Crofton, 6 Me. 307; Prince v. Smith, 4 Mass. 455; Bentley 
 V. Hollenbeck, Wright (Ohio) 168. See also, Dicken v. Winters (Pa.), 
 32 Atl. 289. 
 
 48Littlefield v. Rice, 10 Met. 287; Smith v. Smith, 163 N. Y. 168, 57 N. 
 B. 300. 
 
 49 Horton V. Miller, 84 Ala. 537. But see, Webb v. Michener, 32 Minn. 48. 
 
 60 Kent V. Garvin, 1 Gray, 148; Smith v. Sanford, 12 Pick. 139, 22 Am. 
 Dec. 415; Barker v. Haskell, 9 Gush. 218; Harwood v. Mulry, 8 Gray, 250; 
 State V. Shinborn, 46 N. H. 497, 88 Am. Dec. 224. 
 
 61 Hart V. Kendall, 82 Ala. 144; Trainer v. German-Am. S. L. & B. 
 Ass'n (111.), 68 N. E. 650; Smith v. Smith, 163 N. Y. 168, 57 N. E. 300; 
 Taylor v. Davis, 82 Wis. 455, 52 N. W. 756. More liberal rulings, Mathes 
 V. Robinson, 8 Mete. 269; Anchor Milling Co. v. Walsh, 108 Mo. 284, 18 S. 
 W. 904, 32 Am. St. Rep. 300; Diament v. Colloty, 66 N. J. L. 295, 49 Atl. 
 445. Where a book contained entries of goods sold which were copied 
 from the delivery book of the drayman, it was held inadmissible, with- 
 out the testimony of the drayman or some other evidence showing that 
 at the time the charges were made some articles were delivered by the 
 plaintiff to the defendant. Kent v. Garvin, 1 Gray, 148. See also. Price 
 V. Earl of Torrington, Salk. 285; 1 Smith L. C. 344 and extended note. 
 
 62Briggs V. Rafferty, 14 Gray, 525; Curran v. Witter, 68 Wis. 16, 60 
 Am. Rep. 827; Merrill v. Ithaca & O. Ry. Co., 16 Wend. 586, 30 Am. Dec. 
 130; State v. Shinborn, 46 N. H. 497, 88 Am. Dec. 224. 
 
726 THE LAW OF EVIDENCE. § 574 
 
 why such verification is not made."' Where the statute permits a 
 party to testify to the correctness of his own book, such statute en- 
 larges, but does not repeal the common law rule making such books 
 admissible when their correctness is testified to by the clerk who 
 kept them."* 
 
 § 574 (589). Account books not evidence of collateral facts. — 
 The proper use of book accounts is to show contemporaneous charges 
 for goods or materials furnished or services rendered in a course of 
 dealing between the parties, and also to serve as evidence of such 
 facts, and of the promise implied by law to pay therefor. "If 
 offered to prove any collateral matter, as that a third party assumed 
 to pay; or that a certain person was a partner in a house charged, 
 or to prove any agency, and show that goods were delivered or re- 
 ceived to sell on commission, or to prove a delivery of goods in per- 
 formance of a special contract, for any such purpose, books are not 
 competent evidence."" In an action for the price of goods sold, 
 where the only issue was whether the delivery of the goods to a third 
 person was on the credit of the defendant, it was held error for the 
 judge to instruct the jury that the entry in the book might be re- 
 garded as a memorandum made at the time by the plaintiff, and, as 
 such, entitled to some weight in confirmation of the recollection and 
 
 es Iowa Code § 4623 ; Minn. R. Laws 1905, § 4720. 
 
 64 House V. Beak, 141 111. 290, 30 N. B. 1065. 
 
 66 1 Smith L. C. (Sth Ed.) 595; Juniata Bank v. Brown, 5 Serg. & R. 
 (Pa.) 226; Bshleman v. Hamish, 76 Pa. St. 97; Lyman v. Bechtel, 55 
 Iowa, 437; Collins v. Shaw, 124 Mich. 474, 83 N. W. 146; Hazer v. Streich, 
 92 Wis. 505, 66 N. W. 720. See nete, 53 L. R. A. 513-544. Account 
 books are not competent to prove a promise of payment, Somers v. 
 Wright, 114 Mass. 171; nor are they admissible in actions between 
 strangers to the transaction, Minton v. Underwood Lumber Co., 79 Wis. 
 646; Martin Brown Co. v. Perrill, 77 Tex. 199; nor is the defendant's 
 book of credits, containing a statement of the number of days the 
 plaintiff worked for him, evidence that the plaintiff did, not work for 
 him certain days, Morse v. Potter, 4 Mass. 292; nor is a book evidence 
 that the other party did not purchase goods, not credited. Winner v. 
 Bauman, 28 Wis. 562; Shaffer v. McCracken, 90 Iowa, 578, 58 N. W. 910, 
 48 Am. St. Rep. 465; Riley v. Boehm, 167 Mass. 183, 45 N. B. 84; Scott 
 V. Bailey, 73 Vt. 49, 50 Atl. 557; nor that a sale was conditional, Rogers 
 V. Severson, 2 Gill (Md.) 385; nor that goods were left to be sold on 
 commission, Kerr v. Love, 1 Wash. C. C. 172; Brisch v. Hoff, 1 Yeates 
 (Pa.) 198; Richards v. Burroughs, 62 Mich. 117; nor that credit was 
 given solely to a third person. Peck v. Kellar, 76 N. Y. 604; Field v. 
 Thompson, 119 Mass. 151; Walker v. Richards, 41 N. H. 388; Kaiser v. 
 Alexander, 144 Mass. 71; nor the entries of an attorney to show for 
 whom the service was rendered. Murphy v. Gates, 81 Wis. 370; nor is 
 
§ 575 DOCUMENTABY EVIDENCE. 727 
 
 evidence, of the plaintiff."® The book to be admissible must be a 
 record of things actually done, and not of orders, executory con- 
 tracts and things to be done subsequently to the entry.°^ 
 
 § 575 (590). Degree of credit to be given to books of account. — 
 The courts have frequently expressed the opinion that evidence of 
 this character is quite unsatisfactory, and that it should be sub- 
 jected to close scrutiny. It has been said that the practice of ad- 
 mitting such evidence had its origin in a kind of "moral necessity," 
 and that "such is the general course of business that no proof could 
 be furnished of the frequent small transactions between men with- 
 out resorting to the entries which they themselves have made in this 
 form of accounts. " "' It is doubtless in view of considerations of 
 this kind, as well as of the opportunity afforded to interested and 
 unscrupulous parties to manufacture testimony in their own behalf, 
 that the courts have sometimes refused to receive book entries in 
 evidence, so long as more satisfactory evidence could be produced." 
 But it will be seen from the cases already cited that this evidence is 
 generally treated as original and not secondary evidence; and when 
 the statutory requirements as to verification are complied with, it is 
 admissible. Although other evidence might be produced of a more 
 convincing character, its weight is for the jury."" In New York and 
 Michigan, where the use of account books as evidence was not the 
 result of statutory regulations, but of usage sanctioned by the 
 courts, the rule was declared that such evidence could not be re- 
 ceived, unless the party had no clerk. This was on the theory that 
 in such case only did it appear that there was no better evidence.'^ 
 
 a book evidence that there Is an agreement to answer for the debt of 
 another, Tarrand v. Gage, 3 Vt. 326. 
 
 Be Field v. Thompson, 119 Mass. 151. Where third persons were con- 
 cerned, admitted, Coleman v. Ins. Ass'n, 77 Minn. 31, 79 N. W. 588; 
 rejected, Somers v. Wright, 114 Mass. 171. 
 
 61 Hart V. Livingston, 29 Iowa, 217; Whisler v. Drake, 35 Iowa, 103; 
 J. Snow Hardware Co. v. Loveman, 131 Ala. 221, 31 So. 19; Hazer v. 
 Streich, 92 Wis. 505, 66 N. W". 720. 
 
 68 Lame v. Rowland, 7 Barb. (N. T.) 107; Mathes v. Robinson, 8 Met. 
 269, 41 Am. Dec. 505; Weamer v. Juart, 29 Pa. St 257, 72 Am. Dec. 627; 
 Pratt V. White, 132 Mass. 477. 
 
 5» Eastman v. Moulton, 3 N. H. 156; Thomas v. Dyott, 1 Nott. & McC. 
 (S. C.) 186; Slade v. Nelson, 20 Ga. 365; Bracken v. Dillon, 64 Ga. 243, 
 37 Am. Rep. 70. 
 
 80 Lewis V. Meginniss, 30 Fla. 419. See also cases already cited. 
 
 •iVosburgh v. Thayer, 12 Johns. 461; Sickles v. Mather, 20 Wend. 72, 
 32 Am. Dec. 521; McGoldrick v. Traphagen, 88 N. Y. 334; Jackson v. Evans, 
 8 Mich. 476; Smith T. Smith, 163 N. Y. 168, 57 N. B. 301. 
 
728 THE LAW OF EVIDENCE. § 576 
 
 In these states it is also necessary to prove, before books of account 
 are admissible, that some of the articles charged have been deliv- 
 ered, and that the books are the account books of the party. It 
 should also be proved by those who have dealt with the party that he 
 keeps fair and honest accounts.^^ In most states by force of statutes 
 or decisions of the courts, books of account, when kept in compliance 
 with the rules above given, and properly verified, are prima facie 
 evidence of the facts therein sta,ted. 
 
 § 576 (591). Defects in books as affecting admissibility. — The 
 question of admissibility or competency is for the determination of 
 the court, upon the preliminary proof required by the statute or 
 other law of the forum, while the degree of credit to be given is for 
 the jury."^ If the book is not found to be a book of original entries, 
 or if for other reasons it fails to conform to the rules regulating its 
 admission, the court wiU reject the evidence as incompetent. But 
 if this is left in doubt, the book may be submitted to the jury with 
 the instruction that it should be disregarded, if they find against 
 it."* Book entries are not necessarily excluded because there may 
 be alterations or erasures "^ or mistakes, such as those in the name of 
 the party."" These are matters which may be explained to the satis- 
 faction of the court. But if the entries show that they were all 
 made at the same time, though relating to separate transactions,"^ 
 or if by reason of alterations or erasures or other cause they have a 
 suspicious and fraudulent appearance, and are not explained, they 
 should be rejected,"' although in some cases, it has been held that 
 
 82Vosburgh v. Thayer, 12 Johns. 461; Jackson v. Evans, 8 Mich. 476; 
 Smith V. Smith, 163 N. Y. 168, 57 N. E. 301. But see. Seventh D. A. P. A. 
 v. Fisher, 95 Mich. 274, 54 N. W. 759. 
 
 63 Cogswell v. Dolliver, 2 Mass'. 217, 3 Am. Dec. 45; Moody v. Roberts, 
 41 Miss. 74; Eyre v. Cook, 9 Iowa, 185; Maverick v. Maury, 79 Tex. 435; 
 Webster v. San Pedro L. Co., 101 Cal. 326, 35 Pac. 871. 
 
 84 Curren v. Crawford, 4 Serg. & R. (Pa.) 5; Churchman y. Smith, 6 
 Whart. (Pa.) 146, 36 Am. Dec. 211. 
 
 60 Churchman v. Smith, 6 Whart. (Pa.) 146, 36 Am. Dec. 211; Kline v. 
 Gundrum, 11 Pa. St. 249; Webster v. San Pedro L. Co., 101 Cal. 326, 35 Pac. 
 871; Gutherless v. Ripley, 98 Iowa, 290, 67 N. W. 109. 
 
 66 Schettler v. Jones, 20 Wis. 412. See also, Levlne v. Ins. Co., 66 Minn. 
 138, 68 N. W. 855. 
 
 67 Davis V. Sanford, 9 Allen, 216. 
 
 68 Lovelock V. Gregg, 14 Colo. 53; Churchman v. Smith, 6 Whart (Pa.) 
 146, 36 Am. Dec. 211; Cogswell v. Dolliver, 2 Mass. 217, 3 Am. Deo. 45; 
 Cole V. Anderson, 8 N. J. L. 68; Thomas v. Dyott, 1 Nott & McC. (S. C.) 
 186; Caldwell v. McDermlt, 17 Cal. 464; Cheever v. Brown, 30 6a. 904; 
 
§ 577 DOOUMENTABY BVIDBNOB. 729 
 
 books of this character should be submitted to the jury under proper 
 instructions.*' The book may be admitted as to entries which are 
 proved to be original, although other entries in the same book are 
 not original,'" unless the two classes of entries cannot be distin- 
 guished. ''^ 
 
 § 577 (592). Impeachment of books of account — They must be 
 produced in court. — It has sometimes been held that, where the 
 statute provides that account books, properly verified, are prima 
 facie evidence of their contents, evidence cannot be received to im- 
 peach the general reputation of the party verifying them. This is 
 on the theory that such testimony lessens the credibility which the 
 statute gives to the books.'^ But in Pennsylvania, it has been held 
 that such testimony is admissible ; that evidence may be received to 
 the effect that the books of the party are notoriously unworthy of 
 confidence, and that for the purpose of showing this fact particular 
 acts of irregularity in keeping them may be shown.''' The books 
 must be produced in court, ready for the inspection of the adverse 
 party in open court, so that their credibility may be tested by their 
 appearance or by the cross-examination of the party.'* "When the 
 book of original entries contains marks showing that items have been 
 transferred to the ledger, the ledger must be produced, so that the 
 other party may have the advantage of any items entered therein to 
 his credit.'" There is no necessity for the production of books of 
 account, if the party can furnish any other competent evidence,''^ 
 
 Davis V. Sandford, 9 Allen, 216; Harrold v. Smith, 107 Ga. 849, 33 S. B. 
 640. 
 
 89Gossewitch v. Zlbley, 5 Har. (Del.) 124; Sargeant v. Pettibone, 1 
 Aiken (Vt.) 355. While a fair book may strongly corroborate the testi- 
 mony of a party, an unfair one may discredit his testimony, Walron v. 
 Evans, 1 Dak. 11. 
 
 70 Ives V. Miles, 5 Watts (Pa.) 323; Wollenweber v. Ketterlinus, 17 Pa. 
 St. 389. 
 
 Ti Vance v. Feariss, 1 Yeates (Pa.) 321; Kessler v. McConachy, 1 Rawle 
 (Pa.) 435; Venning v. Hacker, 2 Hill (S. C.) 584. 
 
 72 Winne v. Nickerson, 1 Wis. 1 ; Nickerson v. Morin, 3 Wis. 243. 
 
 78 Grouse v. Miller, 10 Serg. & R. (Pa.) 155; Barber v. Bull, 7 Watts 
 & S. (Pa.) 391. 
 
 TiPurman v. Peay, 2 Bailey (S. C.) 394; Nicholson v. Withers, 2 Mc- 
 Cord (S. C.) 428, 13 Am. Dec. 739; Bugbee v. Allen, 56 Conn. 167, 14 Atl. 
 778. 
 
 76 Prince v. Swett, 2 Mass. 569; Rev. Stat. Wis. § 4188. 
 
 76Cambioso v. Maffett, 2 Wash. C. C. 98; Nicholson v. Withers, 2 Mc- 
 Cord (S. C.) 428, 13 Am. Dec. 739; Levenworth v. Phelps, Kirby (Conn.) 
 71; Palmer v. Green, 6 Conn. 14; Whiting v. Corwin, 5 Vt 451. 
 
730 THE LAW OP EVIDENCE. § 578 
 
 although under some circumstances the non-production of such evi- 
 dence might lead to an unfavorable presumption.'^ 
 
 § 578 (593, 594). Scientific books.— According to the clear 
 weight of authority scientific books and treatises can not be received 
 as evidence of the matters or opinions which they contain.'* Among 
 other objections which have led the courts to reject books of this 
 character as evidence is the fact that opinions on many of the ques- 
 tions of philosophy and science are so constantly undergoing change 
 that it would be impossible to know whether the author still enter- 
 tains the same views. Another objection is that testimony of this 
 character would be hearsay. Perhaps the most serious objection is 
 that such testimony would be without the sanction of an oath, and 
 that the adverse party would thus be deprived of the right of cross- 
 examining the author as to the ground of his opinion." The rea- 
 sons on which testimony of this character is excluded have far less 
 weight where the inquiry relates to the exact sciences; and in nu- 
 
 T7 Palmer v. Green, 6 Conn. 14. 
 
 78 R. V. Taylor, 13 Cox Cr. C. 77; Collier v. Simpson, 5 Car. & P. 73; 
 Stilling V. Thorp, 54 "Wis. 528, 41 Am. Rep. 60; State v. O'Brien, 7 R. I. 
 336; Bloomington v. Shrock, 110 111. 219, 51 Am. Rep. 679; Epps v. 
 State, 102 Ind. 539; Bixby v. Omaha & C. B. R. & B. Co., 105 Iowa, 293, 
 75 N. W. 182, 43 L. R. A. 533, 67 Am. St. Rep. 299; Ware v. Ware, 8 Me. 
 42; People v. Hall, 48 Mich. 482, 42 Am. Rep. 477; Tucker v. Donald, 60 
 Miss. 460, 45 Am. Rep. 416; Com. v. Brown, 121 Mass. 69; Ashworth v. 
 Kittridge, 12 Cush. 193, 59 Am. Dec. 178; Kreuziger v. Chicago & N.-W. 
 Ry. Co., 73 Wis. 158; Huffman v. Click, 77 N. C. 55; Gallagher v. Market 
 St. Ry. Co., 67 Cal. 359, 56 Am. Rep. 713; Davis v. State, 38 Md. 15; 
 People V. Goldenson, 76 Cal. 328. See notes, 59 Am. Dec. 180-187; 38 
 Am. Rep. 578; 41 Am. Rep. 61; 40 L. R. A. 553-575. This rule has been 
 applied to cyclopedias, Whitton v. Albany Ins. Co., 109 Mass. 24; scientific 
 toohs on minerals and ores. New Jersey Zinc & I. Co. v. Lehigh Zinc £ 
 I. Co., 39 N. J. L. 189, 35 Atl. 915; engravings in medical works, Ordway 
 V. Haynes, 50 N. H. 159; books known as 6onfc note detectors, Payson v. 
 Everett, 12 Minn. 217; books on agriculture. Darby v. Ousely, 1 Hurl. & 
 N. 12; books on veterinary science, Brady v. Shirley, 14 S. D. 447, 85 N. W. 
 1002; and it has been held that m.edical works are not admissible as evi- 
 dence on questions of insanity. Com. v. Wilson, 1 Gray, 338; malpractice, 
 Collier v. Simpson, 5 Car. & P. 73; or homicide, Boyle v. State, B7 Wis. 
 472, 46 Am. Rep. 41; or for the purpose of determining whether certain 
 stains are blood stains. Com. v. Sturtivant, 117 Mass. 130, 19 Am. Rep. 
 401; or on questions on nervous or spinal diseases, N. P. Ry. Co. v. 
 Yates, 79 Fed. 584, 40 L. R. A. 553; or as to treatment of fractured bones. 
 Van Skike v. Potter, 53 Neb. 28, 73 N. W. 295. 
 
 78 Ashworth v. Kittridge, 12 Cush. 193, 59 Am. Dec. 178 and note; Fow- 
 ler V. Lewis, 25 Tex. 387; Mutual Ins. Co. v. Bratt, 55 Md. 200. 
 
§ 579 DOCUMENTARY EVIDENCE. 731 
 
 merous instances the rule has been relaxed in such cases. To thip 
 class belong taMes of logarithms, of weights and measures and of 
 interest. The rule is the same as to annuity tables; "* the Carlisle 
 and Northampton tables, properly authenticated, are often received 
 as evidence of the probable duration of human lif e.*^ But they are 
 not necessarily binding upon the court, especially if their adoption 
 would work manifest injustice ; '^ and in an action for personal in- 
 jury, where the person injured is living, they are not competent." 
 On the same principle almavacs have been admitted to prove at 
 ■what hour the sun or moon rose at a given time.'* Although, since 
 this is a fact of which the court will take judicial notice, the evidence 
 may be unnecessary,'" or it may be deemed as used for the purpose 
 of refreshing the memoiy of the court and jury.'" 
 
 § 579 (595). Use of scientific books in the examination of ex- 
 perts. — It is generally conceded, however, that where experts are 
 examined as to questions of science, they may give their opinions and 
 
 sovicksburg Ry. Co. v. Putnam, 118 U. S. 554; McKeigue v. Janes- 
 ville, 68 Wis. 50; Arkansas M. R. Co. v. Griffith, 63 Ark. 491, 39 S. W. 
 550; Keast v. Santa Ysabel G. M. Co., 136 Cal. 256, 68 Pac. 771; Joliet v. 
 Blower, 155 111. 414, 40 N. E. 619; Campbell v. York, 172 Pa. 205, 33 Atl. 
 879; Grouse v. Railway Co., 102 Wis. 196, 78 N. W. 446; Reynolds v. 
 Narragansett El. L. Co., 26 R. I. 457, 59 Atl. 393; tables In cyclopedias, 
 Gorman v. Railway Co., 78 Iowa, 509, 43 N. W. 303; in other accepted au 
 thorities. Pearl v. Railway Co., 115 Iowa, 535, 88 N. W. 1078. 
 
 siSchell V. Plumb, 55 N. T. 592; People v. Security Ins. Co., 78 N. Y. 
 114, 34 Am. Rep. 522; Central Ry. Co. v. Richards, 62 Ga. 306; German 
 v. Minneapolis & St. L. Ry. Co., 78 Iowa, 509; Worden v. Humeston & S. 
 Ry. Co., 76 Iowa, 310; City of Lincoln v. Smith, 28 Neb. 762; Birmingham 
 M. R. Co. V. Wilmer, 97 Ala. 165, 11 So. 886; Western & A. R. Co. v. 
 Cox, 115 Ga. 715, 42 S. B 74; Friend v. IngersoU, 39 Neb. 717, 58 N. W. 
 281; Camden & A. R. Co. v. Williams, 61 N. J. L. 346, 40 Atl. 634; Atlanta 
 Ry. & Power Co. v. Monk (Ga.), 45 S. E. 494. 
 
 82 Shippens Appeal, 2 Weekly N. Cas. Pa. 468. 
 
 83 Nelson y. Chicago, R. I. & P. Ry. Co., 38 Iowa, 514; Chicago, B. & 
 Q. Ry. Co. V. Johnson, 36 111. App. 564. Admitted, Arkansas M. R. Co. v. 
 Griffith, 63 Ark. 491, 39 S. W. 550; Campbell t. York, 172 Pa. 205, 33 Atl. 
 879; Western & A. R. Co. v. Cox, 115 Ga. 715, 42 S. B. 74; Friend v. 
 IngersoU, 39 Neb. 717, 58 N. W. 281. Dictionaries are often made use of, 
 Dantzler v. D. C. & I. Co., 101 Ala. 309, 14 So. 10; State v. Main, 69 
 Conn. 123, 37 Atl. 80; Parker v. Orr, 158 111. 609, 41 N. E. 1002; Koechl 
 V. U. S., 84 Fed. 448; Kimball v. Carter, 95 Va. 77, 27 S. E. 823. 
 
 81 State V. Morris, 47 Conn. 179; Munshower v. State, 55 Md. 11, 39 
 Am. Rep. 414; Mobile Ry! Co. v. Ladd, 92 Ala. 287; Wilson v. Van Leer, 
 127 Pa. St. 371, 17 Atl. 1097, 14 Am. St. Rep. 854. 
 
 86 De Armand v. Neasmith, 32 Mich. 231; People v. Chee Kee, 61 Cal. 404. 
 
 88 State V. Morris, 47 Conn. 179. 
 
732 THE LAW OF EVIDENCE. § 580 
 
 the ground and reason therefor, although they state that such opin- 
 ions are in some degree founded upon treatises on the subject.^' But 
 it has been held inadmissible for such a witness to read to the jury 
 from books, although he concurs in the views expressed,*' or even 
 to state the contents of such books,*" though he may refer to them 
 to refresh his memory."" But when an expert has given an opinion 
 and cited a treatise as his authority, the book cited may be offered 
 in evidence by the adverse party as impeaching testimony."^ But 
 unless the book is referred to on cross-examination, it cannot be used 
 for this purpose."^ It would be a mere evasion of the general rule 
 under discussion, if counsel were allowed on cross-examination to 
 read to the vsdtness portions of such works, and to ask if he con- 
 curred in or differed from the. opinions there expressed, hence this 
 is not allowed."^ In a few states, statutes have been enacted extend- 
 ing the common law rule on this subject. But they have been 
 strictly construed and in a California case where it was claimed that, 
 under the statute making historical works and books of science and 
 art prima facie evidence of facts of general notoriety and interest, 
 a certain medical work should be received, the court held that the 
 statutes did not apply to works of this character, but to those within 
 the range of exact sciences."* 
 
 § 580 (596). Reading from scientific books in argument to the 
 jury. — ^Although it is the general rule that books of the character 
 
 87 Collier V. Simpson, 5 Car. & P. 73; Carter v. State, 2 Ind. 617; State 
 V. Baldwin, 36 Kan. 1; State v. Ward, 53 N. H. 484; Beck's Med. Jur. 
 918, 919. As to cross-examination of experts, see § 391 supra. 
 
 8s Com. V. Sturtivant, 117 Mass. 122, 19 Am. Rep. 401. Contra, Western 
 Assur. Co. V. Mohlman Co., 83 Fed. 811. 
 
 88 Boyle V. State, 57 Wis. 472, 46 Am. Rep. 41. 
 
 90 Sussex Peerage Case, 11 Clark & F. 114; People v. Wheeler, 60 Cal. 
 581, 44 Am. Rep. 790; State v. Baldwin, 36 Kan. 1, 12 Pac. 318. 
 
 oiPinney v. Cahill, 48 Mich. 584; Ripon v. Bittel, 30 Wis. 614; Connecti- 
 cut Ins. Co. V. Ellis, 89 111. 516; People v. Goldenson, 76 Cal. 328; Hess 
 V. Lowery, 122 Ind. 225; Byers v. Railway Co., 94 Tenn. 350, 29 S. W. 128. 
 But see, Davis v. State, 38 Md. 15; State v. O'Brien, 7 R. I. 336. 
 
 92 Knoll V. State, 55 Wis. 249, 42 Am. Rep. 704. 
 
 93 Marshall v. Brown, 50 Mich. 148; People v. Millard, 53 Mich. 63; 
 Bloomington v. Shrock, 110 111. 219, 51 Am. Rep. 678; State v. Winter, 72 
 Iowa, 627. 
 
 94 Gallagher v. Market St. Ry. Co., 67 Cal. 13, 56 Am. Rep. 713; Stouden- 
 meier v. Williamson, 29 Ala. 558; Bowman v. Woods, 1 G. Greene (Iowa), 
 441; Quackenbush v. Chicago Ry. Co., 73 Iowa, 458; Burg v. Railway 
 Co., 90 Iowa, 106, 57 N. W. 680; Buxley v. Bridge Co., 105 Iowa, 293, 75 
 N. W. 182, 43 L. R. A. 533; State v. Peterson, 110 Iowa, 647, 82 N. W. 329. 
 
§ 580 DOOUMENTABY BVIDElSrOB. 733 
 
 under discussion cannot be read in evidence, it is a practice in some 
 states, and one sustained by very respectable authority, to allow at- 
 torneys during their argument to the jury to read from books which 
 have been proved to be standard works upon the subject. °° "When 
 books of science or general literature are thus used during the argu- 
 ment of counsel, they are merely adopted as the argument of coun- 
 sel. They are used by way of illustration, and cannot be used for 
 the purpose of proving facts.^" It is a qualification of the rule in 
 those jurisdictions where the practice is allowed, that the court may 
 determine in its discretion whether the matter proposed to be read 
 by way of argiunent is pertinent to the subject under discussion."^ 
 It is undoubtedly a very serious objection to this practice that, by 
 it, the same result is accomplished indirectly as if the book were 
 read to the jury as substantive evidence.'* On this ground the 
 practice is not allowed in England °° nor in some of the states in 
 this country. While it may be fairly claimed that it is doubtful on 
 which side the weight of authority is to be found, the better reason- 
 ing condemns the practice.^ In a few jurisdictions the rule pre- 
 vailed that the opinions of standard writers, as stated in their 
 printed works, may be read to the jury as evidence, when the opin- 
 ions of expert witnesses on the subject would be competent. It was 
 argued that, since expert witnesses may found their opinions upon 
 works of this character, it is quite as safe a practice to admit the 
 opinions at first hand. But this rule is now generally rejected.* 
 
 »5R. v. Courvosier, 9 Car. & P. 362; Gary v. Silcox, 6 Ind. 39; Harvey 
 V. State, 40 Ind. 516; State v. Hoyt, 46 Conn. 330; State v. O'Neil, 51 
 Kan. 651, 33 Pac. 287; Legg v. Drake, 1 Ohio St. 287; Union Central L. 
 Ins. Co. V. Cheever, 36 Ohio St. 201, 38 Am. Rep. 573; Merkle v. State, 37 
 Ala. 139; Cavanah v. State, 56 Miss. 300. For numerous illustrations see, 
 Lawson Ex. Bv. 179. 
 
 »6 Darby v. Ouseley, 1 Hurl. & N. 12; R. v. Courvosier, 9 Car. & P. 362; 
 Gary v. Silcox, 6 Ind. 39; Union Central L. Ins. Co. v. Cheever, 36 Ohio St 
 201, 38 Am. Rep. 573; Boyle v. State, 57 Wis. 472, 46 Am. Rep. 41; Wilson 
 V. Van Leer, 127 Pa. St. 371, 17 Atl. 1097, 14 Am. St. Rep. 854, almanac used. 
 
 »7 Union Central L. Ins. Go. v. Cheever, 36 Ohio St. 201, 38 Am. Rep. 
 573; Legg v. Drake, 1 Ohio St. 287. 
 
 08 Boyle v. State, 57 Wis. 472, 46 Am. Rep. 41. 
 
 »9R. V. Crouch, 1 Cox Cr. C. 94. 
 
 iR. V. Taylor, 13 Cox Cr. C. 77; People v. Wheeler, 60 Gal. 581, 44 Am. 
 Rep. 70; Fraser v. Jemmison, 42 Mich. 206; Huffman v. Click, 77 N. C. 
 54; Boyle v. State, 57 Wis. 472, 46 Am. Rep. 41; Washburn v. Cuddihy, 8 
 Gray, 430; Ashworth v. Kittridge, 12 Gush. 193, 59 Am. Dec. 178 and valu- 
 able note; State v. Rogers, 112 N. C. 874, 17 S. E. 297. 
 
 2 Crawford v. Williams, 48 Iowa, 247; Stoudenmeier v. Williamson, 29 
 
734 THE LAW OP EVIDENCE. § 581 
 
 § 581 (597). Admissibility of photographs. — ^It is a constant 
 practice to receive as evidence pictures and drawings of objects 
 which cannot be brought into court, after these have been proved 
 to be accurate representations of the subject.* In like manner pho- 
 tographs are often admitted, when the proper prelimiuary proof as 
 to their exactness and accuracy is offered.* Photographic copies 
 
 Ala. 558; State v. Winter, 72 Iowa, 627; Merkle v. State, 63 Ala. 30; 
 People V. Wheeler, 60 Cal. 581, 44 Am. Rep. 70, with an extended discus- 
 sion of the cases relating to this subject. 
 
 3 Marcy v. Barnes, 16 Gray, 161, 77 Am. Dec. 405; Hollenheck v. Rowley, 
 8 Allen, 473; Ruloff v. People. 45 N. Y. 213; Udderzook v. Com., 76 Pa. 
 St. 340; Church v. Milwaukee, 31 Wis. 512; Wood v. WlUard, 36 Vt. 82, 
 84 Am. Dec. 659; Blair v. Pelham, 118 Mass. 420; Shook v. Pate, 50 Ala. 
 91; Ayers v. Harris, 77 Tex. 108. See notes, 24 Am. St. Rep. 755; 75 Am. 
 St. Rep. 468-479; 114 Am. St. Rep. 438-442; 35 L,. R. A. 802-816. As to 
 evidence by phonograph see, Boyne City, G. & A. R. Co. v. Anderson 
 (Mich.), 109 N. W. 429, 8 L. R. A. N. S. 306 and note. But they must be 
 relevant, McClurg v. Brenton, 123 Iowa, 368, 98 N. W. 881, 101 Am. St. 
 Rep. 323. So X-ray pictures are admissible, City of Geneva v. Burnett, 65 
 Neb. 464, 91 N. W. 275, 101 Am. St. Rep. 628; De Forge v. N. Y., etc. R. 
 R. Co., 178 Mass. 59, 59 N. B. 669, 86 Am. St. Rep, 464; Chicago & Joliet 
 B. Ry. Co. V. Spence, 213 111. 220, 72 N. B. 796, 104 Am. St. Rep. 213; State 
 V. Matheson, 130 Iowa, 440, 103 N. W. 137, 114 Am. St. Rep. 427 and note 
 442; Jameson v. Weld, 93 Me. 34&, 45 Atl. 299; Mauch v. Hartford, 112 
 Wis. 40, 87 N. W. 816. See note, 35 L. R. A. 815. 
 
 * Archer v. New York, N. H. & H. Ry. Co., 106 N. Y. 591; McLean v. 
 Scripps, B2 Mich. 214; Albertle v. New York, L. E. & W. Ry. Co., 118 N. Y. 
 77; Blair v. Inhabitant of Pelham, 118 Mass. 420; Cooper v. St. Paul City 
 Ry. Co., 54 Minn. 379; Cunningham v. Railway Co., 72 Conn. 244, 43 Atl. 
 1047; State v. Herson, 90 Me. 273, 38 Atl. 160; Martin v. Moore (Md.) 57 Atl. 
 671; Baustian v. Young, 152 Mo. 317, 53 S. W. 921, 75 Am. St. Rep. 462; Golds- 
 boro V. Railway Co., 60 N. J. L. 49, 37 Atl. 433; Hupfer v. Nat Distilling 
 Co., 127 Wis. 306, 106 N. W. 831. This, of course, applies also to X-ray 
 photographs, Carlson v. Benton, 66 Neb. 486, 92 N. W. 600. Photo- 
 graphs have been admitted on the question of identity of persons, 
 Ruloft V. People, 45 N. Y. 213; People v. Smith, 121 N. Y. 578; Beavers v. 
 State, 58 Ind. 530; State v. Holden, 42 Minn. 350; Udderzook v. Com., 76 
 Pa. St. 340; to show appearance of an individual at difierent times, Cow- 
 ley V. People, 83 N. Y. 464, 38 Am. Rep. 464; Com. v. Morgan, 159 Mass. 
 375; State v. Elwood, 17 R. I. 763; Com. v. Conners, 156 Pa. St. 147; 
 Davis V. Seaboard Air Line Ry. (N. C), 48 S. B. 591; Reddin v. Gates, 
 52 Iowa, 210; Franklin v. State, 69 Ga. 42; Walsh v. People, 88 N. Y. 458; 
 Udderzook v. Com., 76 Pa. St. 340; Luke v. Calhoun County, 52 Ala. 18; 
 or of a limb or other portion of the body, Albertle v. New York, L. B. 
 & W. Ry. Co., 118 N. Y. 77; Cooper v. St. Paul City Ry. Co., 54 Minn. 379; 
 but it seems that this is Improper if the limb can be shown to the jury, 
 Baxter v. Railway Co., 104 Wis. 307, 80 N. W. 644. Photographs are ad- 
 missible to show the appearance of a street In an action for damages 
 
§ 581 DOCUMENTAKY EVIDENCE. 735 
 
 have been received of the public documents on file at the govern- 
 mental departments at Washington which public policy requires 
 should not be removed." On the same principle, the courts, both of 
 this country and of England, have received photographic copies of 
 instruments in the custody of other courts which could not be ob- 
 tained for use at the trial." As has already been stated, the au- 
 thorities are in conflict on the question whether photographic copies 
 may be used as a basis for the comparison of handwriting.'' The 
 
 against municipal corporations, Churcli v. Milwaulcee, 31 Wis. 512; Blair 
 V. Pelham, 118 Mass. 421; German Theol. School v. Dubuque, 64 Iowa, 736; 
 or against railway companies, Dyson v. New York & N. E. Ry. Co., 57 
 Conn. 9, 14 Am. St. Rep. 82; Archer v. New York, N. H. & H. Ry. Co., 
 106 N. Y. 589; Missouri, K. & T. Ry. Co. t. Moore (Tex. App.), 15 S. W. 
 714; Kansas City Ry. Co. v. Smith, 90 Ala. 25; Locke v. S. C. & P. Ry. Co., 
 46 Iowa, 109; Cleveland Ry. Co. v. Monaghan, 140 111. 474; Turner v. Bos- 
 ton & M. Ry. Co., 158 Mass. 261; or the appearance of any place which 
 might be properly viewed by the jury, where such a view by the jury 
 is impossible or Impracticable, Omaha S. Ry. Co. v. Beeson, 36 Neb. 361, 
 (see also. People v. Buddensieck, 103 N. Y. 487); so photographs are also 
 admissible to show personal features, Travelers' Ins. Co. v. Sheppard, 85 
 Ga. 790, 12 S. E.18; Shorten v. Judd, 56 Kan. 43, 42 Pac. 337, 54 Am. St. 
 Rep. 587; Com. v. Campbell, 155 Mass. 537, 30 N. E. 72; People v. Carey, 
 125 Mich. 535, 84 N. W. 1087; People v. Webster, 139 N. Y. 73, 34 N. E. 
 730; highways, Carey v. Hubbardston, 172 Mass. 106, 61 N. B. 521; 
 Baustian v. Young, 152 Mo. 317, 53 S. W. 921, 75 Am. St. Rep. 462; 
 machinery, Livermore P. & M. Co. v. Union S. & C. Co., 105 Tenn. 187, 58 
 S. W. 270; identity. State v. Ellwood, 17 R. I. 763, 24 Atl. 782; appearance 
 of animals, State v. Cook, 75 Conn. 267, 53 Atl. 589; scene of crime, Peo- 
 ple V. Crandall, 125 Cal. 129, 57 Pac. 785; State v. O'Reilly, 126 Mo. 597, 
 29 S. W. 577; People v. Jackson, 111 N. Y. 370, 19 N. E. 54; I'eople v. 
 Pustolka, 149 N. Y. 570, 43 N. E. 548; Keyes v. State, 122 Ind. 529, 23 N. E. 
 1097; place of accident, Beardslee v. Columbia Tp., 188 Pa. 496, 41 Atl. 617, 
 68 Am. St. Rep. 883; Dederichs v. Salt Lake, 14 Utah, 137, 46 Pac. 656; 
 Sterling v. Detroit, 134 Mich. 22, 95 N. W. 986; railroad crossing, Dyson 
 V. Railway Co., 57 Conn. 24, 17 Atl. 137, 14 Am. St. Rep. 82; Miller v. 
 Railway Co., 128 Ind. 97, 27 N. E. 339, 25 Am. St. Rep. 416; Missouri, K. 
 & T. R. Co. V. Moore (Tex.), 15 S. W. 714; New York, C. & St. L. R. Co. 
 V. Robbins (Ind.), 76 N. E. 804; premises, McGar v. Bristol, 71 Conn. 652, 
 42 Atl. 1000; Com. v. Robertson, 162 Mass. 90, 38 N. E. 25; Paulson v. 
 State, 118 Wis. 89, 94 N. W. 771; condition of railway cars after collision, 
 Maynard v. Oregon R. & Nav. Co., 46 Ore. 15, 78 Pac. 983. See also an in- 
 teresting discussion of the subject by Irving Browne in 5 Green Bag, 15, 
 60. See notes, 114 Am. St. Rep. 439 et seq.; 35 L. R. A. 803. 
 
 Leathers v. Salvor Wrecking Co., 2 Wood (U. S.) 680. See also, Luco 
 V. United States, 23 How. 541. See note, 35 L. R. A. 811 et seq. 
 
 e Daley v. McGuire, 6 Blatchf. (U. S.) 137; In re Stephens, L. R. 9 0. 
 P. 187. See note, 35 L. R. A. 812. 
 
 'See §§ 555 et seq. supra. In Luco v. United States, 23 How. 541 and 
 
736 THE LAW OF EVIDENCE. § 582 
 
 cases already cited agree as to the rule that, where a photograph or 
 other similar mode of representation is used as evidence, there 
 should be proof of its accuracy given by the photographer or by 
 some other person acquainted with the fact. This is a preliminary 
 question to be determined by the court ; ' and the decision of the 
 court is not subject to review by a higher tribunal.' Photographs 
 of documents are obviously secondary evidence, and should not be 
 admitted when the original can be produced.^" Frequently photo- 
 graphs have been held inadmissible on the ground that they were 
 taken at too remote a time and when conditions had changed.^^ 
 And in some cases where in view of the other evidence they seemed 
 unnecessary or likely to give a wrong impression or to create undue 
 sympathy or prejudice on the part of the jury.^^ 
 
 § 582 (598). Newspapers — When admissible. — ^It is hardly nec- 
 essary to cite authorities to the proposition that, as a general rule, 
 newspapers are not admissible as evidence of the facts stated therein. 
 But when proof is made that one has usually read a newspaper, 
 
 United States v. Ortiz, 176 U. S. 422, photographic copies of signatures 
 were used for comparison. The same rule has been sanctioned in Massa- 
 chusetts, Marcy v. Barnes, 16 Gray, 161. See also, Eborn v. Zlmpelman, 
 47 Tex. 503, 26 Am. Rep. 315 and note discussing the subject; Murphy 
 V. People, 213 111. 154, 72 N. B. 779. 
 
 8 Com. V. Coe, 115 Mass. 401; Walker v. Curtis, 116 Mass. 98; Blair v. 
 Inhabitants of Pelham, 118 Mass. 420; Roosevelt v. New York Bl. Ry. 
 Co., 21 N. Y. S. 205; Carey v. Town of Hubbardston, 172 Mass. 106, 51 
 N. E. 521; State v. Miller, 43 Ore. 325, 74 Pac. 658; Dolan v. Mutual Re- 
 serve, etc. Ass'n, 173 Mass. 197, 53 N. B. 398; Stone v. Lewiston, B. & B. 
 St. Ry., 99 Me. 243, 59 Atl. 56. See note, 114 Am. St. Rep. 441. 
 
 9 Blair v. Inhabitants of Pelham, 118 Mass. 420; Will of Poster, 34 Mich. 
 21; Com. v. Morgan, 159 Mass. 375; Harris v. City of Ansonia, 73 Conn. 
 359, 47 Atl. 672; Babb v. Oxford Paper Co., 99 Me. 298, 59 Atl. 290; Mauch 
 V. Hartford, 112 Wis. 40, 87 N. W. 816. See note, 114 Am. St Rep. 441. 
 See, Carlson v. Benton, 66 Neb. 486, 92 N. W. 600; Hupper v. Nat. Dis- 
 tilling Co., 119 Wis. 417, 96 N. W. 809. 
 
 loDuffin V. People, 107 111. 115; Bborn v. Zimpelman, 47 Tex. 503, 26 
 Am. Rep. 315 and note; McLean v. Scrlpps, 52 Mich. 214; Grooms v. 
 State (Tex.), 50 S. W. 370. The same is true of personal injuries, Faivre 
 V. Mandscheid, 117 Iowa, 724, 90 N. W. 76. 
 
 11 Chicago & B. 111. Ry. Co. v. Crose, 214 111. 602, 73 N. B. 865, 105 Am. 
 St. Rep. 135; Chicago & A. R. Co. v. Corson, 198 111. 98, 64 N. E. 739. 
 
 12 Photograph not verified as correct, Cunningham v. Railway Co., 72 
 Conn. 244, 43 Atl. 1047; Harris v. Ansonia, 73 Conn. 359, 47 Atl. 672; 
 changed conditions, Iroquois F. Co. v. McCrea, 191 111. 340, 61 N. B. 79; 
 Chicago & A. R. Co. v. Corson, 198 111. 98, 64 N. B. 739; Ortiz v. State, 
 30 Fla. 256, 11 So. 611; not instructive, Harris v. Quincy, 171 Mass. 472, 
 50 N. E. 1042; Leldheim v. Meyer, 95 Mich. 586, 55 N. W. 367; Selleck 
 T. City of Janesville, 104 Wis. 570, 80 N. W. 944, 76 Am. St. Rep. 872. 
 
§ 582 DOCUMBNTAKY EVIDENCE. 737 
 
 and that it has probably been brought to his attention, it may be 
 offered in evidence for the purpose of showing that such person had 
 notice of its contents; ^' and when it is shovyn that a person is the 
 author of, or otherwise responsible for statements or advertisements, 
 they may, of course, he used against him}^ Such advertisements 
 have been received to establish the public character of a hotel at 
 a given time,^° the advertised time for the arrival of trains or 
 coaches,^" and the dissolution of a partnership.^' The courts have 
 in various cases received those market reports in newspapers on 
 which the commercial world rely as evidence of the state of the mar- 
 ket. In discussing this subject an eminent judge used the follow- 
 ing language': "As a matter of fact, such reports, which are based 
 upon a general survey of the whole market, and are constantly re- 
 ceived and acted upon by dealers, are far more satisfactory and 
 reliable than individual entries or individual sales or inquiries ; and 
 courts would justly be the subject of ridicule, if they should delib- 
 erately shut their eyes to the source of information which the rest 
 of the world relies upon, and demand evidence of a less certain and 
 satisfactory character." ^* "Witnesses have been allowed to testify 
 to the market value at a particular date, even though their knowl- 
 edge was chiefly derived from daily price current lists.*" But in a 
 New York case, such testimony was held incompetent without some 
 evidence authenticating the report, or shovnng the mode in which 
 the list was made up.'"' At common law gazettes printed under the 
 
 13 Com. V. Robinson, 1 Gray, 555; Man v. Russell, 11 111. 586; Somervllle 
 V. Hunt, 3 Har. & McH. (Md.) 113. See also, Kellogg v. French, 15 Gray, 
 354. See note, 90 Am. Dec. 258. 
 
 1* Sweet V. Avaunt, 2 Bay (S. C.) 492; Berry v. Mathewes, 7 Ga. 457; 
 Dennis v. Van Voy, 28 N. J. L. 158, 31 N. J. L. 38. 
 
 10 Stringer v. Davis, 35 Cal. 25. 
 
 16 Com. V. Robinson, 1 Gray, 555. 
 
 17 Roberts v. Spencer, 123 Mass. 397; Hart v. Alexander, 7 Car. & P. 
 746. See also, Pitcher v. Burrows, 17 Pick. 361; Vernon v. Manhatten 
 Co., 22 "Wend. 183. 
 
 18 Sisson V. Cleveland & T. Ry. Co., 14 Mich. 489, 90 Am. Dec. 253 and 
 note; Cliquot's Champagne, 3 Wall. 114; Lush v. Druse, 4 Wend. 314; 
 Peter v. Thickatun, 51 Mich. 5^9; Aulls v. Young, 98 Mich. 231, 57 N. W. 
 119; Nash v. Classon, 163 111. 409, 45 N. B. 276; excluded where not 
 properly verified, Fairley v. Smith, 87 N. C. 367, 82 Am. Rep. 522; Nat. 
 Bank v. New Bedford, 175 Mass. 57, 56 N. E. 288; Gobson v. Ebert, 52 
 Mo. 260. 
 
 i» Whitney v. Thatcher, 117 Mass. 523; Cliquot's Champagne, 3 Wall. 
 114. See also, Chaffee v. United States, 18 Wall. 541. 
 20 Whelan v. Lynch, 60 N. Y. 474, 19 Am. Rep. 202. 
 
 47 
 
738 THE LAW GP EVIDENCE. | 583 
 
 authority of government are admissible as evidence of public royal 
 proclamations, addresses and acts of state. But in such, cases, they 
 are evidence only of matters of public interest, and not of matters 
 merely affecting private rights.^^ Of course, the newspaper itself 
 is the best evidence of an article published in it."^ Under various 
 statutes census reports are often received to prove the population 
 of given political divisions or other facts properly reported.''' 
 
 § 583 (599). Proof and effect of letters. — ^Before letters are re- 
 ceived in evidence there must be, as in the case of other documents, 
 some proof of their genuineness. This is not proved by the mere 
 fact that the letter is received by maU, when the signature is not 
 proved.^* It is a familiar practice to receive letters in evidence as 
 part of the res gestae, as in the case of a letter enclosing a note sent 
 from one bank to another,^' or to show for what purpose the note 
 was sent,^" even though the writer of the letter might be examined 
 on oath.^'' When letters properly form a part of the res gestae, 
 they are received although they contain declarations in the party's 
 favor.^* Obviously statements in the form of letters are not more en- 
 titled to be received in evidence than mere verbal statements, and, 
 unless they are competent as part of the res gestae, or as admissions, 
 or under some other general rule of evidence, they should be re- 
 jected. Thus, a letter from the witness to a third party simply 
 appended to a deposition in which there is no averment of the 
 truth of its contents is inadmissible,^" nor is a letter admissible 
 for the party in whose favor it is sought to be introduced, except 
 
 21 Rex V. Holt, 5 T. R. 436; Attorney General v. Theakstone, 8 Price, 89; 
 Lurton v. Gilliam, 2 111. 577, 33 Am. Dec. 430; Brundred v. Del Hoyo, 20 
 N. J. L. 328. 
 
 22 Bond V. Central Bank of Georgia, 2 Ga. 92. 
 
 28 State V. Neal, 25 Wash. 264, 65 Pac. 188. See also. State v. Marlon 
 Co., 128 Mo. 427, 30 S. W. 103; State v. Evans, 166 Mo. 347, 66 S. W. 355. 
 As to admissibility of price Zis*, see note, 17 L. R. A. 851 et seq.; legislative 
 journals, see note, 23 L. R. A. 340 et seq. 
 
 2* Sweeney v. Ten Mile Oil Co., 130 Pa. St. 193; State v. Hall, 14 S. D. 
 161, 84 N. W. 766. Where part of letter is introduced by one party the 
 remainder may be introduced by the other party, Reynolds v. Hinricks, 16 
 S. D. 602, 94 N. W. 694. As to presumption where a letter is received as an 
 answer, see §§ 52, 547 supra. 
 
 25 Bank of Munroe v. Culver, 2 Hill, 531. 
 
 2« Breese v. Hurley, 1 Stark. 23. 
 
 27 Roach V. Learned, 37 Me. 110. 
 
 28 Beaver v Taylor, 1 Wall. 637. 
 
 2» Dwyer v. Dunbar, 5 Wall. 318. See also, Winslow v. Newlan, 45 111. 
 14S. 
 
§ 584 DOCUMENTARY EVIDENCE. 739 
 
 as a notice or demand, or as part of the res gestae.*" Nor are the 
 letters of an agent to his principal admissible against a third per- 
 son.*^ In a celebrated trial, known as the "Anarchist Case," it 
 was held that an unanswered letter found in the possession of a 
 defendant may be received in evidence as in the nature of an ad- 
 mission, if from its terms it may be gathered that he invited it, 
 or if evidence is adduced that he acted on it.'^ It is only the appli- 
 cation of a familiar rule that proof of letters, when admissible, 
 must be hy the best evidence, that is, the originals, and that, before 
 secondary evidence can be received, there must be proof of the loss 
 of the original.'^ In order to present secondary evidence of the 
 contents of a letter in the possession of the other party, notice to 
 produce must have been given.^* 
 
 § 584 (600). Admissibility of facts in histories. — Historical 
 facts of general and public notoriety may, indeed, be proved by rep- 
 utation ; and that reputation may be established by historical works 
 of known character and accuracy. But evidence of this sort is con- 
 fined in a great measure to ancient facts which do not presuppose 
 better evidence in existence; and where, from the nature of the 
 transactions, or the remoteness of the period, or the public or general 
 reception of the facts, a just foundation is laid for general confi- 
 dence.'" Such testimony is competent only when the facts necessary 
 to be established are properly matters of history. In such eases, it 
 is competent because of the diiRculty or impossibility of establishing 
 the facts by other testimony. Hence, facts which have recently 
 transpired and are within the knowledge of persons living cannot be 
 proved in this way ;'" and the work of a living author who is within 
 the reach of the process of the court would not be admissible. In 
 the latter case, the witness may be called and examined as to the 
 sources of his information.'^ According to this view, statements in 
 histories as to mere private rights are not admissible. The facts 
 
 so Richards v. Frankum, 9 Car. & P. 221. As to admission of decoy 
 letters, see McCarney v. People, 83 N. Y. 408. 
 
 81 United States v. Barker, 4 Wash. C. C. 464. 
 
 82 Spies V. People, 122 111. 1. 
 
 88 Watson V. Rhode, 30 Neh. 264; Huff v. Hall, 56 Mich. 456; Stevens v. 
 Miles, 142 Mass. 571. As to presumption of receipt of letters, see § 201 
 supra. 
 
 Si Chicago v. Greer, 9 Wall. 726. See §§ 218 et seq. supra. 
 
 SB Morris v. Harmer, 7 Peters, 555; McKinnon v. Bliss, 21 N. Y. 206; 
 State V. Wagner, 61 Me. 178. 
 
 88 Morris v. Edwards, 1 Ohio, 209. 
 
 81 Morris v. Harmer, 7 Peters, 556. 
 
740 THE LAW OF EVIDENCE. § 585 
 
 should be of a general and public nature; '^ nor are mere local his- 
 tories admissible.'" Although, matters of general history may he 
 received without that full proof which is necessary for the estab- 
 lishment of a private fact,^° yet a jury should not be left to their 
 own knowledge or information upon such subjects. Some proof 
 should be furnished.*^ 
 
 § 585 (601). Effect of judgments — General rule. — It is clearly 
 beyond the scope of this work to enter into an elaborate discussion 
 as to the admissibility or binding effect of judgments, when offered 
 in evidence. The most that can be attempted is to state the general 
 rules governing the subject with their limitations. The rule is one 
 generally recognized among civilized nations that, when a matter has 
 been adjudicated and finally determined by a competent tribunal, 
 the determination is conclusive as between the parties and their 
 privies. Interest reipuhlicce ut sit finis litium.*^ If the court has 
 
 38Neale v. Fry, 1 Salk. 281; Steph. Bv. art 35. 
 
 3»As histories of counties, McKinnon v. Bliss, 21 N. Y. 206; Evans v. 
 Getting, 6 Car. & P. 586; Roe v. Strong, 107 N. Y. 350, 14 N. E. 294; 
 college catalogues, court guides, directories, etc.. State v. Danlells, 44 N. 
 H. 383; Tayl. Ev. (lOth Ed.) § 1785; registers, Wetmore v. United States, 
 10 Peters, 647; city directories, Tichenor v. Newman, 186 111. 264, 57 N. B. 
 826; gazetteer of the United States, Spalding v. Hedges, 2 Pa. St. 240. 
 
 •40 Mima Queen v. Hepburn, 7 Cranch, 290. 
 
 41 Gregory v. Baugh, 4 Rand. (Va.) 611. 
 
 *2 Locke v. Norborne, 3 Mod. 141; Outram v. Morewood, 3 East, 353; Rex 
 V. Mayor of York, 5 T. R. 66; Croudson v. Leonard, 4 Cranch 436; North- 
 Western Bank V. Hays, 37 W. Va. 475; Archbishop v. Shipman, 69 Cal. 
 586; Strayer v. Johnson, 110 Pa. St. 21; Woods v. Montevallo Co., 84 Ala. 
 560, 5 Am. St. Rep. 393; Maloney v. Dewey, 127 111. 395, 11 Am. St. Rep. 
 131; Singer v. Hutchinson, 183 111. 606, 56 N. E. 388, 75 Am. St. Rep. 133; 
 Garden City v. Merchants & Farmers Nat. Bank, 65 Kan. 345, 69 Pac. 325, 
 93 Am. St. Rep. 284; Hargarve v. Mouton, 109 La. 533, 33 So. 590; Gardner 
 V. Buckbee, 3 Cow. 120, 15 Am. Dec. 256; Peay v. Duncan, 20 Ark. 85; Lore 
 V. Truman, 10 Ohio St. 45; Wales v. Lyon, 2 Mich. 276; Peoples' Saving 
 Bank V. Bberts, 96 Mich. 396, 55 N. W. 996; Ahlers v. Thomas, 24 Nev. 407, 
 56 Pac. 93, 77 Am. St. Rep. 820; Newton v. Marshall, 62 Wis. 8; Castle v. 
 Noyes, 14 N. Y. 329; Finney v. Boyd, 26 Wis. 366; Sanford v. Oberlin Col- 
 lege, 50 Kan. 342; Lazarus v. Phelps, 156 U. S. 202; State v. Irwin, 51 W. 
 Va. 192, 41 S. E. 124; Hart v. Moulton, 104 Wis. 349, 80 N. W. 599, 76 Am. 
 St. Rep. 881. For a general discussion of the effect of judgments' as evi- 
 dence, see notes, 23 Am. St. Rep. 103; 82 Am. Dec. 411; 96 Am. Dec. 775- 
 788; 14 Am. St. Rep. 250; 15 Am. St. Rep. 142; 41 Am. Dec. 681; 7 L. R. A. 
 577-582. This rule holds even though the amount of the judgment was so 
 small as to prevent a review, Jonnson Co. v. Wharton, 152 U. S. 252; or 
 although it was rendered on evidence improperly introduced, Parker v. 
 Albee, 86 Iowa, 46; or although It was rendered o/ter the defendant's death. 
 
§ 586 DOCUMENTARY EVIDENCE. 741 
 
 jurisdiction of the subject matter and the parties, its decision stands 
 as a finality between them and their privies, until set aside by a re- 
 hearing on appeal or in some other mode recognized by the lavs^.*' 
 Whether the judgment is in fact right or erroneous, just or unjust, 
 it cannot he collaterally attacked}'^ The rule is by no means limited 
 to courts of record or those of general jurisdiction. .The same prin- 
 ciple obtains whether the judgment is that of a justice of the peace, 
 acting within his jurisdiction, or that of a court of general jurisdic- 
 tion.^" It is not necessary to cite the numberless cases which sup- 
 port the rule that judgments are evidence between parties and priv- 
 ies in subsequent actions. The principle is tacitly recognized in 
 most of the cases which will be referred to while discussing the lim- 
 itations of the rule. 
 
 § 586 (602). As to v?hat persons judgments are conclusive. — 
 In discussing the conclusiveness of judgments upon parties and 
 privies, Mr. Greenleaf lays down the rule that "parties, in the larger 
 legal sense, are all persons having a right to control the proceedings, 
 to make defense, to adduce and cross-examine witnesses and to ap- 
 peal from the decision. ' ' ^° Hence a judgment may be evidence 
 against and conclusive upon the rights of one who was not a nominal 
 party in the former proceeding, if he is the person who controlled 
 and directed the action," but the mere fact that one has contributed 
 
 New Orleans v. Gaines, Adm., 138 U. S. 595; or was palpably erroneous, 
 WolvertOE v. Baker, 86 Cal. 591; or where the Mil In the former suit was 
 defective, Griswold v. Hazard, 141 U. S. 260; or where damages, not al- 
 lowed 'by law, were recovered in the former action, Baker v. Flint & P. M. 
 Ry. Co., 91 Mich. 298. 
 
 <3Wall V. Wall, 28 Miss. 409; Parrish v. Ferris, 2 Black 606; Foster v. 
 Wells, 4 Tex. 101; Swiggart v. Harber, 5 111. 364, 39 Am. Dec. 418; La 
 Grange v. Ward, 11 Ohio 257; Peay v. Duncan, 20 Ark. 85; Housemire v. 
 Moulton, 15 Ind. 367; Hart v. Jewett, 11 Iowa, 276; Wallace v. Usher, 4 Bibb 
 (Ky.) 508; Lefebore v. DeMontilly, 1 La. An. 42; Vandyke v. Bastedo, 15 
 N. J. L. 224; Page v. Esty, 54 Me. 319; Wingate v. Haywood, 40 N. H. 437; 
 Hibshman v. Dulleban, 4 Watts (Pa.) 183; Kelley v. Nize, 3 Sneed (Tenn.) 
 59 ; Dick v. Webster, 6 Wis. 481. 
 
 "Elliott V. Piersol, 1 Peters 340; Mills v. Duryee, 7 Cranch 484; Holmes 
 V. Remson, 20 Johns, 268; 11 Am. Dec. 269; Latham v. Edgerton, 9 Cow. 
 227; Loring v. Mansfield, 17 Mass. 394; Hollister v. Abbott, 31 N. H. 442, 
 64 Am. Dec. 342; Homer v. Fish, 1 Pick. 439, 11 Am. Dec. 218; Baker v. 
 Flint & P. M. Ry. Co., 91 Mich. 298. 
 
 45 Sheets v. Hawk, 14 Serg. & R. (Pa.) 173, 16 Am. Dec. 486; Adams v. 
 Pearson, 7 Pick. 341, 19 Am. Dec. 290; Hopkins v. Lee, 6 Wheat. 109, 114. 
 
 4« 1 Greenl. Ev. § 535. See note, 2 Am. St. Rep. 877. 
 
 *7Aslin V. Parkin, 2 Burr. 668; Hltchin v. Campbell, 2 W. Black. 827; 
 Outram v. Morewood, 3 East 346; Bennett v. Wilmington Star Min. Co., 
 
742 ' THE LAW OP EVIDENCE. § 587 
 
 to a defense does not make the judgment conclusive upon him.*' 
 But generally one who defends or prosecutes by employing counsel, 
 paying costs and doing those things that are generally done by a 
 party will be bound by the judgment, though not a party.*" Nor is 
 it necessary that there be absolute identity as to the parties in the 
 two actions, for although there were different parties in the two 
 suits, this has frequently been held immaterial as between those who 
 were parties to both suits."" In order that the judgment should be 
 a bar on the ground that the parties are the same, it is necessary 
 that the persons should sue or be sued in the same capacity, for ex- 
 ajnple, if the same person sue in his own right and afterwards as 
 administrator, the former judgment is not a bar.''^ 
 
 § 587 (603, 604). Effect of judgments on persons in privity with 
 each other. — The term privity denotes mutual or successive rela- 
 tionship to the same rights of property."^ Privies are generally 
 
 119 111. 9, 7 N. B. 498; Castle v. Noyes, 14 N. Y. 329; Cecil v. Cecil, 19 Md. 
 72, 81 Am. Dec. 626; Peterson v. Lotlirop, 34 Pa. St. 223; French v. Neal, 
 24 Pick. 61; Adams v. Barnes, 17 Mass. 365; Case v. Reeve, 14 Johns. 82; 
 Calhoun's Lessee v. Dunning, 4 Dall. (Pa.) 120; Wood v. Ensel, 63 Mo. 
 193; Stokes v. Morrow, 54 Ga. 597; Shugart v. Miles, 125 Ind. 445, 25 N. 
 E. 551; Daskam v. Ullman, 74 Wis. 474, 43 N. W. 321; Hauke v. Cooper, 
 108 Fed. 922; McCellan v. Hurd, 21 Colo. 197, 40 Pac. 445. 
 
 48Goodnow v. Litchfield, 63 Iowa, 275, 19 N. W. 226; Schroeder v. 
 Lahrman, 26 Minn. 87, 1 N. W. 801; Gross v. Board of Com'rs, 158 Ind. 531, 
 64 N. B. 25; Central Baptist Church & Society v. Manchester, 17 R. I. 492, 
 23 Atl. 30, 33 Am. St. Rep. 893. 
 
 4»McNamee v. Moreland, 26 Iowa 96; Stoddard v. Thompson, 31 Iowa 
 80; Wood V. Ensel, 63 Mo. 193; The Town of Fulton v. Pomeroy, 111 Wis. 
 663, 87 N. W. 831; Baxter v. Meyers, 85 la. 328, 52 N. W. 234, 39 Am. St. 
 Rep. 298; Parr v. State, 71 Md. 220, 17 Atl. 1020. 
 
 60 Davenport v. Burnett, 51 Ind. 329; Larimi v. Wilmer, 35 Iowa, 244; 
 Tauziede v. Jumel, 133 N. Y. 614; State v. Krug, 94 Ind. 366; French v. 
 Neal, 24 Pick. 55; Lawrence v. Hunt, 10 Wend. 80, 25 Am. Dec. 539; Dows 
 v.McMichael, 6 Paige (N. Y.) 139; Thompson v. Roberts, 24 How. 233; 
 Girardin v. Dean, 49 Tex. 243. Contra, Davis v. Hunt, 2 Bailey (S. C.) 
 412; Nave v. Adams, 107 Mo. 414. 
 
 eiLeggott V. Great Northern Ry. Co., 1 Q. B. Div. 599; Karr v. Parks, 44 
 Cal. 46; Collins v. Hydron, 135 N. Y. 320; Brooking v. Dearmond, 27 Ga. 
 58; Lander v. Amo, 65 Me. 26; Downing v. Diaz, 80 Tex. 436; Landon v. 
 Townshend, 129 N. Y. 93, 19 N. B. 424, 8 Am. St. Rep. 712, a foreclosure 
 against a person as assignee in bankruptcy does not bar his individual 
 right; Stockton Building & L. Ass'n v. Chalmers, 75 Cal. 332, 17 Pac. 229, 
 7 Am. St. Rep. 173 and note; Fuller v. Metropolitan L. Ins. Co., 68 Conn. 
 55, 35 Atl. 766, 57 Am. St. Hep. 84; Brwin v. Garner, 108 Ind. 488, 9 N. B. 
 417; Farmers Loan & Trust Co. v. Essex, 66 Kan. 100, 71 Pac. 268; Bamka 
 V. Railway Co., 61 Minn. 549, 63 N. W. 116, 52 Am. St. Rep. 618. 
 
 52 GreenU Bv. § 189. 
 
§ 587 DOCUMENTAET EVIDENCE. 743 
 
 classified as privies in law, such as tenant by curtesy, tenant in 
 dower, executor or administrator ; privies in Hood such as heirs and 
 co-parceners; privies in estate, such as those where there is a mu- 
 tual or successive relationship to rights of property, not occasioned 
 by descent nor by act of law.^' There is no such privity of estate 
 between the real and pei-sonal representatives of a deceased person, 
 hence judgments against administrators or executors are not con- 
 elusive against heirs or devisees.^* Although in jurisdictions where 
 the administrator or executor fully represents the heirs, as well as 
 the creditors and next of kin, a different rule would prevail."" The 
 executor or administrator is not concluded by a judgment against 
 the heirs in an action which has been brought by such heirs in dis- 
 regard of the rights of the creditors ; °° nor is the executor or ad- 
 ministrator bound by proceedings against a distributee."^ There is 
 no such relation between a corporation and its stockholders that the 
 latter can bind the corporation by an action brought in their own 
 names ; "' but, if an action is brought by a next friend in behalf of 
 
 63 2 Coke Lltt. 352 b; Freem. Judg. (4tli Ed.) § 162. A judgment, bind- 
 ing upon the testator or Intestate in bis life. Is also binding on bis execu- 
 tor or administrator, Torrey v. Pond, 102 Mass. 355; or upon bis heirs at 
 law, Locke v. Norborne, 3 Mod. 141; Ross v. Banta, (Ind.) 34 N. E. 865; 
 his legatee, devisee, tenant in dower or by curtesy, Locke v. Norborne, 3 
 Mod. 141; Outram v. Morewood, 3 East 353. The rule applies to pur- 
 chasers of property concerning which litigation is pending, Inloe v. Har- 
 vey, 11 Md. 519; Shotwell v. Lawson, 30 Miss. 27, 64 Am. Dec. 145; Haynes 
 V. Calderwood, 23 Cal. 409; Loomis v. Riley, 24 111. 307; Green v. White, 
 7 Blackf. (Ind.) 242; McGregor v. McGregor, 21 Iowa 441; WicklifEe v. 
 Bascom, 7 B. Mon. (Ky.) 681; Thurston v. Spratt, 52 Me. 202; Steele v. 
 Taylor, 1 Minn. 274; Com. v. Dielfenbach, 3 Grant (Pa.) 368; Thompson v. 
 McCormick, 136 111. 135; to subsequent incumbrancers and lessees. Com. v. 
 Dieffenbach, 3 Grant (Pa.) 368; National Bank v. Sprague, 21 N.,J. Eq. 
 530; Miller v. White, 80 111. 580; assignees, Smith v. Kernochen, 7 How. 
 198; and grantees, Foster v. Earl of Derby, 1 Adol. & Ell. 787; provided 
 their succession to the rights of the property affected occurred previously 
 to the institution of the suit, Samson v. Ohleyer, 22 Cal. 200; Ex parte 
 Reynolds, 1 Caines (N. Y.) 500; Georges v. Hufschmldt, 44 Mo. 179; Garri- 
 son V. Savignac, 25 Mo. 47, 69 Am. Dec. 448. But a judgment against a 
 tenant is not binding on his co-tenant, Morrison v. Clark, 89 Me. 103, 35 
 Atl. 1034, 56 Am. St. Rep. 395. 
 
 64 McCoy V. Nichols, 5 Miss. 31; Vernon v. Valk, 2 Hill Ch. (S. C.) 257; 
 Collinson v. Owens, 6 Gill & J. (Md.) 4; Robertson v. Wri^t, 17 Graft. 
 (Va.) 534; Early v. Garland, 13 Gratt. (Va.) 1; Dorr v. Stockdale, 19 
 Iowa, 269. 
 
 66 Shannon v. Taylor, 16 Tex. 413; Castellow v. Gullmartin, 54 Ga. 299. 
 68 Door V. Stockdale, 19 Iowa, 269. 
 
 67 Johnson v. Longmore, 39 Ala. 143. 
 
 ?8 Trustees v. Meetze, 4 Rich. L. (S. C.) 5(), 
 
744 THE LAW OF EVIDENCE. § 588 
 
 an infant, the judgment may be proved as a bar to any future action 
 by tbe infant on the same eause.^" As a rule agents and principals 
 have no mutual or successive relationship to rights of property, and 
 are not in privity with each other.^" But if the principal knows of 
 a pending suit in which his agent is a party, in respect to property 
 in his hands as such agent, and if he controls the litigation, he will 
 be bound by the judgment."^ So in trespass against the principal, 
 the latter may give, as evidence in his favor, a former judgment 
 rendered on the merits of the ease in. favor of his servant, where in 
 both cases the same facts are relied on as constituting the trespass 
 which was alleged to have been by the command of the principal.'"' 
 Although the tenant is in privity with the landlord, and is bound 
 by a recovery against him, the landlord is not affected by the pro- 
 ceedings against the tenant,"' unless he assumes control of the prose- 
 cution or defense, in which case he is bound."* 
 
 § 588 (605). Admissibility of judgments as against strangers. — 
 In a celebrated ease it was declared to be the generally accepted rule 
 that "a transaction between two parties in judicial proceedings 
 ought not to be binding upon a third. For it would be unjust to 
 bind any person who could not be admitted to make a defence, or to 
 examine vsdtnesses, or to appeal from a judgment, he might think 
 erroneous; and, therefore, the depositions of witnesses in another 
 cause in proof of a fact, the verdict of the jury finding the fact and 
 the judgment of the courts upon facts found, although evidence 
 against the parties and all claiming under them, are not in general 
 to be used to the prejudice of strangers. ' ' "^ But it is an exception, 
 generally recognized, that verdicts and judgments on questions of a 
 public nature, where evideiice of a general reputation would be re- 
 ceived, may by admitted as evidence, although the parties are not 
 the same or in privity with each other. But in such cases the judg- 
 ment is not conclusive against strangers to the record, although ad- 
 
 os Morgan v. Thome, 7 M. & W. 400. 
 
 00 Pico V. Webster, 12 Cal. 140; Lawrence v. Ware, 37 Ala. 553; Freem. 
 Judg. (4th Ed.) § 164. 
 
 oiWarfleld v. Davis, 14 B. Mon. (Ky.) 41. 
 
 62 Emery .v. Fowler, 39 Me. 331, 63 Am. Dec. 627. 
 
 esWenman v. MacKenzle, 5 El. & B. 447; Chant v. Reynolds, 49 Cal. 213; 
 Bartlett v Boston Gas Co., 122 Mass. 209. 
 
 6* Valentine v. Mahoney, 37 Cal. 389; Chirac v. Reinecker, 2 Peters 617; 
 Thomsen v. McCormick, 136 111. 135, 26 N. E. 373. But see, Samuel v. 
 Dinkins, 12 Rich. L. (S. C.) 172. 
 
 00 Duchess of Kingston's Case, 20 How. St. Tr. 538, 2 Phlll. EJv. 4. 
 
§ 589 DOCUMENTARY EVIDENCE. 745 
 
 missible." Another exception to the rule that statements in judg- 
 ments are not relevant, except between parties and privies, has been 
 recognized in actions in rem. This is illustrated in actions for the 
 condemnation of ships as prizes.^'' As illustrations of the general 
 rule that judgments are not admissible except between parties or 
 privies to the action, it has been held that, in an action for slander 
 against a husband, a judgment in a former action between the 
 plaintiff and the husband and wife for the same slanderous words 
 could not be received."' So in an action by a town against a hus- 
 band for support furnished the wife, a judgment in divorce is not 
 admissible on the issue whether she was justified in leaving him.*° 
 
 § 589 (606). Judgments in civil cases no bar in criminal cases. 
 — Although the same fact may be involved in two cases, one civil 
 and the other criminal, the parties are necessarily different, for one 
 action is prosecuted by an individual, the other by the state; and the 
 
 08 Reed v. Jackson, 1 East 357; Pile v. McBratney, 15 111. 314; Patterson 
 V. Gaines, .6 How. 599; 2 Tayl. Bv. (10th Ed.) § 1683. Such judgements 
 have been received in a second action, although the parties were different, 
 in cases affecting customs. Reed v. Jackson, 1 Bast 357; Berry v. Banner, 
 Peake, 156; 'boundaries between parishes and counties, Brisco v. Lomax, 8 
 Adol. & Ell. 198; Evans v. Rees, 10 Adol. & Ell. 151; liabilities to repair 
 roads, R. v. St. Pancras, Peake, 220; R. v. Haughton, 1 El. & B. 501; to 
 prove the existence of a highway where the party claims by prescription, 
 Fowler v. Savage, 3 Conn. 90; to show the dedication of a public square 
 or park, Elson v. Comstock, 150 111. 303; People v. Halladay, 102 Cal. 661; 
 to determine questions relating to tolls. City of London v. Clerke, Carth. 
 181; 'pedigrees, Vaughan v. Phebe, 1 Mart. & Y. (Tenn.) 1, 17 Am. Dec. 
 770; and other questions of puhlic and general interest, MulhoUand v. 
 Killen, I. R. 9 Eq. 471. 
 
 8'Gelston v. Hoyt, 13 Johns. 561, 3 Wheat. 246; Risley v. Phrenix Bank, 
 83 N. Y. 318, 332, 38 Am. Rep. 421; Steph. Bv. art 42. But see Farrell v. 
 City of St. Paul, 62 Minn. 271, 64 N. W. 809, 54 Am. St. Rep. 641. Applies 
 to actions where a judgment is rendered as to the status of some particu- 
 lar subject matter by a tribunal of competent jurisdiction, as in attach- 
 ment proceedings against a non-resident, Pennoyer v. Neff, 95 U. S. 714; 
 McKinney v. Collins, 88 N. Y. 216; or where the Issue relates to such ques- 
 tions as marriage and divorce. People v. Baker, 76 N. Y. 78, 32 Am. Rep. 
 274; naturalization. State v. McDonald, 108 Wis. 8, 84 N. W. 171, 81 Am. 
 Rep. 878; settlements of paupers, Dorset v. Manchester, 3 Vt. 370; Gibson 
 v. Nicholson, 2 Serg. & R. (Pa.) 422; grants of probate, Noel v. Wells, 1 
 Lev. 235; Allen v. Dundas, 3 T. R. 125; Bonnemort v. Gill, 167 Mass. 338, 
 45 N. E. 768; and administration, Bouchier v. Taylor, 4 Brown P. C. 708; 
 Prosser v. Wagner, 1 C. B. N. S. 289. 
 
 88 Magauran v. Patterson, 6 Serg. & R. (Pa.) 278; Killingsworth v. Brad- 
 ford, 2 Overt. (Tenn.) 204; Chapman v. Chapman, 1 Munf. (Va.) 398. 
 
 8» Inhabitants of Sturbrldge v. Franklin, 160 Mass. 149. 
 
746 THE lAW OF EVIDENCE. 8 590 
 
 judgment in one case is not generally admissible in the other to es- 
 tablish the facts on which it was rendered.''" Thus, in an action to 
 recover a reward for the detection and conviction of an offender, 
 the record of his conviction, though admissible to show that fact, 
 does not determine conclusively the question of his guilt.^^ Al- 
 though the clear weight of authority supports the proposition illus- 
 trated by the foregoing cases, there are instances in which a differ- 
 ent rule has been held.^^ But if a defendant has pleaded guilty in 
 a criminal case, the judgment entered upon such plea may be re- 
 ceived as an admission, although it is not conclusive.^' 
 
 § 590 (607). Judgments admissible against third persons for in- 
 cidental purposes. — Although, where the parties to the suit are 
 not the same or in privity, the record of the former suit cannot be 
 introduced to establish the facts on which it was rendered, yet there 
 are certain incidental purposes for which such records may be in- 
 troduced.'* For example, if it becomes material to show that a 
 judgment has teen rendered, although against one who is a stranger 
 to the 'pending suit, the record may be offered for that purpose; '' 
 
 10 Smith V. Rummens, 1 Camp. 9; Hathaway v. Barrow, 1 Camp. 151; 
 Jones V. White, 1 Str. 68; Hillyard v. Grantham, cited by Ld. Hardwicke 
 in Brownsword v. Edwards, 2 Ves. Sr. 246; Morch v. Raubitschek, 159 Pa. 
 St. 559; Marceau v. Travelers' Ins. Co., 101 Cal. 338, 35 Pac. 856; Mead v. 
 Boston, 3 Gush. 404; Betts v. New Hartford, 25 Conn. 180; Corbley v. Wil- 
 son, 71 111. 209, 22 Am. Rep. 98; Steel v. Cazeaux, 8 Mart. (La.) 318, 13 
 Am. Dec. 288; Cluff v. Mutual B. L. Ins. Co., 99 Mass. 317; Cottingham v. 
 Weeks, 54 Ga. 275; McDonald v. Stark, 176 111. 456, 52 N. E. 37; Martin v. 
 Blattner, 68 la. 286, 25 N. W. 131; Fowle v. Child, 164 Mass. 210, 41 N. E. 
 291, 49 Am. St. Rep. 451; People v. Kenyon, 93 Mich. 19, 52 N. W. 1033. 
 For a full discussion of res judicata in criminal proceedings, see note 103 
 Am. St. Rep. 19-29. 
 
 71 Mead v. Boston, 3 Cush. 404. An action for trover for stolen money is 
 not defeated by the fact that the defendant has been acquitted of the theft 
 in a criminal action, Hutchinson v. Bank of Wheeling, 41 Pa. St. 42, 80 
 Am. Dec. 596; Beausoliel v. Brown, 15 La. An. 543; and a conviction for 
 forging a bill of exchange is not admissible to prove forgery in an action 
 on the bill, Castrlque v. Imrie, L. R. 4 H. L. 414. So in a civil action for 
 the hilling of a person, the record of the defendant's acquittal is not ad- 
 missible, Cottingham v. Weeks, 54 Ga. 275. 
 
 iz Moses V. Bradley, 3 Whart. (Pa.) 272; Maybee v. Avery, 18 Johns. 
 352; Anderson v. Anderson, 4 Me 100, 16 Am. Dec. 237; Randall v. Ran- 
 dall, 4 Me. 326; R. v. Fontaine Moreau, 11 Q. B. 1033; Bradley v. Bradley, 
 11 Me. 367; Green v. Bedell, 48 N. H. 546; Clark v. Irvin, 9 Ohio, 131. 
 
 73 Crawford v. Bergen, 91 la. 675, 60 N. W. 205; Hauser v. Griffith, 102 
 la. 215, 71 N. W. 223. 
 
 74Freem. Judg. (4th Ed.) § 154; Black Judg. (2nd Ed.) §§ 534, 600. 
 
 "5 Vogt V, Ticknor, 48 N. H. 242; Spencer y- Dearth, 43 Vt. 98; Goodnow 
 
§ 590 DOOUMEKTAEY EVIDENCE. 747 
 
 and it becomes evidence, not only of the rendition of the judgment 
 but of its legal effect.'"' This rule is thus stated by Mr. Stephen : 
 "All judgments, whatever, are conclusive proof, as against all per- 
 sons, of the existence of that state of things which they actually 
 effect, when the existence of the state of things so effected is a fact 
 in issue, or is, or is deemed to be relevant to the issue." " For such 
 purposes, judgments have been received to show that one person was 
 a creditor of another at a given time, though he was a stranger to 
 the suit.''* Or to show the former acquittal of the plaintiff in an ac- 
 tion for malicious prosecution.'" The records are admissible to 
 identify a case, if this become material,'" or if they constitute a part 
 of the res gestae out of which the present action has grown.'^ On 
 the same principle, where the plaintiff, but not the defendant, was 
 a party in the former action, the record in the former case was ad- 
 mitted to rebut the presumption that the claim was stale as well as 
 for the purpose of. showing the filing of a lis pendens in relation 
 to the property in controversy.'^ In actions iy sureties or guaran- 
 tors, judgments rendered against them in former actions may be ad- 
 mitted to show their rendition as well as the consequence of the de- 
 fault of the principal and amount of damages, although this is not 
 necessarily conclusive as to the debt or misconduct of the princi- 
 pal.*' The same rule applies where a judgment has been rendered 
 against a master for the negligence of his servant, and the master 
 sues the servant for indemnity,'* as well as where the judgment 
 forms a link in the chain of title, or where the existence or validity 
 
 V. Smith, 97 Mass. 69; Kip v. Brigham, 7 Johns. 168; Key v. Dent, 14 Md. 
 86; Ray v. Clemens, 6 Leigh (Va.) 600; State v. Foster, 3 McCord (S. C.) 
 442; Fox v. Fox, 4 La. An. 135; Lee v. Lee, 21 Mo. 531; Smith v. Chapln, 
 31 Conn. 530; Taylor v. Means, 73 Ala. 468; McCamant v. Robblns, 66 Tex. 
 260; Maple v. Beach, 43 Ind. 51. 
 
 78 Stark. Ev. 287. See also cases cited in the last note. 
 
 "Steph. Ev. art. 40; Dorrell v. State, 83 Ind. 357; Chamberlain v. Car- 
 lisle, 26 N. H. 540; Wadsworth v. Sharpsteen, 8 N. Y. 388, 59 Am. Dec. 499. 
 
 78 Vogt V. Ticknor, 48 N. H. 242; Goodnow v. Smith, 97 Mass. 69; Church 
 v. Chapin, 35 Vt. 223; Inman v. Mead, 97 Mass. 310; Candee v. Lord, 2 N. 
 Y. 269, 51 Am. Dec. 294. 
 
 '8 Sayles v. Brlggs, 4 Met. 421; Burt v. Place, 4 Wend. 591. 
 
 80 Harris v. Miner, 28 111. 135. 
 
 81 Wells V. Shipp, 1 Miss. 353. 
 
 82 Sowden v. Craig, 26 Iowa, 156, 96 Am. Dec. 125. 
 
 83 Lewis V. Knox, 2 Bibb (Ky.) 453; Cox v. Thomas, 9 Gratt. (Va.) 323; 
 Copp V. M'Dugall, 9 Mass. 1; Lee v. Clarke, 1 Hill 56; Tyler T. Ulmer, 18 
 Mass. 163. 
 
 8* Green v. New River, 4 T. R. 590. 
 
748 THE LAW OF EVIDENCE. § 591 
 
 of collateral proceedings is in issue.^" In an action against an in- 
 dorser, a judgment against the maker may be introduced for the 
 purpose of showing diligence.*" So the record may be introduced 
 where it is a matter of inducement or necessarily introductory to 
 other evidence.*^ 
 
 § 591 (608). Judgments against principals in actions against 
 their sureties. — There is an irreconcilable conflict in the decisions 
 as to the admissibility and effect of judgments against principals, 
 when offered in actions against their sureties. This conflict is due 
 in part to dissimilarity of statutes affecting the subject in the several 
 states, and in part to the differences in the conditions of the bonds 
 or other obligations which have been the subject of litigation. There 
 are many cases which, although they recognize the general rule that 
 judgments conclude only parties and privies, have held former judg- 
 ments against a principal admissible in actions against the surety 
 on the ground that the language of the contract has been such that 
 the surety has made himself liable for the conduct of his principal 
 and for the results or consequences of a suit between other parties.*' 
 The strictness of the common law rule on this subject has undoubt- 
 edly been much relaxed in holding judgments against the principal 
 prima facie evidence against the surety, in the absence of fraud or 
 collusion ; *° and in some jurisdictions such judgments are held con- 
 clusive."" Where judgment has been recovered against one who, by 
 
 86 Barr v. Gratz, 4 Wheat. 220; Key v. Dent, 14 Md. 86; King v. Chase, 15 
 N. H. 9, 41 Am. Dec. 675. 
 
 86 Lane v. Clark, 1 Mo. 657. 
 
 87 Kip V. Brigham, 6 Johns. 158, 7 Johns. 168; Weld v. Nichols, 17 Pick. 
 538; Head v. McDonald, 7 T. B. Mon. (Ky.) 203; Poster v. Shaw, 7 Serg. 
 & R. (Pa.) 156; Barr v. Gratz, 4 Wheat. 213; Jackson v. Wood, 3 Wend. 27; 
 Fowler v. Savage, 3 Conn. 90; Farwell v. Hilliard, 3 N. H. 318; Davis v. 
 Loundes, 1 Bing. (N. C.) 607; Greenl. Bv. § 539, and cases there cited. 
 
 88 Thomas v. Hubbell, 15 N. Y. 405, 69 Am. Dec. G19; Douglass v. How- 
 land, 24 Wend. 35; Lee v. Clark, 1 Hill, 56; Duffleld v. Scott, 3 T. R. 374; 
 Rapelye v. Prince, 4 Hill, 119, 40 Am. Dec. 267; Lartigue v. Baldwin, 5 
 Mart. 0. S. (La.) 193; Firemen's Ins. Co. v. McMillan, 29 Ala. 147; Arring- 
 ton v. Porter, 47 Ala. 714. See notes, 33 Am. Rep. 802, 83 Am. Dec. 380-390, 
 as to the general subject of this section. 
 
 89 Haddock v. Perham, 70 Ga. 572; Curry v. Mack, 90 111. 606; Spencer 
 V. Dearth, 43 Vt. 98; City of Lowell v. Parker, 10 Met. 309; McLaughlin v. 
 Bank of the Potomac, 7 How. 220; Drummond v. Prestman, 12 Wheat. 515; 
 Berger v. Williams, 4 McLean (U. S.) 577; Jacobs v. Hill, 2 Leigh (Va.) 
 393; Jaynes v. Piatt, 47 Ohio St. 262; Bone v. Torry, 16 Ark. 83. See 
 McConnell v. Poor, 113 la. 133, 84 N. W. 968, 52 L. R. A. 312, full discussion. 
 
 00 McLaughlin v. Bank of the Potomac, 7 How. 220; Pasewalk v. Boll- 
 man, 29 Neb. 519. 
 
§ 591 DOCUMENTARY EVIDENCE. 749 
 
 reason of the facts found in such action, has the right to recover 
 damages against another bound to indemnify him, and who had due 
 and timely notice to appear and defend such action, the judgment 
 may be evidence in an action for such indemnity, although the par- 
 ties are different."^ In actions against sureties on the ionds of exec- 
 utors and administrators, it is generally conceded that the judgment 
 against the principal is admissible for some purposes."^ In such 
 cases, the contention is over the question whether the judgment 
 should be conclusive or only prima facie evidence. The bonds of 
 executors and administrators generally contain some condition, the 
 legal effect of which is that the principals shall be bound by the or- 
 ders or decrees of the court, and hence the sureties may be regarded 
 as having contracted to abide the judgment of the court. In such 
 cases, there is general uniformity in the view that the judgment 
 against the principal is not res inter alios acta, but is condpetent evi- 
 dence against the surety."' In the opinion of the author, the weight 
 of authority sustains the view that in such cases the judgment is 
 conclusive against the surety on the principle that he has in effect 
 contracted to be bound thereby.'* But it must be conceded that in 
 a large number of cases the judgment has been held to be only prima 
 facie evidence against the principal."" The same general principles 
 apply when judgments are offered in evidence against sureties of 
 guardians, as in the case of executors and administrators." It need 
 
 »iRocliester v. Montgomery, 72 N. Y. 65; Kip v. Brigham, 6 Jolins. 158; 
 Portland v. Richardson, 54 Me. 46, 89 Am. Dec. 720; Boston v. Worthing- 
 ton, 10 Gray, 496, 71 Am. Dec. 678; Inhabitants v. Holbrook, 9 Allen, 17, 85 
 Am. Dee. 735; Chicago v. Robbing, 2 Black (U. S.) 418. 
 
 »2 See cases cited below. As to the general subject of this and succeed- 
 ing sections see notes, 83 Am. Dec. 380-390; 33 Am. Rep. 802. 
 
 »3 See cases cited below; also note, 32 Am. Dec. 202. 
 
 siStovall V. Banks, 10 Wall. 583; Martin v. Tally, 72 Ala. 23; Irwin v. 
 Backus, 25 Cal. 214, 85 Am. Dec. 125; Willey v. Paulk, 6 Conn. 74; Salyer v. 
 State, 5 Ind. 202; Ralston v. Wood, 15 111. 159, 58 Am. Dec. 604, by statute; 
 Housh V. People, 66 111. 178; Hobbs v. Mlddleton, 1 J. J. Marsh. (Ky.) 176; 
 Heard v. Lodge, 20 Pick. 53, 32 Am. Dec. 197; State v. Holt, 27 Mo. 340, 72 
 Am. Dec. 273; Taylor v. Hunt, 34 Mo. 205; Baggott v. Boulger, 2 Duer (N. 
 Y.) 160; Casoni v. Jerome, 58 N. Y. 315; Garber v. Com., 7 Pa. St. 265; 
 Boyd V. Caldwell, 4 Rich. L. (S. C.) 117; State v. Pike, 74 N. 0. 531, by 
 statute; Tracy v. Goodwin, 5 Allen 409. 
 
 85 Bennett v. Graham, 71 Ga. 211; Pontleroy v. Lyle, 5 T. B. Mon. (Ky.) 
 266; Verret v. Belanger, 6 La. An. 109; Iglehart v. State, 2 Gill & J. (Md.) 
 235; Lipscomb v. Postell, 38 Miss. 476, 77 Am. Dec. 651; Hobson v. Yancey, 
 2 Gratt. (Va.) 73; Seat v. Cannon, 1 Humph. (Tenn.) 471. 
 
 «8 Shepard v. Pebbles, 38 Wis. 373; Watts v. Gayle, 20 Ala. 817; Willey T. 
 
750 THE LAW OP EVIDENCE. § 592 
 
 hardly be stated that the judgment may be attacked on the ground 
 of want of jurisdiction; " and it is always competent for the surety 
 to prove that the judgment against the principal was obtained by 
 fraud or collusion.^^ 
 
 § 592 (609). Same — Other classes of bonds. — The principle al- 
 ready stated applies in respect to other classes of bonds where the 
 language of the contract has been such that the surety has made 
 himself liable for the conduct of his principal, or for the results or 
 consequences of a suit between other parties."' There has been 
 great diversity of opinion on this subject in actions against sureties 
 on sheriff's and constable's bonds. In these official bonds the surety 
 does not generally undertake that the principal shall do a specified 
 act in a given way to be ascertained by the court. The bonds are in 
 general terms to the effect that the principal will perform certain 
 official duties ; and in such cases, the rule applied to executors and 
 administrators does not necessarily govern. Accordingly it has been 
 decided in numerous cases that a judgment against the principal on 
 the bond of a sheriff or other officer is no evidence against the surety 
 of any fact necessary to be found in the recovery of the judgment, 
 although admissible to show the fact of its rendition.^ In other 
 eases, the judgment has been held admissible against the surety as 
 prima facie evidence of the right of the plaintiff to recover as well 
 as of the amount of such recovery.'' "While in still other cases, it has 
 
 Paulk, 6 Conn. 74; Love v. Gibson, 3 Fla. 598; McKeller v. Bowell, 4 
 Hawks (N. C.) 34. 
 
 97Buckner v. Archer, 1 McMulI. (S. C.) 85. 
 
 ssAnnett v. Terry, 35 N. Y. 256; Irwin v. Backus, 25 Cal. 214, 85 Am. 
 Dec. 125. See also cases cited in note 94 supra. 
 
 90 Thomas v. Hubbell, 15 N. Y. 405, 69 Am. Dec. 619; Douglas v. How- 
 land, 24 Wend. 35; Duffield v. Scott, 3 T. R. 374; Rapleye v. Prince, 4 Hill 
 li9, 40 Am. Dec. 267; Firemen's Ins. Co. v. McMillan 29 Ala. 147; Arring- 
 ton V. Porter, 47 Ala. 714; Giltman v. Strong, 64 Pa. St. 242; Pico v. Web- 
 ster, 14 Cal. 202, 73 Am. Dec. 647. Sureties have been held bound by the 
 judgment against the principal in attacTiment proceedings, Cutter v. Evans, 
 115 Mass. 27; Tracy v. Maloney, 105 Mass. 90; see valuable note, 83 Am. 
 Dec. 380-390; on appeal bonds, Murdock v. Brooks, 38 Cal 596; recogniz- 
 ances or bail bonds, Parkhurst v. Sumner, 23 Vt. 538, 56 Am. Dec. 94; 
 Keane v. Fisher, 10 La. An. 261; Way v. Lewis, 115 Mass. 26, (but see, Mott 
 V. Hazen, 27 Vt. 208, 213) ; in injunction proceedings, McBroom y. Som- 
 merville, 2 Stew. (Ala.) 515; Lothrop v. Southworth, 5 Mich. 536; Towle v. 
 Towle, 46 N. H. 431; Methodist Church v. Barker, 18 N. Y. 463; and in 
 replevin or on a redelivery bond, Kennedy v. Brown, 21 Kan. 171. 
 
 1 Lucas V. Govenor, 6 Ala. 826; Pico v. Webster, 14 Cal. 202, 73 Am. Dec. 
 647; Carmlchael v. Governor, 4 Miss. 236. 
 
 « Stephens v. Shafer, 48 Wis. 54, 3 N. W. 835, 33 Am. Rep. 793, note and 
 
§ 593 DOOTJMENTABY EVIDENCE. 751 
 
 been held that the judgment against the principal is conclusive 
 against the sureties as to the default or misconduct of the principal 
 and the amount of damages.' A similar conflict of opinion is found 
 in actions brought by sheriffs against sureties on the bonds of the 
 sheriff's deputies. In come cases, the original judgment against the 
 sheriff for misconduct of the deputy has been held prima facie evi- 
 dence of the right to recover in an action against' the sureties,* and 
 in others, it is held to be conclusive.'^ 
 
 § 593 (610). Judgments — when admissible as against third per- 
 sons who are liable to make indemnity. — It frequently happens, 
 where a judgment is recovered against a defendant, that, by reason 
 of the facts found in that action, he has the right to recover dam- 
 ages against another who is bound to indemnify him by reason of 
 some contract or other relation. In such cases, the judgment re- 
 covered in the first action may be given in evidence in the second 
 against the one bound to give indemnity, provided he has been given 
 proper and timely notice to appear and defend such action, although 
 the parties are different." In order to make the judgment conclu- 
 sive evidence against the one alleged to be liable for indemnity, the 
 notice to defend should be given in time so that there may be full 
 opportunity to appear and defend; and he should be so notified of 
 the controversy that he may know the consequences of his failure to 
 
 cases cited; State v. Jennings, 14 Oliio St. 73; Taylor v. Jolinson, 17 Ga. 
 521; Graves v. Bulkley, 25 Kan. 249, 37 Am. Rep. 249; Mullen v. Scott, 9 
 La. An. 173; Munford v. Overseers, 2 Rand. (Va.) 313; Aiken v. Bailey, 9 
 Yerg. (Tenn.) 111. See note, 41 Am. Dec. 683. 
 
 3 Tracey v. Goodwin, 5 Allen, 409, bond being joint; State v. Colerlck, 3 
 Ohio, 487; McBroom v. Governor, 4 Port. (Ala.) 90; Dane v. Gllmore, 51 
 Me. 544; Masser v. Strickland, 17 Serg. & R. (Pa.) 354, 17 Am. Dec. 668; 
 Evans v. Com., 8 Watts 398, 34 Am. Dec. 477; McMicken v. Com., 58 Pa. St 
 213. 
 
 *Westervelt v. Smith, 2 Duer (N. Y.) 449; Stephens v. Shafer, 48 Wis. 
 54, 33 Am. Rep. 793 and note. 
 
 s Chamberlain v. Godfrey, 36 Vt. 380, 84 Am. Dec. 690; Crawford t. 
 Turk, 24 Gratt. (Va.) 176. 
 
 e Rochester v. Montgomery, 72 N. Y. 65; Kip v. Brigham, 7 Johns. 168; 
 Freem. Judg. (4th Ed.) § 181. On the general subject of this section see 
 note, 83 Am. Dec. 380-390. After due notice to defend, a judgment against 
 a town or city for damages caused by a defective highway may be given as 
 evidence against a person or corporation liable over to such town or city, 
 Chicago V. Robbins, 2 Black, 418; Robbins v. Chicago, 4 Wall. 657; Boston 
 V. Worthington, 10 Gray, 496, 71 Am. Dec. 678; Milford v. Holbrook, 9 
 Allen, 17, 85 Am. Dec. 735; Portland v. Richardson, 54 Me. 46, 89 Am. Dec. 
 720. The same rule applies in actions against those who have agreed to 
 
752 THE LAW OF EVIDENCE. § 593 
 
 defend/ There are, however, a iew eases, not in harmony with the 
 last statement, which hold that the party to be affected need not have 
 express twtioe, and that it is enough if he knew of the pendency of 
 the suit, and might have appeared and protected his interests.* The 
 weight of authority, however, sustains- the view that notice should 
 be given, and that, when properly given, the judgment is conclusive," 
 although there is a line of authorities which hold that the relation 
 which exists between a principal and a surety does not render one 
 privy to a suit against the other ; that a judgment against the prin- 
 cipal is not even prima facie evidence in a subsequent action against 
 the surety, and that the surety or indemnitor is not concluded by 
 such judgment, even though due notice to defend has been given.^° 
 It is the prevailing rule that a warrantor of the title of land is 
 bound by a judgment against a wan-antee, when proper notice to 
 defend the title has been given, and that he cannot be heard, in the 
 absence of fraud or collusion, to claim that the judgment against 
 the warrantee should not have been rendered. In such case, the 
 judgment in ejectment is conclusive evidence that the warrantee has 
 been evicted by paramount title.^^ But the defendant may show 
 that this covenant was only a special covenant or prove such other 
 defenses, as that the recovery was on a title derived from the war- 
 rantee, or on account of some fact occurring after the date of the 
 
 Indemnify sheriffs or other officers; Train v. Gk)ld, 5 Pick. 380; Miller v. 
 Rhoades, 20 Ohio St. 494; Lovejoy v. Murray, 3 Wall. 1. 
 
 7 Turpin v. Thomas, 2 Hen. & M. (Va.) 139, 3 Am. Deo. 615; Peabody v. 
 Phelps, 9 Cal. 213; Sampson v. Ohleyer, 22 Cal. 200; Somers v. Schmidt, 24 
 Wis. 417, 1 Am. Rep. 191; Boyd v. Whitfield, 19 Ark. 447; Davis v. Wll- 
 bourne, 1 Hill (S. C.) 27, 26 Am. Dec. 154. Parol notice Is sufficient, howo 
 ever. Miner v. Clark, 15 Wend. 425. 
 
 s Chicago v. Robblns, 2 Black, 418; Robbins v. Chicago, 4 Wall. 657. 
 
 Boston V. Worthlngton, 10 Gray, 496, 71 Am. Dec. 678; Mllford v. Hol- 
 brook, 9 Allen, 17, 85 Am. Dec. 735; Portland v. Richardson, 54 Me. 46, 89 
 Am. Dec. 720; State v. Colerick, 3 Ohio, 487; State v. Jennings, 14 Ohio 
 St. 73. 
 
 10 Jackson v. Grlswold, 4 Hill, 522; Pico v. Webster, 14 Cal. 202, 73 Am. 
 Dec. 647. 
 
 "Andrews v. Denison, 16 N. H. 469, 43 Am. Dec. 565; McConnell T. 
 Downs, 48 111. 271; Hamilton v. Cutts, 4 Mass. 349, 3 Am. Dec. 222; Cham- 
 berlln v. Preble, 11 Allen, 370; Cooper v. Watson, 10 Wend. 202; Davis v. 
 Wilbourne, 1 Hill (S. C.) 27, 26 Am. Dec. 154; Paul v. Whitman, 3 Watta 
 & S. (Pa.) 407; Knapp v. Marlboro, 34 Vt. 235; Daskam v. Ullman, 74 Wis. 
 474; Marsh v. Smith, 73 Iowa, 295. See note, 43 Am. Dec. 569. As to 
 rule on building contract and bond see McConnell v. Poor, 113 la. 133, 84 N. 
 W. 968, 52 L. R. A. 312. 
 
§ 594 DOCUMENTAKY EVIDENCE. 763 
 
 covenant.^* The same principle applies in the case of warranty of 
 persona] property.^' 
 
 § 594 (611). Judgment must be final. — It is essential to the 
 conclusive effect of a former judgment that it should be a f,nal 
 judgment. Until such judgment, the litigation is not deemed to be 
 at an end, and there cannot be said to be a final adjudication of tfei 
 point iu controversy.- Thus, mere verdicts or findings, not resulting 
 in judgment, are not conclusive, for they are still liable to be set 
 aside on motion for new trial.** It has been held otherwise, how- 
 ever, as to verdicts before justices of the peace who have no power 
 to grant new trials.*' Mere interlocutory orders and decrees are 
 also subject to revision and are not conclusive.*" So where the ac- 
 tion is remanded for further proceedings, the judgment cannot be 
 offered as a bar, until there is a final judgment ; *^ and it may, of 
 course, be shown by the party against whom the judgment is offered 
 that it has been reversed.*' 
 
 12 Chicago Ry. Co. v. Northern Line Packett Co., 70 111. 217; Davenport 
 V. Mulr, 3 J. J. Marsh. (Ky.) 310, 20 Am. Dec. 143. 
 
 IS Salle V. Light, 4 Ala. 700, 39 Am. Dec. 317; Boyd v. Whitfield, 19 Ark. 
 447; Thurston v. Spratt, 52 Me. 202; Pickett v. Ford, 5 Miss. 246; Barney 
 V. Dewey, 13 Johns. 224, 7 Am. Dec. 372. 
 
 14 Reed v. Proprietors, 8 How. 274 ; McReady v. Rodgers, 1 Neb. 124, 93 
 Am. Dec. 333; Lord v. Chadboume, 42 Me. 429, 66 Am. Dec. 290; Allen v. 
 Blunt, 3 Story (U. S.) 746; Estate of Holbert, 57 Cal. 257; Harris v. Gano, 
 117 Ga. 934, 44 S. E. 11; Wadsworth v. Connell, 104 HI. 369; Ridgely v. Spen- 
 ser, 2 Binn. (Pa.) 70; Child v. Morgan, 51 Minn. 116; Humphreys v. Browne, 
 19 La. An. 158; Taylor v. Hicks, 36 Pa. St. 392; Dunlap v. Robinson, 
 12 OhioSt. 530; Pearson V. Post, 2 Dak. 220; Gapen v. Bretternitz, 31 Neb. 
 302, 47 N. W. 918. See also. Wood v. Jackson, 8 Wend. 9, 22 Am. Deo. 603. 
 See extended notes, 37 Am. St. Rep. 29-32; 96 Am. Dec. 775-788. But It is 
 otherwise if the time for setting aside the verdict has elapsed, Hume v. 
 Schintz, 90 Tex. 72, 36 S. W. 429. 
 
 IB Aurora v. West, 7 Wall. 82; Sherman v. Dilley, 3 Nev. 21. But see. 
 Doe V. Wright, 10 Adol. & Ell. 763, 783; Munroe v. Pilkington, 31 L. J. 
 (Q. B.) 81. 
 
 loBaugh V. Baugh, 4 Bibb (Ky.) 556; Humphreys v. Browne, 19 La. An. 
 158; Rosenthal v. McManus, 93 Cal. 505; Rockwell v. District Court Lake 
 Co. (Col.), 29 Pac. 454. 
 
 17 Aurora City v. West, 7 Wall. 82; Board of Education v. Fowler, 19 
 Cal. 11. A judgment for costs is not final, Dusing v Nelson, 7 Colo. 184, 2 
 Pac. 922; Riddle v. Yates, 10 Neb. 510, 7 N. W. 289; but the rule is other- 
 wise if costs are directed to be paid out of a specific fund, Williams v. 
 Morgan, 111 U. S. 684; Victor G. & S. M. Co. v. Nat. Bank, 18 Utah, 87, 56 
 Pac. 72, 72 Am. St. Rep. 767. 
 
 18 R. V. Drury 3 Car. & K. 193; Wood v. Jackson, 8 Wend. 9, 22 Am. Dec. 
 603; Goodrich v. Bodurtha, 6 Gray, 323; Pries v. Pennsylvania Ry. Co., 98 
 
 48 
 
754 THE LAW OF EVIDENCE. § 595 
 
 § 595 (612). Finality of judgments — ^Must be on the merits. — 
 
 It is one of the limitations to the general rule under discussion that 
 the judgment, in order to be conclusive evidence as a bar, must he 
 upon the merits}^ This does not imply that the judgment must be 
 free from error, or that it is necessarily such a judgment as should 
 have been rendered upon the evidence, or on the merits, as used in 
 the popular sense. ^^ It does, however, imply that, in order to be 
 conclusive, the judgment should be rendered upon the issues in liti- 
 gation, and not upon the ground of mere technical defects, such as 
 the temporary disability of the plaintiff to sue, or because the action 
 has not accrued, or because of a mere defect in pleadings,"^ or mis- 
 joinder or non- joinder of plaintiffs.^^ An eminent author has made 
 the following classification of judgments which are not conclusive 
 in a second action on this ground : ' ' First, where the plaintiff fails 
 for want of jurisdiction in the court to hear his complaint, or to 
 
 Pa. St. 142; Smith v. Prankfleld, 77 N. T. 414; Borden Mfg. Co. v. Barry, 
 17 Md. 419; Fleming v. Riddick, 5 Gratt. (Va.) 272, 50 Am. Dec. 119; 
 Taylor v. Smith, 4 Ga. 133; Clodfelter v. Hullett, 92 Ind. 426; Edgar v. 
 Greer, 10 Iowa, 279; Atkinson v. Dixon, 96 Mo. 582. As to effect of appeal, , 
 see § 613 infra. 
 
 i» Gray v. Dougherty, 25 Cal. 266; Liddell v. Chldester, 84 Ala. 508, 4 So. 
 420, 5 Am. St. Rep. 387; State Bank v. New Orleans Nav. Co., 3 La. An. 
 294; Schindel v. Suman, 13 Md. 310; Morton v. Sweetser, 12 Allen, 134; 
 Gerrish v. Pratt, 6 Minn. 53; Bell v. Hoagland, 15 Mo. 360; Mosby v. Wall, 
 23 Miss. 81, 55 Am. Dec. 71; Brackett v. Hoitt, 20 N. H. 257; Carmony 
 V. Hoober, 5 Pa. St. 305; Wethered v. Mays, 4 Tex. 387; Webb v. Buckelew, 
 82 N. Y. 555; Agnew v. McElroy, 10 Smedes & M. (Miss.) 555, 48 Am. Dec. 
 772; Lorillard v. Clyde, 122 N. Y. 41, 19 Am. St. Rep. 470; Armstrong v. 
 Manatee Co. (Pla.), 37 So. 938; Bitzer v. O'Bryan, 107 Ky. 590, 54 S. W. 
 951; Carrigan v. Railway Co., 86 Minn. 407, 90 N. W. 97G; Hoover v. King, 
 43 Or. 281, 72 Pac. 880, 99 Am. St. Rep. 754; Taylor v. Neys, 11 S. D. 605, 
 79 N. W. 998; Wallace v. Goodlett, 104 Tenn. 670, 58 S. W. 343; Shaw v. 
 Broadbent, 129 N. Y. 114, 29 N. B. 238; Turk v. Shein (W. Va.), 47 S. E. 
 253. Pishbeck v. Mielenz, 119 Wis. 27, 96 N. W. 426. 
 
 20 Hughes V. United States, 4 Wall. 232; Lore v. Truman, 10 Ohio St. 45; 
 Birch V. Funk, 2 Met. (Ky.) 544; Agnew v. McBlroy, 18 Miss. 552, 48 Am. 
 Dec. 772; Brackett v. Hoitt, 20 N. H. 257; Van Vleet v. Olin, 1 Nev. 495; 
 Wilbur V. Gilmore, 21 Pick. 250; Keene v. Clarke, 5 Rob. (N. Y.) 38; 
 Rogers v. Higgins, 57 111. 244; Hill v. Bryant, 61 Ark. 203, 32 S. W. 506; 
 Rodgers v. Levy, 36 Neb. 601, 54 N. W. 1080. 
 
 aiSmalley v. Edey, 19 111. 207; Kendal v. Talbot, 1 A. K. Marsh. (Ky.) 
 321; Atkins v. Anderson, 63 Iowa, 739; Philpott v. Brown, 16 Neb. 387; 
 Taylor v. Matteson, 86 Wis. 113. 
 
 22McCall V. Jones, 72 Ala. 368; Hughes v. United States, 4 Wall. 237; 
 Miller v. Manice, 6 Hill, 114; Hill v. Huckabee, 70 Ala. 183; St. Homes V. 
 Levee Steam Cotton Press Co., 127 U. S. 614. 
 
§ 596 DOCUMENTARY EVIDENCE. 755 
 
 grant him relief; second, where he has misconceived his action; 
 third, where he has not brought the proper parties before the court ; 
 fourth, where the decision was on demurrer, and the complaint in 
 the second suit sets forth the cause of action in proper form; fifth, 
 where the first suit was prematurely brought; sixth, where the mat- 
 ter in the first suit was ruled out as inadmissible under the plead- 
 ings. "==» 
 
 § 596 (613). Effect of nonsuit or discontinuance or appeal. — 
 A judgment of nonsuit or discontinuance is not such a judgment on 
 the merits as to constitute a bar. In speaking of such a judgment, 
 the supreme court of the United States used this language: "As 
 nothing positive can be implied from the plaintiff's error as to the 
 subject matter of his suit, he may reassert it by the same remedy in 
 another suit, if it be appropriate to his cause of action, or by any 
 other which is so, if the first was not. ' ' ^* But the judgment of 
 nonsuit may invalve a decision on the merits, and constitute a bar. 
 It was so held, where the decision settled the question of the valid- 
 ity of the note in suit ; '^^ and where there is a judgment of dismissal 
 tased on cm agreement of the parties, in the absence of any thing in 
 the agreement or judgment to the contrary, such judgment will con- 
 stitute a bar."* The same is true of judgments on confession." It 
 
 23 Preem. Judg. (4th Ed.) § 263; Taylor v. Matteson, 86 Wis. 113; De Graaf 
 V. WyckofE, 118 N. T. 1, where matter pleaded as defense was ruled out and 
 hence not adjudicated; Pruitt v. Muldick, 39 Or. 353, 65 Pac. 20. 
 
 24 Homer v. Brown, 16 How. 354, 365; Manhattan Ins. Co. v. Broughton, 
 109 U. S. 121; Louisville, N. A. & C. Ry. Co. v. Wylle, 1 Ind. App. 136; 
 Taylor v. Barron, 30 N. H. 78, 64 Am. Dec. 281; Dunham v. Carson, 37 S. 
 C. 269; Lord v. Chadhourne, 42 Me. 429, 66 Am. Dec. 290; Smith v. Floyd 
 Co., 85 Ga. 420, 11 S. E. 850; Holland v. Hatch, 15 Ohio St. 464; Loeb v. 
 Willis, 100 N. Y. 231; Hayes v. Collins, 114 Mass. 54; Bridge v. Sumner, 1 
 Pick. 371; Bishop v. McGillis, 82 Wis. 120, 51 N. W. 1075; People v. Vilas, 
 36 N. Y. 459, 93 Am. Dec. 520; Bauden v. Roliff, 1 Mart. N. S. (La.) 165, 14 
 Am. Dec. 181; Holmes v. Chicago & A. Ry. Co., 94 111. 439; Mills v. Pelli- 
 grew, 45 Kan. 573; Gates v. McLean, 70 Cal. 42; Gardner v. Railway Co., 
 150 U. S. 349; Hallum v. Dickinson, 47 Ark. 120, 14 S. W. 477; Spring 
 Valley Coal Co. v. Patting, 210 111. 342, 71 N. E. 371; Johnson v. New 
 Orleans, 50 La. An. 920, 24 So. 635; Guthiel v. Gilmer, 27 Utah, 496, 76 Pac. 
 628; Union Bank v. Nelson, 32 Wash. 208, 73 Pac. 372; Gates v. Parmly, 93 
 Wis. 294, 66 N. W. 253. See note, 96 Am. Dec. 778. 
 
 26 Brett V. Marston, 45 Me. 401. See Ordway v. Railway Co., 69 N. H. 
 429, 45 Atl. 243; Cartin v. Railway Co., 43 S. C. 221, 20 S. B. 979, 49 Am. 
 St. Rep. 829, hut see p. 831 for note criticising the case. 
 
 28 Van Valkenburgh v. Milwaukee, 43 Wis. 574; Merrltt v. Campbell, 47 
 Cal. 642; Bank of Commonwealth y. Hopkins, 2 Dana (Ky.) 395; Jarboe v. 
 
756 THE LAW OF EVIDENCE. § 596 
 
 has been held in some states that' a dismissal which, is not expressly 
 made ' ' without prejudice " is a bar to a subsequent action.^' In like 
 manner a demurrer on the merits to the entire cause of action stated 
 constitutes a bar.^° "But it is equally well settled that, if the plain- 
 tiif fails on demurrer in his first action from the omission of an es- 
 sential allegation in his declaration which is fully supplied in the 
 second suit, the judgment in the first suit is no bar to the second, 
 although the respective actions were instituted to enforce the same 
 right, for the reason that the merits of the cause, as disclosed in the 
 second declaration, were not heard and decided in the first &&■ 
 tion." '" Other illustrations are given in the notes in which a dis- 
 missal not on the merits is no bar.^^ Where a l)iil in chancery is dis- 
 
 Smith, 10 B. Mon. (Ky.) 257, 52 Am. Dec. 541;' Phillpotts v. Blasdel, 10 
 Nev. 19; Hoover v. MitclieU, 25 Gratt. (Va.) 387; United States v. Parker, 
 120 U. S. 89; Grossman v. Davis, 79 Cal. 603, 21 Pac. 963; Ford v. Roberts, 
 14 Colo. 291, 23 Pac. 322. 
 
 27Neusbaum v. Keim, 24 N. T. 325; North v. Mudge, 13 Iowa, 496, 81 
 Am. Dec. 441; Fletcher v. Holmes, 25 Ind. 458; Dunn v. Pipes, 20 La. An. 
 276; Burgess v. Siligman, 107 U. S. 20; Weaver v. Adams, 132 Pa. St 392, 19 
 Atl. 271. 
 
 28 Bradley v. Bradley, 160 Mass. 257; Stults v. Forst, 135 Ind. 297. 
 
 29 Gould V. Evansville & C. Ry. Co., 91 U. S. 534; Bissell v. Spring Valley, 
 124 U. S. 225; St. Johnsbury Ry. Co. v. Hunt, 59 Vt. 294; Bouchaud v. Dias, 
 3 Den. 238; Gray v. Gray, 34 Ga. 499; Nickless v. Pearson, 126 Ind. 477, 
 26 N. E. 478; Perkins v. Moore, 16 Ala. 17; City Bank v. Walden, 1 La. 
 An. 46; Parker v. Spencer, 61 Tex. 155; Wilson v. Ray, 24 Ind. 156; Van- 
 landigham v. Ryan, 17 111. 25; Felt v. Turnure, 48 Iowa, 397; Terry v. Ham- 
 monds, 47 Cal. 32; Connecticut Ins. Co. v. Smith, 117 Mo. 261, 22 S. W. 
 623, 38 Am. St. Rep. 656; Ellis v. Northern Pac. Ry. Co., 80 Wis. 459, 50 N. 
 W. 397, 27 Am. St. Rep. 44; Stein v. McGrath, 128 Ala. 175, 30 So. 792; 
 Brennan v. Berlin Iron Bridge Co., 71 Conn. 479, 42 Atl. 625; Gregory v. 
 Woodworth, 107 la. 151, 77 N. W. 837; Hyatt v. Challiss, 59 Kan. 422, 53 
 Pac. 467; Willoughby v. Stevens, 132 N. C. 254, 43 S. B. 636; Kleinschmidt 
 V. Binzel, 14 Mont. 31, 35 Pac. 460, 43 Am. St. Rep. 604. 
 
 30 Gould V. Evansville & C. Ry. Co., 91 U. S. 534; Wiggins Ferry Co. v. 
 Ohio & M. Ry. Co., 142 U. S. 396; Gilman v. Rives, 10 Peters, 298; Aurora 
 V. West, 7 Wall. 90; Doctor v. Furch, 76 Wis. 153, 44 N. W. 648; Com. v. 
 Goddard, 13 Mass. 456; Chapin v. Curtis, 23 Conn. 388; Gallup v. Lichter, 4 
 Colo. App. 496, 35 Pac. 985; Foster v. Com., 8 Watts & S. (Pa.) 77; Griffin 
 V. Seymour, 15 Iowa, 30, 83 Am. Dec. 396; Crumpton v. State, 43 Ala. 31; 
 Harding v. State, 22 Ark. 210; Campbell v. Hunt, 104 Ind. 210; Thomas v. 
 Bland,. 91 Ky. 1, 14 S. W. 955; North Muskegon v. Clark, 62 Fed. 694. 
 
 31 This is true where an action is dismissed on the ground of a defective 
 preliminary affidavit or notice, Stockwell v. Byrne, 22 Ind. 6; -Rose v. Haw- 
 ley, 141 N. Y. 366; or defective pleading, Jackson v. Finlay (Tex. Civ. App.), 
 40 S. W. 427; or informal tond, Morton v. Sweetser, 12 Allen, 134; or tor 
 failure to make a demand, Crosby v. Baker, 6 Allen, 295; or to prosecute 
 
§ 596 DOCUMENTARY EVIDENCE. 757 
 
 missed and the decree is in absolute terms, it is presumed to be upon 
 the merits. ^^ But if it is evidently on teelmical grounds, like defect 
 of pleadings, or vrant of jurisdiction, or want of an adequate remedy 
 at law, the former decree is not conclusive. Of course, this is clearly 
 so when the decree is in terms ' ' without prejudice. " '^ It is an open 
 question, whether a mere appeal from a judgment prevents its use 
 as evidence to establish the defence res judicata. In some of the 
 states it is held that an appeal destroys the effect of the judgment 
 for this purpose,'* while the contrary view is maintained by equally 
 high authority.'" 
 
 the action, Worst v. Sgitcorlch (Tex. Civ. App.), 46 S. "W. 72; or want of 
 jurisdiction, Estill v. Taul, 2 Yerg. (Tenn.) 466, 24 Am. Dec. 498; Weyand 
 V. Atchinson, T. & S. P. Ry. Co., 75 Iowa, 573, 9 Am. St. Rep. 505; Geiser 
 Mfg. Co. V. Berry, 12 Okl. 183, 70 Pac. 202; Weighley v. Coffman, 144 Pa. 
 St. 919, 22 Atl. 919, 27 Am. St. Rep. 667; Town of Jericho v. Town of 
 Maderhill, 67 Vt. 85, 30 Atl. 690; or because the debt was not due, Estill 
 V. Taul, 2 Yerg. (Tenn.) 466, 24 Am. Dec. 498; or if for other reasons the 
 action is prematurely brought, New England Bank v. Lewis, 8 Pick. 113; 
 "Wood V. Faut, 55 Mich. 185, 20 N. W. 897; Rose v. Hawley, 141 N. Y. 366; 
 Chicago & A. E. I. R. Co. v. State, 159 Ind. 438, 51 N. W. 924; Slocum v. 
 Wilbur, 33 R. I. 97, 49 Atl. 489; Waterhouse v. Levine, 182 Mass. 407, 65 
 N. E. 822; Ryan v. Spieth, 18 Mont. 35, 44 Pac. 401; or where it fails on 
 account of mistake of name, Wixon v. Stephens, 17 Mich. 518, 97 Am. Dec. 
 205; or default. Gray v. Dougherty, 25 Cal. 266; Agnew v. McElroy, 18 Miss. 
 552, 48 Am. Dec. 772; Perry v. Lewis, 49 Miss. 443 (but see. Last Chance 
 Min. Co. V. Tyler Min. Co., 157 U. S. 683) ; or incapacity of plaintiff, Rogers 
 V. Levy, 36 Neb. 601. 
 
 32 Durant v. Essex Co., 7 Wall. 107; Foote v. Gibbs, 1 Gray, 412; Perine 
 V. Dunn, 4 Johns. Ch. (N. Y.) 142; Neafie v. Neafie, 7 Johns. Ch. (N. Y.) 1, 
 11 Am. Dec. 380; Bigelow v. Winsor, 1 Gray, 301. See, Royster v. Horner, 
 75 Md. 557, 24 Atl. 25. 
 
 S3 Taylor v. Barron, 30 N. H. 78, 64 Am. Dec. 281; Kendal v. Talbot, 1 
 A. K. Marsh. (Ky.) 321; Perry v. Lewis, 49 Miss. 443; Mobile v. Kimball, 
 102 U. S. 691; Shepherd v. Pepper, 133 TJ. S. 626; Foote v. Gibbs, 1 Gray, 
 412; House v. Mullen, 22 Wall. 42; Thurston v. Thurston, 99 Mass. 39; 
 Mey V. Gulliman, 105 111. 272; Lore v. Truman, 10 Ohio St. 45; Walden v. 
 Bodley, 14 Peters, 156; Strang v. Moog, 72 Ala. 460; Hughes v. United 
 States, 4 Wall. 232; Durant v. Essex Co., 7 Wall. 107; Ballentine v. Bal- 
 lentine (Pa.), 15 Atl. 859; Gunn v. Peakes, 36 Minn. 177. See also, 
 Maxwell v. Clarke, 139 Mass. 112;, Hazen v. Lyndonville Nat. Bank, 70 
 Vt. 543, 41 Atl. 1046, 67 Am. St. Rep. 680; Mitchell v. Adams (Tenn. Ch. 
 App.), 52 S. W. 316. See note, 96 Am. Dec. 778. 
 
 3* Texas Ry. Co. v. Jackson, 85 Tex. 605; Murray v. Green, 64 Cal. 363; 
 Neftzger v. Gregg, 99 Cal. 83, 37 Am. St. Rep. 23 and valuable note; 
 Southern Ry. Co. v. Brigman, 95 Tenn. 624, 32 S. W. 762. See, Tampa 
 Waterworks Co. v. City of Tampa, 124 Fed. 932. 
 
 85 Smith V. Schreiner, 86 Wis. 19; Parkhurst v. Burdell, 110 N. Y. 386; 
 
758 THE LAW OF EVIDENCE. § 597 
 
 § 597 (614). Conclusive only as to matters in issue. — ^It is an- 
 other limitation upon the general doctrine that judgments are con- 
 clusive in subsequent actions between the same parties, that the issue 
 in the second action must have been a material and necessary issue in 
 the first action, arid determined therein,'" this limitation rests upon 
 the obvious ground that there should be no estoppel, unless the party 
 has had his day in court as to the question in controversy. The real 
 difficulty has arisen in determining what is the "matter in issue," 
 within the meaning of the rule. Some of the decisions have pro- 
 ceeded on the theory that no matters are to be deemed in issue, ex- 
 cept those on which the action proceeds, and which are controverted 
 by the defendant's pleadings. In other words, they hold somewhat 
 strictly to the rule that the issuable, am,d not the evidential facts, are 
 those referred to in the rule. Thus, in the leading case in New Hamp- 
 shire sustaining this view, it was held that the validity of a mortgage 
 offered as evidence of the plaintiff's title in trover was not in issue, 
 although it was shown by parol that it was the only question sab- 
 mitted to the jury, and that they found the mortgage fraudulent. '' 
 Although there is agreement in the view that mere collateral facts, 
 although controverted and used in evidence, are not included within 
 the rule,'' yet the weight of authority is to the effect that "every 
 
 Burton v. Burton, 28 Ind. 342; Faber v. Hovey, 117 Mass. 107; Willard 
 V. Ostrander, 51 Kan. 481; Reese v. Dajnato, 44 Fla. 692, 33 So. 462; 
 Freem. Judg. (4tli Ed.) § 328. See note, 37 Am. St. Rep. 29. 
 
 36 Williams v. Williams, 63 Wis. 71, 53 Am. Rep. 253; Dickinson v. 
 Hayes, 31 Conn. 417; Cliuroli v. Chapin, 35 Vt. 223; Crofton v. Board of 
 Education, 26 Ohio St. 571; Woodgate v. Fleet, 44 N. T. 1; Gray v. 
 Dougherty, 25 Cal. 266; Boutin v. Lindsley, 84 Wis. 644; Watts v. Rice, 
 75 Ala. 289; Bennett v. Holmes, 1 Dev. & B. (N. C.) 486; Des Moines 
 Bank v. Harding, 86 Iowa, 153; Agnew v. McElroy, 18 Miss. 552, 48 Am. 
 Dec. 772; Lentz v. Wallace, 17 Pa. St. 412, 55 Am. Dec. 569; Henry v. 
 Davis, 13 W. Va. 230; Standish v. Parker, 2 Pick. 20, 13 Am. Dec. 393; 
 Widow de St. Romes v. Carondalet Co., 24 La. An. 331; Gilbert v. Thomp- 
 son, 9 Cush. 348; King v. Chase, 15 N. H. 9, 41 Am. Dec. 675; Forcey's 
 Appeal, 106 Pa. St. 508; Brady v. Pryor, 6 Ga. 691; Land v. Keirn, 52 
 Miss. 341; Shall v. Briscoe, 18 Ark. 142; McCombs v. Wall, 66 Ark. 336, 
 50 S. W. 876; Wahle v. Wahle, 71 111. 510; Fish v. Leightner, 44 Mo. 268; 
 Morrison v. Clark, 89 Me. 103, 35 Atl. 1034, 56 Am. St. Rep. 395; King 
 V. Townshend, 141 N. Y. 358. See note, 96 Am. Dec. 779. 
 
 87 King V. Chase, 15 N. H. 9, 41 Am. Dec. 675, which has been criticised 
 in Big. Estop. 90, who cites. Wood v. Jackson, 8 Wend. 9, 22 Am. Dec. 
 603. See also. Smith v. McCool, 16 Wall. 560; Jackson v. Lodge, 36 Cal. 37. 
 
 88 Manny v. Harris, 2 Johns. (N. Y.) 24, 3 Am. Dec. 386; Coit v. Tracy, 
 8 Conn. 268, 20 Am. Dec. 110; Wood v. Jackson, 8 Wend. 9, 22 Am. Dec. 
 
§ 598 DOCUMENTARY EVIDENCE. 759 
 
 point which has been either expressly or by necessary implication 
 in issue, which must necessarily have been decided in order to sup- 
 port the judgment or decree is concluded." °° "A judgment is con- 
 clusive upon every matter actually and necessarily decided in the 
 former suit, though not then directly the point in issue. If the facts 
 involved in the second suit are so cardinal that without them the 
 former decision cannot stand, they must now be taken as conclu- 
 sively settled. " *" It foUows logically that the facts found in a ver- 
 dict or judgment must he facts material to the issue.*'^ This re- 
 mains true, even though the judgment in express terms finds a fact 
 immaterial to the issue ; *" and the same is true as to the special find- 
 ings of a jury on the trials of issues, when such findings are upon 
 facts not essential to their verdict.^^ But an issue that has once 
 been properly determined cannot be retried in a collateral action 
 between the same parties, even though the evidence upon whieli the 
 case was decided was sent up with the record.** 
 
 § 598 (615). As affected by form of action. — Although it must 
 appear that the issue is the same, before a judgment in one suit can 
 operate as a bar in the second action, it is equally well settled that 
 
 603; Beebe v. Bull, 12! Wend. 504, 2Y Am. Dec. 150; Garrott t. Johnson, 
 11 Gill. & J. (Md.) 173, 35 Am. Dec. 272; Blackmore v. Gregg, 10 Watts 
 (Pa.) 222, 36 Am. Dec. 171; Naison v. Blaisdell, 12 Vt. 165, 36 Am. Dec. 
 331; Garwood v. Garwood, 29 Cal. 521; King v. Chase, 15 N. H. 9, 41 
 Am. Dec. 675 and note; Lea v. Lea, 99 Mass. 493, 96 Am. Dec. 772 and 
 note. See § 604 infra. 
 
 38 Supervisors v. Mineral Point Ry. Co., 24 Wis. 124; Wood v. Jackson, 
 8 Wend. 9, 22 Am. Dec. 603; Burlen v. Shannon, 99 Mass. 200, 96 Am. 
 Dec. 733; Hunter v. Davis, 19 Ga. 413; Huntley v. Holt, 59 Conn. 102, 
 22 Atl. 34, 21 Am. St. Rep. 71; White v. Sherman, 168 111. 589, 48 N. E. 
 128, 61 Am. St. Rep. 32; Agnew v. Montgomery, 72 Net. 9, 99 N. W. 820; 
 Widow de St. Romes v. Carondalet C. & N. Co., 24 La. An. 331; Nesbit 
 V. Riverside District, 144 U. S. 610; Henry v. Davis, 13 W. Va. 230. See 
 note, 96 Am. Dec. 777. 
 
 *oFreem. Judg. (4th Ed.) § 256; Reg. v. Hartington, 4 El. & B. 780; 
 Cabat V. Washington, 41 Vt. 168; Gardner v. Buckbee, 3 Cow. 120, 15 Am. 
 Dec. 256; Freeman v. Bass, 34 Ga. 355, 89 Am. Dec. 255; Bouchaud v. 
 Dias, 3 Den. 243; Gates v. Preston, 41 N. Y. 113. 
 
 "Tarns V. Lewis, 42 Pa. St. 403; Hibshman v. Dulleban, 4 Watts (Pa.) 
 183. 
 
 42 Hardy v. Mills, 35 Wis. 141; People v. Johnson, 38 N. T. 63, 97 Am. 
 Dec. 770; Woodgate v. Fleet, 44 N. Y. 13; Stokes v. Stokes, 172 N. T. 
 327, 65 N. E. 176. See note, 96 Am. Dec. 780. 
 
 « Burlen v. Shannon, 99 Mass. 200, 96 Am. Dec. 733 and note; Gilbert 
 v. Thompson, 9 Cush. 348; Hawks v. Truesdale, 99 Mass. 557. 
 
 "Franklin County y. German Savings Bank, 142 U. S. 93. 
 
760 THE LAW OF EVIDENCE. § 598 
 
 the form and object of the two actions need not he the same.*" It is 
 siifficient, if the grievance complained of is the same.*" Thus, when 
 there is a right to one action in tort or on contract, the judgment 
 in one will constitute a bar to the other proceeding.*'' So if the 
 claim of the plaintiff has been litigated in a former action, as a de- 
 fense between the same parties, the former judgment is conclusive. 
 Thus, where want of consideration was proved as a defense to a 
 promissory note given for goods sold, the defendant was thereby 
 held precluded from proving false representations in a subsequent 
 action brought by him ** and where one, as defendant, attempts to 
 prove that work sued for is of no value, he cannot, as plaintiff, prove 
 damages for unskillful performance of the work.*' If a plaintiff 
 fails to show all the damages that he has suffered, he cannot recover 
 for those omitted in a second suit.'*" As respects the rule under 
 consideration, the courts of law and chancery stand on the same 
 footing; and where the same issues have been litigated between the 
 same parties or their privies in the one court, they cannot be liti- 
 gated in the other,"^ Thus, where a surety makes his defence at 
 law, which proves insufficient, he cannot on the same state of facts 
 defend in equity ; °^ and where a mortgage is held void in a suit to 
 
 « Moore V. Williams, 132 111. 589; Marsh v. Pier, 4 Rawle (Pa.) 273, 
 26 Am. Dec. 131; White v. Martin, 1 Port. (Ala.) 215, 26 Am. Dec. 365; 
 Owens V. Raleigh, 6 Bush. (Ky.) 656; Bell v. McColloch, 31 Ohio St. 397; 
 Sewell V. Scott, 35 La. An. 553; Leib v. Lichtenstein, 121 Ind. 483; Harry- 
 man V. Roberts, 52 Md. 64; Hatch v. Coddington, 32 Minn. 92; Edwards 
 V. Baker, 99 N. C. 258; Schrorers v. Fish, 10 Colo. 599; Sanderson v. 
 Peabody, 58 N. H. 116; Murphy v. DeFrance, 101 Mo. 151; Pratt v. Ratliff, 
 10 Okl. 168, 61 Pac. 523; Eastman v. Cooper, 15 Pick. 285, 26 Am. Dec. 
 600; Lawrence v. Vernon, 3 Sum. (U. S.) 20; Hitchln v. Campbell, 2 W. 
 Black. 778, 827; Ferrer's Case, 6 Coke, 7; Mitchel v. Chisholm, 57 Minn. 
 148. 
 
 *« Perry v. Lewis, 49 Miss. 443; Agnew v. JtcElroy, 18 Miss. 552, 48 
 Am. Dec. 772; Goodenow v. Litchfield, 59 Iowa, 226; Day v. Valletta, -25 
 Ind. 42, 87 Am. Dec. 353; McNeely v. Hyde, 46 La. An. 1083; Doty v. 
 Brown, 4 N. Y. 71, 53 Am. Dec. 350; Ahl v. Goodhart, 161 Pa. St. 455; 
 Spear v. Tidball, 40 Neb. 107; Attorney General v. Chicago Ry. Co., 112 
 111. 520. See note, 96 Am. Dec. 787. 
 
 « Smith V. Way, 9 Allen, 472. 
 
 18 Burnett v. Smith, 4 Gray, 50. 
 
 *oMerriam v. Woodcock, 104 Mass. 326. 
 
 60 Stevens v. Pierce, 151 Mass. 207. 
 
 oiStickney v. Goudy, 132 111. 213; Miles v. Caldwell, 2 Wall. 39; Alley 
 V. Chase, 83 Me. 537; Hopkins v. Lee, 6 Wheat. 109; Wolverton v. Baker, 
 86 Cal. 591; Fate v. Hunter, 3 Strob. Bq. (S. C.) 136. 
 
 02 Dunham v. Donner, 31 Vt. 249. 
 
§ 599 DOCUMENTABT EVIDENCE. 761 
 
 foreclose, the judgment is a bar in an action of ejectment fotmded 
 on the same mortgage.^' But if a party has rights which are not 
 cognizable in the one court, but which may be heard in the other, 
 the failure in one forum does not constitute a bar in the other."* If, 
 however, the same question may be properly tried in a state or a 
 federal court, the determination in one is binding in the other.'"' 
 Owing to the peculiar respect which the early English law paid to 
 the tenure by which real estate was held, the same conclusive effect 
 was not given to judgments in actions for ejectment as in other 
 eases."" But now in some of the states, there are statutes having 
 special regulations as to the granting of new trials in such actions, 
 and, except in this respect, they are governed by the same rules as 
 to the binding effect of judgments as other actions."^ 
 
 § 599 (616). Extrinsic evidence to identify the issue. — ^It fre- 
 quently happens that it cannot be determined from the records alone 
 whether the issues in the two actions are the same. It would be re- 
 pugnant to a familiar rule of evidence to receive parol proof to con- 
 tradict the record, by allowing evidence that a claim was or was not 
 determined in the former suit, if the record shows the contrary."* 
 Thus, if the complaint in the prior action declares upon special facts 
 as a cause of action, parol proof is inadmissible to show that the sub- 
 ject determined was a different one."" But if there is any uncer 
 tadnty in the record as to whether the precise question was raised 
 and determined in the former controversy, ' ' as for example, if it ap- 
 pear that several distinct matters may have been litigated, upon one 
 or more of which judgment may have been passed, without indicat- 
 
 «s Smith V. Kernochen, 7 How 198; Adams v. Barnes, 17 Mass. 365; 
 Betts V. Starr, 5 Conn. 550. 
 
 0* Dunham v. Donner, 31 Vt. 249; Gray v. Tyler, 40 Wis. 579. 
 
 66 Russell V. Lamb, 49 Fed. 770; Simmons v. Sau, 138 U. S. 439; State v. 
 Trammel, 106 Mo. 510; Colt v. Colt, 48 Fed. 385. 
 
 66 Miles V. Caldwell, 2 Wall. 35. 
 
 67 Miles V. Caldwell, 2 Wall. 35; Dawley v. Brown, 79 N. Y. 390; 
 Amestre v. Castro, 49 Cal. 326; Hodges v. Eddy, 53 Vt. 434; Cadwallader 
 V. Harris, 76 111. 370; Kinter v. Jinks, 43 Pa. St. 445. See note, 85 Am. 
 Dec. 208. 
 
 68 Armstrong v. St. Louis, 69 Mo. 309; Gray v. Dougherty, 25 Cal. 266; 
 Trimmer v. Thompson, 19 S. C. 247; Fromlet v. Poor, 3 Ind. App. 425; 
 Rubel V. Title G. & T. Co., 199 111. 110, 64 N. B. 1033; Guttermann v. 
 Schroeder, 40 Kan. 507, 20 Pac. 230. See note, 96 Am. Dec. 785; also 
 valuable note, 44 Am. St. Rep. 562. So it the names of the parties are 
 the same, this is prima facie evidence of identity of parties, Ritchie v. 
 Carpenter, 2 Wash. St. 512, 28 Pac. 380, 26 Am. St. Rep. 877. 
 
 68 Campbell v. Butts, 3 N. Y. 173. 
 
762 . THE LAW OF EVIDBNCE. § 600 
 
 ing which of them was thus litigated and upon which the judgment 
 was rendered, the whole subject matter of the action will be at large, 
 and open to a new contention, unless this uncertainty be removed by 
 extrinsic evidence showing the precise point involved and deter- 
 mined. To apply the judgment and give effect to the adjudication 
 actually made, when the record leaves the matter in doubt, such 
 evidence is admissible. ' ' '" 
 
 § 600 (617). Same, continued.— Mr. Justice Miller has thus 
 stated the prevailing doctrine: "Whenever the form of the issue in 
 the trial relied on as an estoppel is so vague that it does not deter- 
 mine what questions of fact were submitted to the jury under it, it 
 is competent to prove by parol testimony what question or questions 
 of fact were before the jury and were necessarily passed on by 
 them. " °^ The opinion of the court rendering the former judgment 
 printed in the authorized reports of decisions of the state, as well 
 as the statement of the case, may be received in evidence to show 
 the issue determined.'" But in no case can proof he admitted to 
 show what was determined, unless the fact is such as might have 
 been given in evidence under the pleadings.*' "When extrinsic evi- 
 dence is proper to ascertain the issue tried and determined in the 
 
 eo Russell v. Place, 94 U. S. 608; Storrs v. Robinson, 74 Conn. 566, 51 
 Atl. 516; Draper v. Medlock (Ga.), 50 S. B. 113; Herscliback v. Cohen, 
 207 111. 517, 69 N. E. 932, 99 Am. St. Rep. 233; Board v. Mackstrum, 102 
 Mich. 11, 60 N. "W. 282; State v. Meek, 112 la. 338, 84 N. W. 3, 51 L. R. A. 
 414, 84 Am. St. Rep. 342; Waterhouse v. Levine, 182 Mass. 407, 65 N. B. 
 822; Borches v. Asheckle (Tenn.), 78 S. W. 266; Fahey v. Esterly Mach. 
 Co., 3 N. D. 220, 55 N. W. 580, 44 Am. St. Rep. 554. So where the record 
 does not disclose identity of parties, that may be shown by parol evi- 
 dence, Tarleton v. Johnson, 25 Ala. 300, 60 Am. Dec. 515; Gray v. Gillian, 
 15 111. 453, 60 Am. Dec. 761. Note, 44 Am. St. Rep. 562-572. 
 
 «i Miles v. Caldwell, 2 Wall. 43; Davis v. Brown, 94 U. S. 423; Jepson 
 V. International Alliance, 17 R. I. 471; Cook v. Burnley, 45 Tex. 97; Gray 
 V. Dougherty, 25 Cal. 266; Leopold v. City of Chicago, 150 111. 568; 
 Humpfner v. Osborne Co., 2 S. D. 310; Post v. Smilie, 48 Vt. 185; Doty 
 V. Brown, 4 N. Y. 71, 53 Am. Dec. 350; "Wright v. Salisbury, 46 Mo. 26; 
 Long V. Baugas, 2 Ired. (N. C.) 290, 38 Am. Dec. 694; McFlghe v. Mc- 
 Sane, 93 Ala. 626; Emery v. Fowler, 39 Me. 326; Munro v. Meeoh, 94 
 Mich. 596, 63 Am. Dec. 627; White v. Chase, 128 Mass. 158; Appeal of 
 Buckingham, 60 Conn. 143; Indianapolis Ry. Co. v. Clark, 21 Ind. 150; 
 Reast V. Donald, 84 Tex. 648; Warwick v. Underwood, 3 Head (Tenn.) 
 238, 75 Am. Dec. 767; Crum v. Boss, 48 Iowa, 433; King v. Chase, 15 N. 
 H. 9; Supples v. Cannon, 44 Conn. 424. See note, 96 Am. Dec. 786. 
 
 »2Hood V. Hood, 110 Mass. 463. Contra, Appeal of Buckingham, 60 
 Conn. 143; Robinson v. New York Ry. Co., 18 N. Y. S. 728; Town of 
 Fulton V. Pomeroy, 111 Wis. 6G3, 87 N. W. 831; Gentry v. Paciflc Live 
 Stock Co., 45 Ore. 233, 77 Pac. 115. 
 
 M Briggs v. Wells, 12 Barb. (N. Y.) 567; Gay v. Wells, 7 Pick. 219. 
 
§ 601 DOCUMENTARY EVIDENCE. 763 
 
 former suit, such evidence must be submitted to the jury with proper 
 instructions. And only such issues as have been actually tried and 
 determined, and on which the judgment was rendered, or such issues 
 as by reasoning are essential to and necessarily involved in the for- 
 mer verdict and judgment are to be considered as conclusively de- 
 termined between the parties."* The testimony of jurors on the 
 former trial is admissible, where extrinsic evidence of the identity 
 of the cause of action is proper ; but their testimony should be con- 
 fined to the points in controversy on the former trial, the testimony 
 given by the parties amd the questions submitted to the jury ; and 
 should not be received as to the nature of their secret deliberations ;°° 
 nor to contradict the record ;"" nor to show what matters were con- 
 sidered by them."^ 
 
 4 601 (618). Proof that issues are the same — Burden. — ^When 
 it appears that there were several issues in the former action, it 
 should be shovrai by extrinsic evidence that the point claimed to have 
 been adjudicated was in fact determined, unless this appears from 
 the record. In such cases a particular ground of adjudication can- 
 not ie inferred.^^ Thus, where, in an action for divorce for cruelty, 
 there was a denial of the charge, as well as a plea of former judg- 
 ment of divorce, and the action was dismissed by the court, it was 
 held in a subsequent action that the court could not, without proof, 
 infer on what ground the judgment had proceMed."' The same 
 principle was applied by the supreme court of the United States 
 in a patent case where the patent alleged to be infringed contained 
 two distinct claims ; it was held that a patent might be valid as to 
 one claim, and invalid as to the other ; and the former judgment was 
 held to be no bar as it had not appeared on which claim the recov- 
 ery was had.'" So, where various matters of defense are set up in 
 
 B« Cromwell v. County of Sac, 94 U. S. 351; Foye v. Patch, 132 Mass. 
 110. It should appear that the facts alleged to have been determined 
 were necessary to the Issue, Irish American Bank v. Ludlum, 56 Minn. 
 317. See note, 44 Am. St. Rep. 562] • 
 
 8B Packet Co. v. Sickles, 5 Wall. 580. The testimony of an attorney has 
 also been received as to such facts, Susquehanna Ins. Co. v. Mardorf, 152 
 Pa. St. 22. See note, 44 Am. St. Rep. 562-572. 
 
 »8 Stapleton v. King, 40 Iowa, 278. 
 
 87 Crum V. Boss, 48 Iowa, 433. 
 
 68 Washington A. & G. Packet Co. v. Sickles, 24 How. 333, 5 Wall. 580; 
 Chase v. Walker, 26 Me. 555; Waterhouse v. Levihe, 182 Mass. 407, 65 
 N. B. 822; Slater v. Skirving, 51 Neb. 108, 70 N. W. 495, 66 Am. St Rep. 
 444. 
 
 «»Burlen v. Shannon, 99 Mass. 200, 96 Am. Dec. 733. 
 
 70 Russell V. Place, 94 U. S. 606. The same principle was applied la a 
 
764 THE LAW OF EVIDENCE. § 602 
 
 the answer, some in abatement, and others in bar, and there is a 
 general judgment of dismissal, the judgment will not be held a bar 
 to future proceedings, unless there is extrinsic evidence to show the 
 ground of the decision.'^ But if in such a ease there are special 
 findings in favor of the defendant on all the issues, such findings and 
 judgments are conclusive as to each question and on the meritsJ^ 
 In those cases where the record gives no intimation whether a par- 
 ticular matter has been determined or not, it is clearly incumbent 
 upon the party alleging that a question has been settled by a former 
 adjudication to support his allegation by evidence aliunde and by 
 a preponderance of the proof. ''^ In an action where the effect of a 
 decision upon demurrer was under consideration, it was held that, 
 ' ' where the parties and the cause of action are the same, the prima 
 facie presumption is that the qiiestions presented for decision were 
 the same, unless it appears that the merits of the controversy were 
 not involved in the issue. ' ' ''* But if there is any uncertainty in the 
 record, the whole subject is open to litigation, unless the uncertainty 
 is removed by extrinsic evidence showing the precise point involved 
 and determined.'^ 
 
 § 602 (619). Effect of judgment wrhere cause of action is dif- 
 ferent. — There is a material difference between the effect of a 
 judgment as an, estoppel against a prosecution of a second action 
 upon the same claim, and its effect as an estoppel in another action 
 between the same parties upon a different claim or cause of action. 
 In the former case, as we have already seen, a judgment on the mer- 
 its is an absolute bar concluding parties and privies, not only as to 
 
 case relating to municipal bonds, Nesbit v. Riverside District, 144 U. S. 
 610. 
 
 71 Foster v. Busteed, 100 Mass. 409. 
 
 72 The 420 Mining Co. v. Bullion Mining Co., 3 Sawy. (U. S.) 634; 
 Sbeldon v. Edwards, 35 N. Y. 286. See note, 44 Am. St. Rep. 562-572. 
 
 73 Cook V. Brunley, 45 Tex. 97: Agnew v. McEIroy, 18 Miss. 552, 48 
 Am. Dec. 772; King v. Townsbend, 14 N. Y. 358; Phillips v. Berlck, 16 
 Johns. 136; Russell v. Place, 94 U. S. 606; Dygert v. Dygert, 4 Ind. App. 
 276; Kleinschmidt v. Binzel, 14 Mont. 31, 35 Pac. 460; Freem. Judg. (4th 
 Ed.) § 276. See notes, 96 Am. Dec. 786; 44 Am. St. Rep. 564. 
 
 7* Gould V. Evansvllle & C. Ry. Co., 91 U. S. 533. For full discussion, 
 see note, 44 Am. St. Rep. 566. 
 
 76 Russell V. Place, 94 V. S. 606; De Sollar v. Hansome, 158 U. S. 216; 
 McCombs V. "Wah, 66 Ark. 336, 50 S. W. 876; Solly v. Clayton, 12 Colo, 30, 
 20 Pac. 351; Pulton v. Gesterdlng (Fla.), 36 So. 56; Draper v. Medlock 
 (Ga.), 50 S. E. 113; Sawyer v. Nelson, 160 111. 629, 43 N. E. 728; Lewis 
 V. Ocean & Nav. Pier Co., 125 N. Y. 341, 26 N. E. 301; Falsey v. Esterly 
 Mach. Co., 3 N. D. 220, 55 N. W. 580, 44 Am. St. Rep. 554. 
 
§ 602 DOCUMENTABT EVTOBNCB, 765 
 
 the material facts proven, but as to the material facts which might 
 have been proven. But where the second action is founded on a dif- 
 ferent claim, the judgment in the prior action operates as an estop- 
 pel only as to those matters in issue or points controverted, upon the 
 determination of which the finding or verdict was rendered. In 
 such cases, the inquiry must be as to the point or question actually 
 litigated in the original action, not what might have been litigated 
 and determined.'* In a case in the supreme court of the United 
 States in which this subject was fully discussed, the plaintiff had 
 been defeated in a former action on certain municipal bonds, in 
 which action it was determined that the bonds in question were void, 
 as against the county, in the hands of those who were not purchasers 
 before due for value. In a second action by the same plaintiff on 
 other bonds of the same series, it was held that the former judgment 
 did not preclude the plaintiff from proving that he was, as to the 
 bonds in suit, a bona fide holder."' The former judgment does not 
 constitute an estoppel as to matters occurring subsequent thereto 
 which give the plaintiff a new title or right of action.'* 
 
 # 
 
 76 Cromwell v. County of Sac, 94 U. S. 351; Davis v. Brown, 94 TJ. S. 
 423; McKlsslck v. McKlsslck, 6 Humph. (Tenn.) 75; Vaughn v. Morrison, 
 55 N. H. 580; Goodenow v. Litchfield, 59 Iowa, 226; Foye v. Patch, 132 
 Mass. 110; Nesbit v. Independent District of Riverside, 144 U. S. 610; 
 Bernard v. Hohoken, 27 N. J. L. 412; Burwell v. Canday, 3 Jones (N. C.) 
 165; Bridger v. Asheville Ry. Co., 27 S. C. 456, 3 S. E. 860, 13 Am. St. 
 Rep. 653; Kilander v. Hoover, 111 Ind. 10; Danziger v. Williams, 91 Pa. 
 St. 234; Furneaux v. First Nat. Bank, 39 Kan. 144; Lillis v. Emigrant 
 Ditch Co., 95 Cal. 553, 30 Pac. 1108; Last Chance Mining Co. v. Tyler Mia. 
 Co., 157 U. S. 684; Montpelier S. B. & T. Co. v. School District, 115 Wis. 
 622, 92 N. W. 439; Pitts v. Oliver, 13 S. D. 561, 83 N. W. 591, 79 Am. St. 
 Rep. 907. See note, 96 Am. Dec. 784 as to the subject of this section. 
 
 " Cromwell v. County of Sac, 94 U. S. 351. But where the actions are 
 upon different notes or causes of action, and the same points are in issue 
 and determined, the judgment in the former case is conclusive, Bouchand 
 V. Dias, 3 Den. 243; French v. Howard, 14 Ind. 455; Williamsburg Sav. 
 Bank v. Town of Solon, 136 N. Y. 465. The same rule applies in actions 
 of trespass, where the causes of action are different, but the questions 
 of title are the same, Shettlesworth v. Hughey, 9 Rich. L. (S. C.) 387. 
 Where in an action to recover possession of land, the plaintiff litigates 
 his claim for rents and profits, he is precluded from suing for rent, 
 Stewart v. Dent, 24 Mo. 111. A judgment in an action for an installment 
 of a salary after discharge, on the ground that the discharge was wrong- 
 ful, is res judicata on that point in an action for another installment, 
 Allen V. International Text Book Co., 201 Pa. 579, 51 Atl. 323. 
 
 78 Barrows v. Kindred, 4 Wall. 399; Hawley v. Simons, 102 111. 115; 
 People's Sav. Bank v. Hodgdon, 64 Cal. 95; McLane v. Bovee, 35 Wis. 
 
766 THE LAW OF EVIDENCE. § 603 
 
 § 603 (620). Effect of judgment— General issue.— There has 
 long been controversy as to the effect which should be given to a 
 former judgment, when it is offered in evidence under tJie general 
 issue, but is not pleaded as an estoppel. In England, although the 
 former judgment may be relevant and as such may be offered in evi- 
 dence between the same parties or their privies, it is not conclusive, 
 unless pleaded as an estoppel or unless the party giving it in evi- 
 dence had no opportunity of pleading it as an estoppel.^' While 
 there has been much conflict of opinion on this subject in the United 
 States, the weight of authority seems to reject the English view that 
 a former judgment may be properly admitted in evidence, and yet 
 that it is a mere fact or arg-ument which the jury may adopt or dis- 
 regard, as they choose.'" The prevailing view in this country is 
 that, if under the pleadings proof of the former judgment is re- 
 ceived, it should have effect as a conclusive determination of the 
 rights of the parties.*^ This controversy is not likely to be contin- 
 ued in those jurisdictions where the reformed procedure is adopted, 
 and where a former judgment must be pleaded as new matter in or- 
 der to admit proof thereof. « 
 
 27; McKisslck v. McKlssick, 6 Humph. (Tenn.) 75; Gluckauf v. Reed, 
 22 Cal. 468; Ramsey Bid. Soc. v. Lawton, 49 Minn. 362; Dwyer v. Goran, 
 29 Iowa, 126; Neafie v. Neafie, 7 Jolins. Ch. (N. Y.) 1, 11 Am. Dec. 380; 
 Stone V. St. Louis Stamping Co., 155 Mass. 267; Perkins v. Parker, 10 
 Allen, 22; Morse v. Marshall, 97 Mass. 519; People v. Mercein, 3 Hill, 
 399, 38 Am. Dec. 644; Caperton v. Schmidt, 26 Cal. 479, 85 Am. Dec. 187 
 and note. See also. State v. Bechdel, 37 Minn. 360, 5 Am. St. Rep. 854. 
 A suit for taxes for one year is no bar to a suit for taxes for another 
 year, Keokuk & W. Ry. Co. v. Missouri, 152 U. S. 301; a decree that an 
 assessment for one year is illegal is not res judicata as to the legality 
 of assessment of another year, Gittlngs v. Mayor, Etc. of City of Balti- 
 more, 95 Md. 419, 52 Atl. 937; and a former judgment in an action for 
 nuisance is not conclusive evidence of the plaintiff's rights in a subse- 
 quent action for the continuance of the same nuisance, Parker v. Standish, 
 3 Pick. 288; Richardson v. Boston, 19 How. 263; Byrne v. Minneapolis & 
 St. L. Ry. Co., 38 Minn. 212, 8 Am. St. Rep. 668. 
 
 7»Vooght V. Winch, 2 Barn. & Aid. 662; Outram v. Morehead, 3 East, 
 346; Hannaford v. Hunn, 2 Car. & P. 148; Magrath v. Hardy, 4 Bing. (N. 
 C.) 782; Doe v. Hudart, 2 Cromp. M. & R. 316; Dimes v. Grand Junction 
 Canal Co., 9 Q. B. 469;- Clink v. Thurston, 47 Cal. 21; Fanning v. Hibernia 
 Ins. Co., 37 Ohio St. 344. 
 
 80 Marsh v. Pier, 4 Rawle (Pa.) 273, 26 Am. Dec. 131; Cist v. Zeigler, 
 16 Serg. & R. (Pa.) 282, 16 Am. Dec. 573; Betts v. Starr, 5 Conn. 550, 13 
 Am. Dec. 94. 
 
 siKrekeler v. Rltter, 62 N. Y. 372; Foye v. Patch, 132 Mass. 105; 
 Walker v. Chase, 53 Me. 258; Beall v. Pearre, 12 Md. 550; Larum v. 
 
§ 604 DOCUMBNTAEY EVIDENCE. 767 
 
 § 604 (621). Matters which might have been litigated in a 
 former suit. — It is a rule which,, with some limitations, has been 
 often recognized that the courts will not permit the same parties to 
 open the same subject of litigation in respect to matter which might 
 have been brought forward as part of the subject in contest, but 
 which was not brought forward, only because they had from negli- 
 gence, inadvertence or even accident omitted part of their case. The 
 plea of res judicata applies, except in special cases, not only to 
 points upon which the court is actually required by the parties to 
 form an opinion and pronounce a judgment, but to every point 
 which properly belonged to the subject of litigation, and which the 
 parties, exercising reasonable diligence, might have brought forward 
 at the time.** It has even been held that a judgment in favor of a 
 
 Wilmer, 35 Iowa, 244; Finley v. Hanbest, 30 Pa. St. 190; Little v. Barlow, 
 37 Pla. 232, 20 So. 240, 53 Am. St. Rep. 249. 
 
 82 Henderson v. Henderson, 3 Hare 115; Parqiiharson v. Seton, 5 Russ. 
 45; Partridge v. Usborne, 5 Russ. 195; Chamley v. Lord Dunsany, 2 
 Schoales & L. 718; Kaehler v. Dobberpuhl, 60 Wis. 256; Pennock v. Ken- 
 nedy, 153 Pa. St. 579, 26 Atl. 217; Danaher v. Prentiss, 22 Wis. 316; Aetna 
 L. Ins. Co. V. Board of Com'rs, 117 Fed. 82; Rucker v. Langford, 138 Cal. 
 611, 71 Pac. 1123; Board of Com'rs v. Johnson, 31 Colo. 184, 71 Pac. 1106; 
 Sutton V. Hancock, 118 Ga. 436, 45 S. E. 504; Downey v. People, 205 111. 
 230, 68 N. E. 807; Dixon v. Caster, 65 Kan. 739, 70 Pac. 871; Moran v. 
 Vickroy (Ky.), 77 S. W. 668; Simpson v. Hart, 1 Johns. Ch. 91; Le 
 Gruen V. Gouverneur, 1 Johns. 436, 1 Am. Dec. 121; Des, Moines & Ft. D. 
 Ry. Co. V. Bullard, 89 Iowa, 749, 56 N. W. 498; Embury v. Connor, 3 N. 
 Y. 611, 53 Am. Dec. 325; Bates v. Spooner, 45 Ind. 489. See note, 78 Am. 
 Dec. 760. For the rule where the cause of action is different, see § 597 
 supra. If the plaintiff fails to give any evidence of certain items of an 
 account he will be precluded from proving the same In a subsequent 
 action, Guernsey v. Carver, 8 Wend. 492, 24 Am. Dec. 60; Borngesser v. 
 Harrison, 12 Wis. 544, 78 Am. Dec. 757; Bendernagle v. Cocks, 19 Wend. 
 207, 32 Am. Dec. 448; Avery v. Fitch, 4 Conn. 362; Lucas v. Le Compte, 
 42 111. 303; Memmer v. Carey, 30 Minn. 458; Oliver v. Holt, 11 Ala. 574, 
 46 Am. Dec. 228; Ingraham v. Hall, 11 Serg. & R. (Pa.) 78; (contra, 
 Badger v. Tltcomb, 15 Pick. 409, 26 Am. Dec. 611; Cunnington v. Ware- 
 ham, 9 Cush. 590). A plaintiff cannot sever a book account and bring 
 separate actions for the several portions and in such cases a judgment for 
 some of the items is a bar to another action for other items, Lucas v. Le 
 Compte, 42 111. 303; Pittman v. Chrisman, 59 Miss. 124; Bolen Coal Co. y. 
 Whittaker Co., 52 Kan. 747. This rule is upon the theory that when 
 the dealings are continuous and nothing appears to show that the parties 
 supposed the several items were to constitute separate transactions or 
 causes of actions the court would presume the ciaim to be entire and 
 indivisible, Magruder v. Randolph, 77 N. C. 79. A different rule applies 
 where the transactions or sales are separate and independent of each 
 
768 THE LAW OF EVIDENCE. § 604 
 
 physician for professional services is a bar to a subsequent action by 
 the defendant for malpractice in rendering such services, although 
 the question of malpractice was not raised or litigated in the first 
 action. ^^ But this seems to be an application of the principle under 
 discussion which can hardly be sustained.^* A defendant, when sued 
 ought not he compelled to litigate an independent claim which he 
 may have against the plaintiff, and which he may prefer to have 
 heard in another forum.*^ It was so held even where, in an action 
 for the price of a horse, the defendant set up breach of warranty, 
 but failed to appear at the hearing, and judgment was rendered 
 against him ; he was held not precluded from suing on the warranty 
 in another action.^' It is the general rule that, when a defendant 
 
 other, American Machine Co. v. Thornton, 28 Minn. 418; Terreri v. Jutte, 
 159 Pa. St. 244; Secor v. Sturgis, 16 N. Y. 541; Schmidt v. Zahensdorf, 
 30 Iowa, 498. The same rule applies if one' sues for only part of an 
 indivisible claim, Miller v. Covert, 1 Wend. 487; Smith v. Jones, 15 Johns. 
 229; Hill v. Joy, 149 Pa. St. 243; Willard v. Sperry, 16 Johns. 121; Bowe 
 y. Minnesota Milk Co., 44 Minn. 460; Baker v. Stinchfield, 57 Me. 363; 
 Beronio v. Southern Pac. Ry. Co., 86 Cal. 415; Burford v. Kersey, 48 Miss. 
 642; Wickersham v. Whedon, 33 Mo. 561; Bassett v. Connecticut River 
 Co., 150 Mass. 178; Thislor v. Miller, 53 Kan. 515, action against an ofBcer 
 for wrongful seizure of animals; Hodge v. Shaw, 85 Iowa, 137, where 
 there is permanent obstruction of a right of way, one suit for trespass 
 bars others; Sullivan v Baxter, 150 Mass. 261, as to judgment for con- 
 version. But part of a claim may be withdrawn, and as to such part of 
 the judgment it is not res judicata, Busch v. Jones, 94 Mich. 223. The 
 rule also applies if an action is brought for less than the whole amount 
 due, Bowden v. Home, 7 Bing. 716; Olmstead v. Bach, 78 Md. 132. If 
 in an action on a note and mortgage, judgment is rendered on the note 
 alone the plaintiff is precluded from claiming any lien in a subsequent 
 action, Johnson v. Murphy, 17 Tex. 216; and if a plaintiff by mistake 
 takes judgment by default for less than Ms claim he is barred from suing 
 for the balance, Footman v. Stetson, 32 Me. 17, 52 Am. Dec. 634. 
 
 83 Gates V. Preston, 41 N. Y. 113; Blair v. Bartlett, 75 N. Y. 150, 31 Am. 
 Rep. 455. 
 
 s4Ressequie v. Byers, 52 Wis. 650, 38 Am. Rep. 775; Bodurtha v. 
 Phelon, 13 Gray, 413; O'Connor v. Varney, 10 Gray, 231; Bascom v. Man- 
 ning, 52 N. JH. 132; Barker v. Cleveland, 19 Mich. 230; Mondel v. Steele, 
 8 M. & W. 858; Rigge v. Burbrldge, 15 M. & W. 598; Davis v. Hedges, L. 
 R. 6 Q. B. 687. 
 
 86 Stark V. Starr, 94' U. S. 477; Phillips v. Berick, 16 Johns. 136, 8 Am. 
 Dec. 299; Bendernagle v. Cocks, 19 Wend. 207, 32 Am. Dec. 448; Railroad 
 V. Castello, 50 Ala. 12; Flaherty v. Taylor, 35 Mo. 447; Eastman v. Porter, 
 14 Wis. 39. 
 
 »8Burwell v. Knight, 51 Barb. (N. Y.) 267; Fairfield v. McNamy, 37 
 Iowa, 75; Robbing v. Harrison, 31 Ala. 160. 
 
§ 604 DOOUMBNTABT EVIDENCE. 769 
 
 has a counter-claim, he is not compelled to plead and prove the same 
 as defendant, but may assert his claim in a separate action." And 
 when one had a counter-claim which could not have been pleaded as 
 a defense in an action on a note, it was held that he might prove the 
 same in an action on the judgment rendered upon such note.*' But 
 of course if he does litigate his claim in the same action, he is 
 bound by the result.'* The same rule applies if the court errone- 
 ously excludes evidence,"* or if new evidence which would change 
 the result has been discovered,*^ for the judgment, unless reversed 
 or vacated, remains a bar. The rule applies to defendants as well 
 as plaintiffs. Defendants are presumed to have presented all the 
 evidence and all their grounds of defense, for actions cannot be 
 tried piecemeal.*^ Thus, if the defendant on a promissory note neg- 
 lects to offer proof of want of consideration or of forgery, the judg- 
 ment is as conclusive in future proceedings as if the defense had 
 never existed.*^ So in actions ajffecting the title to land, the defend- 
 ant must bring forward all the defenses or claims of title on which 
 lie intends to rely. He cannot reserve defenses to be tried in another 
 suit ; °* and where a defendant in a suit on one of a series of notes 
 given for the purchase price of property defeats recovery under a 
 plea of failure of consideration, he is precluded from making the 
 same defense in a subsequent action on other notes of the series.*' 
 
 STMondel v. Steele, 8 M. & W. 858; Davis v. Hedges, L. R. € Q. B. 687; 
 Bascom V. Manning, 52 N. H. 132; Burnett v. Smith, 4 Gray, 50; Gillispie 
 V. Torrence, 25 N. Y. 306, 310; Indiana Ins. Co. v. Stratton, 4 Ind. App. 
 566; Black v. Miller, 75 Mich. 323; Uppfalt v. Woreman, 30 Neb. 189; 
 Seventh Day Ass'n v. Fisher, 95 Mich. 274; Dewsnap v. Davidson, 18 R. I. 
 98; Riley v. Hale, 158 Mass. 240. See note, 40 Am. Dec. 326. 
 
 88 Dudley v. Stiles, 32 Wis. 370. 
 
 89 Thompson v. Schuster, 4 Dak. 163; Simes v. Zane, 24 Pa. St. 242; 
 Nave V. Wilson, 33 Ind. 294. 
 
 ooBeall V. Pearre, 12 Md. 550; Burnett v. Smith, 4 Gray, 50; Grant v. 
 Button, 14 Johns. 377; Smith v. Whiting, 11 Mass. 445. 
 
 "Flint V. Bodge, 10 Allen, 128. 
 
 83 Pearl v. Wells, 6 Wend. 291, 21 Am. Dec. 328; Kelly v. Donlin, 70 111. 
 378; Howe v. Lewis, 121 Ind. 110; Shaffer v. Scuddy, 14 La. An. 575; 
 Barksdale v. Greene, 29 Ga. 419; Footman v. Stetson, 32 Me. 17; Hack- 
 worth V. ZoUars, 30 Iowa, 433; Tucker v. Carr, 20 R. I. 477, 40 Atl. 1, 78 
 Am. St. Rep. 95. See also. Green v. Sanborn, 150 Mass. 454, 23 N. E. 224. 
 
 83 Cromwell v. County of Sac, 94 U. S. 351. 
 
 84Dodd V. Scott, 81 Iowa, 319; Dowell v. Applegate, 152 U. S. 327; Nap- 
 per V. Fitzpatrick, 139 Mich. 139, 102 N. W. 642. 
 
 »5 Hanover v. Kilander, 135 Ind. 600. 
 
 49 
 
770 ; THE LAW OP EVIDENCB. § 605 
 
 § 605 (622). Same, continued. — There has been some contro- 
 versy whether this rule applies to the defense of payment. Some 
 authorities hold that, if the plaintiff neglects to make proper credits 
 in taking judgment, the defendant is not precluded in another ac* 
 tion from proving the facts. But the clear weight of authority is 
 that in such cases the judgment is a bar, and that an action will not 
 lie to recover money paid under such circumstances. "It is clear 
 that, if there be a bona fide legal process under which money is re- 
 covered, although not actually due, it cannot be recovered back, in- 
 asmuch as there must be some end of litigation." " A learned au- 
 thor thus states the rule as to the conclusive effect of judgments 
 upon the matters in issue: "A judgment or decree is conclusive 
 upon aU causes of action and all matters of defense presented by the 
 pleadings and not withdrawn before or during the trial, except, 
 first, where the plaintiff claims on several and distinct causes of ac- 
 tion, in which case he may, according to some of the authorities, 
 maintain a second action upon any one of those causes upon which 
 he can show that he offered no evidence at the trial of the former 
 case ; second, where the defendant pleads a matter as a defense which 
 he might have successfully employed as a cause of action against the 
 plaintiff, in which case, it appears that the right to such cause of ac- 
 tion is not lost to the defendant, unless he followed up his pleading 
 by offering^vidence upon it in the former suit. "With the passible 
 exception here stated, a judgment is conclusive upon all the ma- 
 terial issues made by the pleadings, and also upon all material alle- 
 gations of matters of claim or of defense which the party against 
 whom such allegation is made does not choose to controvert." *' Al- 
 though the courts very generally recognize the rule stated at the be- 
 ginning of the last section, with the limitations which have been re- 
 ferred to, and have often stated veiy broadly the doctrine that the 
 judgment is not only conclusive as to the matters actually contested, 
 but as to those matters which might have been contested,"' yet it 
 must be borne in mind that the rule refers only to those issues which 
 were within the issues before the court, and so might have been de- 
 termined."" 
 
 88 Duke de Cadaval v. Collins, 4 Adol. & Ell. 867; Cromwell v. County 
 of Sac, 94 U. S. 351. 
 
 OTFreem. Judg. (4th Ed.) § 272. 
 
 »8 Hamilton v. Quimby, 46 111. 90; Shaffer v. Scuddy, 14 La. An. 575; 
 Fischll V. Pischll, 1 Blackf. (Ind.) 360; Sayre v. Harpold, 33 W. Va. 553; 
 renver Water Co. v. Middaugh, 12 Colo. 434. 
 
 99Falrchild v. Lynch, 99 N. Y. 359; Nesbit v. Independent District, 144 
 
§ 606 DOCtJMENTAKT EVIDENCE. 771 
 
 § 606 (623). Judgments in rem as evidence. — As regards the 
 effect of judgoients, there is a generally recognized distinction be- 
 tween the class of judgments heretofore discussed, that is, judg- 
 ments in personam, and those which are generally known as judg- 
 ments in rem. Actions of this class are proceedings against prop- 
 erty alone, which is treated as responsible for the claims asserted by 
 the libellants or plaintiffs. "^ Among the judgments generally desig- 
 nated as judgment in rem are those for the condemnation of prop- 
 erty as forfeited,^ adjudications on the subject of prizes or enforce- 
 ment of maritime liens,^ judgments for divorce * and grants of pro- 
 bate and administration." Judgments in attachment and garnish- 
 ment are also sometimes classified as judgments in rem.'' They are 
 not strictly actions m rem, but are frequently spoken of as actions 
 quasi in rem, because, though brought against persons, they only 
 seek to subject certain property of those persons to the discharge 
 of the claims asserted. They differ among other things from ac- 
 tions which are strictly in rem in that the interest of the defend- 
 ant is alone sought to be affected, that citation to him is required 
 and that judgment therein is only conclusive between the par- 
 ties.^ It is a rule, peculiar to proceedings strictly in rem that in 
 such proceedings all persons are deemed parties, and those claim- 
 ing hostile rights are bound to come, in and assert such right, and, 
 if they fail so to do, they are conclusively bound by the judg- 
 ment. Thus, the sentence of a court of admiralty, having juris- 
 diction, decreeing a ship to be a lawful prize, is conclusive upon 
 
 U. S. 610; People v. Hathaway, 206 111. 212, 68 N. E. 1053; Spinney v. 
 Miller, 114 la. 210, 86 N. W. 317, 89 Am. St. Rep. 351; Mclntire v. Linehan, 
 178 Mass. 263, 59 N. E. 767; Huffman v. Knight, 36 Ore. 581, 60 Pac. 207; 
 Cassill V. Morrow, 13 S. D. 109, 82 N. W. 418. 
 
 1 Freeman v. Alderson, 119 U. S. 185. For various definitions of judg- 
 ments in rem, see note, Duchess of Kingston's Case, 2 Smith L. C. 810; 
 Preem. Judg. (4th Ed.) § 606; Black, Judg. (2nd Ed.) § 792. For numer- 
 ous illustrations of the subjects discussed in this section see. Brown on 
 Jurisdiction. See also note, 75 Am. Dec. 720. 
 
 2 Scott v. Shearman, 2 W. Black. 977; Cooke v. Sholl, 5 T. R. 255. 
 sLeCaux v. Eden, 2 Doug. 594; Williams v. Armroyd, 7 Cranch, 423; 
 
 Gelston v. Hoyt, 3 Wheat. 246, 315. 
 
 *R. v Grundon, 1 Cowp. 315. 
 
 6 Allen v. Dundas, 3 T. R. 125; Bogardus v. Clark, 4 Paige (N. Y.) 623; 
 Vanderpoel v. Van Valkenburgh, 6 N. Y. 190. 
 
 « Woodruff V. Taylor, 20 Vt. 65; Cooper v. Reynolds, 10 Wall. 308; Max- 
 well V. Stewart, 22 Wall. 77; Megee v. Beirne, 39 Pa. St. 50; Moore v. 
 Chicago, R. I. & P. Ry. Co., 43 Iowa, 385, garnishment 
 
 T Freeman v. Alderson, 119 U. S. 185. 
 
772 THE LAW OF EVIDENCK § 607 
 
 all the world as to the facts found, until reversed, where such facts 
 are plainly stated on the face of the sentence.' It has been held, 
 however, that the conclusiveness of the judgment in such cases must 
 be confined to those persons who, from their interest in the subject 
 of the proceeding in rem, were entitled to appear in such proceed- 
 ing, and assert their interest in the thing condemned ; " nor is such 
 a decree conclusive of any fact, not necessary to be found.^" It is 
 clear, that, if the court has no jurisdiction over the subject matter, 
 its decree has no conclusive effect, even collaterally. Thus, where 
 a court proceeded to seize and confiscate the property of a corpora- 
 tion, under the statute which only authorized the condenmation of 
 the property of natural persons, the decree is not evidence, or of any 
 validity.'^^ "When no notice is given to the parties interested in the 
 res, against which proceedings are instituted, the judgment affords 
 no evidence of any personal obligation or liability of such parties, 
 however conclusive it may be as to the title of the property affected. 
 In other words, adjudications which stand merely as proceedings in 
 rem cannot, as a general rule, be made the foundation of ulterior 
 proceedings in personam, so as to conclude a party upon the facts 
 involved.^' It is on this principle that in attachment proceedings, 
 although constructive notice may be given by publication or other- 
 wise, the judgment may be conclusive as to the title of property 
 seized, yet it is not a judgment on which execution can be issued for 
 the money, or on which an action can be based.^' 
 
 § 607 (624). Same — Judgment of divorce. — "A sentence of di- 
 vorce has or may have a dual nature. A judgment of divorce is a 
 decree in rem, so far as it fixes the status of the parties by dissolv- 
 ing their marital obligation. But so far as it disposes of any other 
 matter than the marriage relation, it is in personam." ^* The Bng- 
 
 sGelston v. Hoyt, 13 Johns. 561, 3 Wheat. 246; Rlsley v. Phenix Bank, 
 83 N. T. 318, 38 Am. Rep. 421; Croudson v. Leonard, 4 Cranch, 434; The 
 Helena, 4 Rob. Chr. 3 ; Williams v. Armroyd, 7 Cranch, 423, where it was 
 so held in a prize case although avowedly contrary to the law of nations; 
 Steph. Ev. art. 42; 2 Smith L. C. 851. 
 
 oThe Mary, 9 Cranch, 126. 
 
 loMaley v. Shattuck, 3 Cranch, 458; Sorenson v. Sorenson (Neb.), 98 
 N. W. 837. 
 
 iiRisley v. Phenix Bank, 83 N. Y. 318, 38 Am. Rep. 421; Thompson v. 
 Whitman, 18 Wall. 457; Cheriot v. Foussat, 3 Binn. (Pa.) 220. 
 
 12 Salem v. Eastern Ry. Co., 98 Mass. 448, 96 Am. Dec. 650; Rand v. 
 Hanson, 154 Mass. 87; Pennoyer v. Neff, 95 U. S. 714. 
 
 IS Jones V. Spencer, 15 Wis. 583; Greenl. Ev. § 542. 
 
 "Freem. Judg. (4th Ed.) § 584; Black, Judg. (2nd Ed.) § 803. See 
 
§ 608 DOOUMENTABT EVIDENCE. 773 
 
 lish courts. have held that no foreign court has pov^er, so far as any 
 consequences in England are concerned, to annul a marriage solemn- 
 ized in England between English subjects.^" In this country, the 
 chief conflict of opinion has arisen respecting judgments in sister 
 states, rendered without personal service. It is generally conceded 
 that, if a party goes to another state for the mere purpose of obtain- 
 ing a divorce and seeks to gain a residence for that purpose, no 
 jurisdiction is gained, and the judgment is not conclusive for any 
 purpose on the other party. Such a judgment is a fraud upon the 
 court.^° It has been held in some jurisdictions that a decree of di- 
 vorce, obtained in another state, in conformity to the laws of that 
 state, without obtaining jurisdiction of the person of the defendant 
 by personal service of process within the jurisdiction of such state, 
 or by appearance, can only fix and determine the status of the party 
 within its own jurisdiction.^'' Thus, it was held in New York that 
 a divorce, obtained in another state by publication of summons, had 
 no validity against a defendant actually domiciled in New York, 
 and that it constituted no defense in an action for bigamy.^' 
 
 § 608 (625). Same, continued. — The cases above cited proceed 
 upon the theory that the marriage relation is not a res within the 
 state of the party invoking the jurisdiction of a court to dissolve 
 it so as to authorize the court to bind the absent party by substituted 
 service without the jurisdiction.^" But the view generally prevails 
 in this country that the courts of the actual domicil of a married 
 person may render a judgment which has the effect of a decree in 
 
 notes, 7 Am. Dec. 206; 21 Am. Dec. 747; 65 Am. Dec. 355-361; 39 Am. St. 
 Rep. 371; 75 Am. Dec. 722; 94 Am. St. Rep. 553; 83 Am. St. Rep. 616; 
 109 Am. St. Rep. 254; 4 Am. & E: Ann. Cas. 854. 
 
 16 Briggs V. Briggs, 5 Pr. Div. 163; Tovey v. Lindsay, 1 Dow, 117; In re 
 Wilson's Trusts, 35 L. J. (Ch.) 243; Tayl. Ev. (lOth Ed.) § 1726. 
 
 18 Hanover v Turner, 14 Mass. 227, 7 Am. Dec. 203; Chase v. Chase, 6 
 Gray, 157; Sewall v. Sewall, 122 Mass. 156, 23 Am. Rep. 299; Reed v. Reed, 
 52 Mich. 117, 50 Am. Rep. 247; Colburn v. Colburn, 70 Mich. 647; Neff 
 V. Beauchamp, 74 Iowa, 92; Flower v. Flower, 42 N. J. Eq. 152; Tipton v. 
 Tipton, 87 Ky. 243; Ditson v. Dltson, 4 R. I. 87; Hood v. State, 56 Ind. 
 263, 26 Am. Rep. 21. 
 
 17 People v. Baker, 76 N. Y. 78, 32 Am. Rep. 274; O'Dea v. O'Dea, 101 
 N. Y. 23; Jones v. Jones, 108 N. Y. 415, 2 Am. St. Rep. 447; Gregory v. 
 Gregory, 78 Me. 187, 57 Am. Rep. 792; Flower v. Flower, 42 N. J. Eq. 152; 
 De Meli v. De Mell, 120 N. Y. 485, 17 Am. St. Rep. 652; Haddock v. Had- 
 dock, 201 TJ. S. 562, full discussion. 
 
 18 People V. Baker, 76 N. Y. 78, 32 Am. Rep. 274^ 
 
 19 Jones V. Jones, 108 N. Y. 415, 2 Am. St. Rep. 447; Haddock v. Had- 
 dock, 201 U. S. 562, full discussion. 
 
774 THE LAW OF EVIDENCE. § 609 
 
 rem, so far as it affects the matrimonial status.'" But it does not 
 necessarily follow that such a decree, based upon constructiTe no- 
 tice alone, is conclusive evidence against the right of the defendant 
 to alimony, dower or other action asserting claim to property. ^^ 
 Generally the usual rule as to the conclusiveness of judgments be- 
 tween parties obtains; and the decree is conclusive as to the facts 
 found or necessary to be found at the heariag.^^ 
 
 § 609 (626). Judgments in probate — Conclusive effect of— 
 Proof of death, etc. — In determining the effect of judgments of 
 probate courts, as conducted in this country, the same general prin- 
 ciples which govern in other courts are applicable. "Where the de- 
 cree is of the nature of a proceeding in rem, and relates to those 
 matters of exclusive jurisdiction, as in the settlement of estates, the 
 judgment is binding on all the world. ^^ Thus, it has been held in- 
 admissible after the probate of a will to show that the testator was 
 
 20 Hull v. Hull, 2 Strob. Bq. (S. C.) 174; Hubbell v. Hubbell, 3 Wis. 662, 
 62 Am. Dec. 702; Mansfield v. Mclntyre, 10 Ohio, 28; Dltson v. Ditson, 
 i R. I. 87; Thompson v. State, 28 Ala. 12; Tolen v. Tolen, 1 Blackf. (Ind.) 
 407, 21 Am. Dec. 742; Estate of Newman, 75 Cal. 213, 7 Am. St. Rep. 146; 
 Gould v. Crow, 57 Mo. 200; Forrest v. Fey, 218 111. 165, 75 N. E. 789, 109 
 Am. St. Rep. 249 and note; Bidwell v. Bidwell, 139 N. C. 402, 52 S. E. 55, 
 111 Am. St. Rep. 797; Felt v. Felt, 50 N. J. Eq. 606, 45 Atl. 105, 49 Atl. 
 1071, 83 Am. St. Rep. 612 and note; 2 Bish. Mar., Div. & Sep. §§ 152 et seq.; 
 Freem. Judg. (4th Ed.) § 584. 
 
 21 Cook v. Cook, 56 Wis. 195, 43 Am. Rep. 706; Wright v. Wright, 24 
 Mich. 180; Mansfield v. Mclntyre, 10 Ohio, 28; .Webster v. Webster, 54 
 Iowa, 153; Beard v. Beard, 21 Ind. 321; Turner v. Turner, 44 Ala. 437; 
 Gould v. Crow, 57 Mo. 200; Prosser v. Warner, 47 Vt. 667, 19 Am. Rep. 
 132; Reel v. Elder, 62 Pa. St. 308; Garner v. Garner, 56 Md. 127. 
 
 22 Vance v. Vance, 17 Me. 203; Thurston v. Thurston, 99 Mass. 39; 
 Brown v. Brown, 37 N. H. 526, 75 Am. Dec. 154; Prescott v. Fisher, 22 111. 
 390; Lewis v. Lewis, 106 Mass. 309; Bradshaw v. Heath, 13 Wend. 407; 
 McFarlane v. Cornelius, 43 Ore. 513, 73 Pac. 325; Gill v. Read, 5 R. I. 
 343, 73 Am. Dec. 73; Blain v Blain, 45 Vt. 538; Amory v. Amory, 26 Wis 
 15;i. See note, 65 Am. Dee. 361. Ag to the cause of divorce, Slade v. 
 Slade, 58 Me. 157; to the existence of the marriage, Mayhew v. May hew, 3 
 Maule & S. 266; the dissolution of the marriage, Hood v. Hood, 11 Allen, 
 196, 87 Am. Dec. 709; the right to a divorce upon the facts presented, 
 Fera v. Fera, 98 Mass. 155; Slade v. Slade, 58 Me. 157; Thurston v. Thurs- 
 ton, 98 Mass. 39. But not as to third persons as to questions other than 
 the status of the parties, for example, as to the fact of the marriage, 
 Gourand v. Gourand, 3 Redf. (N. i.) 262; Freem. Judg. (4th Ed.) §§ 154, 
 313; or of guilty conduct. Gill v. Reed, a R. I. 343, i3 Am. Dec. 73; Need- 
 ham V. Bremner, 12 Jur. N. S. 434, L. R. 1 C. P. 583. 
 
 23 Simmons v. Saul, 138 U. S. 439; Caujolle v. Ferrie, 13 WaJl. 465; 
 Harris v. Colquit, 44 Ga. 663; Stiles v. Burch, 5 Paige (N. Y.) 132; 
 Womack v. Womack, 23 La. An. 351; Byrne v. Hume, 84 Mich. 185; Rudy 
 
§ 609 DOOUMENTAEY EVIDENCE. 775 
 
 mad or that the will was forged, as those are matters which should 
 have been urged in opposition to the grant of probate ; " nor is it 
 admissible to show that the testator made a subsequent will and ap- 
 pointed another executor ; '^'^ nor that the will was not executed ac- 
 cording to the law of the country where the testator was domi- 
 ciled ; ^^ nor can it be collaterally impeached on other grounds ; " 
 nor can it be shown, after letters of administration have been 
 granted, .that an administrator had not been legally appointed, and 
 was not a competent person ; ^' nor will collateral inquiry be made 
 into the legality of the appointment of a guardian.^' The letters 
 issued to an executor or administrator prove that the authority in- 
 cident to the office has devolved upon the person therein named; 
 that he is the executor or administrator, and that the preliminary 
 proceedings have been regularly taken ; '" and in actions respecting 
 the settlement of the estate of the deceased, they are conclusive 
 evidence of the right of the administrator to sue for and receive 
 whatever was due to the deceased,'^ or as to the validity of the 
 claims allowed.'^ But such letters are not conclusive proof of the 
 death of the alleged decedent, even between parties and privies ; '* 
 
 V. Ulrloh, 69 Pa. St. 177, 8 Am. Rep. 238; Ward v. State, 40 Miss. 108; 
 Judd V. Ross, 146 111. 40, 34 N. B. 631; Cummings v. Ciimmings, 123 Mass. 
 270; Mooney v. Hines, 160 Mass. 469, 36 N. E. 484; Simpson v. Norton, 45 
 Me. 281; State v. McGlynn, 20 Cal. 233, 81 Am. Dec. 118; Mulcahey v. 
 Dow, 131 Cal. 73, 63 Pac. 158; Gates v. Treat, 17 Conn. 388; Sanborn v. 
 Perry, 86 Wis. 361; Hutton v. Williams, 60 Ala. 107; Johnson v. Beazley, 
 65 Mo. 250, 27 Am. Rep. 276; Jones v. Chase, 55 N. H. 234; Roderigas v. 
 East River Sav. Inst., 63 N. Y. 460, 20 Am. Rep. 555; Cecil v. Cecil, 19 
 Md. 79, 81 Am. Dec. 626; Wall v. Wall, 123 Pa. St. 545, 10 Am. St. Rep. 
 549; Corrigan v. Jones, 14 Colo. 311; Lawrence v. Englesby, 24 Vt. 42; 
 Blake v. Butler, 10 R. I. 133; Turner v. Malone, 24 S. C. 398; Kurtz v. 
 St. Paul & D. Ry. Co. (Minn.), 63 N. W. 1. See notes, 75 Am. Dec. 722; 
 46 Am. St. Rep. 466; 21 L. R. A. 680-689, 
 
 2*I*)ell v. Wells, 1 Lev. 235; Mutual L. Ins. Co. v. Tisdale, 91 U. S. 238, ' 
 2 Smith L. C. 827 (star page) ; Sly v. Hunt, 159 Mass. 151, 34 N. E. 187, 
 38 Am. St. Rep. 403. Same as to judgment settling probate of will. 
 Miller v. Foster, 76 Tex. 479. 
 
 2is Moore v. Tanner, 5 T. B. Mon. (Ky.) 42, 17 Am. Dec. 35. 
 
 28 Whicker v. Hume, 7 H. L. Cas. 124. 
 
 ?7Vanderpoel v. Van Valkenburgh, 6 N. Y. 190l 
 
 i»8 Lawrence v. Englesby, 24 Vt. 4'2. 
 
 28Farrar v. Olmsted, 24 Vt. 123. 
 
 »o Mutual L. Ins. Co. v. Tisdale, 91 U. S. 238. 
 
 31 Mutual L. Ins. Co. v. Tisdale, 91 U. S. 238. 
 
 82Phelen v. Fitzpatrick, 84 Wis. 240; City of La Porte v. Organ, 5 Ind. 
 App. 369. 
 
 W Thompson v. Donaldson, 3 Esp. 63; Moons v. Pe !Berng,les, 1 Rus^. 
 
776 THE UA.W OF EVIDENCE. § 611 
 
 nor are they evidence of death in an action brought by a plaintiff 
 individually on an insurance policy on the life of the one claimed 
 to be deceased.^* 
 
 § 610 (627). Same — Jurisdiction. — As in the ease of other judg- 
 ments, the jurisdiction of the court is essential to the validity of the 
 judgments of courts of probate. It is not to be inferred that they 
 are so far conclusive that they cannot be directly attacked. It is a 
 well settled rule that, if the appointment of an administrator or the 
 probate of a will is secured by fraud, mistake or collusion, the facts 
 may be proved in a direct proceeding in the same court to set aside 
 the judgment.'^ It is a general rule that the probate or surrogate 
 courts have no authority to grant administraton, except upon the 
 estates of deceased persons, and hence that the letters are a nullity, 
 if the person is alive}^ Under the statutes of New York in a case 
 which has excited much comment, the statutes were construed to ex- 
 tend the jurisdiction so that letters might be issued, not only upon 
 the estates of decedents, but also upon the estates of persons whom 
 the surrogate should determine upon evidence to be dead ; ^' and that 
 a payment by a debtor to an administrator, so appointed, was valid, 
 and a bar to an action to compel a second payment, though the sup- 
 posed decedent was alive and the letters had been revoked.'* But 
 in a new trial, it was proved that the clerk of surrogate had issued 
 the letters without evidence or authority, and that, since the letters 
 were without jurisdiction and void, they afforded no protection to 
 the debtor for his payment to the person named as administrator. 
 
 § 611 (628). Collateral proof to show want of jurisdiction.— 
 We have already called attention to the presumption in favor of the 
 
 301; Cunningliam v. Smith, 70 Pa. St. 450; Tisdale v. Connecticut M. L. 
 Ins. Co., 26 Iowa, 170, 96 Am. Dec. 136; English v Murray, 13 Tex. 366. 
 See note, 19 Am. Rep. 148. But they are conclusive in a collateral pro- 
 ceeding, French v. Prazier, 7 J. J. Marsh. (Ky.) 425; Lancaster v. In- 
 surance Co., 62 Mo. 121; or where no plea in abatement is filed, Newman 
 V. Jenkins, 10 Pick. 515 
 
 34 Mutual L. Ins. Co. v. Tisdale, 91 U. S. 238. 
 
 36 Waters v. Stickney, 12 Allen, 1; Gaines v. Chew, 2 How. 651; Gaines 
 V. Hennen, 24 How. 567; Estate of Leavens, 65 Wis. 440. But it is not 
 necessary that all persons interested in the prohate of the will should 
 be before the court in order to confer jurisdiction, Bonnemort v. Gill, 
 167 Mass. 338, 45 N. B. 768. 
 
 sejochumsen v. Suffolk Bank, 3 Allen, 87; Melia v. Simmons, 45 Wis. 
 334, 30 Am. Rep. 746; Griffith v. Prazier, 8 Cranch, 9; Allen v. Dundas, 
 3 T. R. 125. 
 
 87Roderigas v. Bast River Sav. Inst., 63 N. Y. 460, 20 Am. Rep. 655. 
 
 88 See case last cited. 
 
§ 611 DOCUMENTAET EYIDENCK. 777 
 
 jurisdiction of courts.'" But in this section we will discuss more 
 fully the effect of such presumption in respect to domestic judg- 
 ments. It is a rule, generally admitted, that nothing is presumed 
 to be out of the jurisdiction of superior courts of general jurisdic- 
 tion, but that which specially appears to be so.*° It is also gener- 
 ally conceded that, if the want of jurisdieton appear on the face of 
 the proceedings, expressly or by necessary implication, whether as 
 to the subject matter or as to the parties, the judgment is void 
 and will be so treated even in a collateral proceeding.*^ But in 
 the case of domestic judgments, there has been much discussion 
 and no little confusion in the authorities as to whether any evidence 
 can be received to show want of jurisdiction when no defect appears 
 on the face of the proceedings. But undoubtedly the great weight 
 of authority sustains the proposition that, in the case of a domestic 
 judgment of a court of general jurisdiction, want of jurisdiction 
 cannot he shown by extrinsic evidence in a collateral proceeding.*' 
 This rule proceeds on the theory that the decision of the court, 
 as to the su"bject of jurisdiction, is binding on the parties and pri- 
 vies on grounds of public policy, and that, if a review of this 
 decision is desired, the rights of the parties may be protected by ap- 
 peal or writ of error, or by a direct attack in an equitable pro- 
 ceeding.*' 
 
 39 See § 31 supra. See notes, 15 Am. Dec. 378; 94 Am. Dec. 765-770. 
 
 *o See § 31 supra. 
 
 *iMcKee v. McKee, 14 Pa. St. 231; Jackson v. Brown, 3 Johns. (N. Y.) 
 459; Tunis v. Withrow, 10 Iowa, 305, 77 Am. Dec. 117; Venner v. Railway 
 Co., 15 Colo. App. 495, 63 Pac. 1061; Hess v. Cole, 23 N. J. L. 116; Babbitt 
 V. Doe, 4 Ind. 355; Moore v. Starks, 1 Ohio St. 369; Paine v. Mooreland, 
 15 Ohio, 435, 45 Am. Dec. '585; Caffery v. Choctaw Coal & Min. Co., 95 
 Mo. App. 174, 68 S. W. 1049; Ragan's Estate, 7 Watts (Pa.) 438; Eddy v. 
 People, 15 111. 386; Abrams v. Jones, 4 Wis. 806; Harris v. Hardeman, 14 
 How. 334. For a general discussion of the impeachment of judgments 
 for want of jurisdiction, see notes, 11 Am. Rep. 435; 26 Am. Rep. 27. 
 
 *2 Pease v. Whitten, 31 Me. 117; Succession of Durnford, 1 La. An. 92; 
 Parks V. Moore, 13 Vt. 183, 37 Am. Dec. 589; Grier v. McLendon, 7 Ga. 
 362; Selin v. Snyder, 7 Serg. & R. (Pa.) 171; Barron v. Fart, 18 Ala. 
 668; Clark v. Sawyer, 48 Cal. 133; Brockerborough v. Melton, 55 Tex. 493; 
 Wenner v. Thornton, 98 111. 156; Callen v. Ellison, 13 Ohio St. 440, 82 Am. 
 Dec. 448; Coit v. Haven, 30 Conn. 190, 79 Am.. Dec. 244; Cook v. Darling, 
 18 Pick. 393; Wingate v. Haywood, 40 N. H. 437; Clark v. Bryan, 16 Md. 
 171; Ferguson v. Crawford, 70 N. Y. 253, 26 Am. Rep. 589; Letney v. 
 Marshall, 79 Tex. 573; Gulickson v. Bodkin, 78 Minn. 33, 80 N. W. 783^ 
 79 Am. St. Rep. 352; Noerdlinger v. Huff, 31 Wash. 360, 72 Pac. 73. 
 
 « Callen v. Ellison, 13 Ohio St. 446, 82 Am. Dec. ,448; Coit v. Haven, 
 30 Conn. 190, 79 Am. Dec. 244; Freem. Judg. (4th Ed.) § 130. 
 
778 THE LAW OP EVIDENCE. § 613 
 
 § 612 (629), Contrary view — Qualifications of general rule.— 
 There ai-e, however, numerous decisions which are often cited as not 
 being in harmony with this view. Some of these maintain that the 
 jurisdiction of the courts under discussion may be attacked collater- 
 ally by extrinsic evidence. A large number of these cases will be 
 found cited in a New Tork decision in which this question is fully 
 (discussed.** "Although it was there freely admitted that the weight 
 lOf authority is otherwise, it was held that the recital of jurisdictional 
 facts in the record of the judgment of any court is not conclusive, 
 ■and may be disproved by extrinsic evidence. This decision is based 
 :in part on the fact that, under the New Tork code of procedure, equi- 
 table defenses are allowable ; and it is claimed that there is no rea- 
 son why the defendant in an action on the judgment should .not be 
 allowed to set up, by way of defense, any facts which would be 
 ground for relief in equity. Other cases which hold judgments 
 open to collateral attack for want of jurisdiction will be found cited 
 in the notes.*" Domestic judgments cannot be questioned collater- 
 ally, although errors or irregularities may appear on the face of the 
 proceeding, unless the errors are such as to show want of jurisdic- 
 tion.*" The rule that, when a court has once acquired jurisdiction, 
 it has a right to decide every question which arises in the case, and 
 that its judgment, however erroneous, cannot be collaterally assailed 
 is subject to qualifications in its application. "It is only correct 
 when the court proceeds, after acquiring jurisdiction of the cause 
 according to established modes governing the class to which the case 
 belongs, and does not transcend, in the extent or character of its 
 judgment, the law which is applicable to it." " 
 
 § 613 (630). Inferior courts — Jurisdiction to appear on record. 
 — ^While the recital of jurisdictional facts in the proceedings of in- 
 ferior courts is prima facie evidence of such jurisdiction, there is no 
 conclusive presumption of the truth of such recitals, and they may 
 
 44 Ferguson v. Crawford, 70 N. Y. 253, 26 Am. Rep. 589. 
 
 45 Williamson v. Berry, 8 How. 495; Shriver v. Lynn, 2 How. 43; Hickey 
 V. Stewart, 3 How. 750; Bnos v. Smith, 15 Miss. 85; Shaefer v. Gates, 2 B. 
 Mon. (Ky.) 453, 38 Am. Dec. 164; Bloom v. Burdick, 1 Hill, 130, 37 Am. 
 Dec. 299; Wilcox v. Jackson, 13 Peters, 498; Demeritt v. Lyford, 27 N. H. 
 541; Ferguson v. Crawford, 70 N. Y. 253, 26 Am. Rep. 589; Rlsley v. 
 Phoenix Bk., 83 N. Y. 318, 38 Am. Rep. 421; Xlalpin v. Page, 18 Wall. 350. 
 As to the rule where the jurisdictional facts do not appear in the record, 
 see § 31 supra. 
 
 "Faulkner v. Guild, 10 Wis. 561. 
 
 47 Windsor v. MjcVeigh, 93 XJ. S. 274; United States v. Walker, 109 TJ. S, 
 258. 
 
§ 614 DOCUMENTARY EVIDENCE. 779 
 
 be contradicted by extrinsic evidence.*' When the powers of such 
 a court ' ' are limited as it regards the cause of action, its locality or 
 amount, the restriction cannot be evaded by a finding or allegation 
 which is contrary to the truth ; and if such an averment is made of 
 record, it may he disproved, and the judgment set aside collater- 
 ally. " ** It is a familiar rule that the jurisdiction of inferior courts 
 should appear on the face of the proceedings, and it has frequently 
 been held that, if the jurisdiction does not so appear, the judgment 
 is void.'"' 
 
 § 614 (631). Merits of foreign judgments — Not open to inquiry. 
 — That some degree of respect should be paid by the courts of one 
 country to the judgments of the courts of foreign countries is uni- 
 versally conceded. The obligation to give credit to foreign judg- 
 ments does not depend upon any rule of international law."^ It 
 has sometimes been said to rest on grounds of international comity. 
 But, according to other authorities, such credit is given on the prin- 
 ciple "that the judgment of the court of competent jurisdiction 
 over the defendant imposes a duty or obligation on the defendant 
 to paythe sum for which judgment is given, which the courts of this 
 country are bound to enforce. "°^ As will appear, it is conceded 
 on aU hands that there are certain reasons on account of which a 
 foreign judgment may be impeached. The question whether such 
 judgments may be impeached upon the merits has given rise to an 
 interesting and long continued controversy. The respective argu- 
 ments are thus clearly stated by Mr. Smith in his note to the Duchess 
 of Kingston's Case: "Upon one side, it is said that the tribunals 
 of this country are not bound to enforce the judgments of a foreign 
 
 • 
 *8 Jenks T. Stebbins, 11 Johns. 224; Barber v. Winslow, 12 Wend. 102; 
 
 Denning v. Corwln, 11 Wend. 647; Borden v. Fitch, 15 Johns. 121, 8 Am. 
 
 Dec. 225; People v. Cassels, 5 Hill, 164; Clark v. Holmes, 1 Doug. 
 
 (Mich.) 390; Willis v. Sproule, 13 Kan. 257; Comstock v. Crawford, 3 
 
 Wall. 396. 
 
 *»1 Smith L. C. (Sth Ed.) 1120; Harriott v. Van Cott, 5 Hill, 285; 
 
 Browne v. Mellor, 6 Hill, 496. 
 
 00 Adams v. Jeffries, 12 OMo, 253, 40 Am. Dec. 477; Blgelow v. Stearns, 
 19 Johns. 39, 10 Am. Dec. 189; Chase v. Hathaway, 14 Mass. 222; Bnos 
 V. Smith, 15 Miss. 85; Clark v. Bryan, 16 Md. 171. 
 
 01 Wheat. Int. L. § 147; Hilton v. Guyot, 159 V. S. 113. See notes, 20 
 L. R. A. 668-682; 94 Am. St. Rep. 532-559, for a general discussion of 
 foreign judgments. As to the effect of judgments of confederate courts, 
 see note, 89 Am. Dec. 261. 
 
 »2Godard v. Gray, L. R. 6 Q. B. 139; Williams v. Jpoes, 13 JI. & W, 
 633. 
 
780 THE LAW OF EVIDENCE. § 61j 
 
 court ; that, when they do so, it is de gratia, and from a wish to ex- 
 tend the limits of justice, ampliare justitiam. But that it would be 
 to amplify injustice, not justice, were they to enforce a sentence 
 which ought never to have been pronounced, because against the 
 party with whom right was. On the other side, it is answered with 
 great force that invariable experience shows that facts can never be 
 inquired into so well as on the spot where they arose; laws never 
 administered so satisfactorily as in the tribunals of the country gov- 
 erned by them ; that, if our courts were to allow matters judicially 
 decided upon to be again opened at any distance of time or place, 
 the consequences would be, in ninety-nine cases out of a hundred, 
 that they would be deceived by the concoction of testimony, or by 
 the abstraction of it, or by the want of it; and that injustice and 
 mistakes, instead of being amended, would be generated.""' 
 
 § 615 (632). Same — Conflicting views. — In the earlier English 
 cases, considerable latitude was given in admitting evidence as to 
 the foreign law, and in ascertaining whether the judgment was war- 
 ranted by that law ; in other words, the foreign judgment was treated 
 as little more than prima facie evidence in behalf of the one who 
 offered it.°* But the more recent decisions have settled the doctrine 
 that foreign judgments, even in actions in personam, are conclusive, 
 and prevent any re-trial on the merits.^^ The cases last cited also 
 overrule the former doctrine of the English courts that the court 
 would disregard a foreign judgment, if it appeared to have been ren- 
 dered under a mistake of the English law.°° Many of the American 
 cases have followed the earlier English cases above referred to, and 
 have held that ihquiry may be made not only into the question of 
 jurifdietion, but as to the merits of the foreign judgment."' There 
 
 03 2 Smith L. C. 847; Story Conf. L. § 607. See note, 94 Am. St. Rep. 
 538 et seq. 
 
 04 Phillips V. Hunter, 2 H. Black. 410; Walker v. Witter, Doug. 1; 
 Houl ditch V. Donegal, 8 Bligh N. S. 301. See notes, 82 Am. Dec. 413; 
 94 Am. St. Rep! 538. 
 
 65 Ferguson v. Mahon, 11 Adol. & Ell. 179; Bank of Australasia v. Nias, 
 16 Q. B. 717; Henderson v. Henderson, 6 Q. B. 288; Godard v. Gray, L. R. 
 6 Q. B. 139; Pemberton v. Hughes, 1 Ch. 781, 68 L. J. Ch. 281, 80 L. T. 
 369. As to the distinction between actions in personam and in rem, see 
 § 623 supra. 
 
 so Godard v. Gray, L. R. 6 Q. B. 139. 
 
 oTBissell V. Briggs, 9 Mass. 461, 6 Am. Dec. 88; Bartlett v. Knight, 1 
 Mass. 401, 2 Am. Dec. 36; Buttrick v. Allen, 8 Mass. 273, 5 Am. Dec. 105; 
 Pelton V. Platner, 13 Ohio, 209, ^2 Am. Dec. 197; Williams v. Preston, 
 3 J. J. Marsh. (Ky.) 600, 20 Am. Dec. 179; Hohner v. Gratz, 50 Fed. 
 
§ 616 DOOUMENTAEY EVIDBNCB. 781 
 
 is, however, in the later authorities a decided tendency toward the 
 adoption of the rule which has come to prevail in England. After 
 discussing the subject fully, the court of appeals of New York uses 
 the following language: "We think the rule adopted in England, 
 holding the same doctrine as to foreign judgments, and recognized 
 in this state should be adopted and adhered to here in respect to 
 such foreign judgments ; and that the same principles and decisions 
 which we have made as to judgments from the courts of the other 
 states of the union, should be applied to foreign judgments." "* 
 
 § 616 (633). Foreign judgments — May be impeached for fraud 
 or want of jurisdiction. — The general rule as to the conclusive- 
 ness of foreign judgments is not affected by the fact that mistake or 
 irregularity may appear on the face of the proceedings,^^ although 
 the judgment cannot be held conclusive, if the proceedings are so 
 defective that the point decided does not clearly appear.*" On a fa- 
 miliar principle, the foreign judgment may always be impeached 
 by extrinsic evidence showing want of jurisdiction. If the party 
 was not subject to the authority of the court, or no proper steps 
 were taken to obtain service, there could be no presumption that the 
 merits of his case have once been adjudicated.'^ On the same prin- 
 
 369; Taylor v. Barron, 30 N. H. 78, 64 Am. Dec. 28l; Rankin v. Goddard, 
 54 Me. 28, 89 Am. Dec. 718; Tremblay v. Aetna L. Ins. Co., 97 Me. 547, 55 
 Atl. 509, 94 Am. St. Rep. 521. See notes, 82 Am. Dec. 413; 94 Am. St. Rep 
 539 et seq. 
 
 68 Lazier v. Westcott, 26 N. Y. 154, 82 Am. Dec. 411 and elaborate note; 
 Brinckley v. Brinckley, 50 N. Y. 202; Monroe v. Douglas, 4 Sandf. Ch. 
 (N. Y.) 126; Low v. Mussy, 41 Vt. 393; Silver Lake Bank v. Harding, 5 
 Ohio, 545; Konitzky v. Meyer, 49 N. Y. 571; Coughran v. Oilman, 81 Iowa, 
 442; Chicago Bridge Co. v. Packing Co., 46 Fed. 584; Glass v. Blackwell, 
 48 Ark. 50; Christian v. Coleman, 125 Ala. 158, 27 So. 786; McGrew v. 
 Mutual Life Ins. Co., 132 Cal. 85, 64 Pac. 103; Fisher v. Fielding, 67 Conn. 
 91, 34 Atl. 714, 52 Am. St. Rep. 270; Dunstan v. Higgins, 138 N. Y. 70, 
 34 Am. St. Rep. 430; Wernse v. McPike, 100 Mo. 476; Memphis Ry. 
 Co. V. Grayson, 88 Ala. 572; Atlanta Co. v. Andrews, 120 N. Y. 58; 
 Hilton V. Guyott, 42 Fed. 249; Elasser v. Haines, 52 N. J. L. 10; 
 Edwards v. Jones, 113 N. C. 453; Griggs v. Becker, 87 Wis. 313; Strauss 
 V. Conried, 121 Fed. 199; Give v. Westervelt, 116 Fed. 1017; Hilton v. 
 Guyott, 159 U. S. 113. See discussion of this subject, note 94 Am. St. 
 Rep. 539 et seq.; Black, Judg. (2nd Ed.) §§ 828-830. 
 
 59 2 Smith L. C. 841. See notes, 11 Am. Rep. 435^40; 82 Am. Dec. 412. 
 
 soObicini v. Bligh, 8 Bing. 335; Callander v. Dittrich, 4 Man. & G. 82; 
 4 Scott N. R. 682. 
 
 61 Ferguson v. Mahon, 11 Adol. & Ell. 179; Reynolds v. Penton, 3 C. B 
 187; Schibsby v. Westenholtz, L. R. 6 Q. B. 155; Bischofe v. "Wethered, 9 
 Wall. 812; McBwan v. Zimmer, 38 Mich. 765, 31 Am. Rep. 332; Nat. Ex. 
 
782 THE LAW OP EVIDENCE. § 617 
 
 ciple, the judgment does not bind persons who were not residents 
 or present in the country when the suit began,^^ although a volun- 
 tary appearance would cure the defect."' So the effect of the judg- 
 ment may be avoided by proof of fraud in its procurement.** But 
 the usual presumption as to the regularity of proceedings, and the 
 jurisdiction of regularly constituted tribunals applies.*^ It is gen- 
 erally held that a foreign judgment, unlike that of a sister state, 
 does not involve a merger of the original cause of action."* And if 
 the plaintiff chooses to sue upon his original cause of action, instead 
 ■of resorting to his judgment, it would seem that the defendant would 
 have the right to dispute the cause of action.'^ 
 
 § 617 (634). Judgments of sister states — Want of jurisdiction 
 may be shown. — The nature of the former controversy as to the 
 effect of judgments of sister states and the present prevailing doc- 
 trine are thus clearly stated by Clifford, J., in a case in the supreme 
 court of the United States : ' ' Cases may be found in which it is held 
 that the judgments of a state court, when introduced as evidence in 
 the tribunals of another state, are to be regarded in all respects as 
 domestic judgments. On the other hand, another class of cases might 
 be cited in which it is held that such judgments in the courts of an- 
 other state are foreign judgments, and that, as such, the judgment 
 is open to every inquiry to which other foreign judgments may be 
 subjected under the rules of the common law. Neither class of these 
 decisions is quite correct. They are not foreign judgments under 
 
 Bank v. Wiley (Neb.), 92 N. W. 582; Putnam v. McDougall, 47 Vt. 478; 
 Wernet's Appeal, 91 Pa. St. 319; Bissell v. Briggs, 9 Mass. 462, 6 Am. 
 Dec. 88; Middlesex Bank v. Butman, 29 Me. 19; Foster v. Glazener, 27 
 Ala. 391; Corby v. Wright, 4 Mo. App. 443; DeMeli v. DeMell, 120 N. Y. 
 485, 17 Am. St. Rep. 652. See notes, 20 L. R. A. 691; 94 Am. St Rep. 533 
 et seq. 
 
 «2 2 Smith L. C. 847. 
 
 osBrissac v. Rathbone, 6 Hurl. & N. 301. 
 
 «4 Henderson v. Henderson, 6 Q. B. 288; Reimers v. Druce, 23 Beav. 145; 
 Abouloff V. Oppenheimer, 10 Q. B. Div. 295; Price v. Dewhurst, 8 Sim. 279; 
 Lazier v. Westcott, 26 N. Y. 146, 82 Am. Dec. 404; Rankin v. Goddard, 54 
 Me. 28, 55 Me. 389, 89 Am. Dec. 718. See note, 94 Am. St. Rep. 549. 
 
 «5 Henderson v. Henderson, 6 Q. B. 288. See § 31 supra. 
 
 «6Bank of Australasia V. Harding, 9 Q. B. 661; Bank of Australasia v. 
 Nias, 16 Q. B. 717; Bank v. Beebe, 53 Vt. 177; New York, L. E. & W. Ry. 
 Co. v. McHenry, 17 Fed. 414. See note, 94 Am. St. Rep. 546. 
 
 67 Smith V. Nicolls, 5 Bing. N. C. 208; Doe v. Huddart, 2 Cromp., M. & 
 R. 316. Still the judgment in such a case would be prima facie evidence 
 of the plaintiff's right, Phillips v. Hunter, 2 H. Black. 402; Hall v. Odber, 
 11 East 118. 
 
§ 617 DOCUMENTAEY EVIDENOB. 783 
 
 the constitution and laws of congress in any proper sense, because 
 they shall have such faith and credit given to them in every other 
 court within the United States as they have by law and usage in the 
 courts of the state from whence they were taken. Nor are they do- 
 mestic judgments in every sense, because they are not the proper 
 foundation for final process, except in the state where they were 
 rendered. Besides, they are open to inquiry as to the jurisdiction. 
 of the court and notice to the defendant. But in all other respects,, 
 they have the same faith and credit as domestic judgments. "°* 
 Where the want of jurisdiction appears from the record itself, 
 clearly the judgment is inadmissible, and can have no effect."" The 
 courts have gone far beyond this, and have held, not only that the 
 jurisdiction of the court of another state may be attacked, when the 
 want of jurisdiction appears upon the face of the proceedings, but 
 also that it may be attacked in other cases, and even that evidence 
 may be received to contradict the record as to the jurisdictional 
 facts asserted therein, and also as to such facts, though stated to 
 
 «8 Christmas v. Russell, 5 Wall. 305; D'Arcy v. Ketchum, 11 How. 165; 
 Thompson v. Whitman, 18 Wall. 61; Bissell v. Briggs, 9 Mass. 462, 6 Am. 
 Dec. 88; Atlanta Hill Co. v. Andrews, 120 N. Y. 58; McDermott v. Clary,. 
 107 Mass. 501; Mills v. Duryee, 7 Cranch, 481; Kinnier v. Kinnier, 45' 
 N. Y. 541; McCauley v. Hargroves, 48 Ga. 50, 15 Am. Rep. 660; Sweet v. 
 Brackley, 53 Me. 346; Marx v. Fore, 51 Mo. 69, 11 Am. Rep. 432; Coit v. 
 Haven, 30 Conn. 190, 79 Am. Dee. 244; Memphis & Charleston R. Co. v. 
 Grayson, 88 Ala. 572, 7 So. 122, 16 Am. St. Rep. 69; Snyder v. Critchfleld, 
 44 Neb. 66, 62 N. W. 306; Mutual Fire Ins. Co. v. Phoenix Ins. Co., 108 
 Mich. 170, 66 N. W. 1095, 62 Am. St. Rep. 693; Parker v. Stoughton Mill 
 Co., 91 Wis. 174, 64 N. W. 751, 51 Am. St. Rep. 881; Welch v. Sykes, 3 
 Gilm.-(I11.) 197, 44 Am. Dec. 689; Wescott v. Brown, 13 Ind. 83; Harshey 
 V. Blackmarr, 20 Iowa, 161, 89 Am. Dec. 520; People v. Dawell, 25 Mich. 
 247, 12 Am. Rep. 260; McLure v. Benceni, 2 Ired. Eq. (N. C.) 513, 40 Am. 
 Dec. 437; Frothingham v. Barnes, 9 R. I. 474; Harrington v. Harrington, 
 154 Mass. 517; Jones v. Jones, 108 N. Y. 415, 2 Am. St. Rep. 447; Drake 
 V. Granger, 22 Fla. 348; Kellam v. Toms, 38 Wis. 592; Crumlish's Admr. 
 V. Central Imp. Co., 38 W. Va. 390. The courts of the various states are 
 bound by the construction of a state statute given by the highest court 
 of that state, Glos v. Sankey, 148 111. 536. The same rule applies as to 
 judgments in federal courts, Sandwich Mfg. Co. v. Earl, 50 Minn. 390, 
 57 N. W. 938; Ocean S. Nav. Co. v. Compania Transatlantia Bspanola, 134 
 •N. Y. 461, 31 N. B. 987, 30 Am. St. Rep. 685. As to the general sub- 
 ject, see notes, 26 Am. Rep. 27; 2 Am. Dec. 42; 103 Am. St. Rep. 304-330. 
 
 89 Shumway v. Stillman, 6 Wend. 447; Middlesex Bank v. Butman, 29, 
 Me. 19; Tessler v. Lockwood, 18 Neb. 167; Bissell v. Wheelock, 11 Cush. 
 277; Renier v. Hurlbut, 81 Wis. 24; Rothrock v. Dwelling-House Ins. Co., 
 161 Mass. 423. 
 
784 THE LAW OF EVIDENCE. § 618 
 
 have been passed upon by the court." There have been numerous 
 decisions to the effect that re&itals in the judgment of another state 
 as to jurisdictional facts cannot be contradicted,^^ but in view of 
 the general current of authority, as shown by the cases cited, and 
 especially the decisions in the surpeme court of the United States, 
 there can be little doubt but that the other rule will prevail. 
 
 § 618 (635). Same — Regularity presumed — Proof of fraud.— 
 Although the want of jurisdiction may be proved, the usual pre- 
 sumption as to the jurisdiction and the regularity of proceedings of 
 courts of general jurisdiction exists, until overthrown.'^ Under the 
 
 70 Downer v. Shaw, 22 N. H. 277; Baltzell v. Nosier, 1 Iowa, 588, 63 Am. 
 Dec. 466; Gleason v. Dodd, 4 Met. 333; Carleton v. Bickford, 13 Gray, 591, 
 74 Am. Dec. 652; Norwood v. Cobb, 15 Tex. 500; Jardine v. Reichert, 39 
 N. J. L. 167; Penny wit v. Poote, 27 Ohio St. 600, 22 Am. Rep. 340; 
 Thompson v. Whitman, 18 Wall. 457; Harris v. Hardeman, 14 How. 334; 
 Rape V. Heaton, 9 Wis. 328, 76 Am. Dec. 269; Price v. Schaeffer, 161 Pa. 
 St. 530, 29 Atl. 279; Ritchie v. Carpenter, 2 Wash. 512, 28 Pac. 380, 26 Am. 
 St. Rep. 877. Evidence has been received to show that an attorney who 
 appeared had no authority to appear, Baltzell v. Nosier, 1 Iowa, 588, 63 
 Am. Dec. 466; Lawrence v. Jarvis, 32 111. 304; Price v. Ward, 25 N. J. L. 
 225; Oilman v. Oilman, 126 Mass. 26, 30 Am. Rep. 646; Ferguson v. Craw- 
 ford, 70 N. Y. 253, 26 Am. Rep. 589; Koonce v. Butler, 84 N. C. 221; Sher- 
 rard v. Nevius, 2 Ind. 241, 52 Am. Dec. 508; Harshey v. Blackmarr, 20 
 Iowa, 161, 89 Am. Dec. 520; that an allegation in the record as to 
 appearance or personal service on defendant was untrue, Finneran v. 
 Leonard, 7 Allen, 54, 83 Am. Dec. 665; McDermott v. Clary, 107 Mass. 501; 
 Easley v. McCUnton, 33 Tex. 288; Rape v. Heaton, 9 Wis. 328. 76 Am. Dec. 
 269; Starbuck v. Murray, 5 Wend. 148, 21 Am. Dec. 172; Hoffman v. Hoff- 
 man, 46 N. Y. 30, 7 Am. Rep. 299; Kane v. Cook, 8 Cal. 449; Pollard v. Bald- 
 win, 22 Iowa, 328; Marx v. Fore, 51 Mo. 69, 11 Ao. Rep. 432; Aldrlch v. Kin- 
 ney, 4 Conn. 380, 10 Am. Dec. 151; Kingsbury v. Yniestra, 59 Ala. 320; Peo- 
 ple V. Dawell, 25 Mich. 247, 12 Am. Rep. 260; Bowler v. Huston, 30 Graft. 
 (Va.) 266, 32 Am. Rep. 673; Brown v. Eaton, 98 Ind. 591; Wood v. Wood, 78 
 Ky. 624; Thorn v. Salmonson, 37 Kan. 441; Aultman, Miller & Co. v. Mills, 9 
 Wash. 68; that the return of service on the summons was untrue, Knowles 
 V. Gas Light Co., 19 Wall. 58; Webster v. Hunter, 50 Iowa, 215; Lowe v. 
 Lowe, 40 Iowa, 220; Carleton v. Bickford, 13 Gray, 591, 74 Am. Dec. 652; 
 that a recital as to any other jurisdictional fact Is erroneous, Ferguson v. 
 Crawford, 70 N. Y. 253, 26 Am. Rep. 589; Kelley v. Kelley, 161 Mass. Ill; and 
 in an action on a judgment rendered In another state on confession on power 
 of attorney that the defendant never executed the power of attorney nor 
 had any notice of the suit, Wilson v. Bank of Mt. Pleasant, 6 Leigh (Va.) 
 570. 
 
 "Zepp v. Hager, 70 III. 223; Wetherlll v. Stillman, 65 Pa. St 105; 
 Semple v. Glenn, 91 Ala. 245; Lapham v. Briggs, 27 Vt. 26; Caughran v. 
 GUman, 72 Iowa, 570; Wilson v. Jackson, 10 Mo. 330; Griggs v. Becker, 
 87 Wis. 313; Hall v. Mackay, 78 Tex. 248. 
 
 i^Hassell v. Hamilton, 33 Ala. 280; Latterett v. Cook, 1 Iowa, 1, 6S 
 
§ 618 DOCUMENTAEY EVIDENOB. 785 
 
 constitutional provision, the courts of the state where a judgment is 
 offered have the right to inquire how far the judgment would be 
 conclusive in the state where rendered ; and the effect which it has 
 there is precisely the effect which it has in every other stateJ' The 
 presumptions indulged in support of such judgments are, however, 
 limited to jurisdiction over persons within their territorial limits, 
 persons who can be reached by their process, and also over those 
 proceedings which are in accordance with the course of the common 
 lawJ* Although it may be regarded as well settled that the subject 
 of jurisdiction is open to inquiry, it is not so clear to what extent 
 the judgment of a sister state may be attacked for fraud in its pro- 
 curement. On the principle that no defenses are available which 
 might have been proved in the original action, it would seem clear 
 that fraud in the cause of action which might have been pleaded as 
 a defense would not be available. It has frequently been declared 
 that fraud in the procurement of the judgment cannot be proved as 
 a defense, but that one seeking to avoid the effect of such a judg- 
 ment must attack it directly, not collaterally, as in the case of a do- 
 mestic judgment.'"' But in his work on judgments, Mr. Freeman 
 
 Am. Dec. 428; Glos v. Sankey, 148 111. 536; Nunn v. Sturges, 22 Ark. 389; 
 Scott V. Coleman, 5 Lltt. (Ky.) 349, 15 Am. Dec. 71; Shmnway v. Still- 
 man, 4 Cow. 292, 15 Am. Dec. 374; Dodge v. Coffin, 15 Kan. 277; Bailey 
 V. Martin, 119 Ind. 103; Buffum v. Stimson, 5 Allen, 591, 81 Am. Dec. 767; 
 Stewart v. Stewart, 27 W. Va. 167; Mink v. Shaffer, 124 Pa. St. 280; 
 Horton v. Critohfield, 18 111. 133, 65 Am. Dec. 701; Preem. Judd. (4tli Ed.) 
 § 565; Wells Res Adj. § 538. See extended discussion, 1 Smith L. C. 1086- 
 1158. See also §§ 31 et seq. supra. Errors or irregularities In procedure 
 do not affect the validity of the judgment, Howland v. Railway Co., 134 
 Mo. 474, 36 S. W. 29; Teel v. Yost, 128 N. Y. 387, 28 N. B. 353, 13 L. R. A, 
 706. 
 
 73 Hampton v. McConnell, 3 Wheat. 235; McLaren v. Kahler, 23 La. An. 
 bO, 8 Am. Rep. 592 and note; Sanborn v. Perry, 86 Wis. 361; Simmons 
 V. Clark, 56 111. 96; Bauserman v. Blunt, 147 U. S. 647; French v. Pease, 
 10 Kan. 51; Hanley v. Donoghue, 116 U. S. 1; Renaud v. Abbott, 116 
 TJ. S. 277. See § 38 supra. 
 
 74Galpin v. Paige, 18 Wall. 350; Kelley v. Kelley, 161 Mass. Ill, where 
 a court in Massachusetts refused to presume that a court in New York 
 had equitable jurisdiction of a suit to annul a marriage, because of the 
 fact that one of the parties had a husband by a former marriage living 
 at the time. 
 
 '76 Christmas v. Russell, 5 Wall. 290; Maxwell v. Stewart, 22 Wall. 77; 
 Anderson v. Anderson, 8 Ohio, 109; Benton v. Burgot, 10 Serg. & R. (Pa.) 
 240; Granger v. Clark, 22 Me. 128; Sanford v. Sanford, 28 Conn. 6; Mo- 
 Donald v. Drew, 64 N. H. 547. Cannot be impeached even for perjury In 
 procuring the judgment, U. S. v. Throckmorton, 98 U. S. 61, leading case. 
 
 50 
 
786 THE LAW OF EVIDENCE. § 619 
 
 expresses the view that this depends upon the form of practice in 
 the state where the action is brought, and that such decisions as 
 those above cited are inapplicable in those states in which equitable, 
 as well as legal, defenses may be pleaded and proved.'" 
 
 § 619 (636). Domestic judgments not impeachable by parties 
 for fraud. — In the opinion of the author, the weight of authority 
 sustains the proposition that domestic judgments cannot be collater- 
 ally attacked by extrinsic evidence of fraud or collusion, when ren- 
 dered by a court having competent jurisdiction, except by those who 
 are not parties or privies." The remedy of parties, in such cases, 
 is by writ of error or new trial, or by a motion or proceeding in 
 equity to set aside the judgment.'* There are doubtless numerous 
 authorities which are not in harmony with the foregoing proposi- 
 tions. Says Mr. Wharton : ""Whenever a party seeks to avail him- 
 self of a former judgment, fraudulently entered, the opposite party 
 may show the fraud, and thus avoid the judgment." '* The learned 
 author cites many cases to maintain this proposition, but some of 
 them are not in point, and others relate to judgments, of sister states. 
 Mr. Wharton, however, qualifies his proposition by the statement 
 that "fraud cannot be collaterally set up by a party to a judgment 
 in any case in which he is either directly or constructively, either 
 by action or by want of vigilance, when he was bound to be vigilant, 
 a party to the fraud." And he further says "that, when a party 
 has the opportunity of applying to the court, entering the judg- 
 ment, to open it, he must do so, and cannot resort to a collateral at- 
 
 fsFreem. Judg. (4tli Ed.) § 576. See also, Black. Judg. (2nd. Ed.) 
 § 918. 
 
 TTSimms v. Slacum, 3 Cranch, 300; Smith v. Lewis, 3 Johns. 157, 3 
 Am. Dec. 469; Granger v. Clark, 22 Me. 128; Haven v. Owen, 121 Mich. 51, 
 79 N. W. 938, 80 Am. St. Rep. 477 and note; Hennessy v. St. Paul, 54 Minn. 
 219, 55 N. "W. 1123; Carpenter v. Oakland, 30 Cal. 439; Smith v. Smith, 
 22 Iowa, 516; Otterson v. Middleton, 102 Pa. St. 78; Davis v. Davis, 61 
 Me. 395; Krekeler v. Rltter, 62 N. Y. 372; Blanchard v. Webster, 92 N. 
 H. 467; Ross. V. "Wood, 70 N. Y. 8; Hawley v. Mancius, 7 Johns. Ch. 
 (N. Y.) 174; Christmas v. Russell, 5 Wall. 290; Steph. Ev. art. 46; Freem. 
 Judg. (4th Ed.) § 334. 
 
 'sDugan v. McGann, 60 Ga. 353; Ogden v. Larrabee, 57 111. 389; Cowin 
 v. Toole, 31 Iowa, 513; Hayden v. Hayden, 46 Cal. 332; Carrington v. 
 Holabird, 17 Conn. 530; Hahn v. Hart, 12 B. Mon. (Ky.) 426; Binsse v. 
 Barker, 13 N. J. L. 263, 23 Am. Dec. 720; Poindexter v. Waddy, 6 Munf. 
 (Va.) 418, 8 Am. Dec. 749; Whittlesey v. Delaney, 73 N. Y. 571; Bresnehan 
 V. Price, 57 Mo. 422; Kemp v. Cook, 18 Md. 130, 79 Aip. Dec. 681. 
 
 T»Whart Ev. § 797. 
 
§ 620 DOCUMENTABr EVIDENCE. 787 
 
 tack." ^^ It should be added that, in those jurisdictions where, by 
 reason of the mode of procedure, equitable defenses may be proven 
 in legal actions it may be competent to allege and prove as a defense 
 that the judgment relied upon has been procured by fraud.'^ There 
 is no principle which precludes strangers to a judgment, who would 
 otherwise be prejudiced in their rights, from impeaching a judg- 
 ment collaterally by showing that it was obtained by the fraud of 
 the parties or either of them, or that it was secured for the purpose 
 of defrauding others.^^ 
 
 § 620 (637). Judgments — How proved — Should be complete. — 
 "Before any document, whether an original or a copy, can be re- 
 ceived in evidence of a judicial proceeding, it must, in general, ap- 
 pear that the record or entry of such proceeding has been finally 
 completed." *' A transcript of minutes extracted from the docket 
 of a court is not admissible to prove a judgment ; '* nor is a memo- 
 randum, not a copy, furnished by the clerk of the court showing the 
 substance of the judgment, competent, although it is the custom of 
 the court to deliver such memoranda as evidence.^" It is not neces- 
 sary to the admissibility of a judgment that it be contained in the 
 formal judgment roll of the common law. The record may be con- 
 tained in the judgment book or docket, as provided by the local law 
 or custom ; " or where a formal record is not required by law to be 
 
 soWhart. Bv. §§ 797, 798. 
 
 81 MandevUle v. Reynolds, 68 N. Y. 528. 
 
 82 Atkinsons v. Allen, 12 Vt. 619, 36 Am. Dec. 361; Caldwell v. Walters, 
 18 Pa. St. 79, 55 Am. Dec. 592; De Armond v. Adams, 25 Ind. 455; Faris v. 
 Dunham, 5 T. B. Mon. (Ky.) 397, 17 Am. Dec. 77; Sidensparker v. Sldens- 
 parker, 52 Me. 481, 83 Am. Dec. 527; Bridgeport Ins. Co. v. Wilson, 34 N. 
 Y. 281; Second Nat. Bank's Appeal, 85 Pa. St. 528; Murcheson v. White, 54 
 Tex. 78; Downs v. Fuller, 2 Met. 135, 35 Am. Dec. 393; Smith v. Cuyler, 78 
 Ga. 654; Shallcross v. Beats, 43 N. J. L. 177. 
 
 83Tayl. Ev. (10th Ed.) § 1570. As to finality of Judgments, see § 595 
 supra. 
 
 84 Ferguson v. Harwood, 7 Cranch, 408; Pepin v. Lachenmeyer, 45 N. Y. 
 27; Gibson v. Holmes, 78 Vt. 110, 62 Atl. 11. 
 
 SBWade v. Odeneal, 3 Dev. (N. C.) 423; Lamar v. Pearre, 90 Ga. 377, 17 
 S. B. 92; Bllllngsley v. Hiles, 6 S. D. 445, 61 N. W. 687; Thompson & Lively 
 V. Mann, 53 W. Va. 432, 44 S. E. 246. A judgment cannot be proved by the 
 mere certificate of the clerk, Lansing v. Russell, 3 Barb. Ch. (N. Y.) 325; 
 or that of an attorney in the case, Tuthill v. Davis, 20 Johns. (N. Y.) 285; 
 or by the entries of the judge, Miller v. Wolf, 63 Iowa, 233; Moore v. 
 Bruner, 31 111. App. 400; or by the collateral statement of the witnesses of 
 the adverse party, Seaton v. Cordray, 1 Wright (Ohio) 102. 
 
 88 Den V. Dowman, 13 N. J. L. 135; Penn v. Meeiis, 2 N. J, L. 151; Harvey 
 T. Brown, 1 Ohio, 268. 
 
788 THE LAW OF EVIDENCE. § 621 
 
 made up, those entries which are permitted to stand in its place are 
 admissible.'^ Thus, sworn copies of docket entries were held admis- 
 sible to show the pendency of an action.^' 
 
 § 621 (638). Proof of parts of record— Verdict.— When it is 
 only sought to be proved that a judgment of a given character has 
 been rendered it is not necessary to the admissibility of the judg- 
 ment as evidence that all the various proceedings be shown.*' But 
 if it becomes material to show the particular issue on which the 
 judgment was rendered, the pleadings must be offered. Frequently 
 it has been held that judgments were inadmissible on the ground 
 that other parts of the record should have been offered as laying the 
 foundation.'"' If the adverse party can derive benefit by producing 
 the antecedent or subsequent proceedings, he, of course, has the right 
 to do so."^ When one party introduces and reads from a record that 
 which suits his purpose, the other party may read for his own benefit 
 all that relates to that subject, or require the party introducing the 
 record to do so.°^ A judgment which has been declared utterly in- 
 valid is not admissible for any purpose."^ Although the usual 
 method of proving the proceedings of a court is by the record as 
 completed and extended, it has frequently been held that the min- 
 utes or memoranda upon the docket of the clerk of the court or the 
 magistrate are competent evidence of an order or proceeding in 
 court, in case the extended record has not been made."* The docket 
 is the record, until the record is fully extended ; and the same rules 
 of verity apply to it as to the record. Every statement therein is 
 deemed to have been made by the direction of the court."" In like 
 
 87 Philadelphia, W. & B. Ry. Co. v. Howard, 13 How. 307. 
 
 88 Philadelphia, W. & B. Ry. Co. v. Howard, 13 How. 307; Read v. Sutton, 
 2 Cush. 115. 
 
 88 Paclcard v. Hill, 7 Cow. 434; Gardere v. Columbian Ins. Co., 7 Johns. 
 514; Watson v. Jones, 41 Pla. 241, 25 So. 678; Stringfellow v. Stringfellow, 
 112 Ga. 494, 37 S. B. 767; Rainey v. Hines, 121 N. C. 318, 28 S. B. 410; 
 Walker v. Doane, 108 111. 236; Chicago & S. B. Ry. Co. v. Grantham (Ind.) 
 75 N. B. 265. See also, Thorns v. Stewart, 92 Ind. 246. 
 
 soHallum v. Dickinson, 47 Ark. 120, 14 S. W. 477; Kerchner v. Frazler, 
 106 Ga. 431, 32 S. E. 351; Rule v. State (Miss.), 22 So. 872. 
 
 aiRathbone v. Rathbone, 10 Pick. 1; Walker v. Doane, 108 111. 236. 
 
 »2 Tappan v. Beardsley, 10 Wall. 427. See § 171 supra. 
 
 03 Agnew v. Adams, 26 S. C. 101; Miller v. Barkeloo, 8 Ark. 318. 
 
 »*Townsend v. Way, 5 Allen, 426; McGrath v. Seagrave, 2 Allen, 443, 79 
 Am. Dec. 797; Pruden v. Alden, 23 Pick. 184, 34 Am. Dec. 51. 
 
 96 Read v. Sutton, 2 Cush. 115; Davis v. Smith, 79 Me. 351, 10 Atl. 55; 
 Gay V. Rodgers, 109 Ala. 624, 20 So. 37. 
 
§ 623 DOCUMBNTAEY EVIDENCE. 789 
 
 manner, the journals and minutes of the courts may be evidence ;'° 
 but not for the purpose of contradicting the record."^ Although 
 it may sometimes be relevant to show that a verdict has been ren- 
 dered, as an incidental fact or by way of inducement,"^ yet it is the 
 general rule that a verdict without the judgment is inadmissible as 
 evidence of the facts found, and that it constitutes no bar.°" The 
 verdict may have been set aside ; and the court will not presume that 
 a judgment was entered on the verdict.^ But the general rule does 
 not apply in those courts where the court has no authority to arrest 
 judgment or grant a new trial, as in justice court.^ Bills in chan- 
 cery were always admissible without other parts of the record. 
 Originally it was held that in order to make the answer admissible 
 the bill should also be offered.^ But under the modem system of 
 pleading the answer or parts of the answer would probably be re- 
 ceived as an admission without proof of the bUl.* 
 
 § 622 (639). Proof of judgments in courts where rendered.— 
 The judgment itself may be produced for the inspection of the court 
 when such judgment becomes relevant in another action in the same 
 court. Such a judgment requires no authentication when produced 
 by the clerk, as the court takes judicial notice of its own records.' 
 At common law, office copies of records in the same cause were also 
 admissible in such cases." In this country, office copies are seldom 
 used ; and the mode of proof of judgments in the same court is by 
 the original records, or by an exemplified, certified or examined 
 copy.^ 
 
 § 623 (640). Proof of records of courts in the same state. — The 
 records of other courts within the same state are generally proved by 
 
 88 R. V. Browne, 3 Car. & P. 572. 
 
 «7Den V. Dowman, 13 N. J. L. 135,- Mandeville v. Stockett, 28 Miss. 398. 
 »s Barlow v. Dupuy, 1 Mart. N. S., (La.) 442. 
 
 09 Donaldson v. Jude, 2 Bibb (Ky.) 57; Ragan v. Kennedy, 1 Overt. 
 (Tenn.) 91. But see, Felter v. Mulllner, 2 Johns. 181. 
 
 1 Ragan v. Kennedy, 1 Overt. (Tenn.) 91. 
 
 2 Felter v. Mulllner, 2 Johns. 181. 
 8 Gilbert Ev. 55. 
 
 4 Edwards v. Mattingly (Ky.), 53 S. "W. 1032. 
 
 Peck V. Laiid, 2 Ga. 15, 46 Am. Dec. 368; Prescott v. Fisher, 22 111. 390; 
 Harrison v. Kramer, 3 Iowa, 543; Odiorne v. Bacon, 6 Gush. 185; Sutcliffe 
 V. State, 18 Ohio, 469, 51 Am. Dec. 459; Ward v. Saunders, 6 Ired. (N. C.) 
 382; Adams v. State, 11 Ark. 466; Wallis v. Beauchkamp, 15 Tex. 303; 
 Larco v. Casaneuava, 30 Cal. 560. 
 
 6 Den V. Fulford, 2 Burr. 1177; Jack v. Kiernan, 2 Jebb & S. 231. As to 
 office copies, see § 523 supra. 
 
 7 See §§ 523, 624 supra. 
 
790 THE LAW OF EVIDENCE. § 623 
 
 the production of copies, certified or exemplified by the clerk of the 
 court having their custody.* Statutes are generally enacted pre- 
 scribing the substance of the certificate in such cases, and providing 
 that the copy, when properly certified with the seal of the court 
 affixed, shall have the same effect as the original." In other states, 
 copies of the records, attested by the clerk, have been received in evi- 
 dence in other courts by immemorial usage. ^^^ The original records 
 of the proceedings of other courts within the same state are also ad- 
 missible, when identified by the oath of the proper custodian.^^ The 
 original is, of course, admissible whenever a copy would be compe- 
 tent.^^ It is not sufficient that a witness identifies certain papers 
 as those which were formerly filed by him when he was clerk of the 
 court, nor that another witness testifies that he received the papers 
 from the present clerk of the court ; *° nor is it sufficient for an at- 
 torney to produce such records without other authentication.^* But 
 the court may take judicial notice of the clerk's signature, although 
 from another district.^^ Owing to the inconvenience of the removal 
 of public records, the practice generally prevails of proving ^uch 
 records by copies certified by the clerk of the court or by the judge,^" 
 or by sworn copies of the same.'^^ The certificate should, of course, 
 explicitly state that the document is a true copy of the original, and, 
 if based upon a statute, should substantially comply therewith. 
 Statutes prescribing the mode of authenticating domestic records or 
 those from sister states vary in form, of course, but they generally 
 provide that the seal of the court shall be annexed to the copy which 
 
 sTumbull V. Payson, 95 U. S. 418; Fitzpatrick v. Simonson Bros. Mfg. 
 Co., 86 Minn. 140, 90 N. W. 378; Burge v. Gandy, 41 Neb. 149, 59 N. "W. 359. 
 
 9 See the statutes of the jurisdiction. 
 
 loLadd V. Blount, 4 Mass. 402; Com. v. Phillips, 11 Pick. 28; Chamberlln 
 V. Ball, 15 Gray, 352. 
 
 11 Odiorne v. Bacon, 6 Cush. 185, by statute; Hart v. Stone, 30 Conn. 94; 
 State V. Hunter, 94 N. C. 829; Rogers v. Tillman, 72 Ga. 479; Hardin v. 
 Blackshear, 60 Tex. 132; People v. Alden, 113 Cal. 264, 45 Pac. 327. 
 
 12 Gray v. Davis, 27 Conn. 447; Folsom v. Creesey, 73 Me. 270. 
 
 13 Lyon v. Boiling, 14 Ala. 753, 48 Am. Dec. 122; Darden v. Neuse & T. 
 Co., 107 N. C. 437. 
 
 i*Bigham v. Coleman, 71 Ga. 176. 
 
 10 Sherrerd v. Frazer, 6 Minn. 572. 
 
 loBrackett v. Hoitt, 20 N. H. 257; Metzger v. Burnett, 5 Kan. App. 374, 
 48 Pac. 599. 
 
 17 White V. Burnley, 20 How. 235; Harvey v. Cummings, 68 Tex. 599; 
 Karr v. Jackson, 28 Mo. 316. 
 
§ 625 DOCUMBNTABY EVIDENCE. 791 
 
 shall be certified by the clerk or judge to have been carefully com- 
 pared by him with the original, and to be a true copy thereof.^' 
 These statutes not only relate to judgments but to other parts of the 
 record. 
 
 § 624 (641). Mode of proof of foreign records. — In an early 
 case in the supreme court of the United States, it was determined 
 that foreign judgments may be authenticated in the following 
 modes: "(1) By an exemplification under the great seal ; (2) by a 
 copy proved to be a true copy; (3) by the certificate of an officer 
 authorized by law, which certificate itself must be properly authenti- 
 cated. These are the usual, and appear to be the most proper, if 
 not the only modes of verifying foreign judgments. If they be all 
 beyond the reach of the party, other testimony, inferior in its na- 
 ture, may be received." ^^ It is evident that this includes the com- 
 mon law method of proof by a sworn copy."" A judgment rendered 
 at Havana was held admissible on proof that the copy was signed by 
 the clerk of the court, the keeper of its records, whose duty it was 
 to certify them; and on further proof that the court had no seal; 
 that the signature of the clerk validated its proceedings; that the 
 seal annexed was that of the Royal College of Notaries, and that the 
 document was authenticated in the customary way in which records 
 were authenticated to be sent to foreign countries."^ 
 
 § 625 (642). Same — Mode of authentication. — The authentica- 
 tion is sufBcient if application was made to the reputed clerk of the 
 court for a copy, and if the witness assisted the clerk in comparing 
 the copy with the record and in affixing the seal of the court to the 
 copy, and saw the clerk attest the same.^^ So it is sufficient to show 
 by an expert that the record is authenticated in the manner author- 
 ized in the country whence it came, the signature of the judge of 
 the court and the seal afSxed being proved genuine.^' Copies of 
 foreign records are not proved by the mere fact that they purport 
 to be under the hands and seals of the officers of such courts. There 
 
 18 See the statute of jurisdiction. As to authentication of foreign judg- 
 ments, see §§ 624 et seq. infra. 
 
 18 Church V. Hubbart, 2 Cranch, 238. See note, 82 Am. Dec. 411. 
 
 20 Lincoln v. Battelle, 6 Wend. 475; Hill v. Packard, 5 Wend. 387; Condlt 
 V. Blackwell, 19 N. J. Eq. 193. 
 
 21 Packard v. Hill, 7 Cow. 435; Hill v. Packard, 5 Wend. 387. 
 22Buttrlck V. Allen, 8 Mass. 273, 5 Am. Dec. 105; Plckard v. Bailey, 26 
 
 N. H. 152. 
 2»0wlngs v. Nicholson, 4 Har. & J. (Md.) 66. 
 
792 THE LAW OF EVIDENCE. § 626 
 
 must, in such cases, be some extrinsic proof of the genuineness of 
 the signatures and seals.''' But the clerk or prothonotary of a court 
 is presumed to possess authority to make and certify copies of the 
 records of the court in a certificate over his official signature, to- 
 gether with the seal of the court. His official signature and the 
 seal are duly authenticated by the affixing of the great seal of the 
 state or government in which the court is found to the certificate of 
 the keeper thereof. The great seal proves itself.^"* It has been held 
 that, if the record is authenticated by the great seal of the foreign 
 country, no certificate of any officer of the court is necessary.^' 
 But the private seal of one styling himself "secretary of state" is 
 not a sufficient authentication.''^ The practitioner will find statutes 
 in some states regulating the mode of authenticating foreign judg- 
 ments.^* These in some cases dispense with proof of the genuine- 
 ness of the signature of the certifying officer and of the seal of the 
 court, making the mode of proof similar to that of judgments of 
 sister states.^" Other cases illustrating mode of proof of foreign 
 records will be found in the notes.^" 
 
 § 626 (643). Proof of records of sister states — Federal stat- 
 utes. — It is clearly beyond the province of this work to discuss or 
 set forth the statutes of the several states respecting the authentica- 
 ' tion of records. But there is a federal statute on the subject which 
 
 2*Delafield v. Hand, 3 Johns. 310; Griswold v. Pitcairn, 2 Conn. 90; 
 Word V. McKinney, 2.5 Tex. 258. Evidently parol evidence Is Insufficient, 
 Tharpe v. Pearce, 89 Ga. 194. 
 
 2B Gunn V. Peakes, 36 Minn. 177; Lazier v. Westcott, 26 N. Y. 146, 82 Am. 
 Dec. 404 and note. 
 
 28 Watson V. Wolker, 23 N. H. 471; Griswold v. Pitcairn, 2 Conn. 91; 
 Thompson v. Stewart, 3 Conn. 171, 8 Am. Dec. 168. 
 
 2' Church V. Hubhart, 2 Cranch, 187; Vandervoort v. Columbian Ins. Co., 
 2 Caines (N. Y.) 155. 
 
 28 See the statutes of the jurisdiction. As to authentication of records 
 of sister states, see next sections. 
 
 29 See the statutes of the jurisdiction. 
 
 soRussel V. Insurance Co., 4 Dall. 421; Yeaton v. Fry, 5 Cranch, 355; 
 Stein V. Bowman, 13 Peters, 209; Slaughter v. Cunningham, 24 Ala. 260, 
 60 Am. Dec. 463; Smith v. Redden, 5 Har. (Del.) 321; United States T. 
 Delespine, 12 Peters, 654; James v. Kerby, 29 Ga. 684; Atwood v. Buck, 113 
 111. 268; Elmondorff v. Carmichael, 3 Litt. (Ky.) 472, 12 Am. Dec. 86; 
 DeSobry v. DeLaistra, 2 Har. & J (Md.) 191, 3 Am. Dec. 535; Steward v. 
 Swanzy, 23 Miss. 502; Clarke v. Diggs, 6 Ired. (N. C.) 159, 44 Am. Dec. 73; 
 Stangtein v. State, 17 Ohio St. 453; Spaulding v. Vincent, 24 Vt. 501; Had- 
 field v. Jamieson, 2 Munf. (Va.) 53; Succession of Lorenz, 41 La. An. 1091; 
 Capling V. Herman, 17 Mich. 524; Linton v. Baker, (Neb.), 96 N. W. 251; 
 Gunn V. Peakes, 36 Minn. 177, 30 N. W. 466, 1 Am. St. Rep. 661. 
 
§ 626 DOCUMENTARY EVIDENCE. 793 
 
 furnishes a rule of universal application in this country which 
 should be carefully examined. The statute provides that the records 
 and judicial proceedings 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 atteata^ 
 tion 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 pre- 
 siding 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. " ^^ It is well settled that, while a compliance 
 with this statute is sufficient in any jurisdiction, the statute does 
 not prevent the several states from prescribing other modes of au- 
 tentication, less formal, or from using the common law modes. The 
 statute is not exclusive.^^ But while the states may dispense with 
 part of the formalities required by congress, they cannot compel a 
 more formal or detailed mode of authentication, or one inconsistent 
 with the act.^' A record is admissible which conforms either to the 
 provisions of the act of congress or of the state where offered.'* It 
 
 81 Rev. Stat. U. S., § 905; (U. S. Comp. St. 1901, p. 677). 
 
 82 Kingman v. C!owles, 103 Mass. 283; English v. Smith, 26 Ind. 445; 
 Railroad Bank v. Evans, 32 Iowa, 202; Hackett v. Bonnell, 16 Wis. 471; 
 Parke v. Williams, 7 Cal. 247; Goodwyn v. Goodwyn, 25 Ga. 203; Karr v. 
 Jackson, 28 Mo. 316; Pryor v. Moqre, 8 Tex. 250; Kean v. Rice, 12 Serg. 
 & R. (Pa.) 203; Hanrick v. Andrews, 9 Port, (Ala.) 9; Tomlin v. Woods, 
 125 la. 367, 101 N. W. 135; Sloan v. Wolfsfeld, 110 Ga. 70, 35 S. B. 344; 
 Willock V. Wilson, 178 Mass. 68, 59 N. E. 757, Ellis v. Ellis, 55 Minn. 401, 56 
 N. W. 1056, 43 Am. St. Rep. 514; People v. Miller, 195 111. 621, 63 N. E. 504. 
 
 88 Kingman v. Cowles, 103 Mass 283; McMillan v. Lovejoy, 115 111. 498; 
 Willock V. Wilson, 178 Mass. 68, 59 N. E. 757; Garden City Sand Co. v. 
 Miller, 157 111. 225, 41 N. B. 753; Ellis v. Ellis, 55 Minn. 401, 56 N. W. 1056, 
 43 Am. St. Rep. 514. 
 
 84 Ordway v. Conroe, 4 Wis. 45; Pryor v. Moore, 8 Tex. 250. The pro- 
 visions of the act apply to the proceedings of courts of records, to decrees 
 in chancery, Barbour v. Watts, 2 A. K. Marsh. (Ky.) 290; Patrick v. Gihbs, 
 17 Tex. 275; proceedings in probate court. Settle v. Alison, 8 Ga. 201, 
 52 Am. Dec. 393; Case v. McGee, 8 Md. 9; Houze v. Houze, 16 Tex. 
 598; Melvin v. Lyons, 18 Miss. 78; Morgan v. Gaines, 3 A. K. Marsh. 
 (Ky.) 613; Abercrombie v. Stillman, 77 Tex. 589, 14 S. W. 196; 
 such as those relating to the probate of wills, Keith v. Keith, SO 
 Mo. 125; First Nat. Bank v. Kidd, 20 Minn. 234; Walton v. Hall's Estate, 
 66 Vt. 455, 29 Atl. 803; Long v. Patton, 154 U. S. 573; and to guardians' 
 and administrators' ionds, if part of the record, Carlisle v. Tuttle, 30 Ala. 
 613 ; Pickett v. Bates, 3 La. An. 627 ; and to all proceedings in other states 
 
794 THE LAW OF EVIDENCB. § 627 
 
 has been held in some jurisdictions that proceedings in justice courts 
 are within the meaning of the act. Such decisions, however, gener- 
 ally related only to those justice courts which, by the laws of their 
 state, were courts of record.^" But it is the general rule that a 
 judgment of a justice of thtf peace from a sister state cannot be 
 proved in the mode prescribed by the act. Such judgments must 
 be proved according to the rules of the common law, or as prescribed 
 by the statutes of the several states ;'° and a transcript of a justice's 
 judgment, authenticated by the certificate of a clerk of the county 
 or district court, is not admissible under the statute.*' 
 
 § 627 (644). Proof of judgments in federal court^. — It will be 
 noticed that the language of the act providing for the authentication 
 of judicial proceedings of certain courts does not include the federal 
 courts. It has accordingly been held by the supreme court of the 
 United States, after full discussion, that it is not absolutely neces- 
 sary that the record of a judgment in the district court of the 
 United Statfes should be authenticated in the mode prescribed by 
 the act of congress referred to, in order to render the same admis- 
 sible in the courts of the United States; that the district court of 
 the United States, even out of the state composing the district, is to 
 be regarded as a domestic and not a foreign court, and that the rec- 
 ords of such court may be proved by the certificate of the clerk un- 
 der the seal of the court, without the certificate of the judge that the 
 same is in due form.'' But it has been held that, if the record of a 
 judgment of a state court is oflfered in the federal court, it must be 
 attested as provided by the statute.''* The records of the federal 
 courts arfe admissible in the state courts, if authenticated as pro- 
 vided by the statute.*" When the record of a judgment of a state 
 
 which by the laws and usage of that state are entitled to the faith and 
 credit of a Judgment, Taylor v. Runyan, 9 Iowa, 522. 
 
 85 Bissell V. Edwards, 5 Day (Conn.) 363, 5 Am. Dec. 166; Sloan v. Wolfs- 
 feld, 110 Ga. 70, 35 S. E. 344; Belton v. Fisher, 44 111. 32; Draggoo v. 
 Graham, 9 Ind. 212; Scott v. Cleveland, 3 T. B. Mon. (Ky.) 62; Brown v. 
 Edson, 23 Vt. 435; Mahurin v. Bickford, 6 N. H. 567; Lawrence v. Gaultney, 
 1 Cheves (S. C.) 7; Pelton v. Platner, 13 Ohio, 209. 
 
 soKean v. Rice, 12 Serg. & R. (Pa.) 250; Robinson v. Prescott, 4 N. H. 
 450; Silverlake v. Howling, 5 Ohio, 545; Collier v. Collier, 150 Ind. 276, 49 
 N. E. 1063; Smith v. Petrie, 70 Minn. 433, 73 N. W. 155. 
 
 37 McElfatrick v. Taft, 10 Bush (Ky.) 160; Thomas v. Robinson, 3 Wend. 
 267; Mahurin v. Bickford, 6 N. H. 567. 
 
 88Turnbull v. Payson, 95 U. S. 418, 424; Adams v. Way, 33 Conn. 419; 
 Mason v. Lawrason, 1 Cranch C. C. 190. 
 
 38 United States v. Biebusch, 1 Fed. 213. 
 
 *i> Redman v. Gould, 7 Blackf. (Ind.) 361; Tappan v. Norvelle. 3 Sneed 
 
§ 628 DOOUMENTAEY EVIDENCE. 795 
 
 court is offered in evidence in the United States ciriiuit court sitting 
 within that state, the certificate of the clerk and seal of the court 
 are sufficient authentication.*^ 
 
 § 628 (645). Authentication — Attestation by clerk. — There 
 must be compliance with the statute in its various requirements. 
 Thus, the clerk must be the clerk of the court in which the judg- 
 ment was rendered,*^ or, if the constitution of the court has 
 changed, he must be a successor of that clerk.*^ If the record has 
 been transferred from one court to another, the certificate of the 
 clerk, having custody of the records, as to the fact is sufficient,** 
 or such fact may be stated in the certificate of the judge.*" The 
 certificate of a deputy or substitute is not sufficient,*" although 
 the judge certifies that the attestation is ia due form and accord- 
 ing to the laws of the state.*^ But if the record is certified by the 
 clerk through his deputy, this is a compliance with the law.*^ 
 The certificate or attestation made by the clerk must be according 
 to the form used in the state from which the record comes; and the 
 only evidence of this fact is the certificate of the presiding judge. 
 No form of attestation is prescribed by the act, and whether it 
 is in due form or not can only be shown by the certificate of 
 the presiding judge.*" It has been held in several cases that the 
 certificate of the clerk need not state in e-xpress terms that the 
 transcript is a copy of the whole proceedings, but where he certi- 
 
 (Tenn.) 570; Helm v. Shackleford, 5 J. J. Marsh (Ky.) 390; United States 
 V. Bank, 11 Rob. (La.) 418. 
 
 "Mewster v. Spalding, 6 McLean (U. S.) 24. 
 
 *2 Kirkland v. Smith, 2 Mart. N. S. (La.) 497; Scott v. Blanchard, 8 Mart. 
 N. S. (La.) 303; Moyer v. Lyon, 38 Mo. App. 635. 
 
 *3 Thomas v. Tanner, 6 T. B. Mon. (Ky.) 52; Capen v. Emery, 5 Met. 436; 
 Manning v. Hogan, 26 Mo. 570. 
 
 4* Thomas v. Tanner, 6 T. B. Mon. (Ky.) 52; McRae v. Stokes, 3 Ala. 401; 
 Hatcher v. Rocheleau, 18 N. Y. 86; Darrah v. Watson, 36 Iowa, 116; Capen 
 V. Emery, 5 Met. 436; Manning v. Hogan, 26 Mo. 570; Gatling v. Robbins, 
 8 Ind. 184. 
 
 *is Capen v. Emery, 5 Met. 436; Gatlin v. Robbins, 8 Ind. 184. 
 
 *8 Morris v. Patchin, 24 N. Y. 394, 82 Dec. 311; Lothrop v. Blake, 3 
 Pa. St. 483; Sampson v. Overton, 4 Bibb (Ky.) 409; Donohoo v. Brannon, 
 1 Overt. (Tenn.) 327; Willock v. "Wilson, 178 Mass. 68, 59 N. B. 757. 
 
 *T Morris v. Patchin, 24 N. Y. 394, 82 Am. Dec. 311; Kansas Pac. Ry. 
 Co. v. Cutter, 19 Kan. 83; "Willock v. Wilson, 178 Mass. 68, 59 N. E. 757. 
 
 *8 Greasons v. Davis, 9 Iowa, 219. 
 
 49 Schoonmaker v. Lloyd, 9 Rich. L. (S. C.) 173; Craig v. Brown, Peters 
 C. C, 352; Ducommun v. Hysinger, 14 111. 249; White v. Strother, 11 Ala. 
 720; Andrews v. Flack, 88 Ala. 294, 6 So. 907; Edwards v. Jones, 113 N. C. 
 453, 18 S. E. 600. 
 
'''96 THE LAW OF EVIDENCE. § 62^ 
 
 fies that the copy is a true one, taken from the record of proceed- 
 ings of the court, and the certificate of the judge complies with 
 the statute, the document will be presumed to be a true copy.^" 
 Thus, it has been held sufficient, if the clerk certifies that the 
 transcript is a true transcript of the record, as fully as it now 
 exists in the office;''^ that the copy is exemplified ;''2 that the 
 exemplification is a transcript of the proceedings, "' and that the 
 transcript is a true copy of the whole judgment roll."** The judge 
 may certify that he acts as his own clerk, and that the certificate 
 is in due form.'^ In such case, he should certify first as clerk 
 and then as judge, in the same manner as if there were two 
 officers." But the certificate of the judge alone, though under 
 the great seal of the state, is not sufficient.^' 
 
 § 629 (646). Same— Certificate of the judge.— It is clear that, 
 under the act of congress there should be a certificate of the judge 
 of the court in which the judgment was rendered."' It is not 
 sufficient that he is merely acting as judge ; though, if the judges 
 are appointed from the state at large, the certificate may be by 
 the one presiding in his place."' That the certificate is made 
 by the judge of the court should appear on its face,'" for example, 
 it should appear affirmatively that the judge is the judge of the 
 
 BOMudd V. Beauchamp, Lltt. Sel. Cas. (Ky.) 142; Reber v. Wright, 68 Pa. 
 St. 471; Lee v. Gause, 2 Ired. (N. C.) 440. See Shilling t. Selgle, 207 Pa. 
 St. 381, 56 Atl. 957. 
 
 51 McCormick v. Deaver, 22 Md. 187. 
 
 B2 Taylor v. Carpenter, 2 Wood. & M. (U. S.) 1. 
 
 63 Lee V. Gause, 2 Ired. (N. C.) 440. 
 
 64 Clark V. Depew, 29 Pa. St. 409. 
 
 66Roop V. Clark, 4 G. Greene (Iowa) 294; Pagett v. Curtis, 15 La. An. 
 451; State v. Hinchman, 27 Pa. St. 479. But see, Sherwood v. Houston, 41 
 Miss. 59. 
 
 66 Catlin V. Underhill, 4 McLean (U. S.) 199; Duvall v. Ellis, 13 Mo. 203; 
 Bissau V. Edwards, 5 Day (Conn.) 363, 5 Am. Dec. 166; Keith v. Stiles, 92 
 Wis. 15, 64 N. W. 860. 
 
 6T Tarlton v. Briscoe, 1 A. K. Marsh. (Ky.) 67. But see, Wilson v. 
 Phoenix Powder Mfg. Co., 40 W. Va. 413, 21 S. E. 1035, 52 Am. St. Rep. 890; 
 Rowe V. Barnes, 101 la. 302, 70 N. W. 197. 
 
 58 Huff V. Campbell, 1 Stew. (Ala.) 543; Arnold v. Prazier, 5 Strob. (S. 
 C.) 33; Smith v. Brockett, 69 Conn. 492, 38 Atl. 57; Westerman v. Shep- 
 pard, 52 Neb. 124, 71 N. W. 950. The certificate by the Governor of the 
 state does not suffice, Harrison v. Weatherly, 180 111. 418, 54 N. B. 237. 
 
 60 Taylor v. Kilgore, 33 Ala. 214. 
 
 "owashabaugh v. Bntriken, 34 Pa. St. 74; Stewart v. Gray, Hempst. (U. 
 S.) 94; Hudson v. Dailey, 13 Ala. 722; Settle v. Alison, 8 Ga. 201, 52 Am. 
 Dec. 393. 
 
§ 629 DOCUMENTAEY EVIDENCE. 797 
 
 county or district where the judgment was rendered.'^ But it is 
 sufficient, if the certificate describes the judge certifying as the 
 judge of the court in question, as it is the presumption that he 
 holds the position which he professes to hold."" If there are 
 several judges constituting the court, the certificate should be by 
 the chief justice or presiding judge.'^ If there are several of the 
 same rank, all may unite,"* although one may certify alone, if he 
 certifies that each judge has equal authority and power to sign 
 certificates of this character.^" If the certificate is made by one 
 who styles himself the judge, it need not add that there are no 
 others constituting the court."* Since the certificate of the judge 
 afEords the only evidence that the certificate of the clerk is correct, 
 the judge must certify that the attestation of the clerk is in due 
 form;" and this certificate of the judge is conclusive on that sub- 
 ject, although the attestation by the clerk may on its face seem 
 to be defective."* This certificate of the judge is also sufficient 
 prima facie evidence of the jurisdiction of the court."' It is no 
 objection to the admission of the copy as evidence that the certifi- 
 cates may contain more than is required, if the essentials of the 
 act are therein contained.'" The certificate of the judge need not 
 state that the person certifying the record is the clerk ;'^ and the 
 omission of a date in a certificate may be supplied by that in the 
 
 81 Phelps V. Tilton, 17 Ind. 423. 
 
 62 Gavlt V. Snowhill, 26 N. J. L. 76; Hatcher v. Rocheleau, 18 N. Y. 86. 
 
 «3 Stevenson v. Bannister, 3 Bibb (Ky.) 371; Hudson v. Dalley, 13 Ala. 
 722; Settle v. Alison, 8 Ga. 201, 52 Am. Dec. 393; Lothrop v. Blake, 3 Pa. 
 St. 483. 
 
 81 Arnold v. Frazier, 5 Strob. (S. C.) 33. 
 
 8B0rman v. Neville, 14 La. An. 392; Hu£E v. Campbell, 1 Stew. (Ala.) 
 543; Van Storch v. Griffin, 71 Pa. St. 240. 
 
 68 Central Bank v. Veasey, 14 Ark. 671; Willock v. Wilson, 178 Mass. 
 68, 59 N. B. 757; People v. Smith, 121 N. Y. 578, 24 N. B. 852. 
 
 87 Rev. Stat. U. S. § 905 (U. S. Comp. St. 1901, p. 677) ; Trigg v. Conway, 
 Hempst. (U. S.) 538; Shown v. Barr, 11 Ired. (N. C.) 296; Pepin v. Lachen- 
 meyer, 45 N. Y. 27; Burnell v. "Weld;, 76 N. Y. 103; Brackett v. People, 64 111. 
 170; Washabaugh v. Bntriken, 34 Pa. St. 74; Hutchins v. Gerrish, 52 N. H. 
 205; "Westerman v. Sheppard, 52 Neb. 124, 71 N. W. 950. 
 
 88 Ferguson v. Harwood, 7 Cranch, 408; Duvall v. Ellis, 13 Mo. 203; Wil- 
 burn V. Hall, 16 Mo. 426; Andrews v. Flack, 88 Ala. 294, 6 So. 907. 
 
 88 Thomas v. Tanner, 6 T. B. Mon. (Ky.) 52. 
 
 70 Gavit V. Snowhill, 26 N. J. L. 76; Young v. Chandler, 13 B. Mon. (Ky.) 
 252; Weeks v. Downing, 30 Mich. 4. 
 
 71 Ducommun v. Hysinger, 14 111. 249; Linch v. McLemore, 15 Ala. 632; 
 Haynes v. Cowen, 15 Kan. 637; Lothrop v. Blake, 3 Pa. St. 483. 
 
798 THE LAW OP EVIDENCE. § 631 
 
 certificate of the clerk.''* If there are several certificates by the 
 clerk, the single certificate by the judge referring to the "fore- 
 going attestation," only authenticates the one last preceding; 
 and the other copies are not admissible.'* It is not necessary 
 under the federal statutes that the official character of the judge, 
 certifying the record, should be evidenced by the certificate of the 
 governor under the great seal of the state; nor that the clerk 
 of the court should certify under his hand and seal of office that 
 the certifying judge is duly commissioned and qualified to act.'* 
 
 § 630 (647). Same — Seal. — ^As will be seen from an examina- 
 tion of the act, the seal must be annexed, if there be one.'^ If the 
 court has no seal, that fact should be made to appear in one of 
 the certificates.'" A certificate by the clerk under his private seal, 
 if he certifies that the court has no seal, is sufficient, as the private 
 seal wiU be treated as mere surplusage ; and it has the same effect 
 as if no seal had been used." No statement is necessary that the 
 seal affixed is the seal of the court, as it is presumed to have been 
 attached by the proper officer." The seal should be affixed to the 
 record with the certificate of the clerk, and not to the certificate 
 of the judge; and if the seal of the court is annexed only to 
 the certificate of the judge, the record is insufficient.'" The record 
 has been held admissible, however, where the clerk certified that 
 he annexed his seal of office, instead of the seal of the court.'" 
 So it is sufficient, if an impression of the seal is made on the 
 paper, as the use of wax is not essential.*^ 
 
 § 631 (648). Returns of oflBcers — Not evidence of collateral 
 facts. — ^It is often necessary to use as evidence the official returns 
 of officers made in the discharge of their duty. It is their duty 
 under their oath of office to certify certain official facts, like the 
 
 72 Lewis V. Sutliff, 2 G. Greene (Iowa) 186. 
 
 73 Burnell v. Weld, 76 N. Y. 103. 
 
 74 Kinsley v. Rumbough, 96 N. C. 193. 
 
 76 Rev. Stat. U. S. § 905 (U. S. Comp. St. 1901, p 677) ; McFarlane v. 
 Harrington, 2 Bay (S. C.) 554; Allen v. Thaxter, 1 Blackf. (Ind.) 399. 
 
 70 Craig v. Brown, 1 Peters C. C, 352; Kirkland v. Smith, 2 Mart N. S. 
 (La.) 497. 
 
 77 Strode v. Churchill, 2 Litt. (Ky.) 75. 
 
 78 Ducommun y. Hysinger, 14 111. 249. 
 
 79 Rev. Stat. U. S., § 905 (U. S. Comp. St. 1901, p 677) ; Kirschner v. 
 State, 9 Wis. 140. 
 
 soMcLain v. Winchester, 17 Mo. 49; Clark v, Depew, 25 Pa. St. 509; 
 Coffee V. Neely, 2 Heisk. (Tenn.) 304, by statute, 
 w Hunt V. Hunt, 45 N. J. Bq. 360. 
 
§ 632 DOOtTMBNTAEY EVIDENCE. 799 
 
 service of process and similar acts ; and such returns are generally 
 received as evidence.*" It has already been stated that certificates 
 and returns made by officers, where no such certificate or return 
 is required by law, are not competent evidence.*' They are un- 
 official statements, and are mere hearsay, like the imsworn declara- 
 tions of a private individual.** On principles already discussed, 
 a certificate or return stating collateral facts, facts not required 
 by law to be stated, is not evidence as to such facts. Its effect 
 as evidence must be restricted to those facts concerning which 
 it was the duty of the officer to make return. Thus, the return 
 on an execution that the sheriff has paid to the plaintiff the money 
 collected is not evidence of that fact;*'' nor is it evidence of acts 
 beyond his territorial jurisdiction,*" or of any facts therein alleged 
 as excuse for failing to return the process or otherwise to do his 
 duty,*' or of other facts which the officer has no right to ascertain 
 or declare.** 
 
 § 632 (649). As between parties, the return cannot be collater- 
 ally attacked, — ^As between the parties or privies to the suit, the 
 general rule is that the return of the officer is conclusive. It is 
 open to no collateral attack, but, as beteween the parties, stands 
 as a verity, unless vacated or otherwise attacked by a direct pro- 
 ceeding.*" The same rule applies whether the return is upon in- 
 
 82 Cavendish v. Troy, 41 Vt. 99; Allen v. Gray, 11 Conn. 95; Browning v. 
 Hanford, 5 Den. 586; Boynton v. "Willard, 10 Pick. 166; Ferryman v. State, 
 8 Mo. 208. Parol evidence is not admissible to correct the return, Sanford 
 V. Edwards, 19 Mont. 56, 47 Pac. 212, 61 Am. St. Rep. 482; but such evi- 
 dence Is admissible to support It, Baham v. Stewart, 109 La. 999, 34 So. 54. 
 
 83 See § 543 supra. 
 
 84 Browning v. Hanford, 7 Hill, 120; 5 Den. 586. 
 
 8BCator v. Stakes, 1 Maule & S. 599; First v. Miller, 4 Bibb (Ky.) 311. 
 See also. Great West Mining Co. v. Woodmas Mining Co., 12 Colo. 46, 13 
 Am. St. Rep. 204. 
 
 88 Arnold v. Tourtellot, 13 Pick. 172. 
 
 8T Bruce v. Dyall, 5 T. B. Mon. (Ky.) 125. 
 
 88 Schloss V. Inman, 129 Ala. 424, 30 So. 667; People v. Lee, 128 Cal. 330, 
 60 Pac. 854. 
 
 89 Smith V. DeKock, 81 Iowa 535; Kirksey v. Bates, 1 Ala. 303; Newton 
 V. State Bank, 14 Ark. 9, 58 Am. Dec. 363; Egery v. Buchanan, 5 Cal. 53; 
 Tillman v. Davis, 28 Ga. 494, 73 Am. Dec. 786; Culley v. Shrink, 131 Ind. 76; 
 Rivard v. Gardner, 39 111. 125; Smith v. Hornback, 3 A. K. Marsh. (Ky.) 
 392; Hotchkiss v. Hunt, 56 Me. 252; Sawyer v. Harmon, 136 Mass. 414; 
 Frasier v. Williams, 15 Minn. 288; Heath v. Missouri Ry. Co., 83 Mo. 
 617; Bowles v. Bowen, 45 N. H. 124; Rice v. GofE, 58 Pa. St. 116; Cozine v. 
 Walter, 55 N. Y. 304; Phillips v. Elwell, 14 Ohio St. 240, 84 Am. Dec. 373; 
 
SOO THE LAW OF EVIDENCE. § 633 
 
 termediate or final process, or upon that by which the action is 
 commenced. The usual remedy for a party, if he would show 
 that the return is false, is by action against the officer for making 
 a false return. This is a direct attack upon the return, and the 
 plaintiff is not bound thereby."" The rule that the return cannot 
 be attacked collaterally by the parties applies, although proof is 
 offered that the officer has acted fraudulently.''^ But in a pro- 
 ceeding to vacate the judgment for want of service, evidence may 
 be received contradicting the return."^ It has been held that an 
 irregular or illegal return may be inquired into and impugned, 
 as where the sheriff, in violation of his duty, received a note and 
 returned an execution as satisfied."^ 
 
 § 633 (650) . Same — How far conclusive upon the officer — As to 
 strangers. — In general, the return is conclusive upon the officer. 
 He cannot be heard to gainsay the truth of his return made under 
 his oath of office."* But an officer may explain a return, if am- 
 
 Flaniken v. Neal, 67 Tex. 629; Wood v. Doane, 20 Vt. 612; Carr v. Commer- 
 cial Bank, 16 Wis. 50; Brown v. Kennedy, 15 Wall. 597; Freem. Bxns. sec. 
 364. Contra, Sanford v. Nichols, 14 Conn. 324; Grant v. Harris, 16 La. 
 An. 323; Jackson v. Jackson, 13 Ired. (N. C.) 159. 
 
 90 Chamberlin v. Brewer, 3 Bush (Ky.) 561; Andrew v. Parker, 6 Blackf. 
 (Ind.) 461; Brlggs v. Green, 33 Vt. 565; Campbell v. Webster, 15 Gray, 28; 
 Allen V. Martin, 10 Wend. 300, 25 Am. Dec. 564; Phillips v. El well, 14 Ohio 
 St. 240, 84 Am. Dec. 373. 
 
 »i Egery v. Buchanan, 5 Cal. 53; Higgs v. Huson, 8 Ga. 317; Smith v. 
 Noe, 30 Ind. 117; Angell v. Bowler, 3 R. I. 77; Love v. Smith, 4 Terg. 
 (Tenn.) 117; Ayres v. Duprey, 27 Tex. 593, 86 Am. Dec. 657. 
 
 92 Carr v. Commercial Bank, 16 Wis. 50; Knutson v. Davies, 51 Minn. 
 363; Crosbey v. Farmer, 39 Minn. 305. 
 
 93 Orange Co. Bank v. Wakeman, 1 Cow. 46; Mumford v. Armstrong, 
 4 Cow. 553; Armstrong v. Garrow, 6 Cow. 465. 
 
 94Purrington v. Loring, 7 Mass. 388; Townsend v. Olin, 5 Wend. 207; 
 Denton v. Livingston, 9 Johns. 96, 6 Am. Dec. 264; Harvey v. Foster, 64 Cal. 
 296; Scott v. Seiler, 5 Watts (Pa.) 235; Walters v. Moore, 90 N. C. 41; 
 Williams v. Cheesebrough, 4 Conn. 356; Cowan v. Wheeler, 31 Me. 439; 
 Martin v. Barney, 20 Ala. 369; Planters' Bank v. Walker, 11 Miss. 409; 
 Pratt V. Phillips, 1 Sneed (Tenn.) 543, 60 Am. Dec. 162. The sheriff 
 cannot be heard to prove that the amount of Eioney collected was less 
 than the amount stated In the return, although the act was that of his 
 deputy, Sheldon v. Payne, 7 N. Y. 453; Gardner v. Hosmer, 6 Mass. 325; 
 nor can he deny that an arrest was made at the time stated In the return, 
 Shewel v. Fell, 3 Yeates (Pa.) 17; nor can he prove that he did not in 
 fact sell land returned as sold, Shewel v. Fell, 3 Yeates (Pa.) 17; nor 
 that there were no goods, where he has made return of the levy, Barney 
 V. Weeks, 4 Vt. 146. 
 
§ 633 DOCUMBNTAEY EVIDENCE. 801 
 
 biguous or indefinite."" He may also prove facts not inconsistent 
 vrith his return, as that the plaintiff, being the purchaser at the 
 sale, paid his bid by crediting the amount on the execution."" 
 So where an officer is sued for not making a levy, he may shovsr 
 that the property was not the debtor's, although he has made a 
 return designating the property as belonging to the debtor."'' 
 Nor is the return of the officer conclusive, as against him, as to 
 those statements which clearly relate to matters of opinion, for 
 example, as to value."* On the same principle, it was held that 
 an officer was not bound by the statement that a levy was made 
 at a given hour of the day."" The general rule is that an officer 
 may use his -return in his own favor, but in such case, it is only 
 prima facie evidence of its truthfulness, and may be shovra to be 
 incorrect by any competent testimony.^ Thus, if the officer brings 
 an action against one who has interfered with the goods after 
 his levy, his return is prima facie evidence of the levy.^ As be- 
 tween strangers to the suit, the general rule is that the return 
 of the officer, as to those matters which the law requires him to 
 certify, is prima facie evidence, but not conclusive.* Generally 
 strangers, who have no right of action against the officer for 
 a false return or no standing in court against a proceeding to 
 amend or set aside the return, may contradict the matters alleged 
 therein.* Thus, although the return states that the property 
 
 85 Atkinson v. Cummins, 9 How. 479 ; Chamberlain v. Brewer, 3 Bush. 
 (Ky.) 561; Susquehannah Boom Co. v. Finney, 58 Pa. St. 200. 
 
 68 Evans V. Davis, 3 B. Mon. (Ky.) 344. 
 
 07 Fuller v. Holden, 4 Mass. 498; Learned v. Bryant, 13 Mass. 224; Tyler 
 V. Ulmer, 12 Mass. 163;' Whiting v. Bradley, 2 N. H. 83. 
 
 88 Williams v. Cheesebrough, 4 Conn. 356; Denton v. Livingston, 9 
 Johns. 96. 
 
 »» Williams v. Cheesebrough, 4 Conn. 356. 
 
 1 Sanbom v. Baker, 1 Allen, 526; Baylor v. Scott, 2 Port (Ala.) 315; 
 Smith v. Emerson, 43 Pa. St. 456; Barrett v. Copeland, 18 Vt. 67, 44 Am. 
 Dec. 362; Splahn v. Gillespie, 48 Ind. 397. 
 
 2 Cornell v. Cook, 7 Cow. 310; Loftin v. Huggins, 2 Dev. (N. C.) 10; 
 Stanton v. Hodges, 6 Vt. 604; Lowry v. Cady, 4 Vt. 504, 24 Am. Dec. 628; 
 Earl V. Camp, 16 Wend. 562. 
 
 s Allen V. Gray, 11 Conn. 95; Bott v. Burnell, 9 Mass. 96; Tullis v. Braw- 
 ley, 3 Minn. 277; Crow v. Hudson, 21 Ala. 560; Kingsbury v. Buchan, 11 
 Iowa, 387; Tucker v. Bond, 23 Ark. 268; Hathaway v. Goodrich, 5 Vt. 65; 
 Cornell v. Cook, 7 Cow. 310; Browning v. Hanford, 7 Hill, 120; Butler v. 
 State, 20 Ind. 169. 
 
 * Bott V. Burnell, 9 Mass. 96; Caldwell v. Harlan, 3 T. B. Mon. (Ky.) 
 349. 
 
 51 
 
802 THE lAW OP EVIDENCE. § 633 
 
 levied on by execution is the property of the judgment debtor, 
 a third person who is the real owner is not bound thereby." Other 
 persons may, however, sustain such relations of privity to the 
 parties as to be concluded by the return. This has been most 
 frequently illustrated in actions against sureties or those who 
 have given bail, as such persons may be deemed to be in privity 
 with those as to whose acts they have given indemnity ;' and such 
 persons may bring their actions for false return.'' "Eetums of 
 officers are usually conclusive as a protection in favor of third 
 persons who are bound to act upon them, and have no other evi- 
 dence furnished them of their authority." * 
 
 s Whiting V. Bradley, 2 N. H. 79. 
 
 eCozine v. Walter, 55 N. Y. 304; Boomer v. Lane, 10 Wend. 525; Bean 
 V. Parker, 17 Mass. 591. 
 
 7 Cozine v. Walter, 55 N. Y. 304; Whitaker v. Sumner, 7 Pick. 551, 19 Am. 
 Dec. 298. 
 
 8 2 Cowen & Hill's Notes to Phlll. Ev. 797; Thayer v. Stearns, 1 Pick 109; 
 Saxton T. Nimms, 14 Mass. 320. 
 
CHAPTER 18, 
 
 DEPOSITIONS. 
 
 634. Depositions not admissible at common law. 
 
 635. Depositions received in chancery practice — To perpetuate testi- 
 
 mony^ — De bene esse. 
 
 636. Depositions under statutes — On commission — De bene esse. 
 
 DEPOSITIONS IN PEDEEAL COtTETS. 
 
 637. Depositions de bene esse in the federal courts. ' 
 
 638. Whose depositions may be takeil under federal statutes. 
 
 639. Before whom depositions may be taken — The notice. 
 
 640. The notice — Time of giving. 
 
 641. Same — ^Names of witnesses — Of the court and officer. 
 
 642. Service of the notice. 
 
 643. Mlode of taking. 
 
 644. The certificate. 
 
 645. Waiver of objections. 
 
 646. Same — Objections — ^When made. 
 
 647. Depositions dedimus potestatem. 
 
 648. Procedure in obtaining the commission. 
 
 649. Meaning of the statutory words "common usage." 
 
 650. Control over depositions. 
 
 651. Several commissioners may act — Taking the oath. 
 
 652. Miscellaneous. 
 
 653. Compelling attendance and production of papers. 
 
 654. Depositions in equity trials. 
 
 655. Evidence to be taken by commissioners, masters, etc. — ^Whether 
 
 relevant or not. 
 
 DEPOSITIONS IN STATE COtJBTS. 
 
 656. Depositions under state statutes — General mode of taking. 
 
 657. Same, continued. 
 
 658. Statutes to be complied with. 
 
 659. How compliance with the statute Is to appear. 
 
 660. Same, continued. 
 
 661. Notice of taking — Time. 
 
 662. Same — Names of witnesses, officer, etc. 
 
 663. Notice — On whom served. 
 
 664. Same — Place of taking. 
 
 665. Mode of taking — Reducing to writing. 
 
 666. Interpreters. 
 
 667. Persons competent to take depositions. 
 
 668. Comity between states. 
 
 669. Mode of taking and returning depositions, 
 
 670. Irregularities — As to names, etc. 
 
S04 THE LAW OF EVIDENCE. § 634 
 
 § 671. Waiver of objections. 
 
 672. Same — Objections to tbe authority of commissioner. 
 
 673. When objections are to be made. 
 
 674. Mere general objections. 
 
 675. Renewal of objections — ^Waiver. 
 
 676. Objections to the substance— When made. 
 
 677. Statutory provisions as to objections. 
 
 678. Depositions not admissible unless cause therefor contlnuea. 
 
 679. Same — Modifications of the rule — Statutes. 
 
 680. Continuance of the cause— How Inferred. 
 
 681. Use in other actions. 
 
 682. Use of depositions on second trial. 
 
 683. Issues and parties to be substantially the same. 
 
 684. Control and use of depositions. 
 
 685. Use of portions of depositions. 
 
 686. Suppression of depositions. 
 
 687. Grounds for suppression. 
 
 688. Same — Where party Is deprived of right of cross-examination. 
 
 689. Same — ^Refusal of witness to answer. 
 
 690. Suppression for non-compliance with statute — Irregularities. 
 
 691. Suppression of parts of deposition. 
 
 692. Same — Miscellaneous. 
 
 693. Amendments. 
 
 694. The certificate. 
 
 695. The caption. 
 
 696. Adjournments. 
 
 697. Presence of party when deposition is taken on commission. 
 
 698. Retaking depositions. 
 
 699. Exhibits to depositions. 
 
 700. Depositions taken In foreign countries. 
 
 701. Depositions, to perpetuate testimony. 
 
 § 634 (651), Depositions not admissible at common law. — The 
 
 early common law courts seem to have regarded it as a sanction 
 of the highest importance that witnesses shoiild testify in open 
 court in the presence of the judge and jury, and in so public 
 a manner that the demeanor and conduct of the witness could be 
 subjected to public scrutiny. So jealously did the common law 
 judges insist upon these tests, that it was not their practice to 
 receive depositions in evidence. It is true that the courts of 
 common law sometimes used indirect means to coerce a party into 
 a consent to the examination, under a commission, of witnesses 
 who were absent in foreign countries. "These means of coercion 
 were various, such as putting off the trial or refusing to enter 
 judgment, as in case of nonsuit, if the defendant was the recusant 
 party, or by a stay of proceedings till the party applying for the 
 commission could have recourse to a court of equity by instituting 
 
§ 635 DEPOSITIONS. 805 
 
 a new suit there, auxiliary to the suit at law. But subsequently 
 the learned judges appear not to have been satisfied that it was 
 proper for them to compel a party, by indirect means, to do that 
 which they had no authority to compel him to do directly; and 
 they accordingly refused to put off a trial for that purpose. This 
 inconvenience was therefore remedied by statutes which provided 
 that in all cases in the absence of witnesses, whether by sickness, 
 or traveling out of the jurisdiction, or residence abroad, the courts, 
 in their discretion for the due administration of justice, may cause 
 the witnesses to be examined under a commission issued for that 
 purpose." ^ In the act of congress to establish the judicial courts 
 of the United States, passed in 1789, liberal provision was made 
 for taking depositions in the federal courts." In the various states 
 a similar policy has been pursued and the courts generally recog- 
 nize the necessity of encouraging a method of securing testimony 
 which, under a government consisting of many states widely 
 separated and having independent jurisdiction, has become indis- 
 pensable to the administration of justice. Hence it will be found 
 that in this country the right to use depositions as evidence, under 
 prescribed conditions, belongs to the inferior courts as well as to 
 those of general jurisdiction. 
 
 § 635 (652). Depositions received in chancery practice — To 
 perpetuate testimony — De bene esse. — Under the more liberal pro- 
 cedure of the courts of chancery, the idea was not tolerated that 
 no definite means should be provided for obtaining the testimony 
 of witnesses who could not be produced at the trial; and, from 
 an early period, those courts exercised the jurisdiction of taking 
 the testimony of absent or infirm witnesses. One mode of exercis- 
 ing this jurisdiction was to take depositions to perpetuate testi- 
 mony, in perpetuam rei memoriam. This practice was allowed in 
 cases where litigation or controversy was expected, but not com- 
 menced; and where there was danger that the testimony of a 
 material witness would be lost by reason of his death or departure 
 from the country. In a hill to perpetuate testimony, the sole re- 
 lief prayed for was the preservation of the evidence in question. 
 Hence, after the examination of the witness, the suit terminated 
 
 11 Greenl. Ev. § 320. A very elaborate discussion of the many Eng- 
 lish statutes on the subject will be found in Taylor on Evidence (10th 
 Ed.) chap. 5, vol. 1, and chap. 1, part 3, vol. 2. 
 
 2 U. S. Stat. 24 Sept. 1789, ch. 20, § 30, vol. 1, p. 88. See §§ 636 et seq. 
 infra. 
 
806 THE liAW OF EVIDBaJCE. § 636 
 
 and the evidence so taken was held for use after the death of 
 the person examined or his inability to attend the trial, in case 
 the contingency for such use should arise. The courts of chancery 
 also supplied the defects of practice in the common law courts by 
 entertaining jurisdiction to obtain depositions of another class, 
 that is, by bUls to take testimony de bene esse. Bills of this char- 
 acter, like those to perpetuate testimony, were auxiliary to pro- 
 ceedings in the courts of law, and were designed to preserve for 
 use testimony of witnesses which might otherwise be lost by 
 reason of death or absence. Although there were other points 
 of difference between the two forms of procedure, the most im- 
 portant distinction was that the bill to perpetuate testimony could 
 be maintained only where no present suit could be brought at law 
 by the moving party, while bills to take testimony de iene esse 
 were only proper in aid of a suit already commenced.' 
 
 § 636 (653). Depositions under statutes — On commission — ^De 
 bene esse. — ^Both in England and in the United States, statutes 
 have been quite generally enacted remedying the defects of the 
 common-law procedure in respect to taking testimony by deposi- 
 tions. In the United States, the two kinds of depositions in most 
 common use are known as depositions de bene esse and those taken 
 by virtue of a commission, generally called dedimus potestatem. 
 Depositions de bene esse are generally taken on verbal interroga- 
 tories to the witness, on such notice to the adverse party as is 
 required by the statutes, before officers authorized to take deposi- 
 tions. No order of court is necessary for their taking.* In re- 
 spect to depositions taken pursuant to a commission or dedimus, 
 more formalities are required. The party desiring to take the 
 deposition applies to the court in which the action is pending 
 for a commission to the person who is expected to take the testi- 
 mony. The moving party is also required to prepare and serve 
 written interrogatories upon the attorney of the adverse party, 
 which, with the cross-interrogatories, if any are proposed, are filed 
 with the clerk of the court before the commission is issued. After 
 the person named as commissioner receives the commission with 
 the interrogatories, he propounds to the witness the direct and 
 
 » Angell V. Angell, 1 Sim. & St. 83; Phillips v. Carew, 1 P. Wms. 117. 
 
 «Pettlbone v. Derringer, 4 Wash. (U. S.) 215; Buckingham v. Burgess, 
 3 McLean (U. S.) 368. See also. Walker v. Parker, 5 Cranch C. C. 639. 
 For a general discussion of the rules of practice relating to depositions, 
 see an article by H. Campbell Black, 25 Cent. L. Jour. 581, 
 
§ 637 DEPOSITIONS, SQ7 
 
 cross-interrogatories, and, after the commission is executed, re- 
 turns the deposition to the court in which the action is pending. 
 It will be seen that these two modes of taking depositions are 
 entirely distinct, and rest upon wholly different statutory pro- 
 visions; and depositions taken under a dedimus potestatem are, 
 under no circumstances, to be considered as taken de hene esse.'^ 
 § 637 (654). Depositions de bene esse in the federal courts. — 
 By the present federal statute, "the testimony of any witness may 
 be taken in any civil cause depending in a district or circuit court 
 by deposition de bene esse, when the witness lives at a greater 
 distance from the place of trial than one hundred miles, or is 
 bound on a voyage to sea, or is about to go out of the United 
 States or out of the district in which the case is to be tried and 
 to a greater distance than one hundred miles from the place of 
 trial, before the time of trial, or when he is ancient and infirm. 
 The deposition may be taken before any judge of any court of 
 the United States, or any commissioner of a circuit court, or any 
 clerk of a district or circuit court, or any chancellor, justice or 
 judge of a supreme or a superior court, mayor or chief magistrate 
 of a city, judge of a county court or court of common pleas of any 
 of the United States, or any notary public, not being of counsel 
 or attorney to either of the parties nor interested in the event of 
 the cause. Seasonable notice must first be given in writing by 
 the party or his attorney, proposing to take such deposition, to 
 the opposite party or his attorney of record, as either may be 
 nearest, which notice shall state the name of the witness and 
 the time and place of the taking of his deposition ; and in all 
 cases in rem, the person having the agency or possession of the 
 property at the time of seizure shall be deemed the adverse party, 
 until a claim shall have been put in ; and whenever, by reason of 
 the absence from the district and want of an attorney of record 
 or other reason, the giving of the notice herein required shall be 
 impracticable, it shall be lawful to take such depositions, as there 
 shall be urgent necessity for taking, upon such notice as any 
 judge authorized to hold courts in such circuit or district shall 
 think reasonable, and direct. Any person may be compelled to 
 appear and depose as provided by this section in the same manner 
 as witnesses may be compelled to appear and testify in court."* 
 
 B Sergeant v. Blddle, 4 Wheat. 508. 
 
 •Rev. Stat. TJ. S. § 863 (U. S. Comp. Stat. 1901, p. 661); Shutte y. 
 Thompson, 15 "Wall. 151. See note, 13 Fed. 839, 
 
808 THE LAW OF EVIDENCE. § 638 
 
 § 638 (655). Whose depositions may be taken under federal 
 
 statute. — The statute quoted in the last section is to be construed 
 in connection with section 865 which provides that, "unless it 
 appears to the satisfaction of the court that the witness is then 
 dead, or gone out of the United States or to .a greater distance 
 than one hundred miles from the place where the coiu^t is sitting, 
 or that, by reason of age, sickness, bodily infirmity or imprison- 
 ment, he is unable to travel and appear at court, such deposition 
 shall not be used in the cause.'" Accordingly it has been held 
 that, if a witness lived more than one hundred miles away, when 
 his deposition was taken, it will be presumed that he continued to 
 live there at the time of the trial; and no further proof on that 
 subject need be furnished by the party offering the deposition, 
 unless this presumption shall be overcome by proof from the other 
 side. But if it be overcome, and the party has knowledge of his 
 power to get the witness in time to enable him to secure his 
 attendance at the trial, he must do so, or the deposition wiU be 
 excluded.' It was held in an early case that the fact that a per- 
 son was a seaman on board a gun boat, and liable to be ordered 
 to some other place, and not to be able to attend the trial was 
 not a legal cause for taking his deposition. ° If the witness resides 
 more than one hundred miles from the place of trial, it is im- 
 material whether he resides within or outside the judicial dis- 
 , trict,'" or whether his residence there is permanent or temporary.^^ 
 A witness is not incompetent to testify in court because he lives 
 more than one hundred miles from the place of trial, in other 
 words, the taking of the deposition on that ground is not com- 
 pulsory; and, if the exigencies of the case require that witnesses 
 living more than one hundred miles away should testify, they 
 may appear and testify in court, if willing to come.^" The certifi- 
 cate of the magistrate who takes the deposition that the witness 
 
 7 Rev. Stat U. S., § 865 (TJ. S. Coinp. St. 1901, p. 663). 
 
 8 Whitford v. Clark Co., 119 U. S. 522, where the witness was In court 
 ready to testify; Texas & P. Ry. Co. v. Reagan, 118 Fed. 815. See U. S. Ins. 
 Co. V. Ross, 102 Fed. 722, where deposition was properly taken In State 
 Court and removed to Federal Court when witness died. In Texas & P. 
 Ry. Co. V. Wilder, 92 Fed. 593 such evidence was rejected, the witness 
 being still alive and living within 100 miles. 
 
 8 The Samuel, 1 Wheat. 9. 
 
 loPatapsco Ins. Co. v. Southgate, 5 Peters, 604. 
 
 "Mutual Ben. L. Ins. Co. v. Robison, 58 Fed. 723. 
 
 "Prouty V. Draper, 2 Story (U. S.) 199. 
 
§ 640 DEPOSITIONS. 809 
 
 resides more than one hundred miles from the place of trial is 
 prima facie evidence of that f act.^' But it must affirmatively ap- 
 pear that the witness resides more than one hundred miles from 
 the place of trial.^* The distance is not measured by mathemati- 
 cal lines but by the usual and shortest route of travel. '^'' Under 
 the present statutes, the depositions of parties, as weU as those 
 of other witnesses, may be taken under this statute; and if the 
 first deposition is not satisfactory, another may be taken without 
 any order of the court.^" This statute does not apply to testimony 
 taken in a foreign country.^' 
 
 § 639 (656). Before whom depositions may be taken — The no- 
 tice. — The statutes already quoted sufficiently state the persons 
 before whom the deposition may be taken. For example where 
 there was notice to the effect that the deposition would be taken 
 before a notary public, naming him, or some other officer au- 
 thorized by law to take depositions and the deposition was, in fact, 
 taken before another notary, authorized to take depositions in 
 such cases, it was held in the supreme court of the United States 
 that an objection to the deposition on this ground was without 
 merit. ^* The notice should show that cause exists for taking the 
 deposition, so that the adverse party may know whether to attend. 
 Thus, where a notice stated only that the witness was about to 
 leave the state, but did not state that he was bound on a voyage 
 to sea, or to leave the United States, or to go one hundred miles 
 from the place of trial, it was held insufficient.^' The notice must 
 be in writing, and must state the time and place of taking the 
 deposition.'" 
 
 § 640 (657). The notice — Time of giving. — It will be observed 
 that, unlike most statutes relating to depositions, this one pre- 
 scribes no definite rule as to the time when notice shall be given. 
 
 I'Patapsco Ins. Co. v. Southgate, 5 Peters, 604; Bell v. Morrison, 1 
 Peters, 351. 
 
 i4Dunkle v. Worcester, 5 Blss. (TJ. S.) 102; Curtis v. Central Ry., 6 
 McLean (U. S.) 401. 
 
 15 Jennings v. Menaugh, 118 Fed. 612. 
 
 i«Cornett v. Williams, 20 Wall. 226; Lowery v..Kusworm, 66 Fed. 539. 
 
 17 The Alexandria, 104 Fed. 904. 
 
 18 Gormley v. Bunyan, 138 U. S. 623. 
 
 i» Harris v. Wall, 7 How. 693. But see, Debutts v. McCulloch, 1 Cranch 
 C. 0. 286. 
 
 soDunlop T. Munroe, 1 Cranch C. C. 536; Rev. Stat. U. S. § 863 (TJ. S. 
 Comp. St. 1901, p. 661), quoted § 637 supra. 
 
810 THE LAW OF EVIDENCE. § 641 
 
 The notice must he " reasonable ;"^^ but in determining whether 
 the notice has been reasonable, within the meaning of the statute, 
 the circumstances of each case must be considered, and much must 
 be left to the discretion of the court.^^ If there is no necessity 
 for a short notice, the deposition may be properly excluded.^' 
 But under peculiar circumstances, an hour's notice of the time 
 and place may be reasonable.^* In a state court, where a similar 
 statute has been construed, it has been held that such notice 
 should be given as would, not only enable the party to be present, 
 but also such as would enable him to procure the attendance of his 
 counseU^ The notice is not sufficient, if it is served on counsel 
 who cannot attend to the taking of the deposition, without being 
 absent either from the term of court at which the action is for 
 trial, or from the commencement of the term.^° It is not the 
 meaning of the section that a party might be able to compel his 
 adversary at great cost to retain and instruct numerous counsel 
 in different places, and it might be important for counsel to be 
 personally present.^' Where the notice specifies the time and 
 place, and states that the taking will be adjourned from day to 
 day until completed, this is sufficient notice of the taking on 
 succeeding days, when the examination is not completed on the 
 first day. This rule was applied in a case where part of the 
 witnesses were examined on the first day in the presence of the 
 opposite party and his counsel, but on a succeeding day, to which 
 the hearing was adjourned, they were absent.^* 
 
 § 641 (658). Same — Names of witnesses — Of the court and 
 officer. — Though the notice must be so definite and certain as to 
 the time, place and names of witnesses, as to give the adversary 
 an opportunity to attend and cross-examine the witnesses,'" yet 
 
 21 See statutes quoted supra. 
 
 22 Union Pac. Ry. Co. v. Reese, 56 Fed. 288. 
 
 23 Jamieson v. Willis, 1 Cranch C. C. 566; Renner v. Howland, 2 Cranch 
 C. C. 441; Barrel! v. Simonton, 3 Cranch C. C. 681. 
 
 2* Leiper v. Blckley, 1 Cranch C. C. 29. As to one day's notice, see, 
 Bowie V. Talbot, 1 Cranch C. C. 247; Atkinson v. Glenn, 4 Cranch C. 0. 
 134. 
 
 20 Klmpton v. Glover, 41 Vt. 283. See § 657 infra. 
 
 26 Bell V. Nimmon, 4 McLean (U. S.) 539; Allen v. Blunt, 2 Wood. & M. 
 (U. S.) 121. 
 
 2T TJhle V. Burnham, 44 Fed. 729, where It was held that, though counsel 
 appear and cross-examine witness, the objection Is not waived. 
 
 28 Knode v. Williamson, 17 Wall. 586. 
 
 2»Knode v. Williamson, 17 Wall. 586, defects as to date and place. 
 
§ 642 DEPOSITIONS. 811 
 
 a notice giving the surnames of the witnesses may be sufficient, 
 where the Christian names are unknown.^" The deposition should 
 not be rejected on account of technical defects in the notice as to 
 the name of the court in which the action is pending, when it is 
 obvious that there could be no mistake on the part of the other 
 party with reference to the case to which the notice applies.'^ 
 Nor is it any objection that the deposition is taken before another 
 than the one named in the notice, when the notice contains the 
 words, "or before some officer authorized by law to take deposi- 
 tions ; " '^ and where a notice has been served, but not in compli- 
 ance with the statute, the informalities are wadved, if the adverse 
 party appears by counsel and cross-examines the witness.'* 
 
 § 642 (659). Service of the notice. — It is provided by- the stat- 
 ute that the notice shall be given "by the party or his attorney 
 proposing to take such deposition.'"*" The notice may be served 
 by a"ny person, even a party to the suit. The statute has been 
 so construed as to require^ a personal service of the notice,'" and 
 that the notice must be served upon the attorney of the opposite 
 party." It will be observed, however, that, by the statute when 
 the giving of the usual notice is impracticable, bj' reason of the 
 absence from the district and the want of an attorney of record, 
 or other reason, "it shall be lawful to take such depositions as 
 there shall be urgent necessity for taking, upon such notice as any 
 judge authorized to hold courts in such circuit or district shall 
 thiak reasonable, and direct. ' ' " When the statute was originally 
 enacted, it permitted ex parte depositions to be taken without 
 
 sociaxton v. Adams, 1 McArth. (D. C.) 496. See also, Carrlngrton v. 
 Stimson, 1 Curt. (U. S.) 437. 
 
 SI Gonnley v. Bunyan, 138 U. S. 623. See § 670 infra. 
 
 82Gonnley v. Bunyan, 138 U. S. 623. 
 
 ssDinsmore v. Maroney, 4 Blatch. (U. S.) 416. The same Is true where 
 the deposition is taken at another place than that stated in the notice, but 
 in the presence of the parties, Gartside Coal Co. v. Maxwell, 20 Fed. 187. 
 See §§ 671 es seq. infra. 
 
 34 Rev. Stat. V. S. § 863 (U. S. Comp. St. 1901, p. 661), quoted § 637 sv,pra. 
 See also. Young v. Davidson, 5 Cranch C. C. 515. 
 
 ssBuddicum v. Kirk, 3 Cranch, 293; Carrington v. Stimson, 1 Curt. (U. 
 S.) 437. Copy left at the lodgings of defendant held insufficient, Hill v. 
 Narwell, 3 McLean (IT. S.) 583. 
 
 88 Lelper v. Bickley, 1 Cranch C. C. 29 ; Barrell v. Simonton, 4 Cranch 
 C. C. 70. If the United States is a party, service must be on the United 
 States district attorney. The Argo, 2 Gall. (U, S.) 314. 
 
 87 Rev. Stat. U. S. § 863 (U. S. Comp. St. 1901, p. 661), quoted § 637«ttpra. 
 
812 THE LAW OP EVIDENCE. § 643 
 
 notice, where the adverse party resided more than a hundred 
 miles from the place of trial.^* But even during the existence 
 of this statute, the practice was discouraged by the courts as con- 
 trary to the course of the common law, and as calculated to elicit 
 only a partial statement of the truth. ^° 
 
 § 643 (660). Mode of taking.— The federal statute provides that 
 "every person deposing, as provided in the preceding section, shall 
 be cautioned and sworn to testify to the whole truth, and care- 
 fidly examined. His testimony shall be reduced to writing by 
 the magistrate taking the deposition, or by himself in the magis- 
 trate's presence, and by no other person, and shall after it has 
 been reduced to writing, be subscribed by the deponent."*" In 
 the absence of any facts showing waiver of these statutory re- 
 quirements, they must, of course be observed. The witness should 
 be sworn to testify to the whole truth on the entire subject matter 
 of the deposition and not merely the whole truth in response to 
 each interrogatory.*^ It is sufficient, if it appears that the wit- 
 ness was properly sworn, and further "caution" to the witness 
 is unnecessary.*^ On this point, if the certificate of the officer 
 states that the witness was cautioned and sworn, it is sufficient.*' 
 The witness may be sworn before or after his deposition has been 
 reduced to writing.** Each material interrogatory must be sub- 
 stantially answered, and the failure to answer invalidates the 
 deposition.*'* It has been frequently held that pursuant to later 
 statutes the procedure adopted in the state where the court is held 
 may be followed.*' 
 
 us Judiciary act 1789 § 30. 
 89 Walsh V. Rogers, 13 How. 283, 287. 
 
 «Rev. Stat. U. S. § 864 (U. S. Comp. St. 1901, p. 663), Moller v. United 
 States, 57 Fed. 490. 
 
 41 Wilson Sewing Machine Co. v. Jackson, 1 Hughes (U. S.) 295; Pendle- 
 ton V. Forbes, 1 Cranch C. C. 507; Garrett v. Woodward, 2 Cranch C. C. 
 190; Rainer v. Haines, Rempst. (U. S.) 689. 
 
 42 Moore v. Nelson, 3 McLean (U. S.) 383; Brown v. Batt, 2 Cranoh'C. C. 
 253. 
 
 48 Edmonson v. Barrell, 2 Cranch C. C. 228. 
 
 44 Tooker v. Thompson, 3 McLean (U. S.) 92. 
 
 40 Ketland v. Bissett, 1 Wash. (U. S.) 144. But see, Bell v. Davidson, 3 
 Wash. (U. S.) 328. 
 
 4« Carrara Paint Agency Co. v. Carrara Paint Co., 137 Fed. 319; Magone 
 V. Colorado S. & M. Co., 135 Fed. 846; International Tooth Crown Co. v. 
 Carter, 112 Fed. 396. 
 
§ 644 DEPOSITIONS. 813 
 
 § 644 (661, 662). The certificate. — In several eases it has been 
 held fatal to the deposition that the certificate failed to state 
 either that the testimony had been reduced to writing by the 
 magistrate taking the deposition, or by the witness in the presence 
 of the magistrate.^' The deposition must in all cases be subscribed 
 by the deponent.*^ It will not be presumed that the officer taking 
 the deposition is of counsel in the case or interested in the result; 
 and it is not necessary that the certificate should contain any 
 statement upon that subject.*' On this point, however, there is 
 a conflict of opinion; and in several later cases, it is maintained 
 that it should affirmatively appear on the face of the certificate 
 that the officer is one authorized by the statute to take deposi- 
 tions."" In another ease, the notary certified that he was not an 
 attorney for either party, but did not state that he was not inter- 
 ested; it appeared that the testimony was taken in shorthand by 
 a disinterested person; and it was held that the deposition was 
 admissible."^ The statute requires that depositions de bene esse 
 be retained by the magistrate until delivered by his own hand 
 into the court for which it is taken; or that it shall, together 
 with a certificate of the reasons for taking it and the notice, if 
 any, given to the adverse party, be sealed up by the magistrate 
 and directed to such court, and remain under his seal until opened 
 in court."^ Since the officer's authority to take depositions is 
 special and confined to certain limits, the facts calling for the 
 
 *7Cook V. Burnley, 11 Wall. 659; Bell v. Morrison, 1 Peters, 351; Ed- 
 monson V. Barren, 2 Cranch C. C. 228. If the deposition Is in the writing 
 of the magistrate, it need not be certified to have been written in the 
 presence of the witness, Van Nesse v. Heinike, 2 Cranch C. C. 259; Vasse 
 V. Smith, 2 Cranch C. C. 31. As to certificates in the state courts, see 
 § 694 infra. 
 
 48 Thorpe v. Simmons, 2 Cranch C. C. 195. , 
 
 *9 Miller V. Young, 2 Cranch C. C. 53; Peyton v. Veitch, 2 Cranch C. C. 
 123. 
 
 soGartside v. Maxwell, 20 Fed. 187; Donahue v. Roberts, 19 Fed. 863. 
 A statement by the notary that he is "not of counsel nor interested in 
 any manner whatever in this cause," held sufficient, American, etc. Bank 
 V. First Nat. Bank, 82 Fed. 961. 
 
 51 Stewart v. Townsend, 41 Fed. 121. 
 
 62 Rev. Stat. U. S. § 865 (U. S. Comp. Stat. 1901, p. 663). If the deposi- 
 tion is opened out of court, without the consent of the other party, it 
 should not be received, Beale v. Thompson, 8 Cranch, 70. Such consent 
 should be written. The Roscius, 1 Brown, Adm. (U. S.) 442. 
 
il4 THE LAW OF EVIDENCB. § 645 
 
 exercise of such jurisdiction should appear upon the face of the 
 depositions^ Hence, it has been held that, if no sufficient reason 
 is stated in the deposition or notice attached, it should not be 
 read,^* and that the names of the parties to the suit should be 
 given ;■*" but it is not necessary to state the names of all the parties, 
 if there are several.'"' The place of taking the deposition should 
 be stated in the cei'tifieate.^'' The distance from the place of 
 trial need not be stated, if the distance is in fact, and well 
 known by all parties to be, more than one hundred miles."' The 
 deposition is not necessarily to be rejected merely because the 
 names are not correctly given in some portion of the deposition, or 
 because the names of all the parties to the action are not stated ; ^^ 
 nor because the notice is not attached to the deposition.^" The 
 certificate is prima facie evidence of the facts necessary and proper 
 to be stated by it."' 
 
 § 645(663). Waiver of objections.— Although it is the un- 
 doubted rule that the statutory provisions already referred to 
 must be substantially complied with, in order that the deposition 
 
 53 Harris v. Wall, 7 How. 693. 
 
 04 Harris v. Wall, 7 How. 693. 
 
 05 Peyton v. Veitch, 2 Cranoh C. C. 123; Centre v. Keene, 2 Cranch C. C. 
 198; Smith v. Coleman, 2 Crancli, 237; Allen v. Blunt, 2 Wood. & M. 
 (U. S.) 131; Buckingham v. Burgess, 3 McLean (U. S.) 368. 
 
 68 Egbert v. Citizens' Ins. Co., 7 Fed. 47. 
 
 67 Tooker v. Thompson, 3 McLean (U. S.) 92. 
 
 68 Egbert v. Citizens' Ins. Co., 7 Fed. 47. 
 
 69 Voce V. Lawrence, 4 McLean (U. S.) 203; Pannlll v. Eliason, 3 Cranch 
 C. C. 358. See § 670 infra. 
 
 60 Stewart v. Townsend, 41 Fed. 121. 
 
 «i Bell V. Morrison, 1 Peters, 351. As that the witness affirmed, on ac- 
 count of conscientious scruples about taking the oath, Elliott v. Hayman, 
 2 Cranch C. C. 678; Wilson Co. v. Jackson, 1 Hughes (U. S.) 295; or that 
 the deposition was reduced to writing by the magistrate or witness, Bus- 
 so rd V. Catalino, 2 Cranch C. C. 421; or that the witness lives more than 
 one hundred miles from the place of trial, Patapsco Ins. Co. v. Southgate, 
 5 Peters, 604; Merrill v. Dawson, Hempst. (U. S.) 563; Tooker v. Thomp- 
 son, 3 McLean (U. S.) 92; or that the person taking the deposition holds 
 the office he assumes to hold, Vasse v. Smith, 2 Cranch C. C. 31; Price v. 
 Morris, 5 McLean (XJ. S.) 4; Ruggles v. Bucknow, 1 Paine (U. S.) 358. 
 This fact may also be proved by parol, Dunlop v. Monroe, 1 Cranch C. C. 
 536; Paul v. Lowry, 2 Cranch C. C. 628. If the officer has an official seal, 
 It should be attached, Paul v. Lowry, 2 Cranch C. C. 628. The certificate 
 need not state that the officer taking It has retained It until mailing, 
 Stewart v. Townsend, 41 Fed. 121; nor that he has delivered the deposi- 
 tion to the court, Egbert v. Citizens' Ins. Co., 7 Fed. 47. 
 
§ 646 DEPOSITIONS. 815 
 
 may be received, the qualification must be borne in mind that 
 these provisions, respecting notice and the authentication of the 
 deposition, are for the benefit of the party against whom the 
 deposition is to be used, and hence such provisions may ie waived 
 by him. In a leading case on this subject, it did not appear that 
 the witness was sworn to testify to the whole truth ; nor was there 
 any certificate of the reason why the deposition was taken before 
 a township justice, and not by any magistrate described in the 
 act of congress. But it also appeared that the witness was an 
 aged man when his deposition was taken ; that he had died before 
 the trial; that one of the opposing counsel had attended the taking 
 of the deposition and cross-examined the witness, making no 
 objection to the sufficiency of the oath, to the reasons for taking 
 the deposition or to the competency of the magistrate, and that 
 no exception had been taken to the deposition, until it had been 
 filed for a year. The court held that, under these circumstances, 
 the consent of the defendant to the taking of the deposition must 
 be presumed, and that such participation in the proceedings and 
 failure to object was a complete waiver of aU formal objections.*^ 
 But the fact that the attorney for the opposite panrty attended, but 
 refused to take part in the proceedings, does not waive informal- 
 ities or cure defects in the certificate.'' If no objection is made 
 to the deposition when offered, it is then too late to raise an objec- 
 tion in the appellate court ; it was so held, even though, before 
 trial or at a former term of the court, a motion had been made 
 to suppress or set aside the deposition.'* 
 
 § 646 (664). Same — Objections — When made. — The waiver of 
 objections or the consent to read a deposition continues and is 
 operative at a second trial of the same action."^ If a party, know- 
 ing the contents of a deposition, consents that it may be read, this 
 
 «i Shutte V. Thompson, 15 Wall. 151. The same rule was held where a 
 party cross-examined a witness, knowing him to he incompetent, United 
 States V. One Case of Hair Pencils, 1 Paine (U. S.) 400. 
 
 83 Harris v. Wall, 7 How. 693. 
 
 «< Brown v. Tarkington, 3 Wall. 377; Ray v. Smith, 17 Wall. 411, 417; 
 Northern Pac. Ry. v. Urlin, 158 U. S. 271. Objection to form of commis- 
 sion held waived, no objection having been made until the trial, Howard 
 V. Stillwell & B. Mfg. Co., 139 U. S. 199. So held where witness had re- 
 fused to answer and no motion made till trial, Bird v. Halsey, 87 Fed. 671. 
 
 °°Vattier v. Hinde, 7 Peters, 252; Edmondson r. Barrel!, 2 Cranch C. C. 
 228. 
 
816 
 
 THE LAW OF EVIDENCE. § 646 
 
 is a waiver of objections to incompetent, as well as competent 
 testimony."' Where the envelope containing the deposition is not 
 properly endorsed or authenticated, this may be waived by a 
 stipulation for publication and opening. "^ Wh«re objections to 
 a deposition do not go to the testimony of the witness, but relate 
 to defects which might have teen obviated by retaking the deposi- 
 tion, such objections should be made and noted when the depo- 
 sition is taken or made by motion to suppress, and, if not made 
 until the trial, they are waived.'^ "The party taking the deposi- 
 tion is entitled to have the question of its admissibility settled 
 in advance. Good faith and due diligence are required on both 
 sides. When such objections, under the circumstances of this 
 ease, are withheld until the trial is in progress, they must be re- 
 garded as waived, and the deposition should be admitted in 
 evidence. This is demanded by the iaterests of justice. It is 
 necessary to prevent surprise and the sacrifice of substantial 
 rights. It subjects the other party to no hardship. All that is 
 exacted of him is proper frankness. " ^° The same rule was de- 
 clared where the objections to the deposition were to the form of 
 the commission and the mode of taking the deposition; where 
 defendants, after service on them of notice of issuing a commis- 
 sion, waived a copy of the interrogatories and consented that a 
 commission issue upon the direct interrogatories, and where the 
 motion to suppress the deposition was not made for some weeks 
 after it was filed, and not until the case came to trial.^" So where 
 a commission is issued by consent, and one of the parties joins in 
 the commission by naming a commissioner on his part, he cannot 
 afterward object that the rule has been issued improvidently, or 
 that it was improperly obtained ;'"^ and where a copy of a docu- 
 ment is annexed to the answer of a witness, examined on a 
 commission, and no objection to the copy is taken at the examina- 
 tion, or by motion to suppress made afterwards, the objection that 
 
 06 Harris v. Wall, 7 How. 693. 
 
 «' Stewart v. Townsend, 41 Fed. 121. 
 
 88 Bibb V. Allen, 149 U. S. 481. 
 
 «» Doane v. Glenn, 21 Wall. 33, where the deposition was taken under a 
 commission dedimus protestatem. As to waiver of objection that cer- 
 tificate does not state cause of taking, by waiting until trial, see, Stegner 
 T. Blake, 36 Fed. 183. 
 
 ■"> Howard v. Stillwell Co., 139 U. S. 199. 
 
 »i Sergeant's Lessee v. Biddle, 4 Wheaj;. 508. 
 
§ 648 DEPOSITIONS. . 817 
 
 the original was not produced or accounted for will not be enter- 
 tained." 
 
 § 647 (665). Depositions dedimus potestatem. — Tlie revised 
 statutes contain a provision that, in any case where it is necessary 
 in order to prevent a failure or delay of justice, any of the courts 
 of the United States may grant a dedimus potestatem to take 
 depositions according to common usage; and that the provisions 
 of statute already discussed do not apply to any deposition to be 
 taken under the authority of this section. Although the motion 
 for a commission under this statute is generally granted, it does 
 not issue as a matter of course. The question whether the order 
 is necessary to prevent a failure or delay of justice is for the 
 court to determine in each case upon the facts presented.'' It 
 was so held in a criminal case where the motion of the defendant 
 was resisted. The witnesses resided hundreds of miles from the 
 place of trial, their testimony was material and the defendants 
 were unable to pay the cost of bringing them to the place of trial. 
 These facts were deemed to show sufficient necessity for the issu- 
 ing of the commission.'* The motion should be based on an affida- 
 vit showing it to be necessary.'" 
 
 § 648 (666). Procedure in obtaining the commission. — The pro- 
 cedure in obtaining the commission is generally regulated by rules 
 of the court in the respective districts. By the usual practice, the 
 party desiring a commission enters with the clerk a rule for a 
 commission, naming a commissioner or commissioners on his part, 
 the state, territory or country, as well as the county, city or place 
 where the same is to be taken, together with the names of the 
 witnesses and the interrogatories to be proposed to the witnesses. 
 A copy of all which is then served upon the opposite party, his 
 agent or attorney for a number of days specified in the rule of 
 court." The opppsite attorney may then on his part name a 
 
 72 York Co. v. Central Railroad, 3 Wall. 107. As to waiver of objections 
 in state courts, see §§ 671 et seq. infra. 
 
 73 United States v. Cameron, 15 Fed. 794; United States v. Parrott, 
 McAll. (U. S.) 447; Magone v. Colorado S. & M. Co., 135 Fed. 846. As to 
 the effect of statute permitting procedure according to state statute, Zych 
 V. American Car & F. Co., 127 Fed. 723. 
 
 T4 United States v. Cameron, 15. Fed. 794. 
 
 76 Sutten V. Mandeville, 1 Cranch C. C. 115. 
 
 76 Rev. Stat. U. S. §§ 917, 918 (U. S. Comp. Stat. 1901, pp. 684, 685), 
 where some of the rules regulating this subject are given. It is held 
 that congress has not conferred power on the district and circuit courts 
 to make rules as to the taking of depositions, Randall v. Venable, 17 Fed. 
 162. But see, Warren v. Younger, 18 Fed. 859. 
 
 63 
 
818 THE LAW OF EVIDENCE. § 649 
 
 commissioner or commissioners and file cross-interrogatories 
 within a specified time or before the commission issues. At the 
 expiration of the specified time, the commission is made out and 
 issued by the clerk of the court, directed to the commissioner or 
 commissioners by name, accompanied by a copy of the interroga- 
 tories On file, together with the names of the witnesses to be 
 examined.'^ The commissioner may be an officer or one not an 
 officer; and the statute relating to depositions de bene esse has no 
 application ia this respect.'* As in the case of other depositions, 
 the one seeking to use a deposition, taken in this method, must 
 see that a notice is given to the adverse party sufficiently definite 
 and certain to enable him to cross-examine, unless such failure 
 is waived.'"' But if a party has been served with the notice to 
 file cross-interrogatories and fails to do so, no further notice is 
 necessary.*" A party cannot except to depositions taken at his 
 own instance, because he does not produce proof of notice to the 
 adverse party.*^ When a deposition is taken under a dedimus 
 and on interrogatories filed, the parties have no right to appear 
 and file other interrogatories, or propound oral questions, or even 
 to have the assistance of counsel.*^ But where a deposition was 
 to be taken in a foreign country,' and there were no rules of court 
 regulating the subject, it was held that the court in its discretion 
 might allow additional interrogatories to be filed at any time.*' 
 
 § 649 (667). Meaning of the statutory words "common usage." 
 — The words of the statute "according to common usage" refer 
 to the usage prevailing in the courts of the state in which the 
 federal court may be sitting, that is, common usage in the courts 
 which administer justice in the same community. They do not 
 refer to a usage knovsni and recognized only at common law, 
 because, when the statute was adopted, it was the practice to take 
 depositions under statutes.** In suits in equity, the language 
 
 77 See the rules of United States court of the iurlsdlctlon. See also, rule 
 67, Rules of Practice in Equity U. S. Courts. 
 78Jerman v. Stewart, 12 Fed. 271. 
 
 79 Knode v. Williamson, 17 Wall. 586. 
 
 80 Merrill v. Dawson, Hempst. (U. S.) 563. 
 siYeaton v. Pry, 5 Cranch, 335. 
 
 82 Neeves v. Gregory, 86 Wis. 319. See § 697 infra. 
 
 83 Cunningham v. Otis, 1 Gall. (U. S.) 166. 
 
 84 United States v. Cameron, 15 Fed. 794; Despeaux v. Penn. Ry. C!o., 
 81 Fed. 897; Toledo Traction Co. v. Cameron, 137 Fed. 48, full discussion 
 as to § 861 U. S. R. S. 
 
§ 650 DEPOSITIONS. 819 
 
 refers to the practice in the equity courts."* There was a con- 
 struction of this phrase in a ease where one of the parties to the 
 suit, at the request of the commissioner, wrote down the answers 
 of the witness. It appeared that the other party was not present, 
 and hence had not waived the objection, although it did not af- 
 firmatively appear that any injury had been sustained. The court 
 held, however, that the practice might lead to grave abuses, since 
 a slight change of expression, not noticed by the witness or magi- 
 strate, might materially alter the sense, and that such a practice 
 was not "according to common usage. "^' Again it has been 
 held that it is not "according to common usage," in the courts 
 of the United States, to call upon a party to the action to give 
 testimony at the instance of the adverse party before the trial, 
 even though such a practice prevails in the courts of the state 
 in which the federal court is held. The principle that, in actions 
 at law, the practice, pleadings and procedure shall conform in 
 the federal courts as nearly as may be to those of the courts of the 
 state is not applicable in such a case, since the rule of procedure 
 in respect to taking testimony is prescribed by act of congress 
 and must control.'''' The deposition is taken "according to com- 
 mon usage," although the certificate does not state that the com- 
 missioner is disinterested, if this is not required in the state where 
 the deposition is taken ; and the provisions of sections 863-865 of 
 the federal statutes do not apply to this class of depositions.*' 
 Nor need the commissioner certify that the deposition was reduced 
 to writing by the clerk in his presence.'' 
 
 § 650 (668). Control over depositions. — Under the federal stat- 
 utes, the ofSeer taking a deposition is not the agent of the party 
 taking the deposition."" He is an officer of the court, and should 
 
 8s Blschoffscheim v. Baltzer, 10 Fed. 1. 
 
 86 United States v. Pings, 4 Fed. 714; Dawson v. Poston, 28 Fed. 606. 
 
 &TEx parte Fisk, 113 U. S. 713. After the Act of March 9th, 1892 
 (c. 14, 27 Stat. 7, U. S. Comp. St. 1901, p. 664) such examinations were 
 permitted in some of the federal courts, International Tooth Crown Co. 
 V. Carter, 112 Fed. 396; International Tooth Crown Co. v. Hanks Dental 
 Ass'n, 101 Fed. 306; Smith v. N. Pac. R. R. Co., 110 Fed. 341. See Camden, 
 etc. Ry. Co. v. Stetson, 177 U. S. 172. But in Hanks Dental Ass'n v. Inter- 
 national Tooth Crown Co., 194 U. S. 303, the rule as first laid down was 
 affirmed. See, Hartman v. Feenaughty, 139 Fed. 887. 
 
 88 Giles V. Paxson, 36 Fed. 882. 
 
 «» Giles V. Paxson, 36 Fed. 882. 
 
 so Gilplns T. Consequa, Peters 0. C. 85. See §§ 684 et seq. infra. 
 
820 THE LAW OF EVIDENCB. § 651 
 
 exercise the power of taking the deposition according to the com- 
 mission issued to him.°^ It is the duty of the officer to comply with 
 the statutes relating to the return of depositions ; and when hoth 
 parties have examined witnesses before an officer, the deposition 
 is not under the control of the moving party. If the commissioner 
 withholds the deposition at his request, the court will, on appli- 
 cation, order its return, although the testimony has surprised the 
 person at whose instance it was taken. The deposition, while 
 in the hands of the commissioner, is just as much beyond the 
 control of the parties as after it has been filed with the court; 
 and, although a party is not compelled to use a deposition taken 
 by himself, he cannot prevent its use by the other party."^ The 
 taking of depositions is so far under the control of the court that, 
 if a cross-examination has been closed in ignorance of facts ma- 
 terial to a further cross-examination, the court, upon a proper 
 showing, can make such order as is just.°° 
 
 § 651 (669). Several commissioners may act — ^Taking the oath. 
 — Under the rules of procedure, it not unfrequently happens that 
 a commission to take testimony is issued to more than one com- 
 missioner. Under such circumstances, if the terms of the com- 
 mission confer the power iipon any one of the persons named, he 
 may execute the commission alone,^^ but he cannot execute it in 
 connection with a person, not named in the commission.'" The 
 commissioners, however, do not derive their authority from the 
 parties, but from the court; and where the commission is issued 
 to several jointly, they should all join f^ and the deposition is not 
 admissible in such case when all do not join, even though one 
 of the commissioners refused to act.°^ If the commissioner is one 
 of the officers of a court of the United States, it is not necessary 
 that he should take any oath.°* Although it should appear from 
 the certificate of the commissioner that the general provisions of 
 the commission have been complied with, the return is prima facie 
 
 81 Jones V. Oregon Cent. Ry. Co., 3 Sawy. (TJ. S.) 523. 
 
 92 First Nat. Bank of Grand Haven v. Forest, 44 Fed. 246. In re 
 RindskofC, 24 Fed. 542. 
 
 03 The Normandle, 40 Fed. 590. 
 
 »<The Griffin, 4 Blatch. (U. S.) 203. 
 
 90 Willing V. Consequa, Peters C. C. 301. 
 
 98Gupp V. Brown, 4 Dall. (U. S.) 410; Armstrong v. Brown, 1 Wash. 
 (U. S.) 43. 
 
 67 Munns v. Dupont, 3 Wash. (TJ. S.) 41. 
 
 »8 Hoyt V. Hammekln, 14 How. 346. 
 
§ 653 DEPOSITIONS. 821 
 
 evidence of the facts therein stated ; *° and if it is stated that the 
 commissioner took the oath, it will be presumed that it was prop- 
 erly admiaistered.^ If it appears that the witness was sworn, it 
 win be presumed that the proper form of oath was administered.* 
 Nor is it necessary to have it appear that there was a sworn inter- 
 preter, although the witness was an alien, and the deposition is 
 in the English language." 
 
 § 652 (670). Miscellaneous. — As in the case of depositions de 
 bene esse, slight technical errors in the names of the witnesses, 
 in the form of the caption or in the mode of addressing the de- 
 position on its return to the court, which may be deemed mere 
 matters of form, not likely to mislead either party, do not invali- 
 date the proceeding.* All of the interrogatories, either in form 
 or substance, should be propounded to the witness, or the deposi- 
 tion cannot be read."* It has been so held even where the witness 
 omitted certain answers, but stated in answer to a general inter- 
 rogatory that he knew nothing further material to either party." 
 It is the usual practice to send with the commission special inter- 
 rogatories followed by a general interrogatory calling for any 
 knowledge the witness may have, material to the issue, as to 
 matters not stated ia the answer to the special interrogatories. 
 It is not a valid objection to the deposition that the material or 
 most important testimony is given in answer to the general, and 
 not to the special interrogatories.'' 
 
 § 653 (671). Compelling attendance and production of papers. 
 — In the case of depositions de bene esse, the statutes provide that 
 any person may be compelled to appear and testify in the same 
 manner as in court.' The commissioner or officer before whom 
 the testimony is to be taken may issue an attachment to compel 
 the attendance of a witness, but it should first appear that the 
 facts sought to be proved are relevant : that the officer has juris- 
 
 BoBoudereau v. Montgomery, 4 Wash. (U. S.) 186. 
 
 1 Winter v. Slmonton, 3 Cranch C. C. 104. 
 
 2 Keene v. Meade, 3 Peters, 1. 
 
 » Gilpins V. Conseaua, Peters C. C. 88. 
 
 * Keene v. Meade, 3 Peters, 1; Kansas City, Ft. S. & M. Ry. Co. v. 
 Stoner, 51 Fed. 649. See § 670 infra. 
 
 oWinthrop v. Union Ins. C!o., 2 Wash. (IT. S.) 7; Gilpins v. Consequa, 
 3 Wash. (U. S.) 184; Richardson v. Golden, 3 Wash. (U. S.) 109. 
 
 8 Ketland v. Bissett, 1 Wash. (U. S.) 144. 
 
 T Rhoades v. Selin, 4 Wash. (U. S.) 715. 
 
 « Renr. Stat. U. S. S .863 (TJ. S. Comp. St. 1901, p. 661>. 
 
822 THE LAW OF EVIDENCB. § 653 
 
 diction to act in taking the testimony, and that the witness is one 
 residing more that one hundred miles from the place of trial." 
 If the proceeding is under a dedimus potestatem, the clerk of any 
 court of the United States for the district or territory is author- 
 ized, on the application of either party or of his agent, after the 
 commission is issued, to issue a subpoena to procure the attendance 
 of the witness required; and if a witness, duly subpoenaed, refuses 
 or neglects to attend or to testify before the commissioner, and 
 this is proved to the satisfaction of the judge, the judge of the 
 court whose clerk has issued the subpoena may proceed to enforce 
 obedience to the process, or to punish the disobedience.^" Pro- 
 vision is also made by statute whereby either party may apply 
 to any judge of a United States court within the district, and 
 obtain an order from him to the clerk of the court to issue a 
 subpoena duces tecum, requiring the witness to bring with him 
 and produce to the commissioner any writings, iooks or documents 
 supposed to be material to the issue.^^ The statute also provides 
 for the enforcement of obedience to such process, and that the 
 commissioner shall cause a copy of such document to be made, 
 if required. It is evidently the object of these statutes to enable 
 a party to procure by deposition any evidence that might be pro- 
 cured by the attendance of the witness in open court.^^ Subpoenas 
 for witnesses who are required to attend a court of the United 
 States, in any district, may run into any other district, provided 
 that, in civil causes, the witnesses living cut of the district in 
 which the court is held do not live at a greater distance than 
 one hundred miles from the place of holding the same.^^ The 
 distance is to be determined with reference to the usual routes of 
 travel.^* If the witness lives within the stated distance, and fails 
 to respond to a subpoena, an attachment may issue to be executed 
 in the other district.^^ Suitors and witnesses are entitled to claim 
 the usual privilege of exemption from the service of process while 
 in attendance upon the taking of a deposition, whether they reside 
 within or without the state.^' 
 
 "Ex parte Peck, 3 Blatch. (U. S.) 113; Ex parte Judson, 3 Blatch. (U. S.) 
 148. 
 
 10 Rev. Stat. U. S. § 868 (U. S. Comp. St. 1901, p. 664). 
 
 11 Rev. Stat. U. S. § 869 (U. S. Comp. St. 1901, p. 665). 
 
 12 In re Shephard, 3 Fed. 12. 
 
 13 Henry v. Ricketts, 1 Crancli C. C. 580. 
 
 14 Ba; parte Beebea, 2 Wall. Jr. (U. S.) 127. 
 
 10 United States v. Williams, 4 Cranch C. C. 372. 
 
 18 Atchison V. Morris, 11 Fed. 582, summons In civil actions served on 
 
§ 654 DEPOSITIONS. 823 
 
 § 654 (672). Depositions in equity trials. — Originally the fed- 
 eral courts on the chancery side, following the ancient equity pro- 
 cedure, caused the depositions of witnesses to be taken before 
 examiners or commissioners appointed by the court. The exam- 
 ination was upon written interrogatories and cross-interrogatories 
 prepared by the solicitors of the parties or by the court ; and the 
 testimony was not made public until the time came, under the 
 rules of practice, for its publication or inspection.^^ But, by the 
 modern practice, testimony in courts of equity may he taken orally. 
 Under the practice now generally adopted, either party may give 
 notice to the other that he desires the evidence to be adduced in 
 the cause to be taken orally; and thereupon all the witnesses wiU 
 be examined before an examiner of the court or one specially 
 appointed. The examination takes place in the presence of the 
 parties and their counsel; and the witnesses are subject to cross- 
 examination and re-examination to be conducted as near as may 
 be as in the common-law courts. The examiner is required to note 
 all objections to the testimony, but has no poicer to decide upon the 
 competency, materiality or relevancy of questions.^' Testimony 
 in equity eases may still be taken by written interrogatories and 
 cross-interrogatories.^' It has been held proper to appoint a spe- 
 cial examiner to take testimony beyond the territorial jurisdic- 
 tion of the court.^" but in other cases this application has been 
 denied.^^ In case the testimony is taken in this mode such rea- 
 sonable notice of the time and place of the examination is given 
 as the examiner may fix by order in each case.^'' By the equity 
 rules in the federal courts, when the testimony is to be taken 
 oraUy, the court may on motion assign a time within which each 
 
 non-resident witness; Brooks v. Farwell, 4 Fed. 166, party attending suit 
 In another state. 
 
 17 For an exhaustive treatment of the subject of this section see, 1 Dan. 
 Chan. Prac. ch. 22. 
 
 18 Rule 67 Federal Rules of Practice In Equity; Desty, Fed. Proc. (9th 
 Ed.) rule 67 p. 1178. By a second order part of the testimony may he 
 ■oral and part by deposition, Magone v. Colorado S. & M. Co., 135 Fed. 846. 
 
 i» See authorities last cited. 
 
 20 North Carolina Ry. Co. v. Drew, 3 Woods, 691. But a court cannot 
 grant a motion to take testimony in a foreign country, United States v. 
 Parrott, 1 McAll. (U. S.) 447. 
 
 21 Arnold v. Chesebrough, 35 Fed. 16; Celluloid Manfg. Co. v. Russell, 
 35 Fed. 17. 
 
 22 Rule 67 Federal Rules of Practice in Equity; Desty, Fed. Proc. (9th 
 Ed.) rule 69 p. 1180. Such notice is essential to their use, Rhoades t. Selln, 
 
 4 Wash. (U. S.) 715, 
 
824 THE LAW OP EVIDENCE. § 656 
 
 party may take his evidence ; and, unless a special order is made, 
 three months after the cause is at issue is the time allowed for 
 the taking of testimony.'" 
 
 § 655 (672). Evidence to be taken by commissioners, masters, 
 etc., whether relevant or not. — It is the rule declared in the federal 
 courts that in the taking of testimony by commissioners, examin- 
 erSj masters and auxiliary courts or judges within whose juris- 
 diction testimony is being taken in suits pending in other districts, 
 it is not their duty to consider and determine the competency, 
 materiality or relevancy of the evidence which one of the parties 
 seeks to elicit, but it is the duty of such officers to compel the 
 production of the evidence and the giving of the testimony unless 
 the witness or the evidence is privileged, or it clearly and affirm- 
 atively appears that the evidence sought cannot possibly be com- 
 petent, material or relevant, and that it would be an abuse of the 
 process of the court to compel its production.^* But i£ a particu- 
 lar defense has been stricken out by the court the officer is not 
 required to admit testimony on that point.^° 
 
 § 656 (673). Depositions under stjite statutes — General mode of 
 taking. — No attempt will be made in this work to state in detail 
 the rules which govern the taking of depositions under the statutes 
 of the various states. These statutes are so widely different that 
 it vdU only be practicable to mention some of the general rules 
 which are applicable, in many jurisdictions, and to further illus- 
 trate, by decisions from the state courts, the subjects already 
 discussed under the head of depositions in federal courts.''" The 
 practice quite generally prevails in the different states of taking 
 depositions of witnesses who are outside the state upon a com- 
 mission, issued in a manner somewhat similar to that provided in 
 the federal statutes and rules of court. The tther mode of taking 
 depositions on simple notice before officers designated by statutes, 
 in analogy to the mode of taking depositions de bene esse in the 
 federal courts, is also practiced in many states. This is the more 
 common procedure where witnesses are within the state. In some 
 states, however, commissions also issue for taking testimony within 
 
 23 Desty, Fed. Proc. (9th Ed.) rule 67 p. 1180, and rule 69 p. 1183. 
 
 a^Dowagiac Mfg. Co. v. Lochren, 143 Fed. 211 and cases cited and dis- 
 cussed; Blease v. Garlington, 92 U. S. 1; Perry v. Rubber Wbeel Co., 138 
 Fed. 836; Butte, etc. Mining Co. v. Montana Co., 139 Fed. 843. 
 
 20 Independent Baking Co. v. Boorman, 137 Fed. 995. 
 
 28 For the practice in each state the statutes of the jurisdiction must be 
 consulted. 
 
§ 658 DEPOSITIONS. 825 
 
 the state. It is also true that, by the practice of some jurisdic- 
 tions, depositions are taken both outside the state and within the 
 state on simple notice. This notice is most frequently given by the 
 attorneys or parties, but, according to other statutes, it must 
 be given by the ofiScer before whom the testimony is to be taken. 
 The notice should give to the adverse party the requisite notice 
 and the opportunity to appear and to examine the witness. Or- 
 dinarily by these provisions, depositions are to be taken after 
 the commencement of the suit, or after the joining of issue, but 
 frequently statutes, under specified conditions, allow them to be 
 taken before suit has been commenced, or even allow them to 
 be used upon a motion iu the suit. 
 
 § 657 (674). Same, continued. — In some of the states, parties 
 are*not at liberty to take depositions de bene esse on mere notice, 
 according to the usual mode. They are required, if the deposition 
 is taken within the state, to file with the court an application 
 or petition, setting forth the circumstances and showing that an 
 order is necessary, stating the names and residences of the wit- 
 nesses whose testimony is desired and such other facts as are pre- 
 scribed in the statute. Thereupon the judge is required to grant 
 an order for the examination of ihe witnesses, if an action is 
 pending, and, under some circumstances, even though an action 
 is not pending. The order requires the witnesses to appear before 
 a referee or other person named therein at a given time and place. 
 It also fixes the time of service upon the attorney of the adverse 
 party of a copy thereof, as well as of the affidavit on which it 
 is granted. In other jurisdictions, no judicial order is required, 
 but an affidavit must be served with a notice showing that the 
 case is within the statute, and that a cause for taking the deposi- 
 tion exists. Obviously irregularities as to notice or other steps 
 in these proceedings may be waived as in the case of other de- 
 positions. The statutes of the jurisdiction should be consulted, 
 as compliance with their provisions is always essential to the 
 use of depositions taken under them. 
 
 § 658 (675). Statutes to be complied with. — Since the statutes 
 regulating the taking of depositions are in derogation of common 
 law, they must be substantially complied with, and some of the 
 decisions hold that there must be a strict compliance with the pro- 
 visions of the statute.''^ It will appear however from many of the 
 
 »Corgan v. Anderson, 30 111. 95; Young v. State, 90 Md. 579, 45 Atl. 531; 
 Farmers' Bank v. Hathaway, 36 Vt 539; Graham v. Whltely, 26 N. J. L. 
 
826 THE LAW OF EVIDBNCB. § 659 
 
 decisions subsequently cited in this chapter that there is a ten- 
 dency to construe the statutes more liberally than formerly.'" 
 
 § 659 (676). How compliance with the statutes is to appear. — 
 In numerous cases, it has been held that compliance with the terms 
 of the statute must appear upon the face of the deposition in order 
 to entitle it to admission. ^° There is another class of decisions, 
 however, in which it is held that the proceedings of the commis- 
 sioner or other officer taking the deposition may he presumed to 
 be regular, unless the contrary appears.'" According to this view, 
 it is not necessary that a commissioner should, in his certificate, 
 negative the existence of those facts which would render him 
 incompetent to take the deposition, such as the fact that he had 
 an interest in the event of the suit,'^ or that he was of kin to 
 either party in the suit.'^ So it has been held imnecessary to 
 certify that the deposition was reduced to writing by the com- 
 missioner or some other disinterested person ;'' or that the com- 
 
 254; Thompson v. Clay, 60 Mich. 627; Dawson v. Dawson, 26 Neb. 716, 
 a certificate must show that the taking of the deposition was commenced 
 on day named in notice. Thus the notice must be given as required by 
 the statute, McEwen v. Morgan, 1 Stew. (Ala.) 190; Carter v. McDaniel, 
 21 N. H. 231; Kingsbury v. Smith, 13 N. H. 109, the time and place, magis- 
 trate and names of parties should be given; Davis v. Davis, 48 Vt. 502, 
 deposition held bad because the name of the magistrate was omitted; 
 Robertson v. Campbell, 1 Overt. (Tenn.) 172, where the name of the wit- 
 ness was omitted; If it requires a written notice that must be given. 
 Denning v. Foster, 42 N. H. 165; though a verbal notice is sufficient In 
 the absence of such statute, Ormsby v. Granby, 48 Vt. 44; Melton v. Row- 
 land, 11 Ala. 732. As the power of appointing a commissioner in another 
 state Is purely statutory, an appointment in the absence of a statute or 
 the consent of the parties is unauthorized, Baber v. Rickart, 52 Ind. 594; 
 In re Attorney, 83 N. Y. 164. If the statute provides that a return of a 
 deposition shall be made in a prescribed manner, the statute must be 
 complied with, Scott v. Horn, 9 Pa. St. 407. Mere rule of court no au- 
 thority to take deposition, International C. M. Co. v. Penn. Ry. Co. (Pa.), 
 63 Atl. 880. 
 
 28 Ferguson v. Lederer, Strauss & Co., 128 la. 286, 103 N. W. 794. 
 
 2»Die V. Bailey, 2 Cal. 383; Williams v. Chadbourne, 6 Cal. 559; Collins 
 V. Elliott, 1 Harr. & J. (Md.) 1; Williams v. Banks, 5 Md. 198; Bascom 
 V. Bascom, Wright (Ohio), 632. See also, Collins v. Lowry, 2 Wash. (Va.) 
 75; Rennick v. Willoughby, 2 A. K. Marsh. (Ky.) 22. 
 
 soHorton v. Arnold, 18 Wis. 212; Halleran v. Field, 23 Wend. 38. 
 
 81 Stewart v. Townsend, 41 Fed. 121 ; Moore v. Booker, 4 N. Dak. 643. 
 
 82 Gregg V. Mallett, 111 N. C. 74; Moore v. Booker, 4 N. Dak. 543, 62 
 N. W. 607. 
 
 83Winton v. Little, 94 Pa. 0t. 64; Bulwinkle v. Cramer, SO S. C. 153; 
 Horton v. Arnold, 18 Wis. 212. 
 
§ 660 DEPOSITIONS. 827 
 
 missioner had taken the oath, when an oath was required by 
 statute;'* or to set forth the form of the oath which had been 
 administered, or that neither party was present at the execution 
 of a commission, where the statute provides that a single party 
 shall not be present."* 
 
 § 660 (677.) Same, continued. — The principle under discussion 
 is well illustrated in a New York case where it. was objected that 
 the certificate of the ofBcer did not state that the oath was publicly 
 administered. Said Justice Cowen; "If that be not made by the 
 statute an essential part of the certificate, then we ought to intend 
 that it was administered publicly. These commissioners are, foi 
 the purpose of taking testimony under the statute, officers of the 
 law, officers, it is true, with limited powers, like the inferior 
 magistrate holding his court, but in favor of whom, when he 
 returns that he administered a certain oath, required by statute, 
 we intend that he administered it publicly, and even in proper 
 form, unless he gave particulars or stated something from which 
 it appears affirmatively that he departed from the statute. The 
 common form of jurat shows this. An officer certifies that the 
 deponent was sworn before him on such a day; we intend that 
 he was sworn in due form. It cannot, in the nature of things, 
 be necessary for the commissioners to say that the witness was 
 sworn in public, more than that he was sworn on the gospels, or 
 that these were tendered to him, and he preferred some other 
 form. On the whole as the statute has not required the commis- 
 sioners to return expressly whether the oath was in public or 
 private, we think that the return may be easily sustained by 
 the doctrine of intendment."'" But if the commissioner, instead 
 of certifying that the witnesses were duly sworn, sets forth the 
 form of the oath administered, no other presumption arises ; and, 
 if a substantial defect thus affirmatively appears in this or in other 
 respects, the deposition should be excluded." The certificate of a 
 commissioner that he had the authority to administer oaths is 
 sufficient prima facie evidence of that fact." 
 
 S4 Halleran v. Field, 23 Wend. 38. 
 
 35 Cross V. Bamett, 61 Wis. 650, 21 N. W. 832; Turner v. Hardin, 80 
 Iowa, 691; Ford v. Cheever, 105 Micli. 679, 63 N. W. 975. 
 
 86 Halleran v. Field, 23 Wend. 38. 
 
 sTTelegrapli Co. v. Collins, 45 Kan. 88; Cross v. Bamett, 61 Wis. 650; 
 Lund V. Dawes, 41 Vt. 370; Call v. Perkins, 68 Me. 158; Elliot v. Hayman, 
 2 Cranch C. C. 678; Home v. Haverhill, 113 Mass. 344. 
 
 s8McNeal v. Braun. 53 N. J. L. 617; Moore v. Willard, 30 S. C. 615. 
 
828 THE LAW OF EVIDENCE. § 661 
 
 § 661 (678). Notice of taking— Time.— There is little uniformity 
 in the statutes of the different states respecting the notice of the 
 taking of depositions. In some instances, statutes provide that 
 a reasonable notice must be given. In such ease the reasonable- 
 ness depends largely on the circumstances of the case.'" More 
 frequently they prescribe the length of time of the required notice 
 which is often made to depend upon the distance of the vsritnesses 
 from the place of trial. It is a principle, very generally recog- 
 nized, that a party has a right to have such notice that he may 
 have an opportunity, according to the nature of the proceeding, 
 either to file cross interrogatories or to orally cross-examine the 
 witnesses whose depositions are to be taken; and reasonable 
 opportunity must be afforded him to exercise this right.*" The 
 full time prescribed by the statute must be allowed; and the 
 general rule of computation is that the first day is to be excluded 
 and the last included.*^ So, the deposition cannot be taken later 
 than the prescribed time, without notice to that effect.*'' The 
 taking of depositions is so far under the control of the court that, 
 even though the exact statutory notice is given, the court may hy 
 order grant indulgence to the party on whom the notice is served, 
 if the circumstances are such that he cannot act upon the notice.*^ 
 Where the statute does not in terms make the length of time of 
 the notice dependent upon the number of miles or fix a different 
 timei, the court will inquire whether the adverse party could, by 
 using the ordinary modes of travel, be present and procure the 
 attendance of his counsel; and, in determining this question, the 
 court will take notice of the usual routes of travel.**^ So in deter- 
 so Ryan V. People, 21 Colo. 119, 40 Pac. 775; Appeal of Harris, 68 Conn. 
 492, 20 Atl. 617; Evans v. Rothchlld, 54 Kan. 701, 39 Pac. 701; Miller v. 
 Neff, 33 W. Va. 197, 10 S. E. 378. 
 
 *o Blair v. Bank of Tenn., 11 Humph. (Tenn.) 84; Stille v. Layton, 2 
 Har. (Del.) 14S; Hartley v. Chidester, 36 Kan. 363. 
 
 4iGooday v. Corlies, 1 Strob. (S. C.) 199; Arnold v. Nye, 23 Mich. 286; 
 Masters v. Warren, 27 Conn. 293; Fant v. Miller, 17 Gratt. (Va.) 187; 
 Collins V. Richart, 14 Bush (Ky.) 621; Hartley v. Chidester, 36 Kan. 363, 
 13 Pac. 578. 
 
 *2 Dawson v. Dawson, 26 Neb. 716; Peterson v. Albach, 61 Kan. 150; 
 
 Bennett v. Bennett, 37 "W. Va. 396. See also. Mix v. Baldwin, 156 111. 313. 
 
 43 Toulman v. Swain, 47 Mich. 82. The court may at the trial order 
 
 depositions to be taken at a fixed time, and the order serves as notice. 
 
 State V. Mosher, 128 la. 82, 103 N. W. 105. 
 
 iiHipes V. Cochran, 13 Ind. 175; Carlisle v. Tuttle, 30 Ala. 613; Manning 
 V. Gasharie, 27 Ind. 399. 
 
§ 662 DEPOSITIONS. 829 
 
 mining this question and also the one whether the notice is 
 reasonable, the circumstances of the particular case must be con- 
 sidered.*" In a ease arising in Connecticut between subjects of 
 the Chinese Empire, under a statute requiring "reasonable no- 
 tice," a notice was served oh the sixteenth day of March to take 
 depositions in Shanghai on the seventeenth of May following; the 
 notice was held insufficient. In determining whether the notice 
 was reasonable, the court held that, although there was a suffi- 
 cient number of days for taking the journey, this was only one 
 of many considerations which might properly be taken into ac- 
 count; that it was proper, among other things, to take into con- 
 sideration the fact that the claim was a large one growing out of 
 remote transactions, and that it might be difficult to find an at- 
 torney who could conduct the cross-examination. It was also held 
 that the question of reasonable notice is so allied to the rules re- 
 specting the admission and rejection of testimony that it can he 
 reviewed in a court of error.*" 
 
 § 662 (679). Same — Names of witnesses, officer, etc. — The no- 
 tice is often required by the statute to state the place of taking 
 the deposition, the names of the witnesses and the name of the 
 person or officer before whom the deposition is to be taken, and 
 in such case, these requirements of the statute must he complied 
 with." Such provisions are inserted in the statute in order that 
 the adverse party may determine whether he will attend the tak- 
 ing of the deposition, and, if he so determines, that he may have 
 such information as will enable him to attend and prepare for 
 the cross-examination.*' Under other statutes or rules of proced- 
 
 40Attwood V. Frlcot, 17 Cal. 37, 76 Am. Dec. 567; Harris v. Brown, 63 
 Me. 51; Green v. Tally, 39 S. C. 338; Trevelyan v. Lofft, 83 Va. 141; 
 Stephens v. Thompson, 28 Vt. 77. 
 
 *8 Sing Cheong Co. v. Yung Wing, 59 Conn. 535; McCall v. Jacobson, 
 139 Mich. 455, 102 N. W. 969. See §§ 639, 640 supra. 
 
 <' Minot V. Bridgewater, 15 Mass. 492; Pllmer v. Bank, 16 Iowa, 321; 
 Thompson v. Fairbanks, 75 Vt. 361, 56 Atl. 11, 404 Am. St. Rep. 899; 
 In re Wogan (Mo.), 77 S. W. 490; Hartman v. Thompson (Md.), 65 Atl. 
 118; Roberts v. Powell, 210 Pa. 594, 60 Atl. 258; Harlan v. Richmond, 108 
 la. 161, 78 N. W. 809; Miller v. Frey, 49 Neb. 472, 68 N. W. 630; Ashe 
 v. Beasley, 6 N. D. 191, 69 N. W. 188. But if the notice states that the 
 names of the witnesses are not known, they may still be examined under 
 the notice, if properly identified, Hemenway v. Knudson, 73 Hun, 227; 
 Wade, Notice, § 1227. ' 
 
 *8 Minot V. Bridgewater, 15 Mass. 492. Notice need not state nature of 
 testimony, McPhelemy v. McPhelemy, 78 Conn. 180, 61 Atl. 477. 
 
830 THE LAW OP EVIDENCE. § 663 
 
 ure, the names of the witnesses or of the officer need not ie stated. 
 Even where the statute prescribes these requisites, and requires 
 that the time and place of taking the deposition and the names 
 of the witnesses shall be stated, slight mistakes, not likely to mis- 
 lead the other party, do not vitiate the notice. *° If the statute 
 provides that the notice shall be a due notice or such as is reason- 
 able, much will be left to the discretion of the court, but one which 
 requires exertions much beyond the usual mode of traveling is 
 not a compliance with the statute.^" It is a common practice 
 for the notice to state that the deposition will be taken at a time 
 and place stated and continued from time to time until completed. 
 In such case, the hearing may be adjourned from time to time until 
 the deposition is finished.^' When the notice is indefinite as to the 
 day on which the deposition is to be taken, or mentions a number 
 of different days in such manner that the adverse party is not 
 specifically notified of the time, it is insufficient.^^ 
 
 § 663 (680). Notice — On whom served. — The statutes often pre- 
 scribe that service of the notice may be made either upon the 
 party or his attorney. When service upon parties is relied on, 
 
 49 Rand v. Dodge, 17 N. H. 343, mistake as to day of week held imma- 
 terial where rest of the date was correct. Slight mistake in name of 
 commissioner is not fatal, Friend v. Thompson, Wright (Ohio), 636; 
 County of Green v. Bledsoe, 12 111. 267; Kellum v. Smith, 39 Pa. St. 241. 
 Error as to name of the court, being well known to counsel, is not fatal, 
 Matthews v. Dare, 20 Md. 248; Pape v. Wright, 116 Ind. 502, where the 
 full name of the witness was not given, the notice being served without 
 objection then made; Sloan v. Hunter, 56 S. C. 385, 34 S. E. 658, 76 Am. 
 St. Rep. 559, slight misspelling of notary's name; Galveston, H. & S. A. R. 
 Co. V. Morris (Tex.), 61 S. W. 709, difference in names In notice and 
 signatures to deposition, when not misleading, not fatal. Idem sonans, 
 West. U. T. Co. V. Drake, 14 Tex. Civ. App. 601, 38 S. W. 632; Miller v. 
 Frey, 49 Neb. 472, 68 N. W. 630; Harlan v. Richmond, 108 la. ^61, 78 N. 
 W. 809. See § 670 infra. 
 
 60 Harris v. Brown, 63 Me. 51; Shropshire v. Dickinson, 2 A. K. Marsh. 
 (Ky.) 20; Water's Heifs v. Harrison, 4 Bibb (Ky.) 87; Kincaid v. Kln- 
 caid, 1 J. J. Marsh. (Ky.) 100. Five days' notice, where the distance was 
 eighty-three miles, was held prima facie reasonable. Dean v. Tygert, 1 A. 
 K. Marsh. (Ky.) 172. One day's notice, where the distance was two miles, 
 held reasonable, McGlnley v. McLaughlin, 2 B. Mon. (Ky.) 302. Ten days' 
 notice, where the distance was one hundred and sixty-six miles, was held 
 good, Harris v. Brown, 73 Me. 51. 
 
 SI Kelley v. Martin, 53 Kan. 380; Weeks Dep. 288.' See also, § 696 infra. 
 
 62Reardon v. Farrlngton, 7 Ark. 364; Caldwell v. McVicr^r, 9 Ark. 418; 
 Jordan v. Hazard, 10 Ala. 225. 
 
§ 664 DKPOSltaONS. 831 
 
 the service should be upon all adverse parties, for the deposition 
 cannot be used against those not notified of the taking.'^ But 
 it has been held that, if the action is against co-partners, service of 
 the notice on one partner is sufficient."* Where notice is served 
 upon the attorney, it should be upon the attorney of record, or 
 at least upon one who has acted as attorney in the cause ; ''^ and 
 where an attorney has withdrawn from a case and is no longer 
 attorney of record, service on him is clearly bad."" So it has 
 been held that service of a notice on a station agent of a railway 
 company who had no authority in the matter in question is not 
 a legal or sufficient notice.^^ Statutes generally provide by what 
 persons and in what manner the notice may be served, and in 
 some states it must be by persons authorized to serve process and 
 in some jurisdictions it may be by publication. Ordinarily serv- 
 ice is made on the attorneys, and their admission of sjcrvice is 
 obtained."' 
 
 § 664 (681). Same — Place of taking. — The notice should so 
 state or describe the place of taking the deposition that the ad- 
 verse party or his attorney can, by the use of reasonable dUigenee, 
 attend and be present at the examination."^ While slight errors 
 in the name of the place, or in failing to accurately describe the 
 
 63 Clap V. Liockwood, Klrby (Conn.), 100; McConnell v. Stettinius, 2 
 Gilm. (111.) 707; Black v. Marsh, 31 Ind. App. 53, 67 N. E. 201; Working 
 V. Gam, 148 Ind. 547, 47 N. E. 951. But see, Spaulding v. Ludlow Woole.Q 
 Mill, 36 Vt. 150; Ellis v. Lull, 45 N. H. 419. Statutes requiring service 
 on the party must be complied with. Brown v. Ford, 52 Me. 479. The 
 same Is true, if the statute requires service on the attorney, Griffith v. 
 Gruner, 47 Cal. 644. Service on the husband, even if he appears, does not 
 bind the wife who is a party and not served with notice, Danforth v. 
 Bangor, 85 Me. 423. Notice on principal legatee, there being no attorney, 
 held good. In re Jones' Estate, 130 la. 177 106 N. W. 610. 
 
 ii*Cox V. Cox, 2 Port. (Ala.) 533. 
 
 55 Brown v. Ford, 52 Me. 479. But information that an attorney had 
 withdrawn from the action does not invalidate a notice served while such 
 person remains attorney of record, Herrin v. Libbey, 36 Me. 350. Service 
 on attorneys, not of record, but who had appeared and conducted the case, 
 is good. King v. Ritchie, 18 Wis. 554. 
 
 56 King V. Ritchie, 18 Wis. 554. 
 
 57 Atchison, T. & S. F. Ry. Co. v. Sage, 49 Kan. 524. 
 
 58 In Massachusetts service by party held void, O'Connell v. Dow, 182 
 Mass. 541, 66 N. E. 788. 
 
 68Crozier v. Gano, 1 Bibb (Ky.) 257; Harris v. Hill, 7 Ark. 452, 46 Am. 
 Deo. 295; McCllntock v. Crick, 4 Iowa, 453; Moore v. Booker, i N. D. 543, 
 62 N. W. 607; Britton v. Berry, 20 Neb. 325, 30 N. W. 254. 
 
833 THE LAW OF EVIDENCB. § 665 
 
 place are not groiinds for suppressing the deposition,'" yet if 
 the errors or omissions are so serious that the place cannot be 
 identified or that the other party is misled, the deposition should 
 not be reeeived."'^ But a notice that several depositions will be 
 taken at the same time at different places, so far apart that the 
 party or attorney cannot be present at both, is bad,"^ although 
 it has been held in such cases that the party may elect which 
 examination he will attend, and have the other deposition sup- 
 pressed."' 
 
 § 665 (682), Mode of taking — Reducing to writing. — ^Deposi- 
 tions should be reduced to writing by the commissioner or magis- 
 trate, or by some person acting for him and in his presence."* 
 Unless the irregularity is waived, a deposition should not be re- 
 ceived which has been reduced to writing in the absence of the 
 ■ commissioner or magistrate, although the witness appears before 
 him and subscribes and swears to it."" It should be the object 
 in taking the depositions of witnesses to obtain their answers 
 to the questions propounded, uninfluenced by suggestions from 
 parties or attorneys. That end is far better attained by having the 
 entire proceedings conducted in the presence of the officer than by 
 any practice which permits the statements of the witness to be 
 prepared in advance.^' The answers of the witness may be re- 
 duced to writing by himself in the presence of the commissioner 
 or magistrate,"' but this cannot be done by a party to the suit 
 
 60 Owens v. Kinsey, 6 Jones (N. C), 38; Gibson v. Gibson, 20 Pa. St. 9; 
 Taylor v. Shemwell, 4 B. Mon. (Ky.) 575; Ridge's Orphans v. Lewis, 1 
 Tayl. (N. 0.) 536; Vawter v. Hultz, 112 Mo. 633; Atchison, T. & S. P. R. 
 Ck). V. Pearson, 6 Kan. App. 825, 49 Pac. 681; Dayis v. Settle (W. Va.), 26 
 S. B. 557; Moore v. Booker, 4 N. D. 543, 62 N. "W. 607. 
 
 81 Alston V. Taylor, 1 Hayw. (N. C.) 381; Indiana B. Pub. Co. v. Ayer, 
 33 Ind. App. 655, 72 N. E. 151. 
 
 82 Water's Heirs v. Harrison, 4 Bibb (Ky.) 87; Cole v. Hall, 131 Mass. 
 88. But see, Nolan v. Johns, 126 Mo. 159, 28 S. W. 492. 
 
 63WytheviIle Ins. & B. Co. v. Teigers, 90 Va. 277; Fant v. Miller, 17 
 Gratt. (Va.) 187; Evans v. Rothschild, 54 Kan. 747. But see, Nolan v. 
 Johns, 126 Mo. 159, 28 S. W. 492. 
 
 64 Tuthill Springs Co. v. Smith, 90 Iowa, 331, 57 N. W. 853. 
 
 65 Poster v. Poster, 20 N. H. 208; McEntire v. Henderson, 1 Pa. St. 402; 
 Grayson v. Bannon, 8 Watts (Pa.) 524. 
 
 60 Pant V. Miller, 17 Gratt. (Va.) 187; Logan v. Steele, 3 Bibb (Ky.) 
 230, where it is held that the fact that the deposition has been reduced 
 to writing elsewhere is waived, if known to the other party and not ob- 
 jected to; it is also waived by cross-examining the witness, 
 
 «7 Carlyle v. Plumer, 11 Wis. 96. 
 
5 666 / DEPOSITIONS. 833 
 
 or by his attorney, unless the objection is v/aived."* In modern 
 practice, depositions are quite generally taken in the presence 
 of the commissioner or other officer by a stenographer, and after- 
 wards reduced to long hand. In such cases, it is generally stipu- 
 lated that this course may be taken, and the signature of the 
 witness is waived. In the absence of any stipulation or waiver, 
 it is not a compliance with statutes or rules requiring the deposi- 
 tion to be reduced to writing by the commissioner or by the wit- 
 ness to have the writing done by a third person.*" This is espe- 
 cially true where the testimony has not been read over and sub- 
 scribed by the witness.'"' But the fact that the deposition is in 
 typewriting raises no presumption that it was not reduced to 
 writing by the proper officer f^ and, if officially signed by the 
 notary and the witness, it cannot be objected to on that ground.'''' 
 From the discussion in another section, it is evident that an irregu- 
 larity in the mode of taking down or reducing the deposition to 
 writing is one which the court would readily infer to have been 
 waived by the other party, if present, or if timely objection be 
 not made.'' The better practice requires that the deposition 
 should be read and subscribed by the witness.'* But of course 
 this may be waived and is often waived by stipulation.''" 
 
 § 666 (683). Interpreters. — It is common practice for the of- 
 ficers taking the deposition to make use of an interpreter when 
 thfe witness does not imderstand the language. But this is not 
 
 88 Snyder v. Snyder, 50 Ind. 492; Hurst t. Larpln, 21 Iowa, 484; Steele 
 ▼. Dart, 6 Ala. 798. 
 
 89 East Tenn. Ry. Co. v. Arnold, 89 Tenn. 107. See also, Stoddard v. 
 Hill, 38 S. C. 385. But where statutes permit the officer to "cause" the 
 deposition to he written this may be permissible, Tuthill Spring Co. v. 
 Smith, 90 la. 331, 57 N. W. 853. So where read and subscribed by the 
 witness, Kyle v. Craig, 125 Cal. 107, 57 Pac. 791; Slocum v. Brown, 105 
 la. 209, 74 N. W. 936. 
 
 TOZehner v. Lehigh C. & N. Co., 187 Pa. St. 487, 41 Atl. 464; Louisville 
 
 6 N. R. Co. V. Carter (Ky.), 66 S. W. 508; Moller v. U. S., 57 Fed. 490. 
 II Behrensmeyer v. Keitz, 135 111. 591. 
 
 72 Stoddard v. Hill, 38 S. C. 385. 
 
 '» See §§ 670 et seq. infra. 
 
 T* Thomas v. Black, 84 Cal. 221, 23 Pac. 1037; Ball v. Sykes, 70 la. 525, 
 30 N. W. 929; Homberger v. Alexander, 11 Utah, 363, 40 Pac. 260. 
 
 TB Cases in which depositions were received without signature or where 
 the signature was defective, Looker v. Looker, 46 Mich. 68, 8 N. W. 723; 
 Celluloid Mfg. Co. v. Arlington Mfg. Co., 47 Fed. 4; Chipley v. Green, 7 
 Colo. App. 25, 42 Pac. 493. 
 
 53 
 
834 THE LAW 01" EVIDENCE. | 667 
 
 necessary where the commissioner himself unSers'tanSs the lan- 
 guage of the witness/' If the record shows that an interpreter 
 acted, it should also appear that he was duly sworn as interpre- 
 terJ' If it appears that the interpreter acted unfairly,'^ or that 
 his services were dispensed with in such manner that the testimony 
 could not be properly or fairly taken, the deposition may be sup- 
 pressed.'* The testimony may be reduced to writing in the lan- 
 guage in which it is given and interpreted at the trial.^" 
 
 § 667 (684). Persons competent to take depositions. — "In the 
 absence of statutory provisions, anyone may act who has attained 
 the age of citizenship, who is of soimd mind, not disqualified by 
 crime, and who stands indifferent between the parties in the cause 
 in which the testimony is required. He must bear such relation 
 to the parties as will secure his impartiality in the execution of 
 the commission. He, in other words, should not, directly or 
 indirectly, bear to either party such relation as would authorize 
 a presumption of a bias in the execution of the trust in favor 
 of or against either party. In the absence of all prescription of 
 fitness or qualification, it is necessary to the ends of justice, and 
 required by the character of the trust devolved upon him." '' In 
 determining the competency of the commissioner or officer, it is 
 obvious that the language of the statute or rule of court of the 
 jurisdiction must also be taken into consideration.*^ The person 
 
 Ts Scheineor v. Russell, 83 Tex. 83. 
 
 77 Amory v. Pellowes, 5 Mass. 219. 
 
 78 Euberweg v. La Compagnie Generale Transatlantique, 35 Fed. 530. 
 '» Schiaffino v. The Jacob Brandow, 33 Fed. 160. 
 
 80 Cavasos v. Gonzales, 33 Tex. 133; Kuhtman v. Brown, 4 Rich. L. 
 (S. C.) 479. 
 
 81 Weeks, Dep., § 284; Lord Moyston v. Spencer, 6 Beav. 135; Fricker 
 V. Moore, Bunb. 289; Selwyn's Case, 2 Dick. 563; Newton v. Foot, 2 Dick. 
 793, where depositions were suppressed because the clerk of a solicitor in 
 the cause had been employed as clerk to the commissioner. See also, 
 Knickerbocker Ice Co. v. Gray, 165 Ind. 140, 72 N. E. 869. As to power 
 of notary at common law, see. Midland Steel Co. v. Bank, 34 Ind. App. 107, 
 72 N. B. 290; as to justices of peace, Lawson v. Rowley, 185 Mass. 171, 69 
 N. E. 1082. 
 
 82 A deposition taken before a brother-in-law of one of the parties was 
 held Inadmissible in Bryant v. Ingraham, 16 Ala. 116. The same is true 
 of a deposition taken before an uncle, Bean v. Quimby, 5 N. H. 94; or 
 before an agent or attorney of the party in the same action, Whicher v. 
 Whicher, 11 N. H. 348; Williams v. Rawlins, 33 Ga. 117; or before a re- 
 mote relative. Call v. Pike, 66 Me. 350; or before a magistrate who was p. 
 law partner of one of the parties, Dodd v. Northrop, 37 Conn. 21G. The 
 
§ 668 DEPOSITIONS; 835 
 
 designated as commissioner need not he an official,^^ but statutes 
 sometimes provide that the persons taking depositions shall be 
 a judge of court, a notary, justice, commissioner or other officer. 
 There is a general concurrence in the view that the one who takes 
 a deposition should entertain no such relation to the parties or 
 the cause as to be under any temptation to act unfairly. He 
 should be so free from Mas that, in the performance of his duties, 
 there will be no other motive than to elicit the exact truth from 
 the witness, and to reduce the statements to writing in an abso- 
 lutely impartial manner. The principal difference to be found 
 in the cases where the subject has been discussed is that, in one 
 class of decisions, the courts have suppressed depositions taken 
 before those related to the party or in any Avay interested in the 
 result, while in the other class, the courts have not inferred that 
 any injury had been caused from the mere proof of such relation- 
 ship or interest, and have refused to suppress the depositions. The 
 person authorized by the commission is the one who must act. 
 He has no right to delegate his authority.^* 
 
 § 668 (685). Comity between states. — Wh>^re a commissioner is 
 appointed by the governor of one state to take depositions in 
 another state, he is an officer only of the state under whose au- 
 thority he is appointed, and is allowed by the comity and the 
 legislation of the other state to exercise his powers there.*" The 
 courts of the state in which the commissioner acts will lend their 
 aid to compel the attendance of a witness ; and in resisting aii order 
 
 rule Is the same where the officer was surety for the costs of the party- 
 offering the deposition, Floyd v. Rice, 28 Tex. 341. When the deposition 
 was before a justice, a son-in-law of a party to the action, it was held 
 that he was not interested in the event of the action, no fraud or unfair- 
 ness being shown. Chandler v. Brainard, 14 Pick. 285. Must not be an 
 attorney in the case, Testard v. Butler, 20 Tex. Civ. App. lOG, 48 S. W. 753 ; 
 nor clerk of either attorney, Glanton v. Griggs, 5 Ga. 424. See also, Wood 
 V. Cole, 13 Pick, 279. So a deposition was admitted, although the magis- 
 trate had his office with the attorney representing a party. Singer Manfg. 
 Co. V. McAllister Bros., 22 Neb. 359. See also, McDowell v. Van Deusen, 
 12 Johns, 356; Bellows v. Pearson, II Johns, 172. 
 
 83 Semmens v. Walters, 55 Wis. 675. 
 
 84 Maryland Ins. Co. v. Bossiere, 9 Gill. & J. (Md.) 121. Notaries have 
 no judicial power and cannot punish for contempt. In re Butler (Neb.), 
 107 N. W. 572; Burns v. Superior Court, 140 Cal. 1, 73 Pac. 597. Contra, 
 In re Rauh, 65 Ohio St. 128, 61 N. B. 701. 
 
 85 Lyman v. Hayden, 118 Mass. 422; In re Couter, 81 N. Y. S. 338. See 
 also, State v. Bourne, 21 Ore. 218. 
 
836 THE LAW OP EVIDENCE. § 669 
 
 to attend, the witness can not question the jurisdiction of the court 
 which issued the commission.** Such commissioner does not, how- 
 ever, have the implied authority to employ counsel, either to in- 
 struct him in his duty or to look after the interests of a party to 
 the controversy to which the deposition relates.*' 
 
 § 669 (686). Mode of taking and returning depositions. — Gen- 
 erally, where a commission is to issue, the practice is somewhat sim- 
 ilar to that in the federal courts which has already been described.*' 
 The interrogatories and cross-interrogatories are prepared by the 
 respective parties on notice by the moving party, and in some 
 states, if the interrogatories cannot be agreed upon, they are set- 
 tled by the court or by a judge, and are transmitted with the com- 
 mission to the officer or person designated as commissioner. Stat- 
 utes and rules of court in the several states generally prescribe the 
 manner in which the person taking the depositions shall execute 
 their commission or otherwise perform their duties. Among the 
 other requirements, the officer is generally directed to publicly ad- 
 minister an oath to each witness, and the form Of such oath is 
 sometimes stated; he is to propound all the interrogatories to the 
 witness, and to carefully reduce the same to writing in his pres- 
 ence. Witnesses are generally required to subscribe their names 
 to the deposition; and the officer is also required to subscribe his 
 name, sometimes to each sheet of the deposition. After taking the 
 deposition, the officer is generally directed to return the same, per- 
 sonally or by mail or express with exhibits attached, to the clerk 
 of the court in which the action is pending, properly endorsed, to- 
 gether with his certificate showing that the statute has been com- 
 plied with. From the illustrations given in other sections, it will 
 be seen that the statutes and rules of court vary materially as to 
 the form of these certificates. It will also be found that, while the 
 provisions of such statutes must be substantially complied with, 
 mere clerical omissions or mistakes are often disregarded.'" It is 
 to be borne in mind that the foregoing are only the most general 
 provisions, such as are common to the statutes or rules of court of 
 many states, and that no attempt is made in this work to do more 
 than state in the most general manner the methods of procedure in 
 taking depositions. 
 
 86 state V. Bourne, 21 Ore. 218 ; In re Jenckes, 6 R. I. 18. 
 8T Lyman v. Hayden, 118 Mass. 422. 
 88 See §§ 636, 647 et seq, supra. 
 8«See §§ 670 et seq., 690 infra. 
 
§ 670 DEPOSITIONS 837 
 
 § 670 (687, 688). Irregularities— As to names, etc.— In the dis- 
 cussion under the head of the federal statutes, we found that depo- 
 sitions are based upon statutes, and that, since the statutes are in 
 derogation of the common law, their provisions must be substan- 
 tially complied with; but that depositions are not necessarily re- 
 jected because of mere technical irregularities, mistakes or omis- 
 sions, where it is obvious that no injustice has been done.°° The 
 
 »<> See §§ 641, 644, 652 supra. Irregularities have been held immaterial 
 where the commissioner fails to sutiscrihe each sheet of the deposition as 
 required by a rule of court, there being no suspicion that the deposition 
 has been tampered with, Chadwick v. Chadwick, 59 Mich. 87, 26 N. W. 288; 
 where the deposition has been properly addressed and endorsed, but not 
 delivered to the court through the mail, Locke v. Tuttle, 41 Mich. 407; 
 where the deposition was addressed to the supreme court instead of the 
 superior court, Scripture v. Newcomb, 16 Conn. 588; where the commis 
 sion was forwarded to the witness instead of the 'commissioner, the com- 
 mission having been delivered to the ofScer, and the deposition in other 
 respects having been properly taken, and no prejudice having been shown, 
 Phelps V. Walkey, 84 Iowa, 120; where the deputy clerk of the court. In- 
 stead of the clerk, received the Interrogatories from the post-office, Louis- 
 ville Ry. Co. V. Chaffln, 84 Ga. 519; where the answers to the interroga- 
 tories were returned in the same sealed envelope, but not attached, there 
 being no suggestion of fraud, or that the deposition had been tampered 
 with. Downs V. Hawly, 112 Mass. 237, (see also. Street v. Andrews, 115 
 N. C. 417); where the clerk of the court, required by the statute to have 
 the custody of the deposition, allowed it to he taken out of the office to be 
 copied, Harris' Appeal, 58 Conn. 492 (the contrary rule was adopted where 
 an attorney, without order of the court, sent the deposition back to be 
 corrected, Creager v. Douglas, 77 Tex. 484) ; where the name of the com- 
 missioner and that of the witness were interchanged, Eastman v. Ben- 
 nett, 6 Wis. 228; where the return contained a misrecital, by the com- 
 missioner, of the court from which the commission issued, the mistake 
 being shown by the commission itself, Louisville Ry Co. v. Chaffin, 84 Ga. 
 519; where the deposition was wrongly endorsed by the clerk of the court 
 receiving it, Hobendobler v. Lyon, 12 Kan. 276, or not marked by him as 
 filed, Moran v. Green, 21 N. J. L. 562; Summers v. Wallace, 9 Watts (Pa.) 
 161. Mere clerical omissions or mistakes in the certificate or return of 
 the officer or in the caption, which raise no inference of fraud or that 
 there has been a failure to comply in substance with the statute or rule 
 of court, are often disregarded, Kidder v. Blaisdell, 45 Me. 461; Payne v. 
 West, 99 Ind. 390; Rand v. Dodge, 17 N. H. 343; Sheldon v. Wood, 2 
 Bosw. (N. Y.) 267; Scott v. Perkins, 28 Me. 22, 48 Am. Dec. 470; Rhees 
 V. Fairchild, 160 Pa. St. '555, seal omitted; Hard v. Brown, 18 Vt. 87; 
 Borders v. Barber, 81 Mo. 636, single word of prescribed form omitted; 
 Semmens v. Walters, 55 Wis. 675, residences of witnesses omitted in cap- 
 tion; Sanford v. Spence, 4 Ala. 237, hour of day when deposition taken, 
 not stated; Kendall v. Limberg, 69 111. 355, mistake ia the name of the 
 
838 THE LAW OF EVIDENCE, § 670 
 
 same principle has been illustrated in a large number of decisions 
 in the state courts. Thus, a deposition may be received, although 
 the case is wrongly entitled in the notice, if the names of the wit- 
 nesses are given and the circumstances are such that the opposing 
 counsel must know the case intended.^^ In many cases depositions 
 have been received, notwithstanding an error as to the names of 
 the witnesses in the notice of taking, where there was such simi- 
 larity of names as to easily cause mistake, and where the other 
 party had not been misled to his injury."" But where the mistake 
 of name is substantial and material, so that the name is clearly dif- 
 ferent, and the error has not been waived, it is f atal."^ Where the 
 mistake or discrepancy in the name of a witness or party in one 
 paper or part of the deposition is corrected in another, it will be 
 disregarded."* On the principle under discussion, the deposition 
 may be received in -evidence, although there is not exact corre- 
 spondence between the name of the commissioner as stated in the 
 
 clerk issuing the commission; Lewis v. Morse, 20 Conn. 211, certificate 
 did not state ttiat deponent signed the deposition, hut this fact appeared 
 from inspection. But where the hour of taking the deposition was wrongly 
 stated the deposition was not admitted, Kean v. Newell, 1 Mo. 754, 14 Am. 
 Deo. 321. 
 
 »i Mathews v. Dare, 20 Md. 248; Monteeth v. Caldwell, 7 Humph. (Tenn.) 
 13; Jordan v. Hazard, 10 Ala. 221, where the plaintiff's name was given 
 as Robert G. Instead of Rowland G.; Dixon v. Steele, 5 Hayw. (Tenn.) 28, 
 where the names of the parties in the dedimus were incorrect, hut it did 
 not appear that there was any other suit between the parties. See § 662 
 supra. 
 
 »2 International Ry. Co. v. Kindred, 57 Tex. 491, where the name was 
 given as John McKay Instead of John Macke; Kent v. Buck, 45 Vt. 18, 
 where the deposition was signed Emily A. P. instead of Mrs. I. V. P., as 
 stated in notice, the witness being known as the wife of I. V. P.; Strayer 
 V. Wilson, 54 Iowa, 565, where there was only one christian name in the 
 deposition, but the return showed two; Bibb v. Allen, 149 U. S. 481, where 
 there was an error in the name of the commissioner; Tompkins v. Will- 
 iams, 19 Ga. 569, where the other party knew who was to be examined, 
 and cross-examined the witness; Strayer v. Wilson, 54 Iowa, 565, where 
 the two names are idem sonans; Braley v. Braley, 16 N. H. 26, where 
 the mistake of name was in the caption. See § 662 supra. 
 
 »» McCoy V. People, 71 III. Ill; Strayer v. Wilson, 54 Iowa, 565; Scholes 
 V. Ockerland, 13 111. 650; Patterson v. Wabash Ry. Co., 54 Mich. 91, where 
 the name was given as James Horan instead of Patrick Horan; Glenn 
 V. Gleason, 61 Iowa, 28, where it was Sallie E. McK. instead of S. M. K. 
 
 04 Kendall v. Limberg, 69 111. 355; Ellis v. Spaulding, 39 Mich. 366, where 
 the name was wrong in the commission, but corrected in interrogatories. 
 
§ 67* DEPOSITIONS. 839 
 
 commission and as it appears in his certificate and signature, or 
 where there are other slight mistakes in other names. "^ 
 
 § 671 (689). Waiver of objections. — ^It is a familiar rule that 
 defects in the notice or in other steps incident to the taking of a 
 deposition may be waived, either by the acts of the parties or by 
 express stipulations. Thus, if a party or his attorney appears and 
 cross-examines a witness, this is a waiver of all defects in the notice 
 or of the fact that no notice has been served. This rule rests upon 
 the ground that, when a person avails himself of the privileges 
 which a notice is designed to give, he ought not to be heard to say 
 that he has had no notice."* "When a deposition is taken pursuant 
 to verbal agreement at the time and place agreed upon, and the 
 person taking it relies on such agreement, the other party waives 
 his objection to the want of notice, whether he attends at the tak- 
 ing or not.*' The same is true where the deposition is taken against 
 
 »5 Bylngton v. Morse, 62 Iowa, 470, wbere a commission issued to Fred 
 Remley and signed by F. A. Remley was sustained on tlie presumption 
 that the commission was sent to Fred Remley, and, since It had been, re- 
 turned by some one, there was sufficient similarity between the names 
 to infer that the same person returned it; Foierson v. Irwin, 4 La. An. 
 277, where a commission, issued to E. R. Clyde, was returned executed 
 by Robert J. Clyde; Bibb v. Allen, 149 U. S. 481, where the name of the 
 commissioner was given as Carey instead of Corey; Sparks v. Sparks, 
 51 Kan. 195, where his name was given as Dan Ray instead of Daniel E. 
 Wray. This rule has been applied where the name of the defendant is 
 Inaccurately given In the notice or other papers, Mann v. Birchard, 40 Vt. 
 326; Kellum v. Smith, 39 Pa. St. 241, where the christian name was 
 omitted, (contra, McCllntock v. Crick, 4 Iowa, 453; McCandlass v. Polk, 
 10 Humph. (Tenn.) 617, where the name of the commissioner was omitted 
 In the blank and filled In by him) ; where the commission only gives the 
 Individual name of the plaintiff, instead of his name in his representative 
 capacity, Reese v. Beck, 24 Ala. 651; where the name of the state is 
 omitted from the caption, Atkinson v. Starbuck, 6 Blackf. (Ind.) 353; 
 where the caption contains a clerical error as to the date of the taking, 
 Jones V. Smith, 6 Iowa, 229. 
 
 »« Rogers v. Wilson, Minor (Ala) 407, 12 Am. Dec. 61; Doe v. Brown, 
 8 Blackf. (Ind.) 443; Nevan v. Roup, 8 Iowa, 207; Ryan v. People (Colo.), 
 40 Pac. 775; Benham v. Purdy, 48 Wis. 99; Cameron v. Cameron, 15 Wis. 
 1; Babcock v. Ormsby, 18 S. D. 358, 100 N. W. 759; Kelly v. Ning Yupg 
 B. Ass'n, 2 Cal. App. 460, 84 Pac. 321; Union Pac. R. Co. v. Thompson 
 (Neb.), 106 N. W. 598; Sheibley v. Ashton, 130 la. 195, 106 N. W. 61^8. 
 Cross-examination waives the objection of competency of the witness if 
 known, Brice v. Lide, 30 Ala. 647, 68 Am. Dec. 148. See § 645 supra. 
 
 87 Ormsby v. Granby, 48 Vt. 44. So where there Is consent to the Issu- 
 ing of a, commission, the party cannot object that it was irregularly issued. 
 
840 THE LAW OF EVIDENCE. § 672 
 
 the objection of a party, but pursuant to a notice given by him.'^ 
 The same principle has been applied when a party appears and 
 takes part in the proceedings by oijeoting to the competency of 
 testimony,"" or has the hearing continued to give him time to file 
 cross-interrogatories.^ The mere presence of a party at the taking 
 of a deposition, even when he makes no objection, has in several 
 cases been held a waiver of irregularities in the manner of taking 
 it.^ The right to object that a witness was not sworn at the proper 
 time,' or in the proper manner; * or that an answer is not respon- 
 sive to the question," or that his testimony given is in narrative 
 form" is waived by the failure to object by the party present at 
 the taking of the deposition. One who examines a witness, making 
 no objection to his competency, waives the right to do so after- 
 wards.'' 
 
 § 672 (690). Same — Objections to the authority of the com- 
 missioner. — On the same principle stated iu the last section, one 
 who cross-examines witnesses cannot object to the competency of 
 one of the commissioners to act ; ' and the filing of cross-interroga» 
 tories, without objection to the failure to give notice of the name 
 of the commissioner, will be deemed a waiver of such objection." 
 
 Cherry v. Baker, 17 Md. 75; Wilkinson v. Ward, 42 111. App. 541; In re 
 Turner, 71 Vt. 382, 45 Atl. 754. 
 
 98 Crabb v. Ortb, 133 Ind. 11. 
 
 »» Miller v. McDonald, 13 Wis. 673, the rule is the same, though the pre- 
 liminary objection was also made that there had been no notice. 
 
 1 Hobart v. Jones, 5 Wash. 385. 
 
 2 Fry V. Coleman, 1 Grant (Pa.) 445; Wertz v. May, 21 Pa. St. 274; 
 Long V. Straus, 124 Ind. 84; *Kea v. Robeson, 4 Ired. Eq. (N. C.) 427. 
 Contra, Bacon v. Rogers, 8 Allen, 146. But the mere presence of a party's 
 attorney who takes no part In the proceedings is no waiver of a want of 
 authority appearing on the face of the certificate, Harris v. Wall, 7 How. 
 693. 
 
 8 Armstrong v. Burrows, 6 Watts (Pa.) 266. 
 
 4 Northern Pac. Ry. Co. v. Urlin, 158 U. S. 271. 
 
 6 Brown v. Mitchell, 75 Tex. 9. 
 
 e Myers v. Murphy, 60 Ind. 282. The rule is the same where the objec- 
 tion is that an interrogatory is too general. International Ry. Co. v. 
 Prince, 77 Tex. 560; Paterson v. Chicago M. & St. P. Ry. Co., 95 Minn. 57, 
 103 N. W. 621. 
 
 'Well v. Silverstone, 6 Bush (Ky.) 698; Earnhardt v. Smith, 86 N. C. 
 473. 
 
 8 Douge V. Pierce, 13 Ala. 127. 
 
 9 Alcardi v. Strang, 38 Ala. 326. So it waives the filing of an affidavit 
 for the commission, Pickard v. Bates, 38 111. 40. 
 
§ 673 DEPOSITIONS. 841 
 
 An objection to the commissioner on the ground that he is not a 
 proper person to take the deposition, if known to the party or his 
 attorney, is waived, if not made when the deposition is taken,^" or 
 if the witness is cross-examined.^"- On the same principle, by eon- 
 sent of the parties, a commission may be issued in blank, leaving 
 the name of the commissioner to be inserted when the deposition is 
 taken.^^ So where each party has a right to name a commissioner, 
 a party who neglects to do so wiU be deemed to have consented to 
 have the deposition taken before the commissioner named by the 
 opposite party. ^' In a New York case, a witness on cross-examina- 
 tion was asked to annex certain letters; the witness annexed ab- 
 stracts of such letters only. It was held, when objection was made 
 at the trial, that the deposition should be received on the principle 
 that where there has been an opportunity to correct an imperfect 
 execution of a commission, either by ordering a re-execution or 
 quashing the return, no objections, because of such imperfect exe- 
 cution, should be heard on the trial;"* and where parties join in 
 executing a commission, they waive the fact that no order for a 
 commission has been made, in other words, they, waive the want of 
 authority of the commissioner to act."' 
 
 § 673 (691). When objections are to be made. — When deposi- 
 tions are read in evidence without objection, it is then too late to 
 object to their competency. As in the ease of oral testimony, a 
 •party should not be heard to object to evidence after he has waited 
 to observe its effect upon the court and jury, and after his failure 
 to make objection may have prevented the other party from sup- 
 plying the defect.^' It does not follow, however, that all objec- 
 tions to questions must be made at the time of taking the deposi- 
 tion. It is a rule, which has often been declared, that ohjections 
 to the form of a deposition or to the competency of the witness 
 must be taken before the case is called for trial, but that objections 
 
 10 Edmunds v. Griffin, 41 N. H. 529. 
 
 "Crowther v. Rowlandson, 27 Cal. 37& 
 
 "Carlyle v. Plumer, H Wis. 96. 
 
 13 Billlngslea v. Smith, 77 Md. 504. 
 
 ""Wright V. Cabot, 89 N. Y. 570. 
 
 "Rich V. Lambert, 12 How. 347; Crowther v. Rowlandson, 27 Cal. 376. 
 Other illustrative cases, lack of commission, Homberger v. Alexander, 11 
 Utah, 363, 40 Pac. 260; part of commissioners acting, Douge v. Pierce, 13 
 Ala. 127. 
 
 i« Lisbon V. Bath, 23 N. H. 1; Francis v. Ocean Ins. Co., 6 Cow. 404; 
 Northern Pac. Ry. Co. v. Urlin, 158 U. S. 271. 
 
842 THE LAW OF EVIDENCE. § 674 
 
 to the substance may be made during the trial.^'' It is a rule of 
 quite general application that mere objections to form, for exam- 
 ple, that the questions are leading, should be made at the time of 
 taiing the deposition or at least within a reasonable time before 
 the case is called for trial, or they will be deemed waived.^^ In 
 some cases, the strict rule is adhered to that this objection should 
 be made at the tilne the question was propounded, or not at all." 
 If a party is not present at the time of taking a deposition, he may 
 make such objections within a reasonable time after the return of 
 the deposition.^" If the testimony is taken on commission, objec- 
 tions to the form should be made before or at the time the commis- 
 sion issues.''^ 
 
 § 674 (692). Mere general objections. — A mere general objec- 
 tion extends only to the relevancy, competency or legal effect of 
 the testimony, and will not be considered to extend to any matter 
 of form or to any question of regularity or authority in respect 
 to the taking of the deposition.^^ For example, such an objection 
 
 "Bibb V. Allen, 149 TT. S. 481; Frlnk v. McClung, 9 111. 569; Doane v. 
 Glenn, 21 Wall. 33; Winslow v. Newlan, 45 111. 145; Doane v. Glenn, 1 Colo. 
 495; Hill V. Smith, 6 Tex. Civ. App. 312; Hennessy v. Metropolitan Life 
 Ins. Co., 74 Conn. 699, 52 Atl. 490; Travers v. Hicks, 1"' Mo. 180, 32 S. W. 
 1145; Clark v. Employers' L. Assur. Co., 72 Vt. 458, 4. Atl. 639. Contra, 
 Talbot V. Clark, 8 Pick. 51; Griffith v. McCandless, 9 Kan. App. 794, 59 Pac. 
 729. Statutes and rules of court often regulate this subject. 
 
 isAlverson v. Bell, 13 Iowa, 308; Keeney v. Chilis, 4 G. Greene (Iowa), 
 416; Mumma v. McKee, 10 Iowa, 107; Whipple v. Stevens, 22 N. H. 219; 
 Willey V. Portsmouth, 35 N. H. 303; Crowell v. Western Reserve Bank, 
 3 Ohio St. 406; Davidson v. Wallingford (Tex. Civ. App.), 30 S. W. 286; 
 Leavitt v. Baker, 82 Me. 26, 19 Atl. 86; Taylor, B. & A. R. Co. v. Werner 
 (Tex.), 60 S. W. 442. So also, that the answer is not responsive. Smith 
 V. Williams, 38 Miss. 48; Unknown Heirs v. Wren (Tex.), 16 S. W. 996. 
 
 loRowe V. Godfrey, 16 Me. 128; Sheeler v. Speer, 3 Binn. (Pa.) 130; 
 Glasgow V. Ridgeley, 11 Mo. 34. 
 
 aoMcCandlish v. Edloe, 3 Gratt. (Va.) 330. 
 
 21 Overton v. Tracey, 14 Serg. & R. (Pa.) 311; Hill v. Canfleld, 63 Pa. 
 St. 77; Chambers v. Hunt, 22 N. J. L. 552; Adams v. Wadleigh, 10 Gray, 
 360; Potter v. Tyler, 2 Met. 64; Winslow v. Newlan, 45 111. 145; Polleys 
 V. Ocean Ins. Co., 14 Me. 141. Contra, Wanamaker v. Megraw, 168 N. Y. 
 125, 61 N. B.' 112. 
 
 22 Crary v. Barlow, 5 Ark. 2110. Such objection does not reach defect in 
 notice of taking deposition, Lee v. Stiles, 21 Conn. 500; or time or manner 
 of taking, Bulwinkle v. Cramer, 30 S. C. 153, 8 S. E. 689; Southwlck v. 
 Berry, 1 Pinn. (Wis.) 559; or the return, Neosho Valley Inv. Co. v. Han- 
 num, 63 Kan. 621, 66 Pac. 631; Allen v. Pubcock, 15 Pick. 56; Gasson v. 
 
§ 675 DEPOSITIONS. 843 
 
 does not raise the point that the question is leading, and will not 
 be so Umited.^' Nor does it suffice to object in general language 
 that the deposition has not been taken pursuant to the provisions 
 of the statute,'* or that the evidence is secondary '"' or generally to 
 the whole deposition.^" "When objections are made upon specific 
 grounds aU other objections than those enumerated are ivaived." 
 
 § 675 (693). Eenewal of objections — Waiver, — It is not suffi- 
 cient to make an objection to testimony at the time of settling the 
 interrogatories on oral questions. The objection must he reneuSed 
 before or after the trial and brought to the attention of the court. ^* 
 But if it appears that a motion to suppress a deposition has been 
 made before the trial, and the objection overruled, no renewal of 
 the objection is necessary.^' If a party allows a deposition to he 
 read once without ohjectio-ns to any informality or irregularity in 
 the taking, of which he has knowledge, thereafter he can only raise 
 objections to the competency of the witness or to the subject 
 matter."" In such case, the party is held to have waived those ob- 
 jections or defects which might have been remedied, if timely ob- 
 jection had been made."'^ Thus, depositions which have been read 
 in the court below, without objection, cannot be rejected in the 
 
 Hendrlck, 74 Cal. 444, 16 Pac. 242; State v. Simmons (Kan.), .88 Pac. 57. 
 See §§ 893 et seq. infra. 
 
 2s Kansas Ry. Co. v. Pointer, 9 Kan. 620; Parsons v. Huff, 38 Me. 137. 
 
 2* Bulwinkle v. Cramer, 30 S. C. 153. Suoli objection does not reach 
 competency of the witness, Wilkins v. Metcalf, 71 Vt. 103, 41 Atl. 1035. 
 
 26 Cook V. Orne, 37 111. 186; Ward v. Whitney, 3 Sandf. (N. Y.) 399: 
 Ward V. Whitney, 4 Seld. (N. Y.) 442; Heirs of Tevis v. Armstrong, 71 
 Tex. 59. 
 
 28Gano V. Wells, 36 Kan. 688, 14 Pac. 251; University of Notre Dame du 
 Lac V. Shanks, 40 Wis. 352; Drexel v. True, 74 Fed. 12; Hurlburt v. Hurl- 
 hurt, 64 N. H. 224, 9 Atl. 100. 
 
 27 Morse v. Cloyes, 11 Barb. (N. Y.) 100; Agee v. Willams, 30 Ala. 636; 
 Potts V. Coleman, 86 Ala. 94; Commercial Bank v. Union Bank, 11 N. Y. 
 203. 
 
 28 Valentine v. Middlesex Ry. Co., 137 Mass., 28; Black v. Lamb, 12 N. J. 
 Eq. 108; Looper v. Bell, 1 Head (Tenn.) 373; Northern Pac. Ry. Co. v. 
 Urlin, 158 U. S. 271; Terre Haute & I. R. Co. v. Sheeks, 155 Ind. 74, 56 N. 
 E. 434; Hampton v. Meek (Ky.), 15 S. W. 521. In some jurisdictions be- 
 fore the trial, Florence Oil & Refining Co. v. Reeves, 13 Colo. App. 95, 36 
 Pac. 674; Dean v. Phillips, 2 Ky. L. Rep. 1621, 61 S. W. 10. 
 
 28 Cross v. Barnett, 61 Wis. 650. 
 
 30 Randolph v. Woodstock, 35 Vt. 291; Thomas v. Kinsey, 8 Ga. 421; 
 Bartlett v. Hoyt, 33 N. H. 151. 
 
 »iRay V. Smith, 17 Wall. 411; Northern Pac. Ry. Co. v. Urlin, 158 U, S. 
 
844 THE LAW OF EVIDENCE. § 676 
 
 appellate court.'' Nor can tlie question of want of notice be first 
 raised in the appellate court; ^' and a deposition which has been 
 read on a former trial of the same action should not be rejected 
 for want of proof of notice.'* So other formal objections, not 
 raised at the former trial, will be disregarded on such second 
 trial ; '" and a stipulation that a deposition taken in another suit 
 may be used in that in which the stipulation is made extends to the 
 latter.=» 
 
 § 676 (694). Objections to the substance — When made. — It 
 may be implied from the statements already made that those ob- 
 jections which do not relate to matters of form, but which attack 
 the competency or credibility of the witness, or the materiality of 
 the testimony, may be made at the trial. Although this rule has 
 been declared in the judicial decisions of some states, in other 
 states, it is the subject of statutory regulation.*' In order that 
 an objection, even to the competency or relevancy of a deposition, 
 should be effective, it should be specific, and addressed to those 
 parts which are objectionable. A mere general oijection to the 
 deposition does not reach the defects, as it may be good in part, 
 and bad in part; and the objection should be limited to the part 
 which is objectionable.^' If the objections are to interrogatories 
 on commission, the rule that the objection must be specific applies, 
 
 271; Schlag v. Goodlng-Coxe Co., 98 Minn. 261, 108 N. W. 11. See also 
 cases last cited. 
 
 82 Johnson v. Rankin, 3 Bibb (Ky.), 86; Armstrong v. Mudd, 10 B'. Mon. 
 (Ky.) 144, 50 Am. Dec. 545; Hodges v. Nance, 1 Swan (Tenn.) 57; Whitley 
 V. Davis, 1 Swan (Tenn.) 333. 
 
 ssDill V. Camp, 22 Ala. 249; McCoy v. People, 71 111. Ill; Unknown 
 Heirs of Wright v. Wren (Tex.), 16 S. W. 996; Cameron v. Cameron, 15 
 Wis. 1, 82 Am. Dec. 652. 
 
 84 Hill V. Meyers, 43 Pa. St. 170. 
 
 85Bartlett v. Hoyt, 33 N. H. 151; McMillan v. Railway Co., 56 la. 421, 
 9 N. W. 347; Anderson v. First Nat. Bank, 6 N. D. 497, 72 N. W. 916; 
 Coffin V. Jones, 13 Pick. 441., 
 
 80 United States Exp. Co. v. Jenkins, 73 Wis. 471. 
 
 87Leavitt v. Baker, 82 Me. 26; Horseman v. Todhunter, 12 Iowa, 230; 
 Kingsbury v. Moses, 45 N. H. 222; C. H. Abers Com. Co. v. Sessel, 193 111. 
 153, 61 N. B. 1075; Hennessy v. Metropolitan Life Ins. Co., 74 Conn. 699, 
 52 Atl. 490. But see, Dunbar v. Gregg, 44 111. App. 527; Rockford Ins. Co. 
 v. Farmers' State Bank, 50 Kan. 427, by statute. See §§ 893, et seq. infra. 
 
 »« Commercial Bank v. Union Bank, 11 N. Y. 203; Day v. Ragnet, 14 
 Minn. 273; Sexton v. Brock, 15 A]:k. 345; Moran v. Green, 21 N. J. L. 562; 
 Persons v. Bellng, 116 Fed. 877. See §§ 893 et seq. infra. 
 
§ 677 DEPosiTioK„ 845 
 
 for the reason that the adverse party is entitled to the opportunity 
 to change the form of the interrogatories.'" As in the case of oral 
 testimony, objections may be made to the answers as well as to 
 interrogatories. For example, a witness may volunteer improper 
 statements or make an answer wholly irresponsive to the question. 
 In such case, either party may object to the answer and move to 
 strike it out at the time of taking the deposition, or move to sup- 
 press that part of the deposition.** It is not, as a rule, the duty of 
 commissioners or other persons taking depositions to perform the 
 judicial function of passing upon the relevancy of testimony or 
 the competency of witnesses. He should note the objections, and 
 leave those questions to be determined by the court. *^ It wiU be 
 found in some jurisdictions that the statutes regulate the duty of 
 the officer in this regard. 
 
 § 677 (695). Statutory provisions as to objections. — In most 
 of the states, statutory provisions or rules of court will be found 
 regulating, to some extent, the time or mode of making objections 
 to depositions. Many of the decisions which have been cited in 
 this chapter have depended upon statutes of this character. It 
 will be found that such provisions quite generally require that 
 objections to the competency or the capacity of the witness, or to 
 the competency or relevancy of the testimony shall be made when 
 the deposition is produced at the trial, as if the witness testified at 
 the trial. These statutes are generally so framed as to deny, either 
 impliedly or by express language, the right to make objections to 
 the form of the questions, unless such objections are made before 
 the trial, although in a few instances the statutes permit such ob- 
 jections as to form, when the party had not attended the taking 
 of the deposition. In a few states, objections to the form of ques- 
 tions must be filed in writing before the trial, and these objections 
 in such case are required to be passed upon by the court before the 
 commencement of the trial. It is obviously impracticable, in a 
 
 »» Allen V. Babcock, 15 Pick. 56; Whitaker v. Sigler, 44 Iowa, 419; Steb- 
 bins V. Duncan, 108 U. S. 32; Taylor v. Strickland, 37 Ala. 642; Love v. 
 Tomlinson, 1 Colo. App. 516, 29 Pac. 666. 
 
 40 Hazelton v. Union Bank of Columbus, 32 Wis. 34; Lee v. Stowe, 57 
 Tex. 444; Greenman v. O'Connor, 25 Micb. 30; Nones v. Norf-ouse, 46 Vt. 
 587; Shepard v. Pratt, 16 Kan. 209; Stepp v. National Life & Maturity 
 Ass'n, 37 S. C. 417. 
 
 *i Carpenter v. Dame, 10 Ind. 125; Hill v. Sherwood, 3 Wis. 343. See 
 § 656, supra. 
 
846 THE LAW OP EVIDENCE. § 678 
 
 work of this character, to do more than call attention in the most 
 general maimer to these statutory provisions, leaving it to the prac- 
 titioner to examine the statutes and rules of court which regulate 
 the subject at the place of trial. 
 
 § 678 (696). Depositions not admissible unless cause therefor 
 continues. — Evidence by deposition on the trial of a common law 
 action is of a secondary character, and is, therefore, encountered 
 by the rule that forbids the use of such evidence where that which 
 is better exists, and is in the power of the party. Oral testimony 
 in the presence of the court and jury is more satisfactory evidence 
 than a deposition of the same witness; and, when it is praticable, 
 parties should in general be compelled to resort to it.*^ Hence, 
 when the deposition is taken under such circumstances that the in- 
 ability to procure the personal attendance of the witness may be 
 merely temporary, there should be proof that the cause for taking 
 the deposition has continued.*'^ Thus, where the deposition is taken 
 on account of the temporary illness of a witness, and the trial does 
 not take place until a considerable time has elapsed, it should be 
 shown, in order to admit the deposition, that the disability has 
 continued.** So where the deposition is taken on the ground that 
 the witness was about to leave the state, it should appear that the 
 purpose was carried out and that the witness has remained absent 
 so that his personal attendance could not be obtained in the ordi- 
 nary manner.*'^ The principle under discussion was applied in a 
 
 « Thayer v. Gallup, 13 Wis. 539; Schmitz v. St. Louis, I. M. & S. Ry. Co., 
 119 Mo. 256; Bast Tenn., V. & G. Ry. Co. v. Kane, 92 Ga. 187, 18 S. E. 18, 
 where this rule was applied, even when the adverse party procured the 
 attendance of the witness; Sewell v. Purnell (Del.), 40 Atl. 716; Handy 
 & Co. V. Smith, 77 Conn. 165, 58 Atl. 694. 
 
 *3 Jackson v. Rice, 3 Wend. 180, 20 Am. Dec. 683 ; Emlaw v. Emlaw, 20 
 Mich. 11; Munro v. Callahan, 41 Neb. 849, 60 N. W. 97; Weed v. Kellogg, 
 6 McLean (U. S.) 44; Memphis Ry. Co. v. Maples, 63 Ala. 601. Should 
 be shown that oBsen.ce from jurisdiction continues, Atchison, T. & S. P. 
 R. Co. V. Snedeger, 5 Kan. App. 700, 49 Pac. 103; Martinas v. State, 26 
 Tex. App. 91, 9 S. W. 356. 
 
 14 Sax v. Davis, 71 Iowa, 406, 32 N. W. 403; Jackson v. Rice, 3 Wend. 
 180, 20 Am. Dec. 683; Kirton v. Bull, 168 Mo. 622, 68 S. W. 927. 
 
 45 Commercial Bank v. Whitehead, 4 Ala. 637; In re Dolbeer's Estate 
 (Cal.), 86 Pac. 695, 705; Morgan v. Halverson, 9 Wis. 271; Goodyn v. Lloyd, 
 8 Port. (Ala.) 237, but if the witness dies before leaving the state the 
 deposition may be admitted. The deposition will not be rejected merely 
 because the witness may have been in the state at some time between its 
 taking and the trial, Johnson v. Sargent, 42 Vt. 195. If he is present in 
 
§ 678 DEPOSITIONS. 847 
 
 case where the deposition of a witness residing out of the state 
 had been taken. He came into the court room during the trial, 
 remained in the place where court was held and was there when 
 his deposition was offered. He had not been subpoenaed by either 
 party, and no explanation was made of the failure to call him as 
 a witness. It was held that the deposition was inadmissible.''^ 
 On the same principle, when the deposition of a witness within the 
 state is taken on the ground that he resides more than thirty miles, 
 or some other distance prescribed by statute, from the place of 
 trial, and the witness who still resides at that distance is present 
 in court when his deposition is offered, the court is authorized to 
 reject the deposition, and, in numerous cases, such depositions 
 have been rejected as inadmissible.*' In other jurisdictions, it 
 has been held admissible to read a deposition properly taken, al- 
 though the witness happens to be in court, leaving it to the other 
 party to examine him orally.*' It has been held a proper exercise 
 of judicial discretion to refuse to receive the deposition of a plain- 
 court at the trial the deposition will be excluded, Neilson v. Hartford St. 
 Ry. Co., 67 Conn. 466, 34 Atl. 820. 
 
 *6 Mobile Ins. Co. v. Walker, 58 Ala. 290; Chicago, K. & W. Ry. Co. v. 
 Prouty, 55 Kan. 503, 40 Pac. 909. But where witness came into the court 
 after the deposition had been read it was held error to exclude it, Benja- 
 min V. Railway Co., 133 Mo. 274, 34 S; W. 590. See also cases cited in next 
 note. 
 
 *7 Thayer v. Gallup, 13 Wis. 539; Stiles v. Bradford, 4 Rawle (Pa.) 
 394; O'Connor v. Andrews, 81 Tex. 28; Abies v. Miller, 12 Tex. 109, 62 Am. 
 Dec. 520; Sergeant v. Adams, 1 Tyler (Vt.) 197; Schmitz v. St. Louis, 
 I. M. & S. Ry. Co., 119 Mo. 256, 24 S. W; 472; Haward v. Barron, 38 N. H. 
 366; East Tenn., V. & G. Ry. Co. v. Kane, 92 Ga. 187, 18 S. B. 18; Phenix 
 V. Baldwin, 14 Wend. 62, non-resident witness; Handy & Co. v. Smith, 77 
 Conn. 165, 58 Atl. 694. It has been held error to receive the deposition 
 of a witness residing in the county, without proof that his attendance 
 cannot be had, Chicago Ry. Co. v. Brown, 44 Kan. 384; Prankhauser v. 
 Neally, 54 Kan. 744; Willard v. Mellor, 19 Colo. 534; Munro v. Callahan, 
 41 Neb. 849. Where a deposition was taken and the witness appeared 
 and testified orally, it was held that the deposition oould not be read on a 
 second trial, Baltimore Ry. Co. v. State, 91 Md. 506, 46 Atl. 1000. 
 
 "Frink v. Potter, 17 111. 406; Ford v. Ford, 11 Humph. (Tenn.) 89; 
 Barton v. Trent, 3 Head (Tenn.) 167; Fire Ass'n v. Masterson (Tex.), 83 
 S. W. 49; Louisville & N. R. Co. v. Steenberger (Ky.), 69 S. W. 1094; 
 Sherrod & Co. v. Hughes (Tenn.), 75 S. W. 717; Thayer v. Gallup, 13 Wis. 
 539, where the practice was not approved, but held to be discretionary 
 with the court. In O'Connor v. Andrews, 81 Tex. 28, it was also held a 
 matter of judicial discretion. 
 
848 THE lAW OF BVIDENCB. ' § 680 
 
 tiff taken by a defendant before the trial, when offered by the 
 defendant, the plaintiff being in court and having fully testified.*' 
 
 § 679 (697). Same— Modifications of the rule— Statutes.— It 
 will be found that most of the decisions excluding depositions, 
 when the attendance of the witness could have been obtained, are 
 based to some extent upon statutes thus limitiag the use of depo- 
 sitions. Where the statute provided that the deposition could be 
 read in evidence "when the witness was not produced in court," 
 it was held that, siace the deposition had been *properly taken, it " 
 could be read in evidence although the witness had been in court 
 on the day of the trial, as it was not shown that he was ' ' produced 
 in court" at the time the deposition was read, or that his absence 
 was due to any fault of the party who offered the deposition.^" Un- 
 der another statute providing for the taking of a deposition of any 
 witness, and that it should be read at the trial, subject neverthe- 
 less to the right of either party to require the personal attendance 
 and viva voce examination of the witness whose deposition had 
 been taken, it was held that, after he had been examined at the 
 trial, the deposition could be read.°^ Under some statutes depo- 
 sitions may be taken absolutely and under such statute the pres- 
 ence of the witness does not exclude the deposition."* 
 
 § 680 (698). Continuance of the cause — How inferred. — ^Where 
 it is shown that cause existed :^r taking the deposition, it may 
 be inferred from circumstomces, such as from the age of the wit- 
 ness,"* or from the nature of the illness or infirmity and the short 
 lapse of time,"* or from the distance of his residence from the place 
 of trial,"" or from other pertinent facts that it is not practicable 
 
 loGrlgsby v. Shwarz, 82 Cal. 278. See also, Johnston v. McDuffiee, 83 
 Cal. 30. 
 
 50 Louisville Ry. Co. v. Hubbard, 116 Ind. 193; McFarland v. United 
 States Mut. Ace. Assn., 124 Mo. 204. 
 
 liiMcLawrin v. Wilson, 16 S. C. 402. 
 
 B2 Adams v. Weaver, 117 Cal. 42, 48 Pac. 972; Louisville v. Muldoon 
 (Ky.), 49 S. W. 791. 
 
 03 Pollard v. Lively, 2 Gratt. (Va.) 216, age and ill health; Worthy v. 
 Patterson, 20 Ala. 172. See also. Ails v. Sublet, 3 Bibb (Ky.) 204. See 
 also, Jackson v. Rice, 3 Wend. 180, 20 Am. Dec. 683, where it was held 
 •that inability from age alone would not be presumed. 
 
 5* Clark V. Dibble, 16 Wend. 601; Beitler v. Study, 10 Pa. St. 418. In 
 these cases the proof showed that the witnesses were in an advanced 
 state of pregnancy. Taylor v. Taylor's Estate, 138 Mich. 658, 101 N. W. 832. 
 
 es Earnhardt v. Smith, 86 N. C. 473; Bronner v. Frauenthal, 37 N. Y. 
 
§ 680 DEPOSITIONS. 849 
 
 to obtain tte attendaxiee of the witness or that the cause still con- 
 tinues. Testimony, that inquiries had been made at the former 
 place of business of an alleged absent witness, as well as at other 
 places, and of various people who had known him, and that they 
 had said they did not know where he was, but understood that 
 he was in another state, is sufficient proof of absence.^" When 
 the deposition is taken on the ground that the witness resides out- 
 side the state, it will be presumed, until the contrary appears, 
 that such noTi^residence continues.^'' In one jurisdiction, the rule 
 has been declared that, if the legal cause for taking the deposition 
 no longer exists at the time of trial, the proof to exclude it must 
 come from the adverse party.'* But a different rule prevails in 
 other jurisdictions, where it is held that the burden of proving 
 such facts rendering the deposition admissible is upon the party 
 offering it in evidence.'^ The rule under consideration does not 
 exclude a deposition taken on sufficient grounds, if subsequently 
 and before the trial, the wittiess has become unable to testify, by 
 reason of death, sicloiess or other cause,'" or when the witness was 
 incompetent at the time of taking the deposition, but has since 
 been made competent by statute,"^ or where the nature of a stipu- 
 lation for the taking the testimony is such as to remove the objec- 
 tion,** or by the fact that the adverse party has procured the at- 
 tendance of the witness at the trial, and discharged him before the 
 deposition is offered."^ 
 
 166; McCutcheon v. McCutcieon, 9 Port. (Ala.) 650; Gelly v. Singleton, 3 
 Litt. (Ky.) 250; Hennessy v. Niagara Fire Ins. Co., 8 Wash. 91, 35 Pac. 
 585, 40 Am. St. Rep. 892, absence from jurisdiction; Chicago, B. & Q. R. Co. 
 V. Krayenbuhl, 70 Neb. 766, 98 N. "W. 44. 
 
 oeReuton v. Monnler, 77 Cal. 449. 
 
 sTPharr v. Bachelor, 3 Ala. 237; Gelly v. Singleton, 3 Litt. (Ky.) 250; 
 In re Arrowsmitli's Estate, 206 111. 352, 69 N. E. 77; In re Dolbeer's Estate 
 (Cal.) 86 Pac. 695, 705; Texas & P. R. Co. v. Reagan, 118 Fed. 815; Lowe 
 V. Vaughan, 48 Neb. 651, 67 N. W. 464; Hoopes v. Devaughn, 43 W Va. 
 447, 27 S. B. 251. 
 
 68 Logan V. Monroe, 20 Me. 257. 
 
 6» Atkinson v. Nash, 56 Minn. 472; Fry v. Bennett, 4 Duer (N. Y.) 247. 
 
 60 Tift V. Jones, 74 Ga. 469, where the witness was present at the trial, 
 but, by reason of sickness, his memory had been affected; Goodwyn v. 
 Lloyd, 8 Port. (Ala.) 237, where the witness had been prevented from 
 leaving the state by his death; Henry v. Northern Bank, 63 Ala. 527, 
 mental incapacity. 
 
 siVauscoy v. Stlnchcomb, 29 W. Va. 263. 
 
 •2 Bstep V. Larsh, 21 Ind. 183. 
 
 «» Shirts T. Irons, 37 Ind. 98. 
 
 64 
 
850 THE LAW OP EVIDENCE. § 682 
 
 § 681 (699). Use in other actions. — The use of depositions as 
 evidence is not necessarily limited to the action in which they are 
 taken. On the contrary, if a second action is brought between the 
 same parties or their representatives in interest, in which the 
 issues are substantially the same, depositions, properly taken in the 
 former action, may, by the order of the court, be used in the lat- 
 ter."* Although an order of court is generally obtained when it is 
 desired to use depositions taken in another action, the practice pre- 
 vails in some jurisdictions of allowing such depositions to be read 
 without an order or notice of their intended use."" 
 
 § 682 (700). Use of depositions on second trial. — ^If a deposi- 
 tion has been taken and used on a former trial, it may be read on 
 a second trial of the same action when the cause for the taking 
 continues, or when the witness has died before the second trial."" 
 In an action "where it was stipulated that the plaintiff's deposition 
 might be used on the trial of the cause, the plaintiff testified on 
 the first trial and the deposition was not read ; at the second trial, 
 the plaintiff was absent, and it was held that the deposition was 
 admissible."^ Where a cause was remanded from the federal to 
 
 8*Haupt V. Henninger, 37 Pa. St. 138; Brooks v. Cannon, 2 A. K. Marsh. 
 (Ky.) 525; Taylor v. Bank of 111., 7 T. B. Mon. (Ky.) 576; Hetli v. Young, 
 11 B. Mon. (Ky.) 278; Briggs v. Briggs, 80 Cal. 253, where the statutes 
 on the subject are liberally construed; Stewart v. Register, 108 N. C. 588, 
 where an order of court was held unnecessary; Woolenslagle v. Runals, 76 
 Mich. 454, where a deposition taken in an action of assumpsit since discon- 
 tinued was allowed to be read in an action for fraudulent representation 
 between the same parties and brought in the same court; Chaddick v. 
 Haley, 81 Tex. 617, where the deposition of a testator was admitted to 
 show the cause of his estrangement from his children; Weertz v. May, 21 
 Pa. St. 274, where deposition taken in a former ejectment case between the 
 same parties and relating to the same land was allowed to be read. On 
 the same principle, a deposition admissible in the original suit is also ad- 
 missible upon the hearing of a cross-bill, filed after it was taken under an 
 order, afterwards entered, that all depositions taken in the original suit 
 should be read in evidence in the cross-suit, subject to the same exceptions. 
 Smith's Ex. v. Profitit's Adm., 82 Va. 832. 
 
 65 Adams v. Raigner, 69 Mo. 363; Stewart v. Register, 108 N. C. 588, 13 
 S. E. 234; Searle v. Richardson, 67 Iowa, 17, 25 N. W. 113, where it was 
 held necessary to file the deposition In the second action, and to obtain 
 leave to use them. 
 
 «o Chase v. Springvale Mills Co., 75 Me. 156; Wisdom v. Reeves (Ala.), 
 18 So. 13; Providence Mach. Co. v. Browning (S. C), 49 S. B. 325. 
 
 «7£a! parte Priest, 76 Mo. 229, where it was held that the fact that a 
 deposition had been taken in a former suit did not excuse the witness from 
 
§ 683 DEPOSITIONS. 85] 
 
 the state court, it was held that depositions takes, while the action 
 was pending in the federal court might be received."' Depositions 
 are not to be rejected for the reason thai, subsequent to their tak- 
 ing, the pleadings have been materially amended, if the issues re- 
 main substantially the same.°° But if new parties are joined, the 
 depositions taken before the joinder cannot be read against such 
 new parties.'" Depositions properly taken at one stage of the pro- 
 ceeding may be used at any other.'^ 
 
 § 683 (701), If used in other actions— Issues and parties to be 
 substantially the same.— It is to be borne in mind that depositions 
 taken in other actions are not to be received in evidence, unless the 
 pai-ties are the same or in privity, and unless the issues are sub- 
 stantially the same. To admit evidence of such character would 
 deprive the party against whom the deposition is offered of the 
 right of notice, and of the right to attend and cross-examine the 
 witness." Thus, where a husband and wife were each injured 
 on a ferry boat at the same time and by the same cause, the depo- 
 sition of the husband taken in aji action by the wife against the 
 ferry company for the injury to herself, in which he was plaintiff 
 only by reason of being her husband, was not received in an action 
 by the wife, as his administratrix, against the company for the in- 
 testifying In the second suit. But see Acme Mfg. Co. v. Reed 197 Pa 359 
 47 Atl. 205, 80 Am. St. Rep. 832. 
 
 «8 Missouri Pac. Ry. Co. v. White, 80 Tex. 202. The same rule holds 
 where the cause is removed from the state to the federal court. United 
 States Life Ins. Co. v. Ross, 102 Fed. 722. 
 
 69 Anthony v Savage, 3 Utah, 277; Salmer v. Lathrop, 10 S D 216 72 N 
 W. 570; Williams v Holt, 107 Maes. 351, 49 N. E. 65. Other actions con- 
 sidered, Kothman v. Faseler (Tex.), 84 S. W. 390. 
 
 70 Jones V. Williams, 1 Wash. (Va.) 230; Kerr v. Gibson, 8 Bush (Ky ) 
 129; Dalsheimer v. Morris (Tex. Civ. App.), 28 S. W. 240; Brown v Zach- 
 ary, 102 la. 433, 71 N. W. 413; Smyser v. Pranck (Ky.), 47 S w' 1071- 
 Smith V. Mil. B. & T. Exch., 91 Wis. 360. 64 N W. 1041, 30 L. R A 504 
 
 vf/,r«'^ ,i' *''r' ^'' "'^ '''^'"^'^' «°I<i«"iitli V. Goldsmith (w' 
 va.), 33 S. B 266; where parties intervene and issues remain same deposi- 
 tion admissible, Lougee v. Bray, 42 Minn. 323 44 N W 194 
 
 Vt^TaTitl: mJ"'- '' ""• '■ "^ '''' '' ^"- ««2; Walton.v. Walton. 63 
 "Doane V. Glenn, 1 Colo. 495; Borders v. Barber, 81 Mo. 636- Tappan v 
 Beardsley, 10 Wall. 427; Sewall v. Robbins, 139 Mass. 164- Camden RvrJ' 
 V. Stewart, 21 N. J. Eg. 484; Southern White Lead Co v hTss 73 low^" 
 399; In re Edgerly's Estate (Minn.). 99 N. W. 896; Centra^Bank v Tha^; 
 (Ma) 82 S. W. 142; Heyworth v. Miller, B. & El. Co 174 Mo Iti Ts 
 S. W. 498; Nelson v. Harrington. 72 Wis. 591. 40 N W 22S. 
 
852 THE LAW OP EVIDENCE. § 683 
 
 jury to him." So a deposition of a person, since deceased, as to 
 the execution of a note, taken for the purpose of proving up the 
 claim before the executors, is not admissible in a suit subsequently 
 brought against the executors upon the note, as, with respect to 
 such suit, it is res inter alios.''* The same principle was applied 
 in an action brought against a bank and its cashier, when the ac- 
 tion was disimssed as against the cashier before the trial, and when 
 the deposition of the cashier, taken in another action between the 
 bank and a third party, was offered in evidence. It was there 
 held that, since the cashier was not a party, the deposition could 
 not be received for any other purpose than to contradict him as a 
 witness after laying the proper foundation therefor.'" Since the 
 competency of the deposition taken in the former suit depends upon 
 the fact that the adverse party, or those in privity with him, had 
 the opportunity to cross-examine the witness, if it appears that 
 the deposition was taken without authority, or without the sanc- 
 tion of an oath, or without such chance of cross-examination, it 
 should not be received, although, if due notice was given, it is not 
 necessary that any cross-examination should have actually been 
 made.'" It is very clear that depositions of the character under 
 discussion should, be admitted when, at the time of the second trial, 
 the witness whose testimony is offered is dead or beyond the juris- 
 diction of the court. It has sometimes been declared that deposi- 
 tions taken in a former suit will not be admitted, although the 
 parties and issues are the same, unless there are some peculiar 
 reasons, and unless some cause is shown for not bringing the wit- 
 nesses into court or for taking their depositions again." But in 
 many of the cases we have cited, no such limitation is mentioned. 
 It is hardly necessary to add that depositions taken in former 
 cases may be used to contradict a witness or to show the admission 
 
 73 Fearn v. West Jersey Ferry Co., 143 Pa. St 122. The rule is the same 
 in an action by a father for loss of services of his son, where the former 
 action was by the son. Nelson v. Harrington, 72 Wis. 591, 40 N. W. 288. 
 See, however, St. Louis S. W. R. Co. v. Hengst (Tex.), 81 S. W. 832. 
 
 '*Choate V. Huff (Tex. App.), 18 S. W. 87. 
 
 ToBartelott v. International Bank, 119 111. 260; Kerr v. Gilson, 8 Bush 
 (Ky.) 129, same principle. 
 
 76 Fitzgerald v. Fitzgerald, 3 Swab. & T. 397; Steinkeller v. Newton, 1 
 Scott N. R. 148, 9 Car. & P. 313; Tayl. Ev. (10th Ed.) §§ 465, 466 and cases 
 cited. 
 
 7T O'Harra's Heirs v. Hunt, 19 Ohio, 460. 
 
§ 684 DEPOSITIONS. 853 
 
 of a party on the same principle that oral statements of like char- 
 acter may be shown.'' 
 
 § 684 (702). Control and use of depositions. When a deposi- 
 tion has been taken and filed, it becomes subject to the control of 
 the court. It is not under the ownership or control of either party 
 to the exclusion of the other; nor can either party be compelled 
 to make use of the deposition, if he does not elect to do so.'"' This 
 rule applies to the direct as well as to the cross-examination.*" If 
 a deposition has been taken on the interrogatories of both parties, 
 and is withheld by the commissioner at the request of the one at 
 whose instance it was taken, the court will, on application, issue 
 an order for its return. It is not in the discretion of the court to 
 refuse such an order, because the testimony may have been unfa- 
 vorable, or a surprise to one of the parties.*^ Although there is 
 some authority to the contrary, it follows as a natural consequence 
 of the rule already stated, that a party may use as evidence a depo- 
 sition relevant to the issue, although taken hy the adverse party. 
 This rule is the same whether the evidence was given as answers 
 to the direct or the cross-examination.^^ Under such cireumr 
 stances, the deposition may be read, although the party so offering 
 it had no notice of the taking. He has the right to waive that 
 requisite.*' A party has the same legal right to read a deposition, 
 regularly taken and filed hy the other party, that he would have 
 
 T8 Heirs of Holman v. Bank, 12 Ala. 369; Heth v. Young, 11 B. Mon. 
 (Ky.) 278; Nelson v. Harrington, 72 Wis. 591, 40 N. W. 228. 
 
 79 Elliot V. Sliultz, 10 Hmnph. (Tenn.) 234; Sherrod & Co. v. Hughes 
 (Tenn.), 75 S. W. 717. It has been held that a deposition can not be used 
 In evidence If taken from the flies and kept until the trial, Collins v. 
 Shafer, 78 Hun. 512. See §§ 650 supra, 693 infra. 
 
 80 Williams v. Kelsey, 6 Ga. 365; Watson v. Race, 46 Mo. App. 546. 
 
 81 First Nat. Bank v. Forest, 44 Fed. 246. 
 
 82 Nash V. State, 2 G. Greene (Iowa) 286; McClintock v. Curd, 32 Mo. 
 411; Weber v. Kingsland, 8 Bosw. (N. Y.) 415; Oconnor v. American Iron 
 Co., 56 Pa. St. 234; Juneau Bank v. McSpedon, 15 Wis. 629; Memphis & C. 
 Packet Co. v. Pickey (Ind.), 40 N. E. 527; Curtis v. Parker, 136 Ala. 217, 33 
 So. 935; Brown v. Byan. 65 la. 374, 21 N. W. 684; In re Smith, 34 Minn. 
 436, 26 N. W. 234; Wallace, M. & Co. v. Leber, 69 N. J. L. 312, 55 Atl. 475; 
 Town of Ansonla v. Cooper, 66 Conn. 184, 33 Atl. 905; Citizens' Bank v. 
 Ehutasel, 67 la. 316, 25 N. W. 261; Ulrlch v. McConaughey, 63 Neb. 10, 88 
 N. W. 150. But see, John P. King Mfg. Co. v. Solomon (Tex. Civ. App.), 
 25 S. W. 449; San Antonio & A. P. R. Co. v. Harrison, 72 Tex. 478, 10 S. W. 
 556. 
 
 ssYeaton v. Fry, 5 Cranch, 335. 
 
854 THE LAW OF EVIDENCE. § 685 
 
 to introduce a witness summoned by such party.'* The principal 
 objection which has been made to the practice of allowing a person 
 to use a deposition taken by the adverse party is that, if either 
 party is allowed first to use a deposition taken by the other, the 
 party taking it is deprived of the right of cross-examination.^'* In 
 answer to this, it may be said that the general presumption is that 
 the testimony of a witness will be in favor of the party calling him, 
 and therefore the right of cross-examination ordinarily belongs to 
 the opposite party ; and if the witness should prove hostile, it would 
 be proper to treat him at the time of taking the deposition as such 
 witnesses are treated on their oral examination.'" 
 
 § 685 (703). Use of portions of depositions. — When a deposi- 
 tion relates to distinct transactions and is not used by the party 
 in whose behalf it was taken, the other party may be permitted to 
 introduce parts of the deposition relating to one or more of such 
 transactions, although he declines to offer it as to others; but he 
 should not be pemdtted to introduce such a part of the testimony 
 with reference to a particular transaction as is favorable to him, 
 and reject those portions which are unfavorable.'' Applying the 
 principle more broadly, there would seem to be no objection to 
 allowing either party to read such parts of depositions as are rele- 
 vant and relate to any distinct transaction, leaving it to the other 
 party to offer the remainder of the deposition, if he desires.*' It 
 
 8*Hazelton v. Union Bank of Columbus, 32 Wis. 45; Echols v. Staunton, 
 3 W. Va. 574; Brandon v. Mullenlx, 11 Heisk. (Tenn.) 446; McDonald v. 
 Smith, 139 Mich. 211, 102 N. W. 668; Kruger v. Spachek, 22 Tex. Civ. App. 
 307, 54 S. W. 295. When the deposition of a witness is taken by both par- 
 ties, either party may use both depositions. Woodruff v. Garner, 39 Ind. 246. 
 
 SB Sexton v. Brock, 15 Ark. 345. See also the cases cited above. 
 
 88 Juneau Bank v. McSpedon, 15 Wis. 629. See also the cases cited above. 
 See §§ 817 infra. 
 
 ST Citizens' Bank v. Rhutasel, 67 Iowa, 316; Providence Mach. Co. v. 
 Browning (S. C), 49 S. EJ. 325; First Nat. Bank v. Minneapolis & N. El. Co., 
 11 N. D. 280, 91 N. W. 436, as to mere extracts. 
 
 88 Van Horn v. Smith, 59 Iowa, 142; Calhoun v. Hays, 8 Watts & S. (Pa.) 
 127, 42 Aid. Dec. 275; Gellatly v. Lowery, 6 Bosw. (N. Y.) 113; Converse 
 V. Meyer, 14 Neb. 190, 15 N. W. 340; McDonald v. Smith, 139 Mich. 211, 102 
 N. W. 668; Keller v. Railway Co. (Neb.), 11 N. W. 384; Watson v. St. Paul 
 City R. Co., 76 Minn. 358, 79 N. W. 308; Morrison v. Wis. Odd F. Mut. Life 
 Ins. Co., 59 Wis. 162, 18 N. W. 13. But see. Bank v. Finnell, 133 Cal. 475; 
 65 Pac. 976; Thomas v. Miller, 151 Pa. St. 482, 25 Atl. 127; Southwark Ins. 
 Co. V. Knight, 6 Whart. (Pa.) 327; Grant v. Pendery, 15 Kan. 236, where a 
 party refused to read the cross-examination after reading the direct ex- 
 
§ 686 DEPOSITIONS. 855 
 
 is clear that, when parts of a deposition are so read, the other party 
 may introduce such portions as relate to the same subject and tend 
 to explain that which has beesa read.°° When a person uses the 
 deposition of the adverse party he thereby maizes the testimony his 
 own and is estopped from claiming that the portion read is incom- 
 petent evidence; "'' and the party who has taken the deposition 
 may object to his interrogatories, if the deposition is used by the 
 adversary."^ So it has been held that one who has taken a deposi- 
 tion which he does not use is not debarred from introducing evi- 
 dence to impeach the witness, if the deposition is used by the other 
 party.*' It is obvious that a deposition does not become relevant 
 or admissible for one party, merely because it has teen taken iy 
 the other party, unless the testimony would otherwise be material or 
 relevant. Thus, where a deposition was taken to impeach the char- 
 acter of a witness, but was not used, and the character of the wit- 
 ness was not otherwise assailed, the adverse party had no right 
 to use the deposition, although it would have been otherwise, if 
 the witness had been attacked on the trial."* 
 
 § 686 (704). Suppression of depositions. — A common mode of 
 objecting to the validity of a deposition is by a motion for its sup- 
 pression, that is, to have it declared by the court to be wholly in- 
 admissible and of no effect. Since the taking of depositions is a 
 proceeding, subject to the control of the court, such motion may 
 be made, even before the taking of the deposition, when the ob- 
 
 aminatlon of his own witness, and It was held proper to strike out the part 
 read and to Instruct the jury to disregard the same. Cases holding that 
 he must offer all relating to the particular point, Mecartney v. Smith, 10 
 Kan. App. 580, 62 Pac. 540; Hamilton Brown Shoe Co. v. Milliken, 62 
 Neb. 116, 86 N. W. 913. See § 171 supra. 
 
 «» Whitman v. Money, 63 N. H. 448; Wunderlich v. Ins. Co., 104 Wis. 382, 
 80 N. W. 467; Gutzman v. Clancy, 114 Wis. 589, 90 N. W. 1081. 
 
 80 Jewell V. Center, 25 Ala. 498; Fountain v. Ware, 56 Ala. 558; Texas 
 & P. Ry. Co. V. Gay (Tex.), 30 S. W. 543; Roller v. James, 6 Kan. App. 913, 
 49 Pac. 630. 
 
 91 Hatch v. Brown, 63 Me. 410; Maldaner v. Smith, 102 Wis. 30, 78 N. W. 
 140; First Nat Bank v. Edwards (Tex.), 81 S. W. 541; In re Smith, 34 
 Minn. 436, 26 N. W. 234; West. U. T. Co. v. Lovely, 29 Tex. Civ. App. 584, 
 69 S. W. 128. 
 
 s2£}iiiott V. Schultz, 10 Humph. (Tenn.) 234. Contra, Jordan v. Jordan, 
 3 Thomp. & 0. (N. Y.) 269. 
 
 »s Sullivan v. Norris, 8 Bush (Ky.) 521. Clearly neither party is com- 
 pelled to offer parts of his deposition which are irrelevant, Forbes v, 
 Snyder. 94 111. 374; Kramer y, Kramer. 80 N. Y. Supp. 184. 
 
856 THE LAW OF EVIDENCE. § 686 
 
 jeeting party desires to raise the question whether the notice is 
 sufScient or whether the proceeding is regular in other respects. 
 Much more frequently, however, the motion is made after the re- 
 turn of the deposition and before the trial. We have seen that 
 objections to interrogatories or evidence, or to any of the proceed- 
 ings incident to the taking of depositions may be waived, if they 
 are not made before the trial. On the principle that such objec- 
 tions, when made at the trial, aj"e too late to admit of the correc- 
 tion of errors which might otherwise be remedied, the courts gen- 
 erally refuse to entertain motions to suppress depositions, unless 
 they are made before the trial.'* It is to be remarked, however, 
 that the suppression of a deposition is a matter resting to a con- 
 siderable extent in the discretion of the court; "' and, in some ju- 
 risdictions, such motions wiU be entertained at the trial. ^' But it 
 should be noted that those objections which relate to the materiality 
 of the testimony should be raised at the trial ; and depositions will 
 not, as a rule, be suppressed before trial on that ground, unless it 
 is clear that the testimony can under no contingency become rele- 
 vant." 
 
 »* Spence v. Mitchell, 9 Ala. 744; Graydon v. Gaddis, 20 Ind 515; Root v. 
 Coyle, 15 Okl. 574, 82 Pac. 648; Order of V. C. T. of Am. v. Barnes, 72 Kan. 
 293, 82 Pac. 1099; Clogg v. McDaniel, 89 Md. 416, 43 Atl. 795; Am. Pub. Co. 
 V. C. E. Mayne Co., 9 Utali, 318, 34 Pac. 247; Goodland v. LeClair, 78 Wis. 
 176; Howard v. Stillwell, 139 U. S. 199. But see, Hazlett v. Gambold, 15 
 Ind. 303; Stull v. Howard, 26 Ind. 456; Wall v. Williams, 11 Ala. 826. In 
 Morgan v. Wing, 58 Ala. 301, It was held too late to object after the jury 
 was selected. See also, Glenn v. Clare, 42 Ind. 60, where the same rule 
 was declared, where the defect did not appear in the deposition; Bank v. 
 Travers, 4 Blss. (U. S.) 507, it was held to be too late, where the deposition 
 had been on file three years; Palms v. Richardson, 51 Mich. 84, where no- 
 tice of filing was given, but no motion to suppress had been made before 
 the trial; Edwards v. Heuer, 46 Mach. 95, same rule where there was 
 irregularity in certificate; In re Noble's Estate, 22 111. App. 535, same rule 
 where appellant's counsel moved to open the deposition, and then moved 
 to suppress it because not properly inclosed. 
 
 «o Semmens v. Walters, 55 Wis. 675, 13 N. W. 889; Smith v. Groneweg, 
 40 Minn. 178; Gorman v. Minneapolis & St. L. Ry. Co., 78 Iowa, 509. 
 
 08 Adams Express Co. v. McConnell, 27 Kan. 238, where a motion was 
 entertained on the day before trial. 
 
 »7 Pittsburgh Ry. Co. v. Theobald, 51 Ind. 246; Tays v. Carr, 37 Kan. 
 141, 14 Pac. 456; Terre Haute & L. I. R. Co. v. Sheeks, 155 Ind. 74, 56 N. E. 
 434. Portions clearly improper suppressed, Stull v. Stull (Neb.), 96 
 N. W. 196. 
 
§ 688 DEPOSITIONS. 857 
 
 § 687 (705). Grounds for suppression. — It has become a well 
 recognized practice to suppress a deposition when the objection is 
 brought to the attention of the court with reasonable diligence, 
 and it is established that the same was taken under such circiun- 
 stances that its use would tend rather to pervert, than to aid the 
 administration of justice."* It is a well established rule that a 
 d^osition may be attacked by proof that it was taken unfairly or 
 without authority of law. Under statutes providing that the an- 
 swer shaU. be written down by the officer, it has been held good 
 ground for suppression that the answers of the witness had been 
 secretly prepared for him by an attorney or other person in ad- 
 vance; •' or that the witness never signed the deposition, or that he 
 was personated by another;^ or that the deposition or the part 
 sought to be suppressed is wholly hearsay ; " or where it appears 
 that the statements were not made on the knowledge of the witness, 
 and that he had evaded stating the means of his knowledge ; ' or 
 where the notices have been so served that the adverse party or his 
 attorney could not have a reasonable opportunity to cross-examine 
 the witness,* or where no commission had been issued to the officer." 
 
 § 688 (706). Same — Where party is deprived of right of cross- 
 exami'nation. — ^It is clearly within the power of the court to 
 suppress a deposition, when it appears that the moving party has 
 been deprived of his right to cross-examine the witness by any 
 misconduct of the witness or the party, or by the sickness or death 
 of the witness.* If, however, the cross-examination was postponed 
 by consent of the parties, whereby the objecting party has lost the 
 right to cross-examine the witness by reason of his death, and his 
 own lack of vigilance, there is no ground for suppression.' And 
 
 »8 See cases and Illustrations already cited. 
 
 »o Fisk V. Tank, 12 Wis. 276. The same rule has been laid down where 
 the witness adopts answers already made by him, given in a private depo- 
 sition. Greening v. Keel, 84 Tex. 326. 
 
 1 Lord V. Horsey, 5 Harr. (Del.) 317. 
 
 2 Atwell V. Lynch, 39 Mo. 519; Rooker v. Rooker, 83 Ind. 226. 
 » Chisholm v Beaver Lake Lumber Co., 33 111. App. 253. 
 
 * Cole V. Hall, 131 Mass. 88, several depositions taken at the same time, 
 although the statutory notice was given; Diedrich v. Diedrich, 68 Neb. 
 534, 94 N. W. 536. 
 
 » Western Union Tel. Co. v. Haman, 2 Tex. Civ. App. 100. 
 
 8 Hewlett v. Wood, 67 N. Y. 394; Forrest v. Kissam, 7 Hill, 464. See 
 also. City of Chadron v. Glover, 43 Neb. 732. 
 
 7 Forrest v. Kissam, 7 Hill, 464. 
 
858 THE LAW OF EVIDENCE. § 689 
 
 if the testimony is suhstantially complete and the deposition duly 
 signed and certified, it should not be suppressed because a question 
 or two on. cross-examination has not been answered. Said Chief 
 Justice Shaw on this subject: "No general rule can be laid down 
 in respect to unfinished testimony. If substantially complete, and 
 the witness is prevented by sickness or death from finishing his 
 testimony, whether viva voce or by deposition, it ought not to be 
 rejected, but submitted to the jury with such observations as the 
 particular circumstances may require. But if not so far advanced 
 as to be substantially complete, it must be rejected.'" 
 
 § 689 (707). Same — Refusal of witness to answer. — The refusal 
 of a witness to answer substantially a proper and material inter- 
 rogatory, either in the answer thereto or elsewhere in the deposi- 
 tion, is sometimes held ffround for suppressiyig the deposition.^ 
 But, as to the last proposition, a contrary rule has been declared 
 by high authority on the ground that a party should not be pun- 
 ished for the misconduct of his witness, but that the witness, in 
 such cases, should be punished for contempt of court. ^° While the 
 refusal to answer or the evasion of a question in answers may be 
 so gross as to indicate the corruption of the witness and to justify 
 the suppression of the entire deposition, this practice should not 
 be resorted to, unless the perversity or wilfulness of the witness is 
 manifest, although those answers which are evasive or not respon- 
 sive may be stricken out.^^ Nor will the questions, which a party 
 refuses to answer when his deposition is taljen, be deemed to have 
 been confessed, unless such refusal was wilful.^^ Clearly a depo- 
 siticm should not be suppressed for failure to answer an immaterial 
 
 • Fuller V. Rice, 4 Gray, 343. 
 
 » Chase v. Kenniston, 76 Me. 209; Harris v. Miller, 30 Ala. 221; Hadra 
 V. Utah Nat. Bank, 9 Utah, 412; Pulton v. Golden, 28 N. J. Eq. 37; Simpson 
 V. Smith, 27 Kan. 567; Smith v. Griffith, 3 Hill, 333; Shelton v. Paul (Tex. 
 Civ. App.), 27 S. W. 172; Electric L. Co. v. Rust, 131 Ala. 484, 31 So. 486; 
 New York, T. & M. R. Co. v. Green, 90 Tex. 257, 38 S. W. 31. See also, 
 Kimball v. Davis, 19 Wend. 437; Robertson v. Melasky, 84 Tex. 559. If 
 all material questions are answered in a. latter part of the deposition it 
 should not be suppressed, Tedrove v. Esher, 56 Ind. 443. 
 
 10 Keller v. Goodrich Co., 117 Ind. 556, 19 N. E. 196, 10 Am. St. Rep. 88. 
 
 11 Trowbridge v. Sickler, 54 Wis. 306, where the witness had not been 
 pressed to make more exact answers the suppression of the deposition 
 was refused. See also, Stratford v. Ames, 2 Allen, 577 ; Robinson v. Boston 
 Ry. Corp., 7 Allen, 393. 
 
 "Rushing v. Willis (Tex. Civ. App. J, 2S S. W. 94. 
 
§ 690 DEPOSITIONS. 859 
 
 question/' or for mere ambi^ity in the answer, where there has 
 been no attempt to make the answer clear by cross-examination,'* 
 or if the facts called for can be ascertained from other parts of the 
 deposition,'^ or if it is evident that the other party could not be 
 prejudiced by the omission,'^ or if the cross-interrogatoiy is imper- 
 tinent,'^ or if the testimony was taken in the presence of the at- 
 torney for the opposite party, who made no objection at the time 
 on this ground." 
 
 § 690 (708, 709). Suppression for non-compliance with statute 
 — Irregularities. — Depositions are sometimes suppressed on the 
 ground that there has been a substantial failure to comply with 
 the statutory regulations.^' It may be inferred from what has al- 
 ready been stated that depositions will not be suppressed on ac- 
 count of mere irregularities which do not amount to substantial de- 
 partures from the statute or which do not so affect the taking. or 
 use of the deposition as to work injustice in the case. Thus, the 
 courts have refused to suppress depositions when not returned 
 within the time limited by the rule of court, owing to a mistake 
 
 isBullard v. Lambert, 40 Ala. 204; Savage v. Birckhead, 20 Pick. 167; 
 Cohen v. Oliver (Tex. Civ. App.), 29 S. W. 81; White v. Solomon, 164 Mass. 
 516, 42 N. E. 104, 30 L. R. A. 537; New York, T. & M. R. Co. v. Green 
 (Tex. Civ. App.), 36 S. W. 812. 
 
 1* Olds V. Powell, 10 Ala. 393. 
 
 IB Goodrich v. Goodrich, 44 Ala. 670; Houston & T. C. R. Co. v. Bell 
 (Tex.), 73 S. "W. 56. 
 
 18 Semmens v. Walters, 55 Wis. 675; Stone v. Evans, 32 Minn. 243. 
 
 17 Asker v. Demond, 103 Mass. 318. 
 
 18 Kimball v. Davis, 19 Wend. 437. 
 
 i» As where the caption fails to identify the witness and the certificate 
 fails to state that the answers were signed and sworn to by the witness, 
 Bmberson v. McKenna, 4 Tex. App. 137; where a deposition is unsealed, 
 and a sealing is required by the statute. In re Thomasi, 35 Fed. 337; Tra- 
 vers V. Jennings, 39 S. C. 410; on the ground that the commission was 
 not executed ty the proper person, Newton v. Porter, 69 N. Y. 133; that 
 due notice of the taking was not given, Hartley v. Chidester, 36 Kan. 363; 
 State V. Jones, 2 Har. (Del.) 393; that notice by mail did not comply with 
 statute, Stokes v. Hardy, 71 N. J. L. 116, 58 Atl. 650; that notice was 
 served when the cause was not properly in court, Joy v. Aultman Co., 11 
 Bradw. (111.) 413; that a paper has been improperly substituted for an- 
 other, Carter v. Manning, 7 Ala. 851; that deposition was taken after the 
 death of the plaintiff and before the substitution of an administrator, 
 Kershman v. Swhela, 59 Iowa, 93, (but see, Matson v. Melchor, 42 Mich. 
 477); that the deposition had been returned into court unsealed, not per- 
 manently fastened together, and that the fastenings had been removed. 
 Gage V. Brown, 125 111. 622. 
 
860 THE LAW OF EVIDENCE. § 692 
 
 of the commissioner."' Many decisions might be cited in which 
 motions to suppress have been denied because not made in time or 
 in compliance with statutory requirements. 
 
 § 691 (710). Suppression of parts of depositions. — Parts of a 
 deposition, material to the issue, will not be suppressed, although 
 other portions may be incompetent and immaterial.^^ The deposi- 
 tion will not be rejected as a whole because improper questions were 
 asked. The objections should be made to the particular ques- 
 tions, and, if not so taken, it is waived. ^^ Those answers which. 
 are not responsive should be stricken out on motion.^^ Under a 
 motion to suppress one part of a deposition, a party cannot on ap- 
 peal obtain a suppression of another part on another ground.^* 
 
 § 692 (711). Same — Miscellaneous. — The mere fact that a wit- 
 ness has read the questions before he answered them is not sufficient 
 
 20 Smith V. Cokefair, 8 Pa. Co. Ct. Rep. 45. This rule has been applied 
 when the notary taking the deposition failed to affix his seal, there being 
 a certificate of his official character by the clerk of the proper court, 
 Curtis V. Curtis, 131 Ind. 489; Rachac v. Spencer, 49 Minn. 235; where 
 the certificate of the commissioner failed to show that the deposition was 
 taken between the hours named in the commission, but recited that the 
 witness had appeared on the day named in the commission, Sanford v. 
 Spence, 4 Ala. 237; Sayles v. Stewart, 5 Wis. 8, (see also, Semmens v. 
 Walters, 55 Wis. 675) ; where the deposition was not taken at the time 
 and place stated In the notice, but where the party objecting had by 
 consent afterwards cross-examined the. witness. Southern Kan. Ry. Co. v. 
 Robblns, 43 Kan. 145; Sayles v. Stewart, 5 Wis. 8; where it was taken 
 after the time fixed by the court, when at the request of the adverse 
 party, Mix v. Baldwin, 156 111. 313; where the deposition, when received, 
 was open at one end presenting the appearance of having been worn in 
 the mail, Eiffert v. Crops, 44 Fed. 164; where the commissioner did not 
 examine all the icitnesses named in the commission, Schunior v. Russell, 
 83 Tex. 83; where the deposition by mistake was directed to an officer of 
 the wrong county, Irvin v. Bevil, 80 Tex. 332, 16 S. W. 21; where the depo- 
 sition was not filed until after the time fixed, Tuthill Springs Co. v. Smith, 
 90 Iowa, 331; where there was a mistake in designating the capacity in 
 which the plaintiff sued or the name of a party, the defect being supplied 
 in other parts of the commission, and it appearing that the adverse party 
 had not been misled, Buokner v. Stewart, 34 Ala. 529; Jordan v. Hazard, 
 10 Ala. 221; Parsons v. Boyd, 20 Ala. 112. 
 
 21 Ramsey v. Flannagan, 33 Ind. 305. 
 
 22 Hlggins V. Wortell, 18 Cal. 330. See §§ 692, 894, infra. 
 
 2sLee V. Stowe, 57 Tex. 444; Nones v. Northouse, 46 Vt. 587; Shepard 
 V. Pratt, 16 Kan. 209, where a deposition was suppressed because the 
 witness gave his conclusions rather than the facts. 
 
 24 Hanks v. Van Carder, 59 Iowa, 179. 
 
§ 693 DEPOSITIONS. 861 
 
 ground for suppressing the deposition. But the fact that a deposi- 
 tion is thus taken may greatly affect the credibility of the witness, 
 since by reading the questions in advance he is enabled to prepare 
 for the cross-examination in a manner not contemplated by the 
 general rules of procedure.^^ The same rule was applied where 
 the attorney of a party, at the request of the witness and before 
 the taking of the deposition, wrote down the statement of the 
 witness substantially as he afterward testified in answer to the 
 interrogatories.^" It has been held no ground for suppressing a 
 deposition that the officer taking it occupied the same room with 
 an attorney of one of the parties, or even that he was himself an 
 attorney for one of the parties in other cases ; "' or that erasures 
 and interlineations exist, unless there is reason to suppose that the 
 deposition has been tampered with.^' Portions of a deposition 
 should not be suppressed before the trial as irrelevant, unless it is 
 clear from the nature of the issue that the proposed testimony 
 cannot be relevant.^" On motion to suppress, the objection to the 
 deposition must ie definite, and must point out the particular mat- 
 ters or defects which are relied on.'° Thus, if certain questions 
 have not been answered or are leading, a mere general objection 
 does not suffice on a motion to suppress, but the particular points 
 relied on must be disclosed ; ^^ and the motion will be confined to 
 that portion of the deposition which is attacked.^^ 
 
 § 693 (712). Amendments. — It is clearly withiu the power of 
 the court, on application, to order the return of a deposition to the 
 officer for the correction of mistakes; and, iu some cases, amend- 
 ments have been allowed at the trial. Thus, where a deposition 
 
 20 Allen V. Seyfried, 43 Wis. 414. Testimony should not be rejected 
 merely because the witness consults with his attorney during cross-exam- 
 ination, New Jersey Express Co. v. Nichols, 33 N. J. L. 434; nor because 
 a stipulation that the witness should read over and swear to the deposi- 
 tion was not complied with, Knapp v. Am. Hand Sewed Shoe Co., 63 Kan. 
 698, 66 Pac. 996. 
 
 28 Commercial Bank v. Union Bank, 11 N. Y. 203. 
 
 2T Burton v. Galveston Ry. Co., 67 Tex. 526; Abbott v. Pearson, 130 Mass. 
 191, where a person had advised a witness not to answer. 
 
 28 Johnston v. Beckham, 3 Grant Cas. (Pa.) 267. 
 
 28 Corey v. Campbell, 52 Ind. 157. 
 
 soWhitaker v. Sigler, 44 Iowa, 419; Howard v. Coleman, 36 Ala. 721. 
 See the last section. 
 
 siGassen v. Hendrick, 74 Cal. 444; Neyland v. Beady, 69 Tex. 711; Com- 
 mercial Bank r. Union Bank, 11 N. Y. 203. See §§ 893 et seq. infra. 
 
 «»Wallls V. Rhea, 10 Ala. 451. 
 
862 THE LAW OF EVIDENCE. § 694 
 
 was taken in another county of the state before a justice of the 
 peace who had omitted to state in his certificate the name of the 
 county in which the testimony was taken, and that he was not 
 interested in the cause, he was permitted to appear before the 
 court and amend his certificate.^' So a commissioner was allowed 
 to testify that the depositions were taken by and before him.'* 
 In another case, the officer had failed to affix the word "commis- 
 sioner" to his signature; and, after the deposition was offered in 
 evidence, it was returned to the commissioner and corrected, and 
 notice of filing was served on the other party, after which it was 
 received in evidence.'" Although the commissioner has no author- 
 ity to amend the certificate after it has been filed, yet the court 
 may grant leave, if he seeks to amend.'" If errors could have been 
 remedied, provided a motion to suppress the deposition or an ob- 
 jection to its admission had been made, the same will be considered 
 as waived when not so made.'^ A witness may be allowed to correct 
 his testimony in a deposition by oral testimony given at the trial." 
 § 694 (713). The certificate. — It is the usual practice to require 
 the commissioner or the other officer to attach a certificate to be 
 returned with the deposition, to the end that the court may know 
 how the officer has performed his duty, and whether the statute 
 and rules of court have been complied with. Although the prac- 
 tice varies in different states as to the form of the certificate, it is 
 generally necessary for it to show affirmatively that the deposition 
 was taken by and before the commissioner or magistrate making 
 
 ssEller v. Richardson, 89 Tenn. B75, 15 S. W. 650; Gartside Coal Co. v. 
 Maxwell, 20 Fed. 187, where a deposition was withdrawn to allow officer 
 to amend the certificate; Donahue v. Roherts, 19 Fed. 863; Conger v. 
 Cotton, 37 Ark. 286; "Wolfe v. Underwood, 97 Ala. 375, 12 So. 234; Bewley 
 V. Ottinger, 1 Heisk. (Tenn.) 354. Other illustrations, fllUng hlanlcs, Nick 
 V. Rector, 4 Ark. 251; correcting address, Irwin v. Bevil, 80 Tex. 332, 16 
 S. W. 21; attestation clause, Linskie v. Kerr (Tex. Civ. App.), 34 S. W. 765. 
 See § 684 supra. 
 
 84 Porter v. Beltzhoover, 2 Har. (Del.) 484. 
 
 85 Jenkins v. Anderson (Pa.), 11 Atl. 558; Semmens v. Walters, 55 Wis. 
 675, 13 N. W. 889. So where he had omitted to sign as notary public, 
 Florence Oil & Refining Co. v. Reeves, 13 Colo. App. 95, 56 Pac. 674. 
 
 saOatman v. Andrews, 43 Vt. 466; Wolfe v. Underwood, 97 Ala. 375; 
 Creager v. Douglass, 77 Tex. 484, 14 S. W. 150. 
 
 sTTuthill Springs Co. v. Smith, 90 Iowa, 331; American Pub. Co. v. 
 Mayne Co., 9 Utah, 318. 
 
 38 Baltzer v. Chicago, M. & N. Ry. Co., 89 Wis. 257, 60 N. W. 715. 
 
§ 694 DEPOSITIONS. 86'6 
 
 the return."' In the absence of statute or rule of court no particu- 
 lar form is required.*" It should set forth that the respective 
 parties had appeared, or the contrary," as well as the time and 
 place at which the testimony was taken.*'' It should appear that 
 the witnesses were duly sworn or affirmed ;*° that the testimony 
 was reduced to writing by the officer, or by some disinterested 
 person in his presence,** and that the witness had subscribed the 
 deposition.*" But where the statute does not require the signature 
 of the witness, the deposition is not necessarily to be rejected on 
 account of the omission of the signature.** Other requisites which 
 have been prescribed are, that the certificate should show the state 
 and county in which the deposition was taken,*^ and contain the 
 names of the witnesses.*' Statutes sometimes require the certifi- 
 cate to set forth the reason for taking the deposition and the form 
 of the oath, and whenever these or other requirements are pre- 
 scribed in the statute, there must be compliance. *° But it has 
 frequently been held that, if some of the matters usually stated in 
 the certificate are contained in the caption, so that, when the two 
 are taken together, the court can see that the statute has been 
 
 «» Powers V. Shepard, 21 N. H. 60, 53 Am. Dec. 168; Dane v. Mace, 37 
 N. H. 533; Porter v. Beltzhoover, 2 Har. (Del.) 484; Homberger v. Alex- 
 ander, 11 Utah, 363, 40 Pac. 260. As to tliis subject In federal courts, see 
 §.§ 644 et seg. infra. 
 
 40 Behrensmeyer v. Kreitz, 135 111. 591, 26 N. E. 704; Murray v. Larabie, 
 8 Mont. 208,. 19 Pac. 574. 
 
 *i Hay V. State, 58 Ind. 337; Carpenter v. State, 58 Ark. 233. 
 
 «Moss V. Booth, 34 Mo. 316; Stetson v. Lyon, 34 Ala. 140. 
 
 43 Moss v. Booth, 34 Mo. 316; Stetson v. Lyons, 34 Ala. 140; Thomas v. 
 Wheeler, 47 Mo. 363; Bailis v. Cochran, 2 jShns. 417. 
 
 4*Ballls V. Cochran, 2 Johns. 417; Am. Bonding Co. v. Pulver (Neb.), 
 109 N. "W. 156. 
 
 45 Bush V. Barron, 78 Tex. 5; Bell v. Chambers, 38 Ala. 660; Thompson 
 V. Halle, 12 Tex. 139. 
 
 46Mobley V. Hammit, 1 A. K. Marsh. (Ky.) 590; Moulson v. Hargrove, 
 1 Serg. & R. (Pa.) 201; Ede v. Johnson, 15 Cal. 53, where the instrument 
 was an affidavit; Potomac Bottling Works v. Barber & Co. (Md.), 63 Atl. 
 1068. 
 
 *' Payne v. Brlggs, 8 Neb. 75. 
 
 48 Amick v. Holman, 71 Mo. 445. 
 
 48 Patterson v. Wabash Ry. Co., 54 Mich. 91; Western Union Tel. Co. v. 
 Collins, 45 Kan. 88, where the form of an oath was defective; Em- 
 berson v. McKenna, 4 Tex. App. 137, where there was a failure to show 
 that deposition was signed and sworn to; Brewer v. Bowersox, 92 Md. 567, 
 48 AtL 1060. 
 
864 THE LAW OP EVIDENCE. § 696 
 
 complied witli, it is sufficient." Frequently under statutes irregu- 
 larities have been disregarded and in some eases tlie statutes are 
 treated as directory. 
 
 § 695 (714). The caption. — The caption is the heading of the 
 deposition in which the officer generally states the time and place 
 of taking the deposition, and the authority by which it is taken, as 
 weU as the names of the parties and the witnesses swom.^^ Al- 
 though the statutes and rules of court frequently prescribe the 
 requisites of the certificate to be attached to the deposition, this 
 is not usual in respect to the caption, hence irregularities in respect 
 to this part of the deposition are less likely to be fatal. If the cer- 
 tificate states the facts showing that the statute htis been substan- 
 tially complied with, and contains those recitals usually contained 
 in the caption, the deposition should be admitted, however defect- 
 ive the caption may be.°^ If, however, the statute, under which the 
 deposition is taken, prescribes what the caption shall contain, it 
 must be substantially complied with.^' Mere mistakes in the cap- 
 tion as to the names of the parties or witnesses, or in other re- 
 spects, which work no prejudice to the rights of the party 
 objecting, are generally disregarded.^* 
 
 § 696 (715). Adjournments. — Commissioners or other officers 
 authorized to take depositions must observe the directions of the 
 commission and the statute or rules of court. Hence, they have 
 not the authority to postpone or continue the taking of the deposi- 
 tion to another time or place, in a manner not warranted by the 
 notice or commission."" Thus, where the person on whom the 
 notice had been served was present with his attorney at the time 
 and place, and waited until,notified by the officer that the time had 
 
 BO Borders v. Barber, 81 Mo. 636; Houston Ry. Co. v. Larkin, 64 Tex. 
 454; Wanzer v. Hardy, 4 Wis. 229; Missouri, K. & T. Ry. Co. v. Denton 
 (Tex.), 68 S. W. 336. 
 
 BiProff. Not. (2nd Ed.) § 76; Weeks, Dep. § 323. 
 
 B2piummer v. Roads, 4 Iowa, 587; Boykin v. Smith, 65 Ala. 294; Free- 
 land V. Prince, 41 Me. 105; Rand v. Dodge, 17 N. H. 343. 
 
 63 Welles v. Fish, 3 Pick. 74. 
 
 54 Haywood Rubber Co. v. Duncklee, 30 Vt. 29 ; Field v. Tenny, 47 N. H. 
 513; Spaulding V. Robbins, 42 Vt. 90; Kidder v. Blaisdell, 45 Me. 461; Cook 
 V. Carroll Land & Cattle Co. (Tex. Civ. App.), 39 S. W. 1006. Amendment 
 allowed, Gallagher v. Cotton (N. H.), 64 Atl. 583. 
 
 60 Beach v. Workman, 20 N. H. 379; Johnson v. Perry, 54 Vt. 459; Bow- 
 man V. Branson, 111 Mo. 343, 19 S. W. 634; Buddicum v. Kirk, 3 Cranch, 
 293; Bauer v. State, 144 Cal. 740, 78 Pac. 280; Dawson v. Dawson, 26 Neb. 
 716, 42 N. W. 744. 
 
§ 696 DEPOSITIONS. 865 
 
 expired, and then discharged his attorney, it was held that the de- 
 position was inadmissible, although the officer had adjourned the 
 proceeding to a later hour pursuant to a telegram from the other 
 party of which notice was given."' The notice often contains a 
 clause to the effect that the taking of the deposition is to ie coiv- 
 tirmed from day to day until completed. It is clear that, in such 
 ease, the notice is sufficient to warrant the continuance from day 
 to day until the witnesses have finished their testimony."^ But 
 such a notice or commission does not usually authorize a continu- 
 ance for a longer period than the succeeding day."' Where, how- 
 ever, the succeeding day falls on a legal holiday or on Sunday, an 
 adjournment to the first business day is no ground for suppressing 
 the deposition.^" In some cases, the courts have sanctioned the 
 practice by the officer of postponing the taking of the deposition 
 beyond a succeeding day, where it did not appear that such con- 
 tinuance had resulted injuriously to the other party, and no 
 motion had been made to suppress the deposition.'" Although the 
 notice or commission only mentions a certain date, if it is incon- 
 venient to finish the testimony on that date, it is proper to con- 
 tinue to the succeeding day.'^ If a deposition is taken on a day 
 other than that stated in the notice or citation, and no legal con- 
 tinuance appears to have been made, it should not be received.'^ 
 Where a party had been duly notified of the time and place, but 
 
 6» Hennessy y. Stewart, 31 Vt 486. 
 
 BTStainbrook v. Drawyer, 25 Kan. 383; Finlay v. Humble, 2 A. K. 
 Marsh. (Ky.) 569; Cross v. Cross, 19 Ky. L. Rep. 650, 41 S. W. 272. 
 
 08 Raymond v. Williams, 21 Ind. 241; Harding v. Merrick, 3 Ala. 60; 
 Parker v. Hayes, 23 N. J. Eq. 186. An adjournment from Saturday till 
 Monday following has been held admissible, Stainbrook v. Drawyer, 25 
 Kan. 383. 
 
 «» Leach v. Leach, 46 Kan. 724, where an adjournment was taken over 
 Sunday and Washington's birthday. 
 
 sowixon V. Stephens, 17 Mich. 518, 97 Am. Dec. 205, where the witness 
 did not appear, the commissioner waited two hours and then adjourned 
 the examination to another day and place in the same county. 
 
 oiBabb V. Aldrich, 45 Kan. 218; Read v. Patterson, 11 Lea (Tenn.) 
 430; Ulmer v. Austin, 9 Port. (Ala.) 157. See also, Brandon v. Mullenix, 
 
 II Heisk. (Tenn.) 446. Whenever a continuance is made, it should appear 
 In the proceedings that it was for sufficient cause, Kisskadden v. Grant, 
 4 Mo. 74. A deposition was properly suppressed because it did not appear 
 from the record to have been continued for cause, Bowman v. Branson, 
 
 III Mo. 343, 19 S. W. 634. 
 
 •» Bennett v. Bennett, 37 W. Va. 396. 
 65 
 
866 THE LAW OF EVIDENCE. § 698 
 
 did not attend, it was held admissible to adjourn the taking of the 
 deposition to the house of the witness on account of his sickness, 
 without further notice."^ 
 
 § 697 (716). Presence of party when deposition is taken on 
 commission. — ^Where depositions are taken on commission, upon 
 interrogatories settled in advance, there is no necessity for the 
 presence of the parties or attorneys. Indeed, their presence is an 
 impropriety which, by the rules of some courts, is forbidden. This 
 is upon the theory that the witness who is to be examined upon a 
 commission ought to answer the interrogatories and cross-inter- 
 rogatories in the absence of those whose interest may be promoted 
 by distortiag his testimony."* According to this view, the deposi- 
 tion will be excluded, if a party who has taken out a commission to 
 examine a witness on interrogatories is present at its execution, 
 unless something in the nature of a waiver is shown ; ®° and on the 
 same view, it has been held immaterial that the commissioner did 
 not take the testimony at the place named in the notice and com- 
 mission, when the other party did not appear.'" 
 
 § 698 (717). Retaking depositions. — It was a familiar rule in 
 the old chancery practice that, after the publication of the testi- 
 mony, no new testimony should be taken, and no witness should be 
 re-examined, except upon a clear showing that the interests of jus- 
 tice demanded it. The rule rested upon the view that it was a dan- 
 gerous proceeding to permit parties to make out evidence by piece- 
 meal, and to make up the deficiencies of original depositions by 
 other evidence."' Although in modem practice the courts have by 
 no means lost sight of the reason for the old lule, much greater lati- 
 
 •» Lowd V. Bowers, 64 N. H. 1. 
 
 0* Sayles v. Stewart, 5 Wis. 8. 
 
 «» Holmes v. Dobbins, 19 Ga. 630; Beverly v. Burke, 14 Ga. 70. In Iowa 
 the statute provides that, in such cases, neither party shall be present, 
 unless both are; and the certificate is required to state whether either 
 party Is present, Ann. Code, Iowa, 1897, §4704; Turner v. Hardin, 80 Iowa, 
 691. See also. Nutter v. Rlcketts, 6 Iowa, 92. The contrary view has been 
 held in some cases where it did not appear that the witness had been in- 
 fluenced by such presence, Otis v. Clark, 2 Miles (Pa.) 272; Nutter v. 
 Ricketts, 6 Iowa, 92; Southern Pac. Co. v. Wilson (Ariz.), 85 Pac. 401; 
 Houston, T. C. R. Co. v. McKenzie (Tex. Civ. App.), 41 S. W. 831. 
 
 8» Sayles v. Stewart, 5 Wis. 8, where the testimony was taken at 52 
 Wall St., New York, while the place named in the commission was thp 
 comer of Nassau and Cedar streets. 
 
 "Whitelocke v. Baker, 13 Ves. 511; The Schooner Ruby, 6 Mason 
 (U. S.) 451. 
 
§ 699 DEPOSITIONS. 867 
 
 tude is allowed than formerly ; and there is no doubt of the power 
 of the court to allow the deposition of a witness to be retaken when 
 newly discovered evidence seems to have been omitted, or where 
 there has been such mistake that the interests of justice require a 
 second examination."* "While it is a general practice to obtain the 
 leave of court, and while such leave has frequently been held nec- 
 essajy,*" yet there is authority for the view that the deposition may 
 be retaken, in such case, without leave.'"' So where a deposition 
 has been defectively iaken, or exceptions have been taken to it, and 
 it is liable to be suppressed, it is proper to have it retaken without 
 waiting to see whether the objections will be waived.'^^ Gn the 
 principle under discussion, if justice seems to require it, the court 
 may order a deposition returned for further cross-examination of 
 the witness.'" 
 
 § 699 (718). Exhibits to depositions. — Under the familiar rule 
 that parol evidence should not be received of the contents of 
 written instruments, exhibits and papers, referred to in a deposi- 
 tion, can not be read, unless they are attached to the deposition, amd 
 offered and made a part of it.'' Thus, where a witness stated that 
 
 88 Thus the court may order the deposition to be taken again it interro- 
 gatories have not been fully answered, and the deposition is objected to 
 for that reason, Davis v. Moody, 13 Ga. 188; if the deposition has been 
 suppressed, Arundel v. Pitt, Ambler, 585; Sanford v. Paul, 3 Brown Ch. 
 370; In re Thomas, 35 Fed. 822; or lost, Weeks, Dep. § 526. 
 
 69Klrby v. Cannon, 9 Ind. 371; Addleman v. Swartz, 22 Ind. 249; Thur- 
 ber V. Cecil Nat. Bank, 52 Fed. 513; Newman v. Kendall, 2 A. K. Marsh. 
 (Ky.) 234; Evansich v. Gulf Ry. Co., 61 Tex. 24; Raney v. Weed, 1 Barb. 
 220, where the court refused application after the death of the only other 
 witness cognizant of the facts. Discretionary with court to exclude depo- 
 sition taken without leave, Began v. Hamilton, 90 Ala. 454, 8 So. 186; Law- 
 son V. Zinn, 48 W. Va. 312, 37 S. B. 612. 
 
 '0 Parker v. Chambers, 24 Ga. 518; Davis v. Moody, 13 Ga. 188; Beach 
 V. Schmultz, 20 111. 185, where it was held that the court may determine 
 which deposition shall be read; Peycke v. Shinn, 68 Neb. 343, 94 N. W. 135. 
 
 71 Boone V. Miller, 73 Tex. 557; Fox v. Jones, 1 W. Va. 205, 91 Am. Dec. 
 383; Akers v. Demond, 103 Mass. 318. 
 
 72 Graham v. Carleton, 9 N. Y. S. 392, where a re-cross-examination was 
 ordered at the expense of the opposite party for the reason that he had 
 improperly supplied the witness with a copy of the questions. 
 
 TsCrary v. Carrodine, 4 Ark. 216; Mather v. Goddard, 7 Conn. 303; 
 Petriken v. Collier, 7 Watts & S. (Pa.) 392. A paper pinned to a deposi- 
 tion and not referred to therein or otherwise identified, is not evidence, 
 Susquehanna & W. N. Ry. Co. v. Quick, 61 Pa. St. 328; so loose papers 
 returned In the same envelope as the deposition are not part of the same, 
 
868 THE LAW OP EVIDENCa § 699 
 
 he was made an agent by an instrument in writing, and proceeded 
 to state the powers conferred upon him thereby, and did not pro- 
 duce or account for the instrument, it was held that the testimony 
 was properly rejected as parol evidence of the contents of a writ- 
 ten instrument/* Nor does a paper become evidence by the mere 
 fact that it is produced before the commissioner and marked for 
 identification, or by the mere fact that proof of its execution has 
 been given.'" Where there are several sets of interrogatories to 
 be propounded to different witnesses, and where the same exhibit 
 cannot be attached to each, it may be annexed to one set of inter- 
 rogatories and referred to and properly described in the other.'" 
 Witnesses residing out of the state are not compelled to annex 
 original letters or other documentary evidence to depositions ; they 
 are not called upon to risk the loss of valuable origiaal papers by 
 annexing them to a deposition to be transmitted to a distant state. 
 If they are unwilling to do so, copies can be attached, and a founda- 
 ti9n is thus laid for the admission of such copies in evidence." 
 The copy should be properly sworn to, identified and annexed to 
 the deposition.'* It is proper for the commissioner to return a 
 copy of a deed or other document referred to in the testimony, 
 whether the document is admissible in evidence at the trial or 
 not." In a Massachusetts case, where a witness in another state 
 had refused to annex original letters on the ground that they 
 related to other private matters in no way relevant to the action, 
 the court held that the most which could be required of the wit- 
 ness in such a case was to furnish true extracts from such letters 
 as he had relating to the subject of inquiry, and to make oath as to 
 their verity, upon being paid a reasonable charge therefor.'" If 
 the circumstances are such that the party cross-examining a wit- 
 
 Apfel V. Crane, 83 Ala. 312. See also, Toby v. Oregon Pac. Ry. Co., 98 Cal. 
 490, 33 Pac. 550. 
 
 TiHotclikiss V. Dailey, 2 Ind. 117; King v. Dale, 2 111. 513. 
 
 75 Edmonstone v. Hartshorn, 19 N. Y. 9. 
 
 '"Mobley v. Leophart, 51 Ala. 587. 
 
 77 Amherst Bank v. Conkey, 4 Met. 459 ; Petersburg Co. v. Manhattan 
 Ins. Co., 66 Ga. 446; Commercial Bank v. Union Bank, 11 N. Y. 203; 
 L'Herbette v. Pittsfield Nat. Bank, 162 Mass. 137; Hauenstein v. Gillespie, 
 73 Miss. 742, 19 So. 673. 
 
 78Gimbel v. Hufford, 46 Ind. 125; Thorn v. "Wilson, 27 Ind. 370; Fisher 
 V. Greene, 95 111. 94. 
 
 70 Giles V. Paxson, 36 Fed. 882. 
 
 80 Amherst Bank v. Conkey, 4 Met. 459. 
 
§ 700 DEPOSITIONS. 869 
 
 ness at the taking of a deposition is entitled to the entire letters 
 or documents, and only extracts are attached, his remedy is not 
 an objection at the trial, but a motion before the trial to have the 
 deposition amended or suppressed.'^ It is obvious that, if a docu- 
 ment is irrelevgmt or incompetent as evidence, it is not made compe- 
 tent by being attached to a deposition, if proper objection is made.'^ 
 § 700 (719). Depositions taken in foreign countries. — The us- 
 ual method of taking depositions in foreign countries is by com- 
 mission, and not upon oral interrogutories de bene esse. It was 
 early decided by the supreme court of the United States that this 
 was the only regular mode of taking such depositions.^' Another 
 mode of taking depositions abroad is, however, now recognized 
 by the statutes of the United States and of some of the states, 
 namely, by means of letters rogatory.^* By this term is meant an 
 instrument sent in the name and by the authority of a judge or 
 court to another such officer, requesting the latter to cause a wit- 
 ness, who is within the jurisdiction of the judge or court to whom 
 such letters are addressed, to be examined upon interrogatories 
 filed in a cause pending before the*former.*° "By this instrument, 
 the court abroad is informed of the pendency of the cause and the ' 
 names of the foreign witnesses, and is requested to cause their dep- 
 ositions to be taken in due course of law, for the furtherance of 
 justice, with an offer, on the part of the tribunal making the re- 
 quest, to do the like for the other in a similar case. The writ or 
 commission is usually accompanied by interrogatories, filed by the 
 parties on each side, to which the answers of the witnesses are de- 
 sired. The commission is executed by the judge who receives it, 
 either by calling the witness before himself, or by the intervention 
 of a commissioner for that purpose ; and the original answers, duly 
 signed and sworn to by the deponent and properly authenticated, 
 are returned with the commission to the court from which it is- 
 
 81 WrigM V. Cabot, 89 N. Y. 570. 
 
 82 Ashley v. Wolcott, 3 Gray, 571; Smith v. Ellison, 6 Colo. App. 207, 
 40 Pac. 502. 
 
 83 Stein r. Bowman, 13 Peters, 209; Cootes v. Tannhouser, 18 Fed. 667, 
 where it was held that such depositions cannot be taken under § 863 Rev. 
 Stat. U. S. (U. S. Comp. St. 1901, p. 661). The appointment of commis- 
 sioners in such a case is In the discretion of the court. United States v. 
 Parrot, McAll. 447. 
 
 84 Rev. Stat. U. S. § 875 (U. S. Comp. St. 1901, p. 667). 
 
 85 Bouv. h. Diet, title Letters Rogatory. 
 
870 THE LAW OF EVIDENCE. § 701 
 
 sued.'"* This practice is seldom resorted to, but prevails, in 
 those cases where the authorities of the foreign country do not 
 allow commissioners appointed by our courts to administer oaths 
 or take testimony. Where letters rogatory are issued, the deposi- 
 tion is taken, not according to the rules prescribed by. the court 
 where the action is pending, but according to the procedure adopt- 
 ed by the court of the country whose assistance is asked.*' Pro- 
 ceedings to take such depositions or any depositions upon commis- 
 sion abroad should be liberally construed.** But such letters 
 will not be issued where testimony can be obtained by commission, 
 and it must appear that a commission is not adequate. 
 
 § 701 (720). Depositions to perpetuate testimony. — ^In a former 
 section attention was called to the practice of courts of equity 
 with respect to a class of depositions taken to perpetuate testi- 
 mony, otherwise called depositions in perpetuam rei memoriam. 
 They are resorted to much less frequently than others, and will re- 
 quire no elaborate discussion. By the federal statute, depositions 
 of this character may be taken upon application to the circuit 
 court, as a court of equity, according to th« usages of chancery, 
 if the subject is cognizable in any court of the United States.'" 
 "Any court of the United States may admit in evidence in any 
 cause before it any deposition taken in perpetuam rei memoriam, 
 which would be so admissible in the court of the state wherein 
 such cause is pending, according to the laws thereof.""^ This 
 mode of taking testimony is generally regulated by statutes in the 
 several states. Provisions quite common to such statutes are that 
 the moving party shall present to the court his application to the 
 effect that he expects to be a party to an action, or that a con- 
 troversy is likely to arise as to some subject, together with the 
 names of all persons interested therein and the names of the wit- 
 nesses whose testimony it is necessary to preserve, as well as such 
 other facts as may tend to show that the testimony is material and 
 
 »• 1 Greenl. § 320. 
 
 87 Nelson v. United States, Peters C. C. 235; Weeks, Dep. § 128. 
 
 •sDusert v. Roe, 1 Wall. Jr. (TJ. S.) 39; GUpln v. ConsecLua, 3 Wash. 
 (U. S.) 184; Winthrop v. Union Ins. Co., 2 Wash. (U. S.) 7. 
 
 «» Anonymous, 59 N. Y. 313, Gross v. Palmer, 105 Fed. 833. This is best 
 shown by the issue and return, id. 
 
 00 Rev. Stat. U. S. § 866 (U. S. Comp. St. 1901, p. 663). 
 
 01 Gould v. Gould, 3 Story (U. S.) 516. 
 
§ 701 DEPOSITIONS. 871 
 
 necessary to be preserved."^ If the court is satisfied that sufficient 
 cause is shown, an order issues requiring notice for the taking of 
 the deposition of such witnesses to be served upon all persons in- 
 terested in the subject matter; this testimony is then duly certi- 
 fied and filed with some public officer named in the statute, and, 
 if a suit subsequently arises, may be read in evidence by the par- 
 ties interested or by their privies. It will be observed that, al- 
 though the procedure is somewhat different, the essential distinc- 
 tion between this and other depositions is that testimony of this 
 character is taken, not for use in a pending suit, but to be pre- 
 served for use in an anticipated suit. In some states, however, if 
 an action be pending at the time of taking the deposition between 
 the person making the petition and those named therein or those 
 in privity with them, and if the proceedings are regular, the dep- 
 osition so taken may be used. The bill should show that the com- 
 plainant has a vested interest to be protected,"' that there is no 
 present right of action, or that defendant obstructs plaintifE's 
 right.'* It does not pray relief. 
 
 »2 See the statutes of the several states. 
 
 •sHandford v. Ewan, 79 111. App. 327. 
 
 •* State V. Elliott. 75 Minn. 391, 77 N. W. 952. 
 
CHAPTER 19. 
 
 DISCOVERT. 
 
 5 702. Bill of discovery — General nature ot 
 
 703. Statutory discovery. 
 
 704. Same — Practice in federal courts. 
 
 705. Effect of statutes upon former remedy. 
 
 706. Scope of examination, 
 
 707. Same — Examination under the control of the courL 
 
 708. Privilege — Self-crimination. 
 
 709. Inspection of books and papers. 
 
 710. Inspection of documents in the United States courts. 
 
 711. Statutory discovery of books and papers in state courts. 
 
 § 702 (721). Bill of discovery — General nature of. — ^Tt was one 
 
 of the infirmities of the procedure in the common law courts that 
 they afforded no adequate remedy for one party to obtain from his 
 adversary any disclosure of facts material to the issue either by 
 compelling him to niake admissions in his pleading, or to testify 
 at the trial or before, or to furnish documents material to the issue 
 for inspection. It was to remedy these defects that the courts of 
 chancery entertained the bill of discovery, that is, a biU which asks 
 no relief other than the discovery of facts resting in the knowledge 
 of the defendant or the discovery of deeds, writings or other things 
 in his possession or power, in order to maintain a right or title of 
 the party asking it in some suit or proceeding in another court.^ 
 From the nature of this proceeding, as soon as the defendant had 
 interposed his answer making disclosure of facts in compliance 
 with the rules of equity, the action terminated ; the party seeking 
 the discovery had accomplished all the relief which this auxiliary- 
 proceeding could afford, and he was at liberty to use the evidence 
 thus obtained in his other action.* The courts of equity, not only 
 exercised this auxiliary jurisdiction, but they always asserted 
 
 »2 story Eq. Jur. § 1486; 1 Story Eq. Jur. § 989; 1 Pom. Eq. Jur. (3d. 
 Ed.) §§ 144, 191. The whole subject of this chapter Is discussed In an 
 extended note, 41 Am. St. Rep. 388-396. 
 
 1 See the authorities last cited. 
 
§ 702 DISCOVERT. 873 
 
 their right to probe the conscience of the defendant ; and it was 
 an incident of their general jurisdiction that the defendant could 
 be compelled to answer on oath the allegations and interrogatories 
 ia the bill. "It is the right, as a general rule, of the plaintiff in 
 equity to examine the defendant upon oath as to all matters of 
 fact which, being well pleaded ia the bill, are material to the proof 
 of the plaintiff's case, and which the defendant does not, by his 
 form of pleading, admit. Courts of equity as a general rule oblige 
 a defendant to pledge his oath to the truth of his defense; with 
 this qualification, the right of a plaintiff in equity to the benefit of 
 the defendant's oath is limited to a discovery of such material 
 facts as relate to the plaintiff's case, and it does not extend to the 
 discovery of the manner in which or of the evidence by means of 
 which the defendant's ease is to be established, or to any discovery 
 of the defendant's evidence."* The bill of discovery could be 
 maintained ty the plaintiff in an action at law against the defend- 
 ant therein, or by the defendant in an action at law against the 
 plaintiff therein, and also by the defendant in a suit in equity in 
 the form of a cross-bill against the complainant therein, in order 
 to obtain a disclosure of facts necessary to enable him to frame 
 his answer to the original bill ; or it could be maintained to secure 
 a disclosure of facts, material as evidence on his behalf, at the 
 hearing upon the original bill and answer thereto.* There are im- 
 portant limitations upon the right to bring a bill for discovery, 
 among which the following may be mentioned : It will not be en- 
 tertained when the discovery is not material to the suit; when the 
 plaintiff has no interest in the subject matter ; when an action will 
 not lie ; where the subject is not cognizable in any court, or where 
 the defendant is not bound to disclose his own title or to criminate 
 himself." Closely connected with the right to discovery in chan- 
 cery is the right to compel the defendant to produce, for the in- 
 spection of complainant, documentary evidence which is in his pos- 
 session, and is necessary to be used as evidence for the complainant. 
 It was a familiar rule that, when a defendant had admitted in his 
 answer, in reply to allegations or interrogatories of the bill, that 
 he had possession of such documents, and that they were material 
 to the plaintiff's case or to the relief demanded by him, they had 
 
 »"Wlg. Discovery, 21, 22, quoted In 1 Pom. Eq. Jur. (Sd. Ed.) § 195 note. 
 
 *Pom. Eq. Juf. (3d Ed.) § 191. 
 
 ePom. Eq. Jur. (3d. Ed.) §§ 195 et seq.; 2 Story, Eq. Jur. § 1489. 
 
874 • THE LAW OF EVIDENCE, § 703 
 
 to be produced for inspection on the order of the court. One of 
 the limitations upon the right to discovery is thus stated by Mr. 
 Pomeroy: "The ground upon which the plaintiff's right to the 
 production of documents, as well as to any other discovery, must 
 rest is that they relate to and are material to his own case, or to 
 the relief which is demanded in his suit ; he has no right to a dis- 
 covery of the defendant's evidence, nor to the production or in- 
 spection of papers connected with the defendant's title alone. If, 
 however, the documents are material to his own case, or to the 
 relief he demands, the fact that they may also be evidence for de- 
 fense, or may tend to support the defendant's title or contention 
 does not prevent the plaintiff from compelling their produc- 
 tion."' 
 
 § 703 (722). Statutory discovery. — We have only stated in the 
 most general manner a few of the more important and familiar rules 
 governing the right of discovery ia the courts of equity. While 
 the details of this subject more properly belong to other works, the 
 brief statement which has been given is necessary to a proper un- 
 derstanding of the mode of discovery now in general use. In the 
 United States, statutes have been quite generally adopted permit- 
 ting either party to examine the adverse party as a witness at the 
 trial; and in many of the states, statutes have also been adopted pro- 
 viding that suitors may have discovery from adverse parties before 
 the trial by requiring them to submit to an examination as to facts 
 relevant to the issue. These statutes do not restrict the right of 
 examination to either party. On the contrary, the defendant has 
 the same right as the plaintiff to invoke their aid. They some- 
 times provide that the examination may be obtained on application 
 to the court by affidavit or petition showing the nature of the ac- 
 tion and the necessity for discovery. In other states, the exami- 
 nation may be had without any affidavit or petition by simply giv- 
 ing the notice prescribed by statute. Under these statutes the ex- 
 amination is generally taken after issue has been joined, though 
 there are statutes which provide that it may be had before ; but, in 
 such cases, it is usual for the court to limit, by an order, the sub- 
 jects to which the examination shall extend. In some states, as 
 well as in England, the statutes and rules of court provide that 
 discovery may be made in the manner already stated, except that 
 the party making the application files with the court written inter- 
 rogatories to which the adverse party is compelled to make a,iiswer 
 
 »Pom. Ea. Jur. (3d. Ed.) § 207, 
 
§ 704 DISCOVERY. 875 
 
 in writing.'' These statutes prescribe the practice aand allow excep- 
 tions to the interrogatories and provide the penalty for refusing to 
 answer.* 
 
 § 704 (722). Same— Practice in Federal Courts.— In other 
 states, the examination is taken orally. It is the common practice 
 in oral examination for the court commissioners or judge taking 
 the deposition to rule as to relevancy and compentency.^ Since 
 the courts had no inherent common law right to compel such ex- 
 amination, the statutes must be strictly followed.^" It is the pre- 
 vailing rule under these statutes that the party taking the exam- 
 ination is not compelled to introduce the deposition and that the 
 other party can make no use of it unless it is first read by the ad- 
 versary.^^ Although in a few states the party offering such a dep- 
 osition must use the whole of it.'^ It is held in other states in 
 analogy to the rule in other depositions that portions may be read, 
 of course allowing the other party to offer explanatory faets.^' 
 And he does not, by so doing, make the adverse party his own wit- 
 ness.^* Under the statutes, the moving party is not bound by the 
 answers of his adversary, but may rebut such testimony or im- 
 peach the witness.^^ It is clear that the one at whose instance the 
 examination is taken may offer the deposition of his adversary so 
 taken or portions thereof on the trial as admissions, even though 
 such witness is present in court.^° The examination should be 
 
 »Tayl. Ev. (lOth Ed.) § 522. See the statutes of the jurisdiction. 
 
 8 Free v. West. U. T. Co. (la.), 110 N. W. 143. For refusing to answer, 
 Harding v. Morrill, 136 Mass. 291; Rushing v. Willis (Tex. Civ. App.) 28 
 S. W. 921; Bounds v. Little, 75 Tex. 316, 12 S. W. 1109. 
 
 9 But in Michigan an act giving this power was held unconstitutional. 
 Mulhern v. Grove, 111 Mich. 528, 70 N. W. 15. 
 
 loHeishon v. Knickerbocker Life Ins. Co., 77 N. Y. 278; First National 
 Bank v. Wood, 26 Wis. 500. 
 
 11 Southern R. Co. v. Hubbard, 116 Ala. 387, 22 So. 541; Shober v. 
 Wheeler, 113 N. C. 370, 18 S. E. 328; Moore v. Palmer, 14 Wash. 134, 44 
 Pac. 142. Contrary rule, McFarland v. Muscatine, 98 la. 199, 67 N. W. 233. 
 
 12 Farrow v. Railway Co., 109 Ala. 448, 20 So. 303; Wunderlich v. Ins. 
 Co., 104 Wis. 382, 80 N. W. 471. 
 
 13 Allend v. Spokane Falls & N. Ry. Co., 21 Wash. 324, 58 Pac. 244; Van 
 Horn T. Smith, 59 la. 142, 12 N. W. 789; Wunderlich v. Ins. Co., 104 Wis. 
 382, 80 N. W. 47L 
 
 1* Shober v. Wheeler, 113 N. C. 370, 18 S. E. 328. 
 
 IB Crocker v. Agenbroad, 122 Ind. 585; Meier v. Paulus, 70 Wis. 165, 35 
 N. W. 301; Le Bleu v. Savole, 109 La. G80, 33 So. 729; Sandey v. Railway 
 Co.,, 30 Wash. 349, 70 Pac. 972, 94 Am. St. Rep. 880. 
 
 IB Williams V. Cbeney, 3 Gray, 215; Meir v. Paulus, 70 Wis. 165, 35 N, 
 
876 THE LAW OF EVIDENCE. § 705 
 
 confined to facts wMcli are relevant to the issue.*^ But within 
 these limits the same latitude should be allowed as in the cross- 
 examination of a party." Under these statutes the right to ex- 
 amine the adverse party is a substantial right and may be exer- 
 cised at any reasonable time before the trial.^' It is well estab- 
 lished that this method of discovery does not exist in the federal 
 courts. The provision of Section 914 by which the practice, plead- 
 ings and forms of procedure in the' courts of the several states are 
 to be followed ia actions at law in the courts of the United States 
 held within the same state neither restricts nor enlarges the power 
 of federal courts to order the examination of parties out of court. 
 Said Mr. Justice Miller, "It is not according to common usage to 
 call a party in advance of the trial at law, and subject him to all 
 the skill of opposing counsel, to extract something which he may 
 use or not as it suits his purpose."^" 
 
 § 705 (723). Effect of statutes upon former remedy. — Some of 
 the statutes under consideration expressly take away the old rem- 
 edy of discovery. In other instances, the courts have construed 
 the ancient remedy- as practically obsolete, and have held that, 
 where the statute gives an adequate remedy in the principal action 
 in form of the right to fully examine the adverse party before the 
 trial, the action for discovery is unnecessary and will not be al- 
 lowed.^^ Although this view seems to accord with the general 
 principles of equity jurisdiction, it is not universally accepted, 
 and we find high authority for the other view that the jurisdiction 
 
 W. 301 Canon v. Sweet (Tex. Cr. App.), 28 Su W. 718. But not that 
 of a mere employe of a corporation, Anderson v. Chicago Brass Co., 127 
 Wis. 273, 283, 106 N. W. 1077. Answers on information and belief adnils- 
 sible, Gunn v. Railway Co., 171 Mass. 417, 50 N. B. 1031, Gollobltsch v. 
 Ranibon, 84 la. 567, 51 N. W. 48. 
 
 IT McFarland v. Muscatine, 98 la. 199, 67 N. W. 233. Mere opinions re- 
 jected, Meyer. V. Manhattan L. Ins Co., 144 Ind. 439, 43 N. E. 448; Robbins 
 V. Brockton St. Ry. Co., 180 Mass. 51, 61 N. B. 265; also hearsay, Gunn v. 
 Railway Co., 171 Mass. 417, 50 N. B. 1031. 
 
 18 Cleveland v. Burnham, 60 Wis. 16, 17 N. W. 126, 18 N. W. 190; Kelly 
 V. Chicago & N. W. Ry. Co., 60 Wis. 480, 19 N. W. 521. 
 
 19 Schmidt v. Menasha Wooden Ware Co., 92 Wis. 529, 66 N. W. 695. 
 
 20 Ex parte Fisk, 113 U. S. 713; Union Pac. Ry. Co. v. Botsford, 141 U. 
 S. 250; Zych v American C. & F. Co., 127 Fed. 723. 
 
 21 Chapman v. Lee, 45 Ohio St. 356. In Federal court, Saffiord v. Ensign 
 Mfg. Co., 120 Fed. 480; Ex parte Boyd, 105 U. S. 647. Contra, Indianapolis 
 Gas Co. V. Indianapolis, 96 Fed. 196. As to the effect of the statutes, see 
 note, 41 Am. St. Rep. 389. 
 
§ 706 DiscovEKT. 877 
 
 of the courts of chancery, which existed prior to these statutes, is 
 not taken away by implication.^'' The statement has sometimes 
 been made that the statutory proceeding is a substitute for the iill 
 of discovery; and there are decisions which have construed these 
 statutes in this spirit, and have followed the analogies of the equi- 
 ty rules relating to bills of discovery. But it is the present ten- 
 dency to treat these statutes as something more than an attempt 
 to perpetuate the old bill of discovery under a new name and form. 
 It is a fair construction of these statutes, that it -"-as the legisla- 
 tive intent not only to compel disclosure in the principal suit, and 
 to avoid the cumbersome praeMee of the ancient bill of discovery, 
 but to give a broader range to the examination."" The statutes 
 are generally broad enough to permit the examination in all forms 
 of action,^* and it is generally held that they should be liberally 
 construed."^ If justice seems to require there may be more than 
 one examination of a party .^* 
 
 § 706 (724). Scope of the examination. — As an illustration of 
 the tendency mentioned in the last section, it has often been held 
 that the examination is not to be confined, as in the equity prac- 
 tice, to those facts which were set up in the pleadings of the mov- 
 ing party, but on the contrary, it may extend to matters in support 
 of the case or defense of the other party." Under this class of stat- 
 utes, it has been held within the scope of the examination to elicit 
 a full and complete disclosure of whatever may be relevant to the 
 
 !2Post V. Toledo, C. St. L. Ry. Co., 144 Mass. 341, 59 Am. Rep. 86; 
 Kendallville Refrigerator Co. v. Davis, 40 111. App. 616; Handley v. Heflin, 
 84 Ala. 600; Kearney v. Jeffries, 48 Miss. 343. 
 
 23 The right has been construed broadly enough to permit examination 
 In a proceeding instituted before filing of the complaint, Ellinger v. Equit- 
 able Life Assurance Co., 125 Wis. 643, 104 N. W. 811. See cases cited under 
 the next section. 
 
 ii Equity, Cobb v. Rice, 130 Mass. 231; law, Jacksonville T. & K. W. R. 
 Co. V. Peninsular Land Transp. & Mfg. Co., 27 Pla. 1157, 9 So. 661, 17 L. 
 R. A. 33; 111. C. R. Co. v. Sangford, 75 Miss. 862, 23 So. 355; tort,' Gunn 
 v. Railway Co., 171 Mass. 417, 50 N. B. 1031; in plea of abatement, Paul v. 
 Baltimore & O. R. Co., 33 Ind. App. 157, 69 N. B. 1024. 
 
 26Frawley v. Cosgrove, 83 Wis. 441, 53 N. W. 689; Schmidt v. Monasha 
 Wooden Ware Co., 92 Wis. 529, 66 N. W. 695. But see Wheeler v. Burk- 
 hardt, 34 Or. 504, 56 Pac. 644; Roberts v. Parrlsh, 17 Or. 583, 22 Pac. 136. 
 
 26 Hancock v. Ins. Co., 107 Mass. 113. 
 
 27 Herbage v. City of Utlca, 109 N. Y. 81; Kelly v. Chicago & N. W. Ry. 
 Co., 60 Wis. 480; Whereatt v. Bills, 65 Wis. 639; Haynes v. Hatt'n, 15 tf. Z. 
 S. 615. 
 
878 THE LAW OP EVIDENCE. § 706 
 
 controversy, which is to be ascertained by the issues made in the 
 pleadings, or, if issue has not been joined, by an order limiting the 
 subjects to which the examination may extend.^' Other statutes, 
 however, are so framed that the interrogatories can only relate to 
 matters necessary to support the ease or defense of the applicant, 
 in analogy to the bill of discovery; and that the right does not 
 extend to a discovery of the manner in which the defendant's case 
 is to be established nor to evidence which relates exclusively to his 
 case,^° or to what his witnesses will testify."* Mr. Taylor gives 
 many illustrations of the decisions under the modern English prac- 
 tice holding that under the statute and rules of court, as a general 
 rule, a party can not inquire into facts which relate exclusively to 
 the case of his adversary, although he may ask questions, the an- 
 swers to which will advance his own case, even though they may 
 also disclose his opponent's case.'^ It is clearly within the general 
 scope of these statutes to allow the examining party to ascertain 
 such facts, unknown to him and within the knowledge of the other 
 party, as will enable him to make proper preparation for the trial-^^ 
 In some states the statutes prohibit calling for the names of the 
 party's witnesses or the manner in which he propc: :; to prove his 
 own case.^' In some of the states, the statute provides, as the 
 penalty for refusal to answer, that the pleadings or interrogatories 
 of the examining party shall be taken as confessed, that is, that 
 the facts as alleged by him shall be accepted as true as set forth.^* 
 
 28 Kelly V. Chicago & N. "W. Ry. Co., 60 Wis. 480; State v. Baetz, 86 Wis. 
 29. The scope of the examination may be as broad as on cross-examina- 
 tion, Nichols V. McGeoch, 78 Wis. 360. 
 
 29 Baker v. Carpenter, 127 Mass. 226; Sheren v. Lowell, 104 Mass. 24 
 Jacksonville, T. & K. W. Ry. Co. v. Peninsular Land Co., 27 Fla. 157 
 Downie v. Nettleton, 61 Conn. 593; Ex parte Schoepf (Ohio), 77 N. E. 276 
 Volusia County Bank v. Bigelow (Fla.), 33 So. 704. 
 
 30 Robblns V. Brockton St. Ry. Co., 180 Mass. 51, 61 N. E. 265. 
 
 31 Tayl. Ev. (10th Ed.) §§ 532 et seq. 
 
 32 Thayer v. Humphreys, 69 Hun. 343 ; Chapin v. Thompson, 21 N. T. S. 
 1091; Wahle v. McMillan, 20 N. Y. S. 372; In re Nolan, 24 N. Y. S. 238; 
 Arnold v. Pawtuxet Water Co., 18 R. I. 189 ; Evans v. Lancaster City St. Ry. 
 Co., 64 Fed. 626. 
 
 S3 Spinney v. Boston Elevated Ry. Co., 188 Mass. 30, 73 N. B. 1021; In re 
 Bradley, 71 N. H. 54, 51 Atl. 264. 
 
 34 Gulf, C. & S. F. Ry. Co. v. Nelson, 5 Tex. Civ. App. 387. The rule 
 has been applied on application of a corporation, although the statute 
 made no provision for examining corporations. First Nat. Bank v. Smith, 
 36 Neb. 199. 
 
§ 707 CiscovEEY. 879 
 
 § 707 (725). Same — ^Examination under control of the court. — 
 The courts are everywhere agreed in the view that these statutes 
 allowing discovery should be so construed as to prevent their 
 abuse; the privilege of examining the adversary in advance of trial 
 should not be allowed to become a means of oppression. As under 
 the ancient practice in discovery, a mere "fishing bill" was not 
 tolerated, so questions, which are prompted by mere curiosity or 
 impertinence, which have no bearing upon the case, or which reck- 
 lessly and unnecessarily tend to annoy or expose private affairs, 
 should not be allowed.'^ Accordingly, under these statutes, the 
 courts exercise the power of so regulating the procedure, either 
 by limiting the subjects to which the examination may extend, or by 
 other similar orders, that the disclosure may be kept within prop- 
 er limits." Under those statutes which provide for the examina- 
 tion of the adverse party before trial, and specify what the affi- 
 davit, prelinainiary to the order, shall contain, it has been held dis- 
 cretionary with the judge to whom the application is made to 
 grant or deny the order, although the statute provided that the 
 judge must grant the order upon a proper affidavit." The object 
 of requiring such an affidavit is to enable the judge to determine 
 whether the examinations should be ordered, and also to place 
 limits upon it. In such cases, where the judge can see that the ex- 
 amination is sought merely for annoyance or for delay, and that it 
 is not in fact necessary and material, he is not required to make 
 the order.'* Under the statutes only parties to the -record can be 
 called upon to make the disclosure ; the fact that one is interested 
 iu the result is not sufficient.'* But sureties may also be compelled 
 
 »» Jenkins v. Putnam, 106 N. T. 272; Glen Cove Manfg. Co. v. Sutro, 6 N. 
 Y. S. 384; Volusia Oounty Bank v. Bigelo-w (Fla.), 36 So. 704; Rigdon v. 
 Conley,. 31 111. App. 630, in this case the order related to the production of 
 books and papers. But the party need have no property interest in the 
 instrument, Arnold r. Pawtuxet Water Co., 18 B,. I. 189. See § 711 infra. 
 A party can not be compelled to give the names of his witnesses, Wabash 
 Ry. Co. V. Morgan, 132 Ind. 430. 
 
 88 Stevens v. Flannagan, 131 Ind. 122; Meek v. Witherington, 67 Law 
 T. 122. State v. District Court, 27 Mont. 441, 71 Pac. 603. 
 
 87 Kelly V. New York Cent. & H. Ry. Co., 66 Hun 629. The affidavit when 
 required must in all respects comply with the statute, Schmidt v. Menasha 
 Wooden Ware Co., 92 Wis. 529, 66 N. W. 695. 
 
 as Jenkins v. Putnam, 106 N. Y. 272 ; Sheehaa v. Albany Turnpike Co., 
 8 N. Y. S. 14; Bloom v. Patten, 10 N. Y. S. 228, 
 
 »» Seeley v. Clark, 78 N. Y. 221. The party himself must sabmit to 
 
880 THE LAW OF EVIDENCE. § 708 
 
 to submit to such an examination when their principals are sued ;" 
 and where the action is brought for the benefit of a third person, 
 the nominal party may be examined.*^ But the officers of a corpo- 
 ration cannot be compelled to submit to an examination under the 
 general statute, unless there is a special statute upon the subject.*^ 
 Statutes now exist, however, in some states allowing the examina- 
 tion of the officers of corporations, subject to the same general 
 rules as in other cases. The tendency has been to extend this 
 right and in some statutes so that not only general officers of the 
 corporations but their agents and employes may be examined.*' 
 Under a Massachusetts statute it was held proper to require a 
 president of a corporation, if he did not know certain facts, to ia- 
 quire of his agents and state the information received from them.** 
 § 708 (726). Privilege— Self-crimination.— In analogy to the 
 familiar rule as to discovery, these statutes do not compel a party 
 to submit to an examination as to facts which would expose him to 
 punishment for crime, or to a penalty.*" But an application for 
 an examination cannot be resisted on the ground that the testi- 
 mony may subject the party to a criminal prosecution, where there 
 are facts relevant to the case which he can disclose with impunity. 
 The proper practice is to raise the question of privilge as to the 
 
 the examination even though his attorney is more familiar with the facts, 
 Gollsbitsch V. Ranibon, 84 la. 567, 51 N. W. 48. 
 
 *o State V. Baetz, 86 Wis. 29. 
 
 *i Harding v. Merrill, 136 Mass. 291. -So the real party may be examined, 
 though he Is not a party of record, Willis v. Boddeley, 2 Q. B. 324. 
 
 « Boorman v. Atlantic Ry. Co., 78 N. Y. 599; People v. Mutual Gas 
 Co., 74 N. Y. 434. But see, Holt v. Southern F. & W. Co., 116 N. C. 480; 
 Blair v. Sioux City & P. Ry. Co., (la.) 73 N. W. 1053. 
 
 *s Anderson v. Chicago Brass Co., 127 Wis. 273, 106 N. W. 1077. Under 
 such a statute it has been held that the deposition of a general officer may 
 be read although he is present in court, Johnson .v. St. Paul & Western 
 Coal Co., 126 Wis. 492, 503, 105 N. W. 1048. Not as to a mere employe, 
 Hughes V. Railway Co., 122 Wis. 258, 99 N. W. 897; Anderson v. Chicago 
 Brass Co., 127 Wis. 273, 106 N. W. 1077. 
 
 " Toland v. Paine Furniture Co., 179 Mass. 501, 61 N. E. 52. Under the 
 Indiana statute the corporation should select to make answer an agent 
 familiar with the facts, Cleveland, C. C. & St. L. Ry. Co. v. Miller, 35 Ind. 
 App. 707, 74 N. B. 509. 
 
 *5 Franks v. Reimer, 9 N. Y. S. 273; Brannon v. Press Pub. Co., 8 N. Y. 
 S. 870; Roberts v. Western Ins. Co., 40 111. App. 428. See §§ 711, 884 et seq. 
 infra. As to matters privileged from public policy, Moore v. Palmer, 14 
 Wash. 134, 44 Pac. 142; Worthington v. Scribner, 109 Mass. 487, 12 Am. 
 Rep. 736; Cully v. Northern Pac. Ry. Co., 35 Wash. 241, 77 Pac 202. 
 
§ 709 DISCOVERT. 881 
 
 objectionable testimony at the time of the examination." More- 
 over a defendant is always compelled to disclose his framd and 
 fraudulent practices, when such evidence is material to the plain- 
 tiff's ease, even though the fraud might be so great as to expose 
 the defendant to a prosecution for conspiracy unless perhaps the 
 indictment is actually pending.*^ It is a familiar rule in the law 
 of discovery in equity that a party is not only privileged from 
 stating the main facts which might criminate him, but the privi- 
 lege extends also to every incidental fact which might form a link 
 in the chain of evidence establishing such liability.** Doubtless 
 the same principle should be recognized in statutory discovery. 
 It is equally clear that, under this method of discovery, there is 
 no reason for departing from those rules of public policy which 
 forbid an attorney, husband or wife to reveal those communica- 
 tions which, in the law, are recognized as privileged.*" The right 
 of a party to an examination of the adversary before trial is an 
 important right, so important that an error of the court in refusing 
 to allow a disclosure of facts necessary to prepare for trial is not 
 cured by the introduction of, or opportunity to introduce, testi- 
 mony on the same point at the trial."" It was held in an Indiana 
 case on the facts stated that a party was not compelled to submit 
 to such an examination at his own home, and that to lock his door 
 and go away at the time noticed for the examination was no con- 
 tempt."^ 
 
 § 709 (727.) Inspection of books and papers. — It is within the 
 general powers of courts of chancery to order the discovery and 
 inspection of documents before trial by virtue of their inherent 
 jurisdiction over discovery. It has been the practice of such 
 courts to frame their own rules, and to adjust the procedure to 
 meet the requirements of justice."" It seems to have been the 
 practice of the courts of common law, to a limited extent, to make 
 
 «8Haynes v. Hatch, 15 N. T. S. 615; Carter v. Good, 57 Hun (N. Y.) 116. 
 
 *T Mitchell V. Koecker, 11 Beav. 380; Robinson v. Kitchln, 35 Eng. L. & 
 Eq. 558; Skinner v. Judson, 8 Conn. 528; O'Connor v. Tack, 2 Brewst. (Pa.) 
 407. See also, Currier v. Concord Ry. Co., 48 N. H. 321; 1 Pom. Eq. Jur. 
 (3d. Ed.) § 202. 
 
 48 Pom. Eq. Jur. (3d Ed.) § 268. See §§ 885 et seg. infra. 
 
 4» See §§ 733 et seq., 748, et seq. infra. 
 
 60 Baker v. Carpenter, 127 Mass. 226. 
 
 "McSwane v. Foreman (Ind.), 78 N. E. 630. 
 
 52 King V. Leighton, 58 N. Y. 383; Holt v. Southern F. & W. Co., 116 N. C. 
 480. See note, 41 Am. St. Rep. 388-396. See § 702 supra. 
 
 C6 
 
882 THE LAW OF EVIDENCE. § 710 
 
 orders for tlie inspection of writings in the possession of one party 
 to a suit in favor of the other.^^ But in some of the cases, it was 
 held that an order for inspection would be denied, except in those 
 cases where the paper itself constituted a cause of action, or might 
 be considered as held in trust for the moving party."* This limited 
 jurisdiction of the common law courts was in the nature of a usur- 
 pation, and was exercised sparingly and with hesitation, until stat- 
 utes were enacted in England and in this country conferring upon 
 common law courts the power to compel the discovery and inspec- 
 tion of documents."" 
 
 § 710 (728). Inspection of documents in the United States 
 courts. — ^By the judiciary act of 1789 the following procedure for 
 obtaining the inspection of documents was adopted: "In the trials 
 of actions at law, the courts of the United States may, on motion 
 and due notice thereof, require the parties to produce books or 
 writings in their possession or power which contain evidence perti- 
 nent to the issue, in cases and under circumstances where they 
 mJght be compelled to produce the same by the ordinary rules of 
 proceeding in chancery. If a plaintiff fails to comply with such 
 order, the court may, on motion, give the like judgment for the 
 defendant as in cases of nonsuit; and if a defendant fails to com- 
 ply with such order, the court may, on motion, give judgment 
 against him by default.""" This power to order the production 
 of books and papers it has been held to include the power to grant 
 an inspection before trial, with permission to make copies."' In 
 the federal courts, the provisions of state statutes for inspection of 
 documents do not control, but the practice is governed by this sec- 
 tion."' The application must be on motion, with a reasonable no- 
 
 55 See cases cited below. ' 
 
 64 Union Pacific Ry. Co. v. Botsford, 141 TJ. S. 250; Bank of tJtlca v. 
 Hillard, 6 Cow. 62; Wallis v. Murray, 4 Cow. 399. 
 
 68 McQuigan v. Delaware, L. & W. Ry. Co., 129 N. Y. 50, 26 Am. St. Rep. 
 507. 
 
 68 Rev. Stat. XJ. S. 724 (U. S. Somp. St. 1901, p 583); Cameron Lumber 
 Co. v. Droney, 132 Fed. 304; Gray v. Schneider, 119 Fed. 474; Victor G. 
 Bloede Co. v. Joseph Bancroft & Sons Co., 98 Fed. 175. But see late case 
 contra, full discussion, Cassatt v Mitchell Coal & Ooke Co., 150 Fed. 32. 
 See notes, 41 Am. St. Rep. 388-396; 24 L. R. A. 189. 
 
 67 Exchange Nat. Bank v. Washita Cattle Co., 61 Fed. Rep. 190; Bank v. 
 Taylor, 2 Cranch C. C. 427; Lucker v. Pheonix Assurance Co., 67 Fed. 18. 
 
 68 Gregory v. Chicago, M. & St. P. Ry. Co., 10 Fed. 529; Beardsley v. 
 LitteU, 14 Blatchf. (U. S.) 102. 
 
§ 710 DISCOVBKY, 883 
 
 tice to the party or his attorney."' The statute does not apply in 
 those eases where a subpoena duces tecum would issue to compel a 
 witness to produce documents ; °" and it does not take away the 
 right to relief by bill of discovery."^ So it has been held that the 
 statute does not apph/ to suits in equity, but is confined to actions 
 at law and to cases and under circumstances where the party might 
 be compelled to produce documents by the ordinary rules of pro- 
 cedure in chancery.'" But the statute does not require the modes 
 of procedure incident to a bill of discovery. The order will be 
 granted on notice, containing a description of the documents with 
 reasonable certainty."*^ And before a defendant can be held in 
 default for a failure to produce such evidence as provided by the 
 statute, the court must have determined that the evidence so 
 sought is pertinent to the issues and ought to be produced and 
 have made an order for its production, which has been disobeyed.'* 
 It should also appear that the documents are in the possession of 
 the other party, and that they are relevant."" It will be observed 
 that, if a plaintiff fails to comply with the order, the court may 
 grant a judgment equivalent to nonsuit, and, if the defendant 
 fails to comply with the order, the court may give judgment 
 against him by default."' It is hardly necessary to add that in- 
 spection cannot be compelled where it would subject the party to 
 a penalty or forfeiture.^'' It has recently been held in important 
 
 69 Sampson v. Johnson, 2 Cranch C. C. 107 ; Maye v. Carberry, 2 Cranch 
 C. C. 336; Bank of United States v. Kurtz, 2 Cranch C. C. 342; Thompson 
 V. Selden, 20 How. 194. 
 
 ei United States v. Babcock, 3 Dill. (U. S.) 566; Merchants Bank v. 
 State Bank, 3 Cliff. (U. S.) 20. But when sutpwna duces decum does not 
 afford adequate relief, the statute applies, Kirkpatrick v. Pope Manfg. Co., 
 61 Fed. 46. A different rule seems to prevail in state courts, see note 85 
 of the next section. 
 
 62 United States v. Hutton, 10 Ben. (U. S.) 269. Nor is the pendency of 
 a bill of discovery a bar, lasigia v. Brown, 1 Curt. (U. S.) 401. 
 
 63 Bischoffsheim v. Brown, 29 Fed. 341; Finch v. Rikeman, 2 Blatch. (U. 
 S.) 301; Owyliee Liand & Irrigation Co. v. Tautphaus, 109 Fed. 547. 
 
 64 Jacques v. Collins, 2 Blatch. (U. S.) 23; Vasse v. Mifflin, 4 Wash. (U. 
 S.) 519; United States Distillery, 6 Biss. (U. S.) 483. 
 
 66 lasigia v. Brown, 1 Curt. (U. S.) 401; Triplett v. Baijk of Washington, 
 3 Cranch C. C. 646; Jacques v. Collins, 2 Blatch. (U. S.) 23. 
 
 66 lasigia v. Brown, 1 Curt. (U. S.) 264; Rev. Stat. U. S. § 724 (U. S. 
 Comp. St. 1901, p. 583). 
 
 67 Finch V. Rikeman, 2 Blatch. (U. S.) 301; Snow v. Mast 63 Fed. 623. 
 See § 708 supra. Refused in qui action, Newgold v. Am. Elec Novelty & 
 Mfg. Co., 108 Fed. 34j, 
 
884 THE LAW OP EVIDENCE. § 7.11 
 
 cases under the Anti-Trust Act of 1890 that there is a clear dis- 
 tinction between an individual and a corporation and that the 
 latter being a creature of the state can he compelled to submit its 
 hooks and papers at the suit of the sta.te, — and that when the stat- 
 ute grants full immunity to the witness he can be compelled to 
 produce books and papers.'* 
 
 § 711 (729). Statutory discovery of books and papers in state 
 courts. — This statuory discovery has largely superceded the for- 
 mer methods of obtaining the inspection of books and papers. 
 Statutes now quite generally exist in the several states, under 
 which the courts, on application, may, on due notice, iu both legal 
 and equitable actions, order either party to give to the other the 
 privilege of inspecting, or the right to take copies of books and 
 papers containing evidence relevant to the merits of the action 
 or the defense."' These statutes are intended to give a more con- 
 venient remedy than the old bill of discovery ; and every party is 
 entitled to this remedy, at least in all cases when he might have 
 maintained a bill of discovery.'"' Such statutes usually provide 
 that the application shall be made upon affidavit or petition show- 
 ing that the necessity therefor exists. The statutes and rules of 
 court are usually so framed that the court may exercise a wide 
 discretion in determining whether the order shall be granted, and 
 also as to the mode of granting inspection or allowing copies to 
 be made.''^ Statutes or rules of court in some eases permit in- 
 
 «8Hale V. Henkel, 201 U. S. 43; Nelson v. United States, 201 U. S. 92. 
 Witness compelled to produce documents before the commissioner though 
 immaterial, id. 
 
 89 When the power to allow inspection is given generally under the 
 statute, it may be exercised in all cases, even in libel, when the pleadings 
 refer to any document, Kraus v. Sentinel Co., 62 Wis. 660, 23 N. W. 12. 
 See note, 41 Am. St. Rep. 388-396; also note, 24 L. R. A. 183-191, discussing 
 the rule established in each state. 
 
 70 Gould V. McCarty, 11 N. Y. 575; Arnold v. Pawtuxet Water Co., 18 R. 
 I. 189. See full discussion in Swedish-American Tel. Co. v. Fidelity & 
 Casualty Co., 208 111. 562, 70 N. E. 768. 
 
 71 Phelps V. Atlantic & Pacific Tel. Co., 46 Wis. 366, 50 N. W. 288, tele- 
 grams; Clyde V. Rogers, 94 N. Y. 541, in this case the inspection was un- 
 der the supervision of a referee. See also, Ely v. Mowry, 12 R. I. 570. See 
 elaborate note, 41 Am. St. Rep. 394; also note, 2 L. R. A. 223. The docu- 
 ments should be shown to be within the control of the party, Netter v. 
 Stoekle (Del.), 56 Atl. 604. But documents under the control of a cor- 
 poration must be produced, Nelson v. United States, 201 U. S. 92. 
 
§ 711 DISCOVERT. 885 
 
 spection of documents to enable the party to plead.'' The appli- 
 cation should recite facts showing that the examination is neces- 
 sary. The mere opinion of the party is not enough.'" It should 
 also describe the documents to be produced with reasonable cer- 
 tainty, as well as the facts to be proved, so that the court may 
 see that the proposed testimony is relevant* The application 
 will not be granted to the plaintiff, if it clearly appears that his 
 action can not be maintained.'" It has also been held that such 
 an application will not be granted for the purpose of discovering 
 a cause of action ; '" nor to find out whether there is any defense 
 to the plaintiff's claim, or, what such defense may be; " nor will 
 it be granted in favor of the defendant, if his defense is without 
 merit," or where the object is merely to annoy or to gratify idle 
 curiosity." But if it is reasonably necessary to enable the other 
 party to prepare for trial, the inspection should be allowed.'" The 
 examination should be restricted to such books or documents as 
 relate to the dealings of the parties or as are, for other reasons, 
 relevant to the issue.*^ So Tinder a statute allowing examination 
 of the officers of a corporation, the examination will be confined 
 to official matters and acts of the company in connection with the 
 
 72 London G. & A. Co. v. Rotinerd, 146 Mich. 477, 109 N. W. 1049. There 
 need not be indispensable necessity, id. Documents necessary to enable a 
 party to amend his own pleading, Harris v. Richardson (Mich.), 100 N. 
 W. 92. No objection that evidence can be obtained from other sources. 
 State V. District Court, 30 Mont. 206, 76 Pac. 206. 
 
 73 Jenkins v. Bennet, 40 S. C. 393; Davis v. Dunham, 13 How. Pr. (N. 
 Y.) 425; New Bng. Iron Co. v. New York Loan Co., 55 How. Pr. (N. Y.) 
 351. 
 
 74 Ely V. Mowry, 12 R. I. 570; Cornish v. Wormser, 53 Hun (N. Y.) 40. 
 76 Bridgman v. Scott, 13 N. Y. S. 338. 
 
 7sBritton v McDonald, 23 N. Y. S. 350; Nathan v. ^Phitehill, 67 Hun (N. 
 
 77Govin V. De Miranda, 17 N. Y. S. 816; Davis v. Mills, 163 Mass. 481. 
 Y.) 398. 
 
 78 Fromme v. Ltsner, 17 N. Y. S. 850. Nor to persons other than party, 
 Sheek v. Sain, 127 N. C. 266, 37 S. E. 334. 
 
 7» Jenkins v. Putnam, 106 N. Y. 272; Pynchon v. Day, 18 111. Apt). 147. 
 See § 707 supra. 
 
 80 Arnold v. Pawtuxet Water Co., 18 R. I. 189; People v. Newaygo Cir- 
 cuit Judge, 41 Mich. 258, 49 N. W. 921; Petrie v. Muskegon Circuit Judge, 
 90 Mich. 265, 51 N. W. 278. 
 
 81 Allen V. Allen, 58 Hun. (N. Y.) 604; Dobson v. Graham, 49 Fed. 17. 
 The records of an association before and after incorporation were held "a 
 document," within meaning of the statute in Arnold v. Pawtuxet Water Co 
 18 R. I. 189. 
 
886 THE LAW OF EVIDENCE. § 711 
 
 books and documents produced.^^ The mode of inspection is un- 
 der the control of the court; and it is the duty of the court to see 
 that the privilege is not abused.*' A party is not relieved from 
 producing books or papers, material to the issue, merely because 
 they are private ; '* and it is no answer to the application that 
 the documents or books might be brought into court under a sub- 
 poena duces tecum.^^ But a party should not be compelled to 
 place such books or papers in the possession or the control of some 
 third party for inspection.*" Nor to produce documents which 
 ixader general rules are privileged as confidential communications 
 with attorneys.*' It is hardly necessary to add that the produc- 
 tion of documents for inspection before the trial does not make 
 them, evidence. The object of the inspection is generally to en- 
 able the party to perfect his pleadings or prepare for the trial; 
 and, if the documents are needed as evidence, their production at 
 the trial may be compelled by subpoena duces tecum. The usual 
 rule applies that a party is not bound to criminate himself, hence 
 he will not be compelled to produce documents, when he raises 
 this objection under oath ; ** and counsel will not be allowed to 
 comment on such refusal when making the argument, to the jury.*° 
 
 82 Blocker v. Guild, 7 N. T. S. 651. 
 
 saVeiller v. Appenheim, 26 N. Y. S. 1051; Hopklnson v. Lord Burghley, 
 L. R. 2 Ch. App. 447. Held discretionary witi the court, Chamberlain v. 
 Chamberlain Banking House (Neb.), 93 N. "W. 1021. 
 
 s-iBurnham v. Morissey, 14 Gray 226, 74 Am. Dec. 676; In re Dunn, 9 
 Mo. App. 255; Taylor v. Miller, 11 Ves. 41; Johnson Ry. Co. v. North 
 Branch Co., 48 Fed. 191. But a physician can not be compelled to produce 
 books containing information derived from patients, Mott v. Consumers 
 Ice Co., 52 How. Pr. (N. Y.) 148. Nor must an attorney produce his 
 clients' papers, Crosby v. Berger, 11 Paige (N. Y.) 377, 42 Am. Dec. 117; 
 State V. Douglass, 20 W. Va. 770. 
 
 85 Phelps V. Atlantic & P. Tel. Co., 46 Wis. 266, 50 N. W. 288; Rigdon v. 
 Conley, 31 111. App. 630. A different rule prevails in the federal courts, 
 see note 61 of the last section. See also Preston Nat. Bank v. Rohnert, 137 
 Mich. 152, 100 N. W. 393. 
 
 88 Lester v. People, 150 111. 408, 41 Am. St. Rep. 375 amd extended note; 
 Thomas v. Dunn, 6 Man. & G. 274, 46 E. C. K 278 and note; Ely v. Mowry, 
 12 R. I. 570, 572; Hilyard v. Township of Harrison, 37 N. J. L. 170, 174. 
 But where there is danger that the document may be lost or destroyed. 
 It may be ordered placed in safe custody, Beckford v. Wildman, 16 Ves. 438. 
 
 87 Ex Parte Schoepf (Ohio), 77 N. B. 276. 
 
 88Kraus v. Sentinel Co., 62 Wis. 660, 23 N. W. 12; Boyle v. S?mithman, 
 146 Pa. St. 255, 23 Atl. 397. 
 
 89 Boyle V. Smlthman, 146 Pa. St. 255, 23 Atl. 397. See § 891 supra. 
 
CHAPTER 20. 
 COMPETENCY OP WITNESSES. 
 
 712. Coint)etency of wltnesses^-Oath. 
 
 713. Objection to competency for want of belief — How raised. 
 
 714. Former rule — How changed by statute. 
 
 715. Oath or equivalent still required. 
 
 716. Infamy as a ground of incompetency. 
 
 717. Same — Effect of crime committed in foreign countries. 
 
 718. Disability — How proved — How removed. 
 
 719. Incapacity as a ground of incompetency — Idiots — Mutes. 
 
 720. Incapacity— Want of age. 
 
 721. Mode of determining capacity of children — The tests to be applied. 
 
 722. Degree of credit to be given such testimony. 
 
 723. Want of capacity — Insanity. 
 
 724. Same — Drunkenness — Defective memory, etc. 
 
 725. Interest in the result. 
 
 726. Nature of the interest necessary to disqualify — How removed. 
 
 727. Parties formerly incompetent witnesses. 
 
 728. Exceptions to the ancient rule — Practice in equity. 
 
 729. Parties were not compelled to testify for the adversary — Rule In 
 
 criminal cases. 
 
 730. Effect of statutes on competency of parties as witnesses. 
 
 731. Same, continued. 
 
 732. Competency of parties — Corporators. 
 
 733. Husband and wife incompetent as witnesses. 
 
 734. Same — The rule in criminal cases. 
 
 735. Same — Confidential communications. 
 
 736. Duration of disability. 
 
 737. Matters which may be disclosed after the marriage relation ceases. 
 
 738. Same — ^Actions for criminal conversation. 
 
 739. Waiver. 
 
 740. Exceptions — Agency. 
 
 741. Proof of the agency. 
 
 742. Evidence of husband and wife tending to criminate or contradict 
 
 the other — Collateral proceedings. 
 
 743. Other exceptions to the general rule — Divorce. 
 
 744. The marriage to be proved by the party objecting. 
 
 745. Effect of statutes on the subject. 
 
 746. Same, continued. 
 
 747. General tendency of the statutes. 
 
 748. Attorneys not allowfid to disclose confidential communlcatlona. 
 
888 THE LAW OF EVIDENCE. § 711 
 
 § 749. Same^The privilege that of the client— Not confined to cases 
 pending. 
 
 750. Same — Duration — Client may claim his privilege — ^Extends to 
 writings. 
 
 761. Communication must be made in the nature of professional Inter- 
 course. 
 
 752. Same — Privilege does not extend to Information gained in a casual 
 manner. 
 
 1753. Privilege not allowed in furtherance of crime. 
 
 754. Attorney may be witness for client — Litigation between attorney 
 
 and client, etc. 
 
 755. Instructions for drawing wills. 
 
 756. Waiver of the privilege. 
 
 757. Statutes on the subject. 
 
 758. Communications to clergyman. 
 
 759. Communications between physician and patient — Statutes. 
 
 760. Confined to information gained in the performance of professional 
 
 duty. 
 
 761. Waiver of the privilege. 
 
 762. Privileged, communications as to affairs of state. 
 
 763. Arbitrators. 
 
 764. Judges as witnesses. 
 
 765. Privilege as to transaction In the jury room^Grand Jurors. 
 
 766. Same — Petit jurors — When juror may be witness. 
 
 767. Evidence showing misconduct of jurors. 
 
 768. Accomplices. 
 
 769. Same— Credibility. 
 
 770. What facts may serve as corroboration of accomplices. 
 
 771. Telegrams not privileged — Other confidential statements. 
 
 772. Competency of witnesses as to transactions with deceased persons 
 
 — Statutes. 
 
 773. Reasons for statutes-^LImitatlons — Persons affected. 
 
 774. General scope of statutes — ^Meaning of their terms. 
 
 775. Nature of the disqualifying interest. 
 
 776. When the disability arises — Assignees — Representative. 
 
 777. Nominal and real parties. 
 
 778. Mere relationship does not disqualify. 
 
 779. Donees — Heirs — Sureties, etc. 
 
 780. Waiver — Construction of statutes. 
 
 781. Waiver by examining adverse party — Depositions. 
 
 782. Same — Former trials. 
 
 783. Waiver by calling other witnesses to the transaction or communl- 
 
 catlQn. 
 
 784. Waiver by cross-examination of adverse party. 
 
 785. Meaning of term "transaction." 
 
 786. Same, continued. 
 
 787. Transactions with partners. 
 
 788. Transactions with agents. 
 
§ 712 OOUPBTENCY OF WITNKSBS. 889 
 
 S 789. Agents representing corporations. 
 790. The rule when third persons are present, 
 7^1. The rule In respect to account books. 
 
 792. Further applications of the rule — ^Wllls. 
 
 793. Co-parties — Trustees. 
 
 794. Bjxcluslon of persons under ■whom others claim title. 
 
 795. Statutes excluding any matter occurring before the death. 
 
 796. Mode of ascertaining competency of witnesses — ^Voir dire. 
 
 § 712 (730). Competency of witnesses — Oath. — "A witness is 
 said to be incompetent to give evidence when the judge is bound, 
 as a matter of law, to reject his testimony, either generally or on 
 some particular subject. In all other cases, it is to be received 
 and its credibility weighed by the jury."* By the rules of the 
 conunon law, there were four classes of witnesses who were 
 deemed incompetent to testify: (1) Those insensible to the obli- 
 gation of an oath; (2) Those wanting in capacity or understand- 
 ing; (3) Those having a pecuniary interest in the issue; (4) Par- 
 ties to the issue, although they were sometimes included among 
 those interested in the result.^ Other classes of witnesses were also 
 deemed incompetent to testify as to matters which were excluded 
 on grounds of public policy. Of this rule, communications be- 
 tween husband and wife, attorney and client and the like are 
 illustrations.* It was a well settled rule of the common law that 
 in the administration of justice, testimony should be given under 
 the samction of an oath. In judicio non creditur nisi juratis. "It 
 is not sufficient that a witness believes himself bound to speak thp 
 truth from a regard to character or to the common interests of 
 society, or from a fear of the punishment which the law inflicts 
 upon persons guilty of perjury. Such motives have, indeed, their 
 influence, but they are not considered as affording a sufficient 
 safeguard for the strict observance of truth. Our law, in com- 
 mon with the law of most civilized countries, requires the addi- 
 tional security afforded by the religious sanction implied in an 
 oath; and, as a necessary consequence, rejects all witnesses who 
 are incapable of giving this security."* Although it was inti- 
 
 1 Best, Bv. (10th Ed:) § 132. An interesting discussion of the ancient 
 rules of evidence as to competency will be found in an article in 26 Am. 
 L. Rev. 821; see also a discussion of the early Massachusetts law as to 
 competency by J. B. Thayer, 9 Harv. L. Rev. 1. 
 
 2 1 Phlll. Ev. 3; Greenl. Bv. § 327. 
 
 8 See §§ 733 et seq., infra. 
 
 4 Greenl. Ev. § 368; 1 Fhill. Bv. (9th Ed.) 10; R. v. Brasier, 1 Leach 
 
890 THE LAW OF EVIDBNCB. § 713 
 
 mated by some of the earlier authorities that the testimony of 
 Jews and heretics would not be received for the reason that they 
 could not take the Christian oath, yet it was long ago settled that 
 oaths are not peculiar to the Christian religion; that the mode of 
 swearing is not the material part of an oath, and that it ought 
 to be so administered as to suit the conscience of the witness." 
 While, by the common law, no particular form of religious belief 
 was insisted on as the test of incompetency, it was settled, in the 
 case just referred to, as essential that there should be a belief in 
 an omniscient Supreme Being as the rewarder of truth and aven- 
 ger of falsehood." By this rule, the testimony of atheists is ex- 
 eluded.^ But if the sense of accountability to Deity exists, it is 
 immaterial whether the witness believes that the punishment will 
 be inflicted in this world or the next.' 
 
 § 713 (731). Objection to competency for want of belief — How 
 raised. — The presumption is that a witness living in a Christian 
 country believes in the Christian religion; hence, the turden rests 
 upon the one objecting to a witness because he is insensible to the 
 obligation of an oath, or on account of atheism or other similar 
 cause, to make good the objection by proof." Nor can any volun- 
 teer raise the question ; the objection must be made by the adverse 
 party.^" When the objection is properly raised, the prior deela- 
 
 Cr. Cas. 200; Maden v. Catanach, 7 Hurl. & N. 360; Wakefield v. Ross, 5 Ma- 
 son (U. S.) 16; Atwood v. Welton, 7 Conn. 66; Central Ry. Co. v. Rocka- 
 fellow, 17 111. 541; Smith v. Coffin, 18 Me. 157; Thurston v. Whitney, 
 2 Gush. 104; Norton v. Ladd, 4 N. H. 444; People v. M'Garren, 17 Wend. 460; 
 Anderson v. Maberry, 2 Heisk. (Tenn.) 653; Scott v. Hooper, 14 Vt. 535; 1 
 Law Reporter (Boston) 345. 
 
 sOmychund v. Barker, 1 Atk. 21, WlUes, 538; Ciirtiss v. Strong, 4 Day 
 (Conn.) 51, 4 Am. Dec. 179. 
 
 oOmychund v. Barker, 1 Atk. 21, Wllles, 538; The Merrimac, 1 Ben. (U. 
 S.) 490. 
 
 7 Curtiss V. Strong, 4 Day (Conn.) 51, 4 Am. Dec. 179; Thurston v. 
 Whitney, 2 Cush. 104; Jackson v. Gridley, 18 Johns. 98; People v. M'- 
 Garren, 17 Wend. 460. 
 
 8 Hunscom v. Hunscom, 15 Mass. 184; State v. Langford, 45 La. An. 
 1177; Brock v. Mllligan, 10 Ohio, 121; Omychund v. Barker, 1 Atk. 21, 
 Willes, 538; Blocker v. Burness, 2 Ala. 3^4; Butts v. Swartwood, 2 Cow. 
 431; Shaw v. Moore, 4 Jones (N. C.) 25; Blair v. Seaver, 26 Pa. St. 274; 
 Bennett v. State, 1 Swan (Tenn.) 411. 
 
 » Donnelly v. State, 2 Dutch. (N. J.) 601; Com. v. Wlnnemore, 2 Brewst, 
 (Pa.) 378. See note, 92 Am. Deo. 473. 
 10 1 Law Reporter (Boston) 347. 
 
§ 714 COMPETENCY OP WITNESSES. 891 
 
 rations of the witness may be shown by those who have heard such 
 declarations, for the purpose of proving his incompetency.^^ By 
 the weight of authority in this country, a witness will not be com- 
 pelled to submit to an examination for the purpose of showing his 
 belief, or want of belief. It is held that to require such a dis- 
 closure would be foreign to the spirit of our institutions,^^ al- 
 though, if the witness desires to state or explain his belief, he may 
 do so ; '^ and if his statement stands uncontradicted, he is permit- 
 ted to testify.^* According to some of the English cases, the wit- 
 ness might himself be examined. But, according to those authori- 
 ties, he could only be asked whether he believed in a God, the 
 avenger of falsehood, and also to designate a mode of swearing 
 which would be binding on his conscience. On compliance with 
 this, he could not be asked whether he considered any other mode 
 more binding.^^ 
 
 § 714 (732). Former rule — How changed by statutes. — There 
 is a marked tendency toward the relaxation of the strictness of 
 the common law rules on the subject; and statutes have been quite 
 generally adopted repealing or modifying the rule which formerly 
 excluded, as incompetent, those who did not believe in the exist- 
 ence of a God. By the English statute of 1869, it was provided 
 that, if any witness objected to taking the cath, or if it should be 
 objected that he was incompetent to take an oath, such person 
 shall, if the presiding judge is satisfied that the taking of an oath 
 would have no binding effect on his conscience, make a solemn 
 promise and declaration; and then, if false evidence be willfully 
 and corruptly given by him, he shall be liable to indictment for 
 perjury.^* In some of the states in this country, it is provided 
 by constitution or statute that no person shall be rendered in- 
 
 11 Anderson v. Maberry, 2 Heisk. (Tenn.) 653; Beardsley v. Foot, 2 
 Root (Conn.) 399; Curtiss v. Strong, 4 Day (Conn.) 51, 4 Am. Dec. 179; 
 Smith V. Coflan, 18 Me. 157. Such declarations should be received with cau- 
 tion, Thurston v. Whitney, 2 Cush. 104. 
 
 i2Donkle V. Kohn, 44 Ga. 266; Carter v. State, 63 Ala. 52, 35 Am. Bep. 
 4; Curtiss v. Strong, 4 Day (Conn.) 51, 4 Am. Dec. 179; Atwood v. Welton, 
 7 Conn. 66; Com. v. Smith, 2 Gray, 516; Com. v. Burke, 16 Gray, 33. 
 
 18 United States v. White, 5 Cranch C. C. 38. 
 
 i4Amd V. Amllng, 53 Md. 192; United States v. White, 5 Cranch 0. C. 
 38; State v. Washington, 49 La. Ann. 1602, 22 So. 841, 42 L. R. A. 552 and 
 note. 
 
 16 Best, Ev. (10th Ed.) § 161. 
 
 16 32 £ 33 Vict. ch. 68 sec. 21. 
 
892 THE liAW OP EVIDENCE. § 715 
 
 competent to give evidence in consequence of Ms opinions on the 
 subject of religion ; " in others, the statutes have so far modified 
 the common law rule as to require, as the condition of competency, 
 no more than a Jjelief in the existence of God.^' While in New 
 York, the condition is that the witness shall believe in the exist- 
 ence of a Supreme Being who will punish false swearing.^' 
 
 § 715 (733). Oath or equivalent still required.— Although in 
 many jurisdictions all religious tests are dispensed with, it is the 
 uniform policy of the law to require either the administration of 
 an oath to the witness or that some affirmation or declaration be 
 made as an equivalent.^" If the oath is not taken or the affirma- 
 tion made until part of the testimony is given, only that part of 
 the evidence which follows the oath or affirmation is competent.^^ 
 It is the common law rule, and one which has been declared in the 
 statutes of some of the states, that the court, in its discretion, may 
 inquire of any witness what are the ceremonies observed in swear- 
 ing which he deems most obligatory, and may adopt such forms.''' 
 For example: "Jews may be sworn on the Pentateuch with cov- 
 ered head ; "" Mahometans, upon the Koran ; ^* Gentoos, by toueh- 
 
 iT Arizona, Rev. Stat, 1901, Civil Code, parag. 2538 § 41; Callfomla, 
 Kerr's Code Civ. Proc., 1907, § 1879; People v. Copsey, 71 Oal. 548, Florida 
 Gen. St., 1906, § 1503; Conn. Gen. St., 1902, § 677; Illinois, Const, 1870, 
 art II § 3; Indiana, Rev. Stat, 1901, §§ 52, 513; Iowa, Const, art 1 § 4, 
 Code, 1897, § 4887 note; Kentucky, Civil Code, 1895, § 605; Bush v. Com., 
 80 Ky. 244; Maine, Rev. Stat, 1903, p. 751 § 106; Massachusetts, Rev. Laws, 
 1902, Ch. 175 § 19; Michigan Comp. Laws, 1897, parag. 10207 Ch. 282 
 § 96; People v. Jenness, 5 Mich. 505; Minnesota, Rev. Laws, 1905, § 4G60; 
 Mississippi, Code, 1906, § 1919; Ohio, Rev. Stat., 1890, § 5240; Tennessee, 
 Code, 1896, § 5593; Texas, Code of Crlm. Proc, 1895, art. 776, Rev. Civ. 
 Code, 1895, art. 2303; Vermont, Rev. Stat., 1894, § 1244; Virginia, Perry's 
 Case, 3 Gratt. (Va.) 635; Wisconsin, Const., art 1 § 19; Hroneck v. People 
 (111.), 24 N. E. 861. See also Colter v. State (Tex.), 39 S. W. 576. 
 
 18 New Hampsihire, Pub. Stat & Session Laws, 1901, Ch. 224 § 12; 
 Missouri, Stat., 1835, p. 419 § 7 (but the statute has been modified so that 
 mere affirmation is sufficient Ann. St., 1906, § 8840). 
 
 18 New York, Rev. Stat (3d Ed.) vol. II p. 505. 
 
 20 Com. V. Winnemore, 2 Brewst (Pa.) 378; Priest v. State, 10 Neb. 393. 
 
 21 Com. V. Keck, 148 Pa. St 639. 
 
 22 0mychund v. Barker, 1 Atk. 21, Willes, 543; People v. Green, 99 
 Cal. 594, where It was held not to b« a reversible error to refuse to ad- 
 minister a special oath to a Chinese witness. 
 
 23 Omychund v. Barker, 1 Atk. 21, Willes, 543. Christians are sworn 
 on the Bible, R. v. Gilham, 1 Esp. 285; or upon the old testament. If they 
 prefer, Edmonds v. Rowe, Ryan & M. 77. 
 
 24 Morgan's Casu, 1 Lieach Cr. Gas. 54. 
 
§ 716 COMPETENCY OF WITNESSES. 893 
 
 ing the foot of a Brahmin (or priest) ; *° Chinese, by the cere- 
 mony of killing a cock, or breaking a saucer, the witness declar- 
 ing that, if he speaks falsely, his soul will be similarly dealt 
 with ; "' a Scotch covenanter and a member of the Scottish Kirk, 
 by holding up the hand, without kissing the book ; " Quakers and 
 others, who profess to entertain conscientious scruples against 
 taking an oath in the usual form, are allowed an affirmation, i. e., 
 a solemn religious asseveration that their testimony shall be true.^ 
 A willful false oath under such circumstances is perjury. ' ' ^' 
 
 § 716 (734). Infamy as a ground of incompetency. — Among 
 the persons who, by the common law, were deemed insensible to 
 the obligation of an oath and incompetent to testify were those 
 who had been convicted of infamous crimes.'" Although the prin- 
 cipal ground for the exclusion of witnesses of this character was 
 that they were deemed not worthy of credit in the administration 
 of justice, another reason sometimes adduced was that it was a 
 proper incident to punishment for infamous crimes.** The dis- 
 qualification did not arise, however, unless the witness had been 
 actually convicted and adjudged guilty of a crime.'^ The witness 
 
 20 Omychund v. Barker, 1 Atk. 21, Willes, 543. 
 
 20 R. V. Enthebman, Car. & M. 248. 
 
 27Mildrone's Case, 1 Leach Cr. Cas. 412; WaJker's Case, 1 Leach Cr. 
 Cas. 498; Mee v. Reid, Peake, 33. Ordinarily American witnesses may be 
 sworn in the same way, Gill v. Caldwell, 1 111. 28; Doss v. Birks, 11 
 Humph. (Tenn.) 431. But It is different, if objection be made at the 
 time, McKinney v. People, 7 111. 540. 
 
 28 Atkinson v. Everett, Cowp. 382. Under a Massachusetts statute, 
 the privilege was formerly confined to Quakers alone. United States v. 
 Coolldge, 2 G-all. (U. S.) 364. But this privilege extends only to those who 
 have conscientious scruples against an oath, Williamson v. Carroll, 1 Har. 
 (N. J.) 217. In Com. v. Buzzell, 16 Pick. 153, Roman Catholics were sworn 
 on the Holy Evangelists. 
 
 29Rapalje, Witnesses § 235; Sells v. Hoare, 3 Brod. & B. 232. See note, 
 92 Am. Dec. 473. 
 
 30 Com. v. Knapp, 9 Pick. 495; Com. v. Gorham, 99 Mass. 420; Dickinson 
 v. Duston, 21 Mich. 561; Glenn v. Clove, 42 Ind. 62. On this general subject, 
 see notes, 73 Am. Dec. 775; 33 Am. Rep. 639. 
 
 SI Best, Bv. (10th Ed.) § 141. But see, Chase v. Blodgett, 10 N. H. 22. 
 
 82 R. V. Inhabitants, 8 Bast, 77; Skinner v. Perot, 1 Ashm. (Pa.) 57; 
 People V. Whipple, 9 Cow. 707; Blaufus v. People, 69 N. Y. 107; Jackson 
 V. Osborn, 2 Wend. 555; Cushman v. Loker, 2 Mass. 106; Lipe v. Eisen- 
 lerd, 32 N. Y. 229, 237; Jones .v. State, 32 Tex. Crim. Rep. 135; Ville de 
 Varsovie, 2 Dods. 186; State v. Valentine, 7 Ired. (N. C.) 225; State v. 
 Patterson, 35 S. C. 279, rule modified by statute. 
 
094 THE LAW OF EVIDENCE. § 717 
 
 was not incompetent, within the meaning of the rule just stated, 
 although he had confessed his crime or although he had gained 
 the reputation of being immoral and unworthy of credit,^' or al- 
 though a verdict had been rendered finding him guilty of a crime, 
 which was not followed by judgment, as in such ease a motion in 
 arrest of judgment or one setting aside the verdict might be 
 granted. °* This disqualification has been very generally modified 
 or removed hy statutes. In most states the disability is abolished; 
 in a few it is retained as to witnesses convicted of perjury or sub- 
 ornation of perjury; in a few it is abolished for civil cases and in 
 a few others for criminal cases. The subject was involved in 
 much obscurity, but it is sufficient to add that the cases cited be- 
 low illustrate some of the offenses, conviction of which rendered 
 the defendant infamous under the old rule.^' 
 
 § 717 (735) . Same — Effect of crime committed in foreign coun- 
 tries. — By the weight of authority, a witness is not rendered in- 
 competent by proof that he has been adjudged guilty of an in- 
 famous crime in a foreign country or sister state. This disqualifi- 
 cation is not founded on natural law, and, beiag penal in its char- 
 acter, is strictly construed.^" But the judgment of a foreign court 
 
 asVille de Varsovie, 2 Dods. 174; State v. Randolph, 24 Conn. 363; Craft 
 V. State, 3 Kan. 450; Smithwick v. Evans, 24 Ga. 461; Fay v. Harlan, 128 
 Mass. 244; Com. v. Gorham, 99 Mass. 420. 
 
 a* Pay v. Harlan, 128 Mass. 244; Yates v. State (Fla.), 29 So. 965. 
 Flournoy v. State (Tex.), 59 S. W. 902; see cases cited in notes 32 and 33 
 supra. 
 
 35 Forgery, R. v. Doris, 5 Mod. 74; turglary. People v. Park, 41 N. Y. 21; 
 Taylor v. State, 6 Ala. 164; perjury and subornation of perjury, Co. Xiitt. 
 66; grand and petit larceny, Taylor v. State, 62 Ala. 164; Sylvester v. 
 State, 71 Ala. 17; State v. Gardner, 1 Root (Conn.) 485; Com. v. Keith, 
 8 Met. 531; Pendock v. Mackinder, Willes, 665; James v. Bostwick, 1 
 "Wright (Ohio) 142 (but see, Free v. State, 1 McMull. (S. C.) 494. The 
 New York courts, under a statute, hold petit larceny not an infamous 
 crime. Shay v. People, 22 N. Y. 316; Carpenter v. Nixon, 5 Hill, 260); 
 suppression of testimony by bribery or conspiracy to procure the absence 
 of a witness, or a conspiracy to accuse one of crime, Clancey's Case, Fortes 
 208; Bushell v. Barrett, Ryan & M. 434; R. v. Priddle, Leach Cr. Cas. 442; 
 Crowther v. Hopwood, 2 Stark. 21; Ville de Varsovie, 2 Dods. 191; 
 receiving stolen goods, Com. v. Rogers, 7 Met. 500; conspiracy to defraud 
 creditors. United States v. Porter, 2 Cranch C. C. 60; barratry, R. v. Ford, 
 2 Salk. 690; and assault, when the punishment was of an infamous 
 nature. United States v. Brockins, 3 Wash. (U. S.) 99. 
 
 ss Logan v. United States, 144 U. S. 263; Com. v. Green, 17 Mass. 515, 
 539; Sima v. Sims, 75 N. Y. 466; NaUonaJ Trust Co. v. Gleason, 77 N. Y. 
 
§ 718 COMPETENCY OP WITNESSES. 895 
 
 may be given its due weight, if properly proved, to affect the cred- 
 ibility of the witness ; "'' and, for this purpose, the proof is not con- 
 fined to conviction of infamous crimes. It may be shown that 
 the witness has been adjudged guilty of minor offenses.^' 
 
 § 718 (736). Disability— How Proved— How removed.— At 
 common law, the only mode of proving the conviction rendering a 
 witness incompetent was by the production of the original record, 
 or a duly authenticated copy.'' But in some jurisdictions, it is 
 provided by statutory regulation that, for the purpose of affecting 
 the credibility of the witness, his conviction may be proved either 
 by the record or by his own cross-examination; and in such cases, 
 the party cross-examining is not bound by the answers of the wit- 
 ness.*" The disability now under discussion may be removed 
 either by the granting of a pardon, or by the reversal of a judg- 
 ment.*^ The proof of such pardon or reversal must be by the 
 
 400, 410; Campbell v. State, 23 Ala. 44; Chase v. Blodgett, 10 N. H. 22; 
 Uhl V. Com., 6 Gratt. (Va.) 706. But see, State v. Foley, 15 Nev. 64, 37 Am. 
 Rep. 458; State v. Chandler, 3 Hawks (N. C.) 393. See note, 33 Am. 
 Rep. 639. 
 87 Com. V. Knapp, 9 Pick. 496, and cases last cited. 
 
 38 For example: adultery, Little v. Gibson, 39 N. H. 505; conspiracy to 
 defraud creditors, Bickel v. Fasag, 33 Pa. St 463; dealing faro, Holloway 
 V. Com., 11 Bush (Ky.) 344; embezzlement, Schuylkill v. Copeley, 67 Pa. 
 St. 386; maintaining a house of ill fame, Deer v. State, 14 Mo. 348; ma- 
 licious obstruction of the operation of cars on a railroad. Com. v. Dame, 
 8 Cush. 384; obtaining goods by false pretenses, TJtley v. Merrick, 11 Met. 
 302; petit larceny. Carpenter v. Nixon, 5 Hill, 260; Shay v. People, 22 N. 
 Y. 317; Fruit v. Miller, 3 Ind. 16; Welsh v. State, 3 Tex. App. 114 (cmitra, 
 Lyford v. Farrar, 31 N. H. 314; Sylvester v. State, 71 Ala. 17; State v. 
 Gardner, 1 Root (Conn.) 485; Com. v. Keith, 8 Met. 531); unlawfully cut- 
 ting timber. Holler v. Pfirth, 2 Pen. (N. J.) 723; violating city ordinance, 
 Cheatham v. State, 59 Ala. 40. Many other cases might be cited, but these 
 serve to illustrate the rule. See §§ 838 et seq. infra. 
 
 39 Clarke v. Hall, Har. & McH. (Md.) 378; R. v. Inhabitants, 8 East, 76j 
 State V. Darmrey, 48 Me. 327; Newcomb v. Griswold, 24 N. Y. 298; 
 Farley v. State, 57 Ind. 331; Hall v. Brown, 30 Conn. 551; People v. Her- 
 rlck, 13 Johns. 82, 7 Am. Dec. 364; Bartholomew v. People, 104 111. 601, 
 44 Am. Rep. 97; Com. v. Gallagher, 126 Mass. 54; Johnson v. State, 48 Ga. 
 116; Dickinson v. Dustin, 21 Mich. 561; Bise v. V. S., 144 Fed. 374. 
 
 *o See the statutes of the jurisdiction. 
 
 «Ba; parte Garland, 4 Wall. 333; Osborn v. United States, 91 U. S. 474; 
 Knote V. United States, 95 U. S. 153, and case there cited; Baum v. Clause, 
 5 Hill, 196; Hunnicutt v. State, 18 Tex. App. 499; Klein v. Dlnkgra^e, 4 
 La. An. 540; Wood v. Fitzgerald, 3 Ore. 568; Hester v. Com., 85 Pa. St. 
 154; Perkins v. Stevens, 24 Pick. 277; Yarborough v. State, 41 Ala. 405; 
 
896 THB IiiW OP BVIDENCB. § 718 
 
 proper documentary evidence, under tlie general rule tliat the 
 best evidence must be produced. A pardon restores the compe- 
 tency of the witness, although he has suffered the entire punish- 
 ment imposed ; ^^ the same is true, even if the pardon contains a 
 provision that it shall not be so construed as to relieve the party 
 from any legal disabilities,*' or although the pardon was granted 
 to enable the witness to testify in a given case.** But the pardon 
 does not restore the witness to competency in those cases where he 
 is convicted under a statute which expressly prescribes the dis- 
 aiUity to testify as an incident of the judgment, since it is compe- 
 tent for the legislature to thus modify the general rules of evi- 
 dence.*" There is a conflict as to whether this disability is re- 
 moved by serving out the sentence imposed by the court. The 
 weight of authority seems to hold that the disability is removed in 
 this manner,*" but there are authorities that sanction the opposite 
 rule.*^ But this and similar questions have been rendered of little 
 consequence in almost all jurisdictions by statutes abolishing the 
 rule rendering persons incompetent by reason of conviction of 
 crime, however infamous.*' These statutes generally allow the 
 
 CSom. V. OMo Ry. Co., 1 Grant Cas. (Pa.) 329. But a conditional pardon 
 does not restore competency, Carr v. Smith, 9 Tex. App. 635, 53 Am. Rep. 
 395; McGtee v. S,tate, 29 Tex. App. 596. 
 
 ♦2 Logan V. United States, 144 U. S. 263; Boyd y. United States, 142 
 U. S. 450; Bennett v. State, 24 Tex. App. 73, 5 Am, St Rep. 875. See, 
 Diehl V. Rogers, 169 Pa. 316, 32 Atl. 424, 47 Am. St. Rep. 908. The motive 
 ttiat led the executive to grant the pardon can not be questioned, Martin 
 V. State, 21 Tex. App. 1. 
 
 *8 People V. Pease, 3 Johns. Cas. (N. T.) 333. 
 
 44 Boyd T. United States, 142 U. S. 450. 
 
 4« Dover v. Maestaer, 5 Bsp. 92, 94; R. v. Ford, 2 Salk. 690; Foreman v. 
 Baldwin, 24 111. 298; Houghtaling v. Kelderhouse, 1 Park. Cr. (N. Y.) 241; 
 Evans v. State, 7 Baxt (Tenn.) 12. Contra, Diehl v. Rogers, 169 Pa. 316, 
 32 Atl. 424, 47 Am. St. Rep. 908. But this exception does not exist under 
 common law, in the absence of statute, Dover v. Maestaer, 5 Esp. 92, 94. 
 In some states, by statutory regulation, those convicted of perjury are 
 not restored to competency by a pardon. In a few other states, the same 
 provision exists as to those convicted of a capital crime or of such felonies 
 as burglary, forgery, rape, arson, counterfeiting, bigamy and sodomy. 
 The statutes of the jurisdiction should be consulted in each case. 
 
 48 Carr v. Smith, 19 Tex. App. 635, 53 Am. Dec. 395; Rapalje, Witnesses, 
 § 19. See also, 1 Phill. Bv. (10th Ed.) 23. 
 
 47 United States v. Brown, 4 Cranch 0. C. 607; State v. Benolt, 16 La. 
 An. 273. 
 
 48 See the statutes of the jurisdiction. 
 
§ 719 COMPETENCY OF WITNESSES. 897 
 
 introduction of evidence to show such conviction, however, for the 
 purpose of affecting the credibility of the witness. 
 
 § 719 (737). Incapacity as a ground of incompetency— Idiots 
 — Mutes. — It is too clear a proposition to call for any discussion 
 that the liberty or property of the citizen should not depend upon 
 the testimony of those who are so wanting in understanding that 
 they cannot remember or cannot form any conception of right and 
 wrong. It would obviously be an idle ceremony to 'administer an 
 oath to an idiot or to one hopelessly insane.*" "It makes no dif- 
 ference from what cause this defect of understanding may have 
 arisen; or whether it be temporary and curable or permanent; 
 whether the party be hopelessly an idiot or maniac, or only occa- 
 sionally insane as a lunatic, or be intoxicated, or whether the de- 
 fect arises from mere immaturity of intellect, as in the case of 
 children. While the deficiency of understanding exists, be the 
 cause of what nature soever, the person is not admissible to be 
 sworn as a witness. But, if the cause be temporary, and a lucid 
 interval should occur, or a cure be effected, the competency also 
 is restored." *" The testimony of either an idiot or a lunatic may, 
 however, be received, if he appears to the court to have sufficient 
 understaading to comprehend the obligation of an oath, and to be 
 able to give correct answers to the questions put. The judge is 
 to determine the competency by examining the witness himself 
 or upon the testimony of third persons.^^ Although it was for- 
 merly presumed that persons deaf and dumb from birth were 
 idiots, and therefore incompetent, within the meaning of this 
 rule,"^ no such presumption now exists. Mr. Taylor in his work 
 on evidence gives an instance in whieh a cause was decided solely 
 on the testimony of witnesses who were deaf and dumb."' When 
 
 «Ooleman v. Com., 25 Gratt. (Va.) 865; Phebe v. Prince, Walk. (Miss.) 
 131; Hartford v. Palmer, 16 Jolms. 143; Wright v. Express Co., 80 Fed. 
 85; Worthington v. Mencer, 96 Ala. 510, 11 So. 72; Bowdle v. Railway 
 Co., 103 Mich. 272, 61 N. W. 529, 50 Am. St. Rep. 366. See § 723 infra. 
 
 ooGreenl. Bv. § 365; Coleman v. Com., 25 Gratt. (Va.) 865; Cannady v. 
 Lynch, 27 Minn. 435, 8 N. W. 164; Hartford v. Palmer, 16 Johns. 143, drunk- 
 enness. See § 723 infra. 
 
 61 State V. Meyers, 46 Net). 152, 64 N. W. 697; Cannady v. Lynch, 27 
 Minn. 436, 8 N. W. 164; State v. Simes, 12 Ida. 310, 85 Pac. 914; District 
 of Columbia v. Armes, 107 U. S. 519. 
 
 62 1 Hale P. 0. 34 ; R. v. Steel, 1 Lee, 451, where the accused, a mute, was 
 convicted. See note, 24 L. R. A. 126. 
 
 ssTayl. Ev. (10th Ed.), § 1376, note; State v. Howard, 118 Mo. 127, 24 
 S. W. 41. 
 57 
 
898 THE LAW OF EVIDENCE. § 720 
 
 such a witness is produced, the court may ascertain whether he 
 has the requisite intelligence; and the judge will allow the wit- 
 ness to adopt such mode of communicating his ideas, whether by 
 signs or writing, as, under the circumstances, may be deemed most 
 satisfactory.^* 
 
 § 720 (738). Incapacity— Want of ag3.— A child of tender 
 years may be incompetent to testify, either on the ground that he 
 is not sufficiently matured to state with reasonable correctness 
 what he has seen or heard, or because he does not comprehend the 
 obligation of an oath. In the early English law, there was no lit- 
 tle confusion among the authorities as to the admissibility of evi- 
 dence of this character. There was a tendency on the part of 
 some authorities to adopt the maxim, minor jurare non potest, and 
 to arbitrarily designate some age below which children should 
 not be admitted as witnesses."" In a few other cases in certain 
 classes of criminal trials, all rules of evidence were violated by 
 the admission of the testimony of children without oath.°° But 
 it has now long been settled that there is no certain age at which 
 the dividing line between competency and incompetency may be 
 drawn. The competency of the witness depends on intelligence, 
 rather than age. In the leading English case on the subject, it 
 was determined that the admissibility of the testimony of children 
 depends "on the sense and reason that they entertain of the dan- 
 ger and impiety of falsehood, which is to be collected from their 
 answers to questions propounded to them by the court."'^ At the 
 O'S^ of fourteen, children are presumed to have sufficient intelli- 
 gence to testify and to comprehend the nature of an oath, unless 
 the circumstances of the case are such as to raise a doubt."' If 
 the child is under fourteen, there is no presumption in favor of 
 competency; and the court, in its discretion, will determine 
 whether the child has sufficient intelligence to testify and to com- 
 
 54 0om. V. Hill, 14 HJass. 207; State v. De Wolf, 8 Conn. 93, 20 Am. 
 Dec. 90; People v. McGree, 1 Den. 19; Snyder v. Nations, 5 Blackf. (Ind.) 
 295; Morrison v. Lennard, 3 Car. & P. 127; State v. Wei don, 39 S. 0. 318, 
 17 S. E. 689, 24 L. R. A. 127 and note; Ruston's Case, 1 Leach Cr. C. 408; 
 Rltctey V. People, 23 Colo. 314, 47 Pac. 272. 
 
 06 Co. Lit. 1726, 2476; R. v. Travers, 2 Strange, 700; 1 Hale P. C. 302, 634. 
 
 08 4 Bl. Comm. 214; 2 Hale P. C. 283, 284. 
 
 o'R. v. Birazler, 1 Leach Cr. C. 199; Featherstone v. People, 194 111. 
 325, 62 N. B. 684. 
 
 08 Den V. Vanclere, 2 South. (N. J.) 589; Brown v. State, 2 Tex. App. 
 115; State v. King, 117 la. 484, 91 N. W. 768. 
 
§ 720 COMPETENCY OE WITNESSES. 899 
 
 prehend the obligation of an oath/" There are instances on rec- 
 ord in which the testimony of children of five and six years of 
 age has been received ;°° and it is common practice to admit the 
 testimony of children eight and nine years of age, where they 
 seem to understand the obligation of an oath.°^ 
 
 »» JacKson v. Grldley, 18 Johns. 98; State v. Richie, 28 La. An. 327, 26 
 Am. Rep. 100; Van Pelt t. Van Pelt, 2 Penn. (N. J.) 486; Moore v. State, 
 79 Ga. 498; Davis v. State, 31 Neb. 247, 47 N. W. 855; Davidson v. SUte, 
 39 Tex. 129; Sancedo v State (Tex.), 69 S. W. 142; People v. Bradford, 
 
 1 Oal. App. 41, 81 Pac. 712; MoAmore v. Wiley, 49 111. App. 615; Shannon v. 
 Swanson, 208 111. 52, 69 N. E. 869; State v. King, 117 la. 484, 91 N. "W. 
 768; Vincent v. State, 3 Heisk. (Tenn.) 120; Crowner v. Crowner, 44 Mich. 
 180, 38 Am. Rep. 245; Hughes v. Detroit Ry. Co., 65 Mich. 10; State v. 
 Whlttier, 21 Me. 341, 38 Am. Dec. 272; State v. Doyle, 107 Mo. 36; Flana- 
 gin V. State, 25 Ark. 92; State v. Severson, 78 Iowa, 653, 43 N. "W. 533; 
 McKelton v. State, 88 Ala. 181; White v. State (Ala.), 34 So. 178, child 
 of twelve held competent; Donnelley v. Terr., 5 Ariz. 291, 52 Pac. 368, child 
 of six years, eleven months held incompetent; Mills v. State, 104 Ga. 502, 
 30 S. E. 778, child of twelve held competent; Com. v. Wilson, 186 Pa. 1, 40 
 Atl. 283, child of thirteen held competent; Freasier v. State (Tex.), 84 
 S. W. 360, child of seven held competent; Clark v. Pinnegan, 127 la. 644, 
 103 N. W. 970, child of seven held competent; Bear Creek Mill Co. v. Par- 
 ker (Ala.), 32 So. 700, child of ten held competent. Under the Missouri 
 statutes, a child under ten years of age is presumed to be Incompetent, 
 Ridenhour v. Kansas City Ry. Co., 102 Mo. 270. See notes, 16 Am. St. 
 Rep. 31; 19 L. R. A. 605-610. 
 
 «oR. V. Holmes, 2 Fost & F. 788; Peatherstone v. People, 194 111. 325, 
 62 N. E. 684; Com. v. Robinson, 165 Mass. 426, 43 N. B. 121; State v. 
 Tolla, 72 N. J. L. 515, 62 Atl. 675; People v. Swist, 136 Cal. 520, 69 Pac. 
 223. Where the child was but four years old, the testimony was rejected, 
 R. V. Pike, 3 Car. & P. 598; testimony has been received where children 
 were seven years of a^e, Washburn v. People, 10 Mich. 372; State v. Morea, 
 
 2 Ala. 275; the testimony of a five year old child may be received as to 
 an indecent assault upon herself. State v. Juneau, 88 Wis. 180, 59 N. W. 
 S80, 43 Am. St Rep. 877, 24 L. R. A. 857; the testimony of a six year old 
 child was held incompetent in Johnson v. State, 76 Ga. 76; while that of 
 a five year old child has been received, Wheeler v. United States, 159 U. 
 S. 523. 
 
 61 Washburn v. People, 10 Mich. 372; McGuire v. People, 44 Mich. 286, 
 6 N. W. 669, 38 Am. Rep. 265; Draper v. Draper, 68 111. 17; Brown v. State, 
 2 Tex. App. 122; State v. Richie, 28 La. An. 327, 26 Am. Rep. 100; Givins 
 V. Com., 29 Gratt. (Va.) ,835; McGuff v. State, 88 Ala. 150; Blackwell v. 
 State, 11 Ind. 196; Com. v. Carey, 2 Brewst. (Pa.) 404; Com. v. Furman, 
 211 Pa. 549, 60 Atl. 1089; Castleberry v. State (Ala.), 33 So. 431; Com! 
 V. Hutchinson, 10 Mass. 225; State v. Levy, 23 Minn. 104; R. v. Brasier, 1 
 Lee, 199, 1 East P. C. 443; Jackson v. Gridley, 18 Johns. 98; Moore v. 
 State. 79 Ga. 498. 
 
900 THE LAW OF KVIDENCE. § 721 
 
 § 721 (739). Mode of determining capacity of children— The 
 tests to be applied. — It is the duty of the eonrt to examine the 
 child, if the question of competency arises, and to determine, in 
 the exercise of a sound discretion, whether the witness has the 
 requisite understanding."^ But the court may also allow the at- 
 torney to make inquiry."' The examination should show that the 
 child has some understanding of the punishment which may result 
 from false swearing,"* but the courts have not insisted on a very 
 definite or exact knowledge of this subject."' Indeed, if such 
 accuracy were insisted upon, it might often exclude the testimony 
 of adults. It has been held sufficient where the ehild stated that 
 he knew that it was wrong to tell a lie, and that he would be pun- 
 ished if he did so,"" or where the child used language equivalent 
 to saying that he would be sent to hell for false swearing."^ In 
 some English cases, the judges have, in the exercise of their dis- 
 cretion, postponed the trial to give an opportunity to instruct a 
 ehild, the principal witness, as to the nature of an oath."* But in 
 
 62 People V. McNair, 21 Wend. 608; Carter v. State, 63 Ala. 52, 35 Am. 
 Rep. 4; State v. Doyle, 107 Mo. 36; State v. Juneau, 88 Wis. 180, 59 N W 
 580, 43 Am. St. Rep. 877, 24 L. R. A. 857; Davis v. State, 31 Neb. 247; 
 McGuire v. People, 44 Mich. 286, 6 N. W. 669, 38 Am. Rep. 265; State v. 
 Michael, 37 W. Va. 568, 16 S. E. 803, 19 L. R. A. 605; Freasier v. State 
 (Tex.), 84 S. W. 360. But answers must not be parrot-like repetitions of 
 what he has been told to say. North Const. Co. v. Bostick (Tex.), 83 S. W. 
 12. It is error for the court to refuse to examine such witness or to allow 
 the attorney to do so. Young v. State (Ga.), 50 S. E. 996. See also cases 
 cited under last section. 
 
 63 Carter v. State, 63 Ala. 52, 35 Am. Rep. 4 and note. 
 
 64 "Williams v. State, 12 Tex. App. 127; Carter v. State, 63 Ala. 52, 35 
 Am. Rep. 4 and note; White v. State (Ala.), 34 So. 177; Lee v. Railway 
 Co., 67 Kan. 402, 73 Pac. 110; R. v. Pike, 3 Car. & P. 598; Davis v. SUte, 
 31 Neb. 240; Com. v. Lynes, 142 Mass. 577, 56 Am. Rep. 709; State v. 
 Michael, 37 W. Va. 565, 16 S. E. 803; McGuire v. People, 44 Mich. 286, 6 N. 
 W. 669, 38 Am. Rep. 265. 
 
 66 State V. Levy, 23 Minn. 104; Longston v. State, 3 Heisk. (Tenn.) 414; 
 Blackwell v. State, 11 Ind. 196; Davidson v. State, 39 Tex. 129; North 
 Texas Const. Co. v. Bostick (Tex.), 80 S. W. 109. 
 
 66 state V. Levy, 23 Minn. 104; McAmore v. Wiley, 49 111. App. 615; 
 Parker v. State, 33 Tex. Cr. Rep. 111. 
 
 o^Longton v. State, 3 Heisk. (Tenn.) 414; Com. v. Carey, 2 Brewst. (Pa.) 
 404; Draper v. Draper, 68 111. 17; Freasier v. State (Tex.), 84 S. W. 360. 
 Further cases illustrating the subject, Grimes v. State, 105 Ala. 86, 17 
 So. 184; WUliams v. State, 109 Ala. 64, 19 So. 530. 
 
 68 R. V. White, 1 Leach Cr. 0. 430 note a; R. v. Wade, 1 Moody Cr. C. 86. 
 
§ 722 OOMPETENOT OP ■WITNESSES. 901 
 
 other cases, it has been held that the child should tmderstand the 
 binding obligation of an oath from the general course of reli- 
 gious education, and not merely from instruction given for the 
 purpose of the trial.°° 
 
 § 722 (740). Degree of credit to be given such testimony.— Al- 
 though, in order to prevent a failure of justice, it is often neces- 
 sary to receive the evidence of children of tender age, every preuj- 
 titioner of experience is sensible of the embarrassments and danger 
 which attend the admission of such evidence. It is true, it may 
 be urged, that the natural language of the child is that of inno- 
 cence and truth, and that its testimony is apt to be free from the 
 prejudice or sinister motives which too often affect the testimony 
 of adults. On the other hand, it may be urged with equal force 
 that this class of testimony is open to several serious objections. 
 There is the uncertainty whether the witness has a proper con- 
 ception of the obligation of an oath. Then there is the still 
 greater danger that such testimony may have been prompted and 
 inspired by unscrupulous and interested persons. Says Mr. 
 Stephen: "A child will have been taught to say that, if it tells a 
 lie, it wiU go to the bad place when it dies (which is usually taken 
 to show that it knows the meaning of an oath) long before it has 
 any real notion of the practical importance of its evidence in a 
 temporal point of view ; and also long before it has learned to dis- 
 tinguish between its memory and its imagination, or to under- 
 stand, in the least degree, what is meant by accuracy of expres- 
 sion. It is hardly possible to cross-examine a child, for the test 
 is too rough for an immature mind. However gently the ques- 
 tions may be put, the witness grows confused and frightened, 
 partly by the tax on its memory, partly by the strangeness of the 
 scene; and the result is that its evidence goes to the jury prac- 
 tically unchecked, and has usually greater weight than it deserves, 
 for the sympathies of the jury are always with it. This is a con- 
 See aJso, C!om. v. Lynea, 142 Mass. 577, 8 N. E. 408, where the child was 
 instructed during a recess of the court; State v. Todd, 110 la. 631, 82 N. 
 W. 322. 
 
 8»R. T. Williams, 7 Oar. & P. 320; R. v. Pike, 3 Car. & P. 598; R. v. 
 NicJxolas, 2 Car. & K, 246, but it was added in the last case that, where 
 the intellect was suflBciently matured and the education, had been neglected, 
 a postponement might be very proper. See also, State v. Michael, 37 W. 
 Va. 568, 16 S. K. 803, 19 L. R. A. 605 and note; North Texas Const. Co. v. 
 Bostick (Tex.), 80 S. W. 109. 
 
902 THE LAW OP EVIDENCK. § 723 
 
 siderable evil, for in infancy the strength of the imagination is 
 out of all proportion to the power of the other faculties ; and chil- 
 dren constantly say what is not true, not from deceitfulness, but 
 simply because they have come to think so, by talking or dream- 
 ing of what has passed. The evil, however, is one which the law 
 cannot remedy. It would be a far greater evil to make children 
 incompetent witnesses up to a certain age. The only remedy is 
 that judges should insist to juries more strongly than they gen- 
 erally do on the unsatisfactory nature of the evidence of children, 
 and on the danger of being led by sympathy to trust in it. ' ' '° 
 
 § 723 (741). Want of capacity — Insanity. — At common law, 
 lunatics were formerly classed with idiots, and excluded from the 
 witness box entirely. But this sweeping rule has been greatly 
 modified, and now, both in England and in this country, lunatics 
 are allowed to testify, if they appear to the court to have sufficient 
 understanding to apprehend the nature and obligation of an oath, 
 and to observe and to remember correctly, and to be capable of 
 giving a correct account of the matter that they have seen or 
 heard, and in reference to which they have been called to testify." 
 But those who, by reason of permanent insanity are unable to 
 comprehend the obligation of an oath, are incompetent to testify.'^ 
 One who has been insane is not, however, excluded on this ground, 
 if his testimony is offered during a lucid interval.''^ But the party 
 seeking to introduce such testimony must show that the witness is 
 competent at that time, as insanity is presumed to continue as a 
 mental state, when it has once existed, until the contrary is shown.'* 
 By the weight of authority, such a witness may testify during a 
 lucid interval, even as to transactions which happened during his 
 
 70 General View of the Criminal Law of England by J. F. Stephen. 
 
 71 Mayor v. Caldwell, 81 Ga. 76; Kendall v. May, 10 Allen, 59; Coleman v. 
 Com., 25 Gratt. (Va.) 865, 18 Am. Rep. 711; "Worthington v. Mencer, 9S 
 Ala. 310, 11 So. 72; Clements v. McGinn (Cal.), 33 Pac. 920; Guthrie v. 
 Shaffer, 7 Okl. 459, 54 Pac. 698; State v. Weldon, 39 S. C. 318, 17 S. E. 689. 
 
 72 Livingston v. Kiersted, 10 Johns. 362; Evans v. Hettich, 7 Wheat. 453; 
 Lopez v. State, 30 Tex. App. 487, 28 Am. St. Rep. 935 and extended note; 
 State v. Meyers, 46 Neb. 152, 37 L. R. A. 423 and note. 
 
 73 Evans v. Hettich, 7 Wheat. 453; Campbell v. State, 23 Ala, 44; 
 Holcomb V. Holcomb, 28 Conn. 177; Cannady v. Lynch, 27 Minn. 435, 8 N. 
 W. 164; Kendall v. May, 10 Allen, 59. 
 
 74 Armstrong v. Tinunons, 3 Har. (Del.) 342; Spittle v. Walton, L. R. 
 11 Eq. Caa. 420; Hoyt v. Adee, 3 Lans. (N. Y.) 173. But see, State v. 
 Kelley, 67 N. H. 549, 554. 
 
§ 724 COMPETENCY OP WITNESSES. 903 
 
 insanity. Under such circumstances, the fact of insanity may, of 
 course, be shown, but it affects the credibility and not the compe- 
 tency of the witness.^^ Although it has been maintained by high 
 authority that the testimony of a monomaniac should not be ad- 
 mitted,'" yet the weight of authority seems to sustain the view 
 that monomania upon a subject, not in issue, does not necessarily 
 render the witness incompetent if, in the opinion of the court, he 
 understands the nature and obligations of an oath, and can give a 
 correct account of what he has seen or heard. In such cases, the 
 question of competency is for the court, and that of credibility 
 for the jury.'' DifSculty may arise in determining what degree 
 of mental unsoundness is necessary to render the witness incompe- 
 tent. On this subject a learned writer says: "Calm reflection 
 win convince that, if mental alienation is to be retained in our law 
 as a ground of incompetency, it should be restricted to cases where 
 it is found impossible to communicate with the witness so as to 
 make him understand that he is in a court of justice, and expected 
 to speak the truth. Any eccentricities or aberrations which fail 
 short of this are surely only matter of comment to the jury, as to 
 the reliance to be placed on his testimony." '^ 
 
 § 724 (742). Same — ^Drunkenness — Defective memory, etc. — It 
 is no objection to the competency of a witness that he is a person 
 of intemperate habits,'* or even that, on account of habitual drunk- 
 enness, he is under guardianship.'" It is for the court to deter- 
 mine, from the present conduct and appearance of the witness, 
 whether he is in such a state as to comprehend the obligations of 
 the oath, and to testify intelligibly, or whether he should be ex- 
 cluded.'^ It is not necessary to discuss the proposition that a 
 
 TOHolcomb V. Holcomb, 28 Conn. 177; Sarback v. Jones, 20 Kan. 497; 
 Endel v. Wall, 16 Fla. 786. 
 
 76 Waring v. Waring, 12 Jur. 947; Roscoe, Cr. Ev. (8th Ed.) 118. 
 
 "R. V. Hill, 15 Jur. 470, 5 Eng. L. & Eq. 547, 5 Cox Cr. C. 259; District 
 of Columbia v. Armes, 107 U. S. 519; Holcomb v. Holcomb, 28 Conn. 177; 
 State V. Simes, 12 Ida. 310, 86 Pac. 914; Coleman v. Com., 25 Gratt (Va.) 
 865, 18 Am. Rep. 711; Ray, Med. Jur. (5th Ed.) § 304. 
 
 78 Best, Ev. (10th Ed.), § 150; District of Columbia v. Armes, 107 U. S. 
 579; Coleman v. Com., 25 Gratt. (Va.) 865; Clements v. McGinn (Cal.), 
 33 Pac. 920. 
 
 70 Thayer v. Boyle, 30 Me. 475. 
 
 soGebhard v. Shindle, 15 Serg. & R. (Pa.) 235, 238. 
 
 81 Hartford v. Palmer, 16 Johns. 143. See also, Gould v. Crawford, 2 Pjl 
 St, 89; Cannady v. Lynch, 27 Minn. 435, 8 N. W. 164. 
 
904 THE LAW OF EVIDENCE. § 725 
 
 witness is not to be excluded as incompetent by reason of the fact 
 that his memory is somewhat defective, or becaiase his means of 
 knowledge may not be equal to that of other persons who might 
 have been called as witnesses.*^ Obviously these are objections 
 which affect the credibility and not the competency of the wit- 
 ness. 
 
 63 
 
 § 725 (743). Interest in the result. — ^Whjle the learned jurists 
 of the common law never wearied in their encomiums upon the 
 right of trial by jury, there is, after all, perceptible in the rules 
 of evidence which they established a profound distrust of the 
 capacity of jurors to perform their function. Undoubtely the 
 policy of excluding arbitrarily large classes of witnesses, as wholly 
 incompetent to testify, rested upon the belief that jurors could not 
 properly discriminate between the weight of testimony which came 
 from an infamous or an interested witness, and that against which 
 no such objection existed. In the adoption of statutes changing 
 the common law rules of evidence, both in England and the United 
 States, there has been a uniform tendency to reject the arbitrary 
 rules by which certain classes of witnesses were declared wholly 
 incompetent. The law now fully recognizes the inherent infirmity 
 of the testimony of parties and of those directly interested in the 
 result. But the modern policy is to admit the testimony of these 
 and of other classes of witnesses, forsmerly excluded, leaving a 
 much wider discretion in the court or jury to discriminate between 
 evidence which is satisfactory and that which is unworthy of 
 credit.** In the old works on evidence, there were few subjects 
 more exhaustively discussed than that of the competency of wit- 
 nesses; and the rule which excluded witnesses directly interested 
 in the result became, together with the collateral questions arising 
 out of it, one of the most complicated of the common law. The 
 learned and ingenious discussions of this subject which we find 
 constantly recurring in the old reports have now only a historical 
 value; and we shall only summarize in the briefest manner these 
 rules which have now become obsolete. 
 
 82 Walker v. Blassingame, 17 Ala. 810; Fulton v. Macracken, 18 Md. 528; 
 Lewis V. Eagle Ins. Co., 10 Gray, 508. 
 
 88 See §§ 901 et seq. infra. 
 
 Bi New Orleans, J. & G. N. Ry. Co. v. Allbritton, 38 Miss. 242, 75 Am. Dec. 
 98; Dodd v. Moore, 91 Ind. 522; Prowattaln v. Tindall, 80 Pa. St. 295; Riden 
 V. People, 110 111. 11; Marquette, H. & O. Ry. Co. v. Kirkwood, 45 Mich. 51. 
 See note, 86 Am. Dec. 329. 
 
§ 726 COMPETENCY OF WITNESSES. 905 
 
 § 726 (744). Nature of the interest necessary to disqualify- 
 How removed. — To come within the rule, it was necessary that 
 the disqualifying interest should be "some legal, certain and im- 
 mediate interest, however minute, either in the event of the cause 
 itself, or in the record as an instrument of evidence in support 
 of his own claims iu a subsequent action."" Unless there was 
 such an interest, a mere interest in the question in litigation or 
 a bias arising from such interest was not a disqualification.*" The 
 interest had to be an actual legal existing interest, and not one 
 merely expected or imaginary.'^ But if the interest was of this 
 character, it was immaterial how slight such interest actually was. 
 The test was not the magnitude, but the nature of the interest.** 
 Witnesses who were incompetent by reason of interest in the result 
 might, by a release of such interest, be placed on the same footing 
 as other witnesses.*" If the interest was vested in the witness 
 himself, he might divest it by a release. If it consisted of a lia- 
 bility over, his competency might be restored by a release from the 
 person to whom he was liable."" There were other well recognized 
 modes of removing the disqualification of interest, as by indemni- 
 
 85 1 Greenl. EJv. § 386; Pogue v. Joyner, 6 Ark. 241, 42 Am. Dec. 603; 
 Grommes v. Trust Co., 147 111. 634, 37 Am. St. Rep. 248; Highberger v. 
 Stiffler, 21 Md. 338, 83 Am. Dec. 593; Poe v. Dorrah, 20 Ala. 288, 56 Am. 
 Dec. 196; MacKlnley v. McGregor, 3 "Whart. (Pa.) 369, 31 Am. Dec. 522. 
 But If an Interested party is offered as a witness to sustain tbe party 
 whose interest is adverse to his own, he is competent, Sparhawk v. Spar- 
 hawk, 10 Allen; 155. See note, 44 Am. Dec. 210. 
 
 suBent v. Baker, 3 T. R. 27; Masters v. Varner's Ex., 5 Gratt. (Va.) 168, 
 50 Am. Dec. 207; Riddle v. Dixon, 2 Pa. St. 372, 44 Am. Dec. 207; Parker v. 
 Griswold, 17 Conn. 288, 42 Am. Dec. 739; Elliott v. Porter, 5 Dana (Ky.) 
 299, 30 Am. Dec. 689; Rowley v. Bigelow, 12 Pick. 307, 23 Am. Dec. 607; 
 People V. Cunningham, 1 Den. 524, 43 Am. Dec. 709. Thus, where the ac- 
 tion was against an underwriter on a policy of insurance, another under- 
 writer on the same policy was a competent witiiess for the defendant. 
 Bent V. Baker, 3 T. R. 27. For other illustrations, see Greenl. Ey. § 389. 
 
 87 Cassiday v. McKenzie, 4 VPatts & S. (Pa.) 282, 39 Am. Dec. 76. 
 
 88 Butler V. Warren, 11 Johns. 57; Burton v. Hlnde, 5 T. R. 173. 
 88 Sylvester v. Downer, 20 Vt. 355, 49 Am. Dec. 786. 
 
 »o Citizens' Bank v. Steamboat Co., 2 Story (U. S.) 16; Carlisle v. Eady, 
 1 Car. & P. 234; Goodhay v. Hendey, 1 Moody & M. 31«; Southard v. Wilfeon, 
 21 Me. 494; Hall v. Steamboat Co., 13 Conn. 319; Dunham v. Branch, 5 
 Cush. 558; Governor v. Daily, 14 Ala. 469'; Dennett v. Lamson, 30 Me. 223. 
 But some of these cases lay down a strict rule as to the manner of proving 
 a release. 
 
906 THE LAW OP EVIDENCE. § 727 
 
 fying the witness against liability, "^ payment of a contingent lia- 
 bility,'^ judgment for or against the witness,'^ disclaimer of title,** 
 and other modes, none of which it is necessary to discuss in view 
 of the enabling statutes which now generally exist. 
 
 § 727 (745). Parties formerly incompetent witnesses. — It was 
 a rule of the common law of wide application that parties to the 
 suit were incompetent witnesses. Nemo in propria causa testis 
 esse deMt."'^ This rule was founded on the theory of the com- 
 mon law that persons interested in the result ought not to be sub- 
 ject to the temptation to commit perjury, and that their state- 
 ments were entitled to but little credit. It was argued that it could 
 "be no injury to truth to remove those from the jury whose testi- 
 mony may hurt themselves, and can never induce any reasonable 
 belief. ' ' *° Since the disqualification depended mainly on the 
 ground of interest, when this objection was removed, parties to the 
 record might testify. Thus in actions ex delicto, where the action 
 had terminated as to one defendant, he might be a witness for or 
 against other defendants ; *' and in actions on contract, where, by 
 reason of a separate verdict or dismissal, the interest of a party 
 was wholly terminated, his competency as a witness was restored."' 
 So where one was a mere nominal party having no pecuniary in- 
 terest in the result and not being liable for costs, he was not dis- 
 qualified.'" But if a party was liable for costs in case the litiga- 
 tion should result adversely, as in the case of a guardian ad litem 
 
 •iLake v. Aubom, 17 Wend. 18; Brandlgee v. Hale, 13 Johns. 125; Hall 
 V. Baylies, 15 Pick. 51. 
 
 92 Dearborn v. Dearborn, 10 N. H. 73; Williams v. Mitchell, 30 Ala. 299; 
 Mokelumne v. Woodbury, 14 Cal. 265. 
 
 83 Barnes v. Barker, 6 111. 401; Talmage v. Burlingame, 9 Pa. St. 21; 
 Manchester Bank v. Moore, 19 N. H. 564. 
 
 »4Jenn6ss v. Berry, 17 N. H. 549; Smith v. West, 103 111. 332. 
 
 85 3 Bl. Comm. 371. 
 
 US Glib. Ev. 120; Mobile Bank v. McDonnell, 87 Ala. 736. 
 
 97 Barnes v. Barber, 6 lU. 401; Prettyman v Dean, 2 Har. (Del.) 
 494; Campbell v. Hood, 6 Mo. 211; Brown v. Burrus, 8 Mo. 26; Over v. 
 Blackstone, 8 Watts & S. (Pa.) 71. The rule -is otherwise in assumpsit, 
 Berry v. Stevens, 71 Me. 503. 
 
 98 Upton V. Adams, 27 Ind. 432; Blake v. Ladd, 10 N. H. 190, by statute; 
 Essex Bank v. Rix, 10 N. H. 201, by statute. 
 
 99Ryerss V. Trustees, 33 Pa. St. 114; Duffee v. Pennington, 1 Ala. 506; 
 Coopwood V. Foster, 20 Miss. 718; Sawyer v. Mitchell, 27 Mo. 510. 
 
§ 728 COMPETENCY OP WITNESSES. 907 
 
 or executor, this was sufficient to render him incompetent, al- 
 though he might have no other interest in the controversy.'^ 
 
 § 728 (746). Exceptions to the ancient rule^ — Practice in 
 equity. — ^Although the common law adhered tenaciously to the 
 rule that parties could not be witnesses, there were a few excep- 
 tions which came to be recognized- as necessary to prevent a failure 
 of justice. For example, when it appeared from extraneous evi- 
 dence that the defendant had embezzled or stolen, or otherwise 
 fraudulently interfered with the goods of the plaintiff, or been 
 guilty of a breach of trust in respect to such goods, the plaintiff 
 was allowed to prove his loss by his own testimony, by showing 
 the quantity and nature of the goods taken, when no other evi- 
 dence of the fact could be obtained.^ This exception was often 
 applied to allow the plaintiff to prove the contents of trunks or 
 packages of which he was deprived by the fraudulent misconduct 
 or crime of the defendant ; ' and in some cases, the same rule was 
 applied where the loss was occasioned by the mere negligence of 
 the defendant.* On a similar ground of necessity, parties were 
 allowed to prove by their own oath such facts of a preliminary 
 character as the loss of documents," notice to produce papers " and 
 the death of subscribing witnesses,'^ where no other person could 
 testify to such facts. Such testimony was sometimes allowed in 
 other cases, where no other testimony could be obtained, and 
 where public necessity and expediency demanded the party's tes- 
 timony as essential to the due administration of justice.' Al- 
 though it was the general rule in chcmcery, as at law, that parties 
 were not competent witnesses, yet it was one of the advantages 
 
 1 Hopkins v. Neal, 2 Strange, 1026; James v. Hatfield, 1 Strange, 548; 
 Rex V. St. Mary Magdalen, 3 East, 7; Wliitmore v. Wilks, 3 Car. & P. 364. 
 
 2Childrens v. Saxby, 1 Vem. 207; Herman v. Drlnkwater, 1 Me. 27. 
 United States v. Clark, 96 TJ. S. 41. 
 
 8 See cases just cited above. 
 
 4 Clarke v. Spence, 10 Watts (Pa.) 335. 
 
 BTayloe v. Rlggs, 1 Peters, 591; Patterson v. Winn, 5 Peters, 233; Riggs 
 v. Tayloe, 9 Wheat. 486; DeLane v. Moore, 14 How. 253; Chamberlain v. 
 Gorham, 20 Johns. 144; Page v. Page, 15 Pick. 374; Smiley v. Dewey, 17 
 Ohio, 156. 
 
 "Siltzell V. Michael, 3 Watts & S. (Pa.) 329; Jordan v. Cooper, 3 Serg. 
 & R. (Pa.) 564. 
 
 7 Douglass V. Sanderson, 2 Dall. (Pa.) 116; Jackson v. Davis, 5 Cow. 123, 
 15 Am. Dec. 451; Moore v. Maxwell, 18 Ark. 4C9. 
 
 8 United States v. Murphy,'l6 Peters, 203; Lampley v. Scott, 24 Miss. 528. 
 
908 THE LAW OP EVIDENCB. § 729 
 
 claimed for equity jurisdiction that it allowed much ^eater free- 
 dom in the examination of parties." Thus, "when an issue was 
 directed from a court of chancery to be tried in a court of law, 
 it was frequently made part of the order that the plaintiff or de- 
 fendant should be examined as a witness;" ^° and it is a familiar 
 rule in equity procedure that the answer of the defendant, so far 
 as it is strictly responsive to the bill, is received, not only as an 
 admission of the defendant, but as evidence in his favor.^^ 
 
 § 729 (747). Parties were not compelled to testify for the ad- 
 versary — ^Rule in criminal cases. — ^At common law, although a 
 party might consent to testify for his adversary, he was not com- 
 pelled to do so ; ^^ and, by the weight of authority, it was held that 
 one of the several parties, plaintiff or defendant, could not tes- 
 tify for the adverse party, unless all the persons united in interest 
 with him as plaintiffs or defendants gave their consent.^' In 
 criminal cases, the complaining witness or prosecutor is not a party 
 to the record, and therefore he was not excluded as a witness by 
 the common law rule.^* The rule was the same, although by stat- 
 ute the prosecutor became entitled to a reward on the conviction 
 of the prisoner. Since, even though in such cases the complain- 
 ing witness might be deemed to have an interest in the result, the 
 public interest required that his testimony should be received, and 
 the statute giving the reward ought not be so construed as to close 
 the door to conviction.^" Nor was it considered a valid objection 
 that the prosecutor might be compelled to pay costs, if the courts 
 should find the prosecution malicious ; ^' nor that he had given 
 the prosecution pecuniary aid.*' Under the rules already stated, 
 
 oFoote V. SUsby, 3 Blatch. (XT. S.) 507; "Webb v. Fitch, 1 Boot (Conn.) 
 177; Lin^an v. Henderson, 1 Bland (Md.) 236. 
 
 10 Best, Ev. (10th Ed.) § 172. 
 
 "Clark V. Van Riemsdyck, 9 Cranch, 153; Story, Eq. Juris. (13th ed.) 
 § 1528. 
 
 izWorral v. Jones, 7 Bing, 395; Rex v. Woburn, 10 East, 403; Com. v. 
 Marsh, 10 Pick. 57; Mauran v. Lamb, 7 Oow. 174; Appleton v. Boyd, 7 
 Mass. 131. 
 
 13 Scott V. Lloyd, 12 Peters, 149; Bridges v. Armour, 5 How. 91; Frazier 
 V. Laughlin, 6 111. 347; Evans v. Gibbs, 6 Humph. (Tenn.) 405. 
 
 i*Best, Ev. (10th Ed.) § 169; Greenl. Ev. § 362. 
 
 loGilb. Ev. 123; United States v. Murphy, 16 Peters, 203; Com. v. Moul- 
 ton, 9 Mass. 30. 
 
 10 State V. Blennerhasset, 1 Miss. 7; Gilliam's Case, 4 Leig'h (Va.) 688. 
 
 IT People y. Cunningham, 1 Den. 524, 43 Am. Dec. 709. 
 
§ 730 COMPETENCY OP WITNESSES. 909 
 
 it is obvious that a defendant in a criminal case could not be a 
 witness in his own behalf; ^' nor could he be a witness on behalf 
 of the state against any co-defendant in the same action, or a 
 witness in behalf of such co-defendant, unless the prosecution had 
 terminated against him in such a manner that he no longer could 
 be deemed legally interested in the result, as by a judgment of 
 conviction,^" verdict of acquittal^" or the entry of a nolle prose- 
 
 § 730 (748). Effect of statutes on competency of parties as 
 
 witnesses. — But these common law rules excluding parties as wit- 
 nesses have been abrogated in almost every state in the Union. 
 Statutes have been passed by congress and by the state legislatures 
 which make parties competent witnesses in all civil cases, except 
 those ia which transactions with insane, incompetent or deceased 
 persons are involved.'"' The statutes of a few states do not even 
 
 isWelchell v. State, 23 lad. 89; Harwell v. State, 10 L«a (Tenn.) 544. 
 
 19 Rex V. Fletcher, 1 Strange, 633; R. v. Williams, 8 Car. & P. 284; State 
 V. Jones, 51 Me 125; Com. v. Smith, 12 Met. 238; Com. v. Eastman, 1 Cush. 
 189, 48 Am. Dec. 596; Henderson v. State, 70 Ala. 23; State v. Minor, 117 
 Mo. 302, 22 S. W. 1085. 
 
 20 R. V. Rowland, Ryan & M. 401; Fitzgerald v. State, 14 Mi?). 413. 
 
 21 State V. Clump, 16 Mo. 385; Love v. People, 160 111. 501, 43 N. E. 710; 
 State V. Steifel, 106 Mo. 12'9, 17 S. W. 227. See also. State v. West, 69 Mo. 
 401; Allen v. State, 10 Ohio St 287. 
 
 22 Alabama, Code, 1896, § 1794; Arizona, Rev. St., 1901, parag. 2534 
 § 37; Arkansas, Dig. Stat., 1904, § 3093; California, Code of Civ. Proc, 
 § 1879; Colorado, Mills' Ann. Stat. 1890, § 4822; Delaware, Laws, vol. 16 
 ch. 537; Florida, Gen. Stat., 1906, § 1505; Illinois, Ann. Stat, 1896, p. 1822 
 parag. 1; Indiana, Ann. Stat, 1901, § 504; Iowa, Ann. Code, 1897, § 4603; 
 Kansas, Gen. Stat, 1905, § 5215; Kentucky Code 1888, § 605; Maine, Rev. 
 Stat, 1903, p. 751, § 107; Maryland, Pub. Laws, 1904, p. 1089, § 1; Massa 
 chusetts, Pub. Laws, 1902, p. 1577, § 20; Michigan Comp. Laws, 1897, 
 (10211), § 100; Minnesota, Stat, 1894, § 5658; Mississippi, Code, 1906, 
 § 1915; Missouri, Ann. Stat, 1906, § 4652; Montana, Ann. Codes, Code Civ. 
 Proc, 1895, § 3161; Nevada, Comp. Laws, 1900, § 3472; New Hampshire, 
 Pub. Stat & Session Laws, 1901, p. 716, § 13; New Mexico, Comp. Laws, 
 1897, § 3014; New York, Code Civ. Proc. § 828; North Carolina, Revisal 
 of 1905, § 1630; Ohio, Rev. Stat, 1890, § 5240; Oregon, B. & C.'s Ann. 
 Code, 1902, § 722; Pennsylvania, Laws, 1887, ch. 89 as amended by laws 
 1891, number 218; Rhode Island, Gen. Laws, 1896, p. 840, ch. 244, § 35; 
 South Carolina, Code Civ. Proc.; 1902, §§ 399, 400; Tennessee, Ann. Code, 
 1896, § 5596 (4563) ; Texas, Sayles' Civ. Stat, 1897, art 2300; Utah 
 Rev. Stat. 1898, § 3412; Vermont Stat 1894, § 1236; Virginia, Code, 
 1904, § 3345; Washington, Ballingers' Code & Stat, 1897, § 5991; West 
 Virginia, Code, 1906, § 3945; Wisconsin, Rev. Stat, 1898, § 4068. 
 
910 THE LAW OP EVIDENCE. § 730 
 
 make this last exception, but provide that all parties to civil suits 
 shall be competent as witnesses. Most of the states have also bo 
 extended the rule by statute that the accused in criminal prosecu- 
 tions is made a competent witness in his own behalf.^^ But in no 
 case can the accused be compelled to be a witness against himself 
 in a criminal prosecution, as he is guaranteed this exemption by 
 the federal constitution.^* These statutes carefully guard the 
 right of the accused to refuse to testify, if he chooses so to do, and 
 many of them expressly provide that, in no case whatever, shall an 
 unfavorable presumption against him be drawn from his failure 
 to testify.^^ These statutes do not affect the general rules of evi- 
 dence governing the introduction of testimony, and simply place 
 the party testifying in the same situation in which other witnesses 
 are placed. In both civil and criminal cases, they are subject to 
 the same liabilities, limitations and duties,^' have the same protec- 
 tion and are open to the same contradiction, impeachment " and 
 
 2» Alabama, Crim. Code, 1896, § 5297; Arkansas, Dig. Stat, 1904, § 3088; 
 California, Penal Code, 1906, § 1323; Connecticut, Gen. Stat, 1902, § 1509; 
 Illinois, Starr. & Curtis Ann. Stat, p. 1397, parag. 609; Indiana, Ann. Stat, 
 1901, § 1§^67, ch. 4; Iowa, Ann. Code, 1897, § 5484; Kansas, Gen. Stat., 1905, 
 §§ 6103, 6104; Maine, Rev. Stat, 1903, p. 971, ch. 135, § 19; Maryland, Pub. 
 Gen. Laws, 1904, art. 35, § 4; Massachusetts, Rev. Laws, 1902, p. 1577, ch. 
 175, § 20; Michigan, Comp. Laws, 1897, (10211), § 100; Minnesota, Stat., 
 1894, § 5658; Mississippi, Code, 1906, § 1918; Missouri, Ann. Stat, 1903, 
 § 1313 (328); Nebraska, Ann, Stat, 1906, § 2637; New Hampshire, Pub. 
 Stat. & Sess. Laws, 1901, p. 717, § 24; North Carolina, Revisal of 1905, 
 § 1634; Ohio, Rev. Sitat, 1890, § 7286; Oregon, B. & C.'s Code & Stat., 1902, 
 § 1400; Pennsylvania, Laws,- 1887, no. 89, § 1; Rhode Island, Gen. Laws, 
 1896, p. 840, § 41; South Carolina, Crim. Code, 1902, §§ 64, 65; Texas,Willi 
 son's Crim. Code, § 770; Utah, Crim. Code, 1898, § 4513; Vermont, Stat, 
 1894, § 1915; Laws 1889, § 1655; Virginia Code, 1887, § 3897; West Vir- 
 ginia, Ann. Code, 1904, § 3897; Wisconsin, Rev. Stat., 1898, § 4071. 
 
 2*U. S. Const. 5th Amend. FVjr full discussion of this provision as ap- 
 plied to accused persons summoned before the inter-state commerce com- 
 mission, see Counselman v. Hitchcock, 142 U. S. 547; Brown v. Walker, 
 161 U. S. 591. For a discussion of the rule governing In proceedings 
 against those held for contempt of court, see In re Nickell, 47 an. 734. See 
 § 891 infra. 
 
 25 See statutes cited supra. 
 
 28 Chambers v. People, 105 111. 409; McDaniels v. Robinson, 26 Vt 316; 
 People V. Russell, 46 Cal. 121; Cowles v. Bacon, 21 Cbnn. 451. See also, 
 the cases cited below. These statutes do not remove the disqualification 
 of husband and wife, Mltchinson v. Cross, 58 111. 366. A party may testify 
 as an expert, Dickinson v. Inhabitants, 13 Gray, 546. See §§ 836, 837, infra. 
 
 27 Chambers v. People, 105 111. 409 ; Reagan v. United States, 157 U. S. 
 305; Brandon v. People, 42 N. Y. 365. See § 851 infra. 
 
§ 730 COMPETKNCY OF WITNESSES. 911 
 
 cross-examination "" as are any other witnesses. By statute in 
 some of the states, however, the cross-examination in criminal cases 
 is confined to the matters referred to in the direct examination; 
 and it is held reversible error, under such a statute, to aUow the 
 defendant to be cross-examined as to any question not brought out 
 in the direct examination.^" When the accused in a criminal pros- 
 ecution voluntarily takes the stand as a witness, he waives his 
 right to object to any question pertinent to the issue on the ground 
 that the answer may tend to criminate him. In the absence of 
 statutes, limiting the cross-examination, he is subject to examina- 
 tion on all facts material to the issue, and he may be questioned 
 as any general witness in the cause.'" He is not required to tes- 
 tify, and has the right to protect himself by not going upon the 
 stand at all.'^ But if he becomes a witness, all facts relevant to 
 
 ssFralich v. People, 65 Barb. (N. Y.) 48; Brubaker's Adm. v. Taylor, 
 76 Pa. St 83; State v. Home, 9 Kan. 119; Spies v. People, 122 111. 235; 
 Com. V. Mullen, 97 Mass. 545; Sullivan' v. People, 114 111. 24; Rains v. State, 
 88 Ala. 91; Andrews v. Fry, 104 Mass. 234; State v Ober, 52 N. H. 459; Con- 
 nors V. People, 50 N. Y. 240; State v. Witham, 72 Me. 531; People v. Tice, 
 131 N. Y. 651; Com. v. Damon, 136 Mass. 441; Com. v. Morgan, 107 Mass. 
 199; Com. v. Nichols, 114 Mass. 285; State v. Wentworth, 65 Me. 234; Roddy 
 V. Finnegan, 43 Md. 490; State v. Snyder (Kan.), 57 Pae. 135; State v. 
 Eozum, 8 N. D. 548, 80 N. "W. 477. See §§ 836, 837 infra. 
 
 2» State V. Sunders, 14 Ore. 300; State v. Underwood, 44 La. Ann. 852; 
 State V. Turner, 110 Mo. 196; State v. Chamberlain 89 Mo. 129; People v. 
 O'Brien, 66 Cal. 602; People v. Tin Dong, 106 Cal. ,63; Gale v. People, 26 
 Mich. 157; State v. Lurch, 12 Ore. 99; People v. Rodriguez, 134 Cal. 140, 66 
 Pac. 174; State v. Miller, 43 Ore. 325, 74 Pac. 658. But cross-examination 
 may draw out anything which would tend to contradict or weaken the 
 direct. People v. Buckley, 143 Cal. 375, 77 Pac. 169; People v. Teshara, 
 141 Cal. 633, 75 Pac. 338. The scope of the cross-examination is governed 
 by state, and not by federal statutes. Spies v. Illinois, 123 U. S. 132, 180. 
 See § 837 infra. 
 
 80 Com. T. Mullen, 97 Mass. 545; Com. v. Morgan, 107 Mass. 199; Clark 
 V. State, 87 Ala. 71; McGarry v. People, 2 Lans. (N. Y.) 227; Fitzpatrick v. 
 U. S., 178 U. S. 304; Sawyei- v. U. S., 202 U. S. 150; Lawrence v. State, 103 
 Md. 17, 63 Atl. 96; Nickolozack v. State (Neb.) 105 N. W. 895; Corothers 
 V. State, (Ark.) 88 S. W. 585; Ferguson v. State, 72 Neb. 350, 100 N. W. 
 800; People v. Conroy, 153 N. Y. 174, 47 N. E. 258, inquiry as to specific 
 Immoral acts allowed, Barkman v. State (Tex.), 52 S. W. 69; People 
 V. Tioe, 131 N. Y. 651, 30 N. B. 494; The Anarchists' Case, 122 111. 1, 12 N. 
 H. 865, 3 Am. St. Rep. 320. See cases cited in note 28, supra. See § 837 
 infra. 
 
 31 Com. V. Lannan, 13 Allen 563. It has been held that the court cannot 
 require an accused, who is also a witness, to leave the room while other 
 witnesses are testifying. Being a witness does not affect the right of the 
 
912 THE liAW OP EVIDENCE, § 731 
 
 the case may then be drawn out, even if they tend to criminate the 
 party or make him incompetent as a witness.^^ The refusal of a 
 party testifying to answer a question material to the case, on the 
 ground that it might crimiaate him, is competent evidence agaiast 
 the party testifying." The opposing party waives all objection 
 to the competency of a party to a civil suit as a witness by calling 
 him, and makes him a competent witness in his own behalf.^* 
 
 § 731 (749). Same, continued. — These statutes are enacted for 
 the purpose of rendering competent, persons who would other- 
 vsdse have been incompetent. They are enabling, not disabling 
 acts ; and the courts hold that all persons who were competent wit- 
 nesses before the passage of any such statute are still competent, 
 unless they are expressly disqualified by the statute itself.*" The 
 jury are the sole judges of the weight of the testimony of a party 
 testifying as a witness in either a civil or a criminal ease. But the 
 judge may properly remind the jury, in his instructions to them, 
 of the fact that the temptation- is strong to color, pervert or with- 
 hold facts. Some authorities hold that it is the duty of the judge 
 to so instruct the juiy.*' The jury, in arriving at their verdict, 
 
 accused to be present during his own trial, Garman v. State, 66 Miss. 196; 
 Bell V. State, 66 Miss. 192. Tie last case holds that the party cannot be 
 compelled to testify before the other witnesses. 
 
 »2 Such, for example, as want of religious belief. State v. Turner, 36 S. 
 C. 534; previous arrest, State v. Murphy, 45 La. An. 958; People v. Foote, 
 93 Mich. 38; indictment or conviction of crime. State v. Minor, 117 Mo. 
 302; State v. McGuire, 15 R. I. 23; Williams v. State, 28 Tex. App. 301; 
 disorderly conduct, People v. McCormick, 135 N. Y. 663; previous contra- 
 dictory statements, Hicks v. State, 99 Ala. 169; Brubaker's Adm. v. Taylor, 
 76 Pa. St. 83; selling liquor without license. Gray v. State, 90 Mi 29, 44 
 Atl. 997. See § 837 infra. 
 
 88 Andrews v. Frye, 104 Mass. 234. 
 
 84 Seip V. Storch, 52 Pa. St. 210, 91 Am. Dec. 148; Turner v. Mcllhaney, 
 8 Cal. 575. 
 
 »» Bates V. Forcht, 89 Mo. 121; Bradshaw v. Combs, 102 111. 428. 
 
 86 People V. Crowley, 102 N. Y. 234; Anderson v. State, 104 Ind. 367; State 
 V. Moelchen, 53 Iowa 310; State v. Sterrett, 71 Iowa 386; Chambers v. Peo- 
 ple, 105 111. 409; State v. Renfrew, 111 Mo. 589; People v. Cronin, 34 Cal. 91; 
 Wilklns V. State, 98 Ala. 1; State v. McGinnis, 76 Mo. 326; State v. Slinger- 
 land, 19 Nev. 135; Spies v. People, 122 111. 1; State v. McGuire, 113 Mo. 670; 
 Faulkner v. Territory (6 Gild. N. M. 464), 30 Pac. 905; Siebert v. People, 
 143 111. 571; Johnson v. United States, 157 TJ. S. 321; Reagan v. United 
 States, 157 U. S. 301, a leading case with an extended review of the au- 
 thorities. But the Instructions must not assume that the other witnesses 
 are "telling the truth," when they are in conflict with the evidence given 
 
§ 731 COMPETENCY OF WITNESSES. 913 
 
 must weigh the evidence given by the party testifying as carefully 
 as they do that of any other witness, for the court and not the 
 jury is to decide whether the evidence is competent," but the jury 
 may reject the testimony of any party as a whole, if they con- 
 sider it unworthy of belief,^' or if they find that he has corruptly 
 testified falsely as to any material fact,^° or they may find a ver- 
 dict against his uncontradicted evidence.*" The fact that a party 
 has failed to rebut evidence that is detrimental to his case may 
 be noticed as bearing upon the question of credibility, if the party 
 is on the stand and does not give facts in rebuttal which lie within 
 his knowledge.*^ But the right of a party to testify is a personal 
 privilege; and the fact that he does not testify at all should not 
 raise a presumption against him, as various motives may influence 
 him to take this action beside a fear that facts within his knowl- 
 edge, if disclosed, would be unfavorable to him.*" If the attor- 
 neys make comment upon the fact that a party has not testified, 
 it is the duty of the court to instruct the jury to disregard this 
 failure of the accused to testify.*^ It is also error for the judge, 
 in his charge to the jury, to allude to the fact that the accused 
 has not testified.** The federal statutes on this subject, as well 
 
 by the party testifying. Hicks v. United States, 150 U. Su 442. There Is 
 no presumption either for or against the veracity of the party testifying. 
 This question belongs exclusively to the jury. Com. v. Wright, 107 Mass. 
 403. 
 
 sTWickllffe V. Lynch, 36 111. 209; Creed v. People, 81 111. 565; Hickorj 
 v. United States, 160 U. S. 408. 
 
 38 Lewis V. State, 88 Ala. 11; Roberts v. Gee, 15 Barb. (N. T.) 449. See 
 §§ 901 et seq. infra. 
 
 S9 Hirschmann v. People, 101 111. 586. See § 903 infra. 
 
 40 Nicholson v. Connor, 8 Daly (N. Y.) 212 
 
 «Strover v. People, 56 N. Y. 315; Cotton v. State, 87 Ala. 103; State T. 
 "Walker, 98 Mo. 95; Lee v. State, 56 Ark. 42. 
 
 42 Lowe V. Massey, 62 111. 47; Moore v. Wright, 90 111. 470; Com. v. Han- 
 ley, 140 Mass. 457; Cotton v. State, 87 Ala. 103; Fulcher v. State, 28 Tex. 
 App. 465; Staples v. State, 89 Tenn. 231; Quinn v. People, 123 111. 333; Watt 
 v. People, 126 111. 9; State v. Tennison, 42 Kan. 330. See also. People v. 
 Jones, 24 Mich. 215; Ruloff v. People, 45 N. Y. 213; People v. Tyler, 36 Cal. 
 522; Com. v. Moran, 130 Mass. 281; Calkins v. State, 18 Ohio St. 366. 
 
 43 People V. Doyle, 58 Hun (N. Y.) 535; Staples v. State, 89 Tenn. 231; 
 People V Rose, 52 Hun. (N. Y.) 33; Nelson v. Harrington, 72 Wis. 591; 
 Austin V. People, 102 111. 261. 
 
 44 Com. V. Soatt, 123 Mass. 239, 25 Am. Rep. 87; Long v. State, 56 Ind. 
 182, 26 Am. Rep. 19; Ruloff v. People, 45 N. Y. 231. But see. State v. Law- 
 rence, 57 Me 574. On this general subject, see note, 27 Am. Rep. 142. 
 
 68 
 
914 THE LAW OF EVIDENCE. § 732 
 
 as tiase of some of the states, not only make parties to civil suits 
 competent witnesses, but also give the opposing party power to 
 compel them to testify.*" 
 
 § 732 (750). Competency of parties — Corporators. — ^At com- 
 mon law, the question frequently arose whether the members of 
 private and municipal corporations were competent witnesses un- 
 der the rules excluding parties and those interested in the result. 
 In the case of mimicipal corporations, although the actions were 
 brought by or against the "inhabitants" of the municipality, the 
 interest was generally deemed too remote to disqualify citizens as 
 witnesses; and the objection reached to the credibility, and not to 
 the competency of their testimony.*" But if the inhabitants of 
 the municipality had a special or personal interest in the event of 
 the suit, as if their right to a way or a common was involved, a 
 different rule obtained, and they were held incompetent.*^ In 
 the case of private corporations for pecuniary gain, which included 
 the most numerous class of corporations, other than mnnicipali- 
 ties, the actual members or shareholders were, as a rule, held in- 
 competent witnesses on the ground of their direct interest in the 
 result.*' Although the rule was so far relaxed that members of 
 such corporations were allowed to testify as to formal or prelimi- 
 nary facts, not going to the merits of the controversy; for exam- 
 ple, they might prove the service of notices in the cause, the iden- 
 tity and the correctness of corporate books and records and other 
 similar facts.*" Members of charitable, educational and religious 
 
 « Texas v. Clilles, 21 "Wall. 488. See §§ 703 et seq. supra. 
 
 *o Smith V. Barber, 1 Root (Conn.) 207; Methodist Church v. Wood, 
 Wright (Ohio) 12; Ezell v. Giles County 3 Head (Tenn.) 583; Kemper v. 
 Victoria, 3 Tex. 135; City Council v. King, 4 McCord (S. C.) 269; Bloodgood 
 V. Overseers, 12 Johns. 285. 
 
 *7 Moore v. Griffin, 22 Me. 350; Gould v. James, 6 Cow. 369; Odiorne v. 
 Wade, 8 Pick. 518. Nor could they make themselves competent by a re- 
 lease, Jacobson v. Fountain, 2 Johns. 170. 
 
 48 Consolidated Ice Co. v. Keifer, 134 111. 481, 495, 25 N. B. 799, 23 Am. 
 St. Rep. 688; Doe v. Tooth, 3 Young & J. 19; Davies v. Morgan, 1 Tyrw. 
 457; Montgomery v, Webb, 27 Ala. 618; Jefferson v. Stewart, 4 Har. (DeL) 
 82; Southern Co. v. Cole, 4 Fla. 359; Pierce v. Kearney, 5 Hill, 82; Hill v. 
 Frazier, 22 Pa. St. 320. Kemper v. Victoria, 3 Tex. 135. A stockholder can- 
 not make himself competent by selling his shares after the commencement 
 of the action, Mokelumne Co. v. Woodbury, 14 Cal. 265. But see. Thrasher 
 V. Pike Ry. Co., 25 111. 393. 
 
 *oYork Ry. Co. v. Bratt, 40 Me. 447; Union Canal Co. v. Loyd, 4 Watts 
 & S. (Pa.) 393; Fell v. McHenry, 42 Pa. St 41. 
 
§ 733 COMPETENCY OP WITNESSES. 915 
 
 corporaUons had not sucli pecuniary interest as to be disqualified 
 as witnesses. Henee, the members and officers of churches, school 
 districts, private educational institutions and the like were com- 
 petent to testify at common law."" It is hardly necessary to add 
 that the statutes which allow parties and persons interested in 
 the result to testify have wholly changed the former rules on this 
 subject."^ 
 
 § 733 (751). Husband and wife incompetent as witnesses. — ^It 
 was a favorite doctrine of the common law that husband and wife 
 were one person in the law. Since parties were incompetent to 
 testify in their own behalf, it followed that, if the legal identity 
 of husband and wife was conceded, they were not competent wit- 
 nesses for or against' each other. Blaclsstone thus stated this 
 ground of exclusion: "But in trials of any sort, they are not al- 
 lowed to be evidence for or against each other, partly because it is 
 impossible their testimony should be indifferent, but principally 
 because of the union of person; and, therefore, if they were ad- 
 mitted to be witnesses for each other, they would contradict one 
 maxim of the law 'nemo in propria coMsa testis esse debet'; and if 
 against each other, they would contradict another maxim 'nemo 
 tenetur seipsum CLCcusare.' " ^' But there- is another reason for 
 the exclusion of testimony of this kind which has outlived the 
 more technical grounds already mentioned. Public policy de- 
 mands that those living in the marriage relation should not be 
 compelled or allowed to betray the mutual trust and confidence 
 which such a relation implies. "This rule was not limited to pro- 
 tecting from disclosure matters communicated in nuptial confi- 
 dence, or facts, the knowledge of which had been acquired in con- 
 sequence of the relation of husband and wife, but was not an abso- 
 lute prohibition of the testimony of the witness to any facts affect- 
 ing the husband or wife, as the case might be, however the knowl- 
 edge of those facts might have been acquired.''"* Subject to the 
 
 ooNason v. Thatcher, 7 Mass. 398; Shortz v. Unangst, 3 "Watts & S. (Pa.) 
 45; Hill V. School District, 17 Me. 316; Allen v. Westport, 15 Pick. 35; Hers- 
 by v. Clarksville Insstitute, 15 Ark. 128; Matter of Kip, 1 Paige (N. Y.) 601; 
 Cooper V. Sisters of Providenoe, 16 Ind. 164. But see, Stone v. Birkshire 
 Society, 14 Vt. 86. 
 
 61 See statutes of the jurisdiction. 
 
 62 1 Bl. Comm. 443. See notes, 24 Am. St. Hep. 663; 27 Am. Dec 377, 
 as to the subject of this and succeeding sections. 
 
 63 Best, Ev. (10th Ed.) § 175._ 
 
916 THE LAW OP EVIDENOB. § 733 
 
 exceptions and qualifications to be hereafter noticed, wlien either 
 spouse was a party to the record, the other could not be a wit- 
 ness."* It illustrates the rigor of the old rule that the husband 
 or wife could not be a witness where the other spouse was not a 
 nominal party to the action, if he or she was the real party in in- 
 terest. '^^ Where the interests of either husband or wife, though 
 not a party, were directly involved in an action and would be con- 
 cluded by a verdict, the other spouse could not testify. "" On prin- 
 ciples of public policy and decency, it was the common law male, 
 and still is the law, that neither husband nor wife is competent 
 to prove non-access during wedlock, whatever the form of legal 
 proceedings.''^ Although, in most jurisdictions, statutes have been 
 
 oiWeikel v. Probasco, 7 Tnd. 690; Taeket v. May, 3 Dana (Ky.) 79; Breed 
 v. Gove, 41 N. H. 452; Seargent v. Seward, 31 Vt. 509; Warner v. Press Pub. 
 Co., 132 N. Y. 181; Bird v. Davis, 14 N. J. Eq. 467; Cull v. Herwig, 18 La. 
 Ann. 315; Stewart v. Stewart, 7 Johns. Ch. (N. Y.) 229; Bihin v. Bihin, 
 17 Abb. Pr. (N. Y.) 19; Bird v. Hueston, 10 Ohio St. 418; Com. v. Cleary, 
 152 Mass. 491; Hopkins v. Grimshaw, 165 U. S. 342; Hyde v. Gannett 175 
 Mass. 177, 55 N. E. 991; Geer y. Goudy, 174 111. 614, 51 N. E. 623. See note, 
 24 Am. St. Rep. 663. A hustand cannot witness a deed of land to the wife, 
 executed during marriage, Johnson v. Slater, 11 Gratt. (Va.) 321; or tes- 
 tify in support of a nuncupative will in her favor, Jones v. Norton, 10 Tex., 
 120; or for the contestant of a will, where the wife could be benefited. 
 Walker v. Walker, 34 Ala. 469; or in behalf of her interest in her separate 
 estate. Miller v. Williamson, 5 Md. 219; Wilson v. Sheppard, 28 Ala. 623; 
 Dwelly V. Dwelly, 46 Me. 377; Williamson v. Morton, 2 Md. Ch. 94; Marsh- 
 man V. Conklin, 17 N. J. Eq. 282; Warner v. Dyett, 2 Edw. Ch. (N. Y.) 497; 
 or in an action brought by an administrator or trustee to increase an estate 
 in which the wife had an interest, Lisman v. Early, 12 Gal. 282; Radford 
 V. Fowlkes, 85 Va. 820; or to prove a marriage contract In her behalf, Mc- 
 DuflBe V. Green way, 24 Tex. 625; or to prove their marriage, where she sued 
 as a feme sole, Bentley v. Cook, 3 Doug. 422; or in an action against her, 
 where coverture was pleaded, Woodgate v. Potts, 2 Car. & K. 457. The wife 
 could not be a witness where her testimony sustained her husband's prop- 
 erty rights to land, Gardner v. Klutts, 8 Jones (N. C.) 375; Scott v. Row- 
 land, 82 Va. 484; or personal property, Hayes v. Parmalee, 79 111. 563; or In 
 actions against him for trespass to the person, Farrell v. Ledwell, 21 Wis. 
 182. A wife cannot testify against her husband, even where it appears 
 that they married for the express purpose of suppressing the testimony. 
 United States v. White, 4 Utah, 499; Moore v. State (Tex.), 75 S. W. 497, 
 67 L. R. A. 499, and note. 
 
 65 Pyle V. Maulding, 7 J. J. Marsh. (Ky.) 202; Cobb v. Edmondson, 30 Ga. 
 30; Pleasonton v. Nutt, 115 Pa. St. 266. 
 
 66 Griffin v. Brown, 2 Pick. 303; Young v. Gllman, 46 N. H. 484; Larrabee 
 V. Wood, 54 Vt. 452; Craig v. Miller, 34 111. App. 385, 133 111. 300. 
 
 ei Chamberlain v. People, 23 N. Y. 85; Rex v. Book, 1 Wils. 340; Reg. v. 
 
§ 734 COMPETENCY OF WITNESSES. 917 
 
 enacted modifying, to some extent, the common law rules on this 
 subject, yet there is such lack of nniformity in those statutes that 
 it is necessary to further illustrate the scope and meaning of the 
 ancient rule. 
 
 § 734 (753). Same — The rule in criminal cases. — The illustra- 
 tions already given have mostly related to civil actions, but the 
 same principles govern in criminal cases. In any criminal prose- 
 cution, neither spouse is a competent witness for or against the 
 other.!'* A well recognized exception to this rule, arising from 
 necessity, exists in prosecutions for personal injury committed hy 
 one spouse upon the other. Thus, in actions for assault or other 
 violence, the injured party may testify for or against the wrong- 
 doer, though a husband or wife ; °° and in cases of such personal 
 injury, the injured person may be compelled to testify."" On the 
 
 Luffe, 8 East, 193; Rex v. Mansfield, 1 Q. B. 444; Boykin v. Boykln, 70 N. 
 C. 262; People v. CJourt of Sessions, 45 Hun (N. Y.) 54. But from the 
 necessity of the case, in actions for bastardy, the wife may testify to the 
 criminal intercourse, Ratcliff y. Wales, 1 Hill, 66 and cases cited; Evans 
 V. State, 165 Ind. 369, 74 N..E. 244. See note, 2 L. R/ A. (N. S.) 619. See 
 § 97, supra. , 
 
 eswilke V. People, 53 N. Y. 525; Lucas v. State, 23 Conn. 18; Hussey v. 
 State, 7 Ala. 121; Lide v. State (Ala.), 31 So. 953; People v. Gordon, 100 
 Mich. 518; State v. Willis, 119 Mo. 485; Owen v. State, 89 Tenn. 698; State 
 V. Woodrow, 58 W. Va. 527, 52 S. E. 545, 112 Am. St Rep. 1001, 2 L. R. A. 
 (N. S.) 862 and note. See note 106 Am. St. Rep. 763. 
 
 69 People V. Fitzpatrick, 5 Park. O. (N. Y.) 26; People v. Carpenter, 9 
 Barb. (N. Y.) 580; Johnson v. State, 27 Tex. App. 135; Lord Audley's Trial, 
 3 How. St. Tr. 402; Clarke v. State, 117 Ala. 1, 23 So. 671, 67 Am. St. Rep. 
 157; Com. v. Sapp, 90 Ky. 580, 14 S. W. 834, 29 Am. St. Rep. 805; State v. 
 Neill, 6 Ala. 685; Com. v. Murphy, 4 Allen, 491; People v. Selring, 66 Mich. 
 705, 45 Am. Rep. 412; Whipp v. State, 34 Ohio St. 87; State v. Davidson, 
 77 N. C. 522; State v. Davis, 3 Brev. (S. C.) 3; Goodwin v. State, 114 Wis. 
 318, 90 N. W. 170, assault with intent to kill. The rule is the same in 
 cases of attempt to poison. People v. Northrop, 50 Barb. (N. Y.) 147; Com. 
 V. Sapp, 90 Ky. 580, 29 Am. St. Rep. 105; abortion by violence. State v. 
 Dyer, 59 Mo. 303; Navarro v. State, 24 Tex. App. 378; abandonment, State 
 V. Brown, 67 N. C. 470; bigamy, Hills v. State, 61 Neb. 589, 85 N. W. 836; 
 United States v. Bassett, 5 Utah, 131, 13 Pac. 23.7; coercion, to forge note, 
 Beyerllne v. State, 147 Ind. 125, 45 N B. 772. See notes, 27 Am. Dec. 377; 
 106 Am. St. Rep. 765. 
 
 eoBromlette v. State, 21 Tex. App. 611; Johnson v. State, 94 Ala. 53; 
 Thiede v. Utah, 159 U. S. 510. The exception, however, does not extend 
 to all offenses which may constitute a wrong to the husband or wife, such 
 as, adultery, Com. v. Jailer, 1 Grant Cas. (Pa), 218; Bassett v. United 
 States; 137 U. S. 496; Cotton v. State, 62 Alai 121; State v. Jones, 89 N. G. 
 
918 THE LAW OF EVIDENCE. § 734 
 
 same principle, where a husband or wife is on trial for an assault 
 or other personal injury to the other spouse, the other may be a 
 witness for the defendant."^ Since the principle of the general 
 common law rule applied in all cases where the interests of the 
 other party were involved, the spouse of one indicted and on trial 
 jointly with others is not a competent witness for any of the de- 
 fendants."^ It has been so held even in cases where the husband 
 or wife, so indicted, was not brought to trial,"* or had a separate 
 triaU* But, by the weight of authority, where the grounds of 
 
 559; Com. v. Gordon, 2 Brewst. (Pa.) 369; People v. Swanston, 93 Mich. 
 254; McLean v. State, 32 Tex. Cr. Rep. 521; State v. Welch, 26 Me. 30, 45 
 Am. Dec. 94; Com. v. Sparks, 7 Allen, 534; State v. Gardner, 1 Root (Conn.) 
 485; People v. Hendrickson, 53 Mich. 525; Oompton v. S-tate, 13 Tex. App. 
 271, overruling earlier decisions; Crawford v. State, 98 Wis. 623, 74 N. W. 
 537, 67 Am. St. Rep. 829 (contra. State v. Chambers, 87 la. 1, and Iowa 
 cases there cited; State v. Volander, 57 Minn. 225; State v. Dudley, 7 Wis. 
 664; Lord v. State, 17 Neb. 526, most of the cases depend on statutes); or 
 conspiring to charge adultery, State v. Burlingham, 15 Me. 104; suborna 
 tion of perjury. People v. Carpenter, 9 Barb. (N. Y.) 580; and incest, People 
 V. Westbrook, 94 Mich. 629; Compton v. State, 13 Tex. App. 271; State v. 
 Burt, 17 S. D. 7, 94 N. W. 409, 106 Am. St. Rep. 759; see note, 106 Am. 
 St. Ry. 759, (contra. State v. Chambers, 87 la. 1, 53 N.W. 90); rape be- 
 fore marriage. People v. Shoonmaker, 117 Mich. 190, 75 N. W. 439, 72 Am. 
 St. Rep. 560; People v. Curlale, 137 Cal. 534, 70 Pac. 468; State v. Frey, 76 
 Minn. 526, 79 N. W. 518, 77 Am. St. Rep. 660; State v. Evans, 138 Mo. 116, 
 39 S. W. 462, 60 Am. St. Rep. 549; State v. McKay, 122 la. 658, 98 N. W. 
 510, 44 Am. Rep. 703. Under the Indiana statute husband allowed to testify 
 against the wife for burning of Ms property, Jordan v. State, 142 Ind. 422, 
 41 N. E. 817. Under the Colorado statute the wife was allowed to testify 
 in a prosecution against her husband for perjury in obtaining a divorce. 
 Dill V. People, 19 Colo. 469, 36 Pac. 229, 41 Am. St. Rep. 254; in actions for 
 loss of support testimony of wife or husband not admissible, Wood v. 
 Lentz, 116 Mich. 275, 74 N. W. 462; Travis v. Stevens, 127 Mich. 687, 
 87 N. W. 85. 
 
 61 Rex v. Sergeant, Ryan & M. 354; State v. Nelll, 6 Ala. 685; Com. v. 
 Murphy, 4 Allen, 491; People v. Pltzpatrick, 5 Park, Cr. (N. Y.) 26; State 
 v. Parker, 42 La. Ann. 972; Johnson v. State, 27 Tex. App. 135. 
 
 «2Com. V. Eastland, 1 Mass. 15; Holley v. State, 105 Ala. 100, 17 So. 102; 
 Stephens v. State, 106 Ga. 116, 32 S. B. 13; Gillespie v. People, 176 111. 238, 
 52 N. B. 250; Com. v. Robinson, 1 Gray, 555; Mask v. State, 32 Miss. 405; 
 State V. Jolly, 3 Dev. & B. (N. C.) 110, 32 Am. Dec. 656; State v. Sargood, 
 77 Vt. 80, 58 Atl. 971; State v. Welch, 26 Me. 80, 45 Am. Dec. 94, where the 
 wife was not jointly indicted. See also, Morrlseey v. People, 11 Mich. 327, 
 by statute. 
 
 63 state V. Bradley, 9 Rich. L. (S. C.) 168. 
 
 e* Pullen v. People, 1 Doug. (Mich.) 48; United States v. Wade, 2 Cranch 
 
I 735 COMPETENCY OF WITNESSES. 919 
 
 defense are several and distinct, and in no manner dependent on 
 each other, it is held that the wife of one defendant may be ad- 
 mitted as witness for another,°° as well as where he has failed to 
 appear and his reco^izance has been forfeited,"" and where the 
 prosecution has been dismissed as to him."' In prosecutions for 
 higamy, the second wife may testify in those cases where the first 
 marriage has not been disputed or has been duly established by 
 other evidence, since it then appears that she is not the real wife; 
 but she cannot testify as to the first marriage."* In such prose- 
 •cutions the person whom the indictment charges to be the defend- 
 ant's lawful spouse is incompetent. The witness is excluded by 
 "the very hypothesis she is called to support."" 
 
 § 735 (754). Same — Confidential communications. — Said Lord 
 EUenborough : "It is a sound doctrine that trust and confidence 
 between man and wife shall not be betrayed."'" Although the 
 statutes repealing the rule that interested witnesses were incompe- 
 tent, as well as other similar statutes, have in various jurisdictions 
 somewhat enlarged the capacity of husband and wife as witnesses, 
 this principle is still generally recognized, and excludes the testi- 
 
 C. C. 680; State v. Smith, 2 Ired. (N. C.) 402. Contra, Cornelius v. Com., 
 3 Met. (Ky.) 481; State v. Burnside, 37 Mo. 343; Com. v. Manson, 2 Ashm. 
 (Pa.) 31; State v. Drawdy, 14 Rich. (S. C.) 87; "Workman v. State, 4 
 Sneed (Tenn.) 425; People v. Langtree, 64 Cal. 256; Campbell v. State 
 (Ala.) 32 So. 635. 
 
 66 State v. "Waterman, 1 Nev. 543; Mofflt v. State, 2 Humph. (Tenn.) 99; 
 State V. Anthony, 1 McCord (S. C.) 285; Gillespie v. People, 176 111. 238, 52 
 N. B. 250; Dovey v. Lam (Ky.), 77 S. "W. 383. Bat see, State v. "Wright, 
 41 La. An. 600; Adams v. State, 28 Pla. 511, wife called hy the state. 
 
 «6 State V. "Worthing, zi Me. 62. 
 
 "Ray V. Com., 12 Bush (Ky.) 397. Contra, Rivers v. State (Ga.), 44 
 S. B. 859. So also where he has pleaded guilty, Graff v. People, 208 111. 
 312, 70 N. B. 299. 
 
 88 Miles v. "United States, 103 U. S. 304; Finney v. State, 3 Head (Tenn.) 
 544; Cole v. Cole, 153 111. 585, 38 N. E. 703; Barber v. People, 203 111. 543, 68 
 N. B. 93; Hoch v. People, 219 III. 265, 76 N. E. 356, 109 Am. St. Rep. 
 :327. The incompetency can not be waived, Barber v. People 203 111. 543, 68 
 N. B. 93. Nor can the first wife be admitted to prove the second marriage 
 ibigamous by confession made to her by her husband. Basset v. United 
 States, 137 TJ. S. 496. As to this subject, see notes, 47 Am. St Rep. 228- 
 232; 106 Am. St. Rep. 769. 
 
 68 R. V. Madden, 14 Up. Can. Q. B. 588; State v. Ulrich, 110 Mo. S50, 
 19 S. "W. 656. 
 
 10 Averson v, Klnnalr^, 6 East, 192. See extended note, 29 Am. St. Rep. 
 411-423. 
 
920 THE LAW OF EVIDENCE. § "^35 
 
 mony of either hsuband or wife as to communications between each 
 other during marriageJ^ In the same manner, the fact that con- 
 versations or communications were not held between them is privi- 
 leged." It is held, where statutes exclude private communica- 
 tions between husband and wife, that conversations ih the hear- 
 ing of third persons may be testified to by the husband or wife," 
 and "there is no rule of law requiring that third persons, who 
 hear a private conversation between husband and wife, shall be 
 restrained from introducing it in their testimony. " '* In suits 
 between third parties, husband or wife may testify to transac- 
 tions between themselves, which involve no breach of matrimonial 
 confidence.'" In some states, the privilege is confined by statute 
 to confidential communication; and in such cases, it has been held 
 
 "Leffler v. Minnesota Tribune Co., 35 Minn. 310; Westerman v. Wester-' 
 man, 25 Ohio St. 500; White v. Perry, 14 W. Va. 66; Miller v. Miller, 14 
 Mo. App. 418; French v. Wade, 35 Kan. 391; Com. v. Cleary, 152 Mass. 491; 
 Dye V. Davis, 65 Ind. 474; Keaton v. Dimmick, 46 Barb. (N. Y.) 158; 
 O'Connor v. Mayoribanks, 4 Man. & G. 435; Raynes v. Bennett, 114 Mass. 
 424; Warner v. Press Pub. Co., 132 N. Y. 181; Selden v. State, 74 Wis. 271; 
 17 Am. St. Bep. 144 and cases cited. On this ground the courts have ex- 
 cluded conversations between husband and wife relative to the making 
 of a totZZ, Baldwin v. Parker, 99 Mass. 79; as to pedigree, Brooks v. Francis, 
 3 MacArth. (D. C.) 109; the purcUase of goods, Raynes v. Bennett, 114 
 Mass. 424; gifts, Young v. Hurst (Tenn.), 48 S. W. 355; or as to memoranda 
 furnished for the keeping of accounts, Easterbrooks v. Prentiss, 34 Vt. 
 457 (as to papers entrusted by one to the other, Stanford v. Murphy, 63 
 Ga. 410), or as to the circumstances of an accident in a personal injury 
 case, Newstrom v. St. Paul & D. Ry. Co., 63 N. W. 253. 
 
 " Goodrun v. State, 60 Ga. 509. 
 
 'SFay V. Guynon, 131 Mass. 31; McCague v. Miller, 36 Ohio St. 595,- 
 Com. V. Griffin, 110 Mass. 181; State v. Center, 35 Vt. 378; State v. Gray,. 
 55 Kan. 135; Reynolds v. State, 147 Ind. 3, 46 N E. 31; Long v. Martin,. 
 152 Mo. 668. 54 S. W. 473. Reed v. Reed (Mo.), 70 S. W. 505; Allison v. 
 Barrow, 3 Coldw. (Tenn.) 414; Troy Fertilizer Co. v. Logan, 90 Ala. 325; 
 Mercer v. Patterson, 41 Ind. 440. Contra, Campbell v. Chace, 12 R. I. 333; 
 Low's Estate, Myr. Prob. (Cal.) 143; Holman v. Bachus, 73 Mo. 49; Bird v. 
 Hueston, 10 Ohio St. 418; In re Buckman's Will, 64 Vt- 313. But com- 
 munications made by husband and wife in the presence of children merely 
 are privileged, Jacobs v. Hesler, 113 Mass. 157; but in the later case of 
 Lyon V. Prouty, 154 Mass. 488, communications In the presence of a four- 
 teen year old daughter were held not privileged. 
 
 7* Com. V. Griffin, 110 Mass. 181; State v. 'Carter, 35 Vt 378; Gannon v. 
 People, 127 111. 507, 21 N. B. 525, 11 Am. St. Rep. 147; Knight v. State. 
 114 Ga. 48, 39 S. E. 928, 88 Am. St. Rep. 17. 
 
 75 Nolen V. Harden, 43 Ark. 307. 
 
§ 736 COMPETENCY OF WITNESSES. 921 
 
 that the statute does not apply to all communications made be- 
 tween husband and wife, when alone, but to such as are expressly 
 made confidential, or are of a confidential nature or induced by the 
 marital relation, and not to ordinary conversations relating to 
 matters of business of such a nature as not to be deemed confiden- 
 tial.'" But where the statute excluded "private conversations," 
 it was held that this includes conversations on subjects which are 
 not confidential in their nature.'^ 
 
 § 736 (755). Duration of the disability. — Since the general rule 
 under discussion depends, not only upon the interest of the par- 
 ties, but on grounds of public policy, the disability to testify does 
 not cease with the termination of the marriage relation. In the 
 absence of statutory regulation, it is well settled that, after the 
 dissolution of the marriage by death or divorce, neither the hus- 
 band nor wife can testify as to any communications held between 
 them by reason of the confidence of the marriage relation.'^ It 
 is the policy of the law that neither husband nor wife need have 
 any reason to fear that the confidence which belongs to the most 
 sacred relation of life shall ever be betrayed in courts of justice.'* 
 
 Toparkhurst v. Berdell, 110 N. Y. 386. See Rice v. "Waddell, 168 Mo. 
 99, 67 S. W. 605. In divorce case husband's statement as to his own in- 
 fidelity, admitted, Seitz v. Seitz, 170 Pa. 71, 32 Atl. 578; agreements as to 
 property, Bretman v. Hopkins, 109 Ind. 177, 9 N. B. 720. 
 
 " Dexter v. Booth, 2 Allen, 559. 
 
 ''s Death, Geer v. Goudy, 174 111. 514, 51 N. E. 623; Buckingham v. Roar, 
 45 Neb. 244, 63 N. W. 398; New York Life Ins. Co. v. Johnson (Ky.), 72 S. 
 W. 762; Buckel v. Smith (Ky.), 82 S. W. 235; Lyons v. Lyons (Mo.), 74 
 S. W. 467; divorce, Griffith t. Griffith, 162 111. 368, 44 N. E. 820; State v. 
 Kodat, 158 Mo. 125, 59 S. W. 73, 81 Am. St. Rep. 292; Robinson v. Robinson, 
 22 R. L 121, 46 Atl. 455, 84 Am. St. Rep. 832; Brock v. Brock, 116 Pa. St. 
 109, 9 Atl. 486. 
 
 79 Dickerman v. Graves 6 Gush. 308; Babcock v. Booth, 2 Hill, 181, 38 
 Am. Dec. 578. After the dissolution of the marriage, one of the parties 
 thereto has been held incompetent to testify to communications relative 
 to a post-nuptial settlement, Williams & Mary College v. Powell, 12 Gratt. 
 (Va.) 372; or as to the purchase of goods. Dexter v. Booth, 2 Allen, 559; 
 or as to an alleged confession 6f false swearing in a former case, Stein v. 
 Bowman, 13 Peters, 209; or as to threats alleged to have been made, 
 Anderson v. Anderson, 9 Kan. 112; or as to conveyances, Babcock v. Booth, 
 2 Hill, 181, 38 Am. Dec. 578; Blanchard v. Moore, 85 Mich. 380; or as to 
 conversations or confidential acts, Brock v. Brock, 116 Pa. St 109; Perry 
 V. Randall, 83 Ind. 143. Letters between husband and wife are governed 
 by the same rule, and are treated as confidential communications, Selden 
 V. State, 74 "Wis. 271; Scott v. Com., 94 Ky. 1; Bowman v. Patrick, 32 Fed. 
 
922 THE LAW OF EVIDENCE. § 737 
 
 The eomintinieations may consist of acts as well as words.'" But 
 this privilege cannot be claimed during the continuance of the 
 marital relation or afterwards, as a cloak to cover frcmd and shield 
 the wrong-doer, a third person, who is benefited by the fraudulent 
 acts in question.*"^ Mr. Bishop thus sums up the general rule on 
 this subject: "All facts which came to the knowledge of either 
 party, whereof the disclosure would violate the confidence of the 
 matrimonial relation, especially if prejudicial to the other party, 
 are kept perpetually under the protection of the rule of public 
 policy which, to promote freedom and harmony in matrimonial 
 intercourse, forbids their disclosure in evidence.'"* The privi- 
 lege is the privilege of the person making the communication, and 
 can only be waived by him personally, and the personal represen- 
 tative has no right to waive it, even in the interest of the estate.*' 
 § 737 (756). Matters which may be disclosed after the mar- 
 riage relation ceases. — After the close of the marriage relation, 
 either party may testify to matters which took place during the 
 marriage, unless such testimony involves the disclosure of mat- 
 ters of confidence.** As illustrations of this rule, such testimony 
 
 368; Mitchell v. Mitchell, 80 Tex. 101; State v. Ulrlch, 110 Mo., 350, 19 S. W. 
 656. Other cases illustrating subject, excluded. Ward v. State, 70 Ark. 204, 
 66 S. W. 926; Mercer v. State, 40 Pla. 216, 24 So. 154, 74 Am. St. Rep. 135; 
 Wilkerson v. State, 91 Ga. 729, 17 S. B. 990, 44 Am. St. Rep. 63; Scott v. 
 Com., 94 Ky. 511, 23 S. W. 219, 42 Am. St. Rep. 371; admitted, People v. 
 Truck, 170 N. Y. 203, 63 N. E. 281. But the privilege Is waived when the 
 letters are given to a third party. People v. Hayes, 140 N. Y. 484, 35 N. E. 
 951; and when they come to the hands of a third party, the court does 
 not inquire by what right such party is possessed of them. State v. 
 Mathers, 64 Vt. 101. This rule applies only to the legal wife. Com. v. 
 Caponi, 155 Mass. 534, this case holds that, under the Massachusetts 
 statutes, letters are not included under private communications. Where 
 a husband contests his wife's mil, he cannot testify as to their confidential 
 communications, Maynard v. Vinton, 59 Mich. 139, 60 Am. Rep. 276. 
 so Perry v. Randall, 83 Ind. 143. 
 
 81 Henry v. Sneed, 99 Mo. 407, 17 Am. St. Rep. 580. 
 
 82 Bish. Mar., Div. & Sep. § 1663 ; Hitchcock v. Moore, 70 Mich. 112, 14 
 Ani. St Rep. 474 and note; Norris v. Stewart's Heirs, 105 N. C. 455, 
 18 Am. St. Rep. 917; French v. "Ware, 65 Vt 338. 
 
 83 Derham v. Derham, 125 Mich. 109, 83 N. W. 1005. 
 
 84 Smith v. Potter, 27 Vt 304, 65 Am. Dec. 198; Haugh v. BIythe, 20 
 Ind. 24; Elswick v. Com., 13 Bush (Ky.) 155; Ryan v. Follansbee, 47 
 N. H. 100; Cornell v. Vanartsdalen, 4 Pa. St. 364; Powell v. Powell, IH 
 111. 329; Spaulding v. Albln, 63 Vt. 148; French v. Ware, 65 Vt 338, ?,; 
 Atl. 1096; Blgelow v. Sickles, 75 Wis. 427, 44 N. W. 761. 
 
§ 738 , COMPETENCY OF WITNESSES. 923 
 
 may be given relative to the acts, the transactions,'" or conver- 
 sations of the other spouse with third persons,*" provided such 
 knowledge is not derived by means of confidential communications 
 between husband and wife. In a celebrated case, it was held that 
 a divorced wife might testify that she saw no indications of in- 
 sanity exhibited by her husband during their association.'' It 
 has also been held that the privilege does not extend to those com- 
 munications which, in their nature, are not private or confiden- 
 tial, but which, from the nature of the case, must have been in- 
 tended to have been made public.'' Nor does the rule apply to 
 such facts as came to the knowledge of the witness during the 
 marriage by means equally accessible to other persons, and not 
 disclosed in conversations with the other spouse," or to matters 
 that came to the knowledge of the spouse before the marriage or 
 after the separation."" In some cases, it has been held that one 
 spouse could not testify to transactions affecting the character of 
 the other." 
 
 § 738 (757). Same — Actions for criminal conversation. — It has 
 been held that, in an action for criminal conversation by the hus- 
 band after divorce, the divorced wife may testify for her husband 
 against her paramour. In such decisions, it is urged that the wit- 
 ness by testifying betrays no trust reposed in her during cover- 
 so Smith v. Potter, 27 Vt. 304, 65 Am. Dec. 198; McGuire v. Maloney, 1 
 B. Mon. (Ky.) 224; Stoter v. McCarter, 4 Ohio St. 513; White v. Perry, 
 14 W. Va. 66; Spivey v. Platon, 29 Ark. 603; Powell v. Powell, 114 111. 329; 
 Short V. Tinsley, 1 Met. (Ky.) 397; Stein v. Weidman, 20 Mo. 17; G-askill 
 V. Kiag, 12 Ired. (N. C.) 211; Robbs' Appeal, 98 Pa. St. 501; Litchfield 
 V. Merritt, 102 Mass. 520, payment of a note; Robinson v. Talmadge, 
 97 Mass. 171, where a wife testified as to the habit of her husband in 
 carrying notes. 
 
 seprattv. Delavan, 107 Iowa, 307; Stuhlmuller v. Ewing, 39 Miss. 447; 
 Griffin v. Smith, 45 Ind. 366; Floyd v. Miller, 61 Ind. 224; French v. 
 Ware, 65 Vt. 338, 26 Atl. 1096; French v. Follett, 65 Vt. 338. 
 
 87 United States v. Guiteau, 1 Mackey (D. G.) 498. 
 
 88 Crook v. Henry, 25 Wis. 569; McGuire v. Malony, 1 B. Mon. (Ky.) 
 224; Stober v. McCarter, 4 Ohio St. 513; Parkhurst v. Berdell, 110 N. Y. 386. 
 
 89Bigelow V. Sickles, 75 Wis. 427, 44 N. W. 761; Stanley v. Stanley, 
 112 Ind. 143, as to the intoxication of the husband; Macon R. & L. Co. v. 
 Mason, 123 Ga. 773, 51 S. E. 569, physical condition of husband. 
 
 »o stillwell V. Patton, 108 Mo. 352; Long v. State, 86 Ala. 36; State 
 V. Nelson, 39 Wash. 221, 81 Pac. 721. 
 
 01 Smith V. Potter, 27 Vt. 304, 65 Am. Dec. 198; McGuire v. Maloney, 
 1 B. Mon. (Ky.) 224; Stein v Bowman, 13 Peters, 209. 
 
924 THE LAW OF EVIDENCE. § 739 
 
 ture, and that the fact called for did not come to her knowledge 
 in consequence of the marriage relation."^ Clearly the wife is 
 not a competent witness for the husband, in such cases, during 
 the marriage relation. In some jurisdictions by statute, she may 
 be a witness for the defendant, except as to communications be- 
 tween the husband and wife.°° In several eases in actions for 
 criminal conversation, the husband, being plaintiff, has been al- 
 lowed to testify, although the issue related to the criminality of 
 his wife as well as that of defendant, and this is the rule sup- 
 ported by the weight of authority."* 
 
 § 739 (757). Waiver. — Since the common law rule prohibiting 
 the testimony of husband or wife for or against each other de- 
 pended, not only on the ground of interest, but of public policy as 
 well, it did not render them competent witnesses, if a release was 
 executed of all the interest in the subject matter of the suit."" A 
 conflict of opinion has arisen as to whether, in the absence of stat- 
 utes, the consent of the husband or wife that the other spouse may 
 testify as an adverse witness changes the general rule. On the 
 ope hand, it has been urged that, since the disqualification rests 
 on grounds of public policy, such consent does not remove the 
 obligation."" Other authorities, however, hold that the objection 
 may be waived in this manner."' In various states statutes pro- 
 vide that in civil cases neither spouse can be a witness against the 
 
 02 DlcRerman v. Graves, 6 Gush. 308, 53 Am. Deo. 1 and note; Ratclifl 
 V. Wales, 1 Hill, 63; Ghamberlin v. People, 23 N. Y. 85, SO Am. Dec. 255; 
 Wottricli V. Freeman, 71 N. Y. 601. Contra, Rea v. Tucker, 51 111. liol 
 Cross V. Rutlege, 81 111. 266. See Hanselman v. Dord, 102 Mich. 505, 60 
 N. W. 978, 47 Am. St. Rep. 557, full discussion Mich, statute. 
 
 93 Reynolds v. SchafCer, 91 Mich. 494, 30 Am. St. Rep. 492; Carpenter 
 V. White, 46 Barb. (N.Y.) 292; Rev. Stat. Wis. § 4072; New York, Code 
 Civ. Prac. § 831; Smith v. Merrill, 75 Wis. 461, 44 N. W. 759, as to letters. 
 
 94 Smith V. O'Brien, 6 N. Y. S. 174; Burnell v. Greathead, 49 Barb. 
 (N. Y.) 106; Woods v. Gledhill, 9 N. Y. S. 266; Lyon v. Prouty. 154 Mass. 
 488; Roesner v. Darrah, 65 Kan. 599, 70 Pac. 597. Contra, Cornelius v. 
 Hambay, 150 Pa. St. 359, 24 Atl. 515. 
 
 05 Meredith v. Hughes, 28 Ga. 571; Weems v. Weems, 19 Md. 334. Contra, 
 Locke v. Noland, 11 Ala. 249. 
 
 96 Stein V. Bowman, 13 Peters, 209; Sedgwick v. Watkins, 1 Ves. Jr. 
 49; Davis v. Dlnwoody, 4 T. R. 678; Grabowski v. State, 126 Wis. 447, 105 
 N. W. 805. 
 
 97Pedley v. Wellesley, 3 Car. & P. 558; Parkhurst v. Berdell, 110 N. Y. 
 386, 6 Am. St. Rep. 384, waived by failure to object to wife's testimony. 
 See Benson v. Morgan, 50 Mich. 77, 14 N. W. 705. 
 
§ 740 COMi^ETENOy OF WITNESSES. 925 
 
 other without the consent of the latter. Of course in such stat- 
 utes the right of waiver is implied."* It has frequently been held 
 that in cases when one spouse may call the other no presumption 
 or unfavorable inference is raised for failure to do so.°° 
 
 § 740 (758). Exceptions — ^Agency. — We have already seen that 
 the general common law rule was not absolute in all cases; it 
 yielded to the exigencies of particular cases; and exceptions were 
 recognized when the purposes of justice required it.^ We wiU now 
 consider some of the exceptions or qualifications of the rule. 
 Among the well recognized exceptions to the general rule is that, 
 when a husband or wife is the agent of the other spouse, such 
 agent may be a witness as to all business transacted within the 
 scope of such agency. In England, the rule was established at an 
 early day that where a wife acted as the agent of her husband in 
 any business, the husband was bound by her admissions and dec- 
 larations made in the course of such business.^ In this country, 
 the rule prevails, not only that the ex parte declarations of the 
 agent may be received in such cases, but that the agent may tes- 
 tify as to all business transacted within the scope of the agency.' 
 
 08 state V. McGrath, 35 Or. 109, 57 Pac. 321, held active consent neces- 
 sary. Husband and wife were sued, the wife testified, full right of 
 cross-examination allowed. Nat. German-Am. Bank v. Lawrence, 77 Minn. 
 282, 80 N. "W. 363. 
 
 o» Johnson v. State, 63 Miss. 313; State v. Hatcher, 29 Ore. 309, 44 Pac. 
 584; Graves v. U. S., 150 U. S. 118. 
 
 1 See § 737 supra. 
 
 2 Emerson v. Blondin, 1 Bsp. 142; Clifford v. Burton, 1 Bing. 199, 8 B. 
 C. L. 471; Anderson v. Sanderson, 1 Holt, 591, 3 B. C. L. 232; Curtis v. 
 Ingham, 2 Vt. 287; Hughes v. Stokes, 1 Hayw. (N. C.) 372; Riley v. Suy- 
 dam, 4 Barb. (N. Y.) 222; Pickering v. Pickering, 6 N. H. 120; 1 Phill. 
 Ev. 77. 
 
 s Blrdsall v. Dunn, 16 Wis. 235; Chunot v. Larson, 43 Wis. 536; Schwantes 
 v. State, 127 Wis. 160, 106 N. W. 237; Robertson v. BrostJ, 83 111. 116; 
 Council Grove Ry. Co. v. Center, 42 Kan. 438; Burke v. Savage, 13 
 Allen, 408, by statute; Schmied v. Frank, 86 Ind. 250; Chesley v. Chesley, 
 54 Mo. 347; Lunay v. Vantyne, 40 Vt. 501; Orchard v. Collier (Mo.), 71 
 S. W. 677. Where the husband leaves home and gives instructions to 
 the wife to, manage things as he would, if at home, she may testify as 
 to the transaction of business occurring in his absence, Chunot v. Larson, 
 43 Wis. 536; Sergeant v. Marshall, 38 111. App. 642. So the testimony of 
 husband or wife has been received, in respect to acts of agency for the 
 other spouse, to prove the accuracy of accounts, Llttlefleld v. Rice, 10 Met. 
 287; Pierce v. Bradford, 64 Vt. 219; attempts to collect debts, Engmann 
 V. Immel, 59 Wis. 249; proofs of loss under an insurance policy, O'Com- 
 
926 THE LAW OP EVIDENCE. § 741 
 
 The wife may be a witness where she axjts as agent both for her 
 husband and for a third person with whom a contract is made.* 
 Communications between a husband and wife, relating to an 
 agency conferred by one upon the other, are not confidential, and 
 are admissible." Generally statutes exist stating the common law 
 exception as to agency." 
 
 § 741 (759). Proof of the agency. — Of course, in all such cases 
 of agency of the husband or wife, there must be proof of the 
 agency." But such agency is more readily inferred than in the case 
 of strangers ; and, in the case of the absence of the husband, the 
 wife is presumed to have the power to do such acts relating to- the 
 family and the home as wives usually do under similar circum- 
 stances.' But she isnot presumed to have the power to sell his prop- 
 erty, except in the regular course of business,^ nor to give authority 
 to commit trespass," nor to do other acts outside the customary 
 business.^" Agency is not to be presumed from the fact that the 
 wife bears a message for the husband, ^^ or that she is present with 
 him when business is transacted.^* The husband or wife may tes- 
 
 nor V. Hartford Ins. Co., 31 Wis. 161; contracts made In the course of 
 the agency, Sumner v. Cooke, 51 Ala. 521; Birdsall v. Dunn, 16 Wis. 235; 
 and the misconduct of the husiand in sending the wife away from home, 
 in an action by a third party for necessaries furnished the wife, Bach 
 V. Parmely, 35 Wis. 238; Morganroth v. Spencer, 124 Wis. 564, 102 N. 
 W. 1086. 
 
 * Martin v. Hurlburt Sav. Bank, 60 Vt. 364; Birdsall v. Dunn, 16 Wis. 235. 
 
 BSchmied v. Frank, 86 Ind. 250; Com. v. Hayes, 145 Mass. 289; Council 
 Grove Ry. Co. v. Center, 42 Kan. 438; Dyer v. State, 88 Ala. 225. But see, 
 Marshall v. Marshall, 71 Kan. 313, 80 Pac. 629. 
 
 oOrcutt V. Cook, 37 Vt. 515; Meek v. Pierce, 19 Wis. 300; Waggonseller 
 v. Rexford, 2 111. App. 455. 
 
 ' Benjamin v. Benjamin, 15 Conn. 347, 39 Am. Dec. 384; Meader v. 
 Page, 39 Vt. 306; Savage v. Davis, 18 Wis. 608; Humes v. Tabor, 1 R. 
 I. 464; McAfee v. Robertson, 41 Tex. 355; Butts v. Newton, 29 Wis. 632; 
 Mitchell V. Hughes, 24 111. App. 308. 
 
 8 Butts V. Newton, 29 Wis. 632; Benjamin v. Benjamin, 15 Oonn. 347, 
 39 Am. Dec. 384. 
 
 » Meek v. Pierce, 19 Wis. 300. 
 
 10 Sawyer v. Cutting, 23 Vt. 486; Reakert v. Sanford, 5 Watts & S. (Pa) 
 164. 
 
 11 Hale T. Danforth, 40 Wis. 382; Robertson v. Brost, 83 111. 116. 
 i2Trepp V. Barker, 78 111. 146; Bates v. Sabin, 64 Vt. 511; Miller v. 
 
 Stebbins, 77 Vt 183, 59 Atl. 844. When husband present she is held not 
 an agent, Pingree v. Johnson, (Vt.), 39 Atl. 202. 
 
§ 742 coMtKTBJNCY o*" Witnesses. 927 
 
 tify, not only to the acts performed as agent, but to the fact of 
 the, agency itself}* 
 
 § 742 (760). Evidence of husband and wife tending to crimi- 
 nate or contradict the other — Collateral proceedings. — ^Although 
 the courts were at first inclined to hold that a husband or wife 
 ought not to be permitted to give any evidence that might even 
 tend to criminate each other,^* yet it was long ago settled at com- 
 mon law that, in collateral proceedings not immediately affecting 
 their mutual interests, either husband or wife might be a witness, 
 although the evidence of one tended to criminate the other, or to 
 contradict the other, or to subject the other to a legal demand.^" 
 Tt was, however, held otherwise luhere the interests of the other 
 were directly involved, and would be concluded by the verdict, 
 whether a party or not.^" But when the liability of the husband 
 was contingent merely, and he was not a party, the wife might be 
 a witness.^' In controversies between third persons, the testimony 
 of the husband and wife was not excluded merely because they 
 might contradict each other, or because the testimony of one might 
 impair the credit to be given to that of the other. The fact that 
 such contradiction might lead to family discord was not deemed so 
 serious an objection as to prevent a failure of justice. Mr. Tay- 
 lor has pointed out that the contrary rule would lead to great in- 
 justice : ' ' Since the competency of the witness would then depend 
 upon the marshalling of the evidence ; and the testimony of a hus- 
 band might be rendered inadmissible for the defendant from the 
 accidental circumstances of his wife having been previously called 
 on the part of the plaintiff, though had the defendant been entitled 
 to begin, the husband would have been examined and the wife re- 
 
 isAmdt V. Harshaw, 53 Wis. 269, 10 N. W. 390; Wichita Co. v. Kuhn, 
 38 Kan. 104; Paulson v. Hall, 39 Kan. 365. But see, Sanborn v. Cole, 63 
 Vt 590. 
 
 " R. V. Inhabitants of Cliviger, 2 T. R. 263. 
 
 "1 Phill. By. (10th Ed.) 71. See note, 27 Am. Dec. 377. 
 
 isKusch V. Kusch, 143 111. 353; Am v. Matthews, 39 Kan. 273; Young 
 V. Gilman, 46 N. H. 484; DeFarges v. Ryland, 87 Va. 404, 24 Am. St. Rep. 
 659; Southerland v. Ross, 140 Pa. St. 379; Harrington v. Sedalia, 98 Mo. 
 583; Blanchard v. Moors, 85 Mich. 380; Way v. Harrinian, 126 111. 132; 
 Storrs V. Storrs, 23 Fla. 274; Banister v. Ovitt, 64 Vt. 580; McBwen v. 
 Shannon, 64 Vt. 583. 
 
 "Fitch V. Hill, 11 Mass. 285; Dyer v. Homer, 22 Pick. 253; Griffin t. 
 Brown, 2 Pick. 303. 
 
928 THE LAW OF EVIDENCE. § 743 
 
 jeeted. In Ireland, all the judges have held that the evidence of 
 a wife could not be rejected on the ground that she was brought 
 to contradict the testimony of her husband, even where he was 
 the prosecutor of aja indictment."" There has been more diffi- 
 culty in determinig whether the testimony of husband or wife 
 should be received in an action where the other spouse is not a 
 party, and where the verdict would not be conclusive, but where 
 the testimony "would nevertheless tend to criminate. For exa,m- 
 ple, it has frequently been held, on an indictment of one for adul- 
 tery with a wife, that, though the wife is not also joined, the hus- 
 band will be an incompetent witness for the state.^* But, in the 
 opinion of the author, the view that the witness is incompetent 
 merely because of the fact that the testimony might give informa- 
 tion which would facilitate a conviction in another case or merely 
 tend to convict can hardly be sustaiued on principle.^" 
 
 § 743 (761). Other exceptions to the general rule — ^Divorce. — 
 In another place, we have discussed the exception which arose 
 from the necessity of the case, when actions were based upon the 
 personal violence or misconduct of one spouse toward the other.^^ 
 On similar grounds of necessity, a wife or husband might testify, 
 where the other was a party, to prove the contents of lost trunks 
 or packages, there being no other evidence of the fact.''^ In still 
 other cases, where one spouse was competent at common law, the 
 other was also competent.^' At common law in civil actions, no 
 
 18 Tayl. Bv. (10th Ed.) § 1370. 
 
 i» Com. V. Gordon, 2 Brewst. (Pa.) 569; State v. Welsh, 26 Me. 30; People 
 V. Fowler, 104 Mich. 449, 62 N. W. 572; Com. v. Sparks, 7 Allen, 534; 
 State v. Gardner, 1 Root (Conn.) 485; Howard v. State, 94 Ga. 587; Blrge 
 V. State, 78 Ala. 435. See note, 27 Am. Dec. 379. 
 
 20 See discussion, 2 Bennett & Heard Cr. Gas. 253; R. v. Bathwick, 2 
 Barn. & Adol. 639; R. v. All Saints, 6 Maule & S. 194; R. v. Halliday, 
 8 Cox Cr. Cas. 298; Com. v. Reid, 8 PhUa. (Pa.) 385; State v. Buggs, 9 
 R. I. 361; Campbell v. State, 133 Ala. 158, 32 So. 635; State v. Marvin, 35 
 N. H. 22; State v. Dudley, 7 Wis. 664, where the witness was a divorced 
 husband; State v. West, 118 Wis. 469, 95 N. W. 521, 99 Am. St. Rep. 1002; 
 Roesner v. Darrah, 65 Kan. 599, 70 Pac. 597, criminal conversation; State 
 V. Wiseman (N. C), 41 S. B. 884, fornication, discussion of statute. 
 
 21 See § 734 supra. 
 
 22 Illinois Ry. Co. v. Taylor, 24 111. 323; Sassen v. Clark, 17 Ga. 242; Mo- 
 Gill V. Rowland, 3 Pa. St. 451. 
 
 2S Wlxson V. People, 5 Park. Cr. (N. Y.) 119; Seigling v. Main, 1 McMull. 
 (S. C.) 252; Abbott v. Clark, 19 Vt. 444; State v. Anthony, 1 McCord (S. C.) 
 285; Meni v. Rathbone, 21 Ind. 454; Howell v. Zerbee, 26 Ind. 214; Mitchell 
 
§ 744 COMPETENCY OP WITNESSES. 929 
 
 exception to the general rule arose from the fact that the action 
 was hetween husband and wife, and concerned property rights.^* 
 Formerly an action for divorce was governed by the general rules 
 already stated, and neither party could be a witness,^" except that 
 in equity the usual rule obtained, and the, ajQswer might be made 
 evidence by the act of the complainant in demanding that the 
 charges of the biU be answered under oath.^° Statutes have, how- 
 ever, been adopted in England ^' and in many of the states, which 
 have, at least partially, removed the disability of the husband 
 and wife to testify in those cases where a witness is a party, and 
 ia such cases, either plaintiff or defendant may testify in divorce 
 suits, as in other actions, and it is now familiar practice for either 
 spouse to testify in actions for divorce.^' Under a statute provid- 
 iug that either party to a divorce proceeding might testify in the 
 case, the court was of the opinion that this statute did not repeal 
 the other statute to the effect that neither husband nor wife should 
 be permitted to give any testimony tending to criminate the other, 
 or to disclose confidential communications.^' 
 
 § 744 (762). The marriage to be proved by the party objecting. 
 There is no presumption that a witness is incompetent; and the 
 party insisting on the disability to testify must prove that the re- 
 lation of husband and wife exists. But the husband or wife, who 
 is a party and who objects to the competency of that witness, may 
 testify to the marriage,'" and the supposed husband or wife may 
 be examined on the voir dire as to facts showing the invalidity 
 of the marriage.** At common law, the exclusion of the husband 
 
 V. Clagett, 9 Md. 42; Hall v. Murphy, 14 Tex. 637; Robinson v. Hutchinson, 
 31 Vt. 443. 
 
 2* Gray v. Gray, 39 N. J. Eq. 511. 
 
 20 Perkins v. Perkins, 88 N. C. 41; Manchester v. Manchester, 24 Vt. 649; 
 Briggs T Brlggs (R. I.), 26 Atl. 198; Dwelly v. Dwelly, 46 Me. 377; Anony- 
 mous, 58 Miss. 15. 
 
 2s Latham y. Latham, 30 Gratt. (Va.) 307; Derby v. Derby, 21 N. J. Bq. 
 36; Richmond v. Richmond, 10 Yerg. (Tenn.) 343; Mosser v. Mosser, 29 
 Ala. 313; Marsh v. Marsh, 16 N. J. Eq. 391, 84 Am. Dec. 164; Banta v. 
 Banta, 3 Edw. Ch. (N. T.) 295. 
 
 27 32 & 33 Vict. ch. 68 § 3. 
 28 See statutes of the Jurisdiction. See § 745 inpa. 
 
 20 Brlggs V. Briggs (R. I.), 26 Atl. 198. 
 
 so Dixon V. People, 18 Mich. 84; Moore v. State (Tex.), 75 S. W. 497, 67 
 L. R. A. 499. 
 
 81 Rex V. Bramley, 6 T. R. 330; Rex v. Bathwick, 2 Barn. & Adol. 646; 
 
 59 
 
930 1HK LAW OF EVIDENCE. ' § 745 
 
 or wife as a witness, where the other spouse was a party, depended 
 upon grounds of public policy applicable solely to cases where the 
 lawful relation of husband and wife existed. The witness was 
 not excluded, unless de jure the husband or wife of the party.^^ 
 Hence the rule did not apply when the witness lived in adulter- 
 ous intercourse or as the mistress of another, although they claimed 
 to be husband and wife, unless the relationship of husband and 
 wife actually existed.^' 
 
 § 745 (763). Effect of statutes on the subject. — When we come 
 to the consideration of the effect of statutes upon the common law 
 rules on the subject under consideration, we find a discouraging 
 lack of uniformity. One of the few general rules on this subject, 
 about which there is little difference of opinion, has arisen out of 
 the very general adoption of statutes which have removed all oh- 
 jectioois to the competency of witnesses on account of interest. 
 It has generally been agreed that the statutes removing the dis- 
 qualifications by reason of interest do not affect the disability of 
 husband and wife as witnesses for or against each other. The dis- 
 ability rests on grounds of public policy, and the necessity of 
 preserving the harmony of the marriage relation, and not merely 
 upon the ground of interest of parties or witnesses.'* In Eng- 
 land, very radical changes have been made in the common law 
 rules; and husband and wife are now, in general, competent wit- 
 nesses for or against each other in civil actions, except that they 
 
 Wells v. Fletcher, 5 Car. & P. 12; State v. Brown, 28 La. An. 279; Tayl. Ev. 
 (lOth Ed.) § 1366. 
 
 »2Rex V. Serjeant, Ryan & M. 352; Batthews v Galindo, 4 Bing. 610, 
 3 Car. & P. 238; "Wells v. Fletcher, 5 Car. & P. 12; Dennis v. Crittenden, 
 42 N. Y. 542; Miles v. United States, 103 U. S. 304; Sims v. State, 30 Tex. 
 App. 605. 
 
 ssBatthews v. Galindo, 4 Bing. 610; Flanigan v. State, 25 Ark. 92; 
 Dennis v. Crittenden, 42 N. Y. 542; Wells v. Fletcher, 5 Car. & P. 12; 
 Campbell v. Twemlow, 1 Price, 31; Divoll v. Leadbetter, 4 Pick. 219; State 
 V. Taylor, Phill. (N. C.) 508; Rex v. Serjeant, Ryan & M. 352; R. v. 
 Madden, 14 Up. Can. Q. B. 588; State v. Patterson, 2 Ired. (N. C.) 346; 
 Finney v. State, 3 Head (Tenn.) 544; State v. Johnson, 12 Minn. 476; 
 Hoxie V. State, 114 Ga. 19, 39 S. E. 944. 
 
 34 Lucas V. Brooks, 18 Wall. 436; Dawley v. Ayers, 23 Cal. 108; Stanley v. 
 Stanton, 36 Ind. 445; McKeen v. Frost, 46 Me. 239; KeUy v. Drew, 12 
 Allen, 107; Gee v. Scott, 48 Tex. 510; Cram v. Cram, 33 Vt. 15; Dimlap v. 
 Heam, 37 Miss. 471; Haworth v. Norris, 28 Fla. 763; Parkhurst v. Berdell, 
 110 N. Y. 386. See valuable note giving the substance of many statutes, 
 Greenl. Ev. § 334. 
 
§ 745 COMPETENCY OP WITNESSES. 931 
 
 cannot be compelled to disclose communications made to each 
 other during the marriage."" In the United States courts the 
 following rules govern: "No witness shall be excluded in any ac- 
 tion on account of color, or in any civil action because he is a party 
 to or interested in the issue tried. * * * In all other respects 
 the laws of the state in which the court is held shall be the rules 
 of decision as to the competency of witnesses in the courts of the 
 United States in trials at common law and in equity and admir- 
 alty. "'° But this statute has been held inapplicable to criminal 
 trials as they are not embraced within the words "at common 
 law." '^ It is obvious, however, that the state laws cannot control 
 as to the competency of witnesses, where the federal constitution 
 or statute has already established the rules that shall govern in 
 those cases.'* By the rules of construction which have been 
 adopted, it wiU be seen that this statute does not change the com- 
 mon law rule with respect to the competency of husband and 
 wife as witnesses, except so far as to conform the practice to the 
 law of the forum."' There is hardly a state in which the com- 
 mon law rules remain intact on this subject, but there is such wide 
 dissimilarity between the statutes of the several states and the de- 
 cisions based thereon that no full discussion of such statutes would 
 be practicable within the scope of this work. In a large number 
 of states, the precaution has been taken to expressly declare the 
 common law rule that communications between husband and wife 
 during marriage are incompetent;*" but in some states, such 
 communications may be received by consent of the other spouse. *'^ 
 Generally these statutes exclude "any communications" made 
 
 so Tayl. Bv. (10th Ed.) § 1352. 
 
 88 Rev. Stat. U. S. § 858 (XJ. S. Comp. St. 1901, p. 659); Mutual Life 
 Ins. Co. T. Robinson, 58 Fed. 723; Logan v. United States, 144 U. S. 302; 
 United States v. Hall, 53 Fed. 352; Connecticut Ins. Co. v. Trust Co., 112 
 U. S. 250; Brugnier v. United States, 1 Dak. 5, an Indian held competent. 
 
 ST Logan v. United States, 144 U. S. 263; United States v. Hall, 53 Fed. 
 352. 
 
 88 Potter v. Bank, 102 U. S. 165; Connecticut Ins. Co. v. Schaefer, 94 U. S. 
 458; Stephens v. Bemay, 42 Fed. 488. 
 
 89 Lucas v. Brooks, 18 Wall. 436; Packet Co. v. Clough, 20 Wall. 528; 
 Dean v. Metropolitan Ry. Co., 119 N. Y. 540. 
 
 « See the statutes of the jurisdiction. 
 
 «Cal. Code Cr. Proc. § 1881; Rev. Stat. Wis. § 4072; Rev. Stat S. D. 
 § 6491; N. D. Rev. Codes, 1905 § 7253; N. Y. Code § 831; Wolford v. Farn- 
 ham, 44 Minn. 159; Eaton v. Knowles, 61 Mich. 625. 
 
932 THE LAW OF BVIDENCB. § 746 
 
 between the husband and wife during marriage, although in. a few, 
 the language of the statute is "confidential communications,"*^ or 
 "private communications."*^ 
 
 § 746 (764). Same, continued. — ^We have already discussed the 
 exception under which one spouse wa^ allowed to testify against 
 the other in ease of criminal prosecution for personal injury to 
 the witness. In nearly every state, this exception has been pre- 
 served, in many instances by express statute. In some states, the 
 statute has somewhat enlarged the scope of this common law ex- 
 ception. In various states the wife by statute may testify against 
 the husband in criminal actions for ahandomnent, ** and in others 
 in actions for bigamy.*^ It will be found that the statutes quite 
 generally permit husband and wife to testify in civil actions be- 
 tween themselves, as in actions for divorce, or in controversies re- 
 specting property rights. In some instances, the statute makes 
 such provision in specific terms; in others, the statute provides in 
 general terms that parties to an action may testify in their own 
 behalf, or that all persons, with certain designated exceptions, are 
 competent. In a few states, the distinction is made by statute 
 that, with certain exceptions, husband and wife may be witnesses 
 for, hut not against each other.^^ In New York, the court held, 
 in construing such a statute, that, where a defendant on trial for 
 murder objected to having his wife sworn as a witness for the 
 prosecution, the jury might properly infer that the testimony 
 would have been unfavorable.*' And in another case it was held 
 that where the wife had testified for the husband, defendant in a 
 murder case he had the right to object to confidential communica- 
 tions, and that it was not merely her privilege to object.*' In some 
 
 «Rev. Stat. Wis. § 4072; N. Y. Code § 831; R. S. Mo. § 2637; R. S. 
 N. C. § 588; Dig. Laws, 1896, Penn. Pepper & Lewis, Witnesses, § 4; W. 
 Va. Code, 3d Ed. 1891, ch. 130 § 22. See § 735, supra. 
 
 43 Mass. Rev. Laws, 1902, ch. 175, p. 1577. 
 
 44 111. R. S. 1905, Hurd, ch. 68, § 25, p. 1149 (L. 1903 p. 155); Ga. Crim. 
 Code, § 1101; Vt. Stats. 1902, No. 123. 
 
 46 Mich. Acts 1897, No. 212. 
 
 48 Iowa, Ann. Code, 1897, §§ 4606, 4607; Parcell v. McReynolds, 71 Iowa, 
 623; Texas Crim. Code (Willson), § 1896, art. 775; Ohio R. S. 1898, 
 § 7284; Penal Code N. Y. 1881, § 715; Gen. Stats. N. J., 1896, Evidence, § 51; 
 Gen. Stats. Kansas 1897, ch. 102, § 217; General Laws Mis.s. 1892, § 1739. 
 Stats, of Neb. § 5965; Stats, of Tex. § 775; W. Va. ch. 130, § 22. 
 
 « People V. Hovey, 92 N. Y. 554. 
 
 48 People V. Wood, 126 N. Y. 24S, 27 N. E. 362. See under Cal. statutes, 
 People V. MuUings, 83 Cal. 138, 2} Pac. 229. 
 
§ 747 COMPETENCY OP WITNESSES. 933 
 
 jurisdictions, the incompetency of the husband or wife as a witness 
 may, with certain restrictions, be waived by the consent of the 
 other spouse.*^ In Minnesota, it was held under such a statute 
 that, where a wife, the defendant, had objected to the examination 
 of her husband as a witness, and refused her consent, she might 
 still caJl him as her own witness.^" The California statute is as 
 follows: "A husband cannot be examined for or against his wife, 
 without her consent, nor a wife for or against her husband, with- 
 out his consent ; nor can either, dtiring the marriage or afterwards, 
 be, without the consent of the other, examined as to any communi- 
 cation made by one to the other during the marriage; but this ex- 
 ception does not apply to a civil action or a proceeding by one 
 against the other; nor to a criminal action or proceeding for a 
 crime committed by one against the other. ' ' °^ This statute is 
 given for the reason that it has been substantially adopted by a 
 group of states; and it well illustrates the tendency of modem 
 legislation on the subject."^ 
 
 § 747 (765). General tendency of the statutes. — ^From the wide 
 diversity of statutes in the different jurisdictions, it sufficiently 
 appears that the practitioner must become familiar with the stat- 
 ute of the forum, and observe the changes which have been made 
 from the common law rule. It may be added that the tendency 
 of legislation is undoubtedly toward the removal of the common 
 law disabilities. Modem legislation has greatly enlarged the pow- 
 ers of married women in respect to making contracts, the bringing 
 of actions and in the control of their property and person. The 
 right to make contracts, and to bring actions is, in some cases, a 
 barren one, unless accompanied by the right to give testimony in 
 its support; and it has been generally found necessary that those 
 who are parties should be competent witnesses.^' The fact that 
 married women are far less dependent, than formerly, upon the 
 
 *» Maine, Rev. Stat. § 107, p. 751; Michigan, Comp. L. § 4340, Minnesota, 
 Stat. 1894, § 5662, parg. 1. "Wolford v. Farnham, 44 Minn. 159; Fitzgerald 
 V. Meyer, 37 Neb. 50; California, Rev. Stat. § 1881; Blanohard v. Moors, 
 85 Mich. 380; Oregon, B. & C.'s Codes & Stat. 1902, § 724. In some states 
 such consent only relates to confidential communications, Wisconsin, Rev. 
 Stat. § 4072; New York, Code § 831. 
 
 60 Wolford V. Farnham, 44 Minn. 159. 
 
 Bi California Code Civ. Proc. § 1881. 
 
 52 Compare the statutes of Dakota, Oregon, Idaho, Arizona, Nevada, 
 Montana, Washington, Colorado and Minnesota. 
 
 63 Kingsbury v. Buckner, 134 U. S. 650. 
 
934 THE LAW OF E-PIDBNCE. § 748 
 
 caprice of their husbands, in respect to their control of person, 
 property and children, may, at least to some extent, remove the 
 objection to the disclosure even of communications made during 
 marriage. It may be conceded that there are objections to any 
 policy which may compel husband and wife to appear in court 
 in an attitude of hostility to each other. On the other hand, there 
 are objections to arbitrary rules of evidence which suppress the 
 truth in the administration of justice. In very many branches of 
 the law of evidence, ancient rules excluding certain classes of tes- 
 timony have been compelled to yield ; and it would be by no means 
 surprising, if, in the near future, the competency of husband and 
 wife as witnesses would cease to be questioned, except as to those 
 confidential communications with each other which are induced by 
 the martial relation, and except as to the exclusion of one spouse 
 as a witness against the other in criminal cases."* Indeed, in Eng- 
 land and in a few states, the rule has already been adopted that 
 husband and wife are competent to testify for or against each 
 other in civil actions as to all facts except confidential communica- 
 tions. 
 
 § 748 (766). Attorneys not allowed to disclose confidential 
 communications. — It is a familiar and long established rule of 
 the common law that an attorney or counselor cannot disclose com- 
 munications made by his client to him or the advice given by him 
 in the course of his professional employment, without the consent 
 of the client."" Mr. Stephen illustrates the scope of the rule in a 
 
 64 The statutes of the various states will be found cited in Wigmore, 
 Bv. § 488. 
 
 »5 Ciirao v. Reinicker, 11 Wheat. 2S0; Brayier v. Fortune, 10 Ala. 516; 
 Stephens v. Mattox, 37 Ga. 289; Dietrich v. Mitchell, 43 111. 40, 92 Am. 
 Dec. 99; Bowers v. Briggs, 20 Ind. 139; Crisler v. Garland, 19 Miss. 136; 
 Gray v. Fox, 43 Mo. 570, 97 Am. Dec. 416; Stuyvesant v. Peckham, 3 Edw. 
 C!h. (N. Y.) 579; Bank of Utioa v. Mersereu, 3 Barb. CJh. (N. Y.) 528, 49 
 Am. Dec. 189; Jahnke v. State, 68 Neb. 154, 94 N. W. 158; Booney v. Mary- 
 land Casualty Co., 184 Mass. 26, 67 N. E, 882 ; George v. Hurst, 31 Ind. App. 
 660, 68 N. B. 1031; State v. Gosey (La.), 35 So. 786; Miller v. Weeks, 22 
 Pa. St. 89; Dowell v. Dowell, 3 Head (Tenn.) 502; Bacon v. Frisbie, 80 
 N. Y. 394, 36 Am. Rep. 627; Truelove v. State (Tex.), 71 S. W. 600. For 
 an extended review of the early English cases, see Whiting v. Barney, 30 
 N. Y. 330. See notes, 36 Am. Rep. 631, 6 L. B. A. 481, 66 Am. St. Rep. 
 213-243. The rule applies to comunications to a judffe who gives advice 
 as to what to do. People v. Pratt, 133 Mich. 125, 94 N. W. 752, 67 L. R. A. 
 923 and note. Rule does not apply when he is acting as attorney for 
 T)Oth parties, Harris v. Harris, 136 Cal, 379, 69 Pae. 23; Mitchell v. Mitchell, 
 
§ 749 COMPETENCY OF WITNESSES. 935 
 
 striking manner, and yet without the slightest exaggeration, when 
 he says: "A man may, with perfect safety, tell a barrister or at- 
 torney in his professional capacity that he has committed murder 
 or treason." °° It is natural enough that such a rule should have 
 received severe criticism; and it is one of those rules of the com- 
 mon law which Mr. Bentham vigorously assailed."' But communi- 
 cations of this character are stiU held privileged both in the courts 
 of Englajid and of America. The rule is not based upon any dis- 
 position to favor or confer privileges upon attorneys, but "it is 
 out of regard to the interests of justice which cannot be upholden, 
 and to the administration of justice which cannot go on, without 
 the aid of men skilled in jurisprudence, in the practice of the 
 courts and in those matters affecting rights and obligations which 
 form the subject of all judicial proceeding." °' It is deemed less 
 dangerous that there should be an occasional failure of justice 
 than that no person should feel at liberty to state to his lawyer, 
 without concealment or reservation, the facts constituting his cause 
 of action or defense. "Truth, like all other good things, may be 
 loved unwisely, may be pursued too keenly, may cost too much; 
 and surely the meanness and the mischief of prying into a man's 
 confidential consultations with his legal adviser, the general evil 
 of infusing reserve and dissimulation, uneasiness, suspicion and 
 fear into those communications which must take place, and which, 
 unless in a condition of perfect security, must take place uselessly 
 or worse, are too great a price to pay for truth itself." °° 
 
 § 749 (767). Same — The privilege that of the client — ^Not con- 
 fined to cases pending. — Since the privilege rests on grounds of 
 public policy, and is indispensable to the administration of jus- 
 tice, the right is not that of the attorney, but that of the client. 
 Hence, the rule remains the same, although the attorney is willing 
 to disclose the facts; he cannot be allowed to make such disclo- 
 sure, except by the consent of his client^" Nor does the trial judge 
 
 212 Pa. 62, 61 Atl. 570; or when he is acting as agent for one of the parties, 
 Koeber v. Somers, 108 Wis. 497, 84 N. W. 991. 
 
 6s General View of the Criminal Law, by J. F. Stephen, 293. 
 
 67 Bentham, Rationale of Judicial Evidence. 
 
 68 Greemough v. Gaskell, 1 Mylne & K. 103. 
 
 eopearse v. Pearse, 1 De Gex & S. 28; Bolton v. Corp. of Liverpool, 1 
 Mylne & K. 94; Connecticut Mut. Ins. Cb. v. Schaefer, 94 U. S. 457; Whiting 
 V. Barney, 30 N. Y. 341. 
 
 «o Qreenough v. Gaskell, 1 Mylne & K. IQl; Chirac v. Reinicker, %X 
 
936 THE LAW OP EVIDENCB. § 749 
 
 necessarily wait for the question to be raised by counsel or client, 
 but may enforce the privilege of his own motion.'^ The privilege 
 is not confined to communications given in respect to cases actually 
 pending. The litigation- may be only anticipated, or it may have 
 terminated; it is suiScient that the communication has been made 
 by the client to his legal adviser for the purpose of professional 
 aid in respect to matters in which such aid may properly be given, 
 and in respect to which litigation may possibly arise."^ Many in- 
 stances might be cited illustrating the well settled rule that the 
 communications are not confined to those made to counsel and 
 attorneys in relation to the prosecution or defense of suits at law, 
 although many of the earlier cases made such a restriction.^' The 
 client may claim the benefit of the rule, although no fee has ieen 
 paid, or although there has been no formal retainer."* The privi- 
 
 Wheat. 293; Jenkinson v. State, 5 Blackf. (Ind.) 465; Foster v. Hall, 12 
 Pick. 89, 22 Am. Dec. 400; Tays v. Carr, 37 Kan. 141; Swain v. Humphreys, 
 42 111. App. 370, Bull, N. P. 248. The privilege is that of the client, not of 
 a stranger. Appeal of McNulty, 135 Pa. 210, 19 Atl. 936; client called on hy 
 court, If he consented, where attorney objected, held no error, McCooe v. 
 Railway Co., 173 Mass. 117, 53 N. B. 133. As to inferences to be drawn 
 from claim of privilege. Id. 
 
 61 People v. Atchison, 40 Cal. 284. 
 
 82 Walsingham v. Goodriche, 3 Hare, 124; DeSborough v. Rawlins, 3 
 Mylne & C. SI'S; Greenough v. Gaskell, 1 Mylne & K. 98; Bacon v. Frisbie, 
 80 N. Y. 394, 22 Am. Dec. 400; Wetherbee v. Ezekiel, 25 Vt. 47; Parkhurst 
 v. McGraw, 24 Miss. 134; Bank of Utica v. Mersereau, 3 Barb. Ch. (N. Y.) 
 528, 49 Am. Dec. 189; Alkens v. Kilburn, 27 Me. 252; Johnson v. Sullivan, 
 23 Mo. 474; Parker v. Carter 4 Munf. (Va.) 273, 6 Am. Dec. 513; Beltz- 
 hoover v. Blackstock, 3 "Watts (Pa.) 20, 27 Am. Dec. 330; Poster v. Hall, 
 12 Pick. 89, 22 Am. Dec. 400; Dudley v. Beck, 3 Wis. 274; State v. James, 
 34 S. C. 49; McL«llan v. Longfellow, 32 Me. 496, 54 Am. Dec. 599; Peek v. 
 Boone, 90 Ga. 767; Denver Tram Co. v Owen, 20 Colo. 107; Carter v. West, 
 93 Ky. 211. This rule has been held to apply to statements made by 
 the client to his attorney while drawing a deed, Parker v. Carter, 4 Munf. 
 (Va.) 273, 6 Am. Dec. 513; Barry v. Oorille, 7 N. Y. S. 36; or the assign- 
 ment of a mortgage, Moore v. Bray, 10 Pa. St. 519; or a warrant of attorney, 
 Bank of Utica v. Mersereau, 3 Barb. Ch. (N. Y.) 595, 49 Am. Dec. 189; or 
 an affidavit, Williams v. Fitch, 18 N. Y. 546; Hermandez v. State, 18 Tex. 
 App. 134, 51 Am. Rep. 295; or while discussing contents of insurance policy. 
 Freeman v. Brewster, 93 Ga. 648, 21 S. E. 165. 
 
 es Williams v. Mudie, 1 Car. & P. 158; Cromack v. Heathcate, 4 Moore 
 358; Broad v. Pitt. 3 Car. & ■?. 518; Whiting v. Barney, 30 N. Y. 330, 86 
 Am. Dec. 385, and cases cited. 
 
 «4 March v. Ludheim, 3 Sandf. Ch. (N. Y.) 35; McManus v. State, 2 
 Head (Tenn.) 213; Sargent v. Hampden, 38 Me. 581; Sheehan v. Allen, 
 
§ 749 COMPETENCY OF WITNESSES. 937 
 
 lege has been recognized, even in cases wliere the attorney did not 
 consider that he was acting as counsel, when the circumstances 
 were such as to show that the relation of attorney and client actu- 
 ally existed. ' ' Communications made to an attorney in the course 
 of any personal employment, relating to the subject thereof, and 
 which may be supposed to be drawn out in consequence of the 
 relation in which the parties stand to each other are under the seal 
 of confidence, and entitled to protection as privileged communica- 
 tions.'"' In order that the communication should be privileged it 
 should be made as part of the purpose of the client to obtain advice. 
 The privilege does not concern mere strangers or impertinent com- 
 munications."" Although the burden of showing that the communi- 
 cation is privileged rests on the one asserting the facts," whenever 
 the communication relates to a matter so connected with the 
 employment as attorney as to afford a presumption that it was 
 drawn out by the relation of attorney and client, it is privileged 
 from disclosure."' The privilege exists, although there is no in- 
 junction of secrecy;"" and communications made to the district 
 attorney or other public prosecutor are governed by the same rule, 
 and, if there is any difference, the confidence reposed in the attorney 
 in such cases, is even more sacred than that reposed in others." 
 
 67 Kan. 712, 74 Pac. 245; Hunter v. Vam Bomhorst, 1 Md. 504; Foster v. 
 Hall, 12 Pick. 89, 22 Am. Dec. 400; Earle v. Grant, 46 Vt. 143; Croos v. 
 Riggins, 50 Mo. 335; Bacon v. Prisbie, SO N. Y. 394, 36 Am. Rep. 627, cases 
 cited and note; Denver Tram Co. v. Owens, 20 Colo. 107, 36 Pac. 848; MacK 
 V. Sharp, 138 Mich. 448, 101 N. W. 631; Davis v. Morgan, 19 Mont. 141, 
 4 Pac. 793; Bruley v. Garvin, 105 Wis. 625, 81 N. W. 1038. 
 
 65 Bacon V. Frisbie, 80 N. Y. 394, 36 Am. Rep. 627; Getzlaff v. Seliger, 43 
 Wis. 297; Mowell v. Van Buren, 77 Hun (N. Y.) 569. 
 
 ««Mackel v. Bartlett, 33 Mont. 123, 82 Pac. 795; In re Elliott, 73 Kan. 
 151, 84 Pac. 750; Hanson v. Bean, 51 Minn. 546, 53 N. W. 871, 38 Am. St. 
 Rep. 516. 
 
 67 Earle v. Grant, 46 Vt. 113; Sharon v. Sharon 79 Cal. 633; Mowell v. 
 Van Buren, 77 Hun (N. Y.) 569. 
 
 ssTurguand v. Knight, 2 M. & W. 98; Bacon v. Frisbie, 80 N. T. 394, 36 
 Am. Rep. 627; National Bank v. Delano, 177 Mass. 362, 58 N. E. 1079, 83 
 Am. St. Rep. 281. 
 
 esMcLellan v. Longfellow, 32 Me. 494, 54 Am. Dec. 599; Wheeler v. Hill, 
 16 Me. 329. 
 
 ToVogel V. Gruaz, 110 TJ. S. 311; Oliver v. Pate, 43 Ind. 132; Marks v. 
 Beyfus, 25 Q; B. Div. 494; State v. Houseworth, 91 la. 740, 60 N. W. 221. 
 But see. Cole v. Andrews, 74 Minn. 93, 76 N. W. 962; Cobb v. Simon, 119 
 Wis. 597, 97 N. W. 276, 100 Am. St. Rep. 909. 
 
938 THE LAW OF EVIDENCE. § 750 
 
 § 750 (768). Same — ^Duration — Client may claim the privilege 
 — Extends to writings. — Matters thus disclosed in professional 
 confidence cannot be revealed by the attorney, although the litiga- 
 tion has ceased or the relation of attorney and client has been ter- 
 minated by death or otherwise, or although the testimony is offered 
 in an action between other parties.''^ The client, as well as the 
 attorney, may refuse to testify to communications of the character 
 under discussion, as the rule would be of no value, if it might be 
 evaded by compelling the client to disclose that which the attorney 
 is bound to withhold.''^ This privilege extends even to those cases 
 where the client offers himself as a witness in his own behalf.'" 
 The rule is not limited in its application to advice given or opin- 
 ions stated, but extends to all communications by either party, 
 whether oral or written, properly relating to the business in hand, 
 and to all documents, books, papers or instruments which may be 
 properly used by the client to convey professional information to 
 his attorney.''* On the same principle, the privilege extends to 
 a statement of facts or a case prepared for the purpose of obtain- 
 ing the advice of counsel,'^ and to the opinion of counsel based 
 upon such statement.'^ So whenever the client would be exempted 
 from producing title deeds or documents of any kind, the attorney 
 will not be compelled to produce such documents, if they have 
 
 71 Rex V. Withers, 2 Camp. 57S; Struckmeyer v. Lamb, 75 Minn. 366, 
 77 N. W. 987; Foster v. Hall, 12 Pick. 89, 22 Am. Dec. 400; Whitney v. 
 Barney, 38 Barb. (N. Y.) 393. See § 761 infra. 
 
 72 state V. White, 19 Kan. 445, 27 Am. Rep. 137; Bigler v. Reyher, 43 
 Ind. 112; Hemenway v. Smith, 28 Vt. 701. 
 
 '3 Duttenhofer v. State, 34 Ohio St. 91, 32 Am. Rep. 362; Bigler v. Reyher, 
 43 Ind. 112; Barker v. Kuhn, 38 Iowa, 395; Hemenway v. Smith, 28 Vt. 
 701; State v. White, 19 Kan. 445, 27 Am Rep. 137 and note. Contra, 
 Woburn v. Henshaw, 101 Mass. 193, 3 Am. Rep. 333. A witness may be 
 asked if he has told his attorney certain facts that he has given in evi- 
 dence. State v. Tall, 43 Minn. 273. 
 
 7* Crosby v. Berger, 11 Paige (N. Y.) 377, 42 Am. Dec. 117; Durktie v. 
 Leonard, 4 Vt. 612; Anonymous, 8 Mass. 370; Lynde v. Judd, 3 Day, 
 (Conn.) 499; Mills v. Oddy, 6 Car. & P. 728; Lengsfield v. Richardson, 52 
 Miss. 443; Selden v. State, 74 Wis. 271, 17 Am. St. Rep. 144; Nelson v. 
 Becker, 32 Neb. 99; Mathews v. Hoagland, 48 N. J. Eq. 455. See note, 66 
 Am. St. Rep. 232 et seq. 
 
 70 Bolton V. Corp. of Liverpool, 1 Mylne & K. 88; Bacon v. Frisbie, 80 
 N. Y. 394, 36 Am. Rep. 627 and note. But the privHege does not extend 
 to fictitious cases, Haley v. Bank, 21 Nev. 127. 
 
 76 Hughes V. Biddulph, 4 Russ. 190; Lord Walsingham v. Qoodriche. 3 
 Hare, 122. 
 
§ 750 COMPETENCY OF WITNESSES. 939 
 
 been intrusted to his care by reason of the relation of attorney and 
 client, nor wiU he be required to testify as to their contents," or 
 to disclose any information obtained from hooks or papers shown 
 to him by the client, or placed in his hands in his character as 
 counsel.'* But the attorney may be called as a witness to prove 
 the existence of such a document, and that it is in his possession, 
 so as to entitle the opposite party, after due notice to produce and 
 a refusal, to give parol evidence of the contents." On the prin- 
 ciples which have been stated respecting oral communications be- 
 tween attorney and client, the protection does not include writ- 
 ten communications to a solicitor or attorney, unless received in 
 that capacity.*" Nor does it apply to written statements made 
 by third persons, although they are confidential.*'^ The question 
 of privilege is always to be determined by the court; *' and, if it 
 is alleged that documents are privileged, the court may inspect 
 them to determine that question.*' 
 
 77 Hibbard v. Knight, 2 Exch. 11; Volant v. Soyer, 13 C. B. 231, 76 B. C. 
 L. 230; Anonymous, 8 Mass. 370; Jackson v. Burtis, 14 Johns. 391; Lynde 
 V. Judd, 3 Day (Conn.) 499; Durkee v. Leland, 4 Vt. 612; Wilson v. Troup, 
 7 Johns. Ch. (N. Y.) 25, letters; Stokoe v. St. Paul & C. Ry. Co., 40 Minn. 
 545, 42 N. W. 482; Davis v. Railway Co. 70 Minn. 37, 72 N. W. 823; Selden 
 V. State, 74 Wis. 271, 17 Am. St. Rep. 144. 
 
 78 Crosby v. Berger, 11 Paige (N. Y.) 377, 42 Am. Dec. 117; Dover v. 
 Hawell, 58 Ga. 572; Arbuckle v. Templeton, 65 Vt. 205. Many.of the cases 
 cited to this section hold that documents are not privileged. If they come 
 into the possession of a third party by any means, even if they are stolen. 
 See also, Lloyd v. Mostyn, 10 M. & W. 481. But see, Ligett v. Gleen, 51 Fed. 
 381, which holds some unequivocal act on the part of the client necessary 
 to remove the privileged character of the document. 
 
 79 Jackson v. M'Vey, 18 Johns. 330; Brandt v. Klein, 17 Johns. 335; Durkee 
 V. Leland, 4 Vt. 612. As to execution of document. Chapman ▼. Peebles, 84 
 Ala. 283, 4 So. 273; delivery of deed, Rosseau v. Blean, 131 N. Y. 177, 30 
 N. E. 52, 27 Am. St. Rep. 578; date of document, Stambler v. Graves, 97 
 Wis. 515, 73 N. W. 48; Rundle v. Poster, 3 Tenn. Ch. 658. But see, Raefle v. 
 Moore, 58 Ga. 94. In such cases, the proper practice is to give notice to 
 produce, McPherson v. Rathbone, 7 Wend. 218; Stokoe v. St. Paul & 0. Ry. 
 Co., 40 Minn. 545. 
 
 80 Thomas v. Rawlings, 27 Beav. 140. 
 
 siHopklnson v. Lord Burghly, 2 L. R. (Ch.) 447; Bustros v. White, 1 Q. 
 B. Div. 423; Anderson v. Bank, 2 Ch. Dlv. 644. 
 
 82Chllds V. Merrill, 66 Vt. 302; McDonald v. McDonald, 142 Ind. 55, 41 
 N. E. 336; Press Pub. Co. v. Lefferts, 67 N. J. L. 172, 50 AU. 342; People's 
 Bank v. Brown, 112 Fed. 652. 
 
 83 Hughes V. Boone, 102 N. C. 137; Harris v. Dougherty, 74 Tex. 1. Con- 
 trd, Volant v, Soyer, 13 C. B. 231, 76 B. C. L. 230. 
 
940 THE LAW OF EVIDENCE. § 751 
 
 § 751 (769). Communications must be in the nature of profes- 
 sional intercourse. — It is clearly implied, from what has already 
 been stated, that the communication is not privileged, unless made 
 in the relation of professional intercourse.** Thus, the privilege 
 does not extend to information received by one in the character of 
 a friend and not as counsel ; *° nor to a simple inquiry made of' an 
 attorney as to the existence of a matter of fact ; *° nor to commu- 
 nications which do not relate to the subject matter of the consulta^ 
 tion;*^ nor to communications made to one erroneously supposed 
 to be an attorney ; '' nor to communications made to a solicitor of 
 patents ; '° nor to communications made to an abstracter of titles 
 who does not give professional advice, even though he be an attor- 
 ney ; '" nor to information gaiaed by the attorney from other 
 sources than from his client ; ®^ nor to statements made by a party 
 to one who assists him in justice court, but who is not an attor- 
 ney;'^ nor to statements made to one who has been formerly his 
 attorney, but is not such attorney at the time,®* nor to a commimi- 
 
 8* Sharon v. Sharon, 79 Cal. 633, 22 Pac. 26; In re Turner's Estate, 167 
 Pa. St. 609; Union Pac. Ry. Co. v. Day, 68 Kan. 726, 75 Pac. 1021. See note, 
 66 Am. St. Rep. 220. See also the cases below cited. 
 
 86 Coon y. Swan, 30 Vt. 6; Goltra v. Wolcott, 14 111. 89; Hoffman v. Smith, 
 1 Caines (N. Y.) 157; Lloyd v. Davis, 2 Ind. App. 170; McDonald v. McDon- 
 ald, 142 Ind. 55, 41 N. E. 336; State v. Swafford, 98 la. 362, 67 N. W. 284; 
 Romberg v. Hughes, 18 Neb. 579, 26 N. W. 351; Sargent v. Johns, 206 Pa. 
 St. 386, 55 Atl. 1051. 
 
 86 Piano Manfg. Co. v. Frawley, 68 Wis. 577, 32 N. W. 768; Allen v. Har- 
 risson, 30 Vt 219. 
 
 8' State V. Mewherter, 46 la. 88; Denunzio's Receiver v. Scholtz (Ky.), 
 77 S. W. 715. 
 
 88 Sample v. Frost, 10 Iowa, 266; Barnes v. Harris, 7 Cush. 576, 54 Am. 
 Dec. 734. iSut privileged If the statement is procured hy fraud, People v. 
 Barker, 60 Mich. 277, 27 N. W. 539, 1 Am. St. Rep. 501; State v. Russell, 83 
 Wis. 330, 53 N. W. 441. 
 
 89 Brungger v. Smith, 49 Fed. 124. 
 »o Stalling v. Hullum, 79 Tex. 4^1. 
 
 01 Marsh v. Keith, 1 Drew. & S. 342; Mackenzie v. Yeo, 2 Curt (U. S.) 
 866; Greenough v. Gaskell, 1 Mylne & K. 104; Crosby v. Berger, 11 Paige 
 
 (N. Y.) 377, 42 Am. Dec. 117; Ghillicothe Ry. Co. v. Jameson, 48 111. 281; 
 King V. Ashley, 179 N. Y. 106, 72 N. E. 106; General Electric Co. v. Jona- 
 than Clark & Sons Co., 108 Fed. 170; King v. Tunstall, 124 Ala. 268, 27 So. 
 420. 
 
 02 Brayton v. Chase, 3 Wis. 456. But it was held otherwise where the 
 person had been regularly employed in justice court for many years, Bene- 
 dict V. State, 44 Ohio St. 679. 
 
 03 Carroll v. Sprague, 59 Cal. 655. Nor to statements made to him before 
 his employment as attorney, State v. Smith (N. C), 50 S. B. 859. 
 
§ 751 COMPETENCY OF WITNESSES. 941 
 
 cation made to an attorney, after he has refused to take the ease 
 of the party making it.°* On the same principle, it is held that, 
 where an attorney is employed to draw a deed or other convey- 
 ance, but is in no way consulted as to the legal effect of the instru- 
 ment, he is not prevented by the rule under discussion from dis- 
 closing the statements made to him by the grantor."^ Since inter- 
 preters, agents, whether agents of the attorney or the client, clerks 
 and assistant attorneys must be sometimes employed as a means 
 of communication between attorney and client, the privilege ex- 
 tends to such statements as are made to them in the regular course 
 of their employment as such."" But it is held that statements 
 made to a student in a lawyer's office, who is not acting as an 
 agent or clerk, are not privileged.'^ Nor does the privilege extend 
 to third persons, not acting as agents of client or attorney, pres- 
 ent at a conference between attorney and client,"^ nor to interviews 
 
 oiTlielseii v. Dayton, 82 Iowa, 74, 47 N. "W. 891; Piano Manfg. Co. v. 
 Frawley, 68 "Wis. 577, 32 N. W. 768; Galtra v. Wolcott, 14 III. 89; Parley v. 
 Peebles, 50 Neb. 723, 70 N. "W. 231; Tucker v. Finch, 66 Wis. 17, 27 N. W. 
 817. Privilege allowed as to preliminary conferences though retainer de- 
 clined, Denver T. Co. v. Owens, 20 Colo. 107 36 Pac. 848; Peek v. Boone, 
 ■90 Ga. 769, 17 S. B. 66. 
 
 »5 Hatton v. Robinson, 14 Pick. 416, 25 Am. Dec. 415; DeWolf v. Strader, 
 26 111. 225, 79 Am. Dec. 371; Borum v. Fonts, 15 Ind. 50; Mutual Life Ins. 
 Co. V. Carey, 54 Hun (N. T.) 493; Caldwell v. Davis, 10 Colo. 481; Todd v. 
 Munson, 53 Conn. 579; Machette v. "Wauless, 2 Colo. 169; O'Neill v. Murray, 
 6 Dak. 107; Hebbard v. Haughian, 70 N. Y. 61; Aultman Co. v. Doggs, 50 
 Mo. App. 280; Hummel v. Kistner, 182 Pa. 216, 37 AU. 815; Later v. Hay- 
 wood, 12 Ida. 78, 85 Pac. 494. 
 
 9« Poster V. Hall, 12 Pick. 89, 22 Am. Deo. 400, citing English cases; 
 Landsberger v. Gorham, 5 Cal. 450; Taylor v. Forster, 2 Car. & P. 195; 
 Foote V. Hayne, 1 Car. & P. 545; Jackson v. French, 3 Wend. 337, 20 Am. 
 Dec. 699; Brand v. Brand, 39 How. Pr. (N. Y.) 193; Parker v. Carter, 4 
 Munf. (Va.) 273, 6 Am. Dec. 513; Andrews v. Solomon, 1 Peters C. C. 356; 
 Sibley v. Waffle, 16 N. Y. 180; Bingham v. Walk, 128 Ind. 164, 27 N. E. 483; 
 Fire Ass'n v. Fleming, 78 Ga. 733, 3 S. E. 420. 
 
 97 Barnes v. Harris, 7 Cush. 576, 54 Am. Dec. 734; Holmes v. Kimball, 22 
 Vt. 555; Schubkagel v. Dierstein, 131 Pa. 46, 18 Atl. 1059. 
 
 »8 Walker v. State, 19 Tex. App. 176; Goddard v. Gardner, 28 Conn. 172; 
 Hoy v. Morris, 13 Gray (Mass.) 519, 74 Am. Dec. 650; Jackson v. French, 
 3 Wend. (N. Y.) 337, 20 Am. Dec. 699; Cotton v. State, 87 Ala. 75; Springer 
 V. Byram, 137 Ind. 15; House v. House, 61 Mich. 69, 27 N. W. 858, 1 Am. 
 St. Rep. 570; People v. Buchanan, 145 N. Y. 1, 39 N. E. 846; Perry 
 V. State (Idaho), 38 Pac. 655; State v. Falsetta, 43 Wash. 159, 86 
 Pac. 168. But the presence of the third party does not qualify the at- 
 torney, Blount v. Kimpton, 155 Mass. 378, 29 N. E. 590, 31 Am. St. Rep. 
 554; Butler v. Payerweather, 91 Fed. 458; Tyler v. Hall, 106 Mo. 313, 
 
942 THE LAW OF EVIDENCE. § 752 
 
 overheard by third persons not in the presence of the attorney or 
 client.'* The same principle which protects the communication 
 between attorney and client from disclosure would seem to call 
 for the extension of the privilege to communications ietween the 
 party and his attorney and their witnesses wMde during necessary 
 preparations for trial. Several elementary writers have given 
 their approval to such an extension of the privilege, but it has 
 little support in the adjudicated cases.^ 
 
 § 752 (770). Same — Privilege does not extend to information 
 gained in a casual manner. — The rule does not extend to those 
 facts of which the attorney or solicitor gains knowledge in some 
 casual manner in the course of his employment, and which are not 
 communicated to him by the client.^ Thus, the attorney may be 
 required to testify as to what has occurred in open court,' or to 
 prove the handwriting of his client.* Said Lord Mansfield: "I 
 have known an attorney obliged to prove his client's having sworn 
 to and signed the answer upon which he was indicted for per- 
 jury." So the lawyer may testify as to his client's state of mind, 
 as that he was too imbecile at a given time to make communica- 
 tions respecting a will ; " or to the fact of his employment as attor- 
 new ; ° or the fact of the writing of a note by him in the presence of 
 
 27 Am. St Rep. 337. But see Scott v. Aultman Co., 211 111. 612, 71 N. B. 
 1112. But in controversies with tliird persons the rule is different, Gruber 
 V. Barker, 20 Nev. 453; Mclntyre v. COstello, 6 N. Y. S. 397; Root v. Wright, 
 84 N. Y. 72, 38 Am. Rep. 495. 
 
 »» Cotton T. State, 87 Ala. 75, 6 So. 396; Perry v. State, 4 Ida. 224, 38 Pac. 
 655; Basye v. State, 45 Neb. 261, 63 N. W. 811. Nor does privilege apply 
 to communications in presence of adverse party, Colt v. McConnell, 116 
 Ind. 256, 19 N. E. 106. 
 
 iWhart. Ev. (3d Ed.) § 594; Hare, Disc. (2nd Ed.) 151; Hageman, Priv. 
 Com. § 32. The contrary view seems to he taken in "Whitehead v. Gurney, 
 1 Younge, 541; Butros v. White, 1 Q. B. Div. 423; Anderson v. Bank, 2 Ch. 
 Div. 658; Martin v. Butchard, 36 L. T. 732; People v. Heart, 1 Cal. App. 16G, 
 81 Pac. 1018. 
 
 2 Aultman Co. v. Rltter, 81 Wis. 395, 51 N. W. 569. 
 
 3 Levers v. Van Buskirk, 4 Pa. St 309. 
 
 * Brown v. Jewett, 120 Mass. 215; Johnson v. Daverne, 19 Johns. 134, 
 10 Am. Dec. 198. 
 
 6 Daniel v. Daniel, 39 Pa. St. 191. Mental condition or state of intoxica- 
 tion not privileged. Wicks v. Dean, 103 Ky. 69, 44 S. W. 397; State v. Fitz- 
 gerald, 68 VL 125, 34 Atl. 429; Sheehan v. Allen, 67 Kan. 712, 74 Pa.c. 245; 
 Boyle V. Robinson, 129 Wis. 567, 109 N. W. 623. See § 467, infra. 
 
 • White T. State, 86 Ala. 69; Brigham v. McDowell, 19 Neb. 407. 
 
§ 752 COMPETENCY OP WITNESSES- 943 
 
 Ms client or to the payment of money ; '' or that he is in possession 
 of money or property belonging to the client ; ' or the name of the 
 person by whom he was retained, but not the objects or details of 
 such retainer ; " or that, in a former suit, a client called himself 
 by a certain name,^° and as to the amount of his fees, if relevant.^^ 
 He may state his own conversations with the adverse party,^^ or 
 conversations with the client which he intended should be com- 
 municated to others,^^ or those as to documents which the client 
 ordered him to give to another party,^* or conversations between 
 the plaintiff and defendant in his presence.^" In such cases, it 
 can hardly be claimed that the communications are made confi- 
 dentially or that either expects his statements to be concealed from 
 the other. And on the same principle, when the attorney assumes 
 the character of a subscribing witness to a deed or other iastru- 
 ment, he may be compelled to testify, not only as to its execution, 
 
 7 Chapman v. Peebles, 84 Ala. 283; Rahm v. State, 30 Tex. App. 310. 
 
 8 Williams V. Young, 46 Iowa, 140; State v. Gleason, 19 Ore. 159. 
 
 • Levy V. Pope, Moody & M. 410; Gower v. Emery, 18 Me. 79; Brown v. 
 Payson, 6 N. H. 443; CMracv. Reinicker, 11 Wheat. 280. 
 
 10 Com. v. Bacon, 135 Mass. 521.- 
 
 iiSmlthwick v. Evans, 24 Ga. 461; Shaughnessy v. Fog, 15 La. An. 330. 
 But on a charge of stealing silver coins, it was held that the attorney could 
 not be asked In what money he had been paid. State v. Dawson, 90 Mo. 149, 
 1 S. W. 827. 
 
 laSpencely v. Schulenburg, 7 East, 357; Ford v. Tennant, 32 L. J. (Ch.) 
 465; Gore v. Harris, 21 L. J. (Ch.) 10; Paddon v. Winch, 39 L. J. (Ch.) 
 627; Ney v. City of Troy, 3 N. Y. S. 679; McLean v. Clark, 47 Ga. 24. 
 
 13 Bruce v. Osgood, 113 Ind. 360; Henderson v. Terry, 62 Tex. 281; Fergu- 
 son V. McBean, 91 Cal. 63. 
 
 1* Rousseau v. Bleau, 131 N. Y. 177. 
 
 loCady v. Walker, 62 Mich. 157; Parish v. Gates, 29 Ala. 254; Murphy 
 V. Waterhouse, 113 C^l. 467, 45 Pac. 866, 54 Am. St. Rep. 365; House v. 
 House, 61 Mich. 69, 1 Am. St. Rep. 570 and note; Whiting v. Barney, 30 
 N. Y. 330, 86 Am. Dec. 385; Dunn v. Amos, 14 Wis. 106; Bauer v. Gazette, 
 79 Cal. 304; Tyler v. Tyler, 126 111. 525; Colt v. McConnell, 116 Ind. 249; 
 Wyland v. Griffith, 96 la. 24, 64 N. W. 673; Roper v. State, 58 N. J. L. 420, 
 33 Atl. 969; Appeal of Goodwin Co., 117 Pa. St. -514, 2 Am. St. Rep. 696; 
 Hurlburt v. Hurlburt, 128 N. Y. 420; Carey v. Carey, 108 N. C. 267; Denser 
 V. Walkup, 43 Mo. App. 625; Sparks v. Sparks, 51 Kan. 195; Hanson v. 
 Bean, 51 Minn. 546. So the attorney may be compelled to produce correS' 
 pondence between the parties, if in his possession, Harrisburgh Car Manfg. 
 Co. V. Sloan, 120 Ind. 156. Same as to joint attorney, Taylor v. Roulstone 
 (Ky.) 61 S. W. 354; Thompson v. Cashman, 181 Mass. 36, 62 N. B. 476; 
 Shove V. Martine, 85 Minn. 29, 88 N. W. 254; Doheny v. Lacy, 168 N. Y. 213, 
 61 N. E. 255. 
 
944 THE LAW OP EVIDENCB, § 753 
 
 but as to other facts, for example, as to alterations, as to time of 
 delivery, or whether it was antedated.^' 
 
 § 753 (771). Privilege not allowed in furtherance of crime. — 
 It is no part of the lawyer's duty to advise his clients in what 
 manner they may commit crime or fraud with impunity; hence, 
 the privilege does not extend to communications made in further- 
 ance of prospective criminal acts. "If the witness is employed 
 as an attorney in any unlawful or wicked act, his duty to the pub- 
 lie obliges him to disclose it. No private obligations can dispense 
 with that universal one which lies on every member of society to 
 disclose every design which may be formed contrary to the laws 
 of society to destroy the public welfare."^' It was held in New 
 York that the communications which an attorney, from the cir- 
 cumstances, must have known to relate to an intended fraud upon 
 creditors, were privileged. Chancellor Walworth in the opinion 
 of the court conceded that the privileged relation between attor- 
 ney and client ought to be permitted to exist only for honest pur- 
 poses, and not for the perpetration of fraud or violation of law, 
 but held reluctantly that, under the authorities, the statements in 
 question were privileged.^' It would seem, however, that the 
 
 "Bank of Utloa v. Mersereau, 3 Barb. Ch. (N. Y.) 528, 49 Am. Dec. 189; 
 Carlton v. Coombes, 32 L. J. (Ch.) 284; Kelly v. Jackson, 13 Ir. Eq. R. 129; 
 Patten v. Moor, 29 N. H. 163; Coveney v. Tannahlll, 1 Hill, 33, 37 Am. Dec. 
 287; O'Brien v. Spalding, 102 Ga. 480, 31 S. E. 100, 66 Am. St Rep. 202. 
 See § 756, infra. 
 
 IT Armesley v. Lord Anglesea, 17 How. St. Tr. 1229, 1240, 1243; Gartslde 
 V. Outram, 26 L. J. (Cli.) 113; Rusaell v. Jackson, 9 Hare, 392; Coveney v. 
 Tannahlll, 1 Hill, 30, 37 Am. Dec. 287; State v. Kldd, 89 la. 54, 56 N. W. 263; 
 State V. Faulkner, 175 Mo. 546, 75 S. W.-llS; Orman v. State, 22 Tex. App. 
 604, 5S Am. Rep. 662; People v. Van Alstyne, 57 Mich. 69; State v. MoChes- 
 ney, 16 Mo. App. 259; People v. Mahon, 1 Utah, 205; Bank v. Mersereau, ? 
 Barb. Ch. (N. Y.) 600; Mathews t. Hoagland, 48 N. J. Bq. 455. See notes, 
 36 Am. Rep. 631; 66 Am. St Rep. 237 et seq. So the privilege does not ex- 
 tend to comunicatlons in aid of a contemplated forgery, R. v. Avery, 8 Car. 
 & P. 596; R. V. Farley, 2 Car. & K. 313; People v. Blakely, 4 Park. Cr. (N. Y.) 
 176; or in futherance of a plan to obtain usurious interest, Dudley v. Beck, 
 3 Wis. 274; Woodruff v. Hurson, 32 Barb. (N. Y.) 557; or relating to the 
 penalty for a contemplated murder, Orman v. State, 24 Tex. App. 604, 58 
 Am. Rep. 662; Everett v. State, 30 Tex. App. 682. 
 
 18 Bank of Utica v. Mersereau, 3 Barb. Ch. (N. Y.) 528, 49 Am. Dec. 189 
 and cases there cited. The same rule was sanctioned in Vermont, Maxham 
 V. Place, 46 Vt. 434. A communication, otherwise privileged, should not be 
 received where the alleged fraudulent scheme is not at all manifest, Alex- 
 ander V. United States, 138 U. S. 353. 
 
§ 754 COMPETENCY OF WITNESSES. 945 
 
 principle is the same whether the comiminications relate to the 
 commission of offenses generally punishable by the criminal law 
 or to frauds upon creditors. If, in either case, attorney and client 
 enter into a conspiracy to violate the law, neither should be allowed 
 to conceal the unlawful purpose under the cloak of professional 
 privilege. There is no confidence as to the disclosure of iniquity.^" 
 There should be some independent proof of such wrongful pur- 
 pose; for the mere suggestion of fraud does not afford sufficient 
 ground for setting aside the general rule.^" 
 
 § 754 (772). Attorney may be witness for client — ^Litigation 
 between attorney and client, etc. — There is no rule of law which 
 prohibits the attorney of a party, prosecuting, or defending in a 
 civil action, from testifying at the call of his client. In some 
 cases, it may be unseemly, especially if counsel is in a position to 
 comment on his testimony, and the practice has often been 
 severely criticised by the courts.^^ Nevertheless the competency of 
 the attorney as a witness is conceded and there are often cases in 
 which it may be quite important, if not indispensable, that the 
 testimony should be admitted to prevent an injustice or to redress 
 a wrong. The practice is too common to require discussion or the 
 citation of authorities. In a few states statutes or rules of court 
 limit the right of attorneys to testify or to participate in the ar- 
 gument after testifying."^ It has frequently been held that the 
 rule as to privileged communications of attorneys does not apply 
 when litigation arises between attorney and client, and when their 
 communications are relevant to the issue ; "' and, if it is claimed 
 
 i«Gartside v. Outram, 26 L. J. (Ch.) 113; Coveney v. Tannahill, 1 Hill 
 33, 37 Am. Dec. 287. See full discussion, citing cases, Mathews v. Hoag- 
 land, 48 N! J. Eq. 455. 
 
 20 Higbee v. Dresser, 103 Mass. 523; Alexander v. United States, 138 U. 
 S. 353. 
 
 • 21 Stratton v. Henderson, 26 111. 68, 73, 76; Morgan v. Roberts, S8 111. 65, 
 85; Drach v. Kamberg, 187 111. 385, 58 N. E. 370; Frear v. Drinker, 8 Pa. 
 St. 520; McLaren v. Gillespie, 19 Utah, 137, 56 Pac. 680; Hardtke v. State, 
 67 Wis. 552, 30 N. W. 723. 
 
 22 Rules of the Supreme Jud. Court, in 72 Me. 566, 581; Regulae 
 Generales, Superior Courts of Jud. (No. 23) 6 N. H. 577, 580; Voss v. 
 Bender, 32 Wash. 566, 73 Pac. 697. 
 
 2s Naive v. Baird, 12 Ind. 318; Snow v. Gould, 73 Me. 540, 43 Am. Rep. 
 604; Mitchell v. Bromberger, 2 Nev. 345, 90 Am. Dec. 550; Minard v. Still- 
 man, 31 Or. 164, 49 Pac. 976, 65 Am. St Rep. 815. See note, 7 L. R. A. 
 (N. S.) 426. 
 60 
 
946 THE LAW OP EVIDENCE. § 755 
 
 that the attorney has an interest in the pending litigation, for in- 
 stance, that his fee is contingent on the result, he may he required 
 to state such fact, and the communications with his client relating 
 thereto.^* On the same principle, attorneys have been compelled 
 to disclose communications with their clients, when made parties 
 in supplemental proceedings ; ^^ and when an attorney, though 
 acting professionally, receives, at his client's request, a deed of 
 land and conveys it to a third party, no consideration being paid> 
 he may be compelled to disclose the facts.'"' 
 
 § 755 (773). Instructions for drawing wills. — ^By the weight of 
 authority, it is held that the reason of the general rule does not 
 apply to communications made to an attorney by a testator while 
 giving instructions for drafting a will; that the protection which 
 the rule gives is the protection of the client, and that it cannot be 
 said to be for the interest of the testator, in a controversy between 
 other parties, to have those declarations excluded which are rele- 
 vant, and which were necessary to the proper execution of his 
 vtall.^' Therefore after the death of the testator the attorney may 
 testify as to the facts relevant to the issue.^* This is especially 
 true when those attacking the will seek to take advantage of the 
 privilege.^' The attorney who has drafted a will may prove its 
 contents, if necessary to establish it as a lost will."* But, under 
 the statutes of New York, it has been held that testamentary dec- 
 larations made to an attorney, like other communications, are 
 
 24 Moats V. Rymer, 18 W. Va. 642, 41 Am. Rep. 703; Eastman v. Kelly, 
 1 N. T. S. 866; Strickland v. Capital City Mills, 74 S. C. 16, 54 S. B. 220, 7 
 L. R. A. (N. S.) 426. 
 
 26 State V. Gleason, 19 Ore. 159. 
 28 Hager v. Shindler, 29 Cal. 47. 
 
 27 Russell V. Jackson, 9 Hare 387; Blackburn v. Crawfords, 3 Wall. 175; 
 McCarthy's Will, 55 Hun. (N. Y.) 7, as to tlie sanity of the testator; In re 
 Wax's Estate, 106 Cal. 343; Doherty v. O'Callaghan, 157 Mass. 90, 31 N. B. 
 726, 34 Am. St. Rep. 258 and note; Glover v. Patten, 165 U. S. 394; Coates 
 V. Semper, 82 Minn. 460, 85 N. W. 217. See also, Jennings v. Sturdevant, 
 140 Ind. 641. But those communications which are not relevant are not 
 privileged, Sweet v. Owens, 109 Mo. 1. See notes, 17 L. R. A. 188; 66 Am. 
 St. Rep. 229 et seq. 
 
 28 Nelson's Estate, 132 Cal. 182, 64 Pac. 294; O'Brien v. Spalding, 102 Ga. 
 490, 31 S. E. 100, 66 Am. St. Rep. 202; Doherty v. O'Callaghan, 157 Mass. 
 90, 31 N. E. 726, 34 Am. St. Rep. 258; Downing's WiU, 118 Wis. 581, 95 N. 
 W. 876. 
 
 29 In re Layman's Will, 40 Minn 371. See also oases last cited. 
 
 so Graham v. O'Follon, 4 Mo. 338; Inlow v. Hughes (lad.), 76 N. E. 763. 
 
§ 756 COMPETENCY OF WITNESSES. 947 
 
 . privileged, and that the executor or other representative of the de- 
 ceased cannot waive the privilege or remove the seal of the statute.'' 
 But under such statutes, where the attorney signs the will as a 
 witness, this is construed as an express waiver of the privilege by 
 the testator.'* 
 
 § 756 (774). Waiver of the privilege. — From the very state- 
 ment of the general rule of exclusion, it is obvious that the privi- 
 lege is one which the client may waive by his consent, and such 
 waiver may be either express or implied.^^ Thus, as we have seen, 
 when the parties select the same attorney and make their communi- 
 cations in the presence of each other, each waives the privilege.'* 
 But, if the communications are made to several clients in matters 
 in which they are all interested, the attorney cannot afterwards 
 disclose such communications without the consent of all.'° When 
 statements are made to his attorney by one who has admitted his 
 conneietion with a crime and testified against another as an accom- 
 plice, the privilege is waived ; and such statements may be received, 
 like other statements made out of court to impeach the witness.'" 
 Such privilege is waived, if the client himself call the attorney as a 
 witness in respect to such eommnnieations," or requests him to be 
 a subscribing witness to a will, as this leaves the witness free to per- 
 form the duties of the, position, and to testify to any matt its in 
 relation to the will and its execution of which he acquired knowl- 
 
 «i Loder v. Whelpley, 111 N. Y. 239 ; Westover v. ^tna Ins. Co., 99 N. Y. 
 56, 5.2 Am. Rep. 1; Renlhan v. Dennin, 103 N. Y. 573, 57 Am. Rep. 770; 
 Gurley v. Park, 135 Ind. 440. See Fayerweather v. Ritcli, 90 Fed. 13. 
 
 82 See next section. 
 
 S3 See § 761 infra, where the rule as to the waiver of the privilege in the 
 case of confidential communication between physician and patient is dis- 
 cussed. See note 66 Am. St. Rep. 241. See also, the cases cited below. 
 Waiver in one trial is waiver for later ones, Green v. Crapo, 181 Mass. 55, 
 62 N. E. 956. Publication of matter iy client, waives privilege, In re 
 Bamett, 73 Kan. 609, 85 Pao. 575. Only the client can waive, Bingham v. 
 Walk, 128 Ind. 164, 27 N. B. 438. 
 
 3* See § 752 swpra and cases cited. 
 
 86 Whiting V. Barney, 38 Barb. (N. Y.) 393; Root v. Wright, 84 N. Y. 
 72, 38 Am. Rep. 495; Chahoon v. Com., 21 Gratt. (Va.) 822; Robson v. 
 Kemp. 4 Esp. 233, 5 Id. 52; Strode v. Seaton, 2 Adol. & Ell. 171; MeLeillan 
 V. Longfellow, 32 Me. 494, 54 Am. Dec. 599; Bank of Utica v. Mersereau, 
 3 Barb. Ch. (N. Y.) 528, 49 Am. Dec. 189. 
 
 86 People v. Gallagher, 75 Mich. 512, 42 N. W. 1063; Jones v. State, 65 
 Miss. 179. But see, Sutton v. State, 16 Tex. App. 490. 
 
 87 State V. Tall, 43 Minn. 273 ; Monaghan Bay Co. v. Dickson, 39 S. C. 146, 
 39 Am. St. Rep. 704; Alterti v. New York, L. E, & W. Ry. Co., 118 N. Y. 77. 
 
948 THE LAW OF EVIDENCE. § 758 
 
 edge, including the mental condition of the testator." The rule is 
 the same, if the client testifies to conversations with his attorney in 
 respect to the matters claimed to be privileged,^" or if the privi- 
 leged communication is received in evidence ivitJiout objection.*" It 
 has even been held that the client waives the privilege by merely 
 becoming a witness in his own behalf in respect to the other matters ; 
 that the cross-examination may then extend to conversations with 
 his counsel which would otherwise be privileged.*^ But the weight 
 of authority and the better reasoning sustain the contrary view.*^ 
 After the decease of the client the privilege may be waived by his 
 representatives.*^ 
 
 § 757 (775). Statutes on the subject. — ^In several of the states, 
 statutes have been enacted relating to this subject. Such statutes, 
 however, are generally declaratory of the common law rule, and 
 show no disposition to trench upon the ancient rule excluding 
 communications made in the relation of attorney and client. Most 
 of these statutes provide m substance that attorneys shall not be 
 allowed to disclose communications made to them by their clients, 
 or advice given thereon in the course of professional employment, 
 without the consent of their clients. In several states the statutes 
 expressly prohibit confidential clerks and stenographers from dis- 
 closing confidential communications properly intrusted to them in 
 a professional capacity. The detailed provisions of these statutes 
 must, in each case, be sought in the statutes of the jurisdiction. 
 
 § 758 (776). Communications to clergymen. — ^Although the 
 civil law did not compel the clergy to disclose secrets revealed to 
 them at the confessional and although this policy was often urged 
 
 ssMcMaster v. Scriven, 85 Wis. 162, 55 N. W. 149, 39 Am. St Rep. 828; 
 In re "Will of Coleman, 111 N. Y. 220, 19 N. EJ. 71; Daniel v. Daniel, 63 Pa. 
 St. 191; Denning v. Butcher, 91 la. 425, 59 N. W. 69; Mullin's Estate, 110 
 Cal. 252; 42 Pac. 645; Kern v. Kern, 154 111. 29, 55 N. E. 1004; Ooates v. 
 Semper, 82 Minn. 460, 85 N. W. 217; Brown v. Brown (Neb.), 108 N. W. 180. 
 
 38 Passmore v. Passmore's Estate, 50 Midi. 626, 45 Am. Rep. 62; Oliver 
 V. Pate, 43 Ind. 432; Hunt v. Blackburn, 128 U. S. 464. 
 
 10 Hoyt V. Hoyt, 112 N. Y. 513. 
 
 " Inhabitants of Wobum v. Henshaw, 101 Mass. 200. In State v. Tall, 
 43 Minn. 273, it was held that a witness, not a party, might be asked if he 
 had communicated to his attorney a fact as to which he had testified. 
 
 42 Duttenholer v. State, 34 Ohio St. 91, 32 Am. Rep. 362; Bigler v. Rey- 
 her, 43 Ind. 112; Baker v. Kuhn, 38 la. 395; Hemenway v. Smith, 28 Vt. 
 701; Bobo v. Bryson, 21 Ark. 387, 76 Am. Dec. 406; State v. White, 19 Kan. 
 445, 27 Am. Rep. 137 and note. 
 
 « Brooks V. Holden, 175 Mass. 137, 55 N. E. 802. 
 
§ 759 COMPETENCY OF WITNESSES. 949 
 
 upon the English judges, yet the common law recognized no 'privi- 
 lege in the case of eonfidenfiial communications or confessions made 
 to clergymen or other spiritual advisors.** In many states, however, 
 statutes have extended the privilege to confessions made to a cler- 
 gyman or priest in his professional character. Although these 
 statutes differ somewhat, that of New York may be quoted to show 
 their usual scope. It provides that: "A clergyman or other minister 
 of any religion shall not be allowed to disclose a confession made to 
 him in his professional character, in the course of discipline en- 
 joined by the rules or practice of the religious body to which he be- 
 longs." *° In some of the statutes it is, expressly provided that the 
 disclosure shall not be made without the consent of the person niak- 
 ing the confession. These statutes have seldom been construed ia 
 the courts, but it is evident that they are governed by the same gen- 
 eral principles as in the case of privileged communications to at- 
 torneys and physicians.*" As in the case of attorneys and physi- 
 cians, there is no protection, unless the confession is made to one 
 who is actually a clergyman or minister, and made to him in his pro- 
 fessional character." 
 
 § 759 (777). Communications between physician and patient — 
 Statutes. — Although there was no very good reason for the dis- 
 tinction at common law, no such privilege extended to communica- 
 tions with physicians as that which protected the confidemce of at- 
 torney and client.*' Hence, in the absence of stmtutes, physicians 
 are compelled to disclose communications, if relevant, although 
 made in confidence and in the course of professional employment. 
 The defect in the common law rule has been remedied by statutes 
 in many states of this country ; and there is considerable similarity 
 in the statutes of different states. Most of them provide that physi- 
 cians and surgeons cannot without the consent of the patient be ex- 
 amined as to any information acquired in attending the patient 
 
 ** For a statement of the arguments for and against the common law rule, 
 see, Whart Br. (3d Ed.) § 596; Greenl. Ev. § 247. 
 
 *6 Bev. Stat. N. Y. § 833. See the statutes of the jurisdiction. 
 
 *» Many of the cases bearing upon this subject will be found collected in 
 Hageman, Prlv. Com. oh. 15. 
 
 « People V. Gates, 13 Wend. 311; State v. Brown, 95 la. 381, 64 N. W. 277; 
 Hills V. State, 61 Neb. 589, 85 N. "W. 836; Colbert v. State, 125 Wis. 423, 104 
 N. "W. 61; State v. Morgan, 196 Mo. 177, 95 S. W. 402. 
 
 *8 Mahoney v. Insurance Co., L.. R. 6 C.- P. 252; R. v. Gibbons, 1 Car. & P. 
 97; Banigan v. Banigan, 26 R. I. 454, 59 Atl. 313. On this general subject, 
 see extended note, 17 Am. St. Rep. 665-571. 
 
950 THE LAW OF EVIDENOB. § 759 
 
 which was necessary for him to prescribe or act as a physician or 
 surgeon. In some statutes the rule is, made to apply to all cases, 
 in others to civil actions, and in a few the privilege is limited to 
 facts which might tend to blacken the character of the patient. 
 Of course, the practitioner must consult the statutes of the jurisdic- 
 tion. The burden is upon the one oljecUng to show that the relation 
 of physician and patient existed;" and where the physician is act- 
 ing in the discharge of duties performed for some other person, the 
 priAolege does not arise, for example, if any examination is 
 held at the instance of the adverse party,^" or by direction of the 
 court to ascertain the physical or mental condition of 'the person 
 for the purposes of the trial." But the privilegre arises if the phy- 
 sician aotitally treats the patient, whether employed by him or by 
 some other person.'^ Of course the .person rendering the service 
 must be a professional physician and the conversation must be had 
 in Ms professional capacity.^^ These statutes generally render 
 physicians incompetent to testify as to such "information," ac- 
 quired while attending the patient, as was necessary to enable him 
 to prescribe or act." Therefore the privilege includes facts learned 
 
 "People V. Schuyler, 106 N..Y. 2^8, 12 N. E. 783; Bowles v. Kansas City, 
 51 Mo. App. 416; Griffitlis v. Railway Co., 171 N. Y. 106, 63 N. B. 808. 
 
 BO People V. Sliney, 137 N. Y. 570, 33 N. E. 150; Nesbit v. People, 19 Colo. 
 441, 36 Pac. 221; People v. Glover, 71 Mich. 307, 38 N. W. 874; Freel v. Mar- 
 ket St. Cable Ry. Cb., 97 Cal. 40, 31 Pac. 730; State v. Height, 117 la. 650, 
 91 N. W. 935, 94 Am. St Rep. 323. 
 
 61 People v. Kemmler, 119 N. Y. 580, 24 N. E. 9; People v. Sliney, 137 N 
 Y. 570, 33 N. K 150; State v. McCoy (La.), 33 So. 730. 
 
 02 People V. Schuyler, 106 N. Y. 298, jail physician; New York, C. & St. L. 
 Ry. Co. V. Mushrush, 11 Ind. App. 192; Weits v. Mound City Ry. Co., 53 
 Mo. App. 39; Freel v. Market St. Cable Ry. Co., 97 C^l. 40; Batta v. Rail- 
 way Co., 124 la. 623, 100 N. W. 543, defendant's physlciaji; Meyer v. Su 
 preme Lodge, 178 N. Y. 63, 70 N. E. Ill; Muntz v. Railway Co., 25 Utah, 
 220, 70 Pac. 852. The rule applies even though the patient is not a party 
 to the suit or is dead. In re Meyer's Will, 184 N. Y. 54, 76 N. E. 920; and 
 though the physician did not consider himself still employed, while the 
 patient did, T. Patterson & Son v. Cole, 67 Kan. 441, 73 Pac. 54; and may 
 be raised in all proceedings of a judicial character, Dick v. Supreme Body, 
 138 Mich. 372, 101 N. W. 564. The testimony of a partner of the attending 
 physician was excluded in ^tna Life Ins. Co. v. Deming, 123 Ind. 384. 
 
 OS Dentists not included. People v. De France, 104 Mich. 563, 62 N. W. 
 709; nor drug clerks. Brown v. Railway Co., 6C Mo. 597; nor veterinary 
 surgeon, Hendershot v. Tel. Co., 106 la. 529, 76 N. W. 828, 68 Am St Rep 
 313. 
 
 54 See statute of jurisdiction. McRae v. Brickson, 1 Cal. App. 326 82 
 
'^^9 COMPETENCY OF WITNESSES. 
 
 951 
 
 by observation and by all the methods necessary to enable the phy- 
 sician to prescribe." Although, in some states, the statutes are 
 less general in form, and only exclude "communications" made by 
 the patient."' The statutes generally provide that the privilege 
 may be waived ly the consent of the patient, although, in some 
 states, the statutes contain no such clause. In those states where 
 the statutes provide in substance that the physician cannot be ex- 
 amined as to any information gained in the course of his profes- 
 sional relation with tiie patient, it is immaterial whether such in- 
 formation is gained from the words or communications of the pa- 
 tient, or whether it is the result of examination or observation, or 
 derived^ from the statements of those who may surround the 'pa- 
 tient. "The secrets of the sick chamber cannot be revealed, because 
 the patient was too sick to talk, or was temporarily deprived of his 
 faculties by delirium or fever, or any other disease, or because the 
 physician asked no questions. The statute seals the lips of the phy- 
 sician against divulging in a court of justice the intelligence which 
 he acqmred while in the necessary discharge of his professional 
 duty."" But he is a competent witness as to information or 
 knowledge acquired by him while acting in other than a professimal 
 capacity, even though he has previously been called to treat the pa- 
 
 Pac 209. In Wisconsin, the statute is that a physician Is not "compelled 
 to disclose any Information which he may have acquired In attending any 
 patient in a professional character," Rev. Stat. § 4075; In re Bruendl's 
 Will, 102 Wis. 45, 78 N. W. 169, discussion of statute. So in Arkansas 
 Rev. Stat. § 2862. A physician who has sent to ascertain the mental con- 
 dition of a person is competent, however. People v. Kemmler 119 N Y 580 
 
 s5Briggs v. Briggs, 20 Mich. 34, 41; Gartside v. Ins. Co., 76 Mo 446- Ed- 
 ington v. Ins. Co., 77 N. Y. 564, 571; Shafer y. Eau Claire, 105 Wis 244 81 
 N. W. 409; Prader v. Accident Ass'n, 95 la. 159 63 N W 601 
 
 -^e Indiana. Burns' Ann. St., 1907, § 505; la., Ann. Code, 'l897 § 4608 
 
 n^f r«f °,° I "^fJ"^^ ^- '"'• ''°' ' ^""^ ^^- ^-^ ^' H^^^ton y. Simpson; 
 115 Ind. 62, 7 Am. St. Rep. 409; Pennsylvania Mut. L. Ins. Co v Wiler 100 
 Ind. 92, 50 Am. Rep. 769; Patterson v. Cole, 67 Kan. 441, 73 Pac. 54- clrth- 
 age T. P. Co. v. Andrews, 102 Ind. 138, 52 Am. Rep. 653; Connecticut L 
 Ins. Co. v. Union Trust Co., 112 U. S. 250; Grattan v. Metropolitan L Ins' 
 •Co.. 80 N. Y. 281, 36 Am. Rep. 617; Prader y. National Ass'n. (Iowa) 63 n' 
 W. 601; Renihan v. Dennin, 103 N. Y. 573, 57 Am. Rep. 770- Gartside 
 v. Connecticut Mut. L. Ins. Co., 76 Mo. 446, 43 Am. Rep. 765- Kllng v Kan 
 sas City, 27 Mo. App. 231; Cooley y. Poltz, 85 Mich. 47. Statement made to 
 a physician as to circumstances of an accident were held privileged in Penn 
 sylvani^ Co. v. Marion, 123 Ind. 415. No privilege as to collateral matters 
 Hoyt V. Hoyt, 112 N. Y. 493, 20 N. E. 402. Contra, Birmingham Ry Co v' 
 Hale, 90 Ak. .8, .34 Am. St. Rep. 748. " ' ' 
 
952 THE LAW OF EVIDENCE. § 760 
 
 tient." On the same principle, the privilege extends, as in the case 
 of attorneys, to the communications necessarily made to the physi- 
 cian's assistants.^* 
 
 § 760 (778). Confined to information gained in the perform- 
 ance of professional duty. — Nearly all of the statutes on this sub- 
 ject require that the statements of the patient, in order to be priv- 
 leged, should be necessary for the performance of the professional 
 duty, although the mode of expressing such requirement varies in 
 the different states,''" and the fact that the statements are necessary 
 may ie inferred from the circumstances without formal proof. °^ 
 These statutes have frequently been construed; and it has been 
 held that communications or advice relating to the procuring of an 
 expected abortion or other crime are not "nectssary," within the 
 meaning of the statute, and are not privileged."^ When a patient 
 makes admissions to his physician in respect to the time at which 
 an alleged injury was received, siuch statements may be received, 
 unless it appears that they were necessary to obtain professional 
 advice or treatment."^ On the same principle, it has been held that 
 a physician who had attended a woman in confinement might dis- 
 close her statement to him that she was not married,"* as well as 
 such other statements, not necessary to the performance of his 
 
 58 Fisher v. Fisher, 129 N. Y. 654; Bower v. Bower, 14'2 Ind. 194, 41 N. B. 
 523; People v. Koemer, 154 N. T. 355, 48 N. E. 730; Herrles v. Waterloo, 
 114 la. 274, 86 N. W. 306. He Is also competent as expert to answer hypo- 
 thetical questions as to cause of injury, Crago v. Cedar Rapids, 123 la. 48, 
 98 N'. "W. 354. 
 
 59 Renihan v. Dennin, 103 N. Y. 573, 57 Am. Rep. 770 ; ^tna Ins. Co. v. 
 Deming, 123 Ind. 384. See § 751 supra. But this rule does not apply to an 
 attendant in an ambulance, Springer v. Byram, 137 Ind. 15. 
 
 80 See statute of jurisdiction. See People v. Schuyler, 106 N. Y. 298,, as 
 to the testimony of a physician who attended prisoners in jail. 
 
 61 Grattan v. Metropolitan Life Ins. Co., 80 N. Y. 281, 36 Am. Rep. 617. 
 
 62Hewett V. Prime, 21 Wend. 79; Seifert v. State, 160 Ind. 464, 67 N. B. 
 100, 98 Am. St Rep. 340; McKenzie v Banks, 94 Minn. 496, 103 N. W. 497. 
 But the rule is otherwise where the communication is not for an unlawful 
 purpose, as in case of a miscarriage to save life, Guptill v. Verback, 58 Iowa, 
 98, 12 N. W. 125. See also, People v. Brower, 53 Hun (N. Y.) 217. 
 
 63 Campau v. North, 39 Mich. 606, 33 Am. Rep. 433; Brown v. Rome, W. & 
 O. Ry. Co., 45 Hun (N. Y.) 439; Renihan v. Dennin, 103 N. Y. 573, 57 Am. 
 Rep. 770; Edington v. JSltna. L. Ins. Co., 77 N. Y. 564; Kansas City, Ft. S. 
 & M. Ry. Co. V. Murray, 55 Kan. 336. But see, Pennsylvania Ry. Co. v. 
 Marion, 123 Ind. 415. 
 
 »4 Collins V. Mack, 31 Ark. 684. 
 
§ 761 COMPETENCY OF WITNESSES. ' 953 
 
 duty, as have no reference to the condition of the patient." It is 
 impossible to declare any general rule which will determine ia all 
 eases what facts connected with the statement are privileged within 
 the rule, — and it would be difficult to reconcile the cases upon the 
 subject."' The physician may also testify to any knowledge ob- 
 tained from personal acquaintance with the deceased, either before 
 or after the relationship of physician and patient began, °^ or to the 
 simple fact that he has treated or attended the patient, and as to 
 the number of his visits."' When made defendant ia acrtdons of 
 malpractice the physician may testify as to the relevant facts."" 
 
 § 761 (779), Waiver of the privilege. — As we have seen, stat- 
 utes generally provide that the information shall not be disclosed 
 without the consent of the patient. The privilege is for his pro- 
 tection, and, if he aees fit, he may waive it either by express con- 
 sent or by calling the physician to testify as to the privileged mat- 
 ter,^" or by failing to object to such testimony as incompetent 
 under the statute." But it is generally held not a waiver for a 
 
 85 Collins V. Mack, 31 Ark. 684 ; Brown v. Metropolitan Ins. Co., $5 Mich. 
 306. 
 
 68 Incidental statements held privileged, Pennsylvania Co. v. Marion, 123 
 Ind. 415, 23 N. E. 973, 18 Am. St Rep. 330; Raymond v. Railway Co., 65 la. 
 152, 21 N. W. 495; not privileged, Kansas C. P. & S. M. R. Co. v. Murray, 
 55 Kan. 336, 40 Pac. 646; Cooley v. Poltz, 85 Mich. 47, 48 N. W. 176; Green 
 V. Railway Co., 171 N. Y. 201, 63 N. E. 958, 89 Am. St. Rep. 807. 
 
 67 Fisher v. Fisher, 129 N. Y. 654; Hoyt v. Hoyt, 112 N. Y. 515. 
 
 68Dittrich v. Detroit, 98 Mich. 245; Price v. Ins. Co., 90 Minn. 264, 95 N. 
 W. 1118; Patten v. United Life & Ace. Ins. Assn., 133 N. Y. 450; Bresien- 
 meister v. Supreme Lodge, 81 Mich. 525, 45 N. W. 977; Sovereign Camp v. 
 Grandon, 64 Neb. 39, 89 N. W. 448. 
 
 69 Cramer v. Hurt, 154 Mo. 112, 55 S. "W. 258, 77 Am. St. Rep. 752. See 
 Lane v. Boicourt, 128 Ind. 420, 27 N. B. 1111, 25 Am. St. Rep. 442. 
 
 70 Thompson v. Ish, 99 Mo. 160, 17 Am. St. Rep. 562; Groll v. Tower, 85 
 Mo. 249, 55 Am. Rep. 358; Carrington v. St. Louis, 89 Mo. 212; Morris v. 
 Morris, 119 Ind. 341; Alberti v. New York, L. E. & "W. Ry. Co., 118 N. Y. 77; 
 Pennsylvania M. L. Ins. Co. v. Wiler, 100 Ind. 92, 50 Am. Rep. 769; Grand 
 Rapids Ry. Co. v. Martin, 41 Mich. 667; McKinney v. Grand St. Ry. Co., 104 
 N. Y. 362. Wis. statute, the word "compelled" construed as "allowed," 
 Boyle V. Relief Ass'n., 95 "Wis. 312, 70 N. W. 351. See note, 17 Am. St. 
 Rep. 570. 
 
 71 Hoyt V. Hoyt, 112 N. Y. 493; Lincoln v. Detroit, 101 Mich. 245; State- 
 V. DejKwitor, 21 Nev. 107; Shelton v. Railway Co. (Tex.), 75 S. W. 338. But 
 see Perry v. Ins. Co. (Mich.), 106 N. W. 860. Where the objection has been 
 properly made a failure to repeat it does not constitute a waiver, Gabriel v. 
 McMullen, 127 la. 426, 103 N. W. 353. Merely stating that a certain physl- 
 
954 THE LAW OP EVIDENCE. § 761 
 
 party to testify as to his physical condition or state of health/^ 
 Where several physicians are called and examine the patient, at 
 the same time, the calling of one as a witness waives the privilege 
 as to the others/^ It has been held that, when the privileige has 
 once been waived and the testimony made public, it is waived for 
 all time.'* No unfavorable inference should be drawn from claim- 
 ing the privilege.''^ It has also been held that the privilege may be 
 waived, although the statute makes no provision for such waiver.''' 
 The rule has prevailed in New York, Indiana and Wisconsin that 
 the question of privilege may be raised by any party to the action, 
 unless waived by the patient himself, and that the representatives 
 of the deceased can not waive the seal of the statutes. It was eon- 
 ceded in New York that this rule often excluded evidence of great 
 importance in insurance and testamentary cases, but the court held 
 the statute to be imperative.''' By the weight of authority, how- 
 ever, it is held that, since the patient may waive the privilege for 
 the purpose of protecting his rights, the same waiver may be made 
 by those who represent him after his death, for the purpose of pro- 
 tecting rights acquired by him.''* But it has been held, in some 
 
 cian attended him does not constitute a waiver. May v. Railway Co., 32 
 Mont. 522, 81 Pac. 328. 
 
 '2 Green v. Nebagamain, 113 Wis. 508, 89 N. W. 520; McConnell v. Osage, 
 80 la. 293, 45 N. "W. 550; Williams v. Johnson, 112 Ind. 273, 13 N. E. 872. 
 
 T3 Morris v. Railway Co., 148 N. Y. 88, 42 N. E. 410, 51 Am. St. Rep. 675. 
 Not so if the visits are at different times, Miellor v. Railway Co., 105 Mo. 
 456, 16 S. W. 849. 
 
 74 McKinney v. Grand St. Ry. Co., 104 N. Y. 352, 10 N. E. 544, where tes- 
 timony was admitted on the second trial against the patient which he him- 
 self had offered on a former trial. The contrary rule was held in Brlesen- 
 meister v. Supreme Lodge, 81 Mich. 525, 45 N. W. 979; Burgess v. Sims 
 Drug Co., 114 la. 275, 86 N. W. 307, 89 Am. St. Rep. 359. 
 
 'sBracklney v. Fogle, 150 Ind. 535, 60 N. E. 303; McConnell v. Osage, 80 
 la. 293, 45 N. W. 550; Lane v. Railway Co., 21 Wash. 119, 57 Pac. 367, 75 
 Am. St. Rep. 821. 
 
 76Carrington v. City of St. Louis, 89 Mo. 208; Grand Rapids Ry. Co. v. 
 Martin, 41 Mich. 667. i 
 
 77 Westover v. .SJtna L. Ins. Co., 99 N. Y. 56, 52 Am. Rep. 1; Renihan v. 
 Dennin, 103 N. Y. 573, 9 N. E. 320, 57 Am. Rep. 770; Loder v. Whelpley, 111 
 N. Y. 239; Heuston v. Simpson, 115 Ind. 62, 7 Am. St. Rep. 409; Heaston v. 
 Kreig (Ind.), 77 N. E. 805; In re Will of Hunt, 122 Wis. 460, 100 N. W. 874. 
 But now by statute in New York, the representatives of deceased patients 
 may waive the privilege except as to the confidential communications, and 
 as to such facts as would tend to disgrace his memory, New York Laws 
 1892 oh. 514. 
 
 78 imompson V. Isb, 99 Mo. 160, 17 Am. St. Rep. 552; Pennsylvania M, 
 
§ 761 COMPETENCY OF WITNESSES. 955 
 
 states, that this privilege can not be waived by the heirs as the right 
 of waiver belongs to the personal representative alone.'* In case 
 an infant is a party, the privilege may be waived by the parent of 
 such miaor child.*" The statutes generally apply to criminal, as 
 well as to civil actions ; and the accused may claim, as privileged, 
 communications made by him to his physician in the course of pro- 
 fessional employment.'^ But in New York, in actions for murder, 
 it was held that the defendant could not invoke the privilege to ex- 
 clude the testimony of the physician who attended the victim, as to 
 his condition before death. It was the opinion of the court that 
 the object of the statute is "to protect the patient, and not to shield 
 one who is charged with his murder, and that, in such case, the 
 statute is not to be so construed as to be used as a weapon of de- 
 fense to the party so charged instead of a protection to his victim.*^ 
 The privilege under these statutes is frequently claimed in life in- 
 surance cases. It has sometimes been objected that the rule, as ap- 
 plied in some states in Hf e insurance cases, shuts out the most sat- 
 isfactory evidence of the existence of disease and of the cause of 
 death. Bu^, although such consideTations may have weight so far 
 as the policy of legislation is concerned, they can not control the 
 interpretation of the .statutes where the words are not ambiguousi.*^ 
 The privilege may, however, be waived by the party at the time the 
 contract of insurance was entered into,** or by his representative 
 after his death by inserting the statement of the physician in the 
 proof of death.'= 
 
 L. Ins. Co. v. Wiler, 100 Ind. 92, 50 Am. Rep. 769; Morris v. Morris, 119 
 Ind. 341, administrator with will annexed; Fraser v. Jennison, 42 Mich. 
 206, proponents of a will; Groll v. Tower, 85 Mo. 249, 55 Am. Rep. 358; 
 Masonic M. B. Assn. v. Beck, 77 Ind. 203, 40 Am. Rep. 295, beneficiaries in 
 an insurance policy; Denning v. Butcher, 91 la. 425, 59 N. W. 69, executor. 
 7» Gurley v. Park, 135 Ind. 440; In re Flint's Estate, 100 Cal. 391, 34 Pac. 
 863. But see Winter v. "Winter, 102 la. 53, 71 N. "W. 184, 63 Am. St. Rep. 
 428; Thompson v. Ish, 99 Mo. 160, 12 S. W. 510, 17 Am. St Rep. 552. 
 
 80 state V. Depoister, 21 Nev. 107. 
 
 81 People V. Murphy, 101 N. Y. 126, 54 Am. Rep. 661; People v. Schuyler, 
 106 N. Y. 298; People v. Lane, 101 Cal. 513. 
 
 82 Pierson v. People, 79 N. Y. 424, 35 Am. Rep. 530, case of murder by 
 poison; People v. Harris, 136 N. Y. 423, 33 N E. 65. See also, Hauk v. 
 State, 148 Ind. 238, 46 N. E. 127; State v. arimmell, 116 la. 596, 88 N. 
 W. 342. 
 
 S3 Connecticut L. Ina Co. v. Union Trust Co., 112 U. S. 250 ; Grattan v. 
 Metropolitan L. Ins. Co., 92 N. Y. 274, 44 Am. Rep. 372; Buffalo L. & T. Co. 
 V. Knghts Templar AsS'n, 126 N. Y. 450, 27 N. E. 942, 22 Am. St. Rep. 839; 
 McGowan v. Supreme Court, 104 Wis. 186^ 80 N. W. 603. 
 
 84AdTeveno v. Mutual Reserve Ass'n, 34 Fed. 870; Keller v. Ins. Co., 95 
 
956 THE LAW OF EVIDENCE. § 762 
 
 § 762 (7S0). Privileged communications — Affairs of state. — "No 
 
 one can be compelled to give evidence relating to any affairs of 
 state, or as to official communications between public officers upon 
 public affairs, except with the permission of the officer at the head 
 of the department concerned. ' ' *° Thus, it has been held that testi- 
 mony can not be received in order to prove a contract with the 
 president of the United States during the civil war, by the terms of 
 which secret services were to be rendered in giving information 
 respecting the resources and movements of the enemy, and that no 
 action on such a contract could be maintained.*^ On the same prin- 
 ciple, the heads of the departments of national or state govern- 
 ments cannot be compelled to produce letters or documents as 
 evidence, when, in their judgment, such production would be pre- 
 judicial to the public service.** Nor can disclosure of communica- 
 tions between the heads of the departments of state and their 
 subordinate officers be compelled.*" In an English case, it was held 
 that, in the first instance, the question is to be determined by the 
 officer at the head of the department, and that, unless he submits 
 the question to the court, the disclosure will not be compelled by 
 
 Mo. App. 627, 69 S. "W. 612; Foley v. Royal Arcanum, 151 N. Y. 196, 45 N. B. 
 456, 56 Am. St. Rep. 621; Fuller v. Knights of Pythias, 129 N. C. 318, 40 
 S. E. 65, 85 Am. St. Rep. 744; Trull v. Modern Woodmen of Am., 12 Ida. 
 318, 85 Pac. 1081; "Western Travelers' Accident Ass'n. v. Munson (Neb.), 
 103 N. W. 688. 
 
 SB Buffalo L. & T. Co. v. Knights Templar Ass'n, 126 N. Y. 450, 27 N. B. 
 942, 22 Am. St. Rep. 839; Nelson v. Ins. Co., 110 la. 600, 81 N. W. 807; Brie- 
 senmeister v. Supreme Lodge, 81 Mich. 525, 45 N. W. 977. Contra, Derier 
 V. Continental L. Ins. Co., 24 Fed. 670. As to nature of illness, Lammiman 
 V. Railway Co., 112 Mich. 602, 71 N. W. 153; Jones v. B. L. Assur. Co., 
 120 Mich. 211, 79 N. W. 204. 
 
 86 Steph. Ev. art. 112; Beatson v. Skene, 5 Hurl. & N. 838. 
 
 87 Totten v. United States, 92 XJ. S. 105. 
 
 88 Home V. Bentinck, 2 Bred. & B. 130; Dawkins v. Rokehy, Li. R. 8 Q. B. 
 255; Beatson v. Skene, 5 Hurl. & N. 838; Earl v. Vass, 1 Shaw, 229; Gray 
 V. Pentland, 2 Serg. & R. (Pa.) 23; Worthington v. Scribner, 109 Mass. 487, 
 12 Am. Rep. 736; In re Huttman, 70 Fed. 699; In re Weeks, 82 Fed. 729, 
 instructions to U. S. collectors; Boske v. Comingore, 177 U. S. 459, reports 
 to Federal collectors. In like cases, secondary evidence will not be received 
 of such papers. Gray v. Pentland, 2 Serg. & R. (Pa.) 23. 
 
 89 Wyatt V. Gore, Holt, 299, communications between the governor of a 
 province and his attorney-general; Anderson v. Hamilton, 2 Brod. & B. 15G 
 n., between an agent of government and secretary of state; United States 
 V. Six Lots, 1 Woods (Ui S.) 234, between a United States dlstrlct-at- 
 topn^ and the attorney-general. 
 
§ 763 COMPETENCY OF WITNESSES. 957 
 
 the court unless there is very conclusive evidence that it would not 
 be prejudicial to the public service."" In England, the privilege 
 also extends to the debates and the proceedings of parliment."^ The 
 law recognizes the duty of every citizen to communicate to the gov- 
 ernment and to its officers such information as he may have con- 
 cerning the commission of offenses against the laws ; and for the 
 purpose of encouraging the performance of that duty without fear 
 of consequences, the courts have long held that, when the govern- 
 ment is immediately concerned, a witness cannot be compelled to 
 disclose the names of persons by whom and to whom information 
 has been given which led to the discovery of tha offense. Thus, in 
 revenue cases, a witness is not compelled to disclose the name of 
 the informer,^^ or to state whether he himself was the informer.*^ 
 The same rule has been applied in cases of treason,** counterfeit- 
 ing,"^ larceny,"" and in actions for libel based upon communica- 
 tions sent to public officers, charging the plaintiff with misconduct 
 in office or with offenses against the law."' In some states statutes 
 exist providing that public officials cannot be examined as to com- 
 munications made to them in official confidence when public 
 interests would suffer by the disclosure. 
 
 § 763 (781). Arbitrators. — Partly because the law looks with 
 favor on the end of litigation, and partly because of the inconven- 
 ience which would follow if arbitrators could be called generally as 
 witnesses, the exemption from testifying on some subjects extends 
 to them. Thus, an arbitrator cannot be called to contradict or im- 
 peach the award or to show that it should be construed to mean 
 what, on its face, it does not purport to mean j"* or that he did not 
 
 eo Beatson v. Skene, 5 Hurl. & N. 838. 
 
 siPlunkett v. Cobbett, 5 Esp. 137; Steph. Ev. art. 112. As to proceed- 
 ings of tlie United States senate in executive session, see Law v. Soott, 5 
 Har. & J. (Md.) 438. 
 
 »2 R. V. Akers, 6 Esp. 125. 
 
 »3 Attorney-Greneral v. Briant, 15 M. & W. 169. Or where special tax 
 stamps are posted. In re Lamberton, 124 Fed. 446. 
 
 04 R. V. Hardy, 24 How. St. Tr. 199, 753, 816, 823; R. v. Watson, 32 How. 
 St. Tr. 1, 102, 105, 2 Stark. 116, 136. 
 
 90 United States v. Moses, 4 Wash. (U. S.) 726. 
 
 »« State V. Soper, 16 Me. 293. 
 
 »7Gray v. Pentland, 2 Serg. & R. (Pa.) 23; Earl v. Vass, 1 Shaw, 229; 
 Home V. Bentinck, 2 Brod. & B. 130; Robinson v. May, 2 Smith, 3; Worth- 
 ington V. Scribner, 109 Mass. 487, 12 Am. Rep. 736, reviewing many cases. 
 
 oeDoke V. James, 4 N. Y. 568; Fidler v. Cooper, 19 Wend. 285; Dater v. 
 
958 THE LAW OP EVIDENCE. § 764 
 
 in fact agree to the award ;'" or that he or his associates were guilty 
 of misconduct ;^ or to state the grounds of the award,^ or to show 
 that the award had been misconstrued or signed without reading, 
 or to otherwise impeach it, except for fraud.' But it may be shown 
 by arbitrators that questions over which they have no jurisdiction 
 had been entertained;* or that a given claim was or was not in- 
 cluded in their award, or taken into consideration by them ; " 
 or what matters were actually submitted to and considered by 
 them, when this becomes relevant," or that the award had never 
 been consummated or delivered.'' The testimony of arbitrators has 
 been received as to other collateral matters, for example, the state- 
 ments and acts of the parties during the trial or reference.' 
 
 § 764 (782). Judges as witnesses. — It has sometimes happened 
 that a presiding judge or magistrate has temporarily left the bench 
 to assume the role of witness in the pending cause. But the two 
 functions are so inconsistent that the practice is obviously im- 
 proper.* Among the objections which may be mentioned to such 
 a practice are the following : That the judge has, to some extent, to 
 pass upon the competency and weight of his own testimony, and 
 that the jury may find difficulty in discriminating between those 
 statements of the judge which are in the nature of evidence and 
 those which are in the nature of instructions. Although it has been 
 held that a court composed of several judges or magistrates does 
 not lose jurisdiction because one of its members testifies in the 
 
 Wellington, 1 Hill, 319; Packard v. Reynolds, 100 Mass. 153; Corrlgan v. 
 Rockefeller, 67 Oh. St. 354, 66 N. E. 95. 
 
 89 Campbell v. Western, 3 Paige (N. Y.) 124. 
 
 iClaycomb v. Butler, 36 111. 100. 
 
 2 Withington v. Warren, 10 Met. 431. 
 
 8 Johnson v. Durant, 4 Oar. & P. 327, 2 Barn. & Adol. 925; Ellis v. 
 Saltan, 4 Car. & P. 327 note a; Withington v. Warren, 10 Met. 431; 
 Packard v. Reynolds, 100 Mass. 153; Ellison v. Weathers, 78 Mo. 115. 
 
 4 Buccleugh V. Met. Board, L. R. 3 Ex. 306, 5 Ex. 234. 
 
 6 Hale V. Huse, 10 Gray, 99; Mayor v. Butler, 1 Barb.(N. Y.) 325. 
 
 8 Hale V. Huse, 10 Gray, 99; Thrasher v. Overly, 51 Ga. 91; Hall v. Vamer, 
 6 Neb. 85; Cady v. Waker, 62 Mich. 157; Duke of Bucoleugh v. Board of 
 Works, (L. R.) 5 H. L. Gas. 418, 2 Eng. Rep. 448. 
 
 7 Shulte V. Hennessey, 40 Iowa, 352. 
 
 8 Martin v. Thornton, 4 Esp. 180; Calvert v. Priebus, 48 Md. 44; Graham 
 V. Graham, 9 Pa. St. 254, 49 Am. Dec. 557. 
 
 9 Instances of this are given in People v. Dohring, 59 N. Y. 374, 17 Am. 
 Rep. 349. So the judge cannot testify as to confession made to him. People 
 V. Pratt, 133 Mich. 125, 94 N. W. 754, 67 L. R. A. 923. 
 
§ 765 COMPETENCY OP WITNESSES. 959 
 
 action, yet, if proper objection is taken, the judgment will be set 
 aside.^" For still stronger reasons, a single presidimg judge, magis- 
 trate or referee cannot properly be a witness in a cause pending be- 
 fore him.^^ It has, however, been held that a judge may waive the 
 privilege and testify to the facts which transpired before him at a 
 former trial; ^^ and judges and justices of the peace have been 
 called to prove what witnesses have sworn to before them at a for- 
 mer trial. While their notes are not evidence, such notes may be 
 used to refresh their memory.^' For very obvious reasons, judges 
 are not compelled to state the reasons for their decisions nor to give 
 evidence as to that which transpires in the consulting room; ^* and 
 "it is doubtful whether a judge is compellable to testify as to any- 
 thing which came to his knowledge in court as such judge. "^° In 
 a few cases statutes exist providing that trial judges are compe- 
 tent witnesses, and provision is made for administering the oath 
 and for postponement and trial before another judge. 
 
 § 765 (783). Privilege as to transactions in the jury room — 
 Grand jurors. — ^At common law and in most of the states, the oath 
 administered to grand jurors binds them to preserve inviolate the 
 secrets of the jury room; and on this ground, as well as on other 
 groimds of public policy, it was the common law rule, quite strictly 
 enforced, that the proceedings of grand jurors were privileged, and 
 could not be made public.^" Accordingly, it was formerly held that 
 
 10 People V. Dohring, 59 N. T. 374, 17 Am. Rep. 349. In the opinion of 
 Mr. Taylor, under tlie English rule, one of several judges may be a wit- 
 ness. If he leaves the bench and takes no further judicial part in the trial, 
 Tayl. Ev. (10th Ed.) § 1379. 
 
 11 McMillan v. Andrews, 10 Ohio St. 112; Morss v. Morss, 11 Barb. (N. Y.) 
 510; People v. Miller, 2 Park. Cr. (N. Y.) 197; Dabney v. Mitchell, 66 Ala. 
 465; Baker v. Thompson, 89 Ga. 486, 15 S. E. 644; Rogers v. State, 60 Ark. 
 76, 31 L. R, A. 465 and note; Ester v. Bridgforth, 114 Ala. 221, 21 So. 512; 
 Randall v. Wadsworth, 130 Ala. 633, 31 So. 555; Shockley v. Morgan, 103 
 Ga. 156, 29 S. E. 694; State v. De Malo, 69 N. J. L. 590, 55 Atl. 644. 
 
 12 Martin v. Thornton, 4 Esp. 180; Taylor v. Larkin, 12 Mo. 103, 49 Am. 
 Dec. 119, testimony of a justice of the peace as to the grounds of his de- 
 cision; State v. Houghton, 45 Or. 110, 75 Pa«. 887, under statute; State 
 V. Hlndman, 159 Ind. 586, 65 N. B. 911. See also. Welcome v. Batchelder, 
 23 Me. 85. On appeal, a probate judge was allowed to testify that, when 
 the cause was before him, he had no interest therein, Sigoumey v. Sibley, 
 21 Pick. 101, 32 Am. Dec. 248. 
 
 13 Huff V. Bennett, 4 Sand. (N. Y.) 120; Zitske v. Goldberg, 38 Wis. 216. 
 "Whart. Ev. (3d Ed.) § 600; Noland v. People, 33 Colo. 322, 80 Pac. 887. 
 15 Steph. Ev. art. Ill; R. v. Gazard, 8 Car. & P. 595. 
 
 IS Owens V. Owens, 81 Md. 518; State v. Fassett, 16 Conn. 457; Greenl. 
 
960 THE LAW Off EVIDENCE. § 765 
 
 grand jurors could not be asked to state the testimony of a wit- 
 ness givein before tbem, for tbe purpose of impeaching him at the 
 trial.^' But it is now generally held in this country that a grand 
 juror may be called to show that the skbtements of a witness on the 
 trial are in contradiction to those made by him before the grand 
 jury.^' Nor can one, charged with committing perjury, shield him- 
 self by the claim that the transactions of the grand jury room are 
 inviolate.^' As further illustrations of th© same subject, grand 
 jurors have been allowed to swear to the statements of the accused 
 made before them,^" to the suspicious conduct of a witness''^ and to 
 the fact that certain witnesses were or were not examined before 
 them.^" Although, as we have seen, the ancient rule has been much 
 relaxed, it is still held contrary to public policy to allow members 
 of the grand jury to testify in any collateral proceeding to such 
 facts as the opinions or statements of the other jurors during the 
 consultations, or to impeach their finding, or to prove that some of 
 the witnesses were not duly sworn, or that the indictment was not 
 concurred in or not founded upon sufficient evidence.^' It is held 
 
 E)v. § 252; Best, Bv. (10th Ed.) § 579. This privilege extends to all who are 
 necessarily aiding the grand jury, as, for example, the state's attorney, 
 McClellan v. Richardson, 1 Shep. (Me.) 82. 
 
 ir Inlay v. Rogers, 7 N. J. L. 347, 12 Vln. Abr. 20 tit. Evidence. 
 
 IS Com. V. Mead, 12 Gray, 167, 71 Am. Bee. 741; Jones v. Turpln, 6 Heisk. 
 (Tenn.) 181; State v. Wood, 53 N. H. 484; People v. Hulbut, 4 Den. 133, 
 47 Am. Deo. 244; United States v. Reed, 2 Blatch. (XJ. S.) 435; State v.* 
 Benner, 64 Me. 267; Clanton v. State, 13 Tex. App. 139; Gordon v. Com., 92 
 Pa. St 216, 37 Am. Rep. 672; State v. Brown, 26 Or. 147, 41 Pac. 1042; State 
 V. McPherson, 114 la. 492, 87 N. W. 421; Wooley v. State (Tex. Cr. App.), 64 S. 
 W. 1054; People v. O'Neil, 107 Mich. 556, 65 N. W. 540, by statute. The 
 practitioner should consult the statutes of the jurisdiction as, in many 
 states, there are statutes on the subject. In a few cases, such evidence has 
 been allowed to confirm a witness, Perkins v. State, 4 Ind. 222; People V. 
 Hulbut, 4 Den. 133, 47 Am. Dec. 244. 
 
 18 SUte V. Broughton, 7 Ired. (N. C.) 96, 45 Am. Dec. 507; State v. Fas- 
 sett, 16 Conn. 457; Jones v. Turpin, 6 Heisk. (Tenn.) 181; People v. Hulbut, 
 4 Den. 133, 47 Am. Dec 244; People v. Young, 31 Cal. 563; Izer v. State, 77 
 Md. 110, 26 Atl. 282. 
 
 20 United States v. Porter, 2 Cranch C. O. 60; United States v. Charles, 
 2 Cranch C. C. 76. 
 
 n State v. Broughton, 7 Ired. (N. C.) 96, 45 Am. Dec. 507. 
 
 22 Com. V. Hill, 11 Cush. 137; People v. Northey, 77 Cal. 618, 19 Pac. 865, 
 20 Pac. 129. See In re Archer, 134 Mich. 408, 96 N. W. 442. 
 
 28 State V. Broughton, 7 Ired. (N. C.) 96, 45 Am. Dec. 507; Hall v. State, 
 134 Ala. 90, 32 So. 750; State v. Baltimore Ry. Co., 15 W. Va. 362; Gordon v. 
 Com, 92 Pa. St. 216, 37 Am. Rep. 672; People v. Hulbut, 4 Den. 133, 47 
 
§ 766 COMPETENCY OF WITNESSES. 961 
 
 by the weigM of authority that, even in a direct proceeding on a 
 motion to set aside the indictment, it cannot be shown by the testi- 
 mony of the jurors that the indictment was not voted for by a suffi- 
 cient number of thei jury.^* But the contrary view also has the 
 support of very high authority.'" In many states statutes have 
 been enacted declaring the prohibition and in some states the ex- 
 ceptions are also prescribed.^* 
 
 § 766 (784). Same — Petit jurors' — ^When juror may be wit- 
 ness. — It is a familiar rule that, in the jury room, one juror has 
 no right to communicate to the others facts material to the issue, 
 and to which testimony might have been properly given. If a 
 juror is to be a witness^ he should be sworn and examined as other 
 witnesses.^' Although there are serious objections to the practice 
 of allowing a juror to be called as a witness and to contmue to act 
 as juror, it has been sanctioned in a few cases and in several 
 states the subject is regulated by statute.^' Petit or traverse ju- 
 rors may, iu a subsequent action, testify to facts occuring at the 
 former trial, if relevant, for example as to the statements of wit- 
 nesses or what claims were allowed by the jury ; '° and if the fore- 
 man of the jury, announces the verdict erroneously, this may be 
 shown by the evidence of the jurors.'" So their evidence or affidavits 
 may be received to show the misconduct of the hailiff in the jury 
 room,*^ or the misconduct of the parties or their agents in attempt- 
 Am. Dec 244; State v. Fassett, 16 Conn. 457; State v. Baker, 20 Mo. 338; 
 State V. Oxford, 30 Tex. 428. But see, R. v. Marsh, 6 Adol. & Ell. 236. 
 
 »* R. V. Marsli, 6 Adol. & Ell. 236; State v. Baker, 20 Mo. 338; State v. Ox- 
 ford, 30 Tex. 428. 
 
 20 Low's Case, 4 Me. 439, 16 Am. Dec. 271; Com. v. Smith, 9 Mass. 107. 
 On this subject generally, see note, 16 Am. Dec. 281. 
 
 28 See statutes cited, 3 Wigmore, Bv. §• 2360. 
 
 27 R. V. Rosser, 7 Oar. & P. 648; R. v. Sutton, 4 Maule & S. 532; Anderson 
 V. Barnes, 1 N. J. L. 203; Wood River Bank v. Dodge, 36 Neb. 708. See 
 also, Woolfolk v. State, 85 Ga. 69. 
 
 28 Chicago, R. I. & P. R. Co. v. Collier (Neb.), 95 N. W. 472; Savigny P. 
 & W. R. Co. V. Quo, 103 Ga. 125, 29 S. E. 607; People v. Thlede, 11 UUh, 
 241, 39 Pac. 837. 
 
 28 Piatt V. St. Clair, 6 Ohio, 227. 
 
 30 Cogan v. Bbden, 1 Burr. 383; Roberts v. Hughes, 7 M. & W. 399; Jack- 
 son V. Dickenson, 15 Johns. 309, 8 Am. Dec. 236; Dalrymple v. Williams, 
 63 N. Y. 361, 20 Am. Rep. 544; Prussell v. Knowles, 5 Miss. 90; Capen v. 
 Stoughton, 16 Gray, 367; Peters v. Fogarty, 55 N. J. L. 386, 26 A.tl. 855; 
 Pelzer Mfg. Co. v. Hamburg-Bremen F. L. Co., 71 Fed. 826. 
 
 »iNelms V. State, 21 Miss. 500, 53 Am. Dec. 94; Wiggins v. Downer, 67 
 
 61 
 
962 THE LAW OF EVIDENCK § 766 
 
 ing to influence tlie jury.*^ Their affidavits are admissible to show 
 that they did not read papers that came before them by accident 
 and which though not competent, might have influenced them, if 
 they had been read.'^ But, in general, the testimony or affidavits of 
 petit jurors will not be received as to their deliberations in the jury 
 room. Thus, the evidence of a juror is inadmissible to show that some 
 of the jury did not in fact concur in the verdict,^* or did not under- 
 stand it '" or to show a misunderstanding of the charge of the court 
 or the law applicable to the case ; °' or that a juror cons'ented to the 
 verdict because compelled by poor health to escape confinement ; ^'' 
 or that jurors were influenced by improper facts or by information 
 improperly obtained during the deliberations of the jury,"^ or that 
 
 How. Pr. (N. Y.) 65; Heller v. People, 22 Colo. 11, 43 Pac. 124. But see, 
 Doran v. Shaw, 3 T. B. Mon. (Ky.) 411. Contra, Sanitary District v. Cul- 
 bertoD, 197 111. 385, 35 N. E. 723. 
 
 32 Chews V. DriTer, 1 N. J. L. 166; Resnaolds v. Ciamplaln Trans. Co., 9 
 How. Pr. (N. Y.) 7; Ritchie v. Holbrook, 7 Serg. & R. (Pa.) 458; Wood- 
 ward V. Leavitt, 107 Mass. 453. 
 
 83 Hix V. Drury, 5 Pick. 296, 302. See § 694, supra. 
 
 3* Reaves v. Moody, 15 Rich. L. (S. C.) 312; Boetge v. Ijanda, 22 Tex. 
 105; Cochran v. Street, 1 Wash. (Va.) 79; Cire v. Righton, 11 La. 140; 
 Thomas v. Jones, 28 Gratt (Va.) 383; Johnson v. Davenport, 3 J. J. Marsh. 
 (Ky.) 390; Hester v. State, 17 Ga. 146; Garretty v. Brazell, 34 la. 100; 
 HaDenbeck v. Garst, 96 la. 509, 65 N. W. 417; State v. McNamara, 100 Mo. 
 100, 13 S. W. 938; People v. Kloss, 115 Cal. 567, 47 Pac. 459. 
 
 »5 Jackson v. Williamson, 2 T. R. 281; Polsom v. Brown, 25 N. H. 114; 
 People V. Soap, 127 Cal. 408, 59 Pac. 771. See, Smalley v. Morns, 157 Pa. 
 St. 349, 27 Atl. 734. 
 
 38 Saunders v. Puller, 4 Humph. (Tenn.) 516; State v. Milllcan, 15 La. 
 An. 557; Christ v. City of Webster, 105 la. 119, 74 N. W. 743; Inh. of 
 Bridgewater v. Inh. of Plymouth, 97 Mass. 382; Scruggs v. State (Tenn.), 
 15 S. W. 1074; State v. Cobbs (W. Va.), 22 S. E. 310; Schultz v. Catlln, 
 78 Wis. 611, 47 N. W. 946. 
 
 87 Scott V. State, 7 Lea (Tenn.) 232; Fitzgerald v. Clark, 17 Mont. 100, 
 42 Pac. 273. 52 Am. St. Rep. 665. 
 
 38Clum V. Smith, 5 Hill, 560; Price v. Warren, 1 Hen. & M. (Va.) 385 
 Whitney v. Whitman, 6 Mass. 405; State v. Hascall, 6 N. H. 352, 361 
 Johnson v. Parrotte, 34 Neb. 26; Knight v. Fisher, 15 Colo. 176, 25 Pac. 78 
 State v. Beste, 91 la. 565, 60 N. W. 112; State v. Whalen, 98 la. 662, 68 N. 
 W. 554. Expectation of clemency to the accused. State v Best (N. C), 15 
 S. B. 930; State v. Bennett (S. C), 18 S. E. 886; use of newspaper and 
 other documents in jury room, Mattox v. U. S., 146 U. S. 140; Homer v. 
 Inter Mouiltaln Abstract Co., 9 Utah, 193, 33 Pac. 700; Gustavenson v. State, 
 10 Wyo. 300, 68 Pac. 1006; improper mew ty jury, Siemsen v. Railway Co., 
 134 Cal. 494, 66 Pac. 672; Mas or hostility of jurors. Com. v. White, 147 
 
§ 766 COMPETENCY OF WITNESSES. 963 
 
 the verdict was arrived at by lot or by some other improper mode.'" 
 It is essential to the due administration of justice that jurors should 
 understand that their deliberations in the jury room are inviolable, 
 and that the reasons for their verdict cannot be questioned.*" 
 
 § 767 (785). Evidence showiiig misconduct of jurors. — The 
 cases already cited illustrate that the courts adhere with consider- 
 able strictness to the rule that the testimony of the jurors will not 
 be received to show their own mistake or misconduct, or that of 
 their fellows while in the jury room, or otherwise to impeach their 
 verdict. The following reasons have been assigned for rejecting 
 evidence or affidavits of this character: " (1), Because they would 
 tend to defeat their own solemn acts under oath; (2), Because their 
 admissions would open a door to tamper with jurymen after they 
 have given their verdict; (3), Because they would be the means in 
 the hands of a dissatisfied juror to destroy a verdict at any time 
 after he had assented to it."*^ There are, however, a few states 
 in which a different rule prevails, and in which under certain lim- 
 itations the affidavits or testimony of jurors may be received to show 
 misconduct in the jury room, or to show that the verdict was arrived 
 at by lot or by aggregation and average. In Iowa, the subject has 
 
 Mass. 76, 16 N. E. 707; Sharp v. Merriman, 108 Mich. 454, 66 N. W. 372; 
 improper statements of facts in jury room, Sheppard v. Inh. of Camden, 82 
 Me. 535, 20 Atl. 91; Rowe v. Canney, 139 Mass. 41, 29 N. B. 219; Com. v. 
 Meserve, 156 Mass. 61, 30 N. B. 166; State v. Rush (Mo.), 8 S. W. 221; 
 Johnson v. Parrotte, 34 Neb. 26, 51 N. W. 290; intoxication of juror, People 
 V. Deegan, 88 Cal. 662, 26 Pac. 500; Heller v. People, 22 Colo. 11, 43 Pac. 124. 
 
 39 Owen V. Warhurton, 1 N. R. 326; Tucker v. South Kensington, 5 R. I. 
 558; Moses v. Central Park Ry. Co., 23 N. Y. S. 23; Vasie v. Delaval, 1 
 T. R. 11; Straker v. Graham, 4 M. & W. 721; Barges v. Langley, 6 Scott, 
 N. R. 518; State v. Doon, R. M. Charlt. (Ga.) 1; Pleasants v. Heard, 15 Ark. 
 403; Sawyer v. Hannibal Ry. Co., 37 Mo. 240; Dana v. Tucker, 4 Johns. 
 487; Heath v. Conway, 1 Bibb (Ky.) 398; Haun v. Wilson, 28 Ind. 296. 
 For example by tahing an average, Roy v. Gomeys, 112 111. 656; Houk v. 
 Allen, 126 Ind. 568, 25 N. B. 897; Dorr v. Flemo, 12 Pick. 520; Philips 
 v. Stewart, 69 Mo. 149; Knight v. Epsom, 62 N. H. 356; Ulrlck v. D. L. & 
 T. Co., 2 S. D. 285, 49 w. W. 1054; International & G. N. R. Co. v. Gordon, 
 72 Tex. 44, 11 S. W. 1933. 
 
 *o Woodward v. Leavitt, 107 Mass. 453; Heffron v. Gallupe, 55 Me. 563. 
 In some states it Is held that the rule does not extend to misconduct out- 
 side of jury room. Rush v. Railway Co., 70 Minn. 5, 72 N. W. 733; Hempton 
 V. State, 111 Wie. 127, 86 N. W. 596. 
 
 41 3 Grah. & Wat. New Trials, 1428; Woodward v. Leavitt, 107 Mass. 453, 
 9 Am. Rep. 49; an extended review of the authorities. See also note, 24 
 Am. Dec. 478. 
 
964 (THE LAW OP EVIDENCE. § 768 
 
 frequently been discussed ; and it has been held that the affidavits 
 of jurors may be received to show any matter occurring during the 
 trial or in the jury room which does not essentially inhere in the 
 verdict itself, as that a jury was improperly approached by inter- 
 ested parties or their agents ; that witnesses or others conversed con- 
 cerning the case iu the presence of the jurors; that the verdict was 
 obtained by average or lot, or other improper manner.*^ But such 
 affidavits can not be received to show that the juror did not assent 
 to the verdict ; that he misunderstood the instructions of the court, 
 the statements of witnesses or the pleadings in the ease, or that he 
 was unduly influenced by the statements of his fellow jurors, or mis- 
 taken in his calculations; or judgment or' other matter resting in 
 the juror's breast.*^ It is generally held that when the conduct 
 of the jury is assailed, their affidavits or testimony may be received 
 in support of their verdict, and to show that they have been guilty 
 of no misconduct for which their verdict should be set aside/* 
 
 § 768 (786). Accomplices. — An accomplice is one who know- 
 ingly, voluntarily and with common intent with the principal of- 
 fender unites in the commission of a crime.*" Even when the rule 
 prevailed in England that persons interested in the result were in- 
 competent witnesses, it was held that, in order to prevent a failure 
 
 *2 "Wright V. Illinois & Miss. Tel. Co., 20 la. 195, citing other Iowa 
 cases; State v. Oowan, 74 la. 53; State v. Whalen, 98 la. 662', 68 N. W. 
 554. A similar rule has been adopted in other states, see, Perry v. Eailey, 
 12 Kan. 539; Atchison T. & S. F. R. Co. v. Bayes, 42 Kan. 609, 22 Pac. 741; 
 Polhemus v. Helman, 50 Cal. 438, hy statute; Pain v. Goodwin, 35 Ark. 109, 
 by statute'; Harris v. State, 24 Neb. 803, 40 N. W. 317; Anschicks v. State, 
 6 Tex. App. 524, by statute; Mitchell v. State (Tex. Cr. App.), 36 S. W. 
 456, by statute; Galvin v. State, 6 Coldw. (Tenn.)^ 283. 
 
 13 See cases above. 
 
 « State V. Dumphey, 4 Minn. 438; Hix v. Drury, 5 Pick. 296; Taylor 
 V. Greeley, 3 Me. 204; Dana v. Tucker, 4 Johns. 487; Peck v. Brewer, 48 
 111. 54; Harding v. Whitney, 40 Ind. 379; Howard v. Com. (Ky.), 69 S. W. 
 721; State v. Gay, 18 Mont. 51, 44 Pac. 411; Spies v. People, 122 111. 1, 264, 
 12 N. E. 865, 17 N. E. 898, 3 Am. St. Rep. 320; Irvin v. State, 19 Pla. 872; 
 People V. Murray, 94 Cal. 212, 29 Pac. .494; Palmer v. State, 65 N. H. 228, 
 19 Atl. 1003; State v. Underwood, 57 Mo. 40; State v. Ayer, 23 N. H. 301; 
 Hutchinson v. Consumers Coal Co., 36 N. J. L. 24; Parrer v. State, 2 Ohio 
 St. 54; Gilleland v. State, 44 Tex. 356; Downer v. Baxter, 30 Vt. 467; State 
 V. Dolling, 37 Wis. 396; Woodward v. Leavitt, 107 Mass. 453, 9 Am. Rep. 
 49, where many cases are reviewed; McCbrkle v. Binns, 5 Binn. (Pa.) 340. 
 
 "People V. Bolanger, 71 Cal. 20; 4 Bl. Com. 35. For a general discussion 
 of the testimony of accomplices, see notes, 86 Am. Dec. 329; 71 Am. Dec. 
 671-678. 
 
§ 769 COMPETENCY OP WITNESSES. 965 
 
 of justice, and from the nece^ity of the case, testimony, of accom- 
 plices should be admitted unless they were parties to the record.*" 
 Of course, if an accomplice had been already convicted of an in- 
 famous crime, he was incompetent under the common law rule, 
 unless the incompetency was removed by pardon or in some other 
 manner." So if an accomplice was jointly indicted and put upon 
 his trial at the same time with another defendant he was incom- 
 petent, until a dismissal as to him, or until, on a separate verdict 
 being rendered he had been acquitted, or if convicted, had paid the 
 fine.*' In the later discussions a sttill more liberal rule is laid down 
 by the courts. They hold that as soon as a separate trial has been 
 ordered for any co-defendant or accomplice, he is a competent wit- 
 ness in the trial of the others.*" 
 
 § 769 (787). Same — Credibility. — Statutes giving parties or 
 persons interested in the result the right to testify do not affect the 
 degree of credit to be given to the testimony of accomplices.'''' 
 
 «• Jones V. Georgia, 1 Kelly, 610; Noland v. State, 19 Ohio, 131; People 
 V. Whipple, 9 Cow. 707; People v. Costello, 1 Den. -83; State v. Shields, 
 45 Conn. 256; Gray v. People, 26 111. 344; Earll v. People, 73 111. 329; 
 Ayers v. State, 88 Ind. 275; State v. Cook, 20 La. An. 145; Territory v. 
 Corbet, 3 Mont. 50; United States v. Lancaster, 2 McLean (XJ. S.) 431; 
 United States v. Troax, 3 McLean (U. S.) 224; United States v. Henry, 
 4 Wash. (U. S.) 428. 
 
 " See § 716 supra. 
 
 *8R. V. Fletcher, 1 Strange, 633; Lindsay v. People, 63 N. T. 143; Wakely 
 V. Hart, 6 Binn. (Pa.) 316; State v. Steifel, 106 Mo. 129; Child v. Cham- 
 berlain, 6 Car. & P. 213; State v. Minor, 1 Mo. 302. Or has pleaded guilty, 
 State V. Knudtson, 11 Ida. 524, 83 Pac. 226; Wells v. Terr., 15 Okla. 195, 
 81 Pac. 425. When one Is made a co-defendant for the purpose of depriving 
 others of his testimony, the court will generally direct his dismissal, so 
 that he may be allowed to testify, Beasley v. Beasley, 2 Swan (Tenn.) 
 180; Cochran v. Ammon, 16 111. 316. When there is no evidence against 
 a co-defendant, the court will allow him to testify. State v. Shaw, 1 Root 
 (Conn.) 134; Cochran v. Ammon, 16 111. 316. 
 
 48 Smith V. Com., 90 Va. 759; State v. Bogue, 52 Kan. 79; State v. Bar- 
 rows, 76 Me. 401; Benson v. United States, 146 U. S. 325; McGinnis v. State, 
 4 Wyo. 115, 31 Pac. 978; Wong Din v. U. S., 135 Fed. 702; Richards v. State, 
 91 Tenn. 923; Allen v. State, 10 Ohio St. 287; Carroll v. State, 5 Neb. 31, 
 effect of statutes; State v. Thaden, 43 Minn. 325; State v. Umble, 115 
 Mo. 452. The prosecution may refer in the argument to the fact that the 
 defendant has not called the co-defendant as he had a right to do, State 
 V. Mathews, 98 Mo. 125. 
 
 ooBarll V. People, 73 111. 329; Atwood's Case, 1 Leach Cr. C. 464; Jones' 
 Case, 2 Camp. 132; Johnson v. State, 65 Ind. 269; State v. Potter, 42 Vt. 
 495; People v. Costello, 1 Den. 83; State v. Stebbins, 29 Conn. 463; R. v. 
 
966 THE LAW OF EVIDENCE. § 769 
 
 Since the testimony of accomplices is competent, and since the 
 jury are to judge of the credibility of witnesses, it logically 
 follows that a defendant may he convicted upon the unsupported 
 evidence of an accomplice. Although the jury ought not to con- 
 vict upon such testimony without corroboration their verdict 
 will not be set aside/^ But owing to the fact that witnesses 
 of this character are often subjected to strong temptation to 
 shift the burden of guilt upon the defendant it has long been a 
 rule of practice in criminal trials for the court to charge the jury 
 that they should not convict the prisoner upon the uncorroborated 
 testimony of an accomplice.^^ But although it might ordinarily be 
 regarded as an omission of duty for the judge to neglect to so in- 
 struct the jury, yet the decisions are to the effect that his refusal 
 so to do is not reversible error, as the matter lies in the discretion 
 of the judge. The instruction relates to the value or weight of the 
 testimony and does not withdraw the case from the jury.^' The 
 questions of fact are for their determination.'* In many states 
 
 Hastings, 7 Car. & P. 152 ; Com. v. Holmes, 127 Mass. 424, where there Is aji 
 exhaustive review of the authorities, especially those of Massachusetts; 
 New York, G. & I. Co. v. Gleason, 78 N. Y. 511; Lindsay v. People, 63 N. 
 Y. 154; Finley v. Hunt, 56 Miss. 221; Mack v. State, 48 Wis. 271; Jenkins 
 V. State, 31 Fla. 196. Under state statutes, this rule was applied to mis^ 
 demeanors alone in Alabama, Moses v. State, 58 Ala. 117. Some courts 
 hold the testimony of an accomplice, competent, but require still further 
 testimony to convict the accused, State v Cook, 20 La. An. 145; Ray v. 
 State, 1 G. Greene (Iowa) 316, 48 Am. Dec. 379; State v. Odell, 8 Or. 30. 
 
 Bilngalls V. State, 48 Wis. 647, 4 N. W. 785; State v. Concannon, 25 
 Wash. 327, 65 Pac. 534; State v. T>e Hart, 109 La. 570, 33 So. 605; State v. 
 Hill, 48 W. Va. 132, 35 S. E. 831. See cases cited below. 
 
 «2R. V. Stubbs, 33 Bng. L. & Bq. 552; R. v. Boyes, 1 Best & Smith, 311, 
 320; State v. Williamson, 42 Conn. 261; State v. Vicknair, 52 La. An. 
 1921, 28 So. 273; State v. Rachman, 68 N. J. L. 120, 53 Atl. 1046; State 
 V. Green, 48 S. C. 136, 26 S. E. 234; State v. Concannon, 25 Wash. 327, 
 65 Pac. 534; Smith v. State, 10 Wyo. 157, 67 Pac. 977. 
 
 BSIngalls V. State, 48 Wis. 647, 4 N. W. 785; Com. v. Savory, 10 Cush. 
 535; Collins v. People, 98 111. 584, 38 Am. Rep. 105; Ray v. State, 1 G. 
 Greene (Iowa) 316, 48 Am. Dec. 379; State v. Potter, 42 Vt. 495; Com. 
 V. Bishop, 165 Mass. 148, 42 N. B. 560; Com. v. Clune, 162 Mass. 206, 
 38 N. E. 435; State v. Koplan, 167 Mo. 298, 66 S. W. 967; Lamb v. State, 
 40 Neb. 312, 58 N. W. 963; Porath v. State, 90 Wis. 527, 63 N. W. 1061. 
 Steph. Ev. art. 121. See §§ 901 et seq. infra. Contra, Hoyt v. People, 140 
 111. 588, 30 N. E. 315; State v. Woolard, 111 Mo. 248, 20 S. W. 27. 
 
 B4Com. V. Holmes, 127 Mass. 424; Honselman v. People, 168 111. 172, 
 48 N. E. 304. 
 
§ 770 COMPETENCY OF WITNESSES. 967 
 
 statutes have been passed changing the rule of practice to a rule 
 of law and forbidding a conviction upon the testimony of an ac- 
 complice without corroboration. 
 
 § 770 (788). What facts may serve as corroboration of accom- 
 plices. — It is generally agreed that the matters in corroboration 
 should relate to "some portion of the testimony which is material 
 to the issue, but need not extend to every material fact.^^ The fact 
 that the accomplice had testified truthfully to matters entirely im- 
 material would afford no confirmation of his statements, as to the 
 main facts."' The corroborating circumstances should not merely 
 tend to prove that an offense has been committed, but they should 
 tend to identify the defendant as the criminal, or to show his con- 
 nection with the offense." A man who has been guilty of a crime 
 himself will always be able to relate the facts of the case; and if 
 the confirmation be only the truth of that history, without identify- 
 ing the persons, that is really no corroboration at all. As corrob- 
 oration it has been held sufficient to show possession by the defend- 
 ant of the goods alleged to be stolen. This is, however, merely pre- 
 sumptive and may be rebutted.^^ Such admissions, declarations or 
 conduct of the defendant as might excite suspicion also serve to 
 corroborate the testimony of accomplices," as do writings or other 
 documentary evidence which tend to show concert of action between 
 the accomplice and defendant, «" or the fact that the accused was 
 near the place where the offense was committed at the time of its 
 
 s» People T. Elliott, 106 N. Y. 288; Com. v. Holmes, 127 Mass. 424; Com. 
 V. Chase, 147 Mass. 597, 18 N. B. 5G5. 
 
 "Com. v. Bosworth, 22 Pick. 397; Mailer v. State, 68 Ala. 580; Ray 
 V. State, 1 G. Greene (Iowa) 316, 48 Am. Dec. 379; United States v. Howell, 
 56 Fed. 21. 
 
 "'Com. V. Brooks, 9 Gray, 299; Com. v. Savory, 10 Cush. 535; People v. 
 Smith, 98 Cal. 218; Harper v. State, 11 Tex. App. 1; Smith v. State, 59 
 Ala. 104; State v. Callahan, 47 La. An. 444, 17 So. 50; State v. Jackson, 
 106 Mo. 174, 17 S. W. 301; McNealley v. State, 5 Wyo. 69, 36 Pao. 824. 
 
 68 Jemigan v. State, 10 Tex. App. 546; Ford v. State, 70 Ga. 722; Com. 
 V. Savory, 10 Cush. 535; Boswell v. State, 92 Ga. 581; Ryan v. State, 83 
 "Wis. 486. The fact that the defendant was found in the barn where the 
 accomplice swore that stolen goods were to be found, was held to be 
 insufficient corroboration. State v. Graff, 47 la. 384. 
 
 69 State V. Ford, 3 Strob. (S. C.) 517; People v. Cleveland, 49 Cal. 
 577; Partee v. State, 67 Ga. 570; Territory v. Mahoffey, 3 Mont. 112; People 
 V. Collins, 64 Cal. 293; Harris v. State, 31 Tex. Grim. Rep. 411; Cox v 
 Com., 125 Pa. St. 94. 
 
 w State v. Kellerman, 14 Kan. 135; State v. Smalls, 11 S. C. 262. 
 
968 THE tiAW OF EVIDENCa. § 771 
 
 commission, especially if an alibi is claimed by him.'* But those 
 who make an early disclosure of the offense to the authorities and, 
 under their direction, continue to act with the guilty persons, but 
 for the purpose of bringing them to justice are not accomplices in 
 the sense that their testimony requires corroboration,'^ although, 
 of course circumstances of this character may seriously affect their 
 credibility.*' The practitioner should consult the statutes of the 
 jurisdiction as, in some states, statutes have been enacted declaring 
 the rule as to accomplices. 
 
 § 771 (789). Telegrams not privileged — Other confidential 
 statements. — It has often been contended that telegraphic com- 
 munications confidential in their nature, should be privileged; and 
 the fact that, by the rules of telegraph companies or by statutes, 
 operators are bound to secrecy has been urged as an argument for 
 such privilege. But it is well settled that telegrams like other writ- 
 ten documents, are admissible, if relevant to the issue;'* and must 
 be produced by those having their custody on a subpcena dioces te- 
 cum. Of course if a telegram is a communication between attor- 
 ney and client, or between husband and wife, or other persons, 
 whose conversations or intercourse would be privileged on other 
 grounds the ordinary rule would apply.'' The reason which denies 
 this privilege to telegrams, although confidential in their nature, 
 applies to other communications, which, however secret, do not come 
 within the class of communications which the law has recognized 
 as privileged on grounds of public policy." 
 
 •1 Com. V. Drake, 124 Mass. 21. 
 
 82 Com. V. Downing, 4 Gray, 29; Town of St. Charles v. O'MJalley, 18 
 111. 407; DeLong v. Giles, 11 111. App. 33; People v. Farrell, 30 Cal. -316; 
 Com. V. Hollister, 157 Pa. St. 36, 27 Atl. 386. Detectives, State v. Brown- 
 lee, 84 la 473, 51 N. W. 25. 
 
 63 Com. V. Downing, 4 Gray, 29. As to persons, not accomplices, see, 
 People V. Farrell, 30 Cal. 316; Harris v. State, 7 Lea (Tenn.) 124; People 
 V. Smith, 28 Hun. (N. Y.) 626; Com. v. Boynton, 116 Mass. 343, a case 
 of abortion. 
 
 e* State v. Litchfield, 58 Me. 267; Williamson v. Freer, L. R. 9 C. P. 
 393; Hammond v. B«eson, 112 Mo. 190. 
 
 «6 United States v. Babcock, 3 Dill. (U. S.) 566; United States v. Hunter, 
 15 Fed. 712; In re Storror, 63 Fed. 564; Woods v. Miller, 55 la. 168, 7 
 N. W. 484. But see, Ex parte Brown, 72 Mo. 83, 37 Am. Rep. 426. 
 
 soMcFarlan v. Rolt, 41 L. J. (Ch.) 649. For the rule as to the best 
 evidence as to telegrams, see § 210 supra. 
 
 •7 Oommercial agency, Shauer v. Alterton, 151 V. S. 607; communlca^ 
 tions to a journalist, People v. Durrant, 116 Cal. 179, 48 Pac. 75; Ex parte 
 
§ 773 COMPETENCY OF WITNESSES. 969 
 
 § 772 (790). Competency of witnesses as to transactions with 
 deceased persons — Statutes. — The statutory rule that parties to 
 the suit shall be competent as witnesses is, with few exceptions, 
 subject in every state in the Union to the proviso that parties shall 
 be incompetent to testify as to statements of or transactions or 
 communications with persons since deceased or rendered incompe- 
 tent, by reason of any mental disability. These statutes differ as to 
 the details of their provisions, but they have been so interpreted by 
 the courts that the rule is quite uniform throughout the United 
 States, although there are certain fundamental differences found in 
 the statutory provisions that divide the states into somewhat distinct 
 classes. Most statutes make the adverse party incompetent as to 
 communications or transactions with a deceased or incompetent 
 person. But the rule in a few states is more strict ; in these states, 
 it is held that the adverse party is not competent to testify as to 
 facts equally within the knowledge of the deceased or incompetent 
 person. Some statutes exclude only parties and their assigns, while 
 others render incompetent all persons interested in the suit. It is 
 usually expressly provided by these statutes that their provisions 
 shall apply only to parties in civil suits, and not to those in criminal 
 prosecutions. But all civil actions or proceedings come within the 
 scope of the statutes, whether actions at law or not. Most of the 
 statutes provide that the adverse party shall be made competent if 
 he is called as a witness hy the representative of the deceased or in- 
 competent person, or if the representative introduces evidence as to 
 the transactions or communications with the deceased or incompe- 
 tent person. There are many other provisions common to these acts. . 
 Some of the statutes prescribe the rule with much particularity; 
 others simply state the general principle. But these details are not 
 within tile province of this work; and reference must be made to 
 the statutes of each particular state to settle the details of the 
 provisions on this subject. 
 
 § 773 (790), Reason for statutes — Limitations — ^Persons af- 
 fected. — The ohject and purpose of these statutes is to guard 
 against the temptation to give false testimony in regard to the 
 transaction in question on the part of the surviving party, and fur- 
 ther to put the two parties to a suit upon terms of equality in re- 
 gard to the opportunity of giving testimony. If one party to the 
 
 Lawrence, 116 Cal. 298, 48 Pac. 124; statements by one Mason to another, 
 Owens V. Frank, 7 Wyo. 457, 53 Pac. 282, 75 Am. St. Rep. 932; banker's 
 knowledge of customer's account, In re Davies, 68 Kan. 791, 75 Pac. 1048. 
 
970 THE LAW OP EVIDENCE. § 774 
 
 original transaction is precluded from testifying by death, insanity 
 or other mental disability, the other. party is not entitled to the 
 undue advantage of giving his own uncontradicted and unex- 
 plained account of the transaction. The sources of original in- 
 formation on the part of the representative of the deceased or 
 incompetent person are so inadequate as compared with those of 
 the surviving party that the law presumes the representative to be 
 utterly unable to testify as to the details of the transaction, and 
 hence excludes the adverse party.'* As these acts were passed to 
 protect the interests of the representative of the deceased or in- 
 competent person, they do not exclude the testimony of the adverse 
 party to such transactions when he offers testimony that is favorable 
 to the representative of the deceased or incompetent person.^^ The 
 words "adverse party" are not limited to the adverse positions of 
 plaintiff and defendant, but affect any party, whether plaintiff or 
 defendant, whose interests are actually adverse to those or another 
 party to the action who appears in the capacity of executor, ad- 
 ministrator, heir at law, next of kin, surviving partner, or assignee, 
 where the latter has acquired title to the cause of action immediately 
 from a deceased person.'" 
 
 § 774 (790) . General scope of statutes — Meaning of their terms. 
 — The evidence of an adverse party is absolutely excluded by an 
 independent, afftrmative enactment making him incompetent as to 
 transactions or communications with a deceased or incompetent 
 person.'^ These statutes, however, do not render the adverse party 
 incompetent to testify to fraudulent transactions of the deceased, 
 as the statutes are not designed to shield wrong-doers but the courts 
 
 68 Looker v. Davis, 47 Mo. 140; Fulkerson v. Thornton, 68 Mo. 46; Hol- 
 lister V. Young, 41 Vt. 157; Moore v. Taylor, 44 N. H. 370, 375; Beach v. 
 Pennell, 50 Me. 387; Chandler v. Davis, 47 N. H. 462, 464; Whitmer v. 
 Ruckey, 71 111. 410. In some statutes infants under fourteen are included 
 as incompetents, Mullins v. Mulllns, 120 Ky. 643, 87 S. W. 764. 
 
 es» Williams v. Mower, 29 S. C. 332; Thistlewaite v. Thistlewaite, 132 
 Ind. 355; McLaughlin v. Webster, 141 N. Y. 76; Lyon v. Ricker, 141 N. 
 Y. 225; Tabor v. Tabor, 136 Mich. 255, 99 N. W. 4; N«ish v. Gannon, 198 
 111. 219, 64 N. E. 1000. 
 
 70 American Inv. Co. v. Coulter, 8 Kan. App. 841, 61 Pac. 820; Kempton 
 V. Bartine, 59 N. J. Eq. 149, 44 AU. 461. 
 
 '1 Matton V. Young, 45 N. Y. 696. The person Interested is excluded 
 although not an actual party, Lowe v. Lowe, 83 Minn. 206; Hedges v. 
 Williams, 26 Tex. Civ. App. 551, 64 S. W. 76; Foster v. Ela, 69 N. H. 460, 
 45 AU. 24S. 
 
§ 774 COMPETENCY OF WITNESSES. 971 
 
 compel the adverse party to clearly establish the alleged fraudulent 
 acts before admitting such testimony.'" The statutes apply to 
 communications and transactions concerning written documents, as 
 well as to verbal transactions with or statements by the deceased or 
 incompetent person. ''» It has been held that the term "estate of a 
 deceased person" includes all property, real and personal, belong- 
 ing to the deceased;'* that the term "heirs" means all heirs ad in- 
 finitum; that the term "representatives" includes all who succeed 
 to the rights of the deceased, either by purchase, by descent or by 
 operation of law,'» and that the words "executor <md administra- 
 tor" include all persons holding the estate of the deceased in a rep- 
 resentative capacity." "The heir is not in all litigation concerning 
 the estate of the deceased the representative of the deceased within 
 the meaning of our statute. It is only when he stands in place of the 
 deceased, so as to uphold a right that the deceased had at the time 
 of his death, that he may be said to represent the deceased." " In 
 some jurisdictions it is held that the evidence is admissible when 
 defendants are such not in a representative capacity but in respect 
 to property to which they hold title descended to them from an 
 ancestor." It has been held in some states that a legatee or devisee 
 is not excluded by a statute making "heirs and representatives" in- 
 competent to testify as to transactions or communications with de- 
 ceased or incompetent persons.™ Under the California statute, 
 the adverse party has been held competent, in an action in rem, 
 to testify as to a personal judgment on the ground that it is not 
 
 " Tracy v. Kelley, 52 Ind. 535; Ellis v. Alford, 64 Miss. 8. 
 
 "Gray v. Obear, 54 Ga. 231; -Wright v. Bessman, 55 Ga. 189; Montague 
 V. Thompson, 91 Tenn. 198; Sheldon v. Ins. Co., 124 Mich. 303, 82 N. W. 
 1068; McCorkendale v. McCorkendaJe, 111 la. 314, 82 N. W. 754. 
 
 T* Jacks V. Bradewell, 51 Miss. 881. 
 
 75 Merrill v. Atkin, 59 111. 19. Even the widow. Larch v. Goodacre 126 
 Ind. 224. 
 
 '«Wamsley v. Crook, 3 Neb. 344; Joss v. Mohn, 55 N. J. L. 407; Davis 
 v. Davis, 26 Cal. 23, 85 Am. Dec. 157. Even a widow, Kisllng v. Shaw, 
 33 Cal. 425, 91 Am. Dec. '644. But see, Crimmins v. C'rimmins, 43 N. J. 
 Eq. 86. 
 
 " Clark V. Clough, 65 N. H. 43. 
 
 78 Sorenson v. Sorenson (Neb.), 103 N. W. 455; Field v. Field, (Tex. Civ. 
 App.), 87 S. W. 726. See, Lawrence v. Lawrence, 164 111. 367, 45 N. E. 1071. 
 
 70 McKinley v. Coe, 66 N. J. Eq. 70, 57 Atl. 1030, general discussion citing 
 many cases; Small v. Pryor, 69 N. J. E. 606, 61 Atl. 564. 
 
 8« Mitchell V. Mitchell, 80 Tex. 101; Emerson v. Scott (Tex. Civ. App ) 
 87 S. W. 369. " " ' 
 
972 THE LAW OF EVIDENCa § 775 
 
 a "claim," but the opposite rule has been held in Maryland.'^ 
 Of course these statutes do not make the adverse party wholly in- 
 competent as a witness, but simply exclude his testimony as to 
 transactions or communications with deceased or incompetent 
 persons ;^^ nor do they render the adverse party incompetent as 
 to transactions after the death or incompetency of the person, 
 even if they relate to his estate.^' 
 
 § 775 (791). Nature of the disqualifying interest. — The interest 
 of the party to the transaction or communication with the de- 
 ceased or incompetent person must be a real, direct, pecuniary 
 interest,^* and one adverse to the representatives of the deceased.'" 
 It has been held in some states that, if the estate of the deceased 
 or incompetent person is not affected by the action, such testimony 
 is competent, and may be received, even if it relates to transac- 
 tions or communications with deceased or incompetent persons." 
 The interest must also be present, certain and vested to render the 
 adverse party incompetent, for, if it is of a doubtful character, 
 it affects only the credibility and not the competency of the 
 witness." Thus, it has been held that, under the Iowa code, a 
 mere equitable interest in the matter does not disqualify the 
 
 81 Booth V. Pendola, 88 Cal. 36; Gunther v. Bennett, 72 Md. 384. 
 
 82 Sliarmer v. Jolmson, 43 Neb. 509; Tompkins v. McGinn (Tex.), 85 
 S. W. 452; Chenault v. Gannon (Ky.), 83 S. W. 109. See also cases cited 
 in note 99, § 786 infra. 
 
 ssirvin V. Patchin, 164 Pa. St. 51; Kirton v. Bull (Mo.), 68 S. W. 927. 
 See also, cases cited under note 3, § 786 infra. 
 
 84 Dickson v. McGraw, 151 Pa. St. 98; Bowers v. Scliuler, 54 Minn. 99. 
 The interest of one who is a discharged bankrupt, who is therefore not 
 liable on the note in question, is not such an interest as will disqualify 
 him, Hayden v. McKnight, 45 Ga. 147. The interest of a member of a mu- 
 tual benefit association, who is subject to assessment. Is not sufficient 
 to render him incompetent as a witness, Hamill v. Supreme Council, 152 
 Pa. St. 357. 
 
 86 Gerz V. Weber, 151 Pa. St. 396. But see, Hollister v. Young, 41 Vt. 
 156. If the representative Is not a party, the rule does not apply, Gunn v. 
 Pettygrew, 93 Ga. 327. 
 
 »8Hankey v. Downey, 10 Ind. App. 500; Latourette v. McKeon, (Mich.), 
 62 N. W. 153. 
 
 87 Dickson v. McGraw, 151 Pa. St. 98; Wormsley v. Hamburg, 40 la. 
 22; Perine v. Grand Lodge, 48 Minn. 82; Mott v. Bernard (Mo.), 70 S. W. 
 1093; New York Life Ins. Cto. v. Jolmson's Admr. (Ky.), 72 S. W. 762. 
 See also, Tretheway v. Carey, 60 Minn. 457, 62 N. W. 815. The fact that 
 statute of limitations might be pleaded by the witness does not remove 
 liahillty, Culbertson v. Salinger & Brigham, 131 la. 307, 108 N. W. 454. 
 
§ 776 COMPETENCY OF WITNESSES. 973 
 
 adverse party offering himself as a witness.'* "The true test of 
 the interest of a witness is that he will either gain or lose by the 
 direct legal operation or effect of the judgment, or that the 
 record wiU, be legal evidence for or against him in some other 
 action."*" It has frequently been held in personal injury cases 
 that a servant whose neglect is in issue is not rendered incompe- 
 ten.t where not made a party."" But, in Florida, it was held that 
 a party interested dn the property on which a mortgage was being 
 foreclosed was incompetent."^ The interest of a stockholder does 
 not disqualify him to give evidence in a suit by the corporation 
 against an administrator in which he testifies as to transactions 
 or communications with a deceased or incompetent person,'^ nor 
 is the auditor of a county, suing as a relator, disqualified by these 
 statutes."^ A similar interest in another tract of land or in another 
 action is not sufficient to disqualify the witness, but may affect 
 his credibility."* 
 
 § 776 (791.) When the disability arises — ^Assignees — ^Represen- 
 tatives. — ^By the decisions under the great majority of the stat- 
 utes, only those transactions or communications are excluded which 
 were strictly personal with the deceased or incompetent person con- 
 cerning which he, if alive or competent, could testify."' In order to 
 bring the case within the statute, either the deceased or incompetent 
 
 If interest In ejectment is real Its extent immaterial, Campbell v. Everhart, 
 139 N. C. 503, 52 S. C. 201. 
 
 88 Zeibe v. Reigart, 42 la. 229. 
 
 89 Worm! ey v. Hamburg, 40 la. 22; German-Am. Sav. Bank v. Hanna, 
 124 la. 374, 100 N. W. 57. 
 
 sopeitl V. Railway Co., 211 111. 279, 71 N. B. 991; Bonner v. Statesbury, 
 139 N. C. 3, 51 S. E. 781; O'Toole v. Faulkner, 34 Wash. 371, 75 Pac. 975. 
 
 oiTunno v. Robert, 16 Fla. 738. 
 
 »2 Grange Warehouse As.sooiation v. Owen, 86 Tenn. 355* 
 
 S3 Works V. State, 120 Ind. 119. 
 
 9* Lyon V. Ricker, 141 N. T. 225. See Schneider v. Sulzer, 212 111. 87, 
 72 N. E. 19. Attorney excluded, his fee being wholly contingent, Smick 
 V. Beswick, 24 Ky. L. R. 276, 68 S. W. 439. In some oases those not parties 
 though interested, have been held competent, Rairdon v. Sampson, 67 N. 
 J. L. 346, 51 Atl. 696; Michigan Trust Co. v. Probasco, 29 Ind. App. 109, 
 63 N. E. 255; Horton v. Smith, 115 Ga. 66, 41 S. E. 253; Witte v. Koeppen, 
 11 S. D. 598, 79 N. W. 831, 74 Am. St. Rep. 826. But if the suit establishes 
 other rights in the same property, this interest renders the witness in- 
 competent, Miller v. Meers, 155 111. 284. 
 
 OS Giles V. Wright, 26 Ark. 476; Daniels v. Foster, 26 Wis. 686; McKean 
 V. Massey, 9 Kan; 600; Wheeler v. Arnold, 30 Mich. ?04; Martin v. Jones, 
 59 Mo. 181; Hard v. Ashley, 117 N. Y. 606; Brice v. Miller, 35 S. C. 537. 
 
974 THE t,AW OF EVIDENCE. § 776 
 
 person must have been one who would have been a party to the suit, 
 if alive at the time that the action was tried/' or the suit must be 
 one in which the representative or assignee of the deceased or incom- 
 petent person is a party. Actions hy, as well as against the repre- 
 sentative of the deceased or incompetent person are included within 
 the provisions of the statute.'^ Before the testimony of an adverse 
 party will be ruled out as incompetent under these statutes^ it 
 must be shown that the other party is deceased."* No testimony 
 will be excluded, unless aU the facts necessary to bring the case 
 within the rule appear. The iurden of showing such disqualify- 
 ing interest is upon the party objecting to the competency of a 
 witness.^" If the testimony has been given before these facts 
 appear, it will not be stricken out, unless upon motion based upon 
 such faets.^ The mere fact that one party is. rendered incompetent 
 by these statutes does not disqualify the other party.* Assignees 
 of deceased or incompetent persons have the same privileges as 
 do their representatives. Their rights are just as sacred under the 
 statutes as are those of the assignor himself.' But an assignee 
 has no greater rights than were possessed by the assignor; and 
 the assignee of an adverse party cannot testify where his assignor 
 would have been incompetent.* The mere fact, however, that a 
 representative is a party to the action does not make the adverse 
 party incompetent to testify to transactions or communications 
 with a deceased or incompetent person, for the statute applies 
 only when the representative is a party in his representative ca- 
 pacity. For, if he seeks judgment in favor of himself or defends 
 personally, the case does not fall within the statutes." Nor is the 
 adverse party excluded in those cases in which one sues as a rep- 
 
 08 Brantley v. Mayo, 80 Ga. 678; Lehman v. Sheiger, 68 Wis. 145; Can- 
 field V. Bentley's Estate, 60 Vt. 655; Wilhite's Adm. v. Boulware, 88 Ky. 
 169; Costin v. McDowell, 107 N. C. 546. But see. Hooper v. Hooper, 32 W. 
 Va. 526. 
 
 07 B-wing v. White, 8 Utah, 250. 
 
 08 Hodgson V. Jeffreys, 52 Ind. 334. 
 
 00 Ferine v. Grand Lodge, 48 Minn. 82, 
 
 1 Hill v.. Helton, 80 Ala. 528. 
 
 2 Smith V. Hay, 152 Pa. St. 377. 
 
 3 Hollister v. Young, 41 Vt. 157; Hurry v. Kline, 93 Ky. 358. 
 
 *Parcell v. McReynolds, 71 la. 623; Louis, Adm. v Easton, 50 Ala. 
 470; Huff V. Miniard (Ky.), 73 S. W. 1036. 
 
 6 Hamilton v. Hamilton, 10 R. I. 538; Lawrence v. Vilas, 20 Wis. 381; 
 Esterly Oo. v. Hill, ?6 111. App. 99; Penny v. Croul, 87 Mich. 15; Howie 
 V. Edwards, 97 Ala. 649; Prenitt v. Lambert, 19 Colo. 9. 
 
§ 777 COMPETENCY OP WITNESSES. 975 
 
 resentative, when lie is the real party in interest, as the sole dis- 
 tributee.' If the representative of a deceased or incompetent 
 person is not a party to the suit, the statutes do not apply ; and the 
 adverse party may testify as to communications or transactions 
 with the deceased or incompetent person;^ and, even if he is a 
 party, such testimony is not excluded, if the adverse party does 
 not derive title from such" deceased or incompetent person, but 
 from some other source.' The one who attempts to exclude evi- 
 dence of the adverse party on the ground that he is the representa- 
 tive of the deceased or incompetent person with whom the trans- 
 action or communication was had must establish the fact that he 
 appears in a representative capacity.' But this is required only 
 when his representative capacity is denied by an appropriate plea; 
 a general denial is not sufficient.^' The adverse party cannot 
 make his testimony competent as to transactions with a deceased 
 or incompetent person by calling the representative as a witness,"- 
 nor by suing him in his representative eharacter.^^ An adverse 
 party is not made competent as to such transactions or communi- 
 cations by being called as a witness by his co-party,^' or by joining 
 himself as a party with those who represent the deceased as heirs.'^* 
 § 777 (791). Nominal and real parties. — The rule generally laid 
 down by the courts is that mere nominal parties to the record, those 
 who are made parties without any real interest in the result of the 
 suit, are competent to testify as to transactions or communications 
 with a deceased or incompetent person.^" But the statutes of some 
 of the states expressly provide that these mere nominal parties 
 
 8 CTiase v. Chase, 66 N. H. 480, 29 Atl. 553. 
 
 7 Thomas v. Kelly, 74 N. C. 416; Clawson v. Brewer, 67 N. J. Eq. 201, 58 
 Atl. 598; Russell v. Russell, 129 Fed. 434. 
 
 8 Larsen v. Johnson, 78 Wis. 300, 23 Am. St. Rep. 404; Begole v. Hazzard, 
 81 Wis. 274. 
 
 • Prenltt v. Lambert, 19 Colo. 7; Beach v. Pennell, 50 Me. 587. 
 
 loEspella v. Richard, 94 Ala. 159. 
 
 iiSheehan v. Hennessey, 65 N. H. 588; Havey v. Hilliard, 47 N. H. 551. 
 
 12 Parker v. Thompson, 30 N. J. L. 311. 
 
 13 Ellis V. Stewart, (Tex.), 24 S. W. 585. See also, McMullen v. Ritchie, 
 64 Fed. 253. 
 
 " Dolaa V. Dolan, 89 Ala. 256. 
 
 IB Baker v. Jerome, 50 Ohio St. 682; Bowers v. Schuler, 54 Minn. 99; 
 Walker v. Steele, 121 Ind. 436; Kingsbury v. Buckner, 134 XJ. S. 650, 685; 
 Wood V. Wood, 25 S. C. 600; Hooper v. Howell, 52 Ga. 315; Scherer v. 
 Ingerman, 110 Ind. 428. 
 
976 THE LAW OF EVIDENCE. § 777 
 
 shall be competent/* even if they have been improperly joined.^^ 
 It has also been held that necessary parties, even if they have not 
 been made parties to the record, are excluded as if they had been 
 made parties to the suit.^* The mere fact that a witness has an 
 interest in the result of the action, if not affected by the judgment, 
 does not render him incompetent, if he is not a party to the suit.^' 
 But, if the witness is a party, he cannot testify to such transactions 
 or communications for the benefit of his co-parfcies, even if his 
 testimony does not affect his own interest in any way.^" A party 
 to the original contract, who is not a party to the action, is compe- 
 tent to testify as to such transactions or communications."^ But 
 a real party in interest cannot, by withdrawing from the action, 
 render himself competent."" An adverse party is not made com- 
 petent by the fact that the interest which he has in the suit which 
 is shared by other parties to the suit is divisible.^^ Of course, a 
 person, not a party and not bound by the judgment, is competent 
 to testify to aU transactions and communications of the adverse 
 party with the deceased or incompetent person."* Under these 
 
 18 Blood T. Fairbanks, 50 Cal. 420; Patterson v. Martin, 33 W. Va. 494. 
 "Bllger V. Buchanan, (Tex.), 6 S. W. 408. 
 
 isStalling's Adm. v. Hinson, 49 Ala. 92; Alexander v. HofEman, 70 
 111. 114. This rule has been applied to a next p-iend, Mason v. McGormlck, 
 75 N. C. 263; a cestui que trwst, Stewart v. Fello-ws, 128 111. 480 (but see, 
 Wilson V. Russell, 18 Iowa, 79) ; a grantor, Paxton y. Paxton, 38 W. Va. 
 616; a grantee, Chambers v. Wesley, 113 Ga. 343, 38 S. E. 848. A guardian 
 may testify for himself jn the final accounting, Bogia v. Darden, 45 Ala. 
 269; and In other actions. Doty v. Doty (Ky.), 80 S. W. 803. An admin- 
 istrator may testify in an action against himself for embezzling or falling 
 to inventory notes which belong to the deceased or incompetent person 
 which he represents, Stewart "v. Glenn, 58 Mo. 481; but he cannot show 
 that debts were due him from the intestate, French v. Creech, 55 Ga. 124. 
 
 19 McBrien v. Martin, 87 Tenn. 13 ; Gilder v. City of Brenham, 67 Tex. 
 345; Stephens v. Bemays, 42 Fed. 488; In re Brose's Estate, 155 Pa. St 
 619; Baker v. Updike, 155 111. 54; Reed v. Whipple, 140 Mich. 7, 103 N. 
 W. 548. 
 
 20 Pettingill v. Porter, 3 Allen, 349. The rule was different In chancery, 
 White V. Ross, 147 111. 427. 
 
 21 Jones V. Wolcott, 15 Gray, 541; Woodson v. Jones, 92 Ga. 662; Gay v. 
 Gay, 5 Allen, 157; Looker v. Davis 47 Mo. 140; Rank v. Grote, 110 N. T. 
 12; Fitzgerald v. Williamson, 85 Ala. 585; Larsen v. Johnson, 78 Wla 
 300. But see, Davis V. Bank, 48 Vt. 532. 
 
 22 O'Brien v. Weiler, 140 N. Y. 281; Messimer v. MoCrearcy, 113 Mo. 382. 
 
 23 Matthews v. Hoagland, 48 N. J. Eq. 455. 
 
 24Bmin V. Todd, 107 N. C. 266; Muir v. Miller. 82 la., 700; CurtlB T. 
 Hoxie, 88 Wis. 41; Blount v. Beall, 95 Ga. 182. 
 
§ 778 COMPETENCY OP WITNESSES. 977 
 
 statutes, the courts have excluded negative as well as afflrmative 
 testimony which would go to support the contention made by the 
 Burviving party to a transaction or communication with a deceased 
 or incompetent person.^" 
 
 § 778 (791). Mere relationship does not disqualify. — Relation- 
 ship to the adverse party, if without linterest in the result of the 
 suit, affects the credibility but not the competency of a witnesb 
 testifying as to transactions or communications with deceased or 
 incompetent persons.^" The courts have held the mother of ar 
 adverse party a competent witness ''' as to such transactions.^'" 
 It has also been held that the children of an adverse party are 
 competent as to transactions with a deceased or incompetent per- 
 son.^" A widow who is an interested party may testify as to con- 
 versations of herself with witnesses that have testified for the 
 representative,^" or to such a fact as by whom the support of the 
 family was furnished.^^ But she is not competent in her own 
 behalf as to such communications or transactions with a deceased 
 or incompetent person.^^ A husband is not a competent witness as 
 to such communications or transactions as are favorable to his 
 own interest;'^ and neither a husband nor wife is competent as to 
 those transactions as to which the other spouse is incompetent.** 
 
 25 Clarke v. Smith, 46 Barb. 30; Lewis v. Merrltt, 113 N. T. 386; Redding 
 V. Goodwin, 44 Minn. 355. But parties have been allowed to testify that 
 a check payable to the Intestate or bearer was not delivered to any one 
 but the bearer, McBlhenny v. Hendricks, 82 la. 657. 
 
 26Powler V. Smith, 153 Pa. St. 639; Curtis v. Hoxie, 88 Wis. 41; Friclt 
 V. Kabaker, 116 la. 494, 90 N. "W. 498. 
 
 27 Brown v. Click (W. Va.), 53 S. B. 16. 
 
 28 Connolly v. O'Connor, 117 N. Y. 91; Eisenlord v. Clum, 126 N. Y. 552; 
 McMorrow v. Dowell, 116 Mo. App. 289, 90 S. W. 107. 
 
 20 Anderson v. Hance, 49 Mo. 159; Porter v. White, 128 N. C. 42, 38 S. 
 B. 24. Testimony of children of deceased, admitted. Harp v. Harp, 136 
 Cal. 421, 69 Pac. 28. 
 
 30 Brown v. Poster, 112 Mo. 297. 
 
 31 Denise v. Denise, 110 N. Y. 562. 
 
 32 Achilles V. Achilles, 137 111. 589; Lancaster v. Blaney, 140 111. 203; 
 O'Brien v. Weiler, 140 N. Y. 281; Mullins v. Chlckering, 110 N. Y. 513; 
 Gardner v. McLallen, 79 Pa. St. 398. But see, Sherwood v. Thomasson, 124 
 Ind. 541. See also, Dicken v. Winters, 169 Pa. St 126. 
 
 33Whitmen v. Foley, 125 N. Y. 651; Griffin v. Earle, 34 S. C. 246. 
 
 84Bevelot v. Lestrade, 153 111. 625; Wyle v. Charlton, 43 Neb. 840; 
 Sutherland v. Ross, 140 Pa. St. 379; Heintz v. Dennis, 216 111. 487; Hal- 
 linssworth & Barrett (Ky.), 89 S. W. 107; Ayers v. Short, 142 Mich. 
 62 
 
978 THE LAW OF EVIDEKCE. § 779 
 
 § 779 (791). Donees, heirs, sureties, etc. — ^A donee is not com- 
 petent as to transactions or communications with, a deceased or 
 incompetent person which tend to establish his right to property 
 as a gift from the deceased or incompetent person,^" but the 
 statutes do not make a trustee of a donee an incompetent witness 
 as to such a gift ; '° and the adverse party may testify as to comr 
 munications or transactions with a trustee or donee.'^ An heir, 
 an interested party, is not competent to testify as to transactions 
 or communications with a deceased or incompetent person which 
 are favorable to himself,'* but it has been held that an heir, who 
 was in open possession of the property for some time previous to 
 the ancestor's decease, may testify as to the gift of the same from 
 his ancestor.^" The interest of heirs, not parties to the action 
 whose interests are not affected by the judgment, is too remote to 
 render them incompetent to testify as to transactions or com- 
 munications with those deceased or incompetent persons from 
 whom they would naturally inherit.*" But an heir or other party 
 is competent to testify as to such communications or transactions, 
 when he has been released from all liability in the matter in 
 question,*' or when he has parted with the entire interest which 
 
 501, 105 N. W. 1115; Chaddock v. Chaddock, 134 Micli. 48, 95 N. W. 972; 
 Tucker v. Gentry (Mo.), 67 S. W. 723. Bixcept in jurisdictions where 
 they may testify for each other, Hiskett v. Bozarth (Neb.), 105 N. W. 
 990; Lucas v. McDonald, 126 la. 678, 102 N. W. 532; Parker v. Wells 
 (Neb.), 94 N. "W. 717; Miller v. Miller, 7 Ariz. 316, 64 Pac. 415. 
 
 ssYeakel v. McAtee, 156 Pa. St. 600; Lowrey v. Lowrey, 117 la. 704, 89 
 N. W. 1118; Lee v. Patton, 50 W. Va. 20, 40 S. E. 353; Frick v. Kabaker, 
 116 la. 494, 90 N. W. 498; Hopkins v. Manchester, 16 R. I. 663; Cockrell v. 
 Mitchell (Miss.), 15 So. 41; Wilson v. Edwards (Ark.), 94 S. W. 927; 
 Hecht V. Shaffer (W'yo.), 85 Pac. 1056; Thomas v. Filley (Ala.), 41 So. 854. 
 See also, Beard v. Bank, 39 Minn. 546. 
 
 38 Devol T. Dye, 123 Ind. 321. 
 
 3T Orr V. Rode, 101 Mo. 387. 
 
 38 Oonnor v. Root, 11 Colo. 183. The rule Is applied In actions for tres- 
 pass to try title in suit by administratrix, Rogers v. Tompkins (Tex. Civ. 
 App.), 87 S. W. 379. 
 
 39 Wooters v. Hale, 83 Tex. 563. 
 
 40Hobart v. Hobart, 62 N. Y. 80; Harrow v. Brown, 76 la. 179; Curtis 
 V. Hoxie, 88 Wis. 41. See also. Chambers v. Hill, 34 Mich. 523. 
 
 41 Morris v. Bank, 93 Ala. 511; Loder v. Whelpley, 111 N. Y. 239; Oaks 
 V. West (Tex.), 64 S. W. 1033. After discharge in bankruptcy, held com- 
 petent, Pattison v. Cobb, 212 Pa. 512, 61 Atl. 1108 (see, however, Greeley 
 V. Willey, 71 N. H. 240, 51 Atl. 918). So disclaimer of Interest in parti- 
 tion, Jones V. Day (Tex.), 88 S. W. 424. Answer withdrawn, party held 
 
§ 780 COMPETENCY OP WITNESSES. 979 
 
 he formerly had in the matter. But he may be questioned as 
 to whether such interest was parted with in good faith, as a ques- 
 tion affecting his competency.*" Under some statutes a release 
 or disclaimer of interest does not make one otherwise incompetent, 
 competent to testify..*' If, however, he is made a party as a war- 
 rantor, he becomes incompetent because of interest, even if he has 
 parted with his title to the thing in question.** So a surety is in- 
 competent to testify to such communications in an action against 
 his principal,*" and the principal is incompetent in an action 
 against a surety.** 
 
 § 780 (792). Waiver, construction of statutes. — This exception 
 to the statutory rule removing the incompetency of parties was 
 introduced for the benefit of those representing the deceased or 
 incompetent person ; and their representatives may, if they choose, 
 waive this privilege. All objection to the competency of a witness 
 as to a transaction with an incompetent or deceased person will 
 be deemed waived, if it is not made at the time that the evidence 
 is given.*^ The objection must be to the competency of the witness 
 not merely to the competency or relevancy of the evidence.*' But 
 the objection to such testimony is not waived merely by the fact 
 
 competent, Bouton v. Welch, 170 N. Y. 554, 63 N. B. 539. So after judg- 
 ment fixing rights of witness, Clinton Sav. Bank v. Grohe, 115 la. 292, 
 88 N. "W. 357; Clinton Sav. Bank v. Underbill (la.), 84 N. W. 667. Ex- 
 cluded although judgment by default has been entered against the wit- 
 ness. Bunker v. Taylor, 13 S. D. 433, 83 N. W. 555. 
 
 *2Buck V. Patterson, 75 Mich. 397; Barrett v. Eastham (Tex.), 67 S. 
 W. 198. 
 
 43Volbracht v. White, 197 111. 298, 64 N. E. 324. See, Culbertson v. 
 Salinger & Brlgham (la.), 108 N. W. 454; De Roux v. Girard, 112 Fed. 89. 
 
 « Bennett v. Virginia Ranch Company, 1 Tex. Civ. App. 321 
 
 46 Kyte V. Foran, 167 Pa. St. 252. See also. In re Spott's Estate, 156 Pa. 
 St. 281. 
 
 « Grommes v. St. Paul Trust Co., 147 111. 634. 
 
 47Norris v. Stewart's Heirs, 105 N. C. 455; Parrish v. McNeal, 36 Neb. 
 727. Contra, McHugh v. Dowd's Estate, 86 Mich. 412. See also, Achilles v. 
 Achilles, 137 111. 589. So in states where the representative is not allowed 
 to testify in his own behalf, unless called by the court or adverse party, 
 objection to the competency of his evidence is deemed to be waived, unless 
 made when the testimony is offered, Denbo v. Wright, 53 Ind. 226. 
 
 isHoag V. Wright, 174 N. Y. 36, 66 N. E. 579; Wells v. Chase, 126 Wis. 
 202, 105 N. W. 799; Crebbin v. Jarvis, 64 Kan. 885, 67 Pac. 531; Hlnes v. 
 Consolidated Coal & Lime Co., 29 Ind. App. 563, 64 N. E. 886; Davis v. 
 Hall, 128 la. 647, 105 N. W. 122; Field v. Field (Tex.), 87 S. W. 726; failure 
 to object in probate court waives in superior court. In re Imboden'e Estate, 
 111 Mo. App. 220, 86 S. W. 263. 
 
980 THE LAW OF EVIDENCE. § 781 
 
 that a witness is examined by the representative to ascertain 
 whether he is rendered incompetent by these statutes.*' The strict 
 rule that the adverse party is incompetent to testify to any fact 
 equally within the knowledge of the deceased has, however, been 
 established in some st(Ues.^° The courts of these states hold that 
 the mere fact of knowledge on the part of the deceased or iaeom- 
 petent person, no matter how slight that knowledge may have 
 been, is sufficient to disqualify the adverse party.°^ They also 
 hold that evidence as to facts equally within the knowledge of 
 the deceased or incompetent person can not be received, even if 
 his representative does not object to it when it is offered.^^ 
 
 § 781 (792). Waiver by examining adverse party — Depositions. 
 — The privilege of obecting to the competency of an adverse party 
 as a witness to transactions or communications with a deceased 
 or incompetent person is waived when the representative calls the 
 adverse party as a witness ; ^^ and, when so called, the adverse 
 party may testify as to the whole transaction."* The privilege of 
 objecting to the competency of the adverse party is also deemed 
 to be waived, if the representative introdmces testimony as to the 
 transaction or communication in question.'" This may be done by 
 introducing the deposition of the deceased or incompetent person."^ 
 This renders the adverse party competent to testify fully as to 
 those transactions dealt with in the deposition, but he can not go 
 into other communications or transactions."' So the introduction 
 
 *9 Tretlieway v. Carey, 60 Minn. 457, 62 N. W. 815. 
 
 60 Wood V. Fox, 8 Utah, 380; McHugli v. Dowd's Estate, 86 Mich. 412; 
 Simpson V. Gafney, 66 N. H. 261; Carr v. Carr, 138 Mich. 396, 101 N. W. 550. 
 
 51 Kimball v. Kimball, 16 Mich. 211. 
 
 02 McHugh v. Dowd's Estate, 86 Mich. 412. 
 
 BsKeithley v. Stafford, 126 111. 507; Bartlett v. Burden, 11 Ind. App. 419; 
 Warren v. Adams, 19 Colo. 515; Dnnlap v. Dunlap, 94 Mich. 11. 
 
 5*NiccoIls V. Esterley, 16 Kan. 32; Warren v. Adams, 19 Col. 515; Currie 
 V. Mickie, 123 Wis. 120, 101 N. W. 370. When evidence is given of admis- 
 sions of adverse party as to transactions with deceased he may rebut fully, 
 Gallagher v. Kiley, 115 Ga. 420, 41 S. E. 613. 
 
 55Mumm V. Owens, 2 Dill. (U. S.) 475; Burleigh v. White, 64 Me. 23; 
 Dowis' Heirs v. Elliott (Ky), 29 S. W. 142; Currie v. Michie, 123 Wis. 
 120, 101 N. W. 370; Dee v. King, 77 Vt. 230, 59 Atl. 839; Cline v. Dexter. 
 72 Neb. 619, 101 N. W. 246. 
 
 seMonrore v. Napier, 52 Ga. 385; Rakes v. Brown, 34 Neb. 304; Eaves 
 V. Harbin, 12 Bush (Ky.) 445; Allen v. Chouteau, 102 Mo. 309; Mumm 
 V. Owens, 2 Dill. (U. S.) 475; Drewry v. Hopper, 77 Miss. 744, 27 So. 597. 
 
 oT.Burleigh v. White, 64 Me. 23; Allen v. Chouteau, 102 Mo. 309; Jack' 
 
§ 782 COMPETENCY OF WITNESSES. 981 
 
 of a writing does not make the adverse party competent to show 
 what was said and done when that writing was made,"^ but When 
 the representative has gone into the writings, the adverse party 
 becomes competent as to the whole transaction.^" When a depasi- 
 tion is introduced merely to show the identity of two causes of 
 action, this does not make the adverse party competent to testify 
 as to any transactions or communications with the deceased or 
 incompetent persons.*" So the mere fact that the deposition of a 
 deceased or incompetent person has been taken before the death 
 or incompetency of the party occurred does not render the adverse 
 party competent, unless it hasi been read;*^ even if it is in court.'^ 
 But the representative waives the right to object to the testimony 
 of the adverse party as to such transactions or communications, if 
 he has caused the deposition of the adverse party to be taken. The 
 deposition may be read by the adverse party himself, if the repre- 
 sentative refuses to read it, despite the fact that it deals with transn 
 actions or communications with a deceased or incompetent person. °' 
 So the adverse party may render himself competent as to such 
 transactions or communications by introducing the deposition of the 
 decedent or that of himself, taken before the death of the other 
 party.'* 
 
 § 782 (792). Same — Former trials. — Objections to the com- 
 petency of the adverse party may be waived if the testimony of 
 the deceased or incompetent person which has been preserved in 
 the bill of exceptions is introduced,''^ or if such testimony, taken 
 at a former trial or hearing of the action, is presented by the rep- 
 resentative.°° If the whole of the testimony so taken is not read, 
 
 son V. Joaes, 74 Tex. 104; Martin v. Hillen, 142 N. Y. 140, 36 N. E. 803. 
 See however, Dee v. King, 77 Vt. 230, 59 Atl. 839; Christopher v. Wilkins, 
 64 N. J. Ea. 354, 51 Atl. 728. 
 
 68 Woodbury v. Woodbury's Estate, 48 Vt 94; Ross v. Kirkwold, 123 la. 
 668, 99 N. W. 562. 
 
 69 Sheipp V. Davis, 78 Ga. 20. 
 
 60 Furbush v. Barker, 38 Neb. 1. 
 
 •I Levy v. Dwlght, 12 Oolo. 101. See also, Messlmer v. MieCrary, 113 
 Mo. 382. 
 
 82Hollis v. Calhoun, 54 Ga. 115. 
 
 63 Thomas v. Irwin, 90 Tenn. 512; Nels v. Farquharson, 9 Wash. 508. 
 Contra, Maldaner v. Smith, 102 Wis. 30, 78 N. W. 140. 
 
 64 Coble v. McClintock, 10 Ind. App. 562. 
 66 Stone V. Hunt, 114 Mo. 66. 
 
 66Baar<lslee v^ Keeves, 76 Mich. 6£i. But see, Green v Gould, 3 Allaa, 
 465. 
 
982 THE LAW OP EVIDENCE. § 783 
 
 the adverse party may read as much more as he deems necessary 
 to present his case fairly to the jury ; *^ and, as in the case of depo^ 
 sitions, the adverse party may himself testify as to transactions 
 with the deceased or incompetent person which were dealt with 
 in the testimony so introduced."' The rule is that the evidence 
 must be x^ompetent at the time it is given. If 'the adverse party has 
 died or become incompetent since the trial began, the other party 
 is disqualified by these statutes, as they have reference to the 
 time of trial, rather than to that at which the suit was begun."' 
 So if the other party to the action has died or become incompetent 
 since being examined, the adverse party is not competent as to 
 transactions with the deceased party which are not treated in 
 this testimony.'" Nor is the adverse party competent to testify 
 as to transactions with a deceased or incompetent person, even 
 if at a former trial of the same action, occurring before his death 
 or incompetency, the deceased or incompetent person testified 
 fully as to such transactions, unless this testimony has been 
 introduced by the representative.'^ The mere fact that the repre- 
 sentative called the adverse party at a former trial does not make 
 him competent as to any such communication or transaction at a 
 new trial of the action, unless the representative in some way 
 waives the privilege of objecting to the competency of the adverse 
 party as a witness.'^ 
 
 § 783 (792). Waiver by calling other witnesses to the trans- 
 action or communication. — If the representative testifies or calls 
 other witnesses interested in the estate to testify as to transactions 
 or communications of the deceased or incompetent with the ad- 
 verse party, he thereby waives his right to object to the testimony 
 of the adverse party. But the adverse party is competent only 
 as to those transactions or communications concerning which testi- 
 mony has been given,'^ but he may, of course, go fully into all 
 
 67 Beardslee v Reeves, 76 Mich. 661. 
 
 68 Stone V. Hunt, 114 Mo. 66. 
 
 »8 Hart V. McGrew, (Pa.), 11 Atl. 617. A deposition used on the trial 
 cannot be suppressed on appeal because of the death of the adverse 
 party since the trial, Hinkson v. Ervin (W. Va.), 20 S. E. 849. 
 
 '0 BeckhauB v. Ladner, 48 N. J. Eq. 152. 
 
 71 Taylor v. Bunker, 68 Mich. 258; Cake v. Cake, 162 Pa. St. 584. 
 
 '2 Bair v. Frlschkorn, 151 Pa. St. 466. 
 
 '8 Rakes v. Brown, S4 Neb. 304; Parrish v. McNeal, 36 Neb. 727; Martin 
 v. Martin, 118 Ind. 227} Go-iffln \f. Griffin, 125 111. 430; Boardman v. Brown, 
 114 la. 678, 87 N. W. 674; Booth v. L«nos (Fla.), »4 So. SSQ', Kuhn v. 
 
§ 784 COMPETENCY OF WITNESSES. 983 
 
 those transactions.''* The courts of some states, however, hold 
 that, if the representative has introduced testimony as to any 
 transaction with any deceased or incompetent person, the adverse 
 party may testify generally and to any extent.'^ But the general 
 rule is as stated. The adverse party cannot testify as to any trans- 
 actions other than those concerning ivhich the representative has 
 introduced evidence, even though such testimony as to a separate 
 and independant transaction or communication would tend to 
 contradie": the testimony given as to the transaction in question.^' 
 Nor does the mere fact that the representative has offered himself 
 as a witness, when he has not gone into these transactions or 
 commimications of the adverse party and the deceased, make the 
 adverse party competent.'^ When the representative has intro- 
 duced evidence as to transactions between the deceased and the 
 adverse party, the court has no discretion in the matter to receive 
 or reject the testimony as it see fit, but it must receive the testi- 
 mony of the adverse party, if it is offered in such case.'* 
 
 § 784 (792), Waiver by cross-examination of adverse party. — 
 The incompetency of the adverse party may also be removed by 
 his being cross-examined as to the transaction in question by the 
 representative ; '"' and he is thereby rendered competent to testify 
 
 Kuhn (Ky.), 69 S. "W. 1077; Bryant v. Stainbrook, 40 Kan. 356; Kelton 
 V. Hill, 59 Me. 259; Murphy v. Ray, 73 N. C. 588; Waters t. Davis (Ky.), 
 
 2 S. W. 695; Corning v. Walker, 100 N. Y. 547, 550; Rankin v. Hannan, 
 38 Ohio St. 438; Williams v. Cooper, 113 N. C. 286; Hurd v. Fleck, 34 Colo. 
 262, 82 Pac. 485. But see, Redding v. Goodwin, 44 Minn. 355; Allen v. 
 Jones, 1 Ind. App. 63. 
 
 T4 Matthews v. Hoagland, 48 N. J. Eq. 455; McOartin v. Traphagen'a 
 Adm., 45 N. J. Bq. 265; Nay v. Curley, 113 N. Y. 575; In re Glad's Estate. 
 214 Pa. 141, 63 Atl. 542. 
 
 JBDow V. Merrill, 65 N. H. 107; Strode v. Frommeyer, 115 Mo. App. 
 220, 91 S. W. 167. But the New Hampshire court holds that the Identi- 
 fication of the deceased's books by his representative Is not an election 
 on his part to testify or a waiver of the privileges of the statute, Sheehan 
 V. Hennessey, 65 N. H. 101. 
 
 7« Martin v. Hillen, 142 N. Y. 140; Telford v. Howell, 220 lU. 52, 77 
 N. B. 82. 
 
 '■T McCartln v. Traphagen's Adm., 45 N. J. Bq. 265. 
 
 T8 Ballon V. Tllton, 52 N. H. 605. 
 
 '» Michigan Savings Bank v. Estate of Buller, 98 Mich. 381; Boyd v. 
 Conshohooken Mill, 149 Pa. St. 363; Moore v. May, 117 Wis. 192, 95 N. 
 W. 45; Edwards v. Icatlmer (Mo.), 82 S. W. 109. But see, Green •». Gould, 
 
 3 Allen, 466. 
 
984 THE LAW OF EVIDENCE. § 785 
 
 to the whole of that particiilar transaction.'" But cross-examina- 
 tion as to conversations that did not take place between the 
 deceased and the adverse party does not warrant a general exami- 
 nation as to the decedent's conversations on the subject matter of 
 the controversy.'^ The Illinois court has held that, by such 
 cross-examination, the representative does not waive the right to 
 object to such testimony as incompetent after it has been given.''' 
 The adverse party may cross-examine the witnesses introduced by 
 the representative fully as to the whole of the transaction or 
 communication in question," but he cannot cross-examine the 
 representative as to facts not touched in the direct examination,'* 
 and thus make his own testimony competent. '^ It has been held 
 that if a party is cross-examined under discovery statutes as an 
 adverse party as to transactions with deceased, and this is offered 
 in evidence the party examined may then testify fully on aU 
 matters relevant to the issues." But in Wisconsin the incom- 
 petency of the party under the statute to testify as to personal 
 transactions between himself and one whom he claims to have 
 been the agent of the adverse party, is not removable by the ex- 
 amination of such party otherwise than as a witness at the instance 
 of such adverse party in his own behalf, and then the incom- 
 petency is removable only by the conduct of the adverse party in 
 the manner indicated in such statute. The door for such party to 
 testify is closed by the statute against any effort of his to open it. 
 The adverse party must open the door, if opened at all." 
 
 § 785 (793). Meaning of the term "transaction."— The term 
 "transaction" which is used in nearly all the statutes has not been 
 given any very definite meaning by the courts. Whatever may be 
 done by one person which affects another's rights, and out of 
 which a cause of action may arise, is a transaction." It is a 
 
 80 Foster v. Hess, 57 Minn. 282, 59 N. W. 193; Smith, v. Smith, 101 N. 
 C. 461; Clift V. Moses, 112 N. Y. 426. 
 
 siLahey v. Heenan, 81 Pa. St. 185; Perry v. Mulligan, 58 Ga. 479. 
 
 M Achilles v. Achilles, 137 111. 689. 
 
 88 Brown v. Poster, 41 S. C. 118. 
 
 84 Williams v. Cooper, 113 N. C. 286; Loeb v. Stern, 198 111. 371, 64 
 N. B. ia43; Kline v. Stein, 30 Wash. 187, 70 Pac. a36. 
 
 80 Corning v. Walker, 100 N. Y. 547- 
 
 88 German v. Browne (AIa»), 39 So. 742; Young v. Montgomery, 161 
 Ind. 68, 67 N. E. 684. So heid thoug;h the deposition was not offered. Bice 
 ■ V. Waiddill, 168 Mo. 99, 67 S. W. 605. 
 
 «^ Maldaner v. Smith, 102 Wis. SO, 78 N. W. 140. 
 
 88 Scarborough v. Smith, 18 Kan. 399, 406. 
 
§ 785 COMPETENCY OP WITNESSES. 985 
 
 hroader term than contract, for while every contract is a trans- 
 action, every transaction is not a contract.*' But the courts have 
 interpreted the term as the justice of each case seemed to demand, 
 rather than by an abstract definition, as will be seen by a few 
 
 8» Roberts v. Donovan, 70 Cal. 108, 113. The following have heen held 
 to fall within the meaning of the word "transaction:" The execution of 
 a note by a deceased person. Gist v. Gaus, 30 Ark. 285; Regan v. Jones 
 14 N. D. 591, 105 N. W. 613; Auohampaugh v. Schmidt, 72 la. 656; Clark 
 V. Clark (Ky.), 91 S. W. 284; the delivery of a letter, Howard v. Zimple- 
 man (Tex.), 14 S. W. 59; or of property, Dicken v. Winters, 169 Pa. St. 
 126; a contract as to services, Wagner v. Robinson, 56 Ga. 47; Berry v. 
 McArdle, 62 N. H. 354; McDonald v. Harris, 131 Ala. 359, 31 So. 548; as 
 to the value of the services rendered, Wagner v. Robinson, 56 Ga. 47; 
 Shain v. Forbes, 82 Cal. 577; Dunn v. Currie (N. C), 53 S. E. 533; Parker 
 V. Ballard, 123 Ga. 441, 51 S. E. 465; Stock v. Cannon, 139 N. C. 60, 51 
 S. E. 802; that the services were performed. Herring v. Herring's Estate, 
 94 la. 56, 62 N. W. 666; that the account sued on is correct, Boyd v. Canthen 
 28 S. C. 72; that the work done had not been paid for, Lerche v. Brasher, 
 104 N. Y. 157; Ridler v. Ridler, 93 la. 347, 61 N. W. 994; Cole v. Marsh 
 (Iowa), 60 N. W. 659; as to the kind of work done or what i>ay was ex- 
 pected for the same, Cowen v. Musgrave, 73 la. 384; bickerson v. Payne, 
 66 N. J. L. 35, 48 Atl. 528; Cash v. Kirkham, 67 Ark. 318, 55 S. W. 181; 
 Dreggar v. Pitts (Ala.), 39 So. 905; Davidson v. Bordens, (N. C), 51 S. B. 
 779; that the note in question had been paid, Montague v. Thompson, 91 
 Tenn. 168; Proctor v. Procter (Ky.), 81 S. W. 272; Jockisch v. Hardtke, 50 
 111. App. 202; or not paid, Abbott v. Stiff (Tex.), 81 S. W. 562; McGowan v. 
 Davenport (N. C), 47 S. B. 27; or payment demanded, Davis v. Evans, 139 
 N. C. 440, 51 S. E. 956; or that it was the only note ever given, Regan v. 
 Jones, 14 N. D. 591, 105 N. W. 613; or without consideration, Boyd v. Boyd, 
 164 N. Y. 234, 58 N. E. 118; Luke v. Keener, 120 la. 103, 94 N. W. 278; De- 
 posit Bank v. Caffee, 135 Ala. 208, 33 So. 152 ;or that a deed was a forgery, 
 Halton V. Dunker, 198 111. 407, 64 N. E. 1050; or whether defendant had 
 ever given any obligation, Garretson v. Kinkead, 118 la. 383, 92 N. W 55; 
 or inferences from conversations. In re Saywer's Bstart;e, 88 Minn. 218, 
 92 N. W. 962; that money had been deposited with the deceased or incom- 
 petent person, Nunnallv. v. Becker, 52 Ark. 550; as to the alleged ma/r- 
 riage of the deceased, Hopkins v. Bowers, 111 N. C. 175 ; Bowman v. Little, 
 101 Md. 273, 61 Atl. 223; In re Imboden's Estate, 111 Mo. App. 220, 86 S. W. 
 263; In re Mather's Estate, 210 111. 160, 71 N. E. 438 (the rule is otherwise 
 where this Is not the question directly in issue. Green v. Green, 126 Mo. 17) . 
 This is so even If the representative of th« deceased or incompetent per- 
 son has been given notice to produce the originals, Webster v. LeCompte, 
 74 Md. 249. It has been held that these statutes apply to Incompetent 
 testimony to prove the contents of Tost deeds. King v. Worthington, 73 
 111. 161; or of lost letters, ' Schratz v. Schratz, 35 Mich, 485; Sabre v. 
 Smith, 62 N. H. 663; as to land included In a contract of sai^ Bargo v. 
 Bargo (Ky.), 86 S. W. 515; that plaintiff was a daughter of deceased. 
 
986 THE LAW OF EVIDBNCE. § 786 
 
 of the decided eases. An adverse party cannot testify as to trans- 
 actions or communications with a deceased or an incompetent 
 person which are favorable to himself, such as would release him 
 from a debt, to the deceased or incompetent person,"" or show 
 that a debt was due him from such deceased or incompetent person 
 or that the deceased was jointly bound with him.°^ Nor can the 
 representative of the deceased or incompetent person testify as 
 to transactions with such deceased or incompetent person that are 
 favorable to himself personally.^^ 
 
 § 786 (793). Same, continued. — In a few jurisdictions the test 
 for excluding the communication is whether or not the matters 
 claimed, if true, must have been equally within the knowledge of 
 the deceased person.'^ But ordinarily the language of the statute 
 is more specific and must be the test according to the circum- 
 stances of each case. The following things cited in the notes have 
 been held not transactions with the deceased, or incompetent per- 
 son within the meaning of the statute."* The rule has been thus 
 
 Crumley v. Worden, 201 111. 105, 66 N. E. 318; or what a note was 
 given for, Merbofl v. Merhoff, 84 Minn. 263, 87 N. W. 781; or mode of 
 paying consideration, Merhoff v. Merhoff, 84 Minn. 263, 87 N. W. 781; or 
 denial of making an assignment to deceased, Morris v. Pullen (Ky.), 62 
 S. W. 492; or payment of rent to deceased. Ring v. Lawless, 190 111. 
 520, 60 N. E. 881; or that no one had made payment, Angel v. Angel, 
 127 N. C. 451, 37 S. E. 479; alteration of note after delivery, Jewell 
 V. Walker (Ga.), 34 S. E. 337; that credits were indorsed on note while 
 in possession of payee, Cornelius' Adm'r. v. Miles (Ky.), 53 S. W. 517; 
 as to "agreement of marriage," Edelstein v. Brown (Tex.), 95 S. W. 1126; as 
 to any collateral facts, Bowman v. Little, 101 Md. 273, 61 Atl. 1084 (but see 
 Nolan V. Doss, 133 Ala. 259, 31 So. 969) ; the want of notice of protest, Lewis 
 V. Weiseham, 1 Mo. App. 222; the consideration of a deed or note, Rick- 
 man V. Atwood, 71 111. 155; the date of a deit against the deceased, Bule 
 V. Scott, 107 N. C. 181; or that the mortgage in question was m-ere security 
 for notes that the deceased had endorsed for the mortgagor, Terhune v. 
 Oldis, 44 N. J. Eq. 146. 
 
 90 Luetchford v. Lord, 132 N. Y. 465; Farnam v. Virgin, 52 Me. 576; Mell 
 V. Earner, 135 Pa. St. 151; Simpson v. Simpson, 107 N. C. 552; Nau v. Brur 
 nette, 79 Wis. 664. But see. Cole v. Gardner, 67 Miss. 670. 
 
 81 Skelton v. Richardson, 77 Ga. 546, Rohinson v. Dugan (Oal), 35 Pac. 
 902; Quarrier's Adm. v. Quarrier's Heirs, 36 W. Va. 310. 
 
 82 Tuck V. Nelson, 62 N. H. 469; Whiteside v. Green, 64 N. C. 307; Fisher 
 V. Mandell, 83 Ga. 715; In re Kellogg, 104 N. Y. 648; Gioodwin v. Goodwin, 
 48 Ind. 584. 
 
 OS Wilcox V. Wilcox, 139 Michv 366, 102 N. W. 954. 
 
 9* The finddng of a will or other document after the death of the de- 
 
§ 786 COMPETENCY OF WITNESSES. 987 
 
 stated "in actions to recover for services rendered a testator where 
 the employment has been completely proved, the plaintiff may 
 describe the things which he did, provided such acts were done 
 in the absence of the deceased and without his immediate or per- 
 sonal participation, and the deceased, if living, could not for that 
 reason contradict such testimony." "^ So it is held that the witness 
 may testify to act, conduct or transactions iy the deceased within 
 the observation of the witness if wholly unparticipated in and un- 
 influenced by him.^' Most of the authorities hold that the adverse 
 
 ceased, Griffin v. Griffin, 125 111. 430; Cornelius v. Brawley, 109 N. C. 542 
 (see also. Potter v. Nelson's Ex., 121 Pa. St. 628; Resseguie v. Mason, 58 
 Barb. (N. Y.) 89, 99); the carrying of supplies to the decedent, Co-waji v. 
 Layburn, 116 N. C. 526;' the occupation of land ■without agreement. Brown 
 V. Moore, 26 S. C. 160; testimony as to the situation of an abutment of an 
 old bridge, Krepps v. Carlisle, 157 Pa. St. 358; the loss of a note sued on, 
 Nash V. Gibson, 16 la. 305; the proving of residence when material, Trimble 
 V. Mims, 92 Ga. 103; the insolvency of sureties. Topping v. Windley, 99 N. 
 C. 4; the attempt to collect a note, Wliite v. Beaman, 96 N. G. 122; at- 
 tempt to sell goods, Steiner v. Eppinger, 61 Fed. 253; whether witness 
 owed a deM to deceased, Veum v. Sheeran, 95 Minn. 315, 104 N. "W. 135; 
 and th« ■ instructions to a person who wrote letters or drew instruments 
 for the deceased, Smith v. Pierce, 65 Vt. 200; Spencer v. Boardman, 118 
 111. 553; the quality of the ioard furnished the incompetent or deceased 
 person and as to the length of tima for which the board was given, Prlch- 
 ard V. Priohard, 69 Wis. 373 (but he is incompetent as to conversations 
 with the deceased or incompetent person as to such board, Heyne v. Doer- 
 lier, 124 N. Y. 505) ; the physical condition of the deceased or incompetent 
 person and as to the amount of time required to care for him, Sullivan v. 
 Lattimer, 38 S. C. 158; Marietta v. Marietta, 90 la. 201; Lake Erie & W. 
 R. Co. V. Charman, 161 Ind. 95, 67 N. E. 923 (see also, Todd v. Martin, 
 (Cal.), 37 Pac. 872) ; the amount of money collected, Lewis v. Meginniss, 30 
 Pla. 419; the contract of hire by which the deceased gained possession of 
 the property in question. Penny v. Black, 6 Bosw. (N. Y.) 50; that the de 
 ceased knew the amount of work that the adverse party had done, Toggeth 
 V. Gaffney, 33 S, C. 303 ; Trummer v. Thompson, 41 S. C. 125, a leading case. 
 When the meaning of such documents is obscure, the scrivener who wrote 
 them may explain their purport, even though one of the parties is dead, 
 Shoemake v. Smith, 80 Iowa, 655. It has been held that the statutes do 
 not apply to actions by administrators to recover damages from a railway 
 fOT killing the deceased, Louisville Ry. Co. v. Thompson, 107 Ind. 442. 
 In some jurisdictions the witness may testify as to the worlc done and its 
 value. Buckler v. Kneezel (Texas), 91 S. W. 367. 
 
 osLerche v. Brasher, 104 N. Y. 157, 10 N. B. 58; Fitch v. Martin (Neb.), 
 104 N. W. 1072. 
 
 aeschulz V. CJulberson, 125 Wis. 169, 103 N. W. 234; Johnson v. Cameron, 
 136 N. C. 243, 48 S. M. (MO; Curd v. Wlssler, 120 la. 743, 95 N. W.^W; With- 
 
988 THE LAW OF EVIDENCE. § 786 
 
 party cannot prove the genuineness of the signature of a deceased 
 pr incompetent person to an instrument in which he is interested.'^ 
 Nor can the adverse party testify that the signature to an instru- 
 ment, unfavorable to his interest, was procured by fraud."' But 
 these statutes do not make the adverse party incompetent to prove 
 the signature of a deceased or incompetent person to a collateral 
 instrument.®* In general, the adverse party may testify to any fact 
 which is not either a transaction, a comrminication or a statement 
 of the deceased or incompetent person, even if it is material to the 
 case, unless the statute expressly makes him incompetent as to 
 facts equally within the knowledge of the deceased or incompetent 
 person.^ "The rule of the statute does not operate to close the 
 mouth of a witness as to any matter of fact coming to his knowl- 
 edge in any other way (than) through personal dealings with the 
 deceased person, or communications made by the deceased to the 
 witness in person. This is not only the language of the statute, 
 but it is the thought of the cases. The theory of the law is to close 
 the mouth of the living person as to a matter in which he had a 
 
 era v. Sandlln (Fla.), 32 So. 827; Stiff v. Cobb (Ala.), 28 So. 402; Hutton v. 
 Smith, 175 N. Y. 375, 67 N. E. 633. As to state of health, of deceased by 
 beneficiary under insurance policy, Lauber v. Lamb, 105 Ind. 456; Supreme 
 Lodge V. Andrews, 31 Ind. App. 422, 67 N. E. 1009. Mental condition of de- 
 ceased, Grimsbaw v. Kent, 67 Kan. 463, 73 Pac. 92; Gate v. Hunt, 112 Ga. 
 139; receipt of letters, Britt v. Hill, 116 la. 564, 90 N. W. 340; Minnis 
 V. Abrams, 105 Tenn. 662, ^0 Am. St. Rep. 913. If there are deeds of sev- 
 eral tracts to several parties, each may testify as to the other deeds, Nich- 
 ols V. King (Ky.), 68 S. W. 133. Taking possession of the farm of de- 
 ceased and making improvements thereon, Hutton v. Doxsee, 116 la. 13, 
 89 N. W. 79; other property relations with deceased, Marvin v. Yates, 26 
 Wash. 50, 66 Pac. 131. 
 
 o'Merritt v. Straw, 6 Ind. App. 360; HolUday v. McKinne, 22 Fla. 153. 
 See also. In re Toomey's Estate, 150 Pa,. St. 535; Keener v. Zartman, 144 
 Pa. St. 179; Sawyer v. Grandy, 113 N. C. 42; Cole v. Marsh, 92 la. 379, 60 
 N. W. 659. Allowed where witness was expert and testiomny was based 
 on comparison, Patton v. Bank, 124 Ga. 965, 53 S. B. 664. Conduct between 
 deceased and another admitted, Bdelstein v. Brown (Tex.), 95 S. W. 1126. 
 
 98 Watthaus v. Schack, 105 N.- C. 33.2. 
 
 09 Perebec v. Prichard, 112 N. C. 83. 
 
 1 Harrington v. Samples, 36 Minn. 200; Moores v. "Wills, 69 Tex. 109; In 
 re Taylor's Estate, 154 Pa. St. 183; McCaul v. Wilson, 101 N. C. 598; Rich- 
 ards V. Munro, 30 S. C. 284; Sherbley v. Hill, 57 Ga. 232; Harris v. Seins- 
 heimer, 67 Tex. 356; Adams v. Allen, 44 Wis. 93; March v. Verbis, ?9 N. 
 C. 19; Clary v. Smith, 20 Kan. 83; Sharmer v. Johnson, 43 Neb. 509. 
 
§ 787 COMPETENCY OF WITNESSES. 989 
 
 part."* If the transaction relative to the estate of the deceased 
 or incompetent person occurred after the person died or became 
 incompetent, the adverse party is, as a rule, competent to testify 
 as to them.' But this rule does not apply, of course, when the 
 representative with whom the transaction was had is himself dead. 
 It has been held in Illinois, however, that, if the representative is 
 a guardian or trustee, these transactions must be subsequent to 
 the time when the ward or cestui que trust became of age as well 
 as after the death or incompetency of the deceased or incompetent 
 person, in order to bring the ease within the rule just stated.* 
 
 § 787 (794). Transactions with partners. — The statutes and de- 
 cisions in the various jurisdictions modify the general rule some- 
 what when the parties to the transaction in question stand in some 
 specidl relation to each other, as is the case with partners and 
 principals and agents. In case a memher of a partnership dies, the 
 surviving members are representatives within the meaning of these 
 statutes, and the adverse party is not competent as to a transaction 
 or communication with such deceased or incom^petent partner, in 
 which he appeared in his capacity as a member of the firm." If, 
 however, the transaction or communication was in the presence of 
 a surviving partner, the adverse party is thereby made competent 
 to testify as to such transaction or communication." Some author- 
 ities hold that, if the surviving partners enjoy the benefits of the 
 transaction or are seeking to enforce rights acquired because of it, 
 
 2 Shelter v. Stewart, 133 la. 320, 107 N. W. 310; Alexander v. Ransom, 
 16 S. D. 302, 92 N. W. 418. 
 
 3 Brown v. Brown, 48 N. H. 90; Poe v. Donee, 54 Mo. 119; McOlothlln v. 
 Henry, 59 Mo. 213; Stone v. Cook, 79 111. 424; Swasey v. Ames, 79 Me. 483; 
 Moore v. Dutson, 79 Ga. 456; Griffin v. Griffin, 125 111. 430; Leeper v. Tay- 
 lor, 111 Mo. 312; Potter v. Nelson, 121 Pa. St. 628; Cornelius v. Brawley, 
 109 N. C. 542; WitHerspoon v. Blewett, 47 Miss. 570; Voiles ▼. Voiles, 51 
 Ind. 385; Waldman v. Crommelin, 46 Ala 580; Huntsburg v. Smith (Ky.), 
 90 S. W. 601; Steen v. Kirkpatrick .(Miss.), 36 So. 140. A breach of a 
 lease, since the lessor's death, does not make the lessee competent to tes- 
 tify against the administrator, Briggs v. McCurley, 76 Md. 409. 
 
 i Stone V. Cook, 79 111. 424. 
 
 5 Harris v. Bank, 22 Fla. 501, 1 Am. St. Rep. 201; Lawrence v. Vilas, 20 
 Wis. 381; Baxter v. Leith, 8 Ohio St. 84; Hanna v. Wray, 77 Pa. St. 27; 
 Adams v. Eafiherly Hardware Co., 78 Ga. 485; Gamett v. Wills (Ky.), 69 
 S. W. 695; People's Nat. Bank v. Wilcox, 136 Mich. 567, 100 N. W. 24; 
 Warren Deposit Bank v. Younglove (Ky.), 66 S. W. 749. 
 
 "Lawrence v. Vilas, 20 Wis. 381; McGehee v. Jones, 41 Ga. 123; Paddock 
 
990 THE LAW OF EVIDENCE. § 788 
 
 they will not be allowed to claim the privilege of excluding the 
 testimony of the adverse party.'' Some of these courts hold this 
 rule because of the nature of the partnership relation, others 
 because of the wording of the statutes. It has been held that the 
 surviving partners cannot be excluded under statutes that make 
 assignees incompetent as to such communications or transactions." 
 The survivors cannot testify for themselves nor for each other 
 against the representative of a deceased or incompetent person, 
 even if he were a partner in their firm; ' nor are they competent 
 witnesses to establish the existence of the partnership relation 
 between themselves and the deceased or incompetent person."" 
 But the mere fact that the deceased was a member of the partner- 
 ship, and that the matters in controversy relate to the partnership 
 affairs does not take the case out of the general rule, unless the 
 testimony offered was adverse to the interest of the representa- 
 tive." 
 
 § 788 (794) . Transactions with agents. — The reason far the rule 
 rendering the adverse party incompetent as to transactions or 
 communications with the deceased or incompetent person is often 
 wanting when an agent represented either party in the transaction 
 or communication in question, for such agent is competent to 
 testify to all that took place, and to aU that was said at that time. 
 Since he is not interested in the result of the action, nor bound by 
 the judgment, he is deemed an impartial witness. But the courts 
 guard the right of the representative of the deceased or incompe- 
 tent person to object to such testimony carefully, and hold that 
 the' existence of the agency must first he determined by the court 
 before testimony can be considered competent because an agent 
 participated in the transaction or communication.^^ The adverse 
 party is competent to testify to transactions or communications 
 with a deceased or incompetent person which were made with an 
 
 TFales V. Jordan, 44 Miss. 283; Wood v. Stewart, 9 Ind. App. 321; Clapp 
 V. Hull, 18 R. I. 652. Contra, Hook v. Bixty, 13 Kan. 164; Wiley v. Morse, 
 30 Mo. App. 266; Parker v. Edwards, 85 Ala. 246. 
 
 8 Carlton v. Mays, 8 W. Va. 245; Tremper v. Conklin, 44 Barb. (N. Y.) 
 456; Whitley v. Hudson, 114 Ga. 668, 40 S. E. 838. Contra, Standbridge v. 
 Catanach, 83 Pa. St. 3G8. 
 
 9 Godfrey v. Templeton, 86 Tenn. 161; Dick v. Williams, 130 Pa. St. 41; 
 Graham v. Howell, 50 Ga. 203. 
 
 10 Cooper v. Wood, 1 Colo. App. 101; Adams v. Morrison, 113 Pa. St. 152. 
 
 11 Hosmer v. Burke, 26 la. 353. 
 
 12 Cairns v. Mooney, 62 Vt 172. 
 
§ 788 COMPETENCY OP WITNESSES. 991 
 
 agent of such a person in cases in which the agent is still alive and 
 competent to testify}^ But the testimony of the adverse party 
 must be confined to those transactions or communications which 
 were had with the agent.'^* The death of the agent of either party 
 does not render the other party incompetent to testify to trans- 
 actions conducted by the deceased agent for his principal who is 
 still alive and competent to testify. The principal is not the sur- 
 vivor of the agent; nor is the estate of the agent affected by the 
 aetion.^^ The rule is not uniform in the different states as to the 
 competency of the agent of the adverse party to testify to trans- 
 actions or communications with the deceased or incompetent 
 person. The rule more generally adopted seems to be that, as the 
 agent is not a party to the action nor bound by the judgment, he 
 is a competent witness for the adverse party to prove any trans- 
 action or communication with the deceased or incompetent per- 
 son.^' Much of the apparent conflict in regard to this rule arises 
 
 13 Smith V. Smith's Estate, 91 Mich. 7; Hanf v. Northwestern Aid Ass'n., 
 76 Wis. 450; Miller v. Wilson, 126 Mo. 48; Kansas Manufacturing Co. v. 
 Wagoner, 25 Neb. 439; Andrews v. Fendall, 7 Macbey (D. C.) 311; Re- 
 herd's Adm. V. Clem, 86 Va. 374; Davis v. Hawkins, 163 Pa. St. 228; Whit- 
 taker V. Grover, 54 Ga. 174; Crutcher v. Stuart (Ky.), 82 S. W. 421; Guil- 
 laume v. Plannery (S. D.), 108 N. W. 255. Excluded unless agent is com- 
 petent to testify, Montelius v. Montelius, 209 Pa. 541; Skeen v. Moore, 120 
 Ga. 1057, 48 S. E. 425; Crosno v. Bowser Milling Co. (Mo.), 80 S. W. 275; 
 Moore v. May, 117 Wis. 192, 94 N. W. 45; Knight v. Wilson (Ky.), 58 S. W. 
 
 439. Held in Michigan that the statute does not exclude agents of part- 
 ners, Demary v. Burtenshaw's Estate, 131 Mich. 326, 91 N. W. 647. 
 
 " Reherd's Adm. v. Clem, 86 Va. 374. 
 
 "Reynolds v. Iowa Ins. Co., 80 la. 563; Crawford v. Hildebrandt, 65 
 N. Y. 107; Sprague v. Bond, 113 N. C. 557; Poquet v. North Hero, 44 Vt. 91; 
 Spencer v. Trafford, 42 Md. 1; Voss v. King, 33 W. Va. 236; Roberts v. Rich- 
 mond Co., 109 N. C. 670; Kansas Manufacturing Co. v. Wagoner, 25 Neb. 
 439; Cornell v. Barnes, 26 Wis. 473. Contra, Robertson v. Reed, 38 Mo. 
 App. 32. By the provisions of some of the statutes, the adverse party Is 
 expressly made incompetent as to transactions or communications with 
 deceased agents of others. Warren v. Strane, 82 Ala. 34; Moore v. May, 
 117 Wis. 192, 94 N. W. 45; Gustafson v. Eger, 132 Mich. 387, 93 N. W. 893. 
 
 leNerpass v. Gilman, 104 N. Y. 506; Fidelity & C. Co. v. Goff's Ex. (Ky.), 
 30 S. W. 626; Darwin v. Keigher, 45 Minn. 64; Shaub v. Smith, 50 
 Ohio St. 648; Krause v. Equitable Life Assurance Soc. (Mich.), 63 N. W. 
 
 440. Contra, Insurance Co. of N. A. v. Brim, 111 Ind. 281; McCamy v. 
 Cavender, 92 Ga. 254; Kean v. Landrum, 72 S. C. 556, 52 S. B. 421; Clark v. 
 Thias, 173 Mo. 628, 73 S. W. 616; Carroll v. Chipman, 8 Kan. App. 820, 57 
 Pac. 979. But this last case holds that where the agent took no part in 
 the transaction or communication, but simply overheard what was said 
 
992 THE LAW OW EVIDENCE. § 789 
 
 from the varying provisions of the statutes. An agent is competent 
 to prove the fact of his agency and the extent of his authority, even 
 if his principal is deceased or incompetent.^' But a husband has 
 been held incompetent to testify that his wife acted as his agent 
 in all transactions with the deceased or incompetent person.^* But 
 if, in any case, an agent iecomes personally responsible, as for 
 fraudulent transactions 'in the execution of his agency, he is then 
 an interested party, and is, in all cases, incompetent to testify 
 as to transactions or communications with the deceased or incom- 
 petent person.^" One who has acted as an agent is, of course, 
 competent in actions between himself and a party to the contract, 
 even if the subject of the action belonged to the deceased.^" 
 
 § 789 (794). Agents representing corporations. — The rule is not 
 the same where the agent represented a public or a private corpora- 
 tion. In such case, the adverse party is not competent to testify 
 as to transactions or communications with the deceased agent of 
 the corporation who conducted its business, as the corporation, 
 being a mere artificial person, cannot be the survivor of an agent 
 and can have no knowledge of the transaction or communication 
 in question. ^^ But if the transaction was had with two officers or 
 agents of the corporation, so that there is a survivor who has 
 personal knowledge of such transaction, the adverse party is com- 
 petent as to such transaction.^'' The dissolution of the corporation 
 does not make the adverse party incompetent, if the agent or 
 officer with whom the transaction was had is still living and com- 
 petent to testify, as the statutes refer to the death of natural 
 
 and Is in no way affeoted by the judgment, he is competent. Although by 
 statute Incompetent to testify to direct transactions with deceased the 
 agent is not wholly incompetent, Murphy v. Bush, 122' Ga. 715, 50 S. E. 
 1004. Under Michigan statute excluded, Albring v. "Ward, 137 Mich. 352, 
 100 N. W. 609. 
 
 17 Samuel v. Bartee, 53 Mo. App. 587; Gifford v. Thomas' Estate, 62 Vt 
 34; Davis v. Davis, 93 Ala. 173. 
 
 18 Sanborn v. Cole, 63 Vt. 590. 
 IK Butz v. Schwartz, 135 111. 180 
 
 20 Davis V. Hawkins, 163 Pa. St. 228. 
 
 21 Fanners' Union Elevator Co. v. Syndicate Ins. Co., 40 Minn. 155; Wil- 
 liams V. Edwards, 94 Mp. 447; Downing v. "Woodstock Co., 93 Ala. 262; 
 Langford v Commissioners, 75 Ga 502; Central Bank v. Thayer (Mo.), 
 82 S. "W. 142; Sidway v. Missouri Co.. 163 Mo. 342, 63 S. "W. 705; Florida 
 Central Co. v. Usiana, 111 Ga. 697, 36 S. E. 92S. Contra, Bexar Association 
 V. Newman (Tex. Cr. App.), 25 S. "W. 461. 
 
 22 Lyttle V. Chicago & W. M. Ry. Co., 84 Mich. 289. 
 
§ 790 COMPETENCY OF WITNESSES, 993 
 
 persons, and not to that of artificial beings.^^ One attempting to 
 compel a corporation to transfer stock to him is a competent 
 witness in his own behalf, although the person from whom he 
 bought the stock be deceased or incompetent.''* It has been held 
 under some of the statutes that a stockholder in a corporation 
 which is a party is an interested person within the meaning of the 
 statute, and cannot testify to transactions or communications with 
 the deceased.^" But iu other states the contrary rule is declared.^" 
 § 790 (794) . The rule when third persons are present. — ^As a 
 third party, present when the transaction or communication of the 
 deceased or incompetent person with the adverse party occurred, 
 who is not a party to the suit against the representative, or affected 
 by the judgment in the case, has no motive to testify falsely, the 
 courts hold such third persons competent as to such transactions 
 or communications.'" This is true, even if the parties or third 
 persons are husbands or wives or other relatives of the parties to 
 the suit, provided they did not participate in the transaction or 
 communication.^' But the fact that conversations of the deceased 
 and adverse party were overheard by a third person does not 
 make the adverse party competent as to such conversations.^" And 
 
 23 Williains v. Edwards, 94 Mo. 447. 
 
 21 Firemen's Ins. Co. v. Peck, 126 111. 493. 
 
 20 Storey v. First Nat Bank (Ky.), 72 S. W. 31S; Kentucky Stove Co. t. 
 Bryan (Ky.), 84 S. W. 537; Huntington & K. Land Del. Co. v. Thomburg 
 ("W. Va.), 33 S. E. 108; Anthony Ittner Brick Cb. v. Ashby, 198 111. 562, 
 64 N. E. 1109. 
 
 28 Bank of Southwestern Georgia v. McGarrah, 120 Ga. 944, 48 S. B. 393; 
 Twohy Mercantile Co. v. McDonald, 108 Wis. 21, 83 N. W. 1107. Under the 
 California statute the cashier of a bank held competent. City Sav. Bank v. 
 Enos, 135 Gal. 167, 67 Pac. 52; Southern Bank v. Slattery, 166 Mo. 620, 66 
 S. W. 1066. Same as to secretary of corporation, University of Chicago 
 V. Emmert, 108 la. 500, 79 N. W. 285 (see Tecumseh Bank v. McGee, 61 
 Neb. 709, 85 N. W. 949) ; and agents of the corporation, Holston v. South- 
 ern Ry. Co., 116 Ga. 56, 43 S. E. 29. 
 
 2TKlopfer v. Levi, 33 Mo. App. 322; Foreman v. Archer, 130 la. 49, 106 
 N. W. 372; Propst v. Fisher, 104 N. C. 214; Thomas v. Miller, 165 Pa. St. 
 216. When one of the parties is deceased the third person is the only 
 competent witness, Michels v. Western Underwriters' Ass'n, 129 Mich. 417, 
 89 N. W. 56. 
 
 28 Sullivan v. Latimer, 38 S. C. 158; Gable v. Hamer, 83 Ind. 457; Denbo 
 v. Wright, 53 Ind. 226. 
 
 29 Taylor v. Bunker, 68 Mich. 258; Heyne v. Doerfler, 124 N. Y. 505; 
 Hutchinson v. Cleary, 3 N. D. 270; Hall v. Holloman, 136 N. C. 34, 48 S. E. 
 615; Payne v. Long (Ala.), 31 So. 77. 
 
 63 
 
994 THE LAW OF EVBDENCE. § 791 
 
 where the third person is a mere intermediary and the transaction 
 is in reality one between the deceased, and the witness, the latter 
 is incompetent.^" It is held in some jurisdictions that the adverse 
 party may testify as to conversations between the deceased or in- 
 competent person and a third party which were overheard by 
 liim.''^ He is also competent to testify to communications or trans- 
 actions with third persons in regard to the transaction or communi- 
 cation which is involved in the case.^" But he cannot rebut 
 testimony given by a third person as to what took place in an 
 interview between himself and the deceased or incompetent person 
 as to the transaction.^' 
 
 § 791 (794). The rule in respect to account books. — The account 
 books of either party may be introduced ia evidence, even if one 
 party to the transaction is dead. But the court must first be satis- 
 fied by evidence, given by the party introducing the books, that 
 they contain a full and fair account of the transaction t)f the de- 
 ceased or incompetent person with the adverse party.'* The 
 adverse party cannot, however, testify that the deceased or incom- 
 • petent person gave him a book containing an account of money 
 claimed to have been deposited with the deceased or incompetent 
 person, by the adverse party, when such book is not produced in 
 
 soBrader v. Brader, 110 Wis. 423, 85 N. W. 681; Morgan v. Henry, 115 
 Wis. 27, 90 N. W. 1012. 
 
 31 Waterman Real Estate EX. v. Stephens, 71 Mich.. 104; Marsh, v. Gilbert, 
 2 Redf. (N. Y.) 465; Smith v. James, 72 Iowa, 515; Hildebrandt v. Craw- 
 ford, 65 N. Y. 107; Mallow v. Walker, 115 la. 238, 88 N. W. 452, 91 Am. St. 
 Rep. 158; Wright v. Reed, 118 la. 333, 92 N. W. 61; Ray v. Camp, 110 Ga. 
 818, 36 S. B. 242; Griffith v. Robertson, 73 Kan. 666, 85 Pac. 748; Jacobs v. 
 Jacobs, 130 la. 10, 104 N. W. 489, 114 Am. St. Rep. 410; Smith v. Prey (la.), 
 103 N. W. 1002. Contra, In re Pederson's Estate, 97 Minn. 958, 106 N. 
 W. 958. 
 
 32 Watts V. Warren, 108 N. C. 514; Farmers' & Traders' Bank v. Crevel- 
 ing, 84 la. 677. 
 
 33 Allen V. Jones, 1 Ind. App. 63, by statute. 
 
 34 Roche V. Ware, 71 Cal. 275, 60 Am. Rep. 539 ; Keener v. Zartman, 144 
 Pa. St. 179; Ailing v. Brazee, 27 111. App. 595; Strickland v. Wynn, 51 
 Ga. 600; Lewis v. Maginnis, 30 Pla. 419; Dysart v. Furrow, 90 la. 59; 
 Swafford v. White (Ky.), 89 S. W. 129. See also, Cargill v. Atwood, 18 R. 
 I. 303. Where a physician's books were received without objection he was 
 allowed to testify to value of the services, Kwiecinski v. Neuman's Estate, 
 137 Mich. 287, lO* N. W. 391. Party allowed to give the suppletory oath, 
 Chaplin v. Mitchell (Fla.), 32 So. 875; City Sav. Bank v. Enos, 135 Cal. 
 167, 67 Pac. 52. 
 
§ 792 COMPETENCY OF WITNESSES. 995 
 
 court ; '" nor can the adverse party testify to a settlement of the 
 book account sued upon by the representative.'" 
 
 § 792 (795). Further applications of the rule— Wills.— While it 
 has been held that these statutes apply to all civil actions and pro- 
 ceedings,^* including those to probate a wiU., as well as actions 
 arising in tort or on contract,'" yet proponents and beneficiaries 
 are not as a rule disqualified to testify as to the execution of, a will 
 or the genuineness of the signature, for, while the making of the 
 will is a transaction, it is not such a transaction with these persons 
 as wiU make them incompetent witnesses. The proceedings for 
 the probate of a will are in their nature ex parte.*" A beneficiary 
 is a competent witness as to the capacity of a deceased person to 
 make a will ; *^ in Iowa it was held that the wife of a legatee is 
 also competent to testify to the mental condition of the deceased.*" 
 But such testimony must be based on personal observation and 
 not on any transactions or communications had with the de- 
 ceased.*' It has often been held that in a will contest the heirs at 
 law who would inherit but for the will are within the meaning of 
 the statute and cannot testify to transactions with the deceased.** 
 
 •sLaue v. Rogers, 113 N. C. 171. 
 30 Johnson v. Dexter, 37 Vt. 641. 
 
 38 McBride's Appeal, 72 Pa. St. 480. 
 
 39 Welch. V. Adams, 63 N. H. 344, 56 Am. Rep. 521 and note and cases 
 there cited. 
 
 *o Martin v. McAdams, 87 Tex. 225; Loder v. Whelpley, 111 N. Y. 239; 
 Snider v. Burks, 84 Ala. 53; Gavern's Adm. v. Williams, 50 Mo. 206. 
 
 "Foster's Ex. v. Dickerson, 64 Vt. 233; Sim v. Russell, 90 la. 656; 
 Straser v. Hogan, 120 Ind. 207; Williams' Ex. v. Williams, 90 Ky. 28. 
 Contra, In re Eysaman's Will, 113 N. Y. 62. 
 
 42 Denning v. Butcher (la.), 59 N. W. 69. 
 
 43 Loder v. Whelpley, 111 N. Y. 239. Contra, Gfoldthorp v. Goldthorp 
 (Iowa), 62 N. W. 845; Snider v. Burks, 84 Ala. 53. 
 
 44 111 re Laugen's Will, 122 Wis. 57, 99 N. W. 437; Baker v. Baker, 202 
 111. 575, 67 N. E. 410; In re Perkins' Estate, 109 la. 216, 80 N. W. 335; In 
 re Pederson's Estate, 136 N. C. 13, 48 S. E. 561; Volbracht v. White, 197 
 111. 298, 64 N. E. 324, citing Illinois cases. This true even though the heir 
 disclaims any interest in the estate, Volbracht v. White, 197 111. 298, 
 64 N. E. 324. Executor excluded. In re Shatter's Estate (Colo.), 85 Pac. 
 688; though contrary held where he has no other interest. In re Laugen's 
 Will, 122 Wis. 57, 99 N. W. 437; see, Godfrey v. Phillips, 209 111. 584, 71 
 N. E. 19. So both executor and beneficiary have been held competent. Grant 
 V. Stamler (N. J.), 59 Atl. 890; In re McLaughlin's Will (N. J.), 59 Atl. 
 469. A person interested cannot testify in behalf of others also interested, 
 Priagle t. Burroughs, 185 N. Y. 375, 78 N. B. 150; same as to suits to con- 
 
996 THE LAW OF EVIDENCE. § 793 
 
 One with such an interest may, however, testify as to declarations 
 of the deceased to the effect that he has made a will devising 
 property to the witness.*^ So an heir is incompetent to testify 
 to the want of capacity of his father to make a deed, but for 
 which he would inherit the property in question.*" The proponent 
 of a will, who is the principal beneficiary, cannot, in order to show 
 the capacity of the testator, testify as to what took place between 
 the testator and himself when the will was executed.*' Any one 
 rendered incompetent by interest may remove this disability hy 
 executing a release of all claims to the property in question.** 
 
 § 793 (795). Co-parties — Trustees. — As a general rule, co-par- 
 ties to an action are incompetent to testify against a representative 
 of a deceased or incompetent person as to transactions or commujii- 
 cations with such person concerning the subject matter of the 
 controversy ; *° nor can one who is a co^-def endant with the repre- 
 sentative testify as to conversations with the deceased or incompe- 
 tent person.^" It has, however, been held ia some states that a 
 co-defendant is competent as to transactions of the adverse party 
 and the deceased.^^ A co-party cannot remove the disqualifying 
 interest and make himself competent by allowing judgment to be 
 taken against him by default,''^ but this rule does not prevent the 
 adverse party from testifying against the survivors, where one of 
 several co-defendants is dead."' It has also been held that a sur- 
 
 strue wills, Shipley v. Mercantile Co., 102 Md. 649, 62 Atl. 814. Not allowed 
 to testify to appearance of testator and acts indicating insanity, Holland 
 V. Holland, 90 N. Y. S. 208. Witness competent if called against his own 
 interest, In re Will of Hoppe, 102 Wis. 54, 78 N. W. 183; In re Potter's 
 Will, 161 N. Y. 84, 56 N. E. 387. 
 
 46 In re Lambie's Estate, 97 Mich. 49. 
 
 48Crothers v. Crothers, 149 Pa. St. 201. 
 
 *7Goerke v. Goerke, 80 Wis. 516; Starkweather v. Bell, 13 S. D. 475, 
 80 N. W. 183. 
 
 48 Loder y. Whelpley, 111 N. Y. 239. 
 
 49Whitmer v. Rucker, 71 111. 410; James v. James, 81 Tex. 373; Mead 
 y. Weaver, 42 Neb. 149. If their Interests are alike neither can testify 
 for the other, Barnett v. Adams (Ky.), 82 S. W. 406. 
 
 60 Sublett v. Hodges, 88 Ala. 491. Not so if no claim is made against 
 the estate of deceased, Hines v. Consolidated Coal & Lime Co., 29 Ind. 
 App. 563, 64 N. E. 886; or if their claims dre distinct. Story v. Story (Ky.), 
 61 S. W. 279. 
 
 51 New Ebenezer Assn. v. Grass Lumber Co., 89 Ga. 125. 
 
 02 Moore v. Schofield, 96 Cal. 486. See also. Baker v. Jerome, 50 Ohio 
 St. 682.. 
 
 »8 North Georgia Mining Co. v. Latimer, 5.1 Ga. 47. 
 
§ 794 OOMPBTEKCT OF WITNESSES. 997 
 
 viving co-surety may testify for himself as well as for his co-de- 
 fendant."* But, if the survivor has an interest adverse to the 
 estate of his deceased co-party, he is an adverse party within the 
 meaning of the statute and not competent as to transactions with 
 his deceased co-party."" When the relation of trustee and cestui 
 que trust exists, it has been held that one of two cestuis que trust 
 may testify for the others, against the deceased trustee's repre- 
 sentative, as to declarations made by the deceased trustee."" 
 Where an infant by guardian sues an administrator or executor 
 to recover under a contract made for his benefit, between the de- 
 ceased, and the guardian the latter is competent."' Where aji 
 executor has no personal interest and is not to be affected by the 
 judgment he is competent to testify to transactions with the 
 deceased."' Further applications of this rule of law will be found 
 by reference to the cases cited below."" 
 
 § 794 (795). Exclusion of persons under whom others claim 
 title. — ^In many of the states, the statute prohibits a person from, 
 through, or under whom a party or person interested in the event 
 
 54 Wolf V. Madden, 82', la. 114. Principal allowed to testify for surety 
 where principal has made default in the suit, Chase v. Pitman, 69 N. H. 
 498, 43 Atl. 617. 
 
 60 Wilcox V. Corwln, 117 N. Y. 500; Williams v. Mover, 29 S. C. 332; 
 Haberzettle v. Dearing (Tex.), 80 S. W. 539. 
 
 Be Beach v. Cummlngs (Ky.), 18 S. W. 360. 
 
 67 Doty v. Doty (Ky.), 80 S. W. 803. See also. In re Van Alstlne's 
 Estate, 26 Utai 193, 72 Pac. 942. 
 
 63 Swinebroad v. Bright (Ky.), 73 S. W. 1031. Trustee allowed to sustain 
 the trust, Kraft v. NeufEer, 202 Pa. 558, 52 Atl. 100. Executor Incompetent 
 if a party and personaJly interested. Bean v. Bean, 71 N. H. 538, 53 Atl. 
 907. Administrator though creditor held competent, Moore v. Cllne, 115 
 Ga.,405, 41 S. E. 614. 
 
 6» Strong V. Dean, 55 Barb. (N. Y.), 337; Beed v. Reed, 30 Ind. 313; 
 Halyburton v. Dobson, 65 N. C. 88; Karns v. Tanner, 66 Pa. St. 297; Sher- 
 lock V. Ailing, 44 Ind. 184; Field v. Brown, 24 Gratt (Va.) 74; Key v. 
 Jones, 52 Ala. 238; Canaday v. Johnson, 40 la. 587; Wood v. Stafford, 
 50 Miss. 370; Mosner v. Raulain, 66 Barb. (N. Y.) 313; Koenig v. Katz, 
 37 Wis. 153; Connelly v. Duan, 73 111. 218; Lewis v. Fort, 75 N. C. 251; 
 Hinckley v. Hinckley, 79 Me. 320; Barnes v. Dow, 59 Vt. 530; Wertz v. 
 Merritt, 74 la. 683; Seligman v. Estate, 60 Mich. 267; Rainwater v. 
 Harris, 51 Ark. 401; Cleft v. Moses, 112 N. Y. 426; Hodges v. Denny, 86 
 Ala. 226; Armfleld v. Colvert, 103 N. C. 147; Duffield v. Hue, 136 Pa. St 
 602; Gage v. Phillips, 21 Nev. 150; Robinson v. James, 29 W. Va. 224; 
 Sallade v. Gerlach, 132 N. Y. 548; Randall's Adm. v. Randall, 64 Vt. 419; 
 Campbell Banking Co. v. Cole, 89 la. 211; Lloyd v. HoUenback, 98 
 Mich. 203, \ 
 
998 THE LAW OF BVIDENCB. § 794 
 
 of an action derives his interest or title, by assignment or other- 
 wise, from testifying in behalf of the party succeeding to his 
 title or interest, against the representatives of a deceased person, 
 as to any personal transaction or communication between the 
 witness and the deceased. Under such clauses the form by which 
 the transfer of interest is accomplished is not important. The 
 effect alone is to-be considered. The examination is prohibited in 
 the special cases mentioned, not simply on account of interest, 
 but mainly upon the ground of the enforced silence of the other 
 interested party to the transaction. If living, he might give such 
 an account of it as would materially affect the credibility of the 
 surviving actor. It is not deemed fair to permit an interested 
 party to have the benefit of testimony which might appear iu a 
 different light, or which might not be given at all, if the examina- 
 tion of the adverse party could be secured. The restriction is not 
 limited to an interested mtness, called in his own behalf, but ex- 
 tends to all casies where it is sought to examine the witness in be- 
 half of a paarty or person interested in the event, who derives title 
 to the subject-matter of the action by assignment or otherwise from 
 the witness, as against the representatives or assigns of a deceased 
 person. If it is claimed that the witness has divested himself of 
 interest, it does not follow that he is thereby rendered competent. 
 The test is to be sought in the legal effect of the instrument by 
 means of which his interest was extinguished. It matters not by 
 what name it is called. If it operates, in law, to vest in another 
 party to the action, or in a person interested in its event, the title 
 or interest which the witness formerly had, the prohibition re- 
 mains, if it is proposed to use the testimony of the witness in be- 
 half of his successor in interest."" 
 
 80 O'Brien et al v. Weiler, 140 N. Y. 281, 35 N. E. 587. Thus -wihere a 
 person, though no longer a party in interest, had conveyed interest in land 
 to another, the former was held incompetent to testify to transactions with 
 deceased, O'Brien et al. v. Weiler, 140 N. Y. 281, 35 N. B. 587; In re 
 Bemsee's Will, 141 N. Y. 389, 36 N. B. 314. Where an executor, adminis- 
 trator, heir or legatee has acquired title to the cause of action directly 
 through the deceased person, the adverse party is incompetent, Roach v. 
 Roach (Kan.), 77 Pac. 108. A debtor is not competent for his creditor 
 who seeks to be substituted to his rights, Thomas v. Payne (Ky.), 51 S. 
 W. 450. Assignor of a judgment not competent for assignee to establish 
 assignment by deceased, Hagins v. Arnett (Ky.), 64 S. W. 430. Mortgagors 
 through whom fche mortgagee derives title are excluded, Clinton Sav. Bank 
 V. (Jrohe, 115 la. 292, 88 N. W. 357. Same as to all heirs, legatees and de- 
 
§ 796 COMPETENCY OP WITNESSES. 999 
 
 § 795 (795). Statutes excluding any matter occurring before 
 the death. — In a few jurisdictions statutes have been enacted 
 much more sweeping than exist in most states, and excluding 
 testimony by the interested witnesses as to any matter or fact 
 occurring before the death of the deceased. Under such a statute 
 a suit was brought against an administrator for services rendered 
 for the deceased. A witness testified to certain admissions made 
 by the plaintiff and it was held that the platatiff could not rebut 
 this testimony, and that there was nothing in the statute to indicate 
 that its effect was intended to be limited to things which occurred 
 in the presence of the deceased."^ 
 
 § 796 (796). Mode of ascertaining competency of witnesses — 
 Voir dire. — We have already seen that large classes of witnesses, 
 who may now testify, were wholly incompetent before the passage 
 of enabling statutes. Under the former rigid rules, when any 
 question of competency was raised, it was deemed highly impor- 
 tant to ascertain, before the examination of a witness in chief, 
 whether he was competent or incompetent. To settle this question, 
 it was the custom to examine the proposed witness on his voir dire, 
 as it was called. In this preliminary examination, he was duly 
 sworn to answer as to his competency."^ The most common illus- 
 tration of the practice was in those cases where it was claimed 
 that the witness was incompetent on the ground of interest, but 
 the same method was adopted where the disqualification depended 
 upon other grounds."^ Under the old practice, the person object- 
 ing could either examine the proposed witness on his voir dire or 
 he could call witnesses to prove the disqualification.^* But it was 
 held that the objector could not resort to both methods of proof. 
 
 visees in proceedings to establish will, In re Valentine's Will, 93 Wis. 45, 
 67 N. W. 12. Plaintiff suing to recover premiums on account of fraudulent 
 representations of the deceased agent held not excluded, Gwaltney v. Prov. 
 etc. Assur. Sec. (N. C), 44 S. B. 659. See Franklin v. Killilea, 126 Wis. 
 88, 104 N. W. 993. 
 
 «i Stuart V. Lord, 138 Cal. 672, 72 Pac. 142, and cases cited; Kaltschmidt 
 V. Weber, 145 Cal. 596, 79 Pac. 272; Jones v. Jones (Miss.), 37 So. 499. 
 
 62Dewdney v. Palmer, 4 M. & W. 664; MiflBin v. Bingham, 1 Dall. (Pa.) 
 272; Yardley v. Arnold, 10 M. & W. 141; Doe v. Webster, 12 Add. & Ell. 442. 
 
 83 Shannon v. Com., 8 Serg. & R. (Pa.) 444; Galbraith v. Galbraith, 6 
 Watts, (Pa.) 112; Bank of Columbia v. Magruder, 6 Har. & J.- (Md.) 172, 
 14 Am. Dec. 271; Seely v. Engell, 13 N. Y. 542, where the objection was 
 that the witness was the wife of the real party in interest. Best, Ev. (10th 
 Ed.) § 133; Greenl. Ev. § 423. 
 
 «* gee cases next cite^. 
 
1000 THE LAW OF EVIDENCB. § 796 
 
 It was nrged that, by appealing to the conscience of the witness, 
 the party offered him as a credible witness, and could not after- 
 wards say that he was unworthy of credit.'* It was sometimes held, 
 however, that neither mode of proof was exclusive. °° It is now a 
 common practice to wait until the witness is sworn in chief, and 
 then to examine him as to his competency, if any such examination 
 is necessary."^ Although the other practice now generally pre- 
 vails, it would seem a proper exercise of discretion to allow the 
 examination on the voir dire."^ Although it was formerly held 
 that, unless the proof of incompetency was made on the voir dire, 
 the objection was waived, °° it is now well settled that the oijection 
 to competency may be raised at any time during the examination 
 or cross-examination of a witness, with the qualification that it 
 should be made as soon as discovered.'" If it is not made upon 
 discovery, it is waived.''^ If the incompetency is known, the objec- 
 tion should be made before the examination-in-chief.'^ 
 
 eo Bridge v. Wellington, 1 Mass. 219; Mifflin v. Bingham, 1 Dall. (Pa.) 
 272; Chance v. Hine, 6 Conn. 231; Stuart v. Lake, 33 Me. 87; Schnader v. 
 Schnader, 26 Pa. St. 384; Doer v. Osgood, 2 Tyler (Vt.) 28; McAllister v.. 
 Williams, 1 Overt. (Tenn.) 107; Walker v. Collier, 37 111. 362; Greenl. 
 E^^•. § 423. 
 
 6« Stebblns v. Sackett, 5 Conn. 258. 
 
 «^ Jacobs v. Laybom, 11 M. & W. 685. 
 
 »8 Seely v. E>ngell, 13 N. Y. 542, where it was held to be the right of the 
 objecting party; FIfield v. Smith, 21 Me. 383; Smith v. Fairbanks, 27 N. H. 
 521; Bridge v. Wellington, 1 Mass. 219; Stebblns v. Sackett, 5 Conn. 258; 
 Foley v. Mason, 6 Md. 37; Wright v. Mathews, 2 Blackf. (Ind.) 187; Walker 
 V. Collier, 37 111. 362; Harrel v. State, 1 Head (Tenn.) 125; Tarleton v. 
 Johnson, 25 Ala. 300, 60 Am. I>eo. 515; Weigel's Succession, 18 L&. An. 49; 
 Hooker v. Johnson, 6 Fla. 730. 
 
 e» Dewdney v. Palmer, 4 M. & W. 664. 
 
 70 Seely v. Bngell, 13 N. Y. 542; Carter v. Graves, 7 Miss. 9; Swift v. 
 Dean, 6 Johns. 523; Andre v. Bodman, 13 Md. 241, 71 Am. Dec. 628; Fisher 
 V. Willard, 13 Mass. 379; Brooks v. Crosby, 22 Cal. 42; Sheridan v. Medara, 
 10 N. J. Eq. 469, 64 Am. Dec. 464. 
 
 71 Drake v. Poster, 28 Ala. 649; Lewis v. Morse, 20 Conn. 211; Kingsbury 
 V. Buchanan, 11 la. 387; Stuart v. Lake, 33 Me. 87; Groshon v. Thomas, 
 20 Md. 234; Heely v. Barnes, 4 Den. 73. 
 
 72 Donelson v. Taylor, 8 Pick. 390; Howser v. Com., 61 Pa. St 332. 
 
CHAPTER 21. 
 ATTENDANCE AND EXAMINATION OF WITNESSES. 
 
 S 797. Attendance of witnesses — Subpoena. 
 
 798. Fees of witnesses. 
 
 799. Mode of compelling attendance. 
 
 800. Refusal to testify. 
 
 801. Production of books and papers — Bubpwna duces tecum. 
 
 802. Wlio may be compelled to produce documents. 
 
 803. Practice where a witness la confined— Writ of habeas corpus ad 
 
 testificandum. 
 
 804. RecognizEince by witnesses. 
 
 805. Privileged from arrest and service of process. 
 
 806. Same — Extent and nature of the privilege. 
 
 807. Exclusion of witnesses from court room. 
 
 808. Violation of the order excluding witnesses — Effect of. 
 
 809. Order of proof — Discretion of court — Evidence not to be given 
 
 piecemeal. 
 
 810. Same — ^Relaxation of the rule discretionary — Illustrations. 
 
 811. Same — ^Discretion of court — Review. 
 
 812. Privilege allowed counsel as to order of proof. 
 
 813. ■ Must the relevancy of the proof api)ear at the time? 
 
 814. Further Illustrations of discretion of the court in conducting trial. 
 
 815. Questions by judge — Comments by judge — Protection of witnesses—" 
 
 Striking out evidence, etc. 
 
 816. Leading questions — General rule. 
 
 817. Exceptions to the rule — Hostile witnesses — Introductory questions. 
 
 818. Same — As to facts not remembered — For purposes of contradiction. 
 
 819. Leading questions — Discretion of the court. 
 
 820. Cross-examination — On subject matter of direct examination. 
 
 821. Further discussion and qualification of the rule. 
 
 822. Same — Details may be called for — Questions showing Improbability 
 
 of direct testimony. 
 
 823. Facts that are part of res gestae may be shown. 
 
 824. Leading questions may be asked — ^As to new matter. 
 
 825. How long right to cross-examine continues. 
 
 826. More liberal rule as to relevancy on cross-examination. 
 
 827. Witness cannot be contradicted as to wholly irrelevant matter. 
 
 828. Partiality of witness relevant — On that subject cross-examiner not 
 
 concluded by answer — ^Blas — Hostility — Interest — State of feel- 
 ing, etc. 
 
 829. Contradicting the witness to prove bias. 
 
1002 THE LAW OP EVIDENCB. § 797 
 
 § 830. Questions tending to degrade the witness, as affecting his credibil- 
 ity. 
 
 831. Same subject— Conflict— English rule. 
 
 832. Same subject — ^View that the evidence should be received. 
 
 833. Same — Contrary view. 
 
 834. View that collateral questions as to specific misconduct may be al- 
 
 lowed or rejected in the discretion of the court. 
 
 835. Same — Such questions admissible when material to the Issue. 
 
 836. Cross-examination of party. 
 
 837. Same — In /iriminal cases. 
 
 838. Cross-examination as to arrests and indictments. 
 
 839. Cross-examination as to conviction of crimes. 
 
 840. Independent evidence to impeach credibility by proof of specific 
 
 misconduct. 
 
 841. Actions where the chastity of women is in Issue. 
 
 842. Method and extent of cross-examination — Discretion of the court. 
 
 843. Limitations on right of cross-examination. 
 
 § 797 (797). Attendance of witnesses — Subpoena. — The duty 
 of citizens to appear and testify to sucli facts within their knowl- 
 edge, as may be necessary to the due administration of justice, is 
 one which has been recognized and enforced by the common law 
 from an early period.^ The process by which this writ is enforced 
 is the subpwna ad testificandum, commonly called a subpcrna, which 
 commands the witness to appear at the trial to give his testimony. 
 L'nder the old practice, the subpoena named the penalty imposed by 
 law for failing to appear.^ The right to compel the attendance of 
 witnesses was an incident to the jurisdiction of the common law 
 courts; and statutes quite generally exist extending this power to 
 other officers, such as referees, arbitrators and the like; and the 
 same power is sometimes conferred upon municipal corporations.' 
 Formerly the subposna was served upon the witness by leaving with 
 him a copy, or a notice or ticket containing the substance of the 
 writ itself,* but modern statutes frequently provide that the serv- 
 ice may be made by leaving a copy with the witness, or by reading 
 
 1 Amry v. Long, 9 East, 484. 
 
 2 Phlll. Bv. (3rd Ed.) 370. For full discussion, see 24 Am. <£ Bng. Ency. 
 Law tit., Eub'poena. 
 
 3 See the statutes of the jurisdiction. As to the power of congress and 
 legislative bodies to compel the attendance of witnesses, see, Kilbourn v. 
 Thompson, 103 U. S. 168; Burnham v. M<jrrlssey, 14 Gray, 226, 74 Am. Dec. 
 676. 
 
 * Phlll. Ev. (3rd Ed.) 373; Cowen i HiU's notes to 2 PhiU. py. note 
 312. 
 
§ 798 ATTENDANCE AND EXAMINATION OP WITNESSES. 1003 
 
 the subpcena to him, or by leaving a copy at the place of his abode." 
 In the federal courts, su'bp(znas for -witnesses in any district may 
 run into any other district, provided that, in civil cases, the wit- 
 nesses living out of the district in which the court is held do not 
 live at a greater distance than one hundred miles from the place of 
 holding the same." In the state courts, although the statutes gen- 
 erally allow the taking of depositions of witnesses residing beyond 
 some prescribed distance, the subpoena runs to the boundaries of the 
 state ; and witnesses residing within the state may be compelled to 
 attend. But statutes frequently limit the distance which witnesses 
 may be compelled to travel to attend as witnesses both in courts 
 of record and in justice courts,'' and some of the statutes require 
 a special order of court if the witness is to be subpoenaed to travel 
 more than the limited distance. Either party to a suit has the 
 right to a process of court to secure the attendance of witnesses to 
 testify in his behalf in any judicial proceeding. It is reversible 
 error to limit the nurriber of subpoenas to which a party is entitled, 
 when on trial for such an offense of murder.* 
 
 § 798 (798). Fees of vdtnesses. — ^By an early English statute, 
 witnesses were entitled to their "reasonable costs and charges."* 
 In this country, the subject is generally regulated by statutes which 
 prescribe the rate of compensation for each day's attendance and 
 the rate of mileage.^" These statutes very generally provide that 
 witnesses are not compelled to attend or to testify in civil cases, 
 unless their fees are paid or tendered in advance,'^^ although, of 
 
 » The statutes of the jurisdiction should be consulted. 
 
 9 Rev. Stat. U. S. § 876 (U. S. Ciomp. St. 1901, p. 667). As to depositions, 
 see § 638, supra. The distance is to be estimated by the usual routes of 
 travel. Ex parte Beebees, 2 Wall. Jr. (U. S.) 127. If the witness lives 
 without the district, travel fees, can be collected for no more than the 
 one hundred miles. Anonymous, 5 Blatch. (U. S.) 134; The Leo, 5 Ben. 
 (U. S.) 486; The Syracuse, 36 Fed. 830. But the rule is otherwise, if he 
 resides within the district, Sims v. Schult, 40 Fed. 143; In re Williams, 
 37 Fed. 325. As to compelling witness to travel to place of taking depo- 
 sition, see, Lowrey v. Kusworm, 66 Fed. 539; Davis v. Davis, 90 Fed. 791. 
 
 7 See the statutes of the jurisdiction. Travel fees cannot be charged for 
 distances beyond the line of the state, Kingfield v. PuUen, 54 Me. 398; 
 Crawford v. Abraham, 2 Or. 163. Contra, Dutcher v. Justices, 38 Ga. 214. 
 
 8 State V. Gideon, 119 Mo. 94; Alkin v. State, 58 Ark. 544. 
 » 5 Eliz. ch. 9. 
 
 10 See the statutes of the jurisdiction. 
 
 11 Chamberlain's Case, 4 Cow. 49; Ogden v. Gibbons, 5 N. J. L. 51i8; At- 
 wood V. Scott, 99 Mass. 177, 96 Am. Dec. 726; Beaulieu v. Parsons, 2 Minn. 
 
1©©4 THE LAW OP EVmENCIi. | 798 
 
 course, such pajinent or tender may be waived by the words or 
 conduct of the person subpoenaed.^^ The state is not required to 
 tender fees of witnesses for the prosecution, and in some jurisdic- 
 tions the accused is not required to pay his witnesses in advance. 
 Statutes sometimes provide that the defendant in criminal cases 
 may imder certain conditions apply to the court for an order re- 
 quiring his witnesses to be subpoenaed and in case the order is 
 made they are paid by the state." At the close of each day, if the 
 fees of the witness for the next day are not paid, he has the right 
 to return home,^* but, if the case is not terminated, he should first 
 give notice of such intention to the party who subpoenaed him or 
 to his attorney. '^^ If the person has attended as a witness in good 
 faith, he is entitled to his fees, although not subpcrnaed.^' So one 
 who is required to attend as a witness is entitled to his fees, al- 
 though not examined,^'' or although found to be incompetent to 
 testify,^' or although his deposition is taken.'" If a person is sub- 
 poenaed as a witness in several causes at the same time and place, 
 
 37; Mattock v. Wheaton, 10 Vt. 493; Bliss v. Brainard, 42 N. H. 255; Klpp 
 V. Dawson, 59 Minn. 82, where the witness was in court, but had not been 
 subpoenaed. The rule is otherwise in criminal cases. Chamberlain's Case, 
 4 Cow. 49; West v. State, 1 Wis. 209. See also, Rozek v. Redzinski, 87 
 Wis. 525, where a party was compelled to testify without the payment of 
 his fees. As to fees of witness under detention or recognizance, see note 
 20, L. R. A. 57 et seq. 
 
 izGroff v. Mills, 2 Dowl. & L. 23; Hurd t. Swan, 4 Den. 75; Newton v. 
 Harland, 1 Man. & G. 956; Betteley v. McLeod, 3 Bing. N. 0. 405; Rozek 
 V. Redzinski, 87 Wis. 525. 
 
 IS See statutes of the state. Pittman v. State, 51 Fla. 94, 41 So. 385, 8 
 L. R. A. (N. S.) 509 and note. 
 
 14 Atwood V. Scott, 99 Mass. 177, 96 Am. Dec. 728; Courtney v. Baker, 3 
 Den. 27. Where the adjournment is over Sunday he must be paid in ad- 
 vance for Sunday as well as Monday, Muscott v. Runge, 27 How. Pr. 85. 
 
 15 Bliss V. Brainard, 42 N. H. 255. See also cases last cited. 
 
 16 United States v. Williams, 1 Cranch C. C. 178; Dennis v. Eddy, 12 
 Blatch. (U. S.) 195; Prouty v. Draper, 2 Story (U. S.) 199; Price v. Mc- 
 Gee, 1 Brev. (S. C.) 455; Vence v. Speir, 18 How. Pr. (N. Y.) 168; Pinson 
 v. Atchison Ry. Co., 54 Fed. 464; Burrow v. Kansas City Ry. Co., 54 Fed. 
 278. But see, Hopkins v. Waterhouse, 2 Yerg. (Tenn.) 230; Sapp. v. King, 
 66 Tex. 570. 
 
 "Leigh V. Hodges, 4 111. 15; Hutchlns v. Eden, 3 Hen. & M. (Md.) 101; 
 De Bennevllle v. De Benneville, 1 Binn. (Pa.) 46. 
 18 Gray v. Alexander, 7 Humph. (Tenn.) 16. 
 i» Anderson v. Moe, 1 Abb. (U. S.) 299, 
 
§ 799 ATTENDANCE AND EXAMINATION OF WITNESSES. 1005 
 
 he is entitled to compensation in each case.'" But, at least in the 
 federal courts, if the causes are between the same parties, a differ- 
 ent rule prevails, and only one travel fee and one per diem com- 
 pensation is allowed.^^ The subpoena should be served in such 
 manner that the witness may have a reasonable time in which to 
 prepare to attend court; and he is entitled to use the ordinary 
 modes of conveyance.^^ But, if a person is present in court, he 
 may be called as a witness, although no subpoena has been served 
 upon him or no prior notice given. The question has often arisen 
 whether experts are entitled to more compensation than that al- 
 lowed to ordinary witnesses. In a few states statutes exist authoriz- 
 ing the court to allow professional witnesses extra compensation 
 and a few decisions have held this permissible, but the rule is that 
 they are under the same obligation to give testimony as other wit- 
 nesses, and whether they testify as, to mere matters of fact or in 
 answer to hypothetical questions are entitled to the same compen- 
 sation.^' Of course they are not compelled to make preparation 
 for testifying or to make examination without compensation.''* 
 
 § 799 (799). Mode of compelling attendance. — It is indispensa- 
 ble to the due administration of justice that the court should have 
 the power of summarily compelling the attendance of witnesses; 
 and "every court, having power definitely to hear and determine 
 any suit, has, by the common law, inherent power to call for all 
 adequate proofs of the facts in controversy, and, to that end, to 
 
 20 Plores v. Shorn, 8 Tex. 377; House v. Barber, 10 Vt. 158; Robison v. 
 Banks, 17 Ga. 211; Flndley v. Wyser, 1 Stew. (Ala.) 23; O'Kane v. People, 
 46 111. 'App. 225. 
 
 21 Rev. Stat. TJ. S. § 848 (U. S. Comp. St. 1901, p. 654). Contra, Hicks v. 
 Brennan, 10 Abb. Pr. (N. Y.) 304; Vence v. Speir, 18 How. Pr. (N. Y.) 
 168. Where the witness is subpoenaed by both parties he is entitled to 
 fees from both. Peace v. Person, 1 Murph. (N. C.) 188. Contra, Renfro y. 
 Kelly, 10 Ala. 338. 
 
 22 Hammond v. Stuart, 1 Strange 509; Wilkie v. Chadwick, 13 Wend. 49. 
 As to what is reasonable time, see, Barber v. Wood, 2 Moody & Rob. 172. 
 
 23 Dixon v. People, 168 111. 179, 48 N. E. 108; Barrus v. Phaneuf, 166 
 Mass. 123, 44 N. E. 141; Board v. Lee, 3 Colo. App. 177, 32 Pac. 841; Flynn 
 V. Prairie Co., 60 Ark. 204, 29 S. W. 459; Pairchild v. Ada Co., 6 Ida. 340, 
 55 Pac. 654. Taxation as costs of special services paid expert not al- 
 lowed, Faulkner v. Hendy, 77 Cal. 265, 21 Pac. 754. Not allowed to de- 
 fendant In criminal case, Clark, Petitioner, 104 Mass. 537. 
 
 24 Plynn v. Prairie Co., 60 Ark. 204, 29 S. W. 459; Northern P. R. Co. T. 
 Keyes, 91 Fed. 47. 
 
1006 THE LAW OP EVIDENCE. § 799 
 
 summon and compel the attendance of witnesses before it."" The 
 mode of compelling attendance of a witness, who wilfuUy neglects 
 to attend, is by attachment for contempt of court.'" But, before 
 such proceedings can be had, it must be shown to the court that the 
 suipcena has been properly and seasonably served; and. in civil 
 eases, that the fees of the witness have been paid or tendered,^' or 
 that such payment has been waived.^' It must also appear that the 
 testimony proposed is material to the ease.^° The duty of attending 
 as a witness is paramount to the ordinary business engagments or 
 affairs of Uf e, or to the commands of a master.'^ Hence, the process 
 of subpoena demands, on the part of the witness, extraordinary ef- 
 forts to obey. Mere insolvency or poverty is no excuse, since the 
 law provides for the payment of fees in advance.'^ Although ser- 
 ious sickness of the vntness or in his family, such as would pre- 
 vent a prudent person from leaving home on important business, 
 may save him from the imputation of contempt, yet such sickness 
 must be clearly shown, when urged as an excuse in a proceeding 
 for contempt.^^ While witnesses are not bound to endanger life in 
 attending court,'* yet the fact that such attendance would cause 
 
 25 Greenl. EJv. § 309. See article on attendance of witnesses at common 
 laiis", 1 Law Rev. 284. In a few states statutes exist exempting women 
 from attendance and permitting them to give depositions, Ex parte 
 Branch, 105 Ala. 231, 16 So. 926; Augusta & S. R. Co. v. Randall, 85 Ga. 
 297, 11 S. E. 706. 
 
 28 Ex parte Humphrey, 2 Blatch. (IT. S.) 228; Ex parte Beebees, 2 Wall. 
 Jr. (tr. S.) 127; Green v. State, 17 Pla. 669; Burnham v. Morrissey, 14 
 Gray, 226, 74 Am. Dec. 676; Wilson v. State, 57 Ind. 71; State v. Trumbull, 
 4 N. J. L. 139; Stephens v. People, 19 N. Y. 549; Respublica v. Duane, i 
 Yeates (Pa.) 347. 
 
 27 Scholes V. Hilton, 10 M. & W. 15; Hill v. DOlt, 7 De Gex, M. £ G. 397. 
 
 zsBrocas V. Lloyd, 23 Beav. 129; Newton v. Harland, 1 Man. & G. 956; 
 Betteley v. MoLeod, 3 Bing. N. C. 405; In re Thomas, 1 Dill. (U. S.) 420; 
 Ogden V. Gibbons, 5 N. J. L. 518; Beaulieu v. Parsons, 2 Minn. 37; Mat- 
 tocks V. Wheaton, 10 Vt. 493. 
 
 29 Goff V. Mills, 2 Dowl. & L. 23. 
 
 80 Chapman v. Davis, 3 Man. & G. 609, 4 Scott N. R. 319. See next sec 
 tion. 
 
 31 Gofe V. Mills, 2 Dowl. & L. 23. 
 
 82 People V. Davis, 15 Wend. 603. 
 
 88 People V. Davis, 15 Wend. 603. Illness held sufficient. State v. Hat- 
 field, 72 Mo. 578. Same as to severe Illness in family, Foster v. McDonald, 
 12 Heislj (Tenn.) 619. 
 
 s* Jackson v. Perkins, 2 Wend. 308. 
 
§ 800 ATTENDANCE AND EXAMINATION OP WITNESSES. 1007 
 
 great personal incoTwenience,^'^ or would compel the witness to 
 travel a greater distance per day than is usual or convenient" 
 would not afford an excuse. Although a wilful disregard of the 
 command of the subpoena is necessary to constitute contempt, this 
 may be inferred from the failure to obey it, when no satisfactoiy 
 excuse is shown."' It is no such excuse that the witness deems his 
 testimony immaterial to the issue, as it would not be tolerated that 
 a witness should assume to determine that question.^' Of course, 
 if the witness has been excused, or given leave of absence by the 
 party summoning him or his attorney, or is led to suppose that he 
 need not attend by the person managing the case, he should not be 
 punished for contempt.^" The courts have frequently punished 
 for contempt those who have procured the absence of witnesses or 
 in other ways prevented them from testifying at the trial of the 
 cause.*" 
 
 § 800 (800). Refusal to testify.— The refusal of a witness to be 
 sworn, except in those cases where the statute allows an affirma- 
 tion or some other substitute for the oath,*' or his refusal to testify, 
 after being sworn, is such an obstruction of justice as to subject 
 the wrong-doer to punishment for contempt.*" Although the court 
 will not compel the witness to answer, unless the question is deemed 
 
 sBpipher V. Lodge, 16 Serg. & R. (Pa.) 214. 
 
 ••WirRie V. Chadwick, 13 Wend. 49. Of course, the witness should be 
 allowed time to use the usual modes of travel; nor can he be compelled 
 to travel on Sunday, Wilkie v. Chadwick, 13 Wend. 49. 
 
 s7 Jackson v. Seager, 2 Dowl. & L. 13. 
 
 88 Chapman v. Davis, 3 Man. & G. 609, 4 Scott N. R. 319; Scholes v. Hil- 
 ton, 10 M. & W. 16; Fairfield v. U. S., 146 Fed. 508. However, where the 
 neglect was that of Lord Brougham and Lord John Russell, the English 
 courts regarded the question of immateriality as important, Dicas v. Law- 
 son, 1 Cromp., M. & R. 934; R. v. Russell 7 Dowl. 693. 
 
 39 Farrah v. Keat, 6 Dowl. 470; State v. Nixon, Wright (Ohio) 763. 
 
 40 Montgomery v. Palmer, 100 Mich. 436; In re Whetstone, 9 Utah, 156; 
 Savin's Case, 131 TJ. S. 267. See also, Todd v. United States, 158 U. S. 
 
 ■ 278, where it is held that a preliminary examination before a commis- 
 sioner does not come within the rule. 
 
 41 Ex parte Fernandez, 10 C. B. N. S. 3; Ex parte Roelker, 1 Sprague 
 (U. S.) 276; Ex parte Walker, 25 Ala. 81; Ex parte Langdon, 25 Vt. 680; 
 In re SpofEord, 62 Fed. 443; Ex parte Stice, 70 Cal. 51, where it was held 
 no excuse that the witness feared his evidence would subject him to pun- 
 ishment for a felony. 
 
 42 Holman v. Austin, 34 Tex. 668; Ragland v. Wickware, 4 J. J. Marsh. 
 (Ky.) .530; United States v, Coolidger, 2 Gall. (U. S.) 364. See note, 13 
 L. R. A. 66. 
 
1008 THE LAW OF EVIDENOB. § 801 
 
 material and relevant,*^ yet this is not a question that may be de- 
 termined by the witness ; and the witness must answer, if the ques- 
 tion is held to be material and relevant by the court.** Although 
 the power to punish for contempt is inherent in courts and neces- 
 sary to the exercise of all other powers,*' there is no such power, 
 unless the court has jurisdiction of the case.** 
 
 § 801 (801). Production of books and papers — Subpoena duces 
 tecum. — ^When it is necessary, not only to secure the oral testi- 
 mony of the witness, but also the production of books or writings 
 in his .possession, the writ contains, in addition to the ordinary com- 
 mand to appear, a requirement that the witness bring with him 
 such document or documents, designating the same. Such a sub- 
 poena is called a subpoena duces tecum." In former practice, the 
 writ was used only where the papers were in possession of some 
 third person; but now the statutes are frequently broad enough 
 to embrace parties to the litigation, and to compel them also to pro- 
 duce papers in their possession.** This, is an ancient writ which has 
 been in iise since the time of Charles II., as incidental to the power 
 of courts and necessary to the due administration of justice. It 
 is a writ of compulsory obligation which the witness must obey 
 like other subpoenas. He has no more right to determine whether 
 the documents shall be produced, than whether he shall appear as 
 a witness. It is his duty to attend and to bring with him the doc- 
 uments according to the exigency of the writ.'" It is for the court 
 
 *sRagland v. Wickware, 4 J. J. Marsh. (Ky.) 530. 
 
 *4 People v. Cassels, 5 Hill, 165; Bradley v. Veazie, 47 Me. 85; 'Ex. parte 
 McKee, 18 Mo. 599. 
 
 4B United States v. Hudson, 7 Cranch, 32; United States v. New Bedford 
 Bridge, 1 "Wood. & M. (U. S.) 401. 
 
 «Bx parte Peck, 3 Blatch. (U. S.) 113; Matter of Moron, 10 Mich. 208; 
 Holman v. Austin, 34 Tex. 668; Ellison v. State, 125 Ind. 492, 24 N. E. 739; 
 Piper V. Pierson, 2 Gray, 120, 61 Am. Dec. 438. It has been held that 
 the witness cannot raise the question of jurisdietion in this collateral 
 manner. In re Abeles, 12 Kan. 451. 
 
 *' 3 Bl. Comm. 382. As to inspection of books and papers, see §§ 709 
 et seg. supra. See note, 32 Am. St. Rep. 643-648. 
 
 *8 See the statutes of the jurisdiction. Murray v. Elston, 23 N. J. Eq. 
 212; Mitchell's Case, 12 Abb. Pr. (N. Y.) 249; Hauseman v. Sterling, 61 
 Barb. (N. Y.) 347; Smith v. McDonald, 50 How. Pr. (N. Y.) 519. 
 
 *8 Amey v. Long, 9 Bast, 483. See also, Barnes' Case, reviewed In 5 
 South. Law Rev. (N. S.) 475. 
 
 •oDoe V. Kelly, 4 Dowl. 273; R. v. Russell, 7 Dowl. 693; Bull t. Love- 
 land, 10 Pick. 9. 
 
§ 801 ATTENDANCE AND EXAMINATION OF WITNESSES. 1009 
 
 to determine whether the documents are admissible,"^ or whether 
 they should be produced and exhibited."' Thus, the court will 
 determine whether the documents should be withheld as evidence 
 on the ground that they will deprive the witness of his title,'^ or 
 subject him to a penalty or a criminal charge,"* or whether the 
 document is in the nature of a confidential communication to an 
 attorney,^" or whether his excuse for not producing the same is 
 valid or reasonable.^" So the court will punish the witness for his 
 failure or refusal to produce documents, if properly subpoenaed, 
 in case he has no excuse for such failure or refusal." The writ 
 should describe the papers to be produced with such certainty that 
 the witness may know what papers are called for ; "' for example, 
 a command to produce ' ' aU papers touching or concerning the mat- 
 ters in dispute" has been held insufficient.'" A subpoena duces 
 tecum is only to be employed to secure the production of books 
 and papers that are to be introduced in evidence in the trial of an 
 action ; it is not to be used to secure papers to refresh the memory 
 of a witness."* 
 
 siAmey v. Long, 9 EJast, 483; Bull v. Loveland, 10 Pick. 9; Holtz v. 
 Schmidt, 2 Jones & Sp. (N. Y.) 28; Chaplain v. Briscoe, 13 Miss. 198; 
 Sherman v. Barrett, 1 McMuU. (S. C.) 14'?; XJ. S. v. Terminal Ry. Ass'n, 
 148 Fed. 486. 
 
 B2Amey v. Long, 9 East, 475; R. v. Dixon, 3 Burr. 1687; Bonesteel v. 
 Lynde, 8 How. Pr. (N. Y.) 226; Jolmson Steel Street Rail Co. v. North 
 Branch Steel Co., 48 Fed. 191. 
 
 63 Miles V. Dawson, 1 Esp. 405; Bull v. Loveland, 10 Pick. 9. 
 
 64 United States v. Reyburn, 6 Pet'ers, 352. 
 
 65 R. V. Dixon, 3 Burr. 1687; Copeland v. Watts, 1 Stark. 95; Durkea T. 
 Leland, 4 Vt. 612. 
 
 60 Bull V. Loveland, 10 Pick. 9; Chaplain v. Briscoe, 13 Miss. 198; Lane 
 v. Cole, 12 Barb. (N. Y.) 680. 
 
 67 Bonesteel v. Lynde, 8 How. Pr. (N. Y.) 226; United States Exp. Ca 
 v. Henderson, 69 la. 40. 
 
 6s United States v. Babcock, 3 Dill. (U. S.) 566; In re O'Toole, 1 Tuck. 
 (N. Y.) 89. See also. In re Storror, 63 Fed. 564. 
 
 6»Ex parte Brown, 7 Mo. App. 494, 72 Mo. 83, 37 Am. Rep. 426; United 
 States V. Hunter, 15 Fed. 712; State v. Davis, 117 Mo. 614. See also. 
 United States v. Babcock, 3 Dill. (U. S.) 566; In re Dunn, 9 Mo. App. 255. 
 When books are numerous witness should have full informatlion, McDonald 
 v. Ideal Mfg. Co., 143 Mich. 17, 106 N. W. 279; Miller v. Mutual Reserve 
 Fund L. Ins. Co., 139 Fed. 864. 
 
 80 United States v. Tilden, 10 Ben. (U. S.) 566, 670. As to refreshlna 
 memory, see §§ 874, et seq. 
 
 64 
 
1010 THE LAW OF EVIDENCE. § 802 
 
 § 802 (802). — ^Who may be compelled to produce documents. — 
 Obviously a witness carmot be compelled to produce documents by 
 the suipcena duces tecum, unless such documents are imder his 
 control or possession. Thus, a mere clerk in a bank is under no 
 obligation to produce its books, when they are under the control of 
 the cashier."^ But one having the actual custody of documents 
 may be compelled to produce them, although they are owned by 
 others.'" It has sometimes been held that the officers of a corpora- 
 tion will not be compelled by a suipcena duces tecum to produce in 
 court the books of the corporation,*' but the better reasoning sus- 
 tains the view that a corporation is imder the same obligation to 
 furnish testimony relevant to the issue as are other persons ; °* and, 
 in the state of New York, where the courts declined to compel cor- 
 porations to produce documents in controversies between third per- 
 sons on a subpcena duces tecum, a statute was adopted changing 
 the rule which the courts had declared.^'' It should appear, how- 
 ever, that the documents are in the custody or control of, the ofScer 
 summoned to produce them."" Statutes quite generally provide 
 that duly certified copies of the records of public corporations may 
 be received in evidence. The entire public may be said to be in- 
 terested in corporations of this class ; and it would lead to unnec- 
 essary inconvenience, if the public officers were compelled to pro- 
 duce such records at all times and places in obedience to a sub- 
 ptsna duces tecum." In the federal courts, the writ is confined to 
 
 61 Bank of Utica v. Hillard, 5 Cow. 154; United States Exp. Co. v. Hen- 
 derson, 69 la. 40, same rule in the case of other corporations; Crowther 
 v. Appleby, L. R. 9 C. P. 27, so held as to the secretary and solicitor of 
 a railway company, as he was only the employee of the directors. 
 
 82 Amey v. Long, 1 Camp. 17; Corsen v. Dubois, 1 Holt, 239. 
 
 63LeFarge t. LeFarge Ins. Co., 14 How. Pr. (N. Y.) 26; Central Bank 
 V. White, 37 N.T. S. 297; Morgan v. Morgan, 16 Abb. Pr. N. S. (N. Y.) 291; 
 Southern Ry. Co. v. North Carolina Corp. Com., 104 Fed. 700. 
 
 «*Wertheim v. Continental Ry. & T. Co., 15 Fed. 716; Hale v. Henkel, 
 201 U. S. 43; Nelson v. U. S., 201 U. S. 92; TJ. S. v. Am. Tobacco Co., 146 
 Fed. 557. See cases cited in note 61 above. 
 
 66 N. Y. Code, § 868. 
 
 66 United States v. TUden, 10 Ben. (U. S.) 566; U. S. v. Am. Tobacco Co, 
 146 Fed. 557. 
 
 67 R. V. Russell, 7 Dowl. 693; Corbett v. Gibson, 16 Blatch. (U. S.) 334; 
 Delaney v. Regulators, 1 Yeates (Pa.) 403; Gray v. Pentland, 2 Serg. & 
 R. (Pa.) 23; Morris v. Creel, 2 Va. Cas. 49; In re Lester, 77 Ga. 143, the 
 mayor of the city is not required to produce docket of police court. See 
 §§ 514 et seq. supra. 
 
§ 803 ATTENDANCE AND EXAMINATION OP WITNESSES. 1011 
 
 papers, written documents and books ; and does not extend to mod- 
 els or patterns,'* and it does not issue as a matter of course, but 
 on a showing to the court that the documents are prima facie com- 
 petent and material evidence in the case.'" If a witness is in court 
 and has documents with him relevant to the issue, he may be com- 
 pelled to produce them, although no svbpana duces tecum has been 
 served.'" When the documents are produced in obedience to a 
 subpana duces tecum, the person calling the witness is under no 
 obligation to have the witness swom.'^ 
 
 § 803 (803). Practice where a witness is confined — Writ of ha- 
 beas corpus ad testificandum. — If a witness, whose testimony ia 
 material, is confined in a prison or .jail, his attendance is secured 
 by means of the writ known as habeas corpus ad testificandum.''^ 
 This is a command from the court directed to the person having the 
 prisoner in custody to bring the person so detained before the 
 court to testify in the cause at a given time and place.'* The 
 application for this writ is made, by the party desiring the testi- 
 mony, to the judge at chambers or in open court by an affidavit 
 or petition showing that the witness is a material witness, and also 
 the fact of his detention.'* The granting of the writ is discre- 
 tionary with the court ; and it will not be issued if, in the opinion 
 of the co\irt, the application is not in good faith.'" The writ will 
 protect the officer, and must be obeyed, if issued, although irregular 
 in form," pr coUusively obtained." The writ may be allowed 
 
 88 In re Shepard, 3 Fed. 12, where it was held that stove patterns were 
 not within the meaning of the statute. 
 
 09 Dancel v. Goodyear Shoe Mfg. Co., 128 Fed. 753, full discussion of the 
 subject. 
 
 'oBoynton v. Boynton, 25 How. Pr. (N. Y.) 490. 
 
 Ti Perry v. Gibson, 1 Adol. & Ell. 48; Summers v. Moseley, 2 Cromp. & 
 M. 477; Sherman v. Barrett, 1 McMull. (S. C.) 163; Martin v. Williams, 
 18 Ala. 190. But see, Murray v. Elston, 23 N. J. Eq. 212. But the witness 
 may be sworn, if he desires to show that the writing is not material, 
 Aikin v. Martin, 11 Paige (N. Y.) 499. 
 
 "R. V. Roddam, Cowp. 672; State v. Kennedy, 20 la. 372; Ex parte Mar- 
 madnke, 91 Mo. 228, 60 Am. Rep. 250; People v. Willard, 92 Gal. 482; State 
 V. Adair, N. C. 68; 3 Bl. Comm. 130. 
 
 78 See eases last cited. 
 
 74 R. V. Roddam, Cowp. 672. See also, Cowen & Hill's Notes to 2 Phill. 
 E!v. (3d Ed.) notes 329-338. 
 
 75 R. V. Burbage, 3 Burr. 1440; Roberts v. State, 94 Ga. 66. See also, 
 Thelluson v. Copplnger, 3 Bsp. 283. 
 
 78 Wattles V. Marsh, 5 Cow. 176; In re Price, 4 East, 587. 
 77 Hassam v. Griffin, 18 Johns. 48, 9 Am. Dec. 184. 
 
1012 THE LAW OF EVIDENCE. § 804 
 
 m favor of a party himself, if he is entitled to testify ; '" and it may 
 be used to obtain the testimony of one imprisoned in a civil, as well 
 as in a criminal case,'" or to secure the attendance of one confined 
 as a lunatic.^" Since statutes have been enacted allowing those 
 convicted of felonies to testify, the attendance of such persons 
 may be procured by this mode; but it was held in Missouri that 
 statutes prohibiting the production, on habeas corpus, of any per- 
 son as a witness who was under sentence for felony was constitu- 
 tional, although the person was a competent witness.*^ 
 
 § 804 (804). Recognizance by witnesses. — In criminal cases, 
 witnesses for the government, whom the court may deem material, 
 may be required to give a recognizance for their appearance to give 
 testimony at the trial; and in default of such recognizance, they 
 may be committed}^ But such committal cannot be ordered merely 
 on ex parte affidavits.^' In the discretion of the court, sureties may 
 be required on such a recognizance,** although it was held at com- 
 mon law that, if sureties could not be obtained by the witness, his 
 own recognizance must be taken.'^ Statutes sometimes provide 
 that, if witnesses, who are required to recognize with or without 
 sureties, refuse, they may be committed until they comply with the 
 order or are discharged. '° Such a law does not deprive a witness 
 of his liberty without due process of law in violation of the federal 
 constitution.*' But a justice of the peace does nqt have power to 
 compel such a recognizance in the absence of statute.** 
 
 IS Ex parte Cobbett, 4 Jur. N. S. 145. 
 in Noble T. Smith, 5 Johns. 357. 
 
 80 Pennell v. Tait, 1 Cromp., M. & R. 584. 
 
 81 Ex parte Marmaduke, 91 Mo. 228, 60 Am. Rep. 250. But see, State ▼. 
 Adair, 68 N. C. 68. 
 
 82 United States v. Butler, 1 Cranch C. C. 422; Ex parte Shaw, 61 Cal. 
 58; Hlckley v. Com., 2 J. J. Marsh. (Ky.) 572; State v. Grace, 1§ Minn. 
 398; State v. Zellers, 7 N. J. L. 220; Means v. State, 10 Tex. App. 16; 
 In re Petrie, 1 Kan. App. 184. 
 
 83 In re Lewellyn, 104 Mich. 318, 62 N. W. 554. 
 
 84 See the cases above cited. 
 
 80 Bennett v. Watson, 3 Maule & S, 1; Evans v. Rees, 12 Adol. ft Ell. 55, 
 2 Hale P. C. 282. 
 
 86 Rev. Stat. V. S. § 879 (U. S. Comp. St. 1901, p. 668). The statutes of 
 the jurisdiction should be consulted. In California, in such cases, the 
 deposition of the witness may be taken. People v. Lee, 49 Cal. 37. 
 
 87 In re Petrie, 1 Kan. App. 184. 
 
 88 Clayborn v. Tompkins, 141 Ind. 19. 
 
§ 8D5 ATTENDANCE AND EXAMINATION OF WITNESSES. 1013 
 
 § 805 (805). Privileged from arrest and service of process. — 
 From the relations men owe to society every citizen is under the 
 duty to attend as a witness and give evidence in courts of justice 
 when subpcEnaed.'* Although courts have always recognized this 
 duty they have sought to relieve witnesses from unnecessary in- 
 convenience and from a very early period, the common law has 
 recognized the privilege of parties and witnesses in judicial pro- 
 ceedings to go to the place of trial, to remain so long as necessary 
 and to return home, free from arrest on civil process. This is an 
 immunity conceded to be a necessity in the administration of jus- 
 tice."" "Witnesses who attend a trial in good faith, as well as par- 
 ties, are entitled to this privilege, whether such attendance is volun- 
 tary or in obedience to a suipcsna."^ The privilege extends, not 
 only to the actual trial of the cause, but wherever attendance is a 
 duty, including all proceedings of a judicial nature."^ A party or 
 
 89 West V. State, 1 Wis. 209. Jeremy Bentham well illustrates the rule 
 in the following statement: "Were the Prince of Wales, the Archbishop 
 of Canterbury, and the Lord High Chancellor to be passing by in the 
 same coach while a chimney-sweeper and a barrow woman were in dis- 
 pute about a halfpenny worth of apples, and the chimney-sweeper or the 
 barrow-woman were to think proper to call upon them for their evidence, 
 oould they refuse? No, most certainly." Bentham Works, Bowring Ed., 
 
 IV. 320. 
 
 80 Bacon Abr. tit. Privileges 4, 17, 55; Sell. Prac. 123; 1 Tidd's Prac. 
 195; Meekins v. Smith, 1 H. Black. 636; Larned v. Griffin, 12 Fed 590, 
 and many cases there cited; Andrew v. Lembeck, 46 Oh. St. 38, 18 N. E. 
 483, 15 Am. St Rep. 547. See notes, 77. Am. Dec. 401-405; 3 L. R. A. 266. 
 
 91 Walpole V. Alexander, 3 Doug. 45; Arding v. Flower, 8 T. R. 534; 
 Spence v. Stuart, 3 East, 89; Ex parte Byne, 1 Ves. & B. 316; May v. 
 Shumway, 16 Gray, 86, 77 Am. Dec. 401; Dungan v. Miller, 37 N. J. L. 182; 
 United States v. Edme, 9 Serg. & R. (Pa.) 147; Morris v. Beach, 2 Johns. 
 294; Thompson's Case, 122 Mass. 428, 23 Am. Rep. 370. 
 
 92 Thus, this privilege has been recognized during attendance upon 
 bankruptcy proceedings in their various stages, Ex parte Burt, 2 Mont 
 D. & D. 666; Ex parte Helsby, 1 Dea. & Ch. 16; Ex parte Donlevy, 7 Ves, 
 317; Ex parte King, 7 Ves. 312; Matthews v. Tufts, 87 N. Y. 568; or dur 
 ing attendance before an arbitrator, Moore v. Booth, 3 Ves. 350, 3 E^t, 
 89; Sanford v. Chase, 3 Cow. (N. T.) 381; or on a reference before a mas 
 tex, Vinsent v. Watson, 1 Rich. L. (S. 0.) 194; or during attendance upon 
 habeas corpus proceeding, R. v. Blake, 2 Nev. & Man. 312; or the hearing 
 of a motion in the cause, Bromley v. Holland, 5 Ves. 2; or a hearing be- 
 for commissioners to examine claims against estate. Word v. Neale, 5 
 Gray, 538; or proceedings in insolvency, Richards v. Goodson, 2 Va. Cas. 
 381; or during attendance at a criminal court, as a prosecutor, Montague 
 
 V. Harrison, 3 C. B. N. S. 292; or during the giving of a deposition under 
 
1014 THE LAW OF EVIDBNCE. § 806 
 
 witness is privileged while waiting for the trial of a cause which is 
 adjourned from day to day because of the sickness of a party."' 
 The rule applies with especial force when the witness or party is a 
 resident of another state, and is in necessary attendance upon some 
 judicial proceeding."* In some cases, it has been intimated that 
 the rule will be more liberally applied in the case of non-resident 
 witnesses or suitors, and that in their case, the immunity from the 
 service of civil process is absolute.'" 
 
 § 806 (806). Same — ^Extent and nature of the privilege. — This 
 immunity extends to parties and witnesses during their necessary 
 attendance upon the judicial proceedings, and for a reasonable time 
 thereafter, until they can return home; and, although the privi- 
 lege is generally construed strictly, slight delays or deviations 
 from the direct route may be allowed. This is a matter for the 
 determination of the court under all the circumstances."" Since the 
 
 the order of the court, United States v. Edme, 9 Serg. & R. (Pa.) 147; or 
 before a master in chancery, Dungan v. Miller, 37 N. J. L. 182; First Nat. 
 Bank v. Ames, 39 Minn. 179, 39 N. W. 308. 
 
 93 Ellis V. De Garmo, 17 R. I. 715. 
 
 «*In re Healey, 53 Vt. 694, 38 Am. Rep. 713; Dungan v. Miller, 37 N. J. 
 L. 182; Matthews v. Tufts, 87 N. Y. 568; Ballinger v. Elliott, 72 N. C. 596; 
 Thompson's Case, 122 Mass. 428, 23 Am. Rep. 370; Mitchell v. Wlxon, 53 
 Mich. 541, 19 N. W. 176; Henegar r. Spangler, 29 Ga. 217; Sherman v. 
 Gundlach, 37 Minn. 118, 33 N. W. 549; Mallory v. Brewer, 7 S. D. 587, 64 
 N. W. 1120, 58 Am. St. Rep. 856; Bolgiano v. Gilbert Look Co., 73 Md. 
 132, 20 Atl. 788, 25 Am. St. Rep. 582; Juneau Bajik v. McSpedan, 5 Biss. 
 (U. S.) 64; Plympton v. Winslow, 20 Blatch. (U. S.) 82; Kinne v. Lant, 
 68 Fed. 436. See note, 25 L. R. A. 731-738. True even though he resides 
 in the other state for the express purpose of avoiding service of process. 
 Cake V. Haight, 30 Misc. 386, 63 N. Y. Supp. 1043. But the rule does not 
 protect a witness while traveling through an intermediate state to attend 
 the trial, Holyoke & S. Ha,dley Falls Ice Co. v. Ambden, 55 Fed. 583. Pro- 
 tection denied, Mullen v. Sanborn, 79 Md. 364, 29 Atl. 522, 25 L. R. A. 721, 
 47 Am. St. Rep. 421. 
 
 s« In re Healey, 53 Vt. 694, 38 Am. Rep. 713; Person v. Grier, 66 N. Y. 
 124, 23 Am. Rep. 35; Norris v. Beach, 2 Johns. 294; Hopkins v. Coburn, 
 1 Wend. 292; Bridges v. Sheldon, 7 Fed. 36; Wilson v. Donaldson, 117 
 Ind. 356, 20 N. B. 250, 3 L. R. A. 266, 10 Am. St. Rep. 48. This protection 
 extends to an attorney coming from another state on his clients business 
 pending in court. Central Trust Co. v. Mil. St. Ry. Co., 74 Fed. 442. 
 
 96 The following are cases where the privilege was waived by delay or 
 deviation: Chaffee v. Jones, 19 Pick. 260, where he went off the direct 
 route on his return home to attend his son's funeral; Clark v. Grant, 2 
 Wend. 257, a delay of two days, after submission, to learn result of suit; 
 Shults V. Andrews, 54 How. Pr. (N. Y.) 380, delay of two weeks to attend 
 
§ 806 ATTENDANCE AND EXAMINATION OF WITNESSES. 1015 
 
 courts would often be embarrassed, if suitors or witnesses, while 
 attending judicial proceedings might be molested with process, the 
 privilege has sometimes been called the privilege of the court, and 
 not that of the individual.*' It is clear that one who violates the 
 privilege by serving civil process upon a party or witness in the 
 actual or constructive presence of the court is liaMe to punish- 
 ment for contempt of court. On application, the process may be 
 set aside and the person arrested may be discharged, when the 
 proper objection is made to the jurisdiction of the court."' In 
 the English cases, the privilege seems to have been limited to cases 
 of arrest ; ' and in this country, the rule has sometimes- been de- 
 clared that the immunity does not apply when the process is a 
 
 to business; Strong v. Dickenson, 1 M. & W. 488, stopping at a coffee house 
 on business, two hours after court adjourned. The following cases hold 
 that the privilege was not waived: Salhinger v. Adler, 2 Rob. (N. T.) 704, 
 where he simply stopped to speak to the opposite counsel; Selby v. Hills, 
 8 Bing. 166, where he did not return home for two hours after case closed; 
 Pitt V. Coombes, 5 Barn. & Adol. 1078, where he did not return home di- 
 rectly; Lightfoot V. Cameron, 2 W. Black. 1113, where he stopped to dine 
 In evening, the case being finished early in the day; Ricketts v. Gurney, 
 7 Price 699; Sidgier v. Birch, 9 Ves. Jr. 69; Ex parte Clarke, 2 Dea. & Oh. 
 99; Jacobson v. Wayne Cir. Judge, 76 Mich. 234, where he stopped to con- 
 sult counsel whom he did not find for two days after the trial ended, and 
 where the summons was in an action for tort, when he had been dis- 
 charged in a criminal suit. 
 
 »■> Cameron v. Lightfoot, 2 W. Black. 1190. But It is held that the In- 
 dividual may waive the privilege, for example, by giving bail. Steward v. 
 Howard, 15 Barb. (N. Y.) 26; Tipton v. Harris, Peck (Tenn.) 414; by 
 confessing judgment, Gyer v. Irwin, 4 Dall. (Pa.) 107; by pleading in bar 
 before demanding the privilege, Randall v. Crandall, 6 Hill. 342. Contra, 
 "Washburn v. Phelps, 24 Vt. 506. 
 
 »8Cole V. Hawkins, Andrews, 275, Strange, 1094; Chllderson v. Barrett, 
 11 East, 439; Blight v. Fisher, 1 Peters C. C. 41; Miles v. McCullough, 1 
 Binn. (Pa.) 77; In re Healey, 53 Vt. 694, 38 Am. Rep. 713; State v. Buck, 
 62 N. H. 670. An improper attempt to deter a witness from testifying 
 is contempt of court. Savin's Case, 131 XT. S. 267. See note, 38 Am. Rep. 
 717. 
 
 89 Christian v. Williams, 111 Mo. 429, 20 S. W. 96; Norris v. Beach, 2 
 Johns. 294; Person v. Grier, 66 N. Y. 124, 23 Am. Rep. 35; Moletor v. Sln- 
 nen, 76 Wis. 308, 44 N. W. 1099, 20 Am. St. Rep. 71; Cameron v. Roberts, 
 87 Wis. 291. See note, 16 Am. Dec. 723, where the rule is discussed in 
 those cases where a party is decoyed into the jurisdiction. 
 
 iMeekins v. Smith, 1 H. Black. 636; Arding v. Flower, 8 T. R. 534; 
 Spence v. Stuart, 3 East, 89; Sidgier v. Birch, 9 Ves. 69; Ex parte Jackson, 
 15 Ves. 117. 
 
1016 THE LAW OF EVIDBNCEl. § 807 
 
 summons merely.^ But in other courts, the contrary view has pre- 
 vailed. "It is the policy of the law to protect suitors and witnesses 
 from service of process in civil actions, whether the process be 
 such as required their arrest, or be merely in ike nature of a sum- 
 mons. Service in such cases will be set aside, as well upon general 
 principles, as upon positive law, if there be such.' While the priv- 
 ilege does not furnish immunity from arrest on criminal process* it 
 has been held to extend to a case where a defendant was brought 
 from a neighboring state on a requisition, and found not guilty or 
 discharged, but immediately arrested on a civil process,'' or where 
 he comes into the state simply to answer a criminal charge. ° But it 
 has been held that the privilege does not extend to one accused of 
 a crime who has been released on bail.' Service cannot be made 
 upon a foreign corporation by serving an officer of the corporation 
 who is in the jurisdiction, but privileged because he has been caUed 
 there as a witness." 
 
 § 807 (807). Exclusion of witnesses from court room. — Before 
 discussing the general rules which govern the examination of wit- 
 nesses, it is proper to call attention to the familiar rule that the 
 court may, in the exercise of its discretion, direct the exclusion of 
 witnesses from the court room while the testimony of other wit- 
 nesses is being given. This is a practice which has prevailed in the 
 British Parliament and in the courts of England and Scotland 
 
 « Greer v. Young, 120 III. 184. 
 
 'Wilson V. Donaldson, 117 Ind. 356, 10 Am. St. Rep. 48; Christian v. 
 Williams, 111 Mo. 429, 20 S. W. 96; Norris v. Beach, 2 Johns. 294; Person 
 V. Grier, 66 N. T. 124, 23 Am. Eep. 35; Moletor v. Sinnen, 76 Wis. 308, 
 20 Am. St. Rep. 71; Andrews v. Lembeek, 46 Ohio St. 38, 15 Am. St. Rep. 
 547; First National Bank v. Ames, 39 Minn. 179; Boghano v. Gilbert Lock 
 Co., 73 Md. 132; Cameron v. Roberts, 87 Wis. 291; Atchison v. Morris. 
 11 Fed. 582. 
 
 * Williams y. Bacon, 10 Wend. 636; Moore v. Green, 73 N. C. 394; 21 Am. 
 Rep. 470; Scott v. Curtis, 27 Vt. 762; Lucas v. Albee, 1 Den. 666; Hare v. 
 Hyde, 16 Q. B. 394; R. v. Douglas, 7 Jur. 39. 
 
 6 Moletor v. Sinnen, 76 Wis. 308, 44 N. W. 1099, 7 L. R. A. 817, 20 Am. 
 St. Rep. 71 and cases cited. Contra, Williams v. Bacon, 10 Wend. 636. 
 Or from neighboring county, Palmer v. Rowan, 21 Neb. 452, 32 N. W. 210, 
 59 Am. Rep. 844. 
 
 6 Murphy v. Sweezy, 2 N. Y. S. 241. 
 
 I Hare v. Hyde, 16 Adol. & Ell. N. S. 304, 71 E. C. L. 373; Moore t. 
 Green. 73 N. C. 394, 21 Am. Rep. 470. 
 
 8 American Wooden Ware Co. v. Stem, 63 Fed. 676; Fidelity & Casualty 
 Co. v. Everett, 97 Ga. 787, 25 S. E. 734. 
 
§ 807 ATTENBANOE AND EXAMINATION Or WITNESSES. 1017 
 
 from an early day.* There is no more interesting illustration of the 
 value of the rule .than the story of Daniel's judgment in Susanna's 
 case.'" The witnesses are ordered to withdraw from the court room 
 to remain until called, or are placed under charge of the sheriff or 
 other officer.'^ The object of such an order is obviously to elicit 
 the truth by securing testimony not influenced by the statements 
 of other witnesses or the suggestions of counsel, as well as to prevent 
 collusion and concert of testimony among witnesses. While this 
 order will generally be made by the court on the application of 
 counsel, it is generally held to be a matter of discretion, rather 
 than of strict right ; " yet, in some states, it may be claimed as a 
 right.** Parties to the litigation will not generally be excluded, 
 since their presence is usually necessary to a proper management of 
 their case ; '* nor will an attorney for one of the parties be ex- 
 
 BRyan v. Couch, 66 Ala. 244; Tayl. Ev. (lOth Ed.) § 1042. 
 
 10 See quotation of In 3 Wig. Ev. § 1837. 
 
 11 Hey V. Com., 32 Gratt. (Va.) 46, 34 Am. Rep. 799. 
 
 12 Benaway v. Conyne, 3 Finn. (Wis.) 196; Errissman v. Errissman, 25 
 111. 136; Johnson v. State, 2 Ind. 652; People v. Green, 1 Park. Cr. (N. Y.) 
 11; Powell v. State, 13 Tex. App. 244; Sartorious v. State, 24 Miss. 602; 
 State V. Fltzsimmons, 30 Mo. 236; Laughlin v. State, 18 Ohio, 99, 51 Am. 
 Dec. 444; R. v. Cook, 13 How. St. Tr. 348; R. v. Goodere, 17 How. St. Tr. 
 1015; People v. Sam Lung, 70 Oal. 515; Barnes v. State, 88 Ala. 204, 16 
 Am. St. Rep. 48; People v. Considine, 105 Mich. 149, 63 N. W. 196; Mur- 
 phey V. State, 43 Neb. 34; May v. State, 94 Ga. 76; Kentucky Lumber Co. 
 V. Abney (Ky.), 31 S. W. 279; McClellan v. State, 117 Ala. 140, 23 So. 653; 
 People V. McCarty, 117 Cal. 65, 48 Pac. 984; State v. Davis, 110 la. 746, 
 82 N. W. 328; Baker v. Com. (Ky.), 50 S. W. 54; Johnston v. Ins. Co., 106 
 Mich. 96, 64 N. W. 5; Chicago, B. & Q. R. Co. v. Kellogg, 54 Neb. 138, 74 
 N. W. 403; De Lucenay v. State (Tex.), 68 S. W. 796; Com. v. Thompson, 
 159 Mass. 56. It will be seen from the cases that the request if made in 
 good faith is rarely denied. But the court may make exceptions as to 
 certain witnesses, when making the order. City Bank v. Kent, 57 Ga. 285; 
 State V. Whitworth, 126 Mo. 573. 
 
 IS Nelson v. State, 2 Swan (Tenn.) 237; Smith v. State, 4 Lea (Tenn.) 
 428; State v. Zellers, 7 N. J. L. 220. In some states the statutes give the 
 right. 
 
 14 Chester v. Bower, 55 CaJ. 46; Ryan v. Couch, 66 Ala. 244; Richard v. 
 State, 91 Tenn. 723, 20 S. W. 533; Heaton v. Dennis, 103 Tenn. 155, 52 
 S. W. 175. But see, Smith v. Team (Miss.), 16 So. 492; Penniman v. Hill, 
 24 Weekly Rep. 245; Tayl. Ev. (10th Ed.) § 1400. This applies to the 
 chief officers of a corporation, as well as to individuals that are parties, 
 Kentucky Lumber Co. v. Abney (Ky.), 31 S. W. 279. In some states the 
 party may be required to be first sworn in order that he may remain, Tift 
 V. Jones, 52 Ga. 538. Also see statutes. 
 
1018 THE LAW OF EVIDBNCE. § 808 
 
 eluded.^" The same is true of one who is a party in interest, though 
 not a party to the record ; ^^ and also of an agent of the party, 
 when the presence of such agent is necessary, as when the agent has 
 gained such familiarity with the facts that his presence is neces- 
 sary for the proper management of the action or defense.^' Ex- 
 pert witnesses are not generally excluded until the evidence be 
 given upon the question or subject as to which they are called.'^ 
 But if there is any reason to apprehend that the expert witnesses 
 are liable to be influenced by the testimony of other witnesses, 
 they should be treated in the same manner.^* In most cases, their 
 evidence is not based upon the conclusions which they form from 
 the testimony, but upon hypothetical questions or an assumed state 
 of facts, or upon their personal knowledge of the facts ; hence it is 
 not necessary that they should listen to the testimony of other wit- 
 nesses.^" Frequently officers have beein exempted from the rule"^ 
 and under peculiar circumstances other witnesses.^^ In order to 
 make the order effective the court may order the witnesses to be 
 kept separate while others are being examined in order that they 
 may not communicate with each other and many of the statutes 
 declare this right. It has been held that the attorney in the case 
 may consult the witnesses during the order.''^ The party may also.^* 
 § 808 (808). — Violation of the order excluding witnesses — Ef- 
 fect of. — ^By the early practice, if a witness remained in the court 
 room in violation of the order, he was not allowed to testify.'" Later 
 it was held to be a matter of judicial discretion, whether his tes- 
 
 15 Everett v. Lowdham, 5 Car. & P. 91; Powell v. State, 13 Tex. App. 
 244; Pomeroy v. Baddeley, Ryan & M. 430. 
 
 16 Chester v. Bower, 55 Cal. 46. 
 
 17 Ryan v. Couch, 66 Ala. 244; Betts v. State, 66 Ga. 508; Indianapolis 
 Cabinet Co. v. Herrmann, 7 Ind. App. 462. But see. Central Railroad & 
 B. Co. V: Phillips, 91 Ga. 526, where a railroad conductor was excluded. 
 
 18 Johnson v. State, 10 Tex. App. 571; Vance v. State, 56 Ark. 402, 19 S. 
 W. 1066; Tayl. Bv. (10th Ed.) § 1400. 
 
 19 Johnson v. State, 10 Tex. App. 571; Thomp. Trials, | 278. 
 
 20 See §§ 370 et seg. supra. 
 
 21 People V. Machen, 101 Mich. 400; Webb v. State, 100 Ala. 47, 14 So. 
 865; Johnican v. State (Tex. Cr.), 48 S. W. 181. 
 
 22 Shaw V. State, 102 Ga. 660, 29 S. E. 477; State v. Whitwortli, 126 Mo. 
 573, 29 S. W. 595. 
 
 23 White V. State, 52 Miss. 216; Williams v. State, 35 Tex. 355. 
 
 24 Shaw V. State, 79 Miss. 21, 30 So. 42. 
 
 25 Greenl. Ev. § 432. See also. Chandler v. Home, 2 Moody & Rob. 423. 
 
§ 808 ATTENDANCE AND EXAMINATION OF WITNESSES. 1019 
 
 timony should be received.^" But in England, except in revenue 
 eases, it is now held that the judge has no right to reject the wit- 
 ness on this ground ; ^'^ and in this country, the decided weight of 
 authority tends toward the view that, where the party is without 
 fault, and the witness disobeys the order for exclusion, the party 
 ought not to be deprived of the testimony of his witness.'^ Still 
 there is good authority for the view that the testimony may be re- 
 ceived or rejected in the discretion of the court.^' When a witness, 
 who has been ordered to withdraw, converses with other witnesses 
 after their testimonj' has been given, the objecting party cannot 
 demand a new trial as a matter of right on account of such mis- 
 conduct, but, in the discretion of the court, a new trial may he 
 granted.^" It is clear that the misconduct of a witness in disobeying 
 the order of the court, or in improperly conversing with other 
 witnesses after an order of exclusion, is relevant, and that it is a 
 
 38 Hey V. Com., 32 Gratt, (Va.) 946, 34 Am. Rep. 799; CJobbett v. Hud- 
 son, 1 El. & B. 11, 22 L. J. (Q. B.) 13. 
 
 27 Chandler v. Home, 2 Moody & Rob. 423; Cook v. Nethercote, 6 Car. 
 & P. 743; Cobbett v. Hudson, 22 L. J. (Q. B.) 13, 1 El. & B. 11. 
 
 28 People V. Boscovitch, 20 Cal. 436; State v. Salge, 2 Nev. 321; State t. 
 Thomas, 111 Ind. 575; Hubbard v. Hubbard, 7 Ore. 42; Smith v. State, 4 
 Lea (Tenn.) 428; Hey v. Com., 32 Gratt. (Va.) 946, 34 Am. Rep. 799; 
 Taylor v. State, 130 Ind. 66; Holder v. United States, 150 U. S. 91; Pleas- 
 ant V. State, 15 Ark. 624; Grimes v. Martin, 10 la. 347; Gregg v. State, 
 13 W. Va. 705; Lasslter v. State, 67 Ga. 739; State t. Falk, 46 Kan. 498; 
 State v. Ducote, 47 La. An. 46; State v. Lee Doon, 7 Wash. 308, 34 Pac. 
 1103; State v. Kissock, 111 la. 690, 83 N. W. 724; Parker v. Com. (Ky.), 
 51 S. W. 573; Illinois C. R. Co. v. Ely (Miss.), 35 So. 873; Pile v. State, 
 107 Tenn. 532, 64 S. W. 477; Com. v. Brown, 90 Va. 671, 19 S. E. 447. 
 
 29 Laughlin v. State, 18 Ohio, 99, 51 Am. Dec. 444; Purnell v. Pumell, 
 89 N. C. 42; Dyer v. Morris, 4 Mo. 214; State v. Gesell, 124 Mo. 531; Sta- 
 yer & Abbott Co. V. Coe, 49 111. App. 426; Thorn v. Kemp, 98 Ala. 417; 
 Hall V. State, 137 Ala. 44, 34 So. 680; Pergason v. Btcherson, 91 Ga. 785, 
 18 S. E. 29; Gilbert v. Com., Ill Ky. 793, 64 S. W. 846; State v. Jones, 47 
 La. An. 1524, 18 So. 515; Taylor v. State (Miss.), 30 So. 657; Holder v. 
 U. S., 150 U. S. 91. See also cases last cited. 
 
 soBulliner v. People, 95 111. 394; State v. Brookshire, 2 Ala. 303; Sar- 
 torious V. State, 24 Miss. 602; Laughlin v. State, 18 Ohio, 99, 51 Am. Dec. 
 444; State v. Fitzsimmons, 30 Mo. 236. It has been held no impropriety 
 for counsel to tell a witness what a witness on the other side has sworn 
 to, when not forbidden to do so, Harne v. Williams, 12 Ind. 324. The rule 
 is the same where the witness disobeyed, remained in the room and heard 
 the testimony, Purnell v. Purnell, 89 N. C. 42. 
 
1020 THE LAW OF EVIDENCE. § 809 
 
 proper subject of comment as bearing on his credibility.'^ It is 
 hardly necessary to add that the disobedience of an order for the 
 withdrawal of a witness may be punished as a contempt of court.'^ 
 § 809 (809). Order of proof.— Discretion of court— Evidence 
 not to be given piece-meal. — ^Before proceeding to an examination 
 of those general rules which govern the order and mode of the 
 examination of witnesses, attention should be called to the prin- 
 ciple, well stated by Mr. Greenleaf, that "the subject lies chiefly 
 in the discretion of the judge, before whom the cause is tried, it 
 being, from its very nature, susceptible of but few positive and 
 stringent rules. The great object is to elicit the truth from the wit- 
 ness, but the character, intelligence, moral courage, bias, memory 
 and other circumstances of witnesses are so various, as to require 
 almost equal variety in the manner of interrogation, and the de- 
 gree of its intensity to attain that end." °^ In the regular order of 
 procedure, the party having the affirmative ought to introduce aU 
 the evidence necessary to support the substance of the issue; then 
 the party denying the afSrmative allegations should produce his 
 proof, and finally the proof in rebuttal is received.^* Rebutting 
 evidence means not merely evidence which contradicts the witnesses 
 on the opposite side and corroborates those of the party who began, 
 but evidence in denial of some aflSrmative fact which the answer- 
 ing party has endeavored to prove.'" Where the evidence is clearly 
 rebuttal the one offering it is entitled to have it admitted, and its 
 exclusion is error.'* And when evidence is introduced for the first 
 
 »i Pleasant v. State, 15 Ark. 624; Betts v. State, 66 Ga. 508; Grimes v. 
 Martin, 10 Iowa, 347; Davenport v. Ogg, 15 Kan. 363. 
 
 szLassiter v. State, 67 Ga. 739; Bulliner v. People, 95 111. 394; State v. 
 Palk, 46 Kan. 498. 
 
 33 Greenl. Ev. § 431; Bradley v. Dinneen, 88 Minn. 334, 93 N. W. 116; 
 Western Mattress Co. v. Potter (Neb.), 95 N. W. 841; Foley v. Brunswick 
 Trac. Co., 69 N. J. L. 481, 55 Atl. 803; Blake v. People, 73 N. Y. 586; Jones 
 V. Peterson, 44 Or. 161, 74 Pac. 661; Atchison, T. & S. F. Ry. Co. v. Phipps, 
 125 Fed. 478; Norfolk & A. T. Co. v. Morris, 101 Va. 422, 44 S. E. 719; 
 Pittman v. State, 51 Pla. 94, 41 So. 385, 8 L. R. A. (N. S.) 509; McDer- 
 mott V. Manley, 65 Neb. 194, 90 N. W. 1119; Southern Ry. Co. v. "Wilson 
 (Ala.), 35 So. 561; Beyer v. Hermann, 173 Mo. 295, 73 S. W. 164; Burnside 
 V. Everett, 186 Mass. 4, 71 N. E. 82. 
 
 34 Marshall v. Davies, 78 N. Y. 414; Braydon v. Goulman, 1 T. B. Mon. 
 (Ky.) 115; Smith v. Britton, 4 Humph. (Tenn.) 201; Clayes v. Ferris, 
 10 Vt. 112; "Walker v. "Walker, 14 Ga. 242; Macullar v. "Wall, 6 Gray, 507. 
 
 35 Marshall v. Davies, 78 N. Y. 414, 420. 
 
 86 Glenn v. Stewart (Mo.), 67 S. "W. 237; Anaconda Copper Min. (Jo. v. 
 
§ 810 ATTENDANCE AND EXAMINATION OF WITNESSES. 1021 
 
 time in rebuttal the defendant has the right to disprove the same 
 on sur-rebuttal.^' The practice should not be encouraged of al- 
 lowing either party, after resting his case, to amend and add to his 
 proof, until by repeated experiments he conforms to the view of 
 the court ; '* and when the burden of proving any matter is thrown 
 upon a party by the pleadings, he must generally introduce, in the 
 first instance, all the evidence upon which he relies; and he cannot, 
 after going into part of his case, reserve the residue of his evidence 
 for a subsequent opportunity.'^ 
 
 § 810 (810). Same — ^Relaxation of the rule discretionary — Il- 
 lustrations. — ^In the discretion of the court, the rule stated in the 
 last section may be relaxed, if the ends of justice so require.*" 
 Thus in a criminal case, the state may be allowed to reopen the case, 
 and to give new testimony, after the defense has given testimony 
 or declined to offer testimony.*^ New evidence may be admitted for 
 the plaintiff after a motion for nonsuit,*'' or after aU the evidence 
 has ieen closed.*^ On the same principle, counsel have been al- 
 
 Heinze, 27 Mont. 161, 69 Pac. 909. Even though the tebuttlng testimony 
 would not have been admissible on direct examination, Ankersmit v. 
 Tuch, 114 N. Y. 51, 20 N. E. 819. 
 
 37 State V. Staley, 45 W. Va. 792, 32 S. B. 198. See Mattock v. Wheeler. 
 29 Or. 64, 43 Pac. 867. 
 
 seBraydon v. Goulman, 1 T. B. Mon. (Ky.) 115; Mueller v. Rebhon, 94 
 111. 142. 
 
 39 Hathaway v. Hemingway, 20 Conn. 191; Hastings v. Palmer, 20 Wend. 
 225; Marshall v. Davies, 78 N. Y. 414; Belden v. Allen, 61 Conn. 173, 23 
 Atl. 963. Held reversible error to allow the introduction of rebuttal testi- 
 mony during the examination in chief, Alquist v. Eagle Iron Works, 126 
 la. 67, 101 N. W. 520. 
 
 40 Graham v. Davis, 4 Ohio St. 362, 62 Am. Dec. 285; Blake v. Powell, 
 26 Kan. 320; Curtis v. Central Ry. Co., 87 Ga. 416; Hastings v. Palmer, 20 
 Wend. 225; Agate v. Morrison, 84 N. Y. 672; Braydon v. Goulman, 1 T. B. 
 Mon. (Ky.) 115; State v. Alford, 31 Conn. 40; Dubuque v. Coman, 64 Conn. 
 475; State v. Fox, 25 N. J. L. 566; Dane v. Treat, 35 Me. 198; Pierce v. 
 Wood, 23 N. H. 519; Goodman v. Kennedy, 10 Neb. 270; Walker v. Walker, 
 14 Ga. 242; People v. McNamara, 94 Cal. 509. 
 
 41 State V. Clyburn, 16 S. C. 375; State v. Rose, 33 La. An. 932; Green 
 V. State, 119 Ga. 120, 45 S. E. 990. But the court should use great caution 
 in such cases, Clough v. State, 7 Neb. 323; Kalle v. People, 4 Park. Cr. 
 ( N. Y.) 591. 
 
 42 McColgan v. McKay, 25 Ga. 631; Delaney v. Mulligan, 148 Pa. SL 157; 
 Larman v. Huey, 13 B. Mon. (Ky.) 436. 
 
 43 Philadelphia Ry. Co. v. Stimson, 14 Peters 448; Powell v. State, 101 
 Ga. 9, 29 S. E. 309, 65 Am. St. Rep. 277; Joplin Waterworks Co. v. Joplin, 
 
1022 THE LAW OF EVIDENCE. § 810 
 
 lowed to further cross-examine witnesses after the ease has been 
 closed.^* So the introduction of new evidence may be allowed after 
 the conclusion of the evidence and postponement for argument 
 only,*" or after counsel have begun to address the jury,*" or even 
 after the conclusion of the argument, if it is shown to be materia!, 
 and if the delay is sufficiently explained.*' Under peculiar cir- 
 cumstances the courts have received testimony at even a later 
 stage and at any time before the verdict was rendered.*' Of course 
 in the exercise of discretion in such cases as have been cited, new 
 testimony must not be so received without giving the adverse party 
 an opportunity to be present and cross-examine the witness and to 
 offer counter-proof or explain the evidence so introduced,*" nor 
 unless the evidence is properly admissible under the pleadings.^" 
 It is a further illustration of the principle under discussion that 
 the court may permit a party to open one line of proof, and to aban- 
 don it in the course of the trial and take an inconsistent one,'*'^ 
 and this has been allowed on the part of the plaintiff, even after 
 
 177 Mo. 496, 76 S. W. 960; Wells v. Burbanfe, 17 N. H. 393; Gilbert v. Gil- 
 bert, 22 Ala. 529, 58 Am. Dec. 268; Brook v. People, 23 Colo. 375, 48 Pac. 
 502; Ferrell v. State (Pla.), 34 So. 220; Chicago City Ry. Co. v. Carroll, 
 206 111. 318,, 68 N. B. 1087; Froman v. Com. (Ky.), 42 S. W. 728; Tliatcher 
 V. Stickney, 88 la. 454; Priest v. Xlnion Canal Co., 6 Cal. 170; Hooker v. 
 Johnson, 6 Pla. 730; Coats v. Gregory, 10 Ind. 345; Braydon v. Goulman, 
 1 T. B. Mon. (Ky.) 115; McDonald v. Smith, 14 Me. 99; Ricketts v. Pen- 
 dleton, 14 Md. 320; Ray v. Smith, 9 Gray, 141; Wood v. Gibbs, 35 Miss. 
 559; Des Moines Bank v. Colfax Hotel Co., 88 la. 4, 55 N. W. 67; Ford v. 
 Niles, 1 Hill, 300; Moloney v. Davis, 48 Pa. St. 512; Hopkinton v. Waite, 
 6 R. I. 374; Pridgen v. Hill, 12 Tex. '374; Brooks v. Wilcox, 11 Gratt. (Va.) 
 411. Or instructions asked for, Johnston v. Mason, 27 Mo. 511; Meserve 
 V. Folsom, 62 Vt. 504, 20 Atl. 926. 
 
 *i Com. V. Eastman, 1 Gush. 189, 48 Am. Dec. 596. 
 
 *5 Hanson v. Michelson, 19 Wis. 498; Reed v. Liston, 8 Tex. Civ. App. 118. 
 
 40 Russell V. Kearney, 27 Ga. 96; Parker v. Johnson, 25 Ga. 576; Bu- 
 chanan V. Cook, 70 Vt. 168, 40 Atl. 102. 
 
 47 Watt V. Alvord, 25 Ind. 533; Mathis v. Colbert, 24 Ga. 384; Hood v. 
 Mathis, 21 Mo. 308; George v. Pilcher, 28 Gratt. (Va.) 299; Bolen v. Peo- 
 ple, 184 111. 338, 56 N. E. 408; Roush v. Roush, 154 Ind. 562, 55 N. E. 541. 
 But after the jury had returned to give their verdict, it was held too late, 
 Riley v. Cooper, 1 Cranch C. C. 166. 
 
 48 After charge, Dyer v. State, 88 Ala. 229, 7 So. 267. 
 
 48Hurd v. Lill, 26 111. 496; Thompson v. Clendening, 1 Head (Tenn.), 
 287; Asay v. Hay, 89 Pa. St. 77; Gillette v. Morrison, 8 Neb. 395. 
 6»Wasar v. Bowlsy, 104 Mich. 38, 63 N. W. 293. 
 61 Turner v. Yates, IG How. 14. 
 
§ 811 ATTENDANCE AND EXAMINATION OE WITNESSES. 1023 
 
 the defendant has rested his case."^ In some states, there are stat- 
 utes regulating this subject which should be consulted by the prac- 
 titioner. 
 
 § 811 (811). Same — Discretion of court — ^Review. — ^It is obvi- 
 ous from the illustrations already given that the proffered testi- 
 mony will not be received out of its regular order, if, in the dis- 
 cretion of the court, the ends of justice will not thereby be sub- 
 served."' The rulings of the trial judge upon these matters are not, 
 as a rule, reversible for error."* The rules relating to the order 
 of introducing evidence are for the most part mere rules of prac- 
 tice I they are under the control of the court and subject to be var- 
 ied in the exercise of a sound judicial discretion, so that a depart- 
 ure from the ordinary rules or a refusal to grant indulgence to a 
 party cannot properly be made a ground or error.^"^ This has been 
 illustrated in a large class of cases where the courts have granted 
 indulgence in receiving evidence out of the regular order, in al- 
 lowing witnesses to be recalled, in permitting evidence in rebuttal 
 which should have been offered in chief, in supplying omissions 
 and the like." But if there is a clear abuse of discretion, or if the 
 error of the court is so gross and palpable as to defeat the ends of 
 
 62 Morris v. Wadsworth, 17 "Wend. 103. 
 
 oscozart V. Lisle, 1 Meigs (Tenn.) 65; Ijoulsville & N. Ry. Co. v. Bar- 
 ker, 96 Ala. 435; Snodgrass v. Com., 89 Va. 679; Mutual Life Ins. Co. v. 
 Thompson, 94 Ky. 253; First Nat. Bank v. Wolff, 79 Cal. 69, 21 Pac. 551; 
 Devonshire v. Peters, 104 Mich. 501, 63 N. W. 973; Willard v. Pettit, 153 
 111. 663, 39 N. E. 991; State v. Robertson (La.), 35 So. 375; Sweeney v. 
 Hjul, 23 Nev. 409, 48 Pac. 1036; Hart v. U. S., 84 Fed. 799; Blewett y. Gay- 
 nor, 77 Wis. 378, 46 N. W. 547. 
 
 6* Wells v. Burhank, 17 N. H. 393; Bacon v. Williams, 13 Gray, 525; 
 Baer v. State, 59 Neb. 655, 81 N. W. 856; Kirschbon v. Bonzel, 67 Wis. 178; 
 San Francisco Breweries v. Schurtz, 104 Cal. 420. This is assumed in 
 most of the cases cited in the last section. 
 
 65 See the cases cited in the next note. 
 
 06 Goss V. Turner, 21 Vt. 437; Wicke v. Iowa State Ins. Co., 90 la. 4; 
 Neilson v. Nels Brown Stone Co., 25 Utah, 37, 69 Pac. 289; Brown v. State, 
 72 Md. 468; Huff v. Latimer, 35 S. C. 255; Richmond & D. Ry. Co. v. Vance, 
 93 Ala. 144; Springfield v. Dalby, 139 111. 34; Riha v. Pelnar, 86 Wis. 408; 
 Jackson v. Grand Ave. Ry. Co., 118 Mo. 199 ; Stevens v. Clemmens, 52 Kan. 
 369; Everman v. City of Menomonie, 81 Wis. 624; Turner v. United States, 
 66 Fed. 280; Garland v. Smith, 127 Mo. 583; Llndheim v. Duys, 31 N. Y. S. 
 870; Bates v. Tower, 103 Cal. 404; Basye v. State, 45 Neb. 261; Willard y. 
 Pettit, 153 111. 663; Devereaux v. Phillips' Estate, 97 Mich. 104; Case v. 
 Dodge, 18 R. I. 661. See also the cases cited in last section. 
 
1024 THE LAW OF EVIDENCE. § 812 
 
 justice, tlie decision will be reversed on appeal."^ It is very clear 
 that it is no abuse of discretion if the court refuses to allow the in- 
 troduction of evidence out of its order, when it is apparent that 
 the relaxation of the general rule would further a mere trick or 
 scheme or operate as a fraud upon one of the parties,"' or encour- 
 age the tampering with witnesses to induce them to prop up a cause 
 whose weakness has been exposed."' 
 
 § 812 (812). Privilege allovfed counsel as to order of proof. — 
 Subject to the general rule that each party should, in his turn, 
 produce all the testimony tending to support his claim or defense, 
 the order of time for the introduction of evidence to support the 
 different parts of an action or defense should be generally left to 
 the discretion of the party and his counsel. °'' The party or counsel 
 cannot be presumed to show his ability to establish his entire claim 
 or defense in advance, and a reasonable latitude must be allowed 
 as to the order in which the details of evidence shall be brought- 
 forward.'^ When evidence is offered which proves or tends to 
 prove any relevant fact, it is to be presumed that this will be fol- 
 lowed by such other proof as is necessary to establish the proper 
 connection."^ Hence, it is of no consequence in what order the 
 evidence is introduced, so far as its ultimate legitimacy is con- 
 cerned, provided, in its relation to the other evidence in the case, 
 it is at the end pertinent to the issue.^^ For example, the court 
 may permit a sheriff's deed to be given in evidence before the judg- 
 ment and execution on which it is founded are introduced ; "* and 
 where one relies on his right as assignee of a bond, he may intro- 
 duce the bond in evidence before he shows his title and interest in 
 it." So, in an action of ejectment, the mere fact that the plaintiff's 
 
 B7 Smith V. Brltton, 4 Humph. (Tenn.) 201; Hanson v. Mlchelson, 19 
 Wis. 498; Meyer v. OuUen, 54 N. Y. 392; Meaoham v. Moore, 59 Miss. 561; 
 Smith v. State Ins. Co., 58 la. 487. 
 
 58 Breedlove v. Bundy, 96 Ind. 319. 
 
 68 Rucker v. Eddings, 7 Mo. 115. 
 
 80 Hadden v. Johnson, 7 Ind. 394; Sidwell v. Worthington, 8 Dana (Ky.) 
 74; Gordon v. Milloudon, 16 La. An. 347; Plank Road Co. v. Bruce, 6 Md. 
 457; Lea v. Guice, 21 Miss. 656; Powell v. Hannihal Ry. Co., 35 Mo. 457; 
 Com. V. Dam, 107 Mass. 210. 
 
 «i Pegg V. Warford, 7 Md. 582; Thompson v. Franks, 37 Pa.' St S27. 
 
 «2 Rogers v. Brent, 10 111. 573, 50 Am. Deo. 422. 
 
 8« Jenne v. Joslyn, 41 Vt. 478. 
 
 «<Catterlin v. Douglass, 17 Ind. 213. 
 
 65 Van Orman v. SpafCord, 16 la. 186. 
 
§ 813 ATTENDANCE AND EXAMINATION OF WITNESSES. 1025 
 
 mode of proving his title is illogical and serves to confuse the rec- 
 ord is not ground for a new trial."" In an Ohio case, it was held 
 that the rule under discussion should be limited to cases where 
 the objection to the testimony related mainly to its relevancy to 
 the issue, and did not extend to cases where the objection is to its 
 legal incompetency to prove the fact. "In the one case, there is 
 a fact proved which subsequent developments may show to be rele- 
 vant to the issue, but in the other, there has been no legal proof of 
 the fact itself, and when made relevant it would still be incompe- 
 tent."" 
 
 § 813 (813), Must the relevancy of the proof a,ppear at the 
 time. — It has often been declared that the relevancy of testimony 
 need not always appear at the time when it is offered, since it is " the 
 usual course to receive, at any proper and convenient stage of the 
 trial, in the discretion of the judge, any evidence which the counsel 
 shows will be rendered material by other evidence which he under- 
 takes to produce. If it is not subsequently thus connected with the 
 issue, it is to be laid out of the case." °' But if the testimony is 
 apparently irrelevant, before counsel can claim the indulgence of 
 the court in this manner to introduce evidence, otherwise presum- 
 ably incompetent, he should state what he expects to prove, or in 
 some other way satisfy the court that the evidence will he made 
 competent.^' But on cross examination much more latitude is nec- 
 essarily allowed counsel." By the weight of authority, it is held 
 that, if counsel fail to malie the testimony relevant by other evi- 
 dence, the improper testimony may be withdrawn from the jury by 
 careful instructions to disregard it."^ But, on the other hand, it is 
 
 «6 Stephenson v. "Wilson, 50 Wis. 95. 
 
 8T "Wilson V. Barkalow, 11 Ohio St. 474. In this case the testimony, when 
 offered, was mere hearsay. 
 
 ssGreenl. Ev. § 51a.; State v. Foot You, 24 Or. 61, 32 Pac. 1031; Rogers 
 T. Brent, 10 111. 573, 50 Am. Dec. 422; O'Brien v. Keefe, 175 Mass. 274, 58 
 N. E. 588. See § 173 supra. 
 
 esMecheIke v. Bramer, 59 "Wis. 57; Piper v. "White, 56 Pa. St. 90; Abney 
 v. Klngsland, 10 Ala. 355, 44 Am. Dec. 491; "Van Buren v. "Wells, 19 "Wend. 
 203; Bishof v. Mikels, 147 Ind. 115, 46 N. E. 348; Lane v. Agric. Soc, 67 
 Minn. 65, 69 N. "W. 463. In discretion of court, Bradley v. Dinneen, 88 
 Minn. 334, 93 N. "W. 116. 
 
 ToCampau v. Dewey, 9 Mich. 422; Burt v. State, 23 Oh. St. 394; Knapp 
 V. "Wing, 72 "Vt. 334, 47 Atl." 1075. Still the court may exercise a sound 
 discretion. City Bank v. Kent, 57 Ga. 283. 
 
 iiHopt V. Utah, 120 TJ. S. 430; Specht v. Howard, 16 "Wall. 564; Blount v. 
 Beall, 95 Ga. 182; Umangst v. Kraemer, 8 "Watts & S. (Pa.) 391; Mimms v. 
 
 65 
 
1026 THE LAW OF EVIDENCE. § 814 
 
 urged by very high authority that the influence of improper tes- 
 timony upon the minds of the jury cannot in fact be removed by 
 the instruction of the court, and that in law the error is not cured 
 by such instructions,'^ nor by the offer of the counsel who has in- 
 troduced the objectionable testimony to withdraw it.'* It is very 
 clear that the court should exercise great caution, especially in 
 criminal cases, in admitting testimony of doubtful competency 
 upon the promise of counsel to show its materiality by subsequent 
 proof. Common fairness requires that counsel should not unnec- 
 essarily urge the admission of evidence out of its proper order or 
 promise to show its relevancy, unless able to do so. "Where the 
 case is one of delicacy and importance, and the evidende is nicely 
 balanced, and the scale liable to be affected by slight circumstances, 
 the court will be exceedingly vigilant in preventing any extraneous 
 or irrelevant matter from being brought before the jury. In such 
 cases, it is proper to require counsel to state the substance of what 
 they expect to prove, in order that, if irrelevant or improper, the 
 evidence may not be given. Where the lines of the case are more 
 broadly marked, less caution is necessary. " '* It is apparent that 
 the indulgence might work serious injury to a party by creating 
 prejudices in the minds of the jury which no instruction could 
 withdraw or efface. In such a case, the admission of the improper 
 testimony would seem to be such an abuse of discretion as should 
 be reviewed." 
 
 § 814 (814). Further illustrations of discretion of the court in 
 conducting trial. — It is a further illustration of the discretionary 
 control of the trial judge over the conduct of the trial and the ex- 
 amination of witnesses that he may determine whether a witness 
 may he recalled and examined subsequently to his first examina- 
 
 State, 16 Oh. St. 221; Hamblett v. Hamblett, 6 N. H. 333; Pavey v. Burch, 
 3 Mo. 447, 26 Am. Dec. 682; Beck v. Cole, 16 Wis. 95; Smith v. Whitman, 
 6 Allen, 562; Blizzard v. Applegate, 77 Ind. 516; Davis v. Peveler, 65 Mo. 
 189; State v. May, 4 Dev. (N. C.) 328; Goodnow v. Hill. 125 Mass. 587; 
 O'Brien v. Keefe, 175 Mass. 274, 56 N. E. 588; Dillin v. People, 8 Mich. 357; 
 Jones V. United States Mut. Ace. Ass'n, 82 la. 652, 61 N. W. 485; State 
 V. Towler, 13 R. I. 681. See § 173 supra. 
 
 72Erben v. Lorillard, 19 N. Y. 299; Gulf Ry. Co. v. Levy, 59 Tex. 542, 
 46 Am. Rep. 269; Lafayette, B. & M. Ry. Go. v. Winslow, 66 111. 219. 
 
 '3 Furst V. Second Ave. Ry. Co., 72 N. Y. 542. 
 
 74 People V. White, 14 Wend. 115. See § 173 supra. 
 
 76 Lycoming Fire Ins. Co. v. Rubin, 79 111. 402; Howe Machine Co. v. 
 Roslne, 87 111. 105; Gulf Ry. Co. v. Levy,. 59 Tex. 542, 46 Am. Rep. 269; 
 Marshal v. State, 5 Tex. App. 273. 
 
§ 814 ATTENDANCE AND EXAMINATION OF WITNESSES, 1027 
 
 tion.'" This is frequently made necessary by facts arising from 
 the cross-examination of other witnesses or by reason of inadvert- 
 ence or from other causes and is allowed in the sound discretion of 
 the court, although other proceedings have intervened.'^ While 
 the discretion is sometimes too indulgently exercised in allowing 
 such recall, the appellate court will not interfere where the request 
 is allowed or refused, unless the discretion is clearly abused.''^ This 
 is especially true where the discretion is exercised in favor of the 
 re-examinationJ' On the same principle, where the examination 
 of a witness is needlessly protracted, it is within the discretion of 
 the court to arrest it ; '" and the judge may properly interfere on 
 objection made or of his own motion.*^ On the other hand, it may 
 frequently be necessary to allow a repetition of statements by a 
 witness or the repetition of interrogatories, until full answers are 
 obtained.'^ -Although it is elementary that parties have the right 
 to maintain their respective claims by producing witnesses, and that 
 
 T8 See cases cited below. 
 
 77 state V. Glass, 50 Wis. 218, 36 Am. Rep. 845; People v. Mather, 4 Wend. 
 229, 21 Am. Dec. 122. See § 810 supra. 
 
 78 People V. Mather, 4 Wend. 230, 21 Am. Dec. 122, where it was held 
 no abuse of discretion to allow the recall of a witness after a day had 
 elapsed and other witnesses had been called; State v. Coleman, 27 La. An. 
 691; Johnston v. Mason, 27 Mo. 511; Samuels v. Griffith, 13 la. 103; Morn- 
 ingstar v. State, 59 Ala. 30; Cothran v. Forsyth, 68 Ga. 560; Jones v. Smith, 
 64 N. Y. 180; Crawford v. State, 112 Ala. 1, 21, So. 214; Anderson T. Co. v. 
 Puller, 174 111. 221, 51 N. E. 251; McLean v. Paine, 181 Mass. 287, 63 N. E. 
 883; Faust v. U. S., 163 U. S. 452; Burke v. Shaver, 92 Va. 345, 23 S. E. 749. 
 The witness may be recalled in the discretion of the court for re-examlna- 
 tion-in-chief. Brown v. Burrus, 8 Mo. 26; witnesses allowed to be recalled 
 to correct testimony. Central of G. R. Oo. v. Duffey, 116 Ga. 346, 42 S. E. 
 510; Erickson v. Railway Co., 93 Mich. 414, 53 N. W. 393. The same rule 
 applies when witnesses are recalled for recross-examination, McCoggle v. 
 State, 41 Fla. 525, 62 So. 734; Anthony v. State, 6 Ida. 383, 55 Pac. 884; 
 State V. Soper, 148 Mo. 217, 49 S. W. 1007; Cummlngs v. Taylor, 24 Minn. 
 429. 
 
 79 Treadway v. State, 1 Tex. App. 668. 
 
 80 Morein v. Solomons, 7 Rich. L. (S. C.) 97; Mulhallen v. State, 7 Ind. 
 646; Woolfolk v. State, 85 Ga. 69; Allen v. Kirk, 81 la. 658; McGuire v. 
 Lawrence Mfg. Co., 15 Mass. 324; Jones v. Stevens, 36 Neb. 849; Hamilton v. 
 Hulett, 51 Minn. 208. So the court may stop repetition of questions already 
 answered. People v. Rader, 136 Cal. 253, 68 Pac. 707. 
 
 81 State V. McGee, 36 La. An. 206. As to cross examination, see § 818, 
 infra. 
 
 82 Joslin V. Grand "Rapids Ice Co., 53 Mich. 322; Crow v. Marshall, IB Mo. 
 499; Aurora v. Hillman, 90 111. 61; Patrick v. Crowe, 15 Colo. 543. 
 
1028 THE LAW OP EVIDENCE. § 814 
 
 this right should not be unfairly limited, yet it is a weU settled prac- 
 tice of trial judges to limit the number of witnesses or depositions 
 upon a particular fact or issue.*' And the practice has been often 
 sanctioned even as to the main facts in the case.** But the appel- 
 late courts have frequently reviewed the discretion of the trial 
 judge where the witnesses have been unduly limited.*" While the 
 court generally notifies counsel to limit the number of witnesses, 
 the practice is so familiar that the exercise of the discretion may 
 be anticipated in proper cases without such notice. It may be stated 
 generally, that the reception of evidence which is merely cumulative 
 in its character is a matter that rests in the sound discretion of 
 the court. *° It has repeatedly been held that it is not error to ex- 
 elude testimony as to facts which have already been established by 
 
 83 Mergentheim v. State, 107 Ind. 567, 8 N. E- 588, limited to seven In a 
 nuisance case; Preston v. Cedar Rapids, 95 la. 71, 63 N. W. 577, to seven 
 in an action for damages; Everett v. Union Pac. Ry. Co., 59 la. 243, to five 
 in condemnation proceedings; Huett v. Clarlc, 4 Colo. App. 231; Hall v. 
 State, 64 Ark. 121, 40 S. W. 578; Detroit C. R. Co. v. Mills, 85 Mich. 
 634, 48 N. W. 1007; State v. Lamb, 141 Mo. 298, 42 S. W. 827; Meier 
 V. Morgan, 82 Wis. 289, 52 N. W. 174, where it was held that objec- 
 tion to such an order, as unreasonable, must be made at the time of 
 the ruling. So expert witnesses may be liniited in number, Hilliard v. 
 Beattie, 59 N. H. 462. But in Nelson v. Wallace, 57 Mo. App. 397, it was 
 held error to limit the witnesses offered to prove bad character to 
 three. A similar rule was adopted in Village of South Danville v. 
 Jacobs, 42 111. App. 533, where the number of witnesses as to con- 
 trolling fact in the case was limited. Experts, Eraser v. Jennison, 42 Mich. 
 206, 3 N. W. 882; Wabash Ry. Co. v. Defiance, 52 Oh. 262, 40 N. E. 89; 
 Powers V. McKenzie, 90 Tenn. 182, 16 S. W. 559: Sixth Ave. Ry. Co. v. 
 Railway Co., 138 N. Y. 548, 34 N. B. 400. As to character. State v. Beabout, 
 100 la. 155, 69 N. W. 429; State v. Rutherford, 152 Mo. 124, 53 S. W. 417. 
 In some states there are statutes on this subject. See note 116 Am. St. Rep. 
 514-520. See § 900 infra. 
 
 84 See cases cited above. 
 
 85 Ftour as to value of land. White v. Hermann, 51 HI. 243, 99 Am. Dec. 
 543; nine on question of insanity, Greene v. Ins. Co., 134 111. 310, 25 N. E. 
 583; one on any material point, Hubbell v. Osborn, 31 Ind. 249; four on 
 any matter of self defense, Fisher v. Conway, 21 Kan. 18, 30 Am. Rep. 419; 
 seven as to unsoundness of mare before sale, Barhyte v. Summers, 68 
 Mich. 341, 36 N. W. 93; six as to character, Williams v. McKee, 98 Tenn. 
 139, 38 S. W. 730. See note 116 Am. St. Rep. 516 et seq.; for further Illus- 
 trations, see § 900 infra. 
 
 soKuhn v. American Knife Co., 29 N. Y. S. 73; Jacksonville, T. & K. W. 
 Ry. Co. V. Wellman, 26 Fla. 344; Delgado v. Gonzales (Tex. Civ. App.), 
 28 Si. W. 459. 
 
§ 815 ATTENDANCE AND EXAMINATION OF WITNESSES. 1029 
 
 other evidence,'^ unless this right of the court is abused." This is 
 especially true where such evidence is not offered until the charge 
 to the jury has been begun or a nonsuit granted.*" It is a general 
 rule which has long been recognized that several counsel will not 
 be allowed to examine or cross-examine the same witness?'' But 
 this is a matter resting somewhat in the discretion of the trial judge, 
 and in his discretion may be departed from, especially at different 
 stages of the examination or if separate parties are affected and 
 have separate counsel."^ The court may also exercise a reasonable 
 discretion whether a witness may narrate the relevant facts on di- 
 rect examination in his own way and without being questioned.'^ 
 § 815 (814). Questions by judge — Comments by judge — ^Pro- 
 tection of witnesses — Striking out evidence, etc, — The respective 
 counsel are presumed to be thoroughly familiar with the facts of 
 the case and as a rule the trial will proceed in the most orderly 
 and satisfactory manner when they are allowed to manage and 
 conduct the examination of witnesses. But it is important that the 
 trial judge should also become acquainted with the facts and if in 
 his judgment it is necessary to elicit the truth, he may interpose to 
 propound questions to the witness," either in direct or cross-ex- 
 
 s'Mears v. Cornwall, 73 Mich, 78; Gouts v. Neer, 70 Tex. 468; Owen v. 
 ■Williams, 114 Ind. 179; Lake Store & M. S. Ry. Co. v. Brown, 123 111. 162; 
 Dobson V. Cothran, 34 S. C. 518; Otxcy v. Hamilton, 84 la. 594. 
 
 88 Galveston, H. & S. A. Ry. Co. v. Matula, 79 Tex. 577. 
 
 89 Seekell v. Norman, 78 la. 254; American EJagle Tobacco Co. v. Pierce, 
 70 Mich. 633. It has, however, been held error to exclude material evi- 
 dence on a disputed point, although U be cumulative in its nature. Fen- 
 wick V. Bowling, 50 Mo. App. 516. See also, Galveston, H. & S. A. Ry. Co. 
 V. Matula, 79 Tex. 577; Still well v. Farwell, 64 Vt. 286. 
 
 90 Doe V. Roe, 2 Camp. 280. But other counsel can make objection to 
 testimony, Baumier v. Antiau, 65 Mich. 31, 31 N. W. 888. 
 
 91 Citizens' Bank v. Frimholz, 64 Neb. 284, 89 N W. 775. Separate parties, 
 State v. Bryant, 55 Mo. 75; Kasson's Bsitate, 127 Oal. 496, 59 Pac. 950. 
 
 92 Joseph Chitty, "Practicing the Law," III, 894; Thresher v. Bank, 68 
 Conn. 201, 36 Atl. 38, witness an attorney; Northern P. R. Co. v. Charless, 
 51 Fed. 562. 
 
 93 Bow den v. Achor, 95 Ga. 243; Sanders v. Bagwell, 37 S. C. 145; Le- 
 fever v. Johnson, 79 Ind. 554; Beal v. State (Ala), 35 So. 58; Gordon v. 
 Irvine, 105 Ga. 144, 31 S. B. 151 ; Featherstone v. People, 194 111. 325, 62 N. 
 E. 685; State v. Spiers, 103 la. 711, 73 N. W. 343; BarUey v. State, 55 Neb. 
 594, 75 N. W. 832; De Ford v. Painter, 3 Okl. 80, 41 Pac. 96. State v. 
 Hargroves, 104 Tenn. 112, 56 S. W. 857; Lowe v. State, 118 Wis. 641, 96 
 N. W. 417.. 
 
1030 THE LAW OF EVIDENCE. § 815 
 
 amination and he may put leading questions '* or suggest the form 
 of a question,"^ and it has even been held that a judge may call a 
 witness and examine him, and that neither side may cross-examine 
 such witness.'' It is obvious that these privileges of the court 
 should be so exercised as not to prejudice the rights of the parties,"' 
 or to unduly interfere with the presentation of the cause of action 
 or defense. "While the judge may of course state the grounds of 
 his rulings in receiving or rejecting testimony, comment upon the 
 weight of the evidence at the time of its introduction should be 
 avoided as aft invasion upon the province of the jury.°* But the 
 right is inherent in the court, on its own motion, to cheek and si- 
 lence a witness "who is going beyond bounds in the testimony which 
 he is giving."" The privilege to examine witnesses has also been ex- 
 tended to jurors, when exercised to draw out or clear up some un- 
 certain point.^ The trial judge should, upon motion, strike out 
 answers that are not responsive to the questions asked, that is, those 
 answers that state facts not called for by the questions,* or those 
 which express an opinion as to the matter in question,' unless the 
 question calls for an opinion, as in the case of experts.* The same 
 is true where the form of the question is such as to make it nec- 
 
 »4 State V. Noakes, 70 Vt. 247, 40 Atl. 249. But such examination should 
 not be an extented one, Dunn v. People, 172 111. 582, 50 N. E. 137. See note 
 57 L. R. A. 875-884. Held improper under circumstances, State v. Crotts, 
 22 Wash. 245, 60 Pac. 403. 
 
 »6 Metropolitan St. Ry. Co. v. Johnson, 91 Ga. 466; Stajte v. Noakes, 70 
 Vt. 247, 40 Atl. 249. See note 57 L. R. A., 882. 
 
 9«Coulson V. Disborough, 2 Q. B. Div. (1894) 316. But see Selph v. State, 
 22 Fla. 537. 
 
 07 Sparks v. State, 59 Ala. 82; Bowden v. Anclior, 95 (Ja. 243. Right of 
 examination by judge should be sparingly exercised, Bartley v. State, 55 
 Neb. 594, 75 N. W. 832. As to province of judge and jury see § 174 supra. 
 
 98 Queen Ins. Co. v. Studebaker, 117 Ind. 416 ; Thompson v. Ish, 99 Mo. 
 166. 
 
 »8 Robinson v. State, 82 Ga. 535; Bowden v. Bailes, 101 N. C. 612. 
 
 1 Shaefer v. St. Louis & S. Ry. Co., 128 Mo. 64. 
 
 2 Pence v. Waugh, 135 Ind. 143; Angell v. Loomis, 97 Mich. 5; Irlback v. 
 Bierle, 84 la. 47; Chicago, K. & W. Ry. Co. v. "Woodward, 47 Kan. 191; 
 Nixon V. Goodwin (la.), 85 Pac. 169; Ramsey v. Smith, 138 Ala. 333, 
 35 So. 325; State v. James (Utah), 89 Pac. 460. Held that the examining 
 party Is the only one who can make the motion to strike out as not respon- 
 sive. In re DUnahugh's Will (la.), 107 N. W. 925. See § 895, infra. 
 
 a Lazard v. Merchants' & M. T. Co., 78 Md. 1. 
 4 ariffltb V. mica & M. Ry. Co., 17 N. Y. S. 693. 
 
§ 816 ATTENDANCE AND EXAMINATION OF WITNESSES. 1031 
 
 essary to give additional details.' The refusal of the trial judge 
 to strike out an irresponsive answer is reversible error/ unless it 
 is shown that such evidence is not prejudicial to the party appeal- 
 ing/ But where only a part of the answer is not responsive to the 
 question, only that part will be stricken out which is objectionable 
 for not being responsive.* It is not the duty of the court to instruct 
 the jury to disregard answers so stricken out, unless requested to 
 do so by counsel." Although to aid in the discovery of the truth 
 reasonable latitude should be allowed for the cross-examination of 
 witnesses it is the plain duty of the court to interfere on objection 
 or without, when the attempt is made by counsel to brow beat^ in- 
 sult or to intimidate witnesses.^" 
 
 § 816 (815, 816). Leading questions — General rule. — There is 
 no rule of evidence more familiar to the practitioner than the one 
 which forbids leading questions on the direct examination of wit- 
 nesses. " 'A question,' says Mr. Bentham, 'is a leading one, when 
 it indicates to the witness the real or supposed fact which the ex- 
 aminer expects and desires to have confirmed by the answer. Is 
 not your name so and so ? Do you reside in such a place ? Are you 
 not in the service of such and such a person ? Have you not lived so 
 many years with him? It is clear that under this form every sort 
 of information may be conveyed to the witness in disguise. It may 
 be used to prepare him to give the desired answers to the questions 
 about to be put to him ; the examiner, while he pretends ignorance 
 and is asking for information, is in reality giving instead of receiv- 
 ing it.' " *^ The objections to this line of interrogation sufficiently 
 appear from the last quotation from Mr. Bentham. But the further 
 considerations may be added that the witnesses may often be pre- 
 sumed to have some Mas in favor of the party producing him ; and 
 that leading or suggestive questions, as they are sometimes caUed, 
 would alldw the party to extract only so much of the knowledge 
 
 B Horaa v. Ctlcaso, St. P., M. & 0. Ry. Co., 89 la. 328; Baldwin v. Walk- 
 er, 94 Ala. 514, where a witness was asked "to tell about it" 
 8 Krey v. Schlusser, 16 N. Y. S. 695. See § 895, infra. 
 
 7 Oolclough V. Neland, 63 Wis. 309. 
 
 8 Benjamin y. New York El. Ry. Co., 17 N. Y. S. 908. 
 » State T. McGahey, 3 N. D. 293. 
 
 10 Bentham, Rationale of Judicial Ey. Bowrlngs Ed. VI., 338; EUott v. 
 Boyles, 31 Pa. 66; People v. Durant, 116 Cal. 179, 48 Pac. 75; State v. Pren- 
 dible, 165 Mo. 329, 65 S. W. 559. 
 
 iiBentham, Rationale of Judicial Evidence. For a general discusslofl 
 of leading questions, see note, 47 Am. Dec. 82-85. 
 
1032 THE LAW OF EVIDENCE. § 816 
 
 of the witness as would be favorable or even put a false gloss on tbe 
 whole.^^ "WMle the authorities concur in the proposition that lead- 
 ing questions are in general improper/' some difficulty has arisen 
 in determining what questions are leading and what are not, within 
 the meaning of the rule. It is very clear that a question is leading 
 which suggests to the witness the answer which he is to make, or 
 which puts into his mouth words which he is to echo back.^* But 
 if it merely suggests a subject, without suggesting an answer or a 
 specific thing, it is not leading.^" It has often been declared that 
 a question is objectionable, as leading, which embodies a material 
 fact and admits of answer by a simple affirmative or negative." 
 While it is true that a question which may be answered by yes or 
 no is generally leading, there may be such questions which in no 
 way suggest the answer desired, and to which there is no real ob- 
 jection.^' On the other hand, leading questions are by no means 
 
 12 Best, Ev. (lOth Ed.) § 641. 
 
 "Wliart. EV. § 499; Greenl. Ev. § 434; Best, Ev. (10th Ed.) § 641; 2 
 Phill. Ev. (3d. Am. Ed.) 401. 
 
 liTumey v. State 16 Miss. 104, 47 Am. Dec. 74; People v. Mather, 4 
 Wend. 229, 21 Am. Dec. 122; Page v. Parker, 40 N. H. 47; Harvey v. 
 Osborn, 55 Ind. 535; Pranks v. Gress Lumber CJo., Ill Ga. 87, 31 S. E. 314. 
 
 IB Born V. Roseno-w, 84 Wis. 620. 
 
 16 1 Greenl. Ev. § 434; United States v. Angell 11 Fed. 34; I Stark. Ev. 167. 
 
 17 Speer v. Richardson, 37 N. H. 23; Floyd v. State, 30 Ala. 511; Mathis 
 V. Buford, 17 Tex. 152; Adams v. Harrold, 29 Ind. 189. Whether such a 
 question is leading depends on the circumstances, Cragler v. Rhodes, 38 
 Fla. 240, 21 So. 109; State v. Wickliff, 95 la. 386, 64 N. W. 282, Lett v. 
 King, 79 Tex, 292, 15 S. W. 231. Question held not leading, "Did you make 
 any agreement at that time?" Dudley v. Elkins, 39 N. H. 78; "State 
 whether or not you had any difficulty in following the tracks," Hopper v. 
 Com., 6 Gratt. (Va.) 684. Whether the witness was in the habit of acting 
 by A's consent and with his approbation to every extent in reference to 
 buying gioods, Lee v. Tinges, 7 Md. 215. It was so held where an em- 
 ployee, after he had testified fully as to the accident was asked if he 
 had done all in his power to prevent the accident, Springfield Con. Ry. 
 Co. V. Welsh, 155 111. 511; Galveston, H. & S. Ry. Co. v. Duelin, 86 
 Tex. 450; and, when an engineer was asked: "Prom your knowledge 
 and experience as engineer, was it possible to have stopped the 
 train after you saw the plaintiff on the track?" Galveston, H. & S. A. 
 Ry. Co. V. Duelin, 86 Tex. 450. Held leading: "Do you know any circum- 
 stances which will show you that the defendant knew his son was at 
 school?" Floyd v. State, 30 Ala. 511; "What had you seen in the way of 
 intoxicating liquors being sold in that building?" State v. Schilling, 14 
 la. 456. "Do you know whether A. was ever prosecuted for stealing a 
 horse, if so, by whom and where?" Sexton v. Brook, 15 Ark. 345. In a suit 
 
§ 817 ATTENDANCE AND EXAMINATION OP WITNESSES. 1033 
 
 limited to those which may be answered hy yes or no. A question 
 proposed to a witness in the form "whether or not," that is, in 
 the alternative, is not necessarily leading. But it may be so, v/hen 
 proposed in that form, if it is so framed as to suggest .to the wit- 
 ness the answer desired.^' 
 
 § 817 (817). Exceptions to the rule — Hostile witnesses — Intro- 
 ductory questions. — ^A well recognized exception to the general 
 rule which is under discussion permits leading questions to a wit- 
 ness who is hostile to the party calling him, or who, for any reason, 
 may be deemed an unwilling witness.^" If it is apparent that the 
 witness is attempting to promote the interest of the adverse party,'"' 
 or if the witness is in fact the adverse party, the court will be justi- 
 fied in permitting the direct examination to take the character of a 
 cross-examination; and, in the latter case, leading questions may 
 
 for breach of promise of marriage, after a •witness for the plaintiff had 
 testified that he had paid attention to the plaintiff, plaintiff's counsel 
 asked the question: "Did you court her?" This was held not to be a lead- 
 ing question, Greenup v. Stoker, 8 111. 202. 
 
 IS Held proper, Bartlett v. Hoyt, 33N. H. 151; State v. Watson, 81 la. 380, 
 46 N. W. 868. For example: "ASThether or not testator's insanity took the 
 form of dislike to his relatives and friends," Pelamourges v. Clark, 9 la. 1. In 
 a damage suit against a street railway company the question: "When you 
 hailed the car, did you stop on the sidewalk, or did you continue walking 
 until you got near the oar?" Olfermann v. Union Depot Ry. Co., 125 Mo. 
 408. So in a murder case: "Did the noise sound as if the person was in 
 joy or distress? Was it as if she was laughing or crying, or if she was 
 suffering from pain or enjoying pleasure or was she making a mere 
 idle noise, as If nothing was the matter with her?" Malcik v. State, 
 33 Tex. Cr. Rep. 14. "Do you know whether or not he bought his 
 father's homestead?" Robertson v. Graver, 88 la. 381, 55 N. W. 492. So. 
 in proving the contents of an award, the question: "State whether or not 
 this Is a true copy of the award," Adams v. Harrold, 29 Ind. 198. Held 
 improper, State v. Johnson, 29 La. An. 717; People v. Mather, 4 Wend. 
 229, 21 Am. Dec. 122. For further illustrations, see Thomp. Trials, § 358. 
 
 i»Bradshaw v. Goomhs 102 111. 428; Com. v. Thrasher, 11 Gray, 57; 
 People V. Mather, 4 Wend. 229, 21 Am. Dec. 122; People v. Sexton, 187 
 N. Y. 495, 80 N. E. 396; Bank of riorthern Liberties v. Davis, 6 Watts & 
 S. (Pa.) 285; Towns v. Alford, 2 Ala. 378; Hopkinson v. Steele, 12 Vt. 
 582; Baker v. State, 69 Wis. 32; Klock v. State, 60 Wis. 574; McBride v. 
 Wallace, 62 Mioh. 451; People v. Gillespie, 111 Mich. 241, 69 N. W. 490; 
 State V. Waters (la.), 109 N. W. 1013; State v. Benner, 64 Me. 267; Con- 
 way V. State, 118 Ind. 482; State v. Tall, 43 Minn. 273; Rosenthal v. Bll- 
 ger, 86 la. 246, 53 N. W. 255; State v. Keith, 53 Mo. App. 383. 
 
 20 People V Mather, 4 Wend. 229, 21 Am. Dec. 122. State v. Walker 
 (la.), 110 N. W. 926. See cases last cited. 
 
1034 THE LAW OF EVIDENCE. § 818 
 
 be asked as a matter of right.^' This imwillingness, or other state 
 of mind of the witness, is to be decided by the judge from his de- 
 meanor upon the stand and from such facts in evidence as may show 
 that the wjtness, because of his relationship to a party, interest in 
 the cause or for other reason, has some Has against the one calling 
 him or some disinclination to testify. Again leading questions 
 are proper where they are merely introductory and designed to lead 
 the witness more quickly to matters which are material to the issue. 
 For example, in eases of conversations, admissions or agreements, 
 the attention of the witness may be drawn to the subject, occasion, 
 time, place -or person and he may be asked directly whether such 
 person said anything on the subject thus brought under his atten- 
 tention, and, if so, what he said.^^ Questions regarding the age, 
 antecedents, business and experience of a witness are largely within 
 the discretion of the court, and, unless it manifestly appear that 
 such questions are put for an improper purpose, such discretion is 
 not reviewable as error.^' On a question of identification, a wit- 
 ness may be asked whether the person pointed out to him is the 
 person in question,^* though, of course, if the witness can himself 
 point out the person in question without the aid of such a question, 
 his evidence will have greater weight. 
 
 § 818 (818). Same — As to facts not remembered — For purposes 
 of contradiction. — ^Another exception to the general rule is that 
 leading questions may sometimes be put to a witness after his mem- 
 ory on the subject is exhausted, and when he has omitted some fact 
 by reason of want of recollection. The question is not necessarily 
 leading, although it supply a name or date,^' or some connecting 
 fact or link which vTill enable the witness to recall a forgotten 
 fact ; "' and, if the vntness is testifying as to articles lost or de- 
 
 21 Clarke v. Saffery, Ryan & M. 126; Chllds v. Merrill, 66 Vt 302; 
 Greenl. Ev. § 435. 
 
 22 Williams V. Jarot, 6 111. 120; People v. Mather, 4 Wend. 229, 21 Am. 
 Dec. 122; Carlyle v. Plumer, 11 Wis. 96; Long v. Steiger, 8 Tex. 4G0; 
 Cronan v. Getting, 99 Mass. 334; Strawbrldge v. Spann, 8 Ala. 820; Booth- 
 by V. Brown, 40 la. 104; People v. Hodge, 141 Micli. 312, 104 N. W. 599, 
 113 Am. St. Rep. 525. 
 
 28 Ctochran v. United States, 157 U. S. 286. 
 
 2* Sadler v. Murrah, 4 Miss. 195; People v. Mather, 4 Wend, 229, 21 Am. 
 Dec. 122. 
 
 2i!Acerpo v. PetronI, 1 Stark. 100; Herring v. Skaggs, 73 Ala. 453. 
 
 28Huckins v. Peoples' Mutual Ins. Co., 31 N. H. 238; Moody v. Rowell, 
 17 Pick. 490, 28 Am. Dec. 317; Lowe v. Lowe, 40 la. 220; O'Hagan v. Dil- 
 
§ 818 ATTENDANCE AND EXAMINATION OF WITNESSES. 1035 
 
 stroyed or goods sold, his attention may be called to items not re- 
 membered.^' In the confusion and embarrassment of witnesses, 
 leading questions are often found necessary, and especially in the 
 case of those who, by reason of tender years or old age, ignorance or 
 some infirmity, are unable to state important facts without some 
 aid or suggestion.^' But leading questions should be avoided in 
 all cases, if possible. Another exception arises where it is desired 
 to show that a witness on the opposite side has, at another time, 
 made a statement contradictory to his present statement. "Where 
 the attention of such witness has been called, on cross-examination, 
 to the alleged contradictory statement, and he has denied it, another 
 witness may be asked the direct question whether the particular 
 words denied were in fact used by the former witness."" There is, 
 however, a conflict of opinion on this subject; and there is very 
 high authority for the view that, in such a ease, the proper course 
 of examination is to ask "what the witness in fact said relative to 
 the matter in question, and not in the first instance to ask in the 
 leading form whether he said so and so. " '" In his work on evi- 
 dence, Mr. Taylor suggests that the rule allowing the leading ques- 
 tion in such cases "should only apply to such expressions as in 
 themselves are not evidence in the cause ; the object of relaxing the 
 
 Ion, 76 N. T. 170; Domiell v. Jones, 13 Ala. 490, 48 Am. Dec. 59; Ooon v. 
 People, 99 111. 368, 39 Am. Rep. 28; Schultz v. State, 5 Tex. App. 390; Far- 
 rell v. Boston, 161 Mass. 106; Poison v. State, 137 Ind. 519, child ten 
 years of age. 
 
 27 Graves v. Merchants' Ins. Co., 82 la. 637, 49 N. W. 65; Clark v. Fee, 
 86 Ga. 9. 
 
 28 Blindness and old age, Cheney v. Arnold, 18 Barb. 434; children. 
 State V. Watson, 81 la. 380, 46 N. W. 868; People v. Harlan, 133 Cal. 16, 65 
 Pac. 9; Hodge v. State, 26 Fla. 11; State v. McGorden (Or.), 88 Pac. 306; 
 Poison V. State, 137 Ind. 519; illiterate, State v. Spotted Hawk, 22 Mont. 
 33, 55 Pac. 1026; Carlson v. Holm, (Neb.), 95 N. W. 1125; unable to re- 
 member a person's first name, Acerro v. Petronl, 1 Stark. 100; foreigner, 
 Kruse v. S. & W. Lumber Co., 108 la. 352, 79 N. W. 118; Olferman v. Union 
 Depot Ry. Co., 125 Mo. 408; deaf -mute. State v. Burns, 119 la. 663, 78 N. 
 W. 681. See cases cited In note 26 above. Contra, Coon v. People, 99 111. 
 368, 39 Am. Rep. 28, as to leading questions to children. See also Johnson 
 V. People, 202 111. 53, 66 N. E. 877. 
 
 20 Potter V. Bissell, 3 Lans. (N. Y.) 205; Rounds v. State, 57 "Wis. 45, 
 14 N. W. 865; Best Ev. (10th Ed.) § 642; Greenl. Bv. § 435. See §§ 845 et 
 seq. infra. 
 
 so 2 PMll. Bv. 404 ; Harrington v. Lincoln, 2 Gray, 133 ; Seavy v. Dear- 
 born, 19 N- H. 351; Allen v. State, 28 Ga. 395, 73 Am. Dec. 760. 
 
1036 THE LAW OF EVIDENCE. § 819 
 
 general rule being simply to exclude the other parts of the con- 
 versation which would not be admissible.'"^ 
 
 § 819 (819). Leading questions — Discretion of the court.^AI- 
 though, as we have seen, there are certain general rules governing 
 this subject of leading questions, very much must be left to the dis- 
 cretion of the trial judge. Says Mr. Best: "It should never be for- 
 gotten that 'leading' is a relative, not an absolute term. There 
 is no such thing as 'leading' in the abstract, for the identical form 
 of question which would be leading of the grossest kind in one case 
 or state of facts might not only be unobjectionable, but the very 
 fittest mode of interrogation in another. ' ' ^^ The subject is one of 
 judicial discretion ; °' and the allowing or refusing leading ques- 
 tions is not generally a ground for appeal.'*' If, however, there 
 appears a clear abuse of discretion, it is ground for exception and 
 reversal." An abuse of discretion on the part of the judge, in al- 
 
 8iTayl. Bt. (10th Ed.) § 1405; HaJlett v. Ctousens, 2 Mioody & Rob, 238. 
 
 82 Best Bv. (10th Ed.) § 641. 
 
 saporath v. State, 90 Wis. 527, 63 N. W. 1061; Funk v. Babbitt, 156 111. 
 408, 41 N. B. 166; Anderson v. State, 104 Ala. 83; People v. Considine, 105 
 Mich. 149, 63 N. W. 196; Lake Shore & M. S. Ry. Co v. Anthony, 12 Ind. 
 App. 126; St. Clair v. United States, 154 tJ. S. 134; Carder v. Primm, 62 
 Mo. App. 102; Moody v. Rowell, 17 Pick. 498; McDonald v. State, 118 Ala. 
 672, 23 So. 637; People v. Harlan, 133 Cal. 16, 65 Pac. 9; Sylvester v. State 
 (Pla.), 35 So. 142; Cochrajie v. State, 113 Ga. 736, 39 S. B. 337; McLean v. 
 Lewlston, 8 Ida. 472, 69 Pac. 478; Daugherty v. Heckard, 189 111. 239, 59 N. 
 E. 569; State v. Burns, 119 la. 663, 94 N. W. 238; Campion v. Lattimer 
 (Neb.), 97 N. "W. 290; Webb v. Feathers' Est, 119 Mich. 473, 78 N. W. 
 550; Coates v. Lynch, 152 Mo. 161, 53 S. W. 895; Dinsmore v. State, 61 
 Neb. 418, 85 N. W. 445; Crenshaw v. Johns<m, 120 N. C 270, 26 S. E. 810; 
 State v. Ogden, 39 Or. 195, 65 Pac. 449; State v. Marchbank (S. a), 39 S. 
 E. 187; Rainey v. Potter, 120 Fed. 651; Rio Grande W. R. Co. v. Utah N. 
 Co., 25 Utah, 187, 70 Pac. 859; Bannen v. State, 115 Wis. 317, 91 N. W. 
 107. This Is especially true where witness is examined on written inter- 
 rogatories. Holmes v. Clisby, 121 Ga. 241, 48 S. B. 934, 104 Am. St. Rep. 103. 
 So a judge may ask leading questions with a view to elicit the facts, Huff- 
 man V. Gamble, 86 Ind. 591, 596. 
 
 34Donnell v. Jones, 13 Ala. 490, 48 Am. Dec. 59; Parmelee v. Austin, 
 20 111. 35; State v. Lull, 57 Me. 246; York v. Pease, 2 Gray, 282; Green 
 v. Gould, 3 Allen, 465; Smith v. Hutchings, 30 Mo. 380; Severance v. Carr, 
 43 N. H. 65; Walker y. Dunspaugs, 20 N. Y. 170; Barton v. Kane, 17 Wis. 
 38, 84 Am. Dec. 728; Moody v. Rowell, 17 Pick. 490, 28 Am. Dec. 317; Park- 
 er V. Georgia Pac. Ry. Co., 83 Ga. 539; State v. Chee Gong, 17 Ore. 635; 
 People v. Fung Ah Sing, 70 Cal. 8; Lane Brothers & Co. v. Bauserman, 103 
 Va. 146, 48 a E. 857, 106 Am. St. Rep. 872. 
 
 SB Northern Pac. Ry. Co. v. Urlin, 158 U. S. 271; Doran v. Mullen, 78 111. 
 
§ 820 ATTENDANCE AND EXAMINATION OP WITNESSES. 1037 
 
 lowing a witness to answer a leading question, may be cured by sub- 
 sequent proceedings, as where substantially the same question is 
 asked and answered on cross-examination.'"' 
 
 § 820 (820). Cross-examination — On subject matter of direct 
 examination. — It is the English rule that, if a competent witness 
 is intentionally called and sworn for the purpose of giving evi- 
 dence, the right of cross-examination exists, although no testionmy 
 is actually given.'' The rule does not, however, extend to a wit- 
 ness who is simply subpoenaed to produce a document to be identi- 
 fied or proved by another witness,^' nor to a witness who is sworn 
 by mistake, but not examined.^' According to the English rule, 
 where a witness is called to a particular fact, he becomes a wit- 
 ness for all purposes and may be fully cross-examined upon all 
 matters material to the issue, the examination. not being confined 
 to the matters inquired about in the direct examination.*" The 
 same rule has been followed in some jurisdictions within the United 
 States.*^ But the rule which was long ago declared by the supreme 
 
 342; state v. Benner, 64 Me. 267; Goudy v. "Werbe, 117 Ind. 154; White v. 
 White, 82 Cal. 427; Whiting v. Mississippi Valley Ins. Oo., 76 Wis. 592; 
 State V. Ogden, 39 Or. 195, 65 Pac. 449. 
 
 36 Pox V. Steever, 156 111. 622, 40 N. B. 942. 
 
 37 R. V. Brooke, 2 Stark. 472; Phillips v. Earner, 1 Esp. 355; Blackingtoo 
 V. Johnson, 126 Mass. 21; State v. Sayers, 58 Mo. 585; Linsley v. Lovely, 
 26 Vt. 123; Klbler v. Mcllwain., 16 S. C. 550. See notes on cross-examina- 
 tion, 12 L. R. A. 693, 15 L. R. A. 666-674. 
 
 38 Summers v. Moseley, 2 Cromp. & M. 477, 4 Tyr. 158; Perry v. Gibson, 
 1 Adol. & Ell. 48; Davis v. Dale, 4 Car. & P. 335; Griffith v. Ricketts, 7 
 Hare, 300; Reed v. James, 1 S'tark. 132. 
 
 39 Wood V. Maekinson, 2 Moody & Rob. 273; Clifford v. Hunter, 3 Car. & 
 P. 16; Rush V. Smith, 1 Cromp., M. & R. 94. It has been held that the 
 right of cross-examination does not exist where the witness is merely 
 sworn but not examined, Milton v. State, 40 Fla. 251, 24 Sk>. 60; State v. 
 Luoas, 124 N. C. 825, 32 S. E. 962; Toole v. Niohol, 43 Ala. 406. Contra, 
 Mason v. Railway Oo., 58 S. C. 70, 36 S, E. 440, 79 Am. St. Rep. 826. Wit- 
 ness called but excused before interrogated as to any material issue, Fall 
 Brook C. Co. v. Hewson, 158 N. Y. 150, 52 N. B. 1095, 70 Am. St. Rep. 466; 
 Watkins v. U. S., 5 Okl. 729, 50 Pac. 88. 
 
 40 Mayor v. Murray, 19 L. J. (Ch.) 281; Tayl. Bv. (10th Ed.) § 1432; 
 Steph. Ev. art. 127. The same rule there prevails, although the proof Is 
 of a merely formal character, Morgan v. Brydges, 2 Stark. 314. 
 
 iiBeal v. Nichols, 2 Gray, 262; Moody v. Rowell, 17 Pick. 490, 28 Am. 
 Dec. 317; Blacklngton v. Johnson, 126 Mass. 21; Jones v. Roberts, 37 Mo. 
 App. 163; Lundiay v. Thomas, 26 Ga. 537; Lamprey v. Munch, 21 Minn. 
 379; Linsley v. Lovely, 26 Vt. 123; Ireland v. Cincinnati Ry. Co., 79 Mich. 
 163; Hay v. Held, 85 Mich. 296, 48 N. W. 507; News Pub. Co. v. Butler, 
 
1038 THE LAW OF EVIDENCE. § 820 
 
 court of the United States, called the American rule, and which 
 prevails in most of the states is qtiite different. The cross-examina- 
 tion can only relate to facts and circumstances connected with the 
 matters stated in the direct examination of the witness.*' If a 
 party wishes to examine a witness as to other matters, he must do 
 so by making the witness his own.*^ But a court wiU not, in such 
 a case, consider the error in the line of inquiry, unless the record 
 shows that the subject matter was not opened up in the examina- 
 tion-in-chief .*^ Under the rule that generally prevails, the fact that 
 other witnesses have testified to certain matters does not subject 
 a witness to cross-examination as to such matters, unless he has 
 
 95 Ga. 559; State v. Larkins, 5 Ida. 200, 47 Pac. 945; O'Oonnell v. Dow, 
 182 Mass. 541, 66 N..E. 788; Mask v. State, 32 Miss. 405; State v. Allen, 107 
 N. C. 805, 11 S. E. 1016; State v. Howard, 35 S. C. 197, 14 S. K 481; Sands 
 V. Railway Co., 108 Tenn. i; 64 S. W. 478; People v. Altmeyer, 135 Oal. 80, 
 66 Pac. 974. See also. State v. Anderson, 126 Mo. 542. Criminal cases, 
 People T. Rodriguez, 134 Cal. 140, 66 Pac. 174; State t. Turner, 110 Ma 
 196, 19 S. W. 645. 
 « Philadelphia Ry. Co. v. Stimpson, 14 Peters, 461; Houghton v. Jones, 
 
 I Wall. 702; Wills v. Russell, 100 U. S. 621; Northern Pac. Ry. Co. v. 
 Urlln, 158 U. S. 271; People v. Oyer & Term. Court, 83 N. Y. 436; Leedom 
 V. Leedom, 160 Pa. St. 273; Hurlburt v. Meeker, 104 111. 541; State v. 
 Taylor, 45 La. An. 1303; Donnelly v. State, 26 N. J. L. 463, 601; Austin 
 V. State, 14 Ark. 555; State v. Smith, 49 Conn. 376; State v. Swayze, 30 
 La. An. 1323; Tourtelotte v. Brown, 1 Colo. App. 408; Lueck v. Helsler, 
 87 Wis. 644; Herrick v. Swomley, 56 Md. 439; Ferguson v. Rutherford, 7 
 Nev. 385; Rush v. French, 1 Ariz. 99; Adams v. State, 28 Fla. 511; Rosum 
 V. Hodges, 1 S. D. 308; People v. Denby, 108 Cal. 54; Morthorst v. Nebras- 
 ka Telephone Co., 28 Neb. 610; Amos v. State, 96 Ala. 424; Moellerlng v. 
 Evans, 121 Ind. 195; Butler v. dhioago, B. & Q. Ry. Co., 87 la. 206; Atchi- 
 son v. Rose, 43 Kan. 605; Hurlburt v. Hall, 39 Neb. 889; People v. Thiede, 
 
 II Utah, 211; Westerfleld's Etate, 96 Oal. 113, 30 Pac. 1104; Peaden v. 
 State (Fla.), 35 So. 204; Anheuser B. Ass'n v. Hutmacher, 127 111. 652, 
 21 N. B. 626; Chandler v. Beal, 132 111. 596, 32 N. E. 597; Bullis v. Rail- 
 way Co., 76 la. 680, 39 N. W. 245; State v. Farrington, 90 la. 673, 57 N. W. 
 606; Lawder v. Henderson, 36 Kan. 754, 14 Pac. 164; Atwood v. Marshall, 
 52 Neb. 173, 71 N. W. 1064; State v. Kent, 5 N. D. 516, 67 N. W. 1052; 
 Sutch's Estate, 201 Pa. 305, 50 Atl. 943; Boucher v. Clark Pub. Co., 14 
 S. D. 72, 84 N. W. 237; State v. Hatfield, 48 W. Va. 561, 37 S. E. 626; 
 Sullivan v. Collins, 107 Wis. 291, 83 N. W. 310. This rule applies to par 
 ties as well as other witnesses, Hansen v. Miller, 145 111. 538; Rea v. 
 Missouri, 17 U. S. 532; Lueck v. Heisler, 87 Wis. 644, 58 N. W..1101. 
 See § 836 infra. 
 
 « See cases above cited. 
 
 ** Houston T. Brush, 66 Vt 331. 
 
§ 820 ATTENDANCE AND EXAMINATION OP WITNESSES. 1039 
 
 testified as to them himself ; " nor can a witness be cross-examined 
 upon evidence given in the direct examination which has subse- 
 quently been stricken out.*^ But, if such immaterial or irrelevant 
 evidence has not been stricken out, it is error to refuse cross-ex- 
 amination as to the facts treated in it.*' The rule limiting the 
 cross-examination to the general subject matter of the direct ex- 
 amination is certainly more conducive to the systematic and or- 
 derly trial of causes, and it has the further merit that it prevents 
 the cross-examiner from proving, by leading questions, independent 
 facts by a witness friendly to him whom the adverse party is 
 obliged to call.** This rule clearly applies when the attempt is 
 made to draw out, by cross-examination, facts having no connec- 
 tion with the matters stated in the direct examination, but consti- 
 tuting the substantive defense or claim of the cross-examiner.*' For 
 example, if the direct examination of the payee of a note is con- 
 fined to the question of the genuineness of the signature or the iden- 
 tity of the note, the adverse party has no right to cross-examine as 
 to the consideration;"" and in ejectment, the plaintiff's witnesses 
 cannot, on cross-examination, be examined as to the defendant's 
 title."^ So in an action on a guardian's bond, when the plaintiff's 
 witness does not testify upon the subject, he cannot be cross-exam- 
 ined to show that the bond was not duly executed."" But the mere 
 fact that evidence, called forth bj' a legitimate cross-examination, 
 happens 'also to sustain a cross action or counter-claim affords no 
 reason why it should be excluded."^ 
 
 « State V. Taylor, 45 La. An. 1303. See also cases cited In note 42 supra. 
 
 «o Jones V. State, 35 Pla. 289. 
 
 *TValin V. McKerrighan (Mich..), 62 N. W. 340. 
 
 *8Knapp V. Schneider, 24 Wis. 70; Tourtelotte v. Brown, 1 Colo. App. 
 408. 
 
 « Donnelly v. State, 26 N. J. L. 463, 601; Norris v. Cargill, 57 Wis. 251; 
 Denniston v. Philadelphia Co., 161 Pa. St. 41; People v. Oyer & Term. 
 Court, 83 N. Y. 436; Sullivan v. Collins, 107 Wis. 291, 83 N. W. 310, at- 
 tempt to prove payment. For other illustrations see cases note 42 above. 
 
 ooToumans v. Carney, 62 Wis. 580; Bell v. Prewitt, 62 111. 361; Braly 
 V. Henry, 77 Cal. 324. Such testimony is not allowed as part of the res 
 gestae, Youmans v. Carney, 62 Wis. 580; McFadden v. Mitchell, 61 Cal. 
 148. But it was held otherwise in Lemprey v. Munch, 21 Minn. 379. 
 
 51 Thatcher v. Olmstead, 110 111. 26. 
 
 52 Britton v. State, 115 Ind. 55. 
 
 saRush V. French, 1 Ariz. 99; Wendt v. Chicago, St P. M. & O. Ry. Co., 
 4 S. D. 476. 
 
1040 THE LAW OF EVIDENCE. § 821 
 
 § 821 (821). Further discussion and qualification of the rule. — 
 The general rule under discussion does not require that the cross- 
 examining counsel shall be confined to the phases of a subject intro- 
 duced in the direct examination. "Where a general sutject is en- 
 tered upon in the examination-in-chief, the cross-examining counsel 
 may ask any relevant question on the general subject, and is not 
 bound to foUov7 the line of examination pursued by the adverse 
 party."* It is sometimes held that, even as to matters purely de- 
 fensive, it rests in the sound discretion of the court to allow the 
 defendant to cross-examine the plaintiff's witnesses."" Although 
 there are instances in which it has been held error, even in civil 
 actions, to allow cross-examination as to matters not connected with 
 the examination-in-chief ,"° yet it is the prevailing rule that very 
 much must be left to the discretion of the presiding judge in the 
 determination of this question. It has been said that, "unless a 
 trial court should so far overstep the bounds as to admit that in 
 cross-examination which clearly has no connection with the direct 
 testimony, an appellate court would not be justified in reversing a 
 judgment for such cause, especially where the cross-examination is 
 upon facts competent to be proved under the issues in the case." " 
 But the rule, limiting the inquiry to the general facts stated in the 
 direct examination, must not be so construed as to defeat the real 
 object of the cross-examination. One of the objects of the cross- 
 examination is to elicit the whole truth of transactions, only partly 
 explained. Hence, questions intended to fill up designed or acci- 
 dental omissions of the witness, or to call out facts tending to con- 
 tradict, explain or modify some inference which might otherwise 
 be drawn from his testimony are legitimate cross-examination." 
 
 64Vogel V. Karris, 112 Ind. 494; Pye v. Bakke, 54 Minn. 107; Hay v. 
 Reid, 85 Mich- 296; Austrian v. Springer, 94 Mich. 343; Davis v. Hayes, 
 89 Ala. 563; Sayres v. Allen. 25 Or. 211. 
 
 ssMcNair v. Rewey, 62 Wis. 167; Neil v. TUom, 88 N. Y. 270; Himts- 
 ville Ry. Co. v. Corpenting, 97 Ala. 681, 12 So. 295; Harrington v. Mining 
 Co., 19 Mont. 411, 48 Pac. 758; Blake v. People, 73 N. Y. 586. 
 
 66 Bell V. Prewitt, 62 111. 361. 
 
 S7 Glenn v. Gleaaon, Gl la. 28; Hughes v. Westmore Land Co., 104 Pa. 
 St. 207; Haynes v. Ledyard, 33 Mich. 319; Herrlck v. Swomhey, 5fi Md. 
 439; Riordan v. Guggerty, 74 la. 688; Jones v. Stevens, 36 Neb. 849; Ham- 
 ilton v. Hulett, 51 Minn. 208; Pennsylvania Co. v. Newmeye'r, 129 Ind. 401; 
 State V. Morris, 109 N. C. 820; People v. McNamara, 94 CaJ. 509. As to 
 when new matter may be introduced on re-direct examination, see Spring- 
 field V. Dalby, 139 111. 34. 
 
 5« Chandler v. Allison, 10 Mich. 460; Langworthy v. Towa of Crreen, 88 
 
§ 822 ATTENDANCE AND EXAMINATION OF WITNESSES. 1041 
 
 Even in those states where the American rule is applied it has 
 been frequently held that in fraud cases the general rule may be 
 properly relaxed in discretion of the court."' Although the court 
 may exercise a reasonable discretion in regulating or limiting the 
 cross-examination, yet it is clearly error to exclude cross-examina- 
 tion upon subjects included in the examination-in-chief, where 
 such ruling is prejudicial."" So far as such cross-examination of a 
 witness relates either to facts in issue or facts relevant to the issue, 
 it may be pursued by counsel as a matter of right.'^ 
 
 § 822 (822). Same — Details may be called for — Questions 
 showing improbability of direct testimony. — ^From the rules al- 
 ready stated, the right to call for the details and particulars of 
 matters stated in general terms in the direct examination may be 
 implied."^ Thus, if a part of the conversation or transaction has 
 been given in direct testimony, the remainder, so far as it is rele- 
 vant, may be called out by the cross-examination, as the inquiry and 
 answer in such case may tend to impeach, rebut, explain or qualify 
 the testimony already given."' But it is a qualification of this 
 
 Mich. 207; People v. Russell, 46 Cal. 121; Reiser v. Portere, 106 Mich. 102, 
 63 N. W. 1041; Ah Doon v. Smith, 25 Or. 89; Wilson v. Wagner, 26 Mich. 
 452; Graham v. Larimer, 83 Cal. 173; Yeoman v. State, 21 Neb. 171; Gil- 
 mer V. Hlgley, 110 U. S. 47; Maxwell v. BoUes, 28 Or. 1, 41 Pac. 662; 
 Black V. First Nat. Bank, 96 Md. 3'99, 54 Atl. 88; Hajmes v. Ledyard, 33 
 Mich. 319; Hardy v. Milwaukee St. Ry. Co., 89 Wis. 183; People v. Bldle- 
 man, 104 Cal. 608; Hall v. Chicago, R. I. & P. Ry. Co., 84 la, 311; Central 
 Ry. Co. V. Allmon, 147 111. 471; Olson v. Swenson, 53 Minn. 516, cross- 
 examination as to contradictory statements made to a third person, Hold- 
 ridge V. L«e, 3 S. D. 134; Blenklron v. State, 40 Neb. 11; Basye v. State, 
 45 Neb. 261; Hamilton v. Gray, 67 Vt. 233; People v. Gordon, 103 Cal. 568; 
 Derk v. Northern Central Ry. Co., 164 Pa. St 243; Stiles v. BstabrookB, 66 
 Vt 535; Bevan v. Atlanta Nat. Bank, 142 111. 302. 
 
 ssRiordan v. Guggerty, 74 la. 690, 39 N. W. 107; Whipple v. Preece, 24 
 Utah, 364, 67 Pac. 1072; Atwood v. Marshall, 52 Neb. 173, 71 N. W. 1064; 
 Sullivan V. Collins, 107 Wis. 291, 83 N. W. 310; Armagost v. Rising, 54 
 Neb. 763, 75 N. W. 534; Oahoon v. West, 20 Utah, 93, 5.7 Pac. 715. 
 
 60 Sayres v. Allen, 25 Or. 211; Yost v. Minneapolis Works, 41 111. App. 
 556; People v. Dixon, 94 Cal. 255; Hall v. Chicago, R. I. & P. Ry. Co., 84 
 la. 311; Bames v. Kaiser, 142 U. S. 488. 
 
 siDaugley v. Wadsworth, 99 N. Y. 61; Storm v. United States, 94 U. S. 
 76. See also cases last cited. 
 
 «2Hyland v. Milner , 99 Ind. 308; Curren v. Ampersee, 96 Mich. 553; 
 People v. Llphardt, 105 Mich. 80, 62 N. W. 1022; Cunningham v. Austin & 
 N. W. Ry. Co, 88 Tex. 534; Williams v. State, 32 Fla. 315. 
 
 •"Mason v. Tallman, 34 Me. 472; Wendt v. Chicago, St P., M. & O. Ry. 
 
 66 
 
1042 THE LAW OF EVIDENCE. § 822 
 
 rule, elsewhere discussed, that distinct and independent statements, 
 in no way connected with the statement given in direct examina- 
 ion, and which in no way tend to qualify or explain such statement, 
 cannot be called out on cross-examination, although forming part of 
 the same conversation."* It is no violation of the general rule under 
 discussion to allow a witness to be asked questions naturally tend- 
 ing to show the improiaMlity of statements made in the examina- 
 iion-in-cMef. Thus, where a witness claimed to have been robbed 
 of a large amount of money, it was held admissible to show, by 
 cross-examination, that he was heavily indebted and embarrassed 
 financially, and that he had made statements largely exaggerating 
 his assets ; °° and on a trial for seduction under promise of mar- 
 riage, when the witnesses for the prosecutrix testified to the fact 
 that the defendant had kept company with her, it was held proper 
 to show that other persons had kept company with her in a similar 
 manner."" While it is the prevailing rule that new matter cannot be 
 brought out on cross-examination, many other illustrations might be 
 given of the right to elicit, on such examination, all such particular 
 facts as tend to disprove the essential or ultimate facts of the case, 
 which the direct examination has tended to prove." It will be 
 seen, as we proceed, that the general rule limiting the cross-exam- 
 ination to the matters elicited in the examination-in-chief does not 
 
 Co., 4 S. D. 476, 57 N. W. 226; Harness v. State, 57 Ind. i; Phares v. 
 Barber, 61 111. 271; Watrous v. Cunningham, 71 Cal. 30; Wallace v. State, 
 41 Fla. 547, 26 So. 713; Maxwell v. Bolles, 28 Or. 1, 41 Pac. 661; Shackel- 
 ford V. State, 43 Tex. 138; Addison v. State, 48 Ala. 478; Roberts v. 
 Roberts, 85 N. C. 9; Home Benefit Ass'n v. Sargent, 142 U. S. 691; People 
 V. Dixon, 94 Cal. 255; Ferris v. Hard, 135 N. Y. 354; Wolf v. Wolf, 158 Pa. 
 St. 621. See §§ 172 supra, 871 infra. 
 
 6* People v. Beach, 87 N. Y. 508; Rouse v. Whited, 25 N. Y. 170, 82 Am. 
 Dec. 337; Com v. Keyes, 11 Gray, 323; Jacobs v. Town of Craydon (N. 
 H.), 27 Atl. 122; 1 Phill. Bv. (4th Am. Ed.) 416. The same rule applies to 
 the declarations of a third person, as well as a party to the suit. Platnef 
 V. Platner, 78 N. Y. 90. See §§ 871, 872 injra. 
 
 65 People V. Morrigan, 29 Mich. 4; Yeaw v. Williams, 15 R. I. 20; Ponius 
 v. People, 82 N. Y. 339, where a prisoner stated that he had lost certain 
 money; Coey v. Darknell, 25 Wash. 518, 65 Piac. 760, discussion; Wendt 
 V. Railway Co., 4 S. D. 476, 57 N. W. 226, full discussion, So as to facts 
 which should have been brought out as part of opponent's case. Smith v. 
 Philadelphia Traction Co., 202 Pa. 54, 51 Atl. 345. 
 
 ooStinehouse v. Sitate, 47 Ind. 17; State v. Brown, 86 la. 121. 
 
 8' Ferguson v. Rutherford, 7 Nev. 385; Tapley v. Forbes, 2 Allen, 20; 
 Hay V. Reld, 85 Mich, 296; State v. Row, 81 la. 138; McFadden v. Santa 
 Anna Ry. Co., 87 Cal., 464. See cases cited above. 
 
§ 824 ATTENDANCE AND EXAMINATION OF WITNESSES. 1043 
 
 exclude questions tending to discredit or impeach the witness, or 
 those designed to show his interest, prejudice or motives, or to test 
 his accuracy, intelligence and means of knowledge."' 
 
 § 823 (823). Facts that are part of res gestae may be shown. — 
 We have seen that the cross-examination may extend to such mat- 
 ters as tend to qualify, rebut or explain statements made in the 
 direct examination. On familiar principles, the cross-examination 
 may call forth whatever forms part of the res gestae, although in 
 the nature of new or defensive matter."" For example, the sub- 
 scribing witness to a will may be cross-examined as to all that oc- 
 curred at the time of its execution, and as to the physical and men- 
 tal condition of the testator ; '° and, where a witness testifies to the 
 signature of a note, he may be cross-examined as to the time and 
 place and all the circumstances of such signature,'*^ and he may 
 be asked when he first saw the note and who first showed it to 
 him.'^ Other illustrations of the principle will be found in other 
 sections. '' It is a common practice for the cross examiner to call 
 for a repetition of the statements made by the witness on direct 
 examination. Although such a course of examination generally 
 confirms and strengthens the testimony of the witness it is per- 
 missible, and occasionally develops a conflict of testimony.'* 
 
 § 824 (824) . Leading questions may be asked — ^As to new mat- 
 ter. — If any presumption is to be entertained as to the bias of 
 witnesses, it is that the witness is unfavorable rather than favor- 
 able to the cross-examiner.; hence, the reasons for the general rule 
 excluding leading questions do not apply on cross-examination."' 
 The value of cross-examination must depend upon the right of 
 counsel to thoroughly probe the memory of an adverse witness, and 
 to test his accuracy and truthfulness; hence, very great latitude 
 is allowed as to the form of questions and the mode of conducting 
 
 88 See §§ 828 et seq., 845 et seq. infra. 
 
 »9 Rhodes v. Com., 48 Pa. St. 396; Youmaas v. Oamey, 62 Wis. 580; 
 McNeal v. Pittsburg & W. Ry. CJo, 131 Pia. St. 184; Smith v. Philadelphia 
 Traction Co., 202 Pa. '54, 51 Atl. 345; Glenn v. Gleason, 61 la. 28; People 
 V. Gallagher, 100 Gal. 466; Graham v. MoReynolds, 90 Tenn. 673; Eames 
 V. Kaiser, 142 U. S. 488. See §§ 821 supra, 826 infra. 
 
 TO Egbert v. Egbert, 78 Pa. St. 326. 
 
 71 Glenn v. Gleason, 61 la. 28. 
 
 72Herrick v. Swombley, 56 Md. 439. 
 
 ,73 See §§ 821 supra, 826 infra. 
 
 T4 Zucker v. Karpelas, 88 Mich. 424, 50 N. W. 373. 
 
 75 See cases cited § 817 supra. 
 
1044 THE LAW OF EVIDENCE, § 825 
 
 the examination. But, although it is the undoubted rule that lead- 
 ing questions may be asked on cross-examination, the rule is sub- 
 ject to the qualification that the court, in its discretion, may re- 
 strict the right, where the witness shows a bias in favor of the cross- 
 examiner. If the privilege were not thus subject to the control of 
 the court, serious injustice might result, as one secretly Isostile 
 might conceal his bias in order to be called as a witness, and would 
 only need an intimation from the cross-examining counsel to say 
 whatever might be most favorable to him.'" In those jurisdictions 
 where the cross-examination is not confined to facts elicited on the 
 examination-in-chief, it is allowable, in the discretion of the court, 
 to ask leading questions even as to the new matter.'''' This view 
 rests upon the supposed inconvenience of determining, in long and 
 complicated examinations, whether a question applies wholly to 
 new matters, or to subjects already referred to in the direct ex- 
 amination.'* But, as we have already seen, a stricter rule gener- 
 ally prevails as to the calling out new or defensive matter on cross- 
 examination. It is generally held that, as to such matter, the witness 
 becomes the ivitness of the cross-examiner, and is subject to the 
 usual rule which forbids a party to lead his own witness." 
 
 § 825 (825). How long right to cross-examine continues. — ^It 
 has sometimes been suggested that, when a person is once entitled 
 to cross-examine a witness, the right continues throughout the case, 
 so that, if he afterwards recalls the same witness, he may inter- 
 rogate him by leading questions and treat him as the witness of 
 the party who first called him.*" This view rests upon the theory 
 that every witness is supposed to be inclined most favorably toward 
 the person calling him. But on the other hand, it is maintained 
 that no such presumption should be entertained when a person is 
 called as a witness by both sides; ^'^ and it would seem more in ae- 
 
 78 Moody V. Rowell, 17 Pick. 490, 28 Am. Dec. 317; RusU v. French, 
 
 1 Ariz. 99, 25 Pac. 816. 
 
 "Moody V. Rowell. 17 Pick. 490, 28 Am. Deo. 317; BeaJ v. Nichols, 2 
 Gray, 262. See § 820 supra. 
 
 78 Moody V. Rowell, 17 Pick. 490, 28 Am. Dec. 317. 
 
 79 People V. Oyer & Term. Court, 83 N. Y. 436; Hurlburt v. Hall, 39 
 Ne*). 889; Ellmaker v. Buckley, 16 Serg. & R. (Pa.) 77; Floyd v. Bovard, 
 6 Watts & S. (Pa.) 75; People v. Moore, 15 "Wend. 419; Jackson v. Son, 
 
 2 Caines (N. Y.) 178; Philadelphia & T. Ry. Co. v. Stlmpson, 14 Peters, 
 448^ See § 820 supra. 
 
 80 Greenl. Bv. § 447. 
 siTayl. Ev. (10 Ed.) 5 1453. 
 
§ 826 ATTENDANCE AND EXAMINATION OP WITNESSES, 1045 
 
 cord with the prevailing American rule that a party should be 
 precluded from cross-examining a witness, whom he called in his 
 own behalf, except in those cases where the witness betrays some 
 bias or prejudice.'* The extent of the cross-examination as illus- 
 trated by most of the cases above cited rests very largely in the 
 discretion of the trial judge.'* 
 
 § 826 (826). More liberal rule as to relevancy on cross-exami- 
 nation. — It will be seen, as we proceed, that the general rule re- 
 quiring testimony to be confined to the point in issue is much more 
 liberally construed in the cross-examination of witnesses than in 
 their examination-in-chief. While the party who produces a wit- 
 ness vouches for his credibility, the cross-examiner sustains no such 
 relation to the witness. He is at liberty, and is often compelled to 
 attack the credibility of the witness, and, for that purpose, must 
 be allowed wide latitude in asking questions which would other- 
 wise be wholly irrelevant to the issue. For the purpose of testing 
 the credibility of a witness, it is permissible to investigate the sit- 
 uation of the witness with respect to the parties and to the subject 
 of litigation, his interest, his motives, inclinations and prejudices, 
 his means of obtaining a correct and certain knowledge of the 
 facts to which he bears testimony, the manner in which he has used 
 those means, his powers of discernment, memory and description.'^* 
 As incidental to this investigation, and within proper limits, the 
 character, habits and mental condition of the witness may be in- 
 vestigated.'* In order to test the accuracy or means of knowledge 
 of a witness, it is admissible to ask, on cross-examination, if he 
 was not, at the time referred to, under the influence of drink. '° So 
 
 82 See § 820 siipra. 
 
 88 See §§ 832, 833 infra. 
 
 83a Winston v. Cox, 38 Ala. 268; People v. Thomson, 92 Cal. 506; Pittman 
 V. State, 51 Fla. 94, 41 So. 385, 8 L. R. A. (N. S.) 509; Atlantic Coast Line 
 Ry. Co. V. Powell (Ga.). 56 S. E. 1006, 9 L. R. A. (N. S.) 769. 
 
 84 Winston v. Cox, 38 Ala. 268; Wendt v. Chicago, St. P., M. & O. Ry. 
 Co., 4 S. D. 476; Johnston v. Pamaers Fire Ins. Co., 106 Mich. 96, 64 N. 
 W. 5; Pease v. Burrowes, 86 Me. 153; Czezewzka v. Benton Bellefontaine 
 Ry. Co., 121 Mo. 201 For other cases, see §§ 830, 834 et seq. infra. 
 
 SB International Ry. Oo. v. Dyer, 76 Tex. 156; Piool v. Pool, 33 Ala. 145; 
 State v. Rhodes (S. C), 22 S. E3. 306. Where it was in issue whether 
 the plaintiff was drunk at a given time, it was held proper to ask, "are 
 you not In the habit of getting drunk?," McCracken v. Markesan, 76 Wis. 
 499. But the use of opium is not allowed to he proved, unless it is shown 
 that the witness was under its influence when examined, or when the event 
 occujrred, or that his mind had been impaired, Eldredge v. State, 27 Fla. 
 
1046 THE LAW OF EVIDENCE. § 827 
 
 he may be asked his reasons for doing certain things as to which 
 he has testified,^"' or whether he has not testified differently at a 
 former trial,^'' or made statements out of court contradictory to or 
 inconsistent with his present testimony .'* If he is a party, he may 
 be cross-examined as to discrepancies between his statements on 
 the stand and tlie allegations of his pleadings, although the latter 
 are sworn to and made by the advice of counsel.*" If he testifies 
 to any transaction, he may be cross-examined concerning the par- 
 ticulars of such transaction, as to what persons were present and 
 as to other facts concerning himself or others, and concerning other 
 transactions which might be whoUy immaterial, except so far as 
 they throw light upon his own powers of memory, habits of observa- 
 tion or reliability."" But the extent of such cross-examination rests, 
 in each case, in the discretion of the judge. 
 
 § 827 (827, 828). Witnesses cannot be contradicted as to wholly 
 irrelevant matter. — Although witnesses may often be questioned, 
 on cross-examination, as to matters collateral to the issue, for the 
 
 162, 9 So. 448. But see. People v. Webster, 139 N. Y. 73. But It Is not 
 proper to ask on cross-examination how many times the witness has been 
 drunk since the i)articular time in question, People v. Sutherland, 104 
 Mich. 468, 62 N. W. 566. 
 8« New Gloucester v. Bridgham, 28 Me. 60. 
 
 87 See § 846 infra. 
 
 88 Or how he acquired ownership of land as to which he has testified, 
 Wallace v. Wallace, 62 la. 651. 
 
 89 Hare v. Mahoney, 14 N. Y. S. 81. Where one Is called to prove the 
 correctness of Ms books, he may be asked whether he is not In the habit 
 of making mistakes, Mechanics' Bank v. Smith, 19 Johns. 115; and he may 
 be cross-examined as to the items of an account which he has offered in 
 evidence, Thayer v. Barney, 12 Minn. 502. 
 
 80 People V. Fitzgerald, 8 N. Y. S. 81; State v. O'Brien, 81 la. 93; State 
 V. Merriman, 34 S. C. 16; Hartford v. Champion, 58 Conn. 268; Black v. 
 Wabash Ry. Co., Ill 111. 351, 53 Am. Rep. 628; People v. Cllne, 83 Cal. 374: 
 Keyser v. Kansas Ry. Co., 56 la. 440. See §§ 821, 822 supra. To show 
 laclc of memory, Davis v. Cal. Powder Works, 84 Cal. 629, 24 Pac. 387; 
 Wlllard V. Sullivan, 69 N. H. 491, 45 Atl. 400; State v. Shelton, 16 Wash. 
 590, 48 Pac. 258; Spear v. Sweeney, 88 Wis. 545, 60 N. W. 1060; to show 
 omission of things claimed to have been habitually done, Cunningham v. 
 Railway Co., 88 Tex. 534, 31 S. W. 629; In an action for damages for being 
 ejected from train, to show trouble with trainmen, Washburn v. Railway 
 Co., 84 Wis. 251; where opinion evidence as to value of property has been 
 given to show price for which it was purchased, as well as value of other 
 articles Included in purchase, Wells v. Kelsey, 37 N. Y. 143, and generally 
 where question of damages is In Issue and opinion evidence has been of 
 fared. Central Branch Ry. Co. v. Andrews, 30 Kan. 590; see §§ 168 et seq. 
 
§ 827 ATTENDANCE AND EXAMINATION OF WITNESSES. 1047 
 
 purpose of testing their credibility, it is a well settled rule that 
 witnesses cannot be interrogated as to matters wholly irrelevant, 
 merely for the purpose of contradicting them by other evidence. 
 Hence, if questions of this character are answered, the answer" 
 cannot he contradicted by the cross-examiner. If a party inquires 
 of a witness as to immaterial matters, he must take the answer and 
 cannot raise an issue thereon by introducing evidence to contra- 
 dict it.°^ Any other rule would lead to the trial of innumerable 
 
 svrpra. So he may be asked whether he is testifying by guess or from 
 what he toiows, State v. Rutten, 13 Wash. 203, 43 Pac. 30. 
 
 »iHolbrook V. Dow, 12 Gray, 357; Lawrence v. Barker, 5 Wend, 301; 
 Clinton V. State, 33 Ohio St. 27; Baltimore City Pass. Ry. Co. v. Tanner, 
 80 Md. 315, 45 Atl. 188; State v. Taylor, 134 Mo. 109, 35 S. W. 92; George 
 Burke Oo. v. Powler (Neb.), 93 N. W. 923; Bullard v. Smith, 28 Mont 
 387, 72 Pac. 761; Hester v. Com., 85 Pa. St. 139; Robertson v. Com. (Va.), 
 22 S. E. 359; Harris v. Wilson, 7 Wend. 57; Faulkner v. Rondoni, 104 
 Cal. 140; Eames v. Whittaker, 123 Mass. 342; State v. Payne, 6 Wash. 
 563; Bldrldge v. State (Fla.), 9 So. 448; Barkeley v. Copeland, 86 Cal. 
 483; Willard v. Sullivan, 69 N. H. 491, 45 Atl. 400; Stewart v. State, 42 
 Fla. 591, 28 So. 815; Hinkle v. State, 157 Ind. 237, 61 N. B. 196; Williams 
 V. Culver, 39 Or. 337, 64 Pac. 763; State v. Ray, 54 Kan. 160; Crittenden v. 
 Com., 82 Ky. 164; State v. Falconer, ,70 la. 416; State v. Morris, 109 N. C. 
 820; Moore v. People, 108 111. 484; State v. Roberts, 81 N. C. 605; Futch v. 
 State, 90 Ga. 472; Lake Brie & W. Ry. Co. v. Morain, 140 111. 117; Com. v. 
 Jones, 155 Mass. 170; People v. Hillhouse, 80 Mich. 580; Carter v. State, 36 
 Neb. 481; Union Pac. Ry. Co. v. Reese, 56 Fed. 288. Where the issue was 
 whether the defendant had made a certain usurious contract with the 
 witness, it was held that the witness could not be cross-examined p.s to 
 other contracts made by him, with a view to contradict him, Spencely v. 
 DeWillott, 7 East 110, 2 Lew. Cr. C. 55. Where the accused, on trial for 
 indecent assault, was cross-examined as to indecent conduct with other 
 persons, which he denied, it was held error to allow evidence contradict- 
 ing his testimony on that subject, Tolman v. Johnstone, 2 PostI & F. 66. 
 Such rebutting testimony was held improper in an action for murder, 
 when defendant's counsel asked a witness if he and the deceased were not 
 ■ ■memhers of the same order, Surrell v. State, 29 Tex. App. 321. Where a 
 witness admitted that he had been a convict in state's prison, but alleged 
 that he had since led a reputable life, it was held no error to reject evi- 
 dence to show that he had been connected with a gamiling house since his 
 pretended reformation, Conley v. Meeker, 85 N. T. 618. In an action for 
 hastardy, in which the prosecutrix denied on cross-examination that she 
 had ever had sexual intercourse with another. It was held that since the 
 question was irrelevant, her answer was conclusive, State v. Patterson, 74 
 N. C. 157. So courts have frequently declared that witnesses cannot be 
 discredited or impeached by proof of speoiflc acts of delinquency or Im- 
 morality, Loweiy v. State, S8 Ala. 45; People v. Mills, 94 Mich. 630; People 
 
1048 THE LAW OF EVIDENCE. § 827 
 
 issues, the distraction of the attention of the jury from the main 
 question on trial, and would subject witnesses to the injustice of 
 being compelled to be prepared on all occasions to support this 
 testimony by that of other witnesses upon subjects having no con- 
 
 V. Sherman (Cal.), 32 Pac. 879; Griffith v. State, 140 Ind. 163; Com. v. 
 Smith, 162 Mass. &08; State v. Gezell, 124 Mo. 531; Clements v. McGinn 
 (Oal.) 33 Pac. 920; People v. O'Brien, 96 Cal. 171, (but see § 840 infra). In 
 an action against a street car company, for personal Injury where the 
 conductor had not testified as to the conduct of the driver, and where he 
 denied, in answer to questions on cross-examination, that he had made 
 statements to the effect that, if the driver had looked out, the accident 
 would not have happened, it was held error to receive testimony contra- 
 dicting him and showing that he had made such statements, Furst v. Sec- 
 ond Ave. Ry. Co., 72 N. Y. 542. See also, Olson v. Swenson. 53 Minn. 516. 
 Where the witness has testified to the good reputation of a certain person 
 and denied, upon cross examination, that he had ever heard of certain dif- 
 ficulties in which such person had been involved, the testimony of the 
 witness on that subject cannot be contradicted, Hussey v. State, 87 Ala. 
 121. So where an impeaching witness, on cross-examination, states the 
 names of the i>ersons from whom he has heard reports as to the reputation 
 of the person to be impeached, such statement, being on a collateral issue, 
 is conclusive, Robbins v. Spencer, 121 Ind. 594. The same rule applies 
 where a party is asked as to an alleged champertous agreement with his 
 attorney, there being no such defense alleged, Lueck v. Heisler, 87 Wis. 
 644, 58 N. W. 1101, where It is held that the exclusion of such question 
 is in the discretion of the judge. Where the issue was whether a servant 
 suing for damages for injuries was informed of a mule's malicious dis- 
 position, testimony given on cross-examination as to what others had been 
 told . in that regard cannot be contradicted, Bessemer Land & Imp. 
 Co. V. Du Bose, 125 Ala. 442, 28 So. 380. Where the issue was as 
 to a defective sidewalk, the statement of a witness that there was 
 no lumber yard in the town at the time the sidewalk was built could 
 not be contradicted. City of Dubuque v. Burhyte, 173 111. 553, 50 
 N. E. 1077. In an action for rape the testimony of the prosecut- 
 ing witness that she had not made an engagement to go buggy riding 
 with another than defendant on the evening in question being im- 
 material could not be contradicted, Barton v. State, 154 Ind. 670, 57 N. E5. 
 515. So in a murder case, the testimony of a state witness that he had not 
 taken a drink of whiskey for tvro months before the killing being Imma- 
 terial could not be contradicted. State v. Wiggins, 50 La. Ann. 330, 23 
 So. 334. The testimony of one on trial for miaiUng lewd letters cannot be 
 contradicted if compelled to testify as to improper acts with the addressee 
 occurring six months after the allegea mailing, Saftfer v. U. S., 87 Fed. 329. 
 Where the defendant in an action for attempting to rape was cross-exam- 
 ined as to meetings with other women at other times at the same place in 
 question his testimony in this respect could not be contradicted, State v. 
 Sprague, 64 N. J. Law 419, 45 Atl. 788. Where the defendant was ttu trial 
 
§ 828 ATTXNDAKCS AND EXAMINATION OF WTFmSSES. 1049 
 
 nection with the issue. The test for determining whether the mat- 
 ter is relevant has often been laid down : Would the cross-examining 
 party be entitled to prove it as part of his case tending to establish 
 his complaint or answer."^ In some eases, it happens that the ques- 
 tion is material and relevant, but the answer is immaterial, as it 
 tends to prove no fact having any bearing on the issue. For ex- 
 ample, the negative statement of a witness, though made to a 
 proper question, may have no probative force. In such case, it 
 cannot he contradicted by showing his statement to the contrary 
 made out of court, either to impeach his credibility or to prove the 
 fact denied."^ If the court allows counsel, on cross-examination, 
 to draw out irrelevant statements in violation of the rule, and then 
 to contradict them by other witnesses, it is reversible error.** 
 
 § 828 (829, 830). Partiality of witness relevant— On that sub- 
 ject cross-examiner not concluded by answer — Bia,s — ^Hostility- 
 Interest — State of feeling, etc. — Although there has been more 
 or less conflict of opinion upon the subject, the rule is now well 
 settled that questions, on cross-examination, wMch tend to im- 
 peach the impartiality of the witness are not irrelevant to the issue 
 in the sense that the cross-examiner is concluded by the answer.'" 
 
 for rape of a daughter and his wife testified as to statements that another 
 daughter had told her of an attempt by defendant to rape her, her testi- 
 mony In this regard could not be contradicted. State v. Carpenter, 23 Wash. 
 254, 73 Pac. 357. Or where the witness is asked how long he has known 
 a certain Individual, that not being a material question, People v. TUey, 84 
 C5al. 651; or where the witness Is asked whether he had not been drinking 
 with the adverse witnesses at particular places, Simons v. Busby, 119 Ind. 
 13. On the same principle, aflSdavlts for continuance, containing nothing 
 material to the issue, are not admissible for this purpose. Cotton v. State, 
 87 Ala. 75; Loftus v. Moxey, 73 Tex. 242. Where a witness was asked on 
 oroBB-examination, if he had not on a former occasion committed larceny, 
 and denied it, his denial had to be accepted without contradiction, PuUen 
 V. Pullen, 43 N. J. Eq. 136. 
 
 92 Hlldebum v. Curran, 65 Pa. 63 ; Hamburger v. Rinkel, 164 Mo. 398, 64 
 S. W. 104; Staser v. Hogan, 120 Ind. 220, 21 N. B. 911, 22 N. E. 990; Combs 
 V. Winchester, 39 N. H. 16, 75 Am. Dec. 203. 
 
 ssWoodroffe v. Jones, 83 Me. 21. 
 
 04 People V. Hillhouse, 80 Mich. 580; DriscoU v. People, 47 Mich. 413; 
 Morris v. Atlantic Ry. Co., 116 N. Y. 552; State v. Haynes, 7 N. D. 70, 72 
 N. W. 923. 
 
 MAtwood V. Welton, 7 Conn. 66; Powell v. Martin, 10 la. 568; Newton 
 V. Harris, 6 N. Y. 345; Day v. Stickney, 14 Allen, 255; Schultz v. Third 
 Ave. Ry. Co., 89 N. Y. 242; Phenix v. Castner, 108 111. 207; Geary v. People, 
 23 Mich. 220; Collins v. Stephenson, 8 Gray, 438; Purdee v .State (Ga.), 45 
 
1050 THE LAW OF EVIDENCB. § 828 
 
 "It is always competent to show that a witness is hostile to the 
 party against whom he is called; that he has threatened revenge, 
 or that a quarrel exists between them. A jury would scrutinize 
 more closely and doubtingly the evidence of a hostile, than that 
 
 S. E. 606; "Whitney v. State, 154 Ind. 573, 57 N. E. 398; Powers v. Com. 
 (Ky.), 61 S. W. 735; Cathey v. Shoemaker, 119 N. C. 424, 26 S. B. 44; 
 Hayes v. Smith, 62 Oh. St. 161, 56 N. B. 879; Folsom v. Brawn, 25 N. H. 
 114; Schuster v. State, 80 Wis. 107, 49 N. W. 30; Roshorough v. State, 21 
 Tex. App. 672; Hutchinson v. Wheeler, 35 Vt. 340; Hollinsworth v. State, 
 53 Ark. 387; People v. Brooks, 131 N Y. 321; State v. McFarlaln, 41 La. An. 
 686; Lewis v. Steiger, 68 Cal. 200; Starks v. People,' 5 Den. 106; Illinois 
 Cent. Ry. Oo. v. Haymes, 64 Miss. 604; Crumpton v. State, 52 Ark. 273; 
 Steph. Ev. art. 130. See § 829 infra. It has been held admissible, in an 
 action on a promissory note, the execution of which was disputed, to ask 
 the subscribing witness whether she was the pJmntiff's kept mistress, 
 Thomas v. David, 7 Car. & P. 350. On Cross-examination, a witness may 
 be asked whether he has not tampered unt% the witnesses or been active 
 in procuring testimony in the case, Hamilton v. People, 29 Mich. 173; 
 Queen's Case, 2 Brod. & B. 311; Bates v. Halladay, 31 Mo. App. 162. But the 
 mere offer of a bribe, that was not accepted by the witness, cannot be 
 proved to discredit him, Cheatham v. State, 67 Miss. 335. So the witness 
 may be asked whether he has not offered to leave the jurisdiction of the 
 court, and not appear as a witness againist one of the parties, in case he 
 should receive a sum of money as a consideration, State v. Downs, 91 Mo. 
 19; whether he has not said that he hnew nothing about the case, Thomp- 
 son V. Ish, 99 Mo. 160; whether he is not anxious that the defendant should 
 be convicted. State v. Adams, 14 La. An. 620; whether he has not made a 
 wager that one of the parties would succeed in the suit, Kellogg v. Nelson, 
 5 Wis. 125; People v. Parker, 137 N.Y. 535; whether he has employed coun- 
 sel for the adverse party. People v. Blackwell, 27 Oal. 65; or attempted to 
 suborn the witnesses of the adverse party or otherwise attempted to influ- 
 ence them either to give or to withold testimony, Schultz v. Third Ave. Ry. 
 Co., 89 N. Y. 242; Jenkins v. State (Tex.), 29 S. W. 1078; State v. Downs, 91 
 Mo.' 19; State v. Hack, 118 Mo. 92, 23 S. W. 1089; Queen's Case, 2 Brod. & B. 
 312; Oberf elder v.Kavanaugh, 21 Neb. 483; Fitzpatrick v. Riley, 163 Pa. St. 
 65; Schuster v. State, 80 Wis. 107, (but see, McCoy v. State, 27 Tex. App. 
 415) ; or to prevent the adverse party from obtaining a surety, Denton v. 
 Smith, 61 Mich. 431. In order to show the state of mind of a witness, It 
 was held permissible to ask her if her husband, who had been proven to be 
 a desperate man, had not threatened her with bodily harm if she should 
 not swear as he directed, Graiham v. McReynolds, 88 Tenn. 240. So It may 
 be shown that the defendant owes the uAtness money, which he would be 
 less likely to collect if the plaintiff should obtain a judgment, IVIeltzer v. 
 Doll, 91 N Y. 365; or expressed hatred of Africans, the defendant being a 
 negro, Magness v. State, 67 Ark. 594, 50 S. W. 554; or was partner of de 
 ceased, Daniel v. State, 103 Ga. 202, 29 S. E. 767. In some exceptional cases 
 questions have been allowed as to other false or corrupt charges or claims 
 
§ 828 ATTENDANCE AND EXAMINATION OP WITNESSES. 1051 
 
 of an indifferent or friendly witness. Hence, it is always competent 
 to show the relations which exist between the witness and the party 
 against, as well as the one for whom he is called." " If the wit- 
 ness denies his hostility or lias, this may be proved by other wit- 
 nesses."^ The cross-examination would be of little value, if the 
 witness could not be freely interrogated as to his motives, Mas and 
 interest, or as to his conduct as connected with the parties, or the 
 cause of action; and there would be little safety in judicial pro- 
 ceedings, if an unscrupulous witness could conclude the adverse 
 party by his statements denying his prejudice or interest in the 
 controversy."" In like manner, it is competent to contradict the 
 witness by calling other witnesses to show that, at the time of the 
 event testified to, he was intoxicated "• or otherwise incapacitated,* 
 or not in a condition to know and remember the facts,' or had not 
 
 trought by the vAtnesses, People v. Evans, 72 Mich. 367, 40 N. W. 473; State 
 V. Lewis (N. C), 45 S. E. 521; Fairchild P. Co. v. Ins. Co. (Pa.), 44 Atl. 317; 
 Hart V. Atlas K. Co., 77 Fed. 399; excluded, Com. v. Regan, 105 Mass. 593; 
 Cecil V. Henderson, 119 N. C. 422, 25 S. E. 1018; Miller v. Curtis, 158 Mass. 
 127, 32 N. E. 1039. 
 
 96 Newton v. Harris, 6 N. T. 345; Holdrldge v. Lee, 3 S. D. 134. But it 
 must be shown that the witness actually has such bias or hostile feeling, not 
 merely that he has cause for such a feeling, Wlschstadt v. Wischstadt, 47 
 Minn. 358. 
 
 »T See cases cited in note 13 below. 
 
 88 sute V. McKlnlstry, 100 la. 82, 69 N. W. 267; State v. Mulhall, 199 Mo. 
 202, 97 S. W. 583, 7 L. R. A. (N. S.) 630; Richardson v. State, 90 Md. 109, 
 44 AU. 999; Soott v. U. S., 172 XJ. S. 343. The witness may be asked 
 whether he has not had a controversy with the party against whom he Is 
 called, and whether he has not made threats of revenge against him, At- 
 wood V. Welton, 7 Conn., 66, (but see, Holston v. Boyle, 46 Minn. 432, where 
 impeaching testimony to the effect .that the witness belonged to a rival 
 village faction was held to be too vague and remote) ; whether he had not 
 said that he would cause another witness to be arrested, if he should swear 
 to a certain state of facts, Schuster v. State, 80 Wis. 107, 49 N. W. 30; 
 whether he has not said that the party againsl^ whom he is called shall be 
 beaten, if swearing can do It, Newton v. Harris, 6 N. Y. 345; or that he, the 
 witness, would swear that black was white, Texas Ry. Co. v. Brown, 78 
 Tex. 397. 
 
 89 Mace V. Reed, 89 Wis. 440, 62 N. W. 186; Willis v. State, 43 Neb. 102, 61 
 N. W. 264; State v. Rollins, 113 N, C. 722, 18 S. E. 394; Kuenster v. Wood- 
 house, 101 Wis. 216, 77 N. W. 165; use of morphine, State v. Robinson, 12 
 Wash. 491, 41 Pac. 884; of opium. People v. Webster, 139 N. Y. 73, 34 N. E. 
 730. 
 
 1 Cooper V. H<5pkins, 70 N. H. 271, 48 Atl. 100. 
 
 2 State V. Rollins, 113 N. C. 722. 
 
1052 THE LAW OF EVIDENCE. § 828 
 
 the opportunity of knowledge or that the statement is improhaile 
 or impossible.^ Many illustrations besides those given in the notes 
 might be given of the rule that, for the purpose of affecting the 
 credibility of a witness, he may be cross-examined as to his interest 
 in the event of the suit,* or his state of feeling toward the respective 
 parties ; ° and, as incidental thereto, as to his relations to the par- 
 ties, including family relationship, business connections with the 
 parties, employment by them, litigation with them and the like." 
 In like manner, his expressions to others showing hostility or prej- 
 udice to the adverse party,^ the amount of fees or compensation he 
 has been paid or expects to be paid,* his conduct in connection with 
 
 3 Barry v. People, 29 Colo. 395, 68 Pac. 274; East Tenn. Ry. Co. v. Daniel, 
 91 Ga. 768. 18 S. B. 22; Com. v. Hunt, 4 Gray, 422. 
 
 *Suit V. Bonnell, 33 Wis. 180; Blenkiron v. State, 40 Neb. 11; Drum v. 
 Harrisom, 83 Ala. 384; State v. Calkins, 73 la. 128; Meltzer v. Dolt, 91 N. Y. 
 365; Miller v. Terr., 149 Fed. 330; Hanson v. Red Rock, 7 S. D. 38, 63 N. W. 
 156. Insurance of the witness hy party against loss. Day V. Donohue, 62 N. J. 
 L. 380, 41 Atl. 934 ; Shoemaker v. Bryant L. & S. M. Co., 27 Wash. 637, 68 Pac 
 380. Interest as detective. People v. Rice, 103 Mich. 350, 61 N. W. 540; 
 Sandage v. State, 61 Neb. 240, 85 N. W. 35, 87 Am. St. Rep. 457; State v. 
 Black, 121 N. C. 578, 28 S. B. 518, spy; liaUlity on tail bond, Bnaden v. 
 McCleary, 183 Pa. 192, 38 Atl. 623. 
 
 5 Watson V. Twombly, 60 N. H. 491; Collins v. Stephenson, 8 Gray, 438; 
 Day V. Stickney, 14 Allen, 255; State v. Olds, 18 Or. 440; People v. Worth- 
 ington, 105 Oal. 166; State v. Flint, 60 Vt. 304; People v. Webster, 139 N. Y. 
 73; Ledford v. Ledford, 95 Ind. 283; State v. Willingham, 33 La. An. 537; 
 Garnsey v. Rhodes, 138 N. Y. 461. 
 
 8 Starks v. People, 5 Den. 106; Cameron v. Montgomery, 13 Serg. & R. 
 (Pa.) 128; Turnpike Co. v. Loomis, 32 N. Y. 127, 88 Am. Dec. 311; Madden 
 V. Koester, 52 la. 693; Com. v. Gallagher, 126 Mass. 54; Kenyon v. Kenyon, 
 72 Wis. 234; Totten v. Burhans, 103 Mich. 6, 61 N. W. 58; Pettit v. State, 
 135 Ind. 393. As to family relationship, Lodge v. State, 122 Ala. 97, 26 So. 
 210. But the rule cannot be extended to show witness Is husband of de- 
 ceased's washerwoman. Hall v. State (Ala.), 34 So. 680. Employment iy 
 the party. Preferred Ace. Iijs. Co. v. Gray, 123 Ala. 482, 26 So. 517; Guck- 
 avan v. Lehigh Tr. Co., 203 Pa. St. 521, 53 AU. 351; Klatt v. Lumber Co., 
 97 Wis. 641, 73 N. W. 563. Other business relations, Louisville & N. R. 
 Co. v. Tegnor, 125 Ala. 593, 28 So. 510; Alabama G. S. Ry. Go. v. Johnston, 
 128 Ala. 283, 29 So. 771; litigation, Hitchcock v. Moore, 70 Mich. 115', 37 
 N. W. 914, 14 Am. St. Rep. 474; Olive v. State, 11 Neb. 1, 7 N. W. 444; 
 illicit relations, Franklin v. Com., 105 Ky. 237, 48 S. W. 986; State v. John- 
 son, 48 La. An. 437, 19 So. 476; Martin v. State, 125 Ala. 64, 28 So. 92. 
 
 'Newton v. Harris, 6 N. Y. 345; Watson v. Twombly, 60 N. H. 491; 
 People V. Wasson, 65 Cal. 538. See other illustrations cited in notes above. 
 
 sAlford v. Vincent, 53 Mich. 555, 19 N. W. 182; Southern Ry. Co. v. 
 
§ 828 ATTEKDANCB AND EXAMINATION OP WITNESSES. 1053 
 
 the cause of action, its management or the parties thereto,' or as 
 to collateral facts, which tend to show that he is prejudiced or iw- 
 terested may be shown.^" It has frequently been held that it is 
 error not to permit cross-examination as to the state of feeling or 
 bias of the witness.^^ But the extent of such cross-examination is 
 within the sound discretion of the court.^'' Although it is the gen- 
 eral practice to first interrogate the witness on cross-examination 
 as to his feelings of bias or hostility, yet it is proper to prove the 
 hostility of the luitness iy other competent witnesses who can swear 
 to the faet.^' The cases already cited illustrate the fact that con- 
 siderable latitude is allowed in contradicting the witness to show Ms 
 bias, hostility, corruption, interest, and misconduct with respect to 
 the case or other facts tending to show that his testimony is un- 
 worthy of credit.^* Of course when the cross-examination tends to 
 show the bias of the witness, on re-examination such explanations 
 may be made as tend to rebut inferences of hostility, and to show 
 that the facts elicited on cross-examination were consistent with 
 fairness and good faith even though such testimony would other- 
 
 Crowder, 30 Ala. 256, 30 So. 592; Kerfoot v. Chicago, 195 111. 229, 63 N. E. 
 101; Wrisley CO. v. Burke, 203 111. 250, 67 N. EJ. 818; Jackson v. Com. 
 (Ky.), 37 S. W. 847; Com. v. Farrell, 187 Pa. 408, 41 Atl. 382; State v. 
 Mulch, 17 S. D. 321, 96 N. W. 101; Sylvester v. State (Fla.), 35 So. 
 142; pajrment of witness' expenses; State v. Hayward, 62 Minn. 474, 
 65 N. W. 63, boarding witness. But in King v. New York Central Ry. 
 Co., 72 N. Y. 607, the court excluded a question asked on attorney, a 
 witness, as to what extent his . compensation depended on the recovery. 
 » People v. Furtado, 57 Cal. 345; Natim v. People, 6 Park. Cr. (N. Y.) 
 258. 
 
 10 Hitchcock v. Moore, 70 Mich. 112, 37 N. "W. 914, 14 Am. St. Rep. 474; 
 Drum V. Harrison, 83 Ala. 384. 
 
 11 Gamsey v. Rhodes, 138 N. Y. 461, 34 N. E. 199; People v. Brooks, 131 
 N. Y. 321, 30 N. B. 189; State v. Turlington, 102 Mo. 642; People v. Thomp- 
 son, 92 Cal. 506. See the last section, also cases cited in note 5 above. 
 
 i2 0onsaul v. Sheldon, 35 Neb. 247, 52 N. W. 1104; Garnsey v. Rhodes, 138 
 N. Y. 461, 34 N. B. 199. See §§ 829, 842 infra. 
 
 IS People V. Brooks, 131 N. Y. 321, 30 N. E. 189; Martin v. Barnes, 7 Wis. 
 239; Tucker v. Welsh, 17 Mass. 160. See also, England v. State, 89 Ala. 
 76; Orumpton v. State, 52 Ark. 273; Texas Ry. Co. v. Brown, 78 Tex. 397; 
 Bo-ink V. Stratton, 176 N. Y. 150, 68 N. K. 148. See other illustrations cited 
 In notes above. 
 
 i*Consaul v. Sheldon, 35 Neb. 247, 52 N. W. 1104; People v. Brooks, 131 
 N. Y. 321, 30 N. B. 1S9; Gamsey v. Rhodes, 138 N. Y. 461, 34 N. B. 199; 
 Davis V, State, 51 Neb. 301, 70 N. W. 984. 
 
1054 THE LAW OF EVIDBNCB. § 829 
 
 wise be irrelevant.^' It is a familiar rule that the demeanor of the 
 witness on the stand may be considered by the court and jury.'^" 
 
 § 829 (831). Contraxlicting the witness to prove bias. — ^Al- 
 though evidence to show the state of feeling of a witness toward 
 either party is not collateral, and may be received to contradict 
 his statements, yet it is held that such evidence should be direct and 
 positive, and not remote and uncertain. ^^ Although the extent to 
 which the cross-examination may extend depends very much upon 
 the discretion of the trial judge,^* yet, if testimony is rejected which 
 would clearly show the bias of the witness, it is error and ground 
 for a new triaU^ The rule has several times been declared in judi- 
 cial decisions that, where the cross-examiner ascertains from the ad- 
 mission of the witness that he is prejudiced against or entertains a 
 feeling of hostility toward the adverse party, the inquiry cannot be 
 pressed further to show the cause or ground of such hostility,^" or 
 the details of the facts showing his bias."^ On the other hand, the 
 view is maintained in other courts that such testimony should be 
 
 16 Brink v. Stratton, 176 N. Y. 150, 68 N. B. 148; People v. Jolinsoii, 
 106 Cal. 289, Sa Pac. 622; Dennehy v. O'Connell, 66 Conn. 175, 33 Atl. 920; 
 McAlplne v. State, 117 Ala. 93, 23 So. 130; Hyde v. Swanton, 72 Vt. 242, 47 
 Atl. 790. Contra, State v. Stevens, 16 S. D. 309, 92 N. W. 420. See § 171 
 supra. 
 
 18 Blair v. State, 69 Ark. 558, 64 S. "W. 948; Georgia H. I. Co. v. Camp- 
 bell, 102 Ga. 106, 29 S. B. 148; Siebert v. People, 143 111. 571, 32 N. E. 431; 
 Kirchner v. Collins, 152 Mo. 394, 53 S. "W. 1081. 
 
 IT Gale v. N«w York C. Ry. Co., 76 N. Y. 594; Schultz v. Third Ave. Ry. 
 Co., 89 N. Y. 242. 
 
 18 Storm V. United States, 94 U. S. 76; Wallace v. Taunton St. Ry. Co., 
 1^9 Mass. 91; Com. v. Lyden, 113 Mass. 452; Canaday v. Krum, 83 N. Y. 
 67; People v. Oyer & Term. Court, 83 N. Y. 436; King v. New York Cent. 
 Ry. Co., 72 N. Y. 607, where the court excluded a question asked an at- 
 torney, a witness, as to what extent his compensation depended on the 
 recovery; Hinchcliffe v. Koontz, 121 Ind. 422, 16 Am. St. Rep. 403; People 
 V. Dillwood (Cal.), 39 Pac. 438; Tobias v. Triest, 103 Ala. 664. 
 
 loSchultz V. Third Ave. Ry. Co., 89 N. Y. 242; Garnsey v. Rhodes, 138 
 N. Y. 461, 34 N. E. 199: People v. Lee, Ah Chuck, 66 Cal. 662; State v. 
 McFarlain, 41 La. An. 686. 
 
 20MTinden v. Bally, 70 Ala 63; Chilton v. State, 45 Md. 564; State v. 
 Glynn, 51 Vt. 577. 
 
 2iPatman v. State, 61 Ga. 379; State v. Gregory, 33 La. An. 737; People 
 v. Goldenson, 76 Cal. 328; Polk v. State, 62 Ala. 237; Butler v. State, 34 
 Ark. 480; Oonyers v. Field, 61 Ga. 258; Langborne v. Com., 76 Va. 1012; 
 State V. Glynn, 51 Vt. 577; Bertoli v. Smith, 69 Vt. 425, 38 Atl. 76; Boldon 
 v. Thompson, 60 Kan. 856, 56 Pac. 131. See note 82 Am. St. Rep. 25 et seq. 
 
§ 831 ATTENDANCE AND BXA.MINATION OF WITNESSES. 1055 
 
 received. It is urged, with much reason, that the causes and par- 
 ticulars of the hostility may be important as bearing on the nature 
 of the hostile feeling and its degree and intensity.^^ Although, as 
 we have seen, parties have the legal right to show the bias of wit- 
 nesses upon cross examination, it is but reasonable that the method 
 of su«h examination in determining the reasons or the causes of 
 such bias, should rest largely in the discretion of the trial judge.^^ 
 
 § 830 (839). Questions tending to degrade the witness as affect- 
 ing credibility. — In another section, there is a discussion of the 
 rule that a witness cannot be compelled to criminate himself by 
 his answers on cross-examination.^* There is another question hav- 
 ing some connection with the same subject which arises much more 
 frequently and which is attended with more difficulty, namely, 
 whether on cross-examination, a witness can be compelled to answer 
 questions where the answers will tend to degrade or disgrace, but 
 not to criminate him. This is a question which has given rise to 
 serious conflict. On the one side, it is urged that, as parties are 
 frequently surprised by the witnesses who confront them, there is 
 no other adequate means of ascertaining what credit is due their 
 testimony, and that, if a witness may not be questioned as to his 
 character, the property, liberty or life of a party must often be en- 
 dangered, and especially in those cases where spies, informers and 
 accomplices are witnesses. On the other side, it is maintained that 
 the obligation to give evidence arises from the oath which every 
 witness takes ; that by his oath he binds himself only to speak touch- 
 ing the matters in issue, and that such particular facts, as whether 
 the witness has been in jail for felony, or suffered some infamous 
 punishment, or the like cannot form any part of the issue, since 
 the party against whom the witness is called would not be allowed 
 to prove such particular facts by other witnesses."" 
 
 § 831 (841). Same subject — Conflict — English rule. — It would 
 be an utterly hopeless task to attempt to reconcile the authorities 
 on this subject. Messrs Cowen and Hill in their invaluable notes 
 to Phillips on Evidence say: "There seems to be, after a century 
 
 22 State V. Oolllns, 33 Kan. 77; State v. Dee, 14 Minn. 35; Batdorf v. Bank, 
 61 Pa. St. 179; Davis v. Roby, 64 Me. 427; McFarlin v. State, 41 Tex. 23; 
 Titus V. Ash, 24 N. H. 319 ; Blake v. Danwn, 103 Mass. 199. 
 
 23 Luck V. Rlpon, 52 Wis. 196, 8 N. "W. 815; Bertoll v. Smith, 69 Vt 
 425, 38 Atl. 76. See note 88 Am. Dec. 321. See last section. 
 
 24 See §§ 884 et seq., infra. 
 
 20 See the oases In the following sections. 
 
1056 THE LAW OF EVIDENCE. § 832 
 
 for reflection, about as bright a prospect of this question being 
 settled as when the discussion began."*' But, although the later 
 decisions on this subject, Hke the earlier ones, cannot be reconciled, 
 there is a decided tendency toward greater liberality in allowing 
 questions of this character, and toward leaving the matter la«rgely 
 within the discretion of the trial judge. Mr. Stephen thus states 
 the present English ride: "When a witness is cross-examined, he 
 may, in addition to the questions hereinbefore referred to, be asked 
 any questions which tend (1) to test his accuracy, veracity or credi- 
 bility, or (2) to shake his credit by injuring his character. Wit- 
 nesses have been compelled to answer such questions, though the 
 matter suggested was irrelevant to the matter in issue, and though 
 the answer was disgraceful to the witness ; but it is submitted that 
 the court has a right to exercise a discretion in such cases, and to 
 refuse to compel such questions to be answered when the truth of 
 the matter suggested would not, in the opinion of the court, affect 
 the credibility of the witness as to the matter to which he is re- 
 quired to testify. ' ' " The rule thus declared is well illustrated by 
 the celebrated Tichborne trial, in which the issue was whether the 
 claimant had committed perjury by swearing that he was Roger 
 Tichborne. A witness testified that he had made tattoo marks on 
 the arm of Roger Tichborne which were not found on the arm of 
 the claimant. The witness was asked, and was compelled to an- 
 swer the question whether many years after the tattooing and 
 many years before the occasion on which he was examined, he com- 
 mitted adultery with the wife of one of his friends.** 
 
 § 832 (833, 842). Same subject — View that the evidence should 
 be received. — There is a class of decisions in this country which 
 adopt the view that great liberality should be allowed in the cross- 
 examination of witnesses even on immaterial matters, provided they 
 tend to affect the credit of the witness, and in this class of decisions 
 it is held that questions going to the credit of a witness, the answers 
 to which will reasonably lead the tribunal to say "when the witness 
 has admitted these facts we distrust his testimony," may be asked 
 of him. In support of this view it is contended that the juiy should 
 understand the character of the person on whose testimony they are 
 
 2»Cowen & Hill's Notes to Phlll. Ev. (3d Ed.), note 383, p 746. 
 
 27 Steph. Ev. art. 129. 
 
 28 R. V. Orton vol. 2 p. 719, cited In Steph. Ev. 129. See also, Hoi- 
 Ungsworth v. State, 53 Ark. 387; People v. Harrison, 93 Mich. 594, 63 N. 
 W. 725. See the next section. 
 
§ 832 ATTENDANCE AND EXAMINATION OF WITNESSES. 1057 
 
 acting, and that the value of cross-examination, the most important 
 test of truth, should not be sacrificed to the feelings of the witness. 
 It is further argued that no great injustice is done to any in- 
 dividual upon whose oath the property or personal security of 
 others is to depend, in showing to the jury his real character. Al- 
 though there is a tendency toward much greater latitude in some 
 states than in others in respect to the range of crosts-examination, 
 it cannot be said that there is any rule in any of the states that 
 there must be unlimited cross-examination ; and it is often difficult 
 to classify the jurisdictions which uphold the liberal rule, since in 
 all of them there is more or less recognition of judicial discretion 
 upon this subject. The tendency of the decisions giving full lat- 
 itude to cross-examination will be best shown by illustrations which 
 will be found in the notes. In many cases coming within this class 
 the courts have permitted questions as to facts tending to show that 
 the witness had committed specific offences or been guilty of mis- 
 conduct not connected with the issu?,.^^ It should be observed that 
 
 r 
 29 Habits of drinlcing or drunkenness, Louisville & N. R. C5o. v. Bizzell, 
 131 Ala. 429, 30 So. 777; Kingston v. Railway Oo., 112 Mich. 40, 70 N. W. 
 315, 74 N. W. 230; theft, Wells v. State, 131 Ala. 48, 31 So. 572; Shears 
 V. State, 147 Ind. 51, 46 N. B. 331; People v. Nlles, 44 Mich. 608, 7 N. 
 W. 192; People v. Turney, 124 Mich. 542, 83 N. "W. 273; State v. Mc- 
 Cartey, 17 Minn. 76, 84, 86; ilUoit relations, prostitution and the like. 
 State V. Abbott, 65 Kan. 139, 69 Pac. 160; State v. Boyd (Mo.), 76 S. W. 
 979; United States v. Wood, 4 Dak. 455, 33 N. W. 59; Terr. v. De Gutman, 
 8 N. M. 92, 42 Pac. 68; People v. Webster, 139 N. T. 73, 34 N. E. 730; State 
 V. Murry, 63 N. B. 31; Zanone v. State, 97 Tenn. 101, 36 S. W. 711; Exon v. 
 State, 33 Tex. 461, 26 S. W. 1088; Tla koo-yel-lee v. U. S., 167 U. S. 274; 
 Bedgood v. State, 115 111. 279, 17 N. B. 621; keeping an opium joint. Goon 
 Bow V. People, 160 111. 438, 43 N. B. 593; prior acts of violence. State v. 
 Wells, 54 Kan. 161, 37 Pac. 1005; People v. Irving, 95 N. Y. 541; People t. 
 McCtormiok, 135 N. Y. 663, 32 N. K 26; State v. Sauer, 4|2 Minn. 258; 
 Qulgley V. Turner, 150 Mass. 108; State v. Pancoast, 5 N. D. 516, 67 N. W. 
 1052; as to being a gamiler, Leslie v. Com. (Ky.), 42 S. W. 1095; State 
 V. Bkanger, 8 N. D. 559, 80 N. W. 482; acts of fraud. City of South Bend 
 V. Hardy, 98 Ind. 577; connection with lotteries, People v. Noelke, 
 94 N. Y. 137, 46 Am. Rep. 128; counterfeiting. People v. Glblln, 115 N. Y. 
 196, 21 N. B. 1062, (but see, Bersch v. State, 13 Ind. 434, 74 Am. Dec. 263) ; 
 illegal liquor selling, Dickey v. State (Tex.), 56 S. W. 627; desertion from 
 army. People v. Hovey, 29 Hun (N. Y.) 382; Gulf C. & S. P. Ry. Co. v. 
 Johnson, 83 Tex. 628. Even more latitude Is allowed in respect to the 
 past and present residence, vocation or occupation and associates of the 
 witness. State v. Ward, 49 Conn. 430; Wallace v. State, 41 Fla. 547, 26 So. 
 713; State v. Ohingren, 105 la. 169, 74 N. W. 946; Schuster v. Stout, 30 
 Kan. 529, 2 Pac. 642; Trabue v. Com. (Ky.), 66 S. W. 718; United States 
 67 
 
1058 THE LAW OP EVIDENCE. § 83? 
 
 in some of the cases cited in this section the appellate court held 
 that the questions were properly received in the discretion of the 
 court, but in others it was ruled that the cross-examiner had the 
 right to insist upon the questions, and that they properly affected 
 the credit and veracity of the witness, and that large latitude 
 should be given when circumstances seem to justify it in allowing 
 full inquiry into the history of witnesses, and other matters tend- 
 ing to illustrate their real character. 
 
 § 833 (832,836,843). Same — Contrary view.— In another class 
 of decisions an entirely different view is maintained, namely, the 
 view that no such latitude of cross-examination should be permitted 
 as would tend to discourage witnesses from disclosing the truth and 
 appearing in courts of justice to testify. It is argued that collateral 
 matters tending merely to disgrace the witness are not properly 
 relevant to the issue; that it is grossly unjust to witnesses to be 
 obliged to disclose past transactions which may have been long for- 
 gotten, and which in no way concern the litigation, and that the 
 liberal rule adopted in some of the decisions tends to expose wit- 
 nesses unnecessarily to false and unjust accusations which cannot 
 be disapproved, and that the injury to character caused by such 
 cross-examination cannot be remedied by any answer the vntness 
 can give.'" It is also urged that such inquiry leads to confusion of 
 
 V. Wood, 4 Dak. 455, 33 N. W. 59 ; Lesser v. New Hampshire F. Co., 68 N. 
 H. 343, 44 Atl. 490; People v. Noelke, 94 N. T. 137, 46 Am. Rep. 128; People 
 V. Giblin, 115 N. T. 196, 21 N. E. 1062; Hollingsworth v. State, 53 Ark. 387, 
 14 S. W. 41; Kirschner v. State, 9 Wis. 140. 
 
 so Cross-examination as to immaterial facts to affect credit, excluded, 
 Roberts v. Jolinson (Ky.), 64 S. W. 526; Steen v. Santa Clara V. M. & L. 
 Co., 134 Gal. 355, 66 Pac. 321; acts of unchastity, sexual intercourse, fre- 
 quenting houses of ill fame and the like. People v. Tiley, 84 Cal. 651, 24 
 Pac. 290; Crawford v. State, 112 Ala. 1, 21 So. 214; State v. Sibley (Mo.), 
 31 S. W. 1033; Travis v. Stevens, 127 Mich. 687, 87 N. W. 85; Com. v. Re- 
 gan, 105 Mass. 593; Derwin v. Parsons, 52 Mich. 425, 50 Am. Rep. 147; Sage 
 V. State, 127 Ind. 15, 26 N. E. 667; Com. v. Wilson (Ky.), 32 S. W. 166; 
 Travis v. Stevens, 127 Mich. 687, 87 N. W. 85; Tucker v. Tucker, 74 Mlsa 
 93, 19 So. 955; Gorns v. City of Moberly, 127 Mo. 116, 29 S. W. 985; Loh- 
 man v. People, 1 N. Y. 379, 49 Am. Dec. 340; La Beau v. People, 34 N. Y. 
 222; People v. Un Dong, 106 Cal. 88, 39 Pac. 12; Myers v. State, 51 Neb. 517, 
 71 N. W. 33; Holtz v. State, 76 Wis. 99, 44 N. W. 1107; State v. Coella, 3 
 Wash. 99; Goodwin v. State, 114 Wis. 318, 90 N. W. 170; gambling. People 
 V. Un Dong, 106 Cal. 88, 39 Pac. 12; acts of violence. State v. Garson, 66 
 Me. 116; Coble v. State, 31 Oh. St 100; Buel v. State, 104 Wis. 132i 80 N. 
 W. 78; other frauds or corrupt conduct, Com. v. Mason, 105 Mass. 163, 
 7 Am. Rep. 507; Com. v. SchafEner, 146 Mass. 512, 16 N. E. 280; Preston 
 
§ 834 ATTENDANCE AND EXAMINATION OP WITNESSES. 1059 
 
 issues ^nd tends to distract the attention of the jury from the 
 real questions involved. From the illustrations cited in the notes it 
 •will be found that some of the decisions excluding testimony as to 
 offenses, misconduct and other immaterial facts tending to dis- 
 parage the witness sustain the ruling of the trial judge as within 
 the range of discretion, while others have reversed the rules of the 
 trial court on the ground that the discretion was abused, or that 
 the mode of questioning was wholly illegal. 
 
 § 834 (842). The view that collateral questions as to specific 
 misconduct may be allowed or rejected in the discretion of the 
 court. — ^In this country, the rule has been adopted in many courts 
 of very high authority that the limits of the cross-examination in 
 such cases rest in the sound discretion of the trial court. They hold 
 that witnesses may be cross examined as to specific facts, though not 
 pertinent to the issue, which tend to discredit the witness or im- 
 peach his moral character and credit, when there is reason to be- 
 lieve that such examination will tend to the ends of justice; but 
 that a cross-examination of this character ought not to he allowed 
 when it seems unjust to the witness and uncalled for by the cir- 
 cumstances of the case.'^ According to this view it may as a rule 
 
 V. State, 41 Tex. 300, 53 S. W. 127; People v. Noelke, 94 N. Y. 137, 46 Am. 
 Rep. 128; Slocum v. Knosby, 70 la. 75, 30 N. W. 18; Russel v. Cruttenden, 
 53 C!onn. 564; Clark x. Reingier, 66 la. 507, 24 N. W. 16; Madden v. Koes- 
 ter, 62 la. 692, 3 N. W. 790; South Bend v. Hardy, 98 Ind. 577, 49 Am. Rep. 
 792; Derwln v. Parsons, 52 Mich. 425, 50 Am. Rep. 262; Berech v. State, 
 13 Ind. 434, 74 Am. Dec. 263; People v. Ryan, 55 Hun. 214; illegal liquor 
 selling, C!om. v. McDonald, 110 Mass. 405; other slanders, Sullivan v. 
 O'Leary, 146 Mass. 322, 15 N. EJ. 775; expulsion from, church. People v. 
 Dorthy, 156 N. Y. 237, 50 N. E. 800; expulsion from the idr, Smith v. 
 Castles, 1 Gray, 108; discharge from army. State v. Spotted Hawk, 22 Mont. 
 339, 55 Pac. 1026; agreement with attorney as to division of damages, Mc- 
 Limans v Lancaster, 63 Wis. 596, 23 N. W. 689; making of affidavit of 
 prejudice to obtain change of venue, McLimans v. Lancaster, 63 Wis. 596, 
 23 N. W. 689; avoiding payment of debts by taking advantage of statute 
 of limitations, Marshall v. Morrissey, 6 111. App. 542; occupation. People v. 
 Fleming, 14 N. Y. S. 200; Yoe v. People, 49 111. 410; Fonda v. Lape, 8 N. Y. 
 S. 792; State v. Rollins, 77 Me. 380; People v. Cahoon, 88 Mich. 456; i??i- 
 peachment of truth by court, Pennsylvania Co. v. Bray, 125 Ind. 229; 
 Corkrill v. Hall, 76 Oal. 192; State v. Wooderd, 20 la. 541; statements 
 showing willingness to 6e triied, Hamilton v. People, 29 Mich. 173. 
 
 31 Great Western Turnpike Co. v. Loomis, 32 N. Y. 127, 88 Am. Dec. 311; 
 People V. Oyer and Term. Court, 83 N. Y. 438; Hanoff v. State, 37 Ohio St. 
 178, 41 Am. Rep. 496; Com. v. Foster, 182 Mass. 27(1, C5 N. B. 391; State 
 V. Haab, 105 La. 230, 29 So. 725; HiU v. State, 42 Neb. 503, 60 N. W. 916; 
 
1060 THE LAW OF EVIDENCE. § 834 
 
 be safely left to the trial judge to control the inquiry; while it is 
 proper for him to permit questions tending to disgrace the witness, 
 if in an important way this affects his credibility, yet on the other 
 hand he should protect the witness from insult and indiscriminate 
 attacks or those which, are evidently caused by mere caprice or re- 
 sentment, and that it is his duty to exclude inquiry as to transac- 
 tions too remote tO affect credibility.'^ This discretion of the trial 
 judge is to be exercised in view of the evidence already introduced 
 and the testimony of the witness in the direct examination and all 
 the circumstances of the case.'' In those jurisdictions where this rule 
 prevails, the discretion of the trial judge is not subject to review, 
 unless it appears to have been abused to the prejudice of the party 
 complaining.'* In order to more fully illustrate the subject, we will 
 refer to some of the decisions in which the question has been dis- 
 cussed. In the following cases, the disparaging questions were al- 
 lowed and answers compelled, but the appellate court declined to in- 
 terfere : Where, on a criminal trial, the defendant, being a witness 
 in his own behalf, was asked if he had not formerly been indicted 
 and arrested, and whether he had not plead guilty of other of- 
 fenses ; '" where, on a trial for larceny, the question was asked of the 
 prisoner, ' ' Have you ever been arrested before for theft, ' ' '" or, 
 ' ' How many times have you been arrested ; " " where the action was 
 for indecent assault, counsel were allowed to ask the defendant 
 
 State V. Ferguson, 71 Conn. 227, 41 Atl. 769; Watson v. Twombley, 60 
 N. H. 491; People v. Noelke, 94 N. Y. 137, 46 Am. Rep. 128; People v. 
 Clark, 102 N T. 735; People v. Gotshall, 123 Mich. 474, 82 N. W. 274. 
 
 32 Borrego v. Terr., 8 N. M. 446, 46 Pac. 349; People v. Tice, 131 N. Y. 651, 
 30 N. E. 494; Terr. v. O'Hare, 1 N. D. 30, 44 N. "W. 1003; State v. Slack, 69 
 Vt. 486, 38 Atl. 311; Buel v. State, 104 Wis. 132, 80 N. W. 78; Terr. T. 
 Clhavez, 8 N. M. 528, 45 Pac. 1107; People v. McArron, 121 Mich. 1, 79 N. 
 
 kW. 944; Ex parte Rowe, 7 Cal. 184; State v. Bacon, 13 Or. 143, 9 Pac. 393, 
 57 Am. Rep. 8; Warren v. Com. (Ky.), 35 S. W. 1028. 
 
 33 Storm V. United States, 94 U. S. 76. See the cases above cited. 
 
 34 Great Western Turnpike CO. v. Loomis, 32 N. Y. 127, 88 Am. Deo. 311; 
 People v. Oyer & Term. Court, 83 N. Y. 438; State v. May, 33 S. C. 39; 
 Spencer v. Robbins, 106 Ind. 580, 5 N. E. 726. See the other oases above 
 cited. 
 
 8B Hanoff V. State, 37 Ohio St. 178, 41 Am. Rep. 496. 
 
 88 Brandon v. People, 42 N. Y. 265. See also, People v. Crapo, 76 N. T. 
 288, 32 Am. Rep. 302. 
 
 87 Connors v. People, 50 N. Y. 240; Hill v. State, 42 Neb. 503. See also 
 People V. Crapo, 76 N. Y. 288, 32 Am. Rep. 302. 
 
§ 835 ATTENDANCE AND EXAMINATION OP WITNESSES. 1061 
 
 whether he had paid money in settlement of such former charge ; " 
 in what places he had resided, although this elicited the fact that 
 he had been in jail; °° whether the witness had been in jail or in 
 the penitentiary, and how much of his time had been spent in such 
 places.*" 
 
 § 835 (840). Same — Such questions admissible when material 
 to the issue. — There seems to be general agreement in the view 
 that, where the question calls for any fact which is material to the 
 issue, the witness will be compelled to answer, although it may tend 
 to degrade his character, since the consequences of a failure of jus- 
 tice are more serious than the annoyance or humiliation of the wit- 
 ness.*^ For example, in actions for bastardy, the prosecutrix may 
 be asked on cross-examination whether she had sexual intercoxirse 
 with any other person than the defendant about the time the 
 child was begotten.*^ So on a charge of adultery, former acts of 
 adultery between the accused and the person named in the indict- 
 ment may be shown.*' The same rule has been applied in actions 
 for seduction, where the statute gives to the female the right of ac- 
 tion, as affecting the measure of damages ; ** and in an action for 
 the sale of lottery tickets, it is relevant to show on cross-examina- 
 tion a former dealing in the same business.*" In an action for 
 assault, where, in aggravation of damages, it is alleged that the de- 
 fendant had carnal intercourse with the plaintiff against her will, 
 it may be shown on cross-examination that the plaintiff has had 
 intercourse with others. Such testimony is received, not only in 
 mitigation of damages, but as a circumstance tending to overcome 
 the probability that force was used, since the fact that the plaintiff 
 had yielded her person to others would raise an inference that she 
 
 ssLeland v. Kauth, 47 Mich. 508; State v. Martin, lj24 Mo. 514, -where ■ 
 witness was asked how often he bad been in jail. 
 
 39 State V. Row, 81 la. 138; State v. Pugsley, 75 la. 743, 38 N. W. 498. 
 
 *oReal V. People, 42 N. Y. 270; Lights v. State, 21 Tex. App. 308; 
 Mitchell V. Com. (Ky.), 14 S. W. 489. 
 
 41 Clementine v. State, 14 Mo. 112; Ex parte Bowe, 7 Oal. 184; McCamp- 
 bell V. McCampbell (Ky.), 46 S. W. 18; Tayl. Ev. (10th Ed.) § 1459; Greenl. 
 EJv. § 454. 
 
 *2 Smith V. Yaryan, 69 Ind. 445, 35 Am. Rep. 232. See §§ 153, supra, 841 
 841 infra. 
 
 *8 0om. V. Nichols, 114 Mass. 285, 19 Am. Rep. 346. See §§ 152 supra, 
 841 infra. 
 
 ** Smith V. Yaryan, 69 Ind. 445, 35 Am. Rep. 232. 
 
 *5 People T. Noelke, 94 N. Y. 137, 46 Am. Eep. 128. 
 
1062 THE LAW OF EVIDENCE. § 836 
 
 might have yielded to the defendant without much force.*' Of 
 course it is well settled under this rule that proof of other crimes 
 may be received when they show a motive for the commission of the 
 crime being tried as part of a plan or scheme of which it is a part.*' 
 § 836 (844). Cross-examination of party. — It is the rule which 
 generally prevails that, when a party to an action voluntarily be- 
 comes a witness in his own behalf, the same rules of cross-examina- 
 tion obtain, as in the case of other witnesses.*' It is, however, held 
 in some jurisdictions that, in the discretion of the court, greater 
 liberty of cross-examination may be allowed in such cases, in inquir- 
 ing as to matters not mentioned in the direct examination,*" and 
 especially when fraud or good faith is the issue."" But such lati- 
 tude is only discretionary and not a right of the adverse party."' 
 It is well settled that a party, who becomes a witness in his own be- 
 half may be compelled to answer all questions which bear directly 
 or indirectly upon the testimony given in chief, or which test the 
 credibility, knowledge or recollection of the witness, even though 
 answers to such questions might tend to criminate him.°* Although 
 a party by taking the stand as a witness subjects himself to the 
 rules applicable to other witnesses, he is not thereby deprived of 
 his rights as a party, and his counsel may, in a proper case, raise 
 the question of privilege for his client while he is on the witness 
 stand."* In many of the illustrations cited in former sections, the 
 
 « Watry v. Ferlier, 18 Wis. BOO, 86 Am. Dec. 789. 
 
 " See §§ 143 et seq. supra. 
 
 48 Clark V. Reese, 35 Cal. 89; State v. Buffiiagton, 71 Kan. 804, 81 Pac. 
 465, 4 L. R. A. (N. S.) 154; Howland v. Jencks, 7 Wis. 57, by statute; 
 State V. Merrinan, 34 S. C. 16; McManus v. Mason, 43 W. Va. 196, 27 S. B. 
 293. 
 
 *9Norrls v. Cargill, 57 Wis. 251; State v. Buella, 89 Mo. 595. But see 
 Sullivan v. Collins, 107 Wis. 291, 83 N. W. 310. 
 
 KORiordan t. Guggerty, 74 la. 688, 39 N. W, 107; Attwood v. Marshall, 
 5:2 Neb. 173, 71 N. W. 1064; Whipple v. Preece, 24 Utah, 364, 67 Pac. 1072. 
 See § 821 supra. 
 
 61 Norris v. Cargill, 57 Wis. 251. 
 
 ozEste V. Wilshire, 44 Ohio St. 636; Com. v. Price, 10 Gray, 472, 71 Am. 
 Dec. 668; Com. v. Lannan, 13 Allen, 564; Sharp v. Hoffman, 79 Oal. 404; 
 State T. Ober, 52 N. H. 459, 12 Am. Rep. 88; Com. v. Nichols, 114 Mass. 
 285, 19 Am. Rep. 346 and note; Com. v. Smith, 163 Mass. 411, 40 N. E. 189; 
 Raines v. State, 88 Ala. 91; Peck v. State, 86 Tenn. 259; Connors v. People, 
 50 N. T. 240; People T. Duponce, 133 Mich, 1, 94 N. W. 388, 103 Am. St 
 Rep. 435; State v. Pancoast, 5 N. D. 541, 67 N. W. 1052; Sawyer v. U. S., 
 202 U. a 150. See note 38 Am. St. Ry. 895. 
 
 5s People V Brown, 72 N. Y. 571, 28 Am. Rep. 183. See § 730 infra. 
 
§ 837 ATTENDANCE AND EXAMINATION OF WITNESSES. 1063 
 
 witnesses were parties to the action, and the decisions already re- 
 ferred to show that, as in other cases, the extent to which collateral 
 questions may be asked on cross-examination to discredit the witness 
 depends very much upon the discretion of the trial judge.^* In 
 some states, it is broadly held that, on cross-examination, a party 
 may be asked any questions affecting the merits of the controversy, 
 whether the particular transaction asked about has been referred to 
 in the direct examination or not."" 
 
 § 837 (845). Same — In criminal cases. — ^Where the party be- 
 comes a witness in his own behalf in a criminal case, it is generally 
 held that the same general rules obtain as in civil cases. Under the 
 rule which generally prevails in the United States, the cross-ex- 
 amination should only extend to those matters referred to in the di- 
 rect examination, subject, of course, to the qualification that, within 
 proper limits, questions tending to discredit the witness may be 
 asked.^° It has been suggested that there is an added reason for 
 confining the cross-examination of a defendant to the matters stated 
 in the direct examination, since to compel answers to other ques- 
 tions might be deemed a violation of the constitutional provision 
 which exempts him from testifjdng against himself.^^ In a few 
 eases it has also been suggested as a reason for caution that al- 
 though proof of former misconduct is ostensibly offered to affect 
 credibility it may be used unfairly to convict the defendant upon 
 irrelevant testimony."' It is clear that, in a criminal ease, the ac- 
 cused, if a witness, must answer on cross-examination as to all mat- 
 ters relevant to his examination-in-chief. "He cannot claim the 
 advantage of the position of a witness, and at the same time avoid 
 
 5* South Bend v. Hardy, 98 Ind. 577, 49 Am. Rep. 792; State v. Phillips, 
 70 N. C. 462; United States v. Brown, 40 Fed. 457; Keyes v. State, 122 Ind. 
 527. But see, State v. Brent, 100, Mo. 531. See §§ 828 et seq., 834 et seq. 
 sv/pra. 
 
 65 Hay T. Reld, 85 Mich. 296. See §§ 820 et seq. supra, and cases there 
 cited. 
 
 08 State V. Chamberlain, 89 Mo. 129, by statute; State v. Saunders, 14 
 Or. 300, 12 Pac. 441; State v. Moore, 32 Or. 65, 48 Pac. 468; Mitchell v. 
 State, 94 Ala. 68; State v. Anderson, 126 Mo. 542; State v. Pancoast, (N. 
 D.), 67 N. W. 1052, full discussion; People v. Rozelle, 78 Cal. 84, 20 Pac. 36. 
 See §§ 820 et seq. supra, 730 infra. See notes, 38 Am. St. Rep. 895; 27 
 Am. Rep. 140. 
 
 57 People V. O'Brien, 66 Cal. 602, by statute. See § 730 supra. See val- 
 uable note, 15 L. R. A. 669. 
 
 68 People V. Brown, 72 N. Y. 571, 28 Am. Rep. 183; People v. Crapo, 76 N. 
 y. 388, 32 Am. Rep. 302. 
 
1064 THE LAW OF EVIDENCE. § 837 
 
 its duties and responsibilities. " °° In some states there are statutes 
 which make a defendant in criminal prosecutions competent to tes- 
 tify and liable to cross-examination as to any matter referred to in 
 the direct examination. In these jurisdictions it is held that the 
 statute must be construed as restricting the discretion of the court."" 
 The object of statutes allowing accused persons to testify "is not 
 to protect or assist criminals, but to promote the discovery of the 
 truth. ""^ Thus, if the charge is adultery, the accused may be 
 asked if he has not committed the offense with the person named in 
 the indictment at other times ; "^ and, in a charge for selling liquor, 
 the defendant, if he becomes a witness, may ,be asked as to other 
 sales at about the time of that alleged."* In this class of cases it 
 is held that if an accused person "takes an oath to tell the whole 
 truth, the cross-examination is not restricted to matters inquired 
 of in chief. He may be cross-examined like other witnesses. He 
 may be questioned as to all incriminating circumstances, and he 
 must answer all such questions as are relevant to the subject of the 
 charge against him. Whatever he has said or done, or omitted to 
 say or do, which is relevant, may be inquired into. By taking the 
 stand as a witness, he has consented and offered to submit to such 
 inquiry, and he must testify to whatever has legitimate bearing 
 upon the question of his guilt."* When we come to inquire to what 
 extent a party in a criminal case may be interrogated as to matters 
 which merely tend to degrade him in the estimation of the jury, 
 
 i!» Brandon v. People, 42 N. Y. 265; People v. Russell, 46 Oal. 121; People 
 V. Sutherland (Mich.), 62 N. W. 566; People v. Clark, 106 Cal. 32; CJom. v. 
 Smith, 163 Mass. 411; State v. Pancoast (N. D.), 67 N. W. 1052; State v. Lar- 
 kins (Idaho), 47 Pac. 945; State v. Duncan, 7 Wash. 336, 35 Pac. 117, 38 Am. 
 St. Rep. 388; HaiTold v. Terr., 18 Okl. 395, 89 Pac. 202, 10 L. R. A. (N. 
 S.) 604. See also, State v. Kent, 4 N. D. 577. See note, 15 L. R. A. 669. 
 
 80 People V. Gallagher, 100 Cal. 466, 35 Pac. 80; People v. Arrighini, 122 
 Cal. 121, 54 Pac. 591; State v. Turner (Mo.), 19 S. W. 645; Lewis v. Terri- 
 tory, 7 Ariz. 52, 60 Pac 694; State v. Saunders, 14 Or. 300, 12 Pac. 441 
 But conviction of felony may be showix. People v. Crowley, 100 Cal. 478, 
 35 Pac. 84. 
 
 61 Com. V. Nichols, 114 Mass. 285, 19 Am. Rep. 346; State v. Wells, 54 
 Kan, 161. 
 
 62 Com. V. Nichols, 114 Mass. 285, 19 Am. Rep. 346. 
 
 68 State V. Wentworth, 65 Me. 234, 20 Am. Rep. 688. 
 
 «*Com. v. Smith, 163 Mass. 411, 40 N. E. 189; Spies v. People, 122 111. 1, 
 12 N. B. 865, 17 N. E. 898, 3 Am. St. Rep. 320; Disque v. State, 49 N. J. 
 L. 249, 8 Atl. 281; People v. Dupounce, 133 Mich. 1, 94 N. W. 388; People 
 V. Tice, 131 N. Y. 651, 30 N. K 494; Guy v. SUte, 90 Md. 29, 44 Atl. 997. 
 
§ 838 ATTENDANCE AND EXAMINATION OF WITNBSSSBS. 1065 
 
 we find the same conflict which has been pointed out in former 
 sections."" In one class of cases, we find the courts allowing, wide 
 latitude to the cross-examiner in interrogating the accused as to 
 the events of his past life, as to former arrests, indictments and 
 convictions of other offenses, as well as to other facts tending to 
 disparage his character.^^ While, in another class of decisions, the 
 courts adopt the view that the cross-examination of persons who 
 are witnesses in their own behalf, when on trial for criminal of- 
 fenses, should in general be limited to matters pertinent to the is- 
 sue, in order that the accused shall not be convicted for one of- 
 fense by proof that he may have been guilty of others."' It is 
 clearly impossible to harmonize the judicial decisions in this coun- 
 try upon this subject. 
 
 § 838(834,835,842). Cross-examination as to arrests and in- 
 dictments. — Can witnesses be asked upon cross-examination ques- 
 tions relating to their former arrests and indictments? There is 
 some conflict in the decisions upon the subject. In one class of 
 
 «» See §§ 830 et seq. supra. 
 
 88 Connors v. People, 50 N. Y. 240, where the prisoner was asked how 
 many times he had been arrested; Wroe v. State, 20 Ohio St. 460, charge 
 of murder, accused wias asked If he had been arrested before for assault 
 with Intent to kill; People v. Casey, 72 N. Y. 393, charge of assault with 
 dangerous weapon, the prisoner was asked as to other assaults committed 
 by him; State v. PfefEerle, 36 Kan. 90, questions allowed as to former sales 
 of intoxicating liquors; Brandon v. People, 42 N. Y. 265, former arrest for 
 theft; Hanoff v. State, 37 Ohio St. 178, 41 Am. Rep. 496, as to former in- 
 dictment and plea of guilty; Leland v. Kauth, 47 Mich. 508, as to former 
 charge and settlement thereof; Real v. People, 42 N. Y. 270, question as to 
 how much time the witness had spent In the penitentiary; People v. Fong 
 Ching, 78 Cal. 169, as to former arrests, where the witness had testified in 
 chief as to his past life; People v. Noelke, 94 N. Y. 137, 46 Am. Rep. 128, 
 charge of sale of lottery tickets, question as to former dealing In the busi- 
 ness; People V. Giblin, 115 N. Y. 196, charge of murder, defendant was 
 asked if he had implements of counterfeiting in his possession; State v. 
 Miller, 100 Mo. 606, witness asked concerning former convictions; People 
 V. Rjodrigo, 69 Oal. 61; State v. Duncan, 7 Wash. 336, questioned as to flight 
 after alleged crime. See also, Parker v. State, 136 Ind. 284; Baker t. 
 State, 58 Ark. 573; People v. Crowley, 100 Cal. 478. See §§ 830 et seq. 
 supra. 
 
 SI People V. Brown, 72 N. Y. 571, 28 Am. Rep. 183,' where the charge was 
 forgery, the witness was asked how many times he had been arrested, 
 which was objected to on the ground of privilege and other grounds; Peo- 
 ple V. Crapo, 76 N. Y. 288, 32 Am. Rep. 302, the charge was larceny, the 
 defendant was asked as to former arrest for bigamy, no claim of privilege 
 
1066 THE LAW Off EVIDENCE. § 838 
 
 decisions it is urged that the simple fact that a witness has been 
 arrested or indicted does not prove or tend to prove a conviction of 
 any offense, and until there is proof of conviction the witness 
 should be protected by the legal presumption of innocence. It is 
 also insisted with much force that such evidence consists of mere 
 accusations and charges which may have been false and are even 
 more objectionable than actual proof of misconduct on the part of 
 the witness ; that an arrest or indictment is not necessarily evidence 
 of misconduct."' In another class of decisions this mode of examina- 
 tion is upheld on the ground that the questions if answered affirma- 
 tively tend to show that the witness has been disgraced and to show 
 his antecedents to impair his credibility, and should be permitted."' 
 On principle it would seem that such evidence should be excluded 
 and by the weight of authority it is held inadmissible. Even in 
 those decisions which approve such interrogatories it is held they 
 should be excluded in the discretion of the trial judge, unless they 
 are of a character which tend to impeach the credibility of the wit- 
 ness.^" It is also clear that if such inquiry is permitted the witness 
 should be allowed on re-examination to explain the statement.'^ 
 Extrinsic testimony can not be given to prove such arrests and in- 
 dictments, and the answer of the witness cannot he contradicted.''^ 
 In the decisions referred to in this section, the objection that the 
 
 being made; People v. Bishop, 81 Cal. 113, charge of assault, question as 
 to fonner assaults. See also, Sharon v. Sharon, 79 Cal. 633; People v. Un 
 Dong, 106 C^l. 83. See §§ 729, 730 supra. 
 
 08 People V. Hamblin, 68 Cal. 101, 8 Pac. 687; People v. Sll-va, 121 Cal. 
 668, 54 Pac. 146; Welch v. Com. (Ky.), 60 S. W. 948, 63 S. W. 984, full 
 diacuBsixjn of statute; Bonaparte v. Thayer, 95 Md. 548, 52 Atl. 496; Roop 
 V. State, 58 N. J. L. 479, 34 Atl. 749; Lipe v. Eisenlord, 32 N. Y. 229; 
 People V. Crapo, 76 N. Y. 288, 32 Am. Rep. 302; Van Bokkeleln Vi Berdell, 
 130 N. Y. 141, 29 N. E. 254; Stout v. Rassel, 2 Yeates (Pa.) 334; McKesson 
 V. Sherman, 51 "Wis. 303, 8 N. W. 200. 
 
 68 Parker v. State, 136 Ind. 284, 35 N. B. 1105; Driscoll v. People, 47 
 Mich. 417, 11 N. W. 221; People v. Foote, 93 Mich. 38, 52 N. W. 1036; State 
 V. Greenberg, 59 Kan. 404, 53 Pac. 61; Real v. People, 42 N. Y. 270; Con- 
 nors V. People, 50 N. Y. 240; Southworth v. Bennett, 5« N. Y. 659; Coble 
 V. State, 31 Oh. St. 100; Payne v. State (Tex.), 50 S. W. 363; State v. 
 Rozum, 8 N. D. 548, 80 N. W. 477; Oxier v. U. S., 1 Ind. Terr. 93, 38 S. W 
 331; Carroll v. State, 32 Tex. Cr. 431, 24 S W. 100, 40 Am. St Rep. 786; 
 Koch v. State, 126 Wis. 470, 106 N. W. 531, 3 L. R. A. (N. S.) 1086. 
 
 70 State v. Greenberg, 59 Kan. 404, 53 Pac. 61. 
 
 71 Driscoll V. People, 47 Mich. 416, 11 N. W. 221. 
 
 72 Brittain v. State, 36 Tex. Cr. 406, 37 S. W. 758; Payne v. State (Tex.), 
 BO S. W. 363. 
 
§ 839 ATTENDANCE AND EXAMINATION OF WITNESSES. 1067 
 
 records should be produced to show the arrests has seldom been 
 made in either class of decisions. In others it has been made and 
 overruled. The practice has sometimes been upheld of asking the 
 witnesses on cross-examination whether they had been in a jail or 
 in a pententiary.''^ It is urged that it would cause great injustice 
 if it were not permitted to be proved that much of the life of a wit- 
 ness had been spent in jails and prisons, and if this fact could not 
 be proved by the witness himself, but only by records which might 
 be inaccessible.'* And it is urged that conviction may be inferred 
 from the imprisonment."' In other cases such testimony has been 
 held improper on the same reasoning which excludes evidence of 
 arrests and indictments." In a few states statutes prohibit ques- 
 tions of this character, as well as those relating to arrests, and limit 
 the inquiry of particular wrongful acts to convictions for felony." 
 It is proper cross-examination to ask a witness as to his occupation 
 and places of residence, and when it happens to become known as 
 an incidental consequence of such questions that the witness has 
 been confined in jail, it is no ground of complaint.'* 
 
 § 839 (841). Cross-examination as to conviction of crimes. — 
 Although the common law rule of disqualification by reason of in- 
 famous crimes no longer exists '" it is practically the universal rule 
 that conviction of criminal offenses may be shown to affect credi- 
 bility. In the absence of statutes the record is the best evidence 
 and should be produced.*" In nearly every state the subject is now 
 
 "Real V. People, 42 N. T. 265; Laughlln v. Menecke, 80 Md. 83, 30 Aa 
 603. 
 
 71 Real V. People, 42 N. Y. 265. 
 
 70 McLaughlin v. Menecke, 80 Md. 83, 30 Atl. 603; Clemens v. Conrad, 19 
 Mich. 170; Buel v. State, 104 Wis. 132, 80 N. W. 78. 
 
 restate v. Hogan, 115 la. 455, 88 N. W. 1074, reform school; Germinder 
 V. Machinery Mut. Ins. Ass'n, 120 la. 614, 94 N. W. 1108, mere accusation. 
 
 77 People v. Carolan, 71 Gal. 195, 12 Pac. 52; People v. Silva, 121 Cal. 668, 
 54 Pac. 146; Welch v. Com. (Ky.), 60 S. W. 948. 
 
 78 State V. Pugsley, 75 la. 742; State v. Row, 81 la. 138. 
 7» See § 716 supra. 
 
 soNewcomb v. Griswold, 24 N. Y. 298; Kirschner v. State, 9 Wis. 140; 
 Clements v. Brooks, 13 N. H. 92; Com. v. Quinn, 5 Gray, 478; Paulson v. 
 State, 118 Wis. 89, 94 N. W. 771; Spiro v. Nitkin, 72 Conn. 202, 44 Atl. 13; 
 Killian v. Georgia Ry. & B. Co., 97 Ga. 727, 25 S. B. 384; Huff v. State, 104 
 Ga. 384, 30 S. B. 808; Boyd v. State, 94 Tenn. 505, 29 S. W. 901; Murphy 
 V. State, 108 Ala. 10, 18 So. 557. Contra, State v. PfefEerle (Kan.), 12 
 Pac. 406; Clemens v. Conrad, 19 Mich. 170; State v. Bllwood, 17 R. I. 763, 
 24 Atl. 782; State v. Black, 15 Mont. 143, 38 Pac. 674; Cash y. Cash, 67 Ark. 
 
1068 THE LAW OF BVIDENCB. S 840 
 
 regulated by statutes wHcli generally provide that the conviction 
 may be proved either by cross-examination or by production of the 
 record.*^ Under statutes of this class proof of conviction of all 
 classes of misdemeanors and minor offenses is received.''' In a few 
 states the proof is not allowed unless the crime is one involving 
 moral turpitude.*' And in quite a group of states the statute pro- 
 vides that the witness may be required to answer as to conviction 
 of a felony.'* 
 
 § 840 (842). Independent evidence to impeach credibility by 
 proof of specific misconduct. — ^Although we have seen that in 
 many jurisdictions much latitude is allowed in cross-examination 
 to affect credibility of the witness by proof of specific acts of mis- 
 conduct, it must not be inferred that this allows independent or ex- 
 trinsic evidence of such acts. The rule is very general that the in- 
 quiry is confined to cross-examination, and further that the evi- 
 dence of the witness on such collateral matters cannot be contra- 
 dicted.*' The rule followed in many states by which the witness 
 can be cross-examined as to specific facts tending to disgrace him 
 often works great hardship, and it would be intolerable if ajiy 
 
 278, 54 S. W. 744; Squires v. State, 42 Fla. 251, 27 So. 864; State v Pro- 
 basco, 46 Kan. 310, 26 Pac. 749. 
 
 81 Wilson V. Com. (Ky.), 64 S. W. 751; Spiegel v. Hayes, 118 N. Y. 660, 
 22 N. E. 1105; People v. Noelke, 94 N. Y. 137, 46 Am. Rep. 128. See stat- 
 utes of the jurisdiction. 
 
 82 State V. Henson, 66 N. J. L. 601, 50 Atl. 468, full discussion of mean- 
 ing of crime; State v. Parmer, 84 Me.. 436, 24 Atl. 985, after 27 years; 
 Harding v. Railway Co., 77 Minn. 417, 80 N. W. 358; Chouteau L. & L. Co. 
 V Chrlsman (Mo.), 72 S. W. 1062; State v. Babcock, 25' R. I. 224, 55 Atl. 
 685; State v. Thornhlll, 174 Mo. 364, 74 S. "W. 832; Hebwlg v. Lascowskl, 
 82 Mich. 621, 46 N. W. 1033; Miss. Gen'l Stat., 1892, § 1746; N. Mex. Laws, 
 1897, § 3025. See cases above cited. 
 
 88 McGovem v. Smith, 75 Vt. 104, 53 Atl. 326; Goode v. State, 32 Tex. 
 Cr. 505, 24 S. W. 102; Shaw v. State (Ga.), 29 S. E. 477; Matzenbaugh t. 
 People, 194 111. 108, 62 N. B. 546, 88 Am. St. Re.p 134; State v. Payne, 6 
 Wash. 563, 34 Pac. 317; Ind. R. S., 1897, § 519. 
 
 84 People v. Chin Hane, 108 Cal. 597, 41 Pac. 697; Young Men's C. A. v. 
 Rawlings, 60 Neb. 377, 83 N. W. 175; la. Code, 1897, § 4613; Ala. Code, 1897, 
 § 1716; Cal. Code Civil Proc, 1872, § 2051. Colo. Ann. Stat, 1891, § 4822; 
 Idaho Rev. Stat, 1897, § 1420; Neb. Oomp. Stat, 1899, § 6912. 
 
 86 Crawford v. State, 112 Ala. 1, 21 So. 214; Rlppetoe v. People, 172 111. 
 173, 50 N. B. 166; Griffith v. State, 140 Ind. 163, 39 N. E. 440; Jennings v. 
 Machine Co., 138 Mass. 594; Kingston v. Railway Co.. 112 Mich. 40, 70 N. 
 W. 315, 74 N. W. 230; State v. Vandiver, 149 Mo. 502, 50 S. W. 892; State 
 7. Pancoast, 5 N. D. 516, 67 N. W. 1052; Zanone v. State, 97 Tenn. 101, 36 
 S. W. 711; Paulson v. State, 118 Wis. 89, 94 N. W. 771; Oxier v. U. S. 
 (Ind. Terr.), 38 S. W. 331. 
 
§ 841 ATTENDANCE AND EXAMINATION Off WITNESSES. 1069 
 
 witness might be surprised by an array of witnesses and compelled 
 to defend past transactions having no connection with the suit. In 
 various states evidence of this character is forbidden by statute.'" 
 
 § 841 (846). Actions where the chastity of women is in issue. — 
 We have seen that, in certain civil actions where the chastity of 
 women is in issue, it is relevant to show unchastity by proof of 
 general bad character in that regard." In such cases, it would 
 seem to be only the proper application of the general rules al- 
 ready discussed to require the plaiutiff, if a witness, to answer on 
 cross-examination as to any specific acts showing her unchastity, 
 unless they should tend to criminate her and her privilege is 
 claimed.*' Mr. Stephen lays down the rule that, in actions for rape 
 or attempts to ravish, the prosecutrix may be asked whether she 
 has had connection with other men, but that her answer cannot be 
 contradicted,*' and that she may also be asked whether she has had 
 connection with the prisoner on other occasions, but that, if she 
 denies it, she may be contradicted."" In this country, although the 
 prosecutrix may be questioned as to acts of intercourse with the 
 accused, in order to disprove the allegation of force,*^ there is 
 more doubt whether such questions as to her intercourse with 
 other men are proper. In numerous cases, it is held that, while the 
 chastity of the prosecutrix is in issue and may be attacked by evi- 
 dence of her general bad character for chastity, it cannot be as- 
 sailed by specific acts of unchastity with other persons than the 
 accused, even under the latitude given on cross-examination.** But 
 in other cases, the practice is approved."* 
 
 88 See statute of the Jurisdiction. 
 
 8' See §§ 151 et seq. supra. 
 
 88 Love V. Masoner, 6 Baxt. (Tenn.) 24, 32 Am. Rep. 522, seduction; 
 Watry v. Ferber, 18 Wis. 500, 86 Am. Dec. 789, action for damages for at- 
 tempt to ravish; State v. Hack, 118 Mo. 92. See §§ 835 et seq. supra. But 
 see, Hoffman v. Kemerer, 44 Pa. St. 452; Doyle v. Jessup, 29 111. 460. 
 
 8» Steph. Bv. art. 134; R. v. Holmes, L. R. 1 Or. C. 334. 
 
 ooSteph. Bv. art 134; R. v. Martin. 6 "Car. & P. 562. 
 
 01 Woods V. People, 55 N. Y. 515, 14 Am. Rep. 309; State v. Forshner, 43 
 N. H. 89, 80 Am. Dec. 132; State v. Jefferson, 6 Ired. (N. C.) 305; People 
 V. Abbot, 19 Wend. 192; Bxon v. State, 33 Tex. Cr. Rep. 461. 
 
 92 Com. V. Harris, 131 Mass. 336; State v. Forshner, 43 N. H. 89, 
 80 Am. Dec. 132; McOombs v. State, 8 Ohio St. 643; Richie v. 
 State, 58 Ind. 355; State v. White, 35 Mo. 500; State v. Knapp, 4& N. H. 
 148; Rhea v. State, 100 Ala. 119; State v. Stumpson, 78 U. S. 124, 62 
 Atl. 14, 1 L. R. A. (N. S.) 1153. See note, 53 Am. St. Rep. 479. 
 
 »s See cases cited in note 91 above. As to Impeaching the general char- 
 acter of witnesses, see § 861 infra. 
 
1070 THE LAW OF EVIDENCE. § 842 
 
 § 842 (837). Method and extent of cross-examination — ^Discre- 
 tion of the court. — ^From the necessity of the case, the method 
 and extent of the cross-examination must depend very largely upon 
 the discretion of the trial judge; and this is especially true where 
 the object is to test the accuracy and credibility of the witness. If 
 the cross-examination is proceeding beyond those bounds which 
 are proper to test the accuracy and credibility of the witness, or 
 is being needlessly protracted, or is being conducted in a manner 
 which is unfair to the witness, or if it is inconsistent with the deco- 
 rum of the court room, the court is not bound to wait for objections 
 from counsel, but niay interfere of its own motion."* While the ap- 
 pellate court does not ordinarily review the decisions of the trial 
 court in these matters,"" yet the rule is recognized that the right of 
 cross-examination must not be unduly restricted; and, if such ex- 
 amination is arbitrarily limited by the court, while being conducted 
 by counsel in a proper manner, it is error."* Thus, it is error not 
 to permit full cross-examination as to a conversation as to which the 
 witness has testified ; "' and where the issue is whether fraud has 
 been committed, it is error for the court not to permit an exhaustive 
 and searching cross-examination of the party against whom the im- 
 putation is made."' It is incidental to the rules already stated that 
 it is discretionary with the trial judge to allow or to deny the priv- 
 ilege of repeating questions already fully answered."" On the one 
 
 KiLangley v. Wadsworth, 99 N. Y. 61; C!om. v. Lyden, 113 Mass. 452; 
 Wallace v. Taunton St. Ry. Co., 119 Mass. 91; Hamilton v. Miller, 46 Kan. 
 486; Wachstetter v. State, 99 Ind. 290, 50 Am. Rep. 94; Baldwin v. St. 
 Louis Ry. Co., 75 la. 297, 9 Am. St. Rep. 479; Storm v. United States, 94 
 U. S. 76; State v. McGee, 36 La. An. 206; Lockwood v. Rose, 125 Ind. 588; 
 City of Santa Ana v. Harlin, 99 Cal. 538; Sandell v. Sherman, 107 Cal. 391; 
 Spear v. Sweeney, 88 Wis. 545; People v. Kindra, 102 Micih. 147; Koch v. 
 Sackman-Phillips Inv. Co., 9 Wash. 405; Hamilton v. Hulett, 51 Minn. 208. 
 See § 843. 
 
 . »5 Allen V. Kirk, 81 la. 658; Hamilton v. Miller, 46 Kan. 486; Texas 
 Standard Cotton Oil Co. v. Hanlan, 79 Tex. 678; State v. May, 33 S. C. 
 39; Spear v. Sweeney, 88 Wis. 54"5; Noblln v. State, 100 Ala. 13. 
 
 »8 In re Mason, 14 N. Y. S. 434; Patrick v. Crowe, 15 Colo. 543. See § 821 
 supra, and cases there cited. 
 
 8' Patrick V. Crowe, 15 Colo. 543; Reiser v. Portere, 106 Mich. 102, 63 
 N. W. 1041. 
 
 esKalk V. Fielding, 50 Wis. 339; Anderson v. Walter, 34 Mich. 113. 
 
 »» Stanton Co. v. Oanfleld, 10 Neb. 387; Hughes v. Ward, 38 Kan. 452; 
 Gutsch V. Mcllhargey, 69 Mich. 377, 37 N. W. 303; Gulf Ry. Co. v. Pool, 70 
 Tex. 713; Tift v. Jones, 77 Ga. 181; Stern v. Stanton, 184 Pa. 468, 39 Atl. 
 
§ 843 ATTENDANCE AND EXAMINATION OF WITNESSES. 1071 
 
 hand, it may be proper to allow counsel to probe and test the cred- 
 ibility of the witness by calling for repetition of his answers and 
 by framing the questions in a variety of forms ; ^ while, in other 
 eases, it is equally proper for the court to prevent such repetition 
 and the needless waste of time.* As an illustration of the control 
 of the court over the mode of cross-examination, it is proper for 
 the court, if the witness shows a desire to evade the questions, to 
 prevent counsel from making frivolous objections in order to pre- 
 vent a rapid cross-examination.' 
 
 § 843 (838). Limitations on right of cross-examination. — ^We 
 have seen that broad latitude is generally given in the cross-ex- 
 amination of witnesses to the end that there may be a full inves- 
 tigation of the facts, and that the credibility of the witnesses may 
 be justly ascertained. There are certain other limitations not al- 
 ready mentioned. For example, it i& not permissible to put to the 
 witness a question which assumes that a material fact is proved, 
 when it is not, or that the witness has testified to things either on 
 direct or cross-examination, where in fact he has not.* Of course, 
 for still stronger reasons, this practice cannot be permitted on di- 
 rect examination." Again it is not permissible to introduce hearsay 
 testimony, even under the latitude allowed in cross-examination.' 
 But it has been held that, if a party allows his witness to volunteer 
 hearsay testimony, and does not ask to have the same stricken out, 
 
 404; Middlesex B. Co. v. Smith, 83 Fed. 133; McMahon v. Waterworks Co., 
 95 Wis. 640, 70 N. W. 8'29. See § 823 supra. 
 
 1 Beers v. Payment, 95 Mich. 261; Zucker v. Kareles, 88 Mich. 413; Au- 
 pora V. Hillmam, 90 111. 61, where it was held proper to allow repetition, 
 although the witness had said that he could not answer, Jones v. Stevens, 
 36 Neb. 849. 
 
 2 Hughes V. Ward, 38 Kan. 452; Gutsch v. Mcllhargey, 69 Mich. 377; 
 Jones V Stevens, 36 Neb. 849; Gulf Ry. Oo. v. Pool, 70 Tex. 713. 
 
 8 State V. Duncan, 116 Mo. 288. 
 
 * People V. Mather, 4 Wend. 229, 21 Am. Dec. 221; Sanderlin v. Sander- 
 lin, 24 Ga. 583; Haish v. Munday, 12 111. App. 539; People v. Graham, 
 21 Cal. 261; Rowland v. Oakland Consol. St. Ry. Co., 115 Cal. 487, 47 Pac. 
 255; Carpenter v. Ambrosam, 20 111. 170; Baltimore Ry. Co. v. Thompson, 
 10 Md. 76; People v. Pong Ah Sing, 70 Cal. 8; People v. O'Brien, 96 Mich. 
 630. Though it may not be ground for reversal, if the question is merely 
 Introductory in its nature, Magee v. State, 32 Ala. 575. As to the latitude 
 in examining experts, see § 389 supra. 
 
 Klock V. State, 60 Wis. 574, where the judgment was reversed on this 
 ground. See the cases above cited. 
 
 "Adams v. Brown, 16 Ohio St. 75; State v. Wyse, 33 S. C. 682; Pulllam 
 V. Canterell, 77 Ga. 563. 
 
1072 THE XjAw of evidence. § 843 
 
 he cannot complain of cross-examination concerning such state- 
 ments.' On the cross-examination, as a rule, the inquiry should 
 be limited to questions of fact, and the cross-examiner has no right 
 to complain if the court excludes questions calling for the opinions 
 of the witnesses as to questions of moral or legal obligations or the 
 liJce.' Nor is it permissible to ask a party on cross-examination, 
 what witnesses he intends to subpoena in the ease ; • nor does the 
 latitude of cross-examination permit the proof of written instru- 
 ments iy parol, for example, if a plaintiff in ejectment claims imder 
 a deed conveying metes and bounds, he cannot be asked, on cross- 
 examination, if he purchased by the acre.^' Counsel have no right 
 to inject into the cross-examination unfair insinuations upon the 
 conduct of the witness or comments upon his testimony, and the 
 court should not wait for objections before interfering with such 
 a practice.*^ It goes without saying that questions tending to insult, 
 abuse or intimidate the witness should not be permitted, and the 
 court is not required to wait for objections to such mode of inter- 
 rogation.^* 
 
 T Apple V. Commissioners of Marlon C3o., 127 Ind. 553; Valm T. MeKer- 
 reghan, 104 Mich. 213, 62 N. "W. 340. See also, Grimes v. Hill, 15 Colo. 359. 
 
 8 Com. V. Shaw, 4 Cusli. 594, 50 Am. Dec. 813; Ramadge v. Ryan, 9 Bing. 
 333; Blake v. Stump, 73 Md. 160, question as to law regarding usage. See 
 § 376 supra. 
 
 » Storm V. United States, 94 U. S. 76. 
 
 10 Bell V. Jamleson, 102 Mo. 71 ; O'Riley v. Clampet, 53 Minn. 539. See 
 also, Poss Schneider Brewing Co. v. McLaughlin, 5 Ind. App. 415. See 
 §§ 207, 208, 231 supra, 847 infra. 
 
 11 Sullivan v. Collins, 107 Wis. 291, 83 Wis. 310. 
 
 12 People V. Durrant, 116 Cal. 179, 48 Pac. 75; State v. Pxendlble, 166 ISo. 
 329. 65 a W. 559. 
 
CHAPTEE 22. 
 EXAMINATION OF "WITNESSES— CJontlnued. 
 
 § 844. Impeaduneat of wltiiesses, 
 
 845. Impeachment by proof of former oomtradictory statements and 
 
 cooaduct 
 
 846. Same — Laying foundation. 
 
 847. Contradictory written statements — ^Mode of procedure. 
 
 848. Same, continued — ^Dying declarations. 
 
 849. Denial of statements not necessary to admit contradiction. 
 
 850. Impeachment — ^Expressions of opinion — Of hostility. 
 
 851. Ordinary rules do not apply in case of parties. 
 
 852. Impeachment — ^Witness may explain on re-examlnatlon. 
 
 853. A party cannot impeach his own witness. 
 
 854. Same, continued. 
 
 855. Same — Statutes where adverse party Is called as witness. 
 
 856. Exceptions and qualifications of the rule. 
 
 857. Party not bound to accept testimony of his own witness as correct. 
 
 858. Same, continued. 
 
 S5Q. Reputation for veracity — Mode of impeachment. 
 
 860. Only general .reputation for truth and veracity admissible. 
 
 861. The view that the inquiry may relate to moral character generally. 
 
 862. Inquiry as to believing the witness under oath. 
 
 863. Effect of impeachment. ( 
 
 864. Cross-examination of impeaching witnesses. I 
 
 865. Sustaining am impeached witness — Laying foundation. 
 
 866. Same, continued. 
 
 867. Does a collateral attack admit sustaining testimony? 
 
 868. Proof of contradictory statements of witness does not permit evi- 
 
 dence of his good character. 
 
 869. Former statements of witness not admissible to corroborate him. 
 
 870. Qualifications of the rule. 
 
 871. Re-examination — Object of. 
 
 872. Same — Illustrations. 
 
 873. Same, continued. 
 
 874. Use of memoranda to refresh the memory of witnesses. 
 
 875. Same — ^When allowed. 
 
 876. Non-production of the memorandum — Cross examination. 
 
 877. Memoranda not made by the witness. 
 
 878. Copy used to refresh memory. 
 
 879. Must the memorandum be contemporaneous with the fact recorded. 
 
 880. Mode of using memoranda. 
 
 68 1073 
 
1074 THE LAW OF EVIDENCE. § 844 
 
 § 881. Use of memoranda when the witaess has no Independent recollec- 
 tion of the facts. 
 
 882. Further illustrations and decisions. 
 
 883. Other modes of refreshing memory — Use of memoranda as evidence. 
 
 884. Witnesses not compelled to criminate themselves. 
 
 885. Matters tending to criminate privileged. 
 
 886. Statement of witness claitaing privilege not conclusive. 
 
 887. Privilege extends to acLs as well as words — ^When to be claimed. 
 
 888. No privilege if testimony cannot be used to convict the witneas. 
 
 889. Same, continued. 
 
 890. Privilege — How claimed — How waived. 
 
 891. Effect of claiming privilege — Inferences. 
 
 892. Same — Penalties and forfeitures. 
 
 893. Objections and exceptions to evidence. 
 
 894. Same — Offer of evidence — ^Waiver of objections. 
 
 895. Withdrawing and striking out evidence. 
 
 896. Effect of improper admission and exclusion of evidences 
 
 897. Same, continued. 
 
 898. Weight of evidence — Positive and negative. 
 
 899. Same — Direct and circumstantial. 
 
 900. Number of witnesses. 
 
 901. Credibility of witnesses. 
 
 902. Same, continued. 
 
 903. Same, continued. 
 
 § 844 (847). Impeachment of witnesses. — ^In former sections, 
 we have seen that cross-examination is a common mode of determin- 
 ing the credibility, the means of knowledge and the degree of ac- 
 curacy of witnesses, and that it is a common mode of impeaching 
 witnesses to show, by cross-examination, their bias or interest, or 
 their peculiar relations to the parties, or their disparaged- character. 
 Witnesses, thus discredited, are sometimes said to be impeached. 
 There are also three other modes of impeaching the credit of a wit- 
 ness: (1) By disproving his statements, made in court, by the tes- 
 timony of other witnesses; (2) By proving statements of the wit- 
 ness, made out of court, inconsistent with or contradicting those 
 made by him on the witness stand; (3) By proving his general bad 
 character for veracity.^ The discussion of the first of these modes 
 of impeachment would only involve a repetition of those rules con- 
 cerning the relevancy and weight of testimony which are elsewhere 
 discussed. Under another head, we have discussed the rule that, in 
 
 I Greenl. Ev. § 461; Tayl. Ev. (10th Ed.) § 1470. On the general sub- 
 ject of the impeachment of witnesses, see notes, 15 Am. Dec. 99, 73 Am. 
 Dec. 762-777; 21 U R. A. 418-433; 82 Am. St Rep. 25-68 
 
§ 845 ATTENDANCE AND EXAMINATION OP WITNESSES. 1075 
 
 eontradicting the statements of a witness, only those statements can 
 be disproved which are material to the issue; and that, if the ad- 
 verse party calls out opinions on cross-examination, where they are 
 not proper, or other statements wholly collateral or immaterial to 
 the issue, he cannot reiut or contradict such matters.* 
 
 § 845 (848). Impeachment by proof of former contradictory 
 statements and conduct. — In former times, when the evidence of 
 witnesses was directly conflicting, it was the practice to direct that 
 the witnesses should be confronted; and an English author cites 
 an instance iu which four witnesses were placed together in a box 
 for this purpose.' Although this practice is still preserved in some 
 of the English courts,* it does not prevail in this country, and ju- 
 ries are deprived of the advantage of this direct comparison of the 
 demeanor of the witnesses. But there is hardly any more familiar 
 practice in judicial procedure than that of impeaching witnesses by 
 proof of their former statements which are inconsistent with their 
 present testimony. Since such attempted impeachment is a direct 
 attack upon the testimony of the witness, and may result in serious 
 consequences, it is important that the practice should be so regular 
 that the witness may have full opportunity to admit, deny or ex- 
 plain any statement which is thus assailed." The authorities, except 
 those in some of the New England states, are almost unanimous to 
 the effect that, before a witness can be impeached by proof that he 
 has made statements contradicting or differing from the testimony 
 given by him, a foundation must be laid by interrogating him as to 
 
 2 Elton V. Larkins, 5 Car. & P. 385; Kennett v. Bngel, 105 Mich. 693, 63 
 N. W. 1009; Braokett v. Weeks, 43 Me. 291; Carr v. "West End St. Ry. Co., 
 163 Mass. 360; Combs v. "Wincliester, 39 N. H. 13, 75 Am. Dec. 203; Car 
 penter v. Lingenfelter, 42 Neb. 728; Com. v. Mooney, 110 Mass. 99; Swan- 
 son V. French, 92 la. 695, 61 N. W. 407; Bearss v. C5opley, 10 N. Y. 93 
 Futch V. State, 90 Ga. 472; Patten v. People, 18 Mich. 314, 100 Am. Dec. 173 
 Denver Tramway Co. v. Owens, 20 Colo. 107; People v. Noneela, 99 Cal. 333 
 Carter v. State, 36 Neb. 481; People v. Murphy, 135 N. Y. 450; Ferguson v. 
 State, 72 Neb. 350, 100 N. W. 800; Drumm Flato Com. Co. v. Union Meat 
 Co. (Tex.), 77 S .W. 634; Madler v. Pozorski, 124 Wis. 477, 102 N. W. 892; 
 Barley v. Winn, 129 Wis. 291, 109 N. W. 633. For a discussion of this 
 subject, see §§ 827 et seg. supra. 
 
 sTayl. Ev. (10th Ed.) § 1478; Annesley v. Lord Anglesea, 17 How. St. 
 Tr. 1350. See notes, 73 Am. Dec. 762; 82 Am. St. Rep. 39. 
 
 *Enticknap v. Rice, 34 L. J. (Pr. & Mat) 110, 4 Swab. & T. 136. 
 
 s Queen's Case, 2 Brod. & B. 213; Brown v. Gillett, 33 Wash. 264, 74 
 Pac. 386. See also cases cited below. See valuable note, 21 Li. K. A., 428. 
 See also, § 852 infra. 
 
1076 THE LAW OF EVIDENCE. § 845 
 
 luhether he had made such statements. Mr. Stephen thus states the 
 rule of procedure in such cases. "Every witness under cross-ex- 
 amination 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 supposed statement being referred to suffi- 
 ciently to designate the particular occasion, and, if he does not dis- 
 tinctly admit that he has made such a statement, proof may be 
 given that he did in fact make it. " ° It has frequently been de- 
 clared that, in order to designate sufficiently the circumstances of the 
 statement, the witness should be asked as to the time, place and per- 
 sons involved in the contradiction.' Although the conduct of the 
 
 8 Steph. Ev. art. 131; The Cliarles Morgan, 115 U. S. 69; Ayers v. Watson, 
 132 U. S. 394; People v. Glover, 141 Cal. 233, 74 Pac. 745, by statute; O'Don- 
 nell V. Railway Co., 65 Neb. 612, 91 N. "W. 566; Oonrad v. Griffey, 16 How. 
 38; Hart v. Hudson Riv. Bridge Co., 84 N. Y. 56; Pittsburg Ry. Co. v. 
 Andrews, 39 Md. 329; Lawler v. McPheeters, 73 Ind. 577; Dufresne v. 
 Weise, 46 Wis. 290; State v. Grant, 79 Mo. 113; dole v. State, 6 Baxt. 
 (Tenn.) 239; People v. Ah Lee Doon, 97 Cal. 171; People v. Devlne, 44 Cal. 
 452; Horton v. Chiadboum, 31 Minn. 322; Glllyard v. State, 98 Ala. 59; 
 Sheppard v. Yocmn, 10 Ore. 402; State v. McLaughlin, 44 la. 82; Henderson 
 V. State, 70 Ala. 23, 45 Am. Rep. 72; Griffith v. State, 37 Ark. 324; Matthls 
 V. State, 33 Ga. 24; Wlnslow v. Newland, 45 111. 145; Waterman v. Cihicago 
 & A. Ry. Co., 82 Wis. 613, 52 N. W. 247; Keeley v. Layne, 29 Kan. 218; 
 State V. Johnson, 35 La. An. 871; Skelton v. Fenton Light Co., 100 Mich. 
 87; Smith v. People, 2 Mich. 415; State v. Patterson, 2 Ired. (N. C.) 346, 
 38 Am. Dec. 699; King v. Wicks, 20 Ohio, 87; State v. Glynn, 51 Vt. 577; State 
 V. Cleary, 40 Kan. 287; Wilson v. Wilson, 137 Pa. St. 269; Tobln v. Jones, 
 143 Mass. 448; State v. Deputy, 3 Pen. (Del.) 19, 50 Atl. 176; Blanchard 
 V. Blanchard, 191 111. 450, 61 N. E. 481; Horner v. Com. (Ky.), 41 S. W. 
 561; State v. Goodbler, 48 La. An. 770, 19 So. 755; Davis v. SUte, 51 Neb. 
 301, 70 N. W. 984; State v. Brown, 28 Or. 147, 41 Pac. 1042; Miller v. State, 
 106 Wis. 156, 81 N. W. 1020; Sheldon v. Bigelow, 118 la. 586, 92 N. W. 701. 
 See § 856, infra. B\)undation not necessary, Vllleneuve v. Railway Co., 73 
 N. H. 250, 60 Atl. 748. 
 
 'Angus V. Smith, 1 Moody & M. 473; Kimball v. Davis, 19 Wend. 437: 
 Hart V. Hudson Riv. Bridge Co., 84 N. Y. 56; Pendleton v. Empire Dress- 
 ing Co., 19 N. Y. 13; Mattox v. United States, 156 U. S. 237; People v. 
 Devine, 44 Cal. 452; State v. Jones, 44 La. An. 960; Chicago, M. & St. 
 P. Ry. Co. V. Artery, 137 U. S. 507; Sieber v. Amunson, 78 Wis. 679; 
 Koehler v. Buhl, 94 Mich, 496; Hunter v. Gibbs, 79 Wis. 70; Com. v. Smith, 
 163 Mass. 411; Aneals v. People, 134 111. 401; Hooper v. Browning, 19 Neb. 
 420; Whltaker v. State, 79 Ga. ?7; Sinkler v. Slljan, 136 Cal. 356, 68 Pac. 
 1024, by statute; Brown v. State (Fla.), 35 So. 82; Helfrlch L. & M. 
 Co. V. Bland (Ky.), 54 S .W. 728, by statute; Peterson v. State, 83 Md. 
 
§ 846 ATTENDANCE AND EXAMINATION OF WITNESSES. 1077 
 
 witness as to matters having no connection with the case is gen- 
 erally irrelevant, it is allowable to ask the witness on cross-exam- 
 ination, not only concerning his contradictory statements, but con- 
 cerning his actions, if they have been inconsistent with his state- 
 ments on the witness stand.^ 
 
 § 846 (849). Same — Laying foundation. — ^Although the atten- 
 tion of the witness should be called to the time of the alleged state- 
 ment, exact precision in this regard is not necessary. It suffices, 
 if there is reasonable certainty, or if it is clear that the attention 
 of the witness is called to ihe conversation in such manner that it 
 is identified by him ; * and, if the circumstances stated in the ques- 
 tion are such as to describe the occasion with reasonable certainty, 
 a variance as to the time is immaterial.^" On the same principle, 
 
 194, 34 Atl. 834; State v. Parker, 96 Mo. 393, 9 S. W. 728; Wood River 
 Bank v. Kelley, 29 Neb. 597, 46 N. W. 86; Hanscom v. Burmood, 35 
 Neb. 506, 53 N. "W. 371; Zimmerman v. Bank, 59 Neb. 23, 80 N. W. 
 54; State v. Ellswortli, 30 Ore. 145, 47 Pac. 199; State v. Hughes, 8 
 S. D. 338, 66 N. W. 1076; Miller v. State, 106 Wis. 156, 81 N. W. 1020; 
 Strudgeon v. Sand Beach, 107 Mich. 496, 65 N. W. 616; Clinton v. State 
 (Fla.), 43 So. 312; State v. Marks, 70 S. C. 448, 50 S. B. 14. In a 
 few states, however, the prevailing rule has not been adopted, New 
 Portland v. Kingfleld, 55 Me. 172; Blake v. Stoddard, 107 Mass. Ill; Nute 
 V. Nute, 41 N. H. 60. While, in a few other states, it Is held to rest in thel 
 discretion of the court, Hedge v. Clapp, 32 Conn. 262, 58 Am. Dec. 424; 
 Walden v. Finch, 70 Pa. St. 460; Cronkrite v. Trexler, 187 Pa. 100, 41 Atl. 
 22. It was held in Nebraska that, if counsel failed to object to She ques- 
 tion, the jury might consider such evidence and base their verdict on it, 
 if sufficient. Cool v. Roche, 20 Neb. 550, 31 N. W. 367. 
 
 sYeaw v. Williams, 15 R. I. 20; Miller v. Smith, 112 Mass. 470; State v. 
 Lurch, 12 Or. 104; New Gloucester v. Bridgham, 28 Me. 60; Lewis v. 
 Boston Gaslight Co., 165 Mass. 411, 43 N. E. 178; Hyland v. Mllner, 99 
 Ind. 308; Markel v. Moridy, 13 Neb. 322; Foster v. Worthing, 146 Mass. 607, 
 16 N. B. 572; Alward v. Oake, 63 Minn. 190, 65 N. W. 270. As to opinions, 
 see § 850, infra. Omission to state facts, Miller v. State, 97 Ga. 653, 26 
 S. B. 366; Barrett v. Railway Co., 157 N. Y. 663, 52 N. E. 659. 
 
 estate V. Jones, 44 La. An. 960; Granning v. Swenson, 49 Minn. 381; 
 Young v. Brady, 94 Cal. 128; McCulloch v. Dobson, 133 N. Y. 114; Union 
 Parish v. Trimble, 33 La. An. 1073; Wood River Bank v. Kelley, 29 Neb. 
 590; Olsen v. Oregon Short Line, 24 Utah, 460, 68 Pac. 148; Hunter v. 
 Gibbs, 79 Wis. 70; Southern Ry. Co. v. Williams, 113 Ala. 620, 21 So 328; 
 State V. Ellsworth, 30 Or. 145, 47 Pac. 199. See also, Sieber v. Amunson, 
 78 Wis. 679; State v. Walters, 7 Wash. 246. It has been held sufficient 
 to name the month of a given year, Bennett v. O'Bryne, 23 Ind. 604; Evans- 
 vllle Ry. Co. v. Montgomery, 85 Ind. 494; Meyer v. Appel, 13 111. App. 87. 
 
 10 Nelson v. Iverson, 24 Ala. 9, 60 Am. Dec. 442, where the time was desig- 
 
1078 THE LAW OF EVIDENCE. § 846 
 
 if the question designates the person or the place with reasonable 
 certainty, it is sufficient. ^^ It is not necessary, in laying the found- 
 ation, to give the exact language of the alleged statement; the 
 substance is sufficient; ^^ and the form in which the question should 
 be stated rests somewhat in the discretion of the court.^^ But the 
 witness must be asked if he has made the statement alleged,'* and 
 he should answer categorically, but should, of course, be allowed to 
 explain when re-examined.'" It is the practice, which generally 
 prevails, to ask the impeaching witness the direct question in lead- 
 ing form, whether the other witness used the language attributed 
 to him.'" But it has been held in other cases that the impeaehiag 
 witness should first be left to exhaust his memory on the subject 
 without the aid of leading questions, in order that the jury may 
 see how far he answers from memory and how far from the ques- 
 tion."' In view of the rules and illustrations already given, it is 
 hardly necessary to add that no foundation is laid for impeach- 
 ment of this kind 6y mere general questions, such as by asking the 
 witness if he has made given statements, without thus designating 
 the occasion ; '^ and declarations, to which the attention of the wit- 
 
 nated as in the spring of a given year, when it was in fact in February; Law- 
 lerv. McPheeters, 73 Ind. 577; Brown v. State, 72 Md. 468; Brown v. State 
 (Fla.), 35 So. 82; State v. Crook (N. C), 45 S. E. 564; Com. v. Smith, 163 
 Mass. 411, 40 N. E. 189, hy statute; State v. Welch, 33 Ore. 33, 54 Pac. 213; 
 Hansoom v. Burmood, 35 Neb. 504; Bonelli v. Bowen, 70 Miss. 142; Bx)ck- 
 well V. Brown, 36 N. Y. 207. 
 
 11 Gross V. State, 11 Tex. App. 364, where the designation was the exam 
 ining trial in this cause." See also the cases above cited. 
 
 12 Nelson v. Iverson, 24 Ala. 9, 60 Am. Dec. 442; Armstrong v. Hufi- 
 stutler, 19 Ala. 51; Gould v. Norfolk Lead Co., 9 Cush. 338, 57 Am. Dec. 
 50; Donahoo v. Scott (Tex.), 30 S. W. 385; Wysocki v. Wis. Lakes Ice & 
 C. Co., 121 Wis. 96, 98 N. W. 950. 
 
 13 Sloan V. New York Cent. Ry. Co., 45 N. Y. 125; State v. Glynn, 51 
 Vt. 579. 
 , 14 Welch V. Abbott, 72 Wis. 512; Boeker v. Hess, 34 111. App. 332. 
 
 10 Higgins v. Carlton, 28 Md. 115, 92 Am. Dec. G66 ; Baker v. Joseph, 16 
 Cal. 173; Hooper v. Browning, 19 Neb. 420; Whitaker v. State, 79 Ga. 87. 
 
 18 Bressler v. People, 117 111. 422. 
 
 17 Farmers Ins. Co. v. Bair, 87 Pa. St. 124; People v. Ah Yute, 60 Cal. 
 95; Hinton v. Cream City Ry. Co., 65 Wis. 323. See § 818 supra. 
 
 18 Hallett V. Cousens, 2 Moody & Rob. 238 ; Allen v. State, 28 Ga. 395, 73 
 Am. Dec 760; Wood v. State, 31 Fla. 221, where it was held not to be error 
 to refuse to permit a leading question; Parkenson v. Bemis, 153 Mass. 280, 
 where it was held harmless error to allow a general question as to the 
 conversation in issue. 
 
§ 846 ATTENDANCE AND EXAMINATION OF WITNESSES. 1079 
 
 ness has not been called, cannot be received in evidence.^' Of 
 course, the failure to lay a foundation for impeachment may be 
 waived by failing to make objection in proper form.^° The princi- 
 ple under discussion applies where the alleged contradictory state- 
 ments were made under oath at some other trial, as the same reason 
 exists for allowing the witness an opportunity to explain.^' So 
 these contradictory statements are admissible, although made after 
 the occurrence which is the subject matter of the suit.^^ The gen- 
 eral rule also applies where the witness whose testimony is attached 
 is deceased or absent. Thus, where the testimony given on a former 
 trial by a witness, since deceased, is read to the jury, it is incompe- 
 tent to show that such witness had stated, since the trial, that such 
 testimony was untrile.^' Witnesses are often recalled iy the cross- 
 examiner after they have left the stand in order to lay the proper 
 foundation for impeachment and this is permitted within the dis- 
 cretion of the court.^* 
 
 19 Standard Oil Co. v. Van Etten, 107 XJ. S. 325; State v. Klnley, 43 la 
 294. See also oases cited above. Only such part of the testimony given 
 at a former trial as has been called to the witnesses' attention can bo re- 
 ceived in evidence. Union S. Nat. Bank. v. Simmons (N. J. Bq.), 42 
 Atl. 489. 
 
 zoMcCulloch V. Dobson, 133 N. Y. 114; Hanscom v. Burmood, 35 Neb. 
 504, 53 N. W. 371; Union S. N. Bank v.' Simmons (N. J Eq.), 42 Atl. 489. 
 See also Bonelli v. Bo wen, 70 Miss. 142; Quincy Horse Ry. Co. v. G-nuse, 137 
 111. 264; Jackson v. Swope, 134 Ind. 111. 
 
 21 People V Devine, 44 Cd,l. 452; People v. Jackson, 3 Park. Cr. (N. T.) 
 590; Cool V. Roche, 20 Neb. 550. 
 
 22 Taylor v. Morgan, 61 Ga. 46; Ray v. Bell, 24 111. 444; State v. Ost- 
 lander, 18 la. 435; Wacha v. Brown, 78 la. 432; Rnnyan v. Price, .15 Ohio St. 
 1, 86 Am. Dec. 459, where the witness was deceased and the rule was 
 applied. 
 
 23 Craft V. Com., 81 Ky. 250, 50 Am. Rep. 160; Runyan v. Price, 15 Ohio 
 St. 1, 86 Am. Dec. 459; Eppert v. Hall, 133 Ind. 417; Pruitt v. State, 92 
 Ala. 41; People v. Compton, 132 Cal. 484, 64 Pac. 849; Sharp v. Hicks, 
 94 Ga. 624, 21 S. B. 208; Ayers v. Watson, 132 U. S. 394. The same Is 
 true where witness has become insane, Stewart v. State (Tex.), 26 S. W. 
 203. See valuable note, 21 L. R. A, 426. See § 853 infra. 
 
 24 Richmond & D. R. Co. v. Vance, 93 Ala. 144, 9 So. 574, 30 Am. St. Rep. 
 41; People v. Shaw, 111 Cal. 171, 43 Pac 593; Bryan v. State (Fla.), 34 
 So. 243; State v. Goodbler, 48 Da. An. 770, 19 So. 755; State v. Brown 
 (La.), 35 So. 818; Crawlelgh v. Railway Co., 28 Tex. Civ. App. 260, 67 S. 
 W. 140; State v. Hurst, 23 Mont. 484, 59 Pac. 911; Aneals v. People, 134 
 111. 401, 25 N. E. 1022; Savage v. Bowen, 103 Va. 540, 49 S. E. 668; Ashton 
 V. Ashton, 11 S. D. 610, 79 N. W. 1001. See also, Cooper v. Hayward, 
 79 Minn. 23, 81 N. W. 514. See J 852, infra. 
 
1080 THE LAW OF EVIDENCE. § 847 
 
 § 847 (850). Contradictory written statements — ^Mode of pro- 
 cedure. — "Witnesses may be impeached by producing their writ- 
 ten statements, for example, their letters, affidavits, depositions or 
 the like, which are inconsistent with the testimony given at the 
 trial."" Thus, where the witness testified that the plaintiff had 
 been discharged from service for neglect of duty, a letter of the wit- 
 ness stating that the plaintiff had performed efficient service was 
 held admissible."" But the witness cannot, in the first instance, be 
 asked as to the contents of what he has thus written, since this 
 would be a violation of the familiar rule as to iest evidence. This is 
 the rule maintained in nearly all jurisdictions in this country and 
 in many states is declared by statute."' If the question is asked 
 whether the witness had made certain representations, his counsel 
 has the right to ascertain whether the representation or statement 
 was written or oral, and, if it appears to have been in writing, the 
 paper should he produced before he is compelled to answer."* The 
 
 26 Floyd V. Thomas, 108 N. C. 93, answer in another case; Com. v. Snee, 
 145 Mass. 351, verified complaint; Tabor v. Judd, 62 N. H. 288, letter; 
 Hosmer v. Groat, 143 Mass. 16, letter; Bellows v. Sowles, 59 Vt. 63, petition 
 for a new trial; Miller v. Detroit United Ry., 144 Mich. 1, 107 N. W. 714; 
 Hanlon v. Ehrlch, 178 N. Y. 474, 71 N. E. 12. But in Terry v. Shlvely, 
 93 Ind. 413, the bill of exceptions in another case was not allowed, the 
 witness not being a party. See notes 73 Am. Dec. 770; 82 Am. St. Rep. 46. 
 
 28 Western Ins. Oo. v. Boughton, 136 111. 317; People v. Oassidey, 14 
 N. Y. S. 349. 
 
 27 The Charles Morgan, 115 U. S. 69; Chicago, M. & St. P. Ry. Oo. v. 
 Artery, 137 U. S. 507; Cropsey v. Averill, 8 Neb. 151; Bellinger v. People, 
 8 Wend. 595; RIdhmond v. Sundberg, 77 la. 255; People v. Ching Hing 
 Chang, 74 Cal. S89; Gunter v. State, 83 Ala. 96; Gaffney v. People, 50 N. 
 Y. 416; Horton v. Chadbourn, 31 Minn. 322; Momence Stone Co. v. Groves, 
 197 111. 88, 64 N. B. 335; Hendrickson v. Com. (Ky.), 64 S. W. 954; Maxted 
 V. Fowler, 94 Mich. 106, 53 N. W. 921; O'Rlley v. Clampert, 53 Minn. 539, 
 55 N. W. 740. In England this rule has been changed by statute, Steph. 
 Ev. art. 132; 17 & 18 Vict. ch. 125 § 24; 28 Vict. ch. 18 § 5. See § 231 
 supra, as to the best evidence of a writing. 
 
 28 Queen's Case, 2 Brod. & B. 292; State v. Callegarl, 41 La. An. 578; 
 Auger Steel Axle & G. Co. v. Whittier, 117 Mass. 451; Dunbar v. McGill, 
 69 Mich. 297; Gregory v. Morris, 96 U. S. 619; GafCney v. People, 50 N. 
 Y. 416, 1 Greenl. Bv. § 463. So a party may object, though a witness does 
 not, to a question whether the latter had made certain statements in an 
 affidavit, which was not produced, Newcomb v. Griswold, 24 N. Y. 301; 
 Sainthill v. Bound, 4 Esp. 74. See also, Ridley v. Gyde, 1 Moody & Rob. 
 197. A witness should be shown a will, when asked to testify as to al- 
 terations therein, Brown v. Hughes, 1 Fost. & F. 299; Glenn v. Gleason, 
 61 la. 28. 
 
§ 847 ATTENDANCE AND EXAMINATION OF WITNESSES. 1081 
 
 witness should be allowed to examine the letter or other writing, and 
 be asked if it was written or authorized by him.^* The practice is 
 thus stated by Professor Greenleaf : "But it is not required that the 
 whole paper should be shown to the witness. Two or three lines 
 only of a letter may be exhibited to him, and he may be asked 
 whether he wrote the part exhibited. If he denies or does not ad- 
 mit that he wrote that part, he cannot be examined as to the con- 
 tents of such letter, for the reason already given ; nor is the oppo- 
 site counsel entitled, in that case, to look at the paper. And, if he 
 admits the letter to be his writing, he cannot be asked whether state- 
 ments, such as the counsel may suggest, are contained in it, but 
 the whole letter must be read, as the only competent evidence of 
 that fact." '* The same author thus states the practice in case the 
 paper in question is lost: "In such ease, it would seem that reg- 
 ularly the proof of the loss of the paper should first be offered, 
 and that then the witness may be cross-examined as to the 
 contents, after which he may be contradicted by secondary evi- 
 dence of the contents of the paper. But where this course would 
 be likely to occeision inconvenience by disturbing the regular prog- 
 ress of the cause and distracting the attention, it will always be in 
 the power of the judge, in his discretion, to prevent this incon- 
 venience by postponing the examination, as to this point, to some 
 other stage of the cause." *^ If the authenticity of the writing is 
 admitted, the cross-examining party may introduce the same in 
 evidence at the proper time, which is after the opening of his own 
 proofs.'^ The other party has no right to insist that the writing 
 
 20 Peck V. Parohen, 52 la. 46; Cooper v. State, 90 Ala. 641; Perishable 
 Freight Cb. v. O'Neill, 41 111. App. 423; Hammond v. Dike, 42 Minn. 273; 
 Maxted v. Fowler, 94 Mlcli. 106, 53 N. W. 921; Omalia L. & T. Oo. v. 
 Douglas Co., 62 Neb. 1, 86 N. W. 936; Illinois Central R. Co. v. Wade, 
 206 111. 523, 69 N. E. 565. See also cases last cited. 
 
 soCreenl. Ev. § 463; Queen's Case, 2 Brod. & B. 288; Llgbtfoot v. People, 
 16 Mldh. 507; "Wills v. State, 74 Ala. 21; Hanlon v. Ebrlch, 178 N. Y. 474, 
 71 N. E. 12. But see, Glenn v. Gleason, 61 la. 28. 
 
 siGreenl. Ev. § 464; McDonnell v. Evans, 16 Jur. 103; Horton v. Chad- 
 bourn, 31 Minn. 322. 
 
 szRomertze v. East River Bank, 49 N. Y. 577. Where the paper was 
 read in the presence of the jury its exclusion Is not prejudicial error, 
 Chicago & E. 111. R. Co. v. Crose, 214 111. 602, 73 N. E. 865, 105 Am. St 
 Rep. 135. If not admitted its genuineness must be proved before it can 
 be received, Omaha, L. & T. Co. v. Douglas Co., 62 Neb. 1, 86 N. W. 936. 
 An Impeaching letter or statement may be introduced without examining 
 the witness as to its contents, State v. Stein, 79 MJo. 330. 
 
1082 THE LAW OF EVIDENCE. § 848 
 
 shall be offered in evidence during the examination of the witness, 
 in order that he may then explain, although, in the discretion of 
 the court, this may be permitted.^^ In the discretion of the 
 court, the cross-examiner may, at the time of producing the 
 writing, offer it in evidence as a part of his own case.'* It is not 
 necessary to call the attention of the witness to the particular pas- 
 sages in the writing which are to be introduced in evidence, nor 
 to examine him as to its contents; '° nor is it necessary, when the 
 writing is admitted by the witness, to call as a Tvitness the person 
 to whom the statement is made.'" "All the law requires is that the 
 memory of the witness shall be so refreshed by the necessary in- 
 quiries as to enable him to explain, if he can and desires to do so ; 
 whether this has been done is for the court to determine before the 
 impeaching evidence is admitted."*' A witness may, however, be 
 cross-examined as to the contents of a writing which is merely in- 
 cidental and collateral to the issue, and which does not affect the 
 merits of the controversy between the parties, for the purpose of 
 testing his credibility, although no notice to produce the paper has 
 been given.''^ It is a common practice and no violation of the rule 
 to ask a witness whether he testified to a given statement at an- 
 other trial, without producing the record of such trial.'° But a 
 much stricter rule is held in some states.*" 
 
 § 848 (851). Same, continued — Dying declarations. — Although 
 it has sometimes been held in the case of depositions that it is un- 
 necessary to caU the attention of the witness to such a deposition, 
 and that it is sufficient to prove its authenticity,*^ yet, by the 
 
 ssRomertze v. East River Bank, 49 N. T. 577; Hammond v. Dike, 42 
 Minn. 273. 
 
 siRomertze v. East River Bank, 49 N.' Y. 577; Greenl. Ev. § 463. 
 
 SB The Charles Morgan, 115 U. S. 69; Romertze v. East River Bank, 49 
 N. Y. 577; State v. Stein, 79 Mo. 330. 
 
 36 Chicago, M. & St. P. Ry. Co. y. Artery, 137 U. S. 507. 
 
 87 The Charles Morgan, 115 U. S. 69. 
 
 38 Klein v. Russell, 19 Wall. 433; Toplitz v. Hedden, 146 U. S. 252. 
 
 39 Sanders v. State, 105 Ala. 4, 16 So. 935; Taylor v. State, 110 Ga. 150, 
 35 S. E. 161; Toplitz v. Hedden, 146 TJ. S. 254. Same as to testimony taken 
 before coroner's Inquest; State v. Young, 99 Mo. 666, 12 S. W. 879, 
 
 *o People v. Dillwood (Cal.), 39 Pac. 438; Simmons v. State, 32 Pla. 387, 13 
 So. 896; Bellinger v. People, 8 Wend. 595. 
 
 *i Bryan v. Walton, 14 Ga. 185; Molyneaux v. Collier, 30 Ga. 731; Bcker 
 V. McAllister, 45 Md. 290; Clapp v. Wilson, 5 Den. 285; Walden v. Finch, 
 70 Pa. 463; McKlnney v. Neal, 1 McLean (U. S.) 540; Downer v. Dana, 
 19 Vt 346. See note, 73 Am. Dec. 767. 
 
§ 848 ATTENDANCE AND EXAMINATION OP WITNESSES. 1083 
 
 weight of authority and on principle, the witness should have his 
 attention called to the alleged contradictory statements, whether 
 oral or written, in order that he may have the opportunity to ex- 
 plain.*^ ' An exception to the general rule has been allowed in the 
 case of dying declarations. Since they are admitted on the ground 
 of necessity, proof of contradictory or inconsistent statements of 
 the deceased may be admitted on the same ground without laying 
 any foundation therefor.*' A similar exception has been declared 
 as to the declarations of attesting witnesses.^* If there are two 
 depositions hy the same witness in the same action, his attention 
 should be called in the second action to the statements made in the 
 other, in order to lay a foundation for impeachment.*" If the wit- 
 ness is dead and there has been no foundation laid, his statements 
 cannot be impeached by showing his contradictory statements or 
 depositions. Said Mr. Justice Miller: "While the courts have 
 been somewhat liberal in giving the opposing party an opportunity 
 to present to the witness the matter in which they propose to con- 
 tradict him, even going so far as to permit him to be recalled and 
 cross-examined on that subject after he has left the stand, it is 
 believed that, in no case, has any court deliberately held that, after 
 the witness's testimony has been taken, committed to writing and 
 used in court, and, by his death, he is placed beyond the reach of 
 any power of explanation, then, in another trial, such contradic- 
 tory declarations, whether by deposition or otherwise, can be used 
 to impeach his testimony." *" Although part of a statement, depo- 
 ts The CSharles Morgan, 115 U. S. 69; Ryan v. People, 21 C!olo. 119, 40 
 Pac. 775; State v. Wiggins, 50 La. An. 330, 23 So. 334; People v. Compton, 
 132 Cal. 484, 64 Pac. 849; People v. Witty, 138 Cal. 576, 72 Pac. 177; Ham- 
 mond V. Dike, 42 Minn. 273, 44 N. W. 61, 18 Am. St. Rep. 503; Romertze 
 V. East River Bank, 49 N. Y. 577; Bradford v. Barclay, 39 Ala. 33; Ryan 
 V. People, 21 Colo. 119, 40 Pac. 775; Hughes v. Wilkinson, 35 Ala. 453; 
 Greer v. Higgins, 20 Kan. 420; Johnson v. Chicago Ry. Co., 58 la. 348; Unis 
 V. Charlton, 12 Gratt. (Va.) 484; Richmond v. Su«dberg, 77 la. 255; People 
 V. Lee Chuck, 78 Cal. 317, in this last case it was so held, where the state- 
 ments on a former trial had been reduced to writing. The same rule was 
 adopted in Kennedy v. State, 85 Ala. 326. 
 
 43 People V. Amaya, 134 Cal. 531, 66 Pac. 794; Dunn v. People, 172 IlL 
 582, 50 N. B. 137; Green v. State, 154 Ind. 655, 57 N. E. 637; State v. 
 Shaffer, 23 Or. 555, 32 Pac. 545; Morelock v. State, 90 Tenn. 528, 18 S. 
 W. 258; Carver v. U. S., 164 U. S. 694. Contra, State v. Taylor, 56 S. C. 
 360, 34 S. E. 939. 
 4* Harden v. Hays, 9 Pa. St 151. 
 46 Samuels v. GrifBth, 13 la. 103. See § 846 supra. 
 4«Ayers v. Watson, 132 V. S. 404; Miattrox v. United States, 156 U. S. 
 
1084 THE LAW OF EVIDENCE. § 849 
 
 sition, or other writing may be received for the purpose of im- 
 [luaehing the witness, of course, those other parts which tend to ex- 
 plain inconsistenciea or remove discrepancies should also be re- 
 ceived if offered/' 
 
 § 849 (852). Denial of statements not necessary to admit con- 
 tradiction. — ^It is not necessary, in order to admit the impeaching 
 statements, that the witness should deny having made them.*' If 
 he does not remember having made the statements and will neither 
 admit nor deny having done so, the foundation is sufficiently laid, 
 after the occasion and circumstances are designated as already 
 pointed out.*^ Unless the witness distinctly admits having made 
 the statements imputed to him, the testimony should be received, 
 if the proper foundation is laid; otherwise the witness, on the pre- 
 tence of a failure of memory, might escape deserved exposure."" 
 It is generally held that if there is a distinct admission there is no 
 
 237; State v. Jolmsoii, 35 La. An. 871; Runyan v. Price, 15 Ohio St. 1, 86 
 Am. Dec. 459; Craft v. Com., 81 Ky. 250, 50 Am. Rep. 160. But see Pat 
 terson v. Dushane, 137 Pa. St. 23, where statements of a deceased witness, 
 made subsequent to and contradicting a deposition, were received In evi- 
 dence. 
 
 « Dunhar v. McGill, 69 Mich. 297, whole statement received; Emery v. 
 State, 92 Wis. 146, 65 N. W. 848; Lowe v. State, 97 Ga. 792, 25 S. E. 676; 
 Wilkinson v. Bilers, 114 Mo. 245, 21 S. W. 514; State v. Jackson, 9 Mont 
 518, 24 Pac. 213, by statute; Huntley v Terr., 7 Okl. 60, 54 Pac. 314; State v. 
 Saidell, 70 N. H. 174, 46 Atl. 1083, 85 Am. St. Rep. 627. 
 
 48 Crowley v. Page, 7 Car. & P. 789. See also cases cited below. But 
 such Impeaching testimony was not allowed, where the witness said that 
 his statement bad practically amounted to the same thing. State v. Bald- 
 win, 36 Kan. 1. 
 
 4» Payne v. State, 60 Ala. 80; Jones v. People, 2 Colo. 351; Billings v. 
 State, 52 Ark. 303; Sealy v. States 1 Ga. 213, 44 Am. Dec. 641; State v. 
 Sullivan, 43 S. C. 205; Meyncke v. State, 68 Ind. 401; Smith v. People, 
 2 Mich. 415; Nute v. Nute, 41 N. H. 60; Gregg v. Jamison, 55 Pa. St 468; 
 People V. Jackson, 3 Park. Cr. (N. Y.) 590; Ray v. Bell, 24 111. 444; Lewis 
 v. State, 4 Kan. 296; Chapman v. Coffin, 14 Gray, 454; Henson v. State, 
 120 Ala. 316, 25 So. 23; SUte v. Johnson, 47 La. An. 1225, 17 So. 789; 
 Pringle v. Miller, 111 Mich. 663, 70 N. W. 345; State v. Deal. 41 Or. 437, 
 70 Pac. 532; State v. Kelley, 46 S. C. 55, 24 S. E. 60; Sheldon v. Bigelow, 
 118 la. 586, 92 N. W. 701; State v. Haworth, 20 Utah, 398, 68 Pac. 155; 
 Janeway v. State, 1 Head (Tenn.) 130; Heddles v. Chicago & N. W. Ry. 
 Co., 74 Wis. 239. But in a few states this rule Is not approved, Wiggins 
 V. Holman, 5 Ind. 502; McVey v. Blair, 7 Ind. 590; State v. Reed, 60 Me. 
 550; Robinson v. Pitzer, 3 W. Va. 335; Levy v. State, 28 Tex. App. 203; 
 Billings v. State, 52 Ark. 303. 
 
 °o See § 845 supra. See also the cases above cited. 
 
§ 850 ATTENDANCE AND EXAMINATION OP WITNESSES. 1085 
 
 reason for further proof on the subject; and none should be re- 
 ceived."^ It is not necessary that a direct contradiction should be 
 proved in such cases. If there is inconsistency or conflict between 
 the statements in any material respect, it is for the jury to deter- 
 mine the effect of such inconsistency upon the credit of the wit- 
 ness."^ The testimony of the impeaching witness is admissible al- 
 though he is not able to state all of the conversation ; he may state 
 the inconsistent part."^ Nor is it proper to charge the jury that 
 the former statement of the witness should not affect his credit, 
 unless they believe it to have been intentionally false."* 
 
 § 850 (853). Impeachment — Expressions of opinion — Of hostU- 
 ity. — The question has often arisen whether a witness can be im- 
 peached as to specific facts stated in his testimony by proof of his 
 general expressions of opinion as to the merits of the ease or the 
 parties. No fixed rule can be declared, and although such expres- 
 sions of opinion are often rejected,"" yet in other instances where 
 the opinion expressed seems inconsistent with the belief of the 
 witness in the truth of his testimony they may be received."' Of 
 course, if it is a proper subject for opinion evidence, a witness who 
 expresses opinions may be impeached after the proper foundation 
 is laid by proof that he has formerly expressed opinions inconsis- 
 tent with his testimony."'' "We have seen that witnesses may be 
 
 wLIghtfoot V. People, 16 Mich. 507; State v. Tickle, 13 Nev. 502; Swift 
 V. Madden, 165 111. 41, 45 N. E. 979; State v. Goodbler, 48 La. An. 770, 19 
 So. 755; Barnard v. State (Tex. Cr. App.), 73 S. W. 957. 
 
 52 Tinklepaugh v. Rounds, 24 Minn. 298; Seller v. Jenkins, 97 Ind. 430; 
 Smith V. State, 92 Ala. 69. 
 
 53 Edwards v. Sullivan, 58 Ired. (N. C.) 302. 
 Si Craig v. Rohrer, 63 111. 325. 
 
 56 Myers v. State, 43 Fla. 500, 31 So. 275; Ross v. Oom. (Ky.), 55 a W. 
 4; State v. Davidson, 9 S. D. 64, 70 N. W. 8T9; Schell v. Plumb, 55 N. T. 
 599; Saunders v. Ry. Co., 99 Tenn. 130, 41 S. W. 1031; Kirk v. State (Tex. 
 Or. App.), 89 S. W. 1067; Vann v. State, 45 Tex. Cr. 434, 77 S. W. 813, 
 108 Am. St. Rep. 961. 
 
 56 Central of Ga. Ry. Co. v. Tramwell, 114 Ga. 312, 40 S. B. 259; Stevens v. 
 Leonard, 154 Ind. 67, 56 N. E. 27, 77 Am. St. Rep. 446; Franklin v. Com., 105 
 Ky. 237, 48 S. W. 986; Whipple v. Rich, 180 Mass, 477, 53 N. E. 5; McClel- 
 lan V. P. W. & B. L. Ry. Co., 105 Mich. 101, 62 N. W. 1025; Lowe v. State, 
 118 Wis. 641, 96 N. W. 417; State v. Hogan, 117 La. 863, 42 So. 352. 
 
 sTRipon V. Bittel, 30 Wis. 614; Waterman v. Chicago & A. Ry. Co., 82 
 Wis. 613; Daniels v. Conrad, 4 Leigh (Va.), 401; Sanderson v. Nashua, 44 
 N. H. 492; Dalton's Appeal, 59 Mich. 352; San Diego Land Co. v. Neale, 88 
 Cal. 50, as to questions of value; Staser v. Hogan, 120 Ind. 207, as to 
 sanity of a testator; Liddle v. Bank, 158 Mass. 15, 32 N. E. 954. See 
 
1086 THE LAW OP EVIDENCE. § 851 
 
 fully cross-examined to ascertain whether they are impartial, and 
 that their statements in that regard are subject to contradiction.^' 
 It is generally held that, in order to admit proof that the witness 
 has made declarations or performed acts showing his hostility to- 
 ward one of the parties or his bias in the action, the foundation 
 should he laid by calling the attention of the witness to such state- 
 ments or acts on his cross-examination, so that he may have an op- 
 portunity for explanation.^' In an action where the impeaching 
 question was objected to as too indefinite to lay a proper foundation, 
 and counsel stated that he did not propose to impeach the witness, 
 and the objection was sustained, it was held that the disclaimer in 
 its general form was broad enough to cover every form of impeach- 
 ing the credit of the witness, and that it could not be narrowed in 
 the appellate court."" 
 
 § 851 (854). Ordinary rules do not apply in case of parties. — 
 Of course; the statements of a party, made out of court, are admit- 
 ted upon a wholly different principle from that which govern the 
 declarations we have been considering. Such statements are ad- 
 missions and independent testimony; and no foundation is nec- 
 essary for their introduction as evidence.*"^ In such a case, the 
 
 also, Coch-ran v. Amsden, 104 Ind. 282; Lane v. Bryant, 9 Gray, 245, 69 Am. 
 Dec. 282; HubbeU v. Bissell, 2 Allen, 196. See § 389 supra. 
 
 68 See §§ 828 et seq. supra. See also note 82 Am. Se. Rep. 52. 
 
 60 Baker v. Joseph, 16 Cal. 173; Edwards v. Sullivan, 8 Ired. (N. C.) 30?; 
 State V. Stewart, 11 Or. 52; Booker v. State, 4 Tex. App. 564; Blancliard v. 
 Blanchard, 191 111. 450, 61 N. B. 481; Horner v. Com. (Ky.), 41 S. W. 561; 
 State V. Goodbler, 48 La. An. 770, 19 So. 755; Davis v. State, 51 Neb. 301 70 
 N. W. 984; State v. Ellsworth, 30 Or. 145, 47 Pao. 199; Bates v. Holliday, 31 
 Mo. App. 162, in this case it was so held, where there was an attempt to 
 tamper with another witness; Scott v. State, 64 Ind. 400. For oases hold- 
 ing another rule, see § 828 supra. 
 
 60 Oil Co. V. Van Btten, 107 U. S. 325. 
 
 8oa Martineau v. May, 18 Wis. 54; Martin v. Barnes, 7 "Wis. 239; Cravens 
 V. Bennett, 17 Colo. 419; Collins v. Mack, 31 Ark. 684; Kreiter v. Bomber- 
 ger, 82 Pa. St. 59; Klug v. State, 77 Ga. 734; Lucas v. Flinn, 35 la. 9; 
 State v. Young, 99 Mo. 666, 12 S. W. 879; State v. Freeman, 43 S. C. 105; 
 Rose V. Otis, 18 Oolo. 59,' 31 Pac. 493; Coffin v. Bradbury, 8 Ida. 770, 35 
 Pac. 715, 95 Am. St. Rep. 37; Eddings v. Bonner, 1 Ind. Terr. 173, 38 S. "W. 
 1110; Bullard v. Bullard, 112 la. 423, 84 N. W. 513; White v. Collins 
 (Minn.), 95 N. W. 765; Dunafore v. Barber (Neb.), 92 N. W. 198; Hart v. 
 Pratt, 19 Wash. 560, 53 Pac. 711; McBlain v. Edgar, 65 N. J. L. 634, 48 Atl. 
 600; Drury v. Terr., 9 Okl. 398, 60 Pac. 101. The rule does not apply to a 
 "next friend" who brings the action. Buck v. Maddock, 167 111. 219, 47 N. 
 B. 208. As to the impeachment, of the defendant, see note 21 L. R. A. 418. 
 
§ 852 ATTENDANCE AND EXAMINATION OP WITNESSES. 1087 
 
 counsel for the adverse party has the option to call the attention 
 of the witness to the subject matter on the cross-examination, or to 
 wait and prove the declarations by his own witnesses in the first 
 instance."^ But it should be noted that it has been held in some 
 states that the same foundation should be laid for the impeachment 
 of a party as in the ease of other witnesses."^ 
 
 § 852 (856). Impeachment — ^Witness may explain on re-exami- 
 nation. — Since the principal object of the rule requiring the 
 cross-examiner to lay the foundation for impeachment b;^ inter- 
 rogating the witness as to his former statements is to prevent in- 
 justice to the witness by giving him an opportunity to recollect the 
 facts and to explain any apparent inconsistency, it follows that 
 the opportunity should not be denied on the re-examination. The 
 witness may then be allowed to re-affirm or explain such state- 
 ments, their meaning and design, and to give the circumstances 
 and influences under which they were made.'* If the witness has 
 denied making the impeaching statements, he may state what was 
 actually said in the conversation referred to and give his version of 
 it.°* But this is the end of the inquiry; the court is not bound to 
 receive the evidence of other witnesses as to such conversation, to 
 sustain the testimony of the one sought to be impeached ; °° nor is it 
 proper to admit the hearsay statements of other persons to the wit- 
 ness whom it is sought to impeach.'* If counsel have neglected to 
 
 81 Collins V. Mack, 31 Ark. 684. 
 
 «2Kelsey v. Lane, 28 Kan. 218; Davis v. Franke, 33 Gratt (Va.), 413; 
 Varona v. Socarras, 8 Abb. Pr. (N. Y.) 302; Nutter v. O'Donnell, 6 Colo. 
 253. 
 
 ssDufresne v. Welse, 46 Wis. 290; State v. Reed, 89 Mo. 168; Smith v 
 Weeks, 54 la. 411; Hoover v. Gary, 86 la 494; Bressler v. People, 117 111. 
 422; State v. Henry, 107 Ala. 22, 19 So. 23; People v. Lambert, 120 Cal. 
 170, 52 Pac. 307; Hufe v. State, 104 Ga. 521, 30 S. E. 808; Douglas v. 
 Douglas, 4 Ida. 293, 38 Pac. 934; Louisville & N. R. Co. v. Alumbaugh 
 (Ky), 51 S. W. 18; State v. Howard, 43 Or. 166, 72 Pac. 880; Villineuve v. 
 Manchester St. Ry., 73 N. H. 250, 60 Atl. 748; Spearman v. Sanders, 121 
 Ga. 468, 49 S. E. 296; SUte v. Claire, 41 La. An. 1067; State v. Reed, 
 62 Me. 29; State v. Hendricks, 32 Kan. 559, 4 Pac. 1050. It was held to 
 be within the discretion of the trial court, whether the witness, so 
 impeached, may be allowed to again deny the contradictory statements. 
 Sterling v. Sterling, 64 Md. 138; or merely repeat his former statement, 
 Archer v. Helm, 70 Miss. 874. 
 
 84 Haley v. State, 63 Ala. 83; Henderson v. State, 70 Ala. 29; State T. 
 Winkley, 14 N. H. 480; State v. Reed, 89 Mo. 168. 
 , 86 Dufresne v. Weise, 46 Wis. 290. 
 
 88 State V. Wyse, 33 S. C. 582. 
 
1088 THE LAW OF BVIDENCa § 853 
 
 lay the fomidation for cross-examination, the court, in its discre- 
 tion, may allow the witness to be recalled for that purpose; " and 
 where the witness has been so recalled, it is error to rule out the 
 impeaching evidence on the ground that the party had made the 
 witness his own by recalling him.?* 
 
 § 853 (857) . A party cannot impeach his own witness. — ^It was 
 the established rule of the common law that a party could not give 
 general evidence that his own witness was imworthy of belief. 
 This rule rested on the theory that a person who produces a wit- 
 ness vouches for him to some extent as being not wholly unworthy 
 of credit, and that a direct attack upon the veracity of the witness 
 "would enable the party to destroy the witness, if he spoke against 
 Mm, and to make him a good witness, if he spoke for him, with the 
 means in his hand of destroying his credit, if he spoke against 
 him. " "' It was a more doubtful question at common law whether 
 a party could prove by other testimony that one of his witnesses 
 had previously made inconsistent or contradictory statements. On 
 the one hand, it was urged that, by such a practice, the party was 
 allowed to discredit his own witness, and that it was mala fides to- 
 wards the witness and the court; it was also urged that the state- 
 ment which was so received, only for the purpose of contradicting 
 the witness, might be understood by the jury as substantive evi- 
 dence in the case, and that the practice would open the door to 
 collusion.'" On the other hand, it was urged in favor of the ad- 
 mission of such evidence that there could be no imputation of bad 
 faith, if a party, finding himself deceived in his witness, should 
 prove his contradictory statements, and that there would be no 
 other mode of guarding against the fraud of an artful witness 
 
 .•TRiothrock T. Gallher, 91 Pa. St. 108; Treadway v. State, 1 Tex. App. 
 668; People v. Shaw, 111 Cal. 171, 43 Pac. 593; Bryan v. State (Pla.), 34 
 So. 243; State v Brown (La.), 35 So. 818; C!ooper v. Hayward, 79 Minn. 23, 
 81 N. W. 514; Ashton v. Ashton, 11 S. D. 610, 79 N. W. 1001. See § 846. 
 The refusal to allow this may be an abuse of discretion, Grose v. State, 11 
 Tex. App. 364. 
 
 88 Perkins v. State, 78 Wis. 551; Joseph v. Com. (Ky.), 1 S. W. 4; Ben- 
 nett V. State, 28 Tex. App. 539; State v. Goodrich, 19 Vt. 116, 47 Am. Dec. 
 676; Hyland v. Mllner, 99 Ind. 308; Com. v. Hunt, 4 Gray, 421. 
 
 «»Bull N. P. 297; 2 Phill. Bv (3d Ed.) 525. On this general subject 
 see notes, 60 Am. Dec. 749-752; 82 Am. St. Rep. 57; 21 L. R. A. 418-433, 
 where the whole subject Is discussed at length, and the law of each state 
 given. 
 
 70 Opinion of Bolland B. In Wright v. Beckett, 1 Moody & Rob. 414. . 
 
§ 854 ATTENDANCE AND EXAMINATION OP WITNESSES. 1089 
 
 who might be secretly aiding the adverse party.''^ Notwithstanding 
 this difference of opinion, it was held by the decided weight of 
 authority in Englaiid that, even when a party was surprised b^ the 
 adverse testimony of his witness, he could not impeach him by 
 proof of different statements made by him out of court before the 
 , trial.''^ This question was, however, set at rest in England by a 
 statute allowing a party to prove that his own witness had made a 
 statement inconsistent with the present testimony, but this is al- 
 lowed only in case, in the opinion of the judge, such witness proves 
 to be adverse, and only after laying the foundation for impeach- 
 ment as in other cases.'" 
 
 § 854 (858), Same, continued. — Although the conflict of opin- 
 ion on this question, which arose in England, has continued in the 
 American courts, it is the rule supported by the great weight of 
 authority that, in the absence of statutes, a party cannot he allowed 
 to offer direct proof hy other witnesses, either of the had character 
 of his own witness for truth and veracity, or that he has previously 
 made statements inconsistent with his present testimony. As to 
 the impeachment by proof of bad character for truth and veracity 
 there has been comparatively little conflict in the authorities and 
 the rule is very clear.'* Although there has been much criticism 
 of the rule that a party cannot prove contradictory statements of 
 his own witness it is sustained by the great weight of authority in 
 those states where there has been no statutory change.'"' Although 
 
 71 Opinion v. I/ord Denman In Wrlglit v. Beckett, 1 Moody ft Rob. 414; 
 Dunn V. Aslet, 2 Moody & Rob. 122. 
 
 72 Reg. V. Ball, 8 Car. & P. 745; Melhulsh v. Collier, 15 Q. B. 878; Holds- 
 worth V. Mayor, 2 Moody & Rob. 153. 
 
 78 17 & 18 Vict ch. 125; 28 & 29 Vict oh. 18; Steph Br. art 130. See the 
 statutes of this country cited in § 855, infra. 
 
 74 Thorn v. Moore, 21 la. 285; State v. Keefe, 54 Kan. 67; Smith v. 
 Utesch, 85 la. 381, 52 N. W. 343; Brooks v. "Weeks, 121 Mass. 433; South- 
 em Bell Tel. & Tel. Co. v. IVEayo, 134 Ala. 641, 33 So. 16, that witness was 
 mentally unsound; 'Wise v. 'Wakefield, 118 Cal. 107, 50 Pac. 310; Water- 
 bury V. Waterbury T. Co., 74 Conn. 152, 50 Atl. 3; Sanchez v. People, 22 
 N. T. 147. 
 
 75Westphal v. Railway Co., 134 Mich. 239, 96 N. "W. 19; Wheeler v. 
 Thomas, 67 Conn. 577, 35 Atl. 499; Appeal of Carpenter, 74 Conn. 431, 6l 
 Atl. 126; Hall v. Railway Co., 84 la. 311; Smith v. Price, 8 Watts (Pa.), 
 447; People v. Jacobs, 49 Cal. 384; Steams v. Merchants, 53 Pa. St. 490; 
 Brewer v. Porch, 17 N. J. L. 377; People v. Safford, 5 Den. 112; Adams v. 
 ■Wheeler, 97 Mass. 67; Dixon v. State, 86 Ga. 754; State v. Vlckers, 47 
 
1090 THE LAW OF EVIDENCE. § 854 
 
 the weight of authority sustains the view that a party cannot prove 
 the contradictory statements of his own witness to di»eredit him, 
 yet the party is not wholly without remedy, if surprised or deceived 
 by the testimony. In such a case, he may interrogate the witness 
 in respect to previous statements inconsistent with the present tes- 
 timony, for the purpose of probing his recollection. He may, in 
 this way, show the witness that he is mistaken, and give him an op- 
 portunity to explain the apparent inconsistency. This is also 
 proper to show the circumstances which induced the party to call 
 the witness.''" If the recollection of the witness is not refreshed 
 after such questions, the party cannot prove his contradictory state- 
 ments iy other witnesses.'''' Statutes have been enacted in various 
 states changing the common law rule and permitting under some 
 limitations a party to prove the contradictory statements of his 
 own witness, as where the witness is adverse,''^ or in case of sur- 
 
 La. Am. 1574, 18 So. 639; Smith v. Dawley, 92 la. 312, 60 N. W. 625; Kohl 
 V. State, 59 N. J. L. 445, 37 Atl. 73; State v. Callahan (S. D.), 99 N. W. 
 1099; People v. Burgess, 153 N. Y. 561, 47 N. E. 889; Coulter v. Am. Exp. 
 Co., 56 N. Y. 585; Cox v. Eayres, 55 Vt. 24, 45 Am. Rep. 583; Pollock v. Pol- 
 lock, 71 N. Y. 137; State v. Taylor, 88 N. C. 696; Hurley v. State, 46 Ohio, 
 320, 21 N. E. 645, full discussion; State v. Johnson, 43 S. C. 123, 20 S. E. 
 988; Richards v. State, 82 Wis. 172, 51 N. W. 652; Collins v. Hoehle, 99 Wis. 
 639, 75 N. W. 416; Hickory v. U. S.,-151 IT. S. 303. Contra, Llndqulst v. 
 Dickson, 98 Minn. 369, 107 N. W. 958, 6 L. R. A. (N. S.), 729; Selover v. 
 Bryant, 54 Minn. 434, 56 N. W. 58, 40 Am. St. Rep. 349: Bacot v. Hazle- 
 hurst L. Co. (Miss.), 23 So. 481. 
 
 76Bullard v. Pearsall, 53 N. Y. 230; McDaniel v. State, 53 Ga. 253; 
 Griffith v. State, 90 Ala. 583; Hemingway v. Garth, 51 Ala. 530; Melhulsh 
 V. Collier, 15 Q. B. 878; Hildreth v. Aldrlch, 15 R. I. 163; National Syrup 
 Co. V. Carlson, 42 111. 178; George v. Triplett, 5 N. D. 50, 63 N. W. 891; 
 Hurley v. State, 46 Ohio St. 320, 21 N. B. 645; Humble v. Slioemaker, 70 
 la. 223; People v. Payne, 131 Mich. 474, 91 N. W. 739; State v. Johnson, 
 43 S. C. 123, 20 S. E. 988; State v. Viokers, 47 La. An. 1574; 18 So. 634; 
 State V. Tall, 43 Minn. 273, 45 N. W. 449: Carpenters' Appeal, 74 Conn. 
 431, 51 Atl. 126; McNemey v. Reading, 150 Pa. St. 611, 25 Atl. 57; Tacoma 
 R. & P. Co. V. Hays, 110 Fed. 496; Schuster v. State, 80 Wis. 107; State r. 
 Williams, 111 La. 179, 35 So. 505; Greenl. Ev. § 444 and note. See note 
 82 Am. St. Rep. 58. 
 
 ' "Hildreth v. Aldrlch, 15 R. I. 163; Hurley v. State, 46 Ohio St. 320, 21 
 N. E. 645. 
 
 T8 Mercer v. State, 41 Pla. 279, 26 So. 317; Bryan v. State (Fla.), 34 So. 
 243; Davis v. Buchanan, 73 Vt. 67, 50 Atl. 545; Gordon v. Funkhouser, 100 
 Va. 675, 42 S. E. 677. 
 
§ 855 ATTENDANCE AND EXAMINATION OF WITNESSES. 1091 
 
 prise,''^ or if the "party has been entrapped or deceived by the wit- 
 ness.'" 
 § 855 (858). Same — Statutes — ^When adverse party is called as 
 
 a witness. — In some states the statute broadly provides that the 
 one producing a witness may show that at other times he has made 
 statements inconsistent with his present testimony.'"^ But under 
 these statutes the courts have frequently rejected such testimony 
 unless surprise or hostility was shown.'^ And when received the 
 courts hold that such statements are admissible only for the pur- 
 pose of impeachment and not to prove the truth of the facts stated 
 in the declarations.'^ And in those jurisdictions where such tes- 
 timony is received the usiial rule applies that the witness must first 
 have his attention called to the statements claimed to be contra- 
 dictory. Written instruments are not witnesses within the general 
 rule under discussion. Hence, a party may offer in evidence a bill 
 of sale or other instrument in writing, if it forms a part of the 
 transaction in issue, and afterwards show that the instrument had 
 its inception in fraud.'* In a few jurisdictions it is held even in 
 the absence of statutes that in the discretion of the court if a party 
 
 7» People V. Kruger, 100 Cal. 523, 35 Pac. 88; Hyde v. Buckner, 108 Oal. 
 522, 41 Pac. 416; TMele v. Newman, 116 Cal. 571, 48 Pac. 713; Ward v. 
 Young, 42 Ark. 543, 555; State v. Corcoran, 7 Ida. 220, 61 Pac. 1034. 
 
 80 Dixon V. State, 86 Ga. 754, 13 S. B. 87; Rlckerson v. State, 100 Ga. 
 391, 33 S. E. 639. 
 
 81 Brooks V. Weeks, 121 Mass, 433; Knight v. Rothschild (Mass.), 52 N. B. 
 1062; Gordon v. Funkhouser, 100 Va. 675, 42 S. E. 677; State v. McDaaiel, 39 
 Or. 161, 65 Pac. 520; Ward v. Young, 42 Ark. 542; State v. Corcoran, 7 Ida. 
 220, 61 Pac. 1034; Conway v. State, 118 Ind. 482, 21 N. E. 285; Adams v. 
 State, 156 Ind. 596, 59 N. E. 24; Mosley v. Com. (Ky.), 72 S. W. 344; Horn 
 V. State, 12 Wyo. 80, 73 Pac. 705; State v Bloor, 20 Mont 574, 52 Pac. 611; 
 Barnard v. State (Tex.), 73 S. W. 957; Manning r. Carberry, 172 Mass. 
 432, 52 N. B. 521; Hill's Ann. Laws. (Or.), § 888; N. Mex. Oomp. Laws, 
 1897, § 3026; Ark. Dig. of St., 1904, § 7137; Cal. C. C. P., 1907, § 2049; Ida. 
 C. C. P.. 1901, § 4489; Bums' Ann. Ind. St., 1901, § 515; Ky. C. C. P., 1895, 
 § 596; Rev. Laws of Mass., 1902, oh. 175, § 24. In Texas in any manner 
 except by proving bad character, Barnard v. State (Tex. Cr. App.), 73 S. 
 W. 957. 
 
 82 People v.Crespl, 115 Cal. 50, 46 Pac. 863; Thiele v. Newman, 116 Oal. 
 571, 48 Pac. 713. 
 
 83 Thiele v. Newman, 116 Cal. 571, 48 Pac. 713; Brooks v. Weeks, 121 
 Mass. 433; Moseley v. Com. (Ky.), 72 S. W. 344; State v. Robinson (La.), 
 27 So. 124. By statute in Va., Va. Stat., 1899-1900, ch. 117, S 1- See S 858 
 infra. 
 
 a Henny Buggy Co. v. Patt, 73 la. 485. 
 
1092 THE LAW OF EVIDENCE. § ,855 
 
 has been misled and surprised by the testimony -of bis witness be 
 may impeach bim by proving bis former contradictory statements.^^ 
 Under these statutes, the right of a party to impeach his own wit- 
 ness arises only when the witness testifies to some. matter preju- 
 dicial to the party calling him. Nor do the statutes apply to a case 
 where the witness fails to testify to such facts as be is called to 
 prove.*' The question has often arisen whether one party may call 
 the other as a witness and ie permitted to impeach him by prov- 
 ing bis former contradictory statements. In some jurisdictions 
 the general rule is held to apply and the attempt to impeach has 
 been denied.*'' Under the practice which now quite generally 
 prevails, if a party is called by bis adversary, be is an adverse party 
 under statutes and these generally provide that the party calling 
 the witness shall not be bound thereby, and many «f the statutes 
 declare that the testimony may be rebutted by other testimony as 
 if taken in his own behalf. It is the meaning of many of these stat- 
 utes that the party thus called is not called as the witness of the 
 other party but in order to elicit from him material facts by cross- 
 examination as if he had already been examined on bis own be- 
 half." Of course if the statements of the adverse party are in the 
 
 85 Selover v. Bryant, 54 Minn. 434, 56 N. W. 58, 40 Am. St. Rep. 349; 
 Hays v. Tacoma R. & P. Co., 106 Fed. 48; Lindquist v. Dickson, 98 Minn. 
 369, 170 N W. 958; State v. Wright, 2 Pen. (Del.) 228, 45 Atl. 395; Bacot 
 V. Hazlchurst L. Co. (Miss.), 23 So. 481, witness hostile; State v. Burks, 
 132 Mo. 363, 34 S. W. 48, only where the party has been entrapped or mis- 
 led by some artifice; Whitman v. Morey, 63 N. H. 448, 2 Atl. 899 This 
 rule applies to criminal cases. State v. Sederstrom, 99 Minn. 234, 109 N. 
 W. 113. 
 
 86 Hull V. state, 93 Ind. 128, 133; Chlsm v. State, 70 Miss. 742; Plough v. 
 Parry (Ind.), 40 N. E. 70; Brwin v. State, 32 Tex. Cr. Rep. 519; People v. 
 Jacobs, 49 Oal. 384; Adams v. Wheeler, 97 Mass. 67; People v. Mitchell, 94 
 Cal. 550, 29 Pac. 1106; Camp v. Com., 2 Met (Ky.) 17; State v. Steeves, 
 29 Ore. 85, 43 Pac. 947; People v. Creeks, 141 Cal. 529, 75 Pac. 101; Feltner 
 V. Com. (Ky.), 64 S. W. 959; Smith v. State (Tex. Or.), 78 S. W. 519; 
 Threlkeld v. Bond (Ky.), 92 S. W. 606. 
 
 87 Claflln V. Dodson, 110 Mo. 212; Tarsney v. Turner, 48 Fed. 818; 
 Branch v. Levy, 46 N. Y. S. 428; Helms v. Green, 106 N. C. 251, 18 Am. 
 St. Rep. 893, where the deposition of the adverse party was taken under 
 a statute; Smith v. Smith, Sturgeon & Co. (Mich.), 84 N. W. 144, evidence of 
 officer of corporation. See also Pickard v. Bryant, 92 Mich. 430. See note 
 21 L. R. A. 425. Otherwise, if the party becomes a witness In his own 
 behalf or testifies to matters not responsive, Hester v. Wallace, 6 Bush, 
 (Ky.), 182; Dravo v. Fabel, 25 Fed. 116, 132 U. S. 487. 
 
 -« Crocker v. Agenbroad, 122 Ind. 585, 24 N. E. 169, statute expressly 
 permits Impeachment; Reed T. Loney, 22 Wash. 433, 61 Pac. 41. See 
 Suter V. Page, 64 Minn. 444, 67 N. W. 67. * 
 
S 856 ATTENDANCE AND EXAMINATION OP WITNESSES. 1093 
 
 nature of admissions they may be rebutted. Under the general 
 rule forbidding a party to impeach his own witness it is held that 
 where one party calls a witness of the adverse party to prove cer- 
 tain facts he is thereby prevented from impeaching such witness." 
 B\A if a witness is called by one party and is also called as a wit- 
 ness for the adverse party, he may be impeached by the one first 
 calling him as to the facts thus called out by the adversary."* 
 
 § 856 (859). Exceptions and qualifications of the rule. — An ex- 
 ception to the general rule, which is sanctioned by very high au- 
 thority, is "where the witness is not one of the party's own selec- 
 tion, but is one whom the law obliges him to call, such as a subscrib- 
 ing witness to a deed or a will, or the like; here he can hardly be 
 considered as the witness of the party calling him, and therefore, as 
 it seems, his character for truth may generally be impeached. ' ' °^ 
 On the same principle it has been held that one who calls a witness 
 because of actual necessity, in order to lay a foundation for the in- 
 troduction of secondary evidence of a document sued on, may qon- 
 tradiet him."* Although the language used by Mr. Greenleaf above 
 quoted is quite general, it is doubtful whether the authorities admit 
 of the reception of such testimony, except to prove the former con- 
 tradictory statements of the witness. According to the weight of 
 judicial opinion, it would seem that testimony, showing the reputa- 
 tion of the witness for truth and veracity to be bad, should be ex- 
 cluded."' 
 
 8» Craig V. Grant, 6 Mich. 447; Richards v. State, 82 Wis. 172; Fairchlld 
 V. Bascom, 35 Vt. 398; First Baptist Church v. Brooklyn Ins. Co., 23 How. 
 Pr. (N. Y.), 448; Com. v. Hudson, 11 Gray, 64. But see, Jones v. People, 
 2 Colo. 351. See note, 21 L. R. A. 418. 
 
 »oHall V. Incorp. Town of Manson, 99 la. 698, 68 N. W. 922; Artz v. 
 Railroad Co., 44 la. 286. 
 
 siGreenl. EV. § 443; Shorey v. Hussey, 32 Me. 579; Olinde v. Saizan, 10 
 La. An. 153; Williams v. Walker, 2 Rich. Eq. (S. C.) 291, 46 Am. Dec. 53; 
 Whitman v. Moyer, 63 N. H. 448; Harden v. Hays, 9 Pa. St. 151; Diffender- 
 fer V. Scott, 5 Ind. App. 243; Brown v. Bellows, 4 Piclc. 179; Jerkowski v. 
 Marco, 57 S. C. 402, 35 S. B. 750; Hildreth v. Aldrich, 15 R. I. 163; Thorn- 
 ton V. Thornton, 39 Vt. 122, where a witness to a will had testified that 
 the testator was insane, an-d his contradictory statements were admitted. 
 This has been held to apply to all witnesses called by the state In criminal 
 cases, State v. Slack, 69 Vt. 486, 38 Atl. 311; and the prosecuting attorney 
 may argue that the state does not claim that the witness told the truth, 
 State V. Mims, 36 Or. 315, 61 Pac. 888. 
 
 82 Morris v. GufEey, 188 Pa. St. 534, 41 Atl. 731. 
 
 osWhitaker v. Salisbury, 15 Pick. 534; Dennett v. Do-w, 17 Me. 19; 
 Harden v. Hayes, 9 Pa. St. 151. Contra, Williams v. Walker, 2 Rich. Eq. 
 (S. C.) 291. In a few states, proof ot general bad character is allowed by 
 
1094 THE LAW OP EVIDENCE. § 857 
 
 § 857 (860). Party not bound to accept testimony of his own 
 witness as correct. — The general rule that one cannot impeach his 
 own witness must not be understood to imply that the party is 
 bound to accept such testimony as correct. On the contrary, it is 
 very clear that the one producing a witness may prove the truth of 
 material facts by any other competent evidence, even though the ef- 
 fect of such testimony is to directly contradict his own witness."* 
 Thus in an action on warranty by defendant's servant, where the 
 servant was called by the plaintiff as a witness and testified that he 
 had given no warranty, the plaintiff was allowed to prove, by other 
 witnesses, that the servant had in fact given such warranty."^ So 
 where the defendant called the plaintiff as to the ownership of the 
 
 statutes, where It is indispensable for the party to produce a witness, 
 Ark. Dig. St., 1904, § 3137; Ind., Burns' Ann. St., 1901, § 515; Ky. Code, 
 1895, § 596. 
 
 «* Hickory v. United States, 151 U. S. 303; Wadsworth v. Dunnam, 117 Ala. 
 661, 22 So. 566; Brown y. Tourtelotte, 24 Colo. 204, 50 Pac. 195; Norwood 
 V. Kenfield, 30 Cal. 393; Smith v. Ehanert, 43 Wis. 181; Meyer Drug Co. v. 
 McMahon, 50 Mo. App. 18; Pollock v. Pollock, 71 N. Y. 137; Adams v. 
 Wheeler, 97 Mass. 67; Crocker v. Agenbroad, 122 Ind. 585, 24 N. E. 169; 
 Stearns v. Merchants' Bank, 53 Pa. St. 490; Highley v. Bank, 185 111. 565, 
 57 N. E. 436; Hanes v. State, 155 Ind. 112, 57 N. B. 704; Deering v. Cun- 
 ningham, 63 Kan. 174, 65 Pac. 263; Darling v. Thompson, 108 Mich. 215, 
 65 N. W. 754; Thomas v. McDaneld, 88 la. 374; McDaniel v. State, 53 Ga. 
 253; U. S. Brewing Co. v. Ruddy, 203 111. 30G, 67 N. E. 799; Schmidt v. Durn- 
 ham, 50 Minn. 96, 52 N. W. 277; Sewell v. Gardner, 48 Md. 178; State v. Tay- 
 lor, 88 N. C. 694; Chester v. Wilhelm, 111 N. C. 314; Cronan v. Roberts, 65 
 Ga. 678; Wallach v. Wylie, 28 Kan. 138; Brown v. Osgood, 25 Me. 505; 01m- 
 stead V. Winsted Bank, 32 Conn. 278, 85 Am. Dec. 260; State v. Branch, 
 151 Mo. 622, 52' S. W. 390; Ingersoll v. English, 66 N. J. L. 463, 49 Atl. 737; 
 State v. Mace, 118 N. C. 1244, 24 S. E. 798; State v. Mims, 36 Or. 315, 61 
 Pac. 888; Peters v. U. S., 94 Fed. 127; Kohl v. Bradley, Clark & Co., 130 
 Wis. 301, 110 N. W. 265; Joyce v. St. Louis Transit Co. (Mo. App.), 86 
 S. W. 469; Stout v. Sands (W. Va.), 49 S. E. 428; Moultrie Repair Co. v. 
 Hill, 120 Ga. 730, 48 S. E. 143; Kennedy v. Town of Lincoln, 122 Wis. 301, 99 
 N. W. 1038; Pitman v. Holmes (Tex.), 78 S. W. 961; Brown v. Wood, 19 
 Mo. 475; Swanscot Machine Co. v. Walker, 22 N. H. 457, 55 Am. Dec. 172; 
 Skilllnger v. Howell, 8 N. J. L. 310; Fairly v. Fairly, 38 Miss. 280; Paxton 
 V. Boyce, 1 Tex. 317; DeMeli v. DeMeli, 120 N. Y. 485, 24 N. E. 996, 17 Am. 
 St. Rep. 652, where the defendant had been called by the plaintiff to tes- 
 tify as to his place of residence; Webber v. Jackson, 79 Mich. 175, 19 Am. 
 St. Rep. 165, as to a question of fraud; Gardner v. Connelly, 75 la. 205; 
 State v. Cummins, 76 la. 133; United States v. Hall, 44 Fed. 864. See note 
 21 L. R. A. 424. 
 
 »6 Alexander v. Gibson, 2 Camp. 555, 
 
§ 858 ATTENDANCE AND EXAMINATION OP WITNESSES. 1095 
 
 note sued on, the defendant was allowed to disprove, by other wit- 
 nesses the testimony thus given."" A party may offer the books of 
 his witness in evidence, although they contradict the testimony of 
 such witness."^ A party is not bound by all the statements of a 
 witness called by him, if adverse, even though no other witnesses 
 are called to contradict him; the party may rely on part of such 
 testimony, although in other parts- the witness denies the facts 
 sought to be proved."' It has been well said that, if the other rule 
 should prevail, "every one would be at the mercy of his own wit- 
 nesses, and if the first witness sworn should swear against him, he 
 would lose the testimony of all the rest. This would be a perversion 
 of justice."" 
 
 § 858 (861). Same, continued. — The rule imder discussion ap- 
 plies with peculiar force where a party calls his adversary as wit- 
 ness.^ It often happens that a litigant is compelled to call the ad- 
 verse party to prove particular facts ; and it would be an intolerable 
 rule, if testimony given under such circumstances could not be 
 controverted." The general rule is the same, although the effect of 
 such testimony is to incidentally discredit the former witness and 
 to tend to show that he is unworthy of belief.' It is immaterial 
 whether the testimony thus adduced shows that the witness was 
 mistaken or whether it shows that he has willfully perverted the 
 facts.* The object of the inquiry is not to discredit the witness, but 
 
 98 Gardner v. Connelly, 75 la. 205. 
 
 87 Grosohke v. Bardenheimer, 15 Mo. App. 353. 
 
 98 Becker v. Koch, 104 N. Y. 394, 10 N. E. 701, 58 Am. Rep. 515; Mitchell 
 V. Sawyer, 115 111. 650, 5 N. E. 109. He may argue that his witness 
 is in error, Schmidt v. Dunham, 50 Minn. 96, 52 N. W. 277; but he cannot 
 argue that he is not worthy of belief, Choctaw & M. R. Co. v. Newton, 140 
 Fed. 225, 250. 
 
 99 Snell V. Gregory, 37 Mich. 500. 
 
 iDeMeli v. DeMeli, 120 N. Y. 485, 24 N .E. 996, 17 Am. St. Rep. 652; 
 Arms V. Arms, 113 N. Y. 646; Webber v. Jackson, 79 Mich. 175, 44 N. 
 W. 591, 19 Am. St. Rep. 165; Schmidt v. Durnham, 50 Minn. 96, 52 N. 
 "W. 277. See note, 21 L. R. A. 425. 
 
 2 DeMeli t. DeMeli, 120 N. Y. 485, 24 N. E. 996, 17 Am. St. Rep. 652; 
 Arms V. Arms, 113 N. Y. 646; Webb«r v. Jackson, 79 Mich. 175, 44 N. W. 
 '591, 19 Am. St. Rep. 165. This Is especially true where the testimony 
 relates to motives or intent, McLean v. Clark, 31 Fed. 501. 
 
 3 Stockton V. Demuth, 7 Watts. (Pa.) 39, 32 Am. Dec. 735; Thom v. 
 Moore, 21 la. 285; Smith v. Ehanert, 43 Wis. 181; Warren v. Gabriel, 51 
 Ala. 235; Brown v. Bellows, 4 Pick. 179. See also cases next cited. 
 
 « Skipper V. State, 59 Ga. 63; Warren v. Gabriel, 51 Ala. 235; Pollock v. 
 Ppllock, 71 N. y. 137; Hunter v. Wetzell, 84 N. Y. 549; Hall v. Houshton, 
 
1096 THE LAW OF EVIDENCE. § 859 
 
 to prove the facts relevant to the controversy; and this should be 
 permitted whatever the incidental result may be upon the credit 
 of any witness." "Where a party thus calls witnesses who give testi- 
 mony contrary to or inconsistent with that of a former witness, the 
 testimony of the latter is not necessarily to be wholly repudiated. 
 All the testimony is submitted to the jury for their consideration." 
 So when a party proves by other testimony, facts in conflict with 
 the testimony of one of his own witnesses, it is error to charge the 
 jury that, when a party calls a witness, he vouches for him and can 
 not deny that he is unworthy of belief.'' It is error to instruct the 
 jury that impeaching testimony as to the contradictory statements 
 of a witness is ' ' generally worthless to destroy the evidence of wit- 
 nesses to facts."* Before closing this subject, attention should be 
 called to the effect of impeaching testimony consisting of the con- 
 tradictory or inconsistent statements of witnesses. It often hap- 
 pens that such testimony is of vital importance in its effect upon the 
 credit of the witness; and it is not infrequent that jarors fail to 
 understand that such testimony is only received to affect the credi- 
 bility of witnesses. In other words, the impeaching testimony does 
 not establish or in any way tend to establish the truth of the matters 
 contained in the contradictory statements.^ 
 
 § 859 (862). Reputation for veracity — ^Mode of impeachment. — 
 It has long been the settled rule that it is relevant in any action to 
 show that the character or reputation of any material witness for 
 truth and veracity is bad. The words "character" and "reputa- 
 tion" are often used in this connection as interchangeable. Such 
 use is thus explained by Mr. Justice Strong: "It is true that, 
 in many cases, it has been said, the regular mode of examining 
 is to inquire whether the witness knows the general charac- 
 
 37 Me. 411; Richards v. State, 82 Wis. 172; Norwood v. Kenfield, 30 Oal. 
 393; Olmstead v. Winstead Bank, 32 Conn. 278, 85 Am. Dec. 260. See also 
 Pickard v. Bryant, 92 Mich, 430. See note, 60 Am. Dec. 749. 
 
 6 Sewell V. Gardner, 48 Md. 178. As where it shows the witness to he 
 wholly unworthy of credit, McFarland v. Ford, 32 111. App. 173. 
 
 «Bradley v. Rlcardo, 8 Bing. 57; Hall v. Houghton. 37 Me. 411; Brennan 
 V. People, 15 111. 511; Henry v. Sioux City Ry. Co., 75 la. 84, 9 Am. St. Rep. 
 457. 
 
 ■> McFarland v. Ford, 32 111. App. 173. 
 
 8 Warder v. Fisher, 48 Wis. 338. 
 
 »IJaw V. Fairfield, 46 Vt 425; Jensen v. Mldhigan Cent. Ry. Co., 102 
 Mich. 176; Sellers v. Jenkins, 97 Ind. 430; Davis v. Hardy, 76 Ind. 272; 
 Hicks T. Stone, 13 Minn. 434. See § 855 swpra. 
 
§ 859 ATTENDANCE AND EXAMINATION OP WITNESSES. 1097 
 
 ter of the person whom it is intended to impeach, but, in all such 
 cases, the word character is used, as synonymous with reputation. 
 What is wanted is the common opinion, that in which there is gen- 
 eral concurrence, in other words, general reputation or character at- 
 tributed. That is presumed to be indicative of actual character, and 
 hence it is regarded as of importance when the credibility of a wit- 
 ness in in question."^" This mode of impeachment is a direct at- 
 tack upon the credibility of a witness. It is necessary first to show 
 that the impeaching witness knows the general character of the per- 
 son to be impeached or his reputation for truth and veracity in the 
 community where he resides.'^^ It is not a condition to the compe- 
 tency of the impeaching witness iJiat he should reside in the same 
 neighborhood j"^^ and, if the witness has changed his domicil, his 
 reputation at both places may be shown within reasonable limits of 
 time. And reputation in a prior residence is not excluded merely 
 because another later domicil has been assigned and a reputation 
 there established.^' Although the question to be determined is the 
 credibility of the witness at the time of the trial, the inquiry as to 
 the reputation is not confined to the present time. The tendency 
 of the decisions is to allow much remoteness in time on the theory 
 that personal character is a persistent quality, one which changes 
 slowly.^* Thus, where the witness had removed from a community 
 
 10 Knode v. Williamson, 17 Wall. 588. See also, State v. Bgan, 59 la. 636. 
 
 "Teese v. Huntingdon, 23 How. 2; Bogle v. Kreitzer, 46 Pa. St. 465; 
 Stokes V. State, 18 Ga. 17; Henderson v. Hayne, 2 Met. (Ky.) 342; People 
 V. Mather, 4 Wend. 229, 21 Am. Dec. 122; Ford v. Ford, 7 Humph. (Tenn.) 
 92; Ooates v. Sulau, 46 Kan. 341; Sorrelle v. Craig, 9 Ala. 534; Kelley v. 
 Proctor, 41 N. H. 139; State v. Parks, 3 Ired. (N. C.) 296; State v. Johnson, 
 41 La. An. 574; C?rabtree v. Hagenbaugh, 25 111. 233, 79 Am. Dec. 324; 
 People V. Rector, 19 Wend. 569; Chess v. Chess, 1 Pen. & W. (Pa.) 32, 21 
 Am. Dec. 350; Lyman v. Philadelphia, 56 Pa. St. 488; Holbert v. State, 9 
 Tex. App. 219, 35 Am. Rep. 738; State v. Meadows, 18 W. Va. 658; Wilson 
 V. State, 3 Wis. 798; Winter v. Central Iowa Ry. Co., 80 la. 443. When 
 the witness shows no knowledge of such a character, he should not be 
 further questioned on the subject, Com. v. Lawler, 12 Allen, 585. 
 
 i2Wallls V. White, 58 Wis. 26; Hadjo t. Gooden, 13 Ala. 718, where the 
 impeaching witness lived twelve miles away; Dupree v. State, 33 Ala. 380, 
 73 Am. Dec. 422, where the two persons lived twenty miles apart 
 
 13 Hamilton v. People, 29 Mich, 173; Sage v. State, 127 Ind. 15; Coates 
 V. Sulau, 46 Kan. 341; State v. Knight, 118 Wis. 417, 95 N. W. 390; Craft 
 V. Barron, 28 Ky. L. Rep. 98, 88 S. W. 1099. 
 
 Instate V. Knight, 118 Wis. 417, 95 N. W. 390, full discussion; People v. 
 Abbott, 19 Wend. 192; State v. Miller, 156 Mo. 76, 56 S. W. 907; Thurmond 
 V. State, 27 Tex. App. 347. Thus the courts have admitted evidence as to 
 
1098 THE LAW OF EVIDENCE. § 859 
 
 some years before the trial, the impeaching testimony of his former 
 neighbors may be received.^" Since the reputation of a witness is 
 usually the result of a course of life or conduct extending through 
 a considerable time, the range of mquiry must, to some extent, rest 
 in the discretion of the trial judge}^ But if the inquiry relates to 
 a time or place so remote as to afford no reasonable ground of in- 
 formation as to the present character or reputation of the witness, 
 the questions should be excluded.^' In a few jurisdictions there is 
 a tendency to exclude evidence of reputation at other places if the 
 party has for some years before the trial had another domicil and 
 there acquired a reputation/' While impeaching evidence may 
 be given of the reputation of the witness just before the commenee- 
 
 cliaracter, just before trial, Amidoa v. Hosley, 54 Vt. 25; reasonable time 
 before trial. Lake Lighting Co. v. Lewis, 29 Ind. App. 164, 64 N. B. 35; 
 sixty days before trial, Pape v. Wright, 116 Ind. 502, 19 N. B. 459; fifteen 
 months, Hank v. State, 148 Ind. 238, 46 N. B. 127; eighteen months, Doll- 
 ner v. Lintz, 84 N. T. 669; Com. v. Billings, 97 Mass. 405; two years. State 
 V. Knight, 118 "Wis. 417, 95 N. W. 390; three years. State v. Summar, 143 
 Mo. 220, 45 S. "W. 254; Douglass v. Agne, 125 la. 67, 99 N. W. 550; four years. 
 Sleeper v. Van Middlesworth, 4 Den. (N. Y.) 431; Keator v. People, 32 
 Mich. 484; Mynatt v. Hudson, 66 Tex. 66, 17 S. "W. 396; six years. State v. 
 Fry, 96 Tenn. 467, 35 S. "W. 883; seven years. Snow v. Grace, 29 Ark. 131; 
 Sage V. State, 127 Ind. 15, 26 N. E. 667; eight years, Watkins v. State, 82 
 Ga. 231, 8 S. E. 875, 14 Am. St. Rep. 155. 
 
 15 Sleeper v. "Van Middlesworth, 4 Den. 431; Rathbum v. Ross, 46 Barb. 
 (N. Y.) 127; Coates v. Sulau, 46 Kan. 341. But the testimony of one who 
 had known the reputation of the witness years before in Ireland has been 
 rejected, "Webber v. Hanke, 4 Mich. 198. So it has been rejected as to 
 former reputation, where the witness had lived five years in a place and 
 was well known there. State v. Potts, 78 la. 656. But the contrary rule 
 has been held, and evidence as to character eight years before admitted, 
 Watkins v. State, 82 Ga. 231, 14 Am. St. Rep. 155. In Sage v. State, 127 
 Ind. 15, evidence as to reputation in a community was not received where 
 the witness had been absent seven years by reason of imprisonment. 
 
 isDollner v. Lintz, 84 N. Y. 669; Stratton v. State, 45 Ind. 468; Cline 
 V. State, 51 Ark. 140; State v. Turner, 36 S. 0. 534; State v. Spencer, 45 
 La. An. 1; Lake Lighting Co. v. Lewis, 29 Ind. App. 164, 64 N. B. 35; 
 Shuster v. State, 62 N. J. L. 621, 41 Atl. 701. 
 
 1' Rucker v. Bealy, 3 Ind. 70; "Webber v. Hanke, 4 Mich, 198; Aurora v. 
 Cobb., 21 Ind. 492; Turner v. King, 98 Ky. 253, 32 S. W. 941; Shuster v. 
 State, 62 N. J. L. 521, 41 Atl. 701; Teese v. Huntingdon, 23 How. 2; State 
 V. Hoiward, 9 N. H. 485. Reputation In a place where the residence had 
 ceased two and a half years before was held too remote in Sun Fire OflSce 
 V. Ayerst, 37 Neb. 184. 
 
 isMcQuire v. Kenneflck, 111 la. 147, 82 N. "W. 485; "Weber v. Hanke, 4 
 Mich. 198; Vaughn v. Clarkson (R. I.), 34 Atl. 989. 
 
§ 860 ATTENDANCE AND EXAMINATION OP WITNESSES. 1099 
 
 ment of the pending suit, the weight of the testimony is lessened, 
 if the damaging reports grew out of the subject matter of the suit. 
 Witnesses have been held competent to testify on the subject who 
 had no knowledge of the character of the witness sought to be im- 
 peached, until the controversy arose.^* But a mere stranger, who 
 goes into the neighborhood only for the purpose of ascertaining the 
 reputation of the witness, is not competent to testify on the subject.^" 
 Contrary to the general weight of authority, the view has been 
 expressed in a few eases that there is no question of competency for 
 the court to settle in regard to the knowledge of witnesses called to 
 testify to the point of reputation for truth and veracity; that all 
 witnesses, competent to testify to any other fact in the case, are com- 
 petent to testify to the fact of reputation for truth, and that the 
 inquiry as to amount and means of knowledge of the witness is for 
 the jury.^^ 
 
 § 860 (863), Only general reputation for truth and veracity 
 admissible. — In most of the jurisdictions of this country where 
 a witness is thus called to impeach character, he can only speak 
 of the general reputation for truth and veracity of the person sought 
 to be impeached.^^ The question does not call for the individual 
 opinion or feeling of the witness upon the subject, but for his knowl- 
 edge, for the general speech of people concerning the other witness 
 
 19 Mask V. State, 36 Miss. 77; State t. Turner, 36 S. C. 534, where the 
 witness did not know the individual personally. 
 
 aoReid V. Reid, 17 N. J. Ea. 101; Curtis v. Fay, 37 Barh. (N. Y.) 64; 
 Haley v. State, 63 Ala. 83. 
 
 21 Bates V. Barber, 4 Cush. 107. See also, Wetherby v. Norris, 103 Mass. 
 565, where such inquiry was held discretionary. 
 
 22Bucklin v. State, 20 Ohio, 18; Kennedy v. Upshaw, 66 Tex. 442; Hoff- 
 man v. State, 93 Md. 388, 49 Atl. 658; State v. Foumier, 68 Vt. 262, 35 
 Atl. 178; State v. Marks (Ida.), 51 Pac. 1089; Com. v. Paine (Pa.), 54 Atl. 
 489; Ketchingham v. State, 6 Wis. 426; The Anarchists' Case (111.), 12 
 N. B. 865; Stevens v. Blake, 5 Kan. App. 124, 48 Pac. 888. But the testi- 
 mony is not rendered Inadmissible by the omission of the word "general," 
 if the evidence shows that it is based on general reputation, Coates v. 
 Sulau, 46 Kan. 341. But see Meyncke v. State, 68 Ind. 401. If the witness 
 is well known in the city, the inquiry should not be confined to the 
 locality of his dwelling place. People v. Lyons, 51 Mich. 215. Of course 
 the person sought to be impeached must have testified in the case, Hopp- 
 man v. State, 93 Md. 388, 49 Atl. 658. In Cal. by statute general reputation 
 for truth, honesty and integrity admitted, People v. Markham, 64 CaJ. 157, 
 30 Pac. 620, 49 Am. Kep. 700; People v. Chin Hane, 108 Gal. 597, 41 Pac. 
 697. Same in Ida., Code, C. P., 1901, § 4490; N. Mex., Terr. v. D. Guz- 
 man, 8 N. M. 92, 42 Pac. 68, and Utah, Rev. St., 1898, C. C. P., § 3412. 
 
1100 THE lAW OF EVIDENCE. § 860 
 
 and the common repute which he bears among those who know him, 
 since this is the only mode in which his reputation can be ascer- 
 tained.^' Hence it would not be sufficient foundation, if the witness 
 should only know the repute in which the other witness is held by, 
 two or three neighbors ; "* nor to merely show that the witness had 
 had business relations with such person ; ^^ nor ought the question to 
 be limited to the reputation of the witness among those "who deal 
 and associate with him."^° But it is not necessary, in order to lay 
 the foundation, to show that the impeaching witness knows the rep- 
 utation sustained by the other witness among "a majority of the 
 neighbors." " Under this rule, inquiry cannot be made of the im- 
 peaching witness as to particular facts which tend to discredit the 
 reputation of the person sought to be impeached.''* 
 
 2« Ayres v. Duprey, 27 Tex. 593; Kimmell v. Klmmell, 3 Serg. & R. (Pa.) 
 336, 8 Am. Dec. 655; Crabtree v Kile, 21 111. 180; Bucklln v. State, 20 Ohio 
 18; French v. Millard, 2 Oh. St. 44; Oom. v. Lawler, 12 Allen, 585; Benesch 
 V. Wagner, 12 Colo. 534, 13 Am. St. Rep. 254 ; Teese v. Huntington, 23 How. 
 2; Dave v. State, 22 Ala. 23; People v. Webster. 89 Cal. 572: Carlson v. 
 Winterson, 147 N. Y. 652, 42 N. B. 347; The Anarchists Case (111.), 12 N. 
 EJ. 865; Brlnggold v. Bringgold, 40 Wash. 121, 82 Pac. 179. It is not suf- 
 ficient as a basis for the witness to say: "I have heard others say;" it 
 sihould be the general report, Wike v. Lightner, 11 Serg. & R. (Pa.) 198. 
 See § 862 infra. 
 
 24Matthewson v. Burr, 6 Neb. 312; CJom. v. Rogers, 136 Mass. 158; Pick- 
 ens V. State, 61 Miss. 563. 
 
 2s Healy v. Terry, 9 N. Y. S. 519; Sargent v. Wilson, 59 N. H. 396. 
 
 28 Dance v. McBride, 43 la. 624. 
 
 2TDave V. State, 22 Ala. 23; Robinson v. State, 16 Fla. 835. 
 
 28 Johnson v. State, 61 Ga. 305; Dimick v. Downs, 82 111. 570; Conley v. 
 Meeker, 85 N. Y. 618; Shaefer v. Railway Co., 98 Mo. App. 445, 72 S. W. 
 154; Deck v. Railway Co., 100 Md. 168, 59 Atl. 650, 108 Am. St. Rep. 399; 
 Bucklin v. State, 20 Ohio, 18; Thurman v. Virgin, 18 B. Mon. (Ky.) 785; Bar- 
 ton v. Morphes, 2 Dev. (N. C.) 520; Wike v. Lightner, 11 Serg. & R. (Pa.) 
 198; Sharon v. Sharon, 79 Cal. 633; State v. Barrett, 40 Minn. 65; State 
 Jackson, 44 La. An. 160. Such proof cannot be given as to his habits of 
 intemperance, Holtt v. Moulton, 21 N. H. 586; Thayer v. Boyle, 30 Me. 
 475; State v. Nelson, 101 Mo. 464; People v. Kahler, 93 Mich. 625; Hoff- 
 man V. State, 93 Md. 388, 49 Atl. 658; or that he is reputed to be a horse thief. 
 Crane v. Thayer, 18 Vt. 162, 46 Am. Dec. 142; or that, In a former case, 
 he gave testimony which was not believed by the jury, Schenck v. Griffin, 
 38 N. J. L. 462; or that he had been habitually a witness In a given class 
 of cases, Rebecca Lea v. State, 64 Mis.. 294; or that he is an habitual liti- 
 gant, Palmeri v. Manhattan Ry. Co., 133 N. Y. 261, 30 N. B. 1001, 28 Am. 
 St. Rep. 632, 16 L. R. A. 136; or that a witness Is dangerous when intoxl 
 cated, State v. Nelson, 101 Mo. 464; or as to the chastity of the witness, 
 
§ 861 ATTENDANCE AND EXAMINATION OF WITNESSES. 1101 
 
 § 861 (864). The view that the inquiry may relate to maraj 
 character generally. — The view is sustained by high authority 
 that the inquiry into the general character of the witness should not 
 be restricted to his reputation for truth and veracity, but should be 
 allowed to involve his entire moral character. It is urged that it 
 may frequently happen that persons of known infamous character 
 may have established no reputation as to truthfulness or lack of 
 truth, and that society may have had no opportunity of ascertaining 
 whether their statements are generally true or false. It is further 
 urged that the jury can be safely trusted with a full knowledge of 
 the general moral standing of the witness; that, while they would 
 not reject his testimony on account of minor views, they would be 
 justified in so doing, if general turpitude were shown.^" The Eng- 
 lish rule is thus stated in quite general terms by Mr. Stephen: "The 
 
 unless chastity Is In issue, Oom v. Moore, 3 Pick. 194; CJonl. v. Churchill, 
 11 Met. 538, 45 Am. Dec. 229; Jackson v. Lewis, 13 Johns. 504; Bakeman v. 
 Rose, 18 Wend. 146; Spears v. Forrest, 15 Vt. 435; Leverich v. Frank, 6 Or. 
 212; People v. Yslas, 27 CaJ. 630; State v. Morse, 67 Me. 428; People v. 
 Wilson, 133 Mich. 517, 99 N. W. 6; Dimick v. Downs, 82 111. 570; State 
 V. Clawson, 30 Mo. App. 139, especially as to a male witness; Mclnemy 
 V. Irvln, 90 Ala. 275 (see also. Crump, v. Com. (Ky.), 20 S. W. 390. As 
 we have seen, in cases of rape and in some other offenses against women, 
 the character of the prosecutrix for chastity may be shown, see § 841 
 supra. See also. Pleasant v. State, 15 Ark. 624; Mclnerny v. Irvin, 90 Ala. 
 275; State v. Rogers, 108 Mo. 202; People v. Ilarrison, 93 Mich. 594; People 
 V. Mills, 94 Mich. 630); or that she kept a house of ill fame, State v. 
 Fournier, 68 Vt. 262, 35 Atl. 178; or as to alleged frauds committed by the 
 witness, Sarrelle v. Craig, 9 Ala. 535. 
 
 28 R. V. Watson, 13 Howe. St. Tr. 458; Carpenter v. Wall, 11 Adol. & BU. 
 803; Anon. 1 Hill, (S. C.) 268; State v. Boswell, 2 Dev. (N. C.) 209; Hume 
 V. Scott, 3 A. K. Marsh. (Ky.) 260; State v. Hamilton, 55 Mo. 520; White 
 V. State (Ala.), 22 So. Ill; State v. Guy (La.), 30 So. 268; Crawford v. 
 State (Ala.), 21 So. 214; State v. May (Mo.), 43 S W. 637; Johnson v. 
 People, 3 Hill, (N. T.) 178; State v. Grant, 79 Mo. 113; State v. Weeden, 
 133 Mo. 70, 34 S. W. 473; State v. Breeden, 58 Mo. 507; Walton v. State, 
 188 Ind. 9; Davenport v. State, 85 Ala. 336; Com. v. Wilson (Ky.), 32 
 S. W. 166; Griffith v. State, 140 Ind. 163, 39 N. E. 440; Helm v. Com, 26 Ky. 
 L. R. 165, 81 S. W. 270; State v. Spurling, 118 N. C. 1250, 24 S. E. 533; 
 Shaefer v. Railway C3o., 98 Mo. App. 445, 72 S. W. 154; Atwood v. Impson, 
 20 N. J. Eq. 150; State v. Raven. 115 Mo. 419; Dollner v. Lintz, 84 N. Y. 
 669; Tayl. Ev. (10th Ed.) § 1471. In Missouri, this question was held 
 proper: "Do you know the defendant's general character in the neighbor- 
 hood where he lives for truth and veracity, honesty, chastity and mo- 
 rality?" State V. Clinton, 67 Mo. 380, 29 Am. Rep. 506. In a few states, 
 under statutes, evidence may relate to reputation, as to the general moral 
 
1102 THE LAW OF EVIDENCE. § 861 
 
 credit of any witness may be impeached by the adverse party by the 
 evidence of persons who swear that they, from their knowledge of 
 the witness, believe him to be unworthy of credit upon his oath. 
 Such persons may not upon their examination-in-chief give reasons 
 for their belief, but they may be asked their reasons in cross-ex- 
 amination; and their answers cannot be contradicted.'"" In this 
 country statutes exist in numerous states extending the inquiry 
 to the general reputation of the witness for morality.'^ In some 
 of the states in which statutes exist, or where without statutes a 
 wider range of inquiry is permitted, testimony is received of bad 
 reputation of the witness as to particular lines of misconduct ^^ On 
 the other hand in other states although evidence is received as to 
 the general bad reputation of the witness, this kind of evidence is 
 excluded.'* Of course it is excluded in jurisdictions confining the 
 testimony to reputation for truth and veracity.'* Although the ten- 
 dency of English authorities is to give considerable latitude to this 
 inquiry, and although this view has the support of some American 
 authority, the prevailing rule in this country is, as we have seen, to 
 confine the inquiry to the reputation of the witness for truth and 
 veracity.^'^ After the proper foundation lias been laid by show- 
 ing that the witness knows the reputation for truth sjid veracity 
 
 character, Morrison v. State, 76 Ind. 335; Majors v. State, 29 Ark. 112; 
 Cline V. State, 51 Ark. 140. See notes 73 Am. Dec. 771; 56 Am. Dec. 219. 
 
 so Steph. Ev. art. 133. 
 
 31 Randall v. State, 132 Ind. 543, 32 N. E. 305; State v. Kirkpatrick, 63 
 la. 559, 19 N. W. 660; State v. Seevers, 108 la. 738, 78 N. W. 705. 
 
 52 Bad reputation as to cliastity. Hall v. State (Tex.), 66 S. W. 783; Hoop 
 V. State, 58 N. J. L. 479, 34 Atl. 749; Brittain v. State (Tex. Or. App.), 
 85 S. W. 278; State v. Duffey, 128 Mo. 549, 31 S. W. 98; State v. Summar, 
 143 Mo. 220, 45 S. W. 254; as to drunkenness. State v. Grant, 79 Mo. 113. 
 
 53 Chastity, People v. Chin Hane, 108 Cal. 597, 41 Pac. 697; People v, 
 O'Hare, 124 Mich. 515, 83 N. W. 279 ; Tucker v. Tucker, 74 Miss. 93, 19 So. 
 955; State v. Pollard, 174 Mo. 607, 74 S. W. 969; honesty, Davenport v. 
 State, 85 Ala. 336, 5 So. 152; State v. Guy, 108 La. 8, 30 So. 268; Richard- 
 son V. State, 103 Md. 112, 63 Atl. 317. 
 
 3* State V. Fournier, 68 Vt. 268, 35 Atl. 178, that witness kept house of 
 ill fame; Crane v. Thayer, 18 Vt. 162, 46 Am. Dec. 142, as being counter- 
 feiter; Calkins v. Am. Arbor Co., 119 Mich. 312, 78 N. W. 129, nonpay- 
 ment of debts. 
 
 30 Dimick v. Downs, 82 111. 570; Rudsill v. Slingerland, 18 Minn. 380; Sar- 
 gent V. Wilson, 59 N. H. 396; Shaw v. Emery, 42 Me. 59; Amidon v. Hos- 
 ley, 54 Vt. 25; Quinsigamond Bank v. Hobbs, 11 (Jray, 250; Sate v. Ran- 
 dolph, 24 Conn. 363; Warner v. Liockerby, 31 Minn. 421; Hillis v. Wylie, 26 
 Oh. St. 574; Laclede Bank v. Keeler, 109 111. 385; Lenox v. Fuller, 39 
 
§ 862 ATTENDANCE AND EXAMINATION OP WITNESSES. 1103 
 
 of the person in question in the eommimity where he lives, the 
 next interrogatory should be, what that reputation is. 
 
 § 862 (865). Inquiry as to believing the witness under oath. — 
 It has been the subject of considerable discussion whether the wit- 
 ness may be asked, on stating such reputation to be bad, if, from 
 that reputation, he would believe the person in question under oath. 
 It is urged, as an objection to such inquiry, that the opinion of the 
 witness should not be substituted for that of the jury ; that the ad- 
 mission of such opinions is a departure from the usual rules of evi- 
 dence, and that it gives an opportunity to bring before the jury 
 the prejudices, feelings and hostility of witnesses.^* On the other 
 hand, it is urged, in favor of the admission of such testimony, that 
 witnesses frequently misunderstand the nature of impeaching ques- 
 tions, assuming that they relate to character in general rather than 
 to reputation for veracity, and that, when the question of credit is 
 thus directly presented, the witness will better understand the na- 
 ture of the inquiry and more carefully weigh his answer. It is 
 also urged that the reputation of the witness sought to be im- 
 peached is not a mere matter of opinion, but one of fact ; that on this 
 subject, as in a large class of other cases, ordinary witnesses may 
 give their conclusions, where their means of knowledge have been 
 stated, and that the jury can best judge of the credibility of the 
 witness who is attacked, when they know the extent to which such 
 credibility has been impaired.*'' Although, as we have seen, the 
 propriety of such questions has been doubted,'^ yet the great weight 
 of authority sustains the practice.^' By the great weight of au- 
 
 Mcli. 268; Kennedy v. Upsbaw, 66 Tex. 442; Ketcbingmaji v. State, 6 
 Wis. 426. See also the cases cited above. 
 
 36 Phillips V. Kingfleld, 19 Me. 375, 36 Am. Dee. 760. 
 
 "Hamilton v. People, 29 Mich. 173; Watson v. Roode, 30 Neb. 264. 
 
 ss Phillips v. Kingfield, 19 Me. 375, 36 Am. Dec. 760; Walton v. State, 88 
 Ind. 9; Hooper v. Moore, 3 Jones, (N. C.) 428; Benesch v. Waggner, 12 
 Colo. 5.34, 13 Am. St. Bep. 254; State v. Miles, 15 Wash. 534, 46 Pac. 1047; 
 Greenl. Ev. § 461. 
 
 39 R. V. Brown, 10 Cox Cr. C. 453. Stevens v. Irwin, 12 Oal. 306; 
 Bason v. Chapman, 21 111. 33; Knight v. House, 29 Md. 194, 96 Am. Dec. 
 615; Keator v. People, 32 Mich. 484; People v. Rector, 19 Wend. 569; 
 People V. Mather, 4 Wend. 229, 21 Am. Dec. 122; State v. Boswell, 2 Dev. 
 (N. C.) 209; Anon., 1 Hill, (S. C.) 258; Ford v. Ford, 7 Humph. (Tenn.) 
 92; Wilson v. State, 3 Wis. 798; Lyman v. Philadelphia, 56 Pa. St. 488; 
 Hlllls v. Wylie, 26 Oh. St. 574; Billiard v. Lambert, 40 Ala. 204; Stokes 
 V. State, 18 Ga. 17; State v. Meadows, 18 W. Va. 658; State v. Christian, 
 44 La. An. 950; Nelson v. State, 32 Fla. 244; State v. Marks, 16 Utah, 204, 
 
1104 THE LAW OF EVIDENCE. § 863 
 
 thority, wten the opinion of the witness is thus called for it is to be 
 based upon his knowledge of the reputation of the other witness 
 and not upon his individual opinion of his real qualities or char- 
 acter.*" In a few states, however, there is some departure from the 
 rule. Thus in one state, it is held that the inquiry can only be, 
 whether the witness is deserving of credit on oath.*^ In a few other 
 states, the inquiry is not allowed at all.*'' Although it is usual to 
 ask the witness whether he would believe the person sought to be 
 impeached under oath, this is not required.*^ 
 
 § 863 (866). Effect of impeachment. — ^Where the general repu- 
 tation of the witness for truth and veracity is proven to be bad, the 
 jury may properly disregard his evidence except in so far as he is 
 corroborated by other credible testimony.** There is some au- 
 thority for the view that the court may properly instruct the jury 
 that, if the witness has been successfully impeached by proof of 
 general bad character, his testimony may be disregarded, unless 
 there is such corroboration.*' Since it is the province of the jury 
 to judge of the effectiveness of the impeachment and to determine 
 whether any part of the testimony of an impeached witness should 
 be believed, the court may properly refuse to instruct them not to 
 
 51 Pac. 1089; Wise v. Wakefield, 118 Cal. 107, 50 Pac. 310; State v. Christian, 
 44 La. An. 950, 11 So. 589; State v. Turner, 36 S. C. 539, 15 S. B. 602; 
 Mitchell V. State (Ala.), 42 So. 1014; 1 Phill. Ev. 229; 1 Stark. Bv. 182. 
 loGifford v. People, 148 111. 173, 35 N. B. 754; Benson v. State, 79 Miss. 
 
 538, 31 So. 200; State v. Polhemus, 65 N. J. L. 387, 47 Atl. 470; Carlson v. 
 Winterson, 147 N. Y. 652, 42 N. B. 347; State T. Tomer, 36 S. C. 539, 15 
 S. B. 602; Wilson v. State, 3 Wis. 798. But see, Crawford y. State, 112 
 Ala. 1, 21 So. 214. The witness cannot even consider facts personally 
 known to him. Smith v. State, 88 Ala. 76, 7 So. 52. 
 
 *i Bluitt V. State, 12 Tex. App. 39 ; Holbert v. State, 9 Tex. App. 219, 35 
 Am. Bep. 738; Douglass v. State (Tex. Cr. App.), 98 S. W. 840. 
 
 42 Walton V. State, 88 Ind. 9; State v. Rush, 77 Me. 519. 
 
 43 People V. Mather, 4 Wend. 229, 25 Am. Dec. 221; Laclede Bank v. 
 Keeler, 109 111. 385; People v. Tyler, 35 Cal. 553; Mitchell v. State, 94 
 Ala. 68. 
 
 44 Watson V. Roode, 30 Neb. 264; Niezorowskl v. State, 131 Wis. 166. See 
 §§ 901 et seq. infra. 
 
 45l,oehr V. People, 132 111. 504; State v. Feeley, 194 IVIio. 300, 92 S. W. 
 663, 112 Am. St. Rep. 511. But see State v. Larson, 85 la. 659, 52 N. W. 
 
 539. A recent Illinois case holds that where the impeachment is by 
 contradiction, the jury must believe tjiat the witness wilfully testified 
 falsely on a material point before the rule in the test applies, Beedle t. 
 People, 204 111. 197, 68 N. B. 434. 
 
§ 864 ATTENDANCE AND EXAMINATION OP WITNESSES. 1105 
 
 give credit to such testimony.*' Th.e general rules already given 
 apply to all witnesses alike, hence the reputation of an impeaching 
 witness for truth and veracity,*' or that of a party to the action may 
 be impeached, as in the case of ordinary witnesses.*' 
 
 § 864 (867). Cross-exainination of impeaching witness. — There 
 are peculiar reasons for allowing a searching cross-examination of 
 the impeaching witness. It may not only be important to test the 
 credibility of the witness, but to ascertain whether he is not testify- 
 ing concerning his own knowledge or private opinion, and not as 
 to the general reputation of the witness sought to be impeached.*" 
 As in cross-examination upon other subjects, the extent of the in- 
 quiry rests largely in the discretion of the trial judge.^" It has 
 been urged that, if the witness can be interrogated as to the sources 
 of his information, and as to the statements of others on which he 
 bases his answer, the questions would lead to protracted inquiries 
 and to the betrayal of confidences; but these inconveniences must 
 yield to the necessity for the discovery of the truth."^ Hence the 
 witness may be asked fully as to his means of knowledge and the 
 sources of his information upon the subjeet.^^ If the witness testi- 
 fies to the good character of the party, he may be asked if he has not 
 heard of the bad reputation of the witness or if he has heard ru- 
 more of specific acts of misconduct.^' But it is held that an im- 
 
 <« People V. O'Brien, 68, Mich. 468. The whole matter Is for the jury. 
 Spies v. People, 122 111. 1, 3 Am. St. Rep. 320. But it has been held Im- 
 proper to insruct the jury that one who had served out his term for 
 burglary was not entitled to full credit. People v. McLane, 60 Gal. 412. 
 
 *7 Phillips V. Thiorn, 84 Ind. 84, 43 Am. Rep. 85; State v. Cherry, 63 N. 
 C. 493; Starts v. People, 5 Den. 106; State v. Brandt, 14 la. 180; State v. 
 Moore, 25 la. 128, 95 Am. Dec. 776; Long v. Lamkln, 9 Cush. 361. 
 
 *8 Foster v. Newbrough, 58 N. Y. 481; Wright v. Hanna, 98 Ind. 217; 
 People V. Beck, 58 Cal. 212. 
 
 4sAnnls v. People, 13 Mich. 511; Weeks v. Hull, 19 Conn. 376, 50 Am. 
 Dec. 249; State v. Miller, 71 Mo. 89. But the reasons for a witness" view 
 are only to be called out on cross-examination, Birmingham Union Ry. 
 Oo. V. Hale, 90 Ala. 8. 
 
 60 Arnold v. Nye, 23 Mich. 286. 
 
 61 Weeks v. Hull, 19 Conn. 376, 50 Am. Dec. 249. 
 
 62 State V. Howard, 9 N. H. 485 ; People v. Mather, 4 Wend. 229, 21 
 Am. Dec. 122; Weeks v. Hull, 19 Conn. 376, 50 Am. Dec. 249; Annis 
 V. People, 13 Mich. 511; Phillips v. Kingfield, 19 Me. 375, 36 Am. 
 Dec. 760; Sitate v. Reed, 41 La. Ann. 581; Montgomery v. Crossthwait, 
 90 Ala. 553. 
 
 63Moulton v. State, 88 Ala. 119, 6 So. 758; People v. Mayes, 113 Cal. 
 618, 45 Pac. 860; Randall v. State, 132 Ind. 542, 32 N. E. 305; Shears 
 70 
 
1106 THE LAW OP EVIDENCE. § 865 
 
 peaching witness cannot be asked if he has personal knowledge 
 of any particular act of bad conduct of such person." He may- 
 be asked to state the names of aU persons whom he has heard 
 make statements unfavorable to the reputation of the person in 
 question," and what each person said.°° But these statements 
 of the witness are as to collateral facts and cannot be contra- 
 dicted by other witnesses."^ The cross-examiner may ascertain 
 whether the unfavorable reports are general or confined to a few 
 persons,"' and whether the witness knows the meaning of reputation 
 as used in this connection."' It may be shown that the impeaching 
 witness has made statements on the subject, conflicting with his 
 present testimony.'" Of course this testimony as to mere rumors 
 of misconduct affords no proof of actual misconduct and has no rel- 
 evancy except to affect the credibility of the impeaching witness."^ 
 § 865 (868). Sustaining an impeached witness — ^Laying founda- 
 tion. — ^We have already seen that a person cannot impeach his 
 own witness by proving his bad character for truth 'and veracity."' 
 Since the reputation of the witness will be presumed to be good until 
 attacked, it is clear that the party cannot fortify the credit of his 
 witness by proving good character for truth, until the credibility of 
 
 V. State, 147 Ind. 51, 46 N. E. 331; State v. McDonald, 57 Kan. 537, 
 46 Pac. 966; State v. Pain, 48 Lia. Aji. 311, 19 So. 138; State v. Boyd 
 (Mo.), 76 S. W. 979; State v. Dill, 48 S. C. 249, 26 S. B. 567; People v. 
 Weber, 149 Cal. 325, 86 Pac. 671. 
 
 64 Fox V. Com. (Ky.), 1 S. W. 396. See Moulton v. State, 88 Ala. 
 119, 6 So. 758; White v. State, 111 Ala. 92, 21 So. 330. 
 
 65 Bates V. Barber, 4 Cush. 107; State v. Miller, 71 Mo. 91; Lower v. 
 Winters, 7 Oow. 263; State v. Perkins, 66 N. C. 126. If It appears on 
 cross examination that the bad reports concerning the witness are based 
 on suspicion, the party calling the witness cannot show that the suspi- 
 cions are without foundation. State v. Woodworth, 65 la. 141. 
 
 oeAnnis v. People, 13 Mich. 511; State v. Perkins, 66 N. C. 126; Aneals 
 v. People, 134 111. 401, details of an assault held Inadmissible; Robblns 
 V. Spencer, 121 Ind. 596, 22 N. B. 660. 
 
 67Rohbins v. Spencer, 121 Ind. 596, 22 N. E. 660. 
 
 08 People V. Mather, 4 Wend. 229, 21 Am. Dec. 122; State v. Meadows, 
 18 W. Va. 658 ; Phillips v. Kingfield, 19 Me. 375, 36 Am. Dee. 760. 
 
 MBullard v. Lambert, 40 Ala. 204; Hutts v. Hutts, 62 Ind. 214. 
 
 8« State V. Lawlor, 28 Minn. 216; Jordan v. State, 120 Ga. 864, 48 
 S. E. 352; Lyles v. Com., 88 Va. 396, where it is held that the question 
 of his credibility rests with the jury. 
 
 61 Com. V. O'Brien, 119 Mass. 340, 20 Am. Rep. 325. 
 
 «2 See §§ 853, 854 supra. See note, 11 Am. Dec. 757-760, on corrobora- 
 tive testimony. 
 
§ 865 ATTENDANCE AND EXAMINATION OP WITNESSES. 1107 
 
 the witness has been assailed;'^ nor does evidence disputing the 
 testimony of a witness render competent evidence introduced to sus- 
 tain his reputation for veracity."* But, when the reputation of a 
 witness is thus directly attacked by the adverse party, such repu- 
 tation may be sustained by evidence of other witnesses that it is 
 good, and that they would believe the witness under oath.'" Of 
 course, the sustaining witness in such cases must have knowledge 
 of such reputation, and the proper foundation for the testimpny 
 must be laid.'" But it is not a necessary condition that he should 
 have heard the reputation of the witness discussed or called in 
 question, since it is to be presumed that those who are well ac- 
 quainted with the witness and his associates would have heard of 
 the fact, if his reputation for veracity was often assailed or called 
 in question. If the testimony were not allowed under such circum- 
 stances, "the most respectable man in the community might fail 
 in being supported, if his character for truth should happen to be 
 attacked. Living all his life above suspicion, his truth would 
 rarely be the subject of remark. A neighbor might be obliged to 
 admit, as in this case, that he had never heard it spoken of, and yet 
 be undoubtedly competent to sustain him."" Accordingly the 
 
 esBrann v. Campbell, 86 Ind. 516; State v. Cooper, 71 Mo. 436; Starks 
 V. People, 5 Den. 106; Wertz v. May, 21 Pa. St. 274; Rogers v. Moore, 
 10 Oonn. 13; Woey Ho v. XT. S., 109 Fed. 888; Funderburg v. State, 100 
 Ala. 36, 14 So. 877; Johnson v. State, 129 "Wis. 146,108 N. W. 55; First Nat. 
 Bank v. Blakeman (Okl.), 91 Pac. 868, 12 L. R. A. (N. S.) 364; Newton v. 
 Jackson, 23 Ala. 335, where a witness was contradicted, but not im- 
 peached; Merriam v. Hartford Ry. Co., 20 Conn. 354, 52 Am. Dec. 344, 
 which makes an exception to the general rule In the case of a stranger 
 from another state being a witness. See also. State v. Fruge, 44 La. 
 An. 165. But if such evidence is admitted, it is not reversible error, 
 Green v. State (Tex.), 12 S. W. 872. In some states this rule Is declared 
 by statute. 
 
 84 Stevenson v. Gunning's EJstate, 64 Vt 601; Diffenderfer v. Scott, 6 
 Ind. App. 243; Murphy v. State (Tex. Cr. App.), 40 S. W. 978. See note !%■ 
 L. R. A. (N. S.) 364. 
 
 . 00 Hamilton v. People, 29 Mich. 173; Sloan v. Edwards, 61 Md. 89; State 
 V. Nelson, 58 la. 208; Com. v. Ingraham, 7 Gray, 46; Morss v. Palmer, 15 
 Pa. St. 51; Stape v. People, 85 N. Y. 390; Clackner v. State, 33 Ind. 412; 
 People V. Rector, 19 Wend. 569; McCutchen v. McCutchen, 9 Port. (Ala.) 
 650; Haward v. Galbraith (Tex.), 30 S. W. 689; Harris v. State (Tex. Cr. 
 App.), 94 S. W. 227; Holly v. State (Ala.), 17 So. 102. See note, 82 Am. 
 St. Rep. 63. 
 
 66 Clay V. Robinson, 7 W. Va. 348; Cook v. Hunt, 24 111. 535. See also 
 GifCord v. People, 148 111. 173. 
 
 67 People V. Davis, il Wend. 309; Davis v. Franke, 33 Gratt (Va.) 413; 
 
1108 THE LAW OF EVIDENCE. , § 866 
 
 rule has often received judicial sanction that, when a person's char- 
 acter has not been called in question, this fact affords good evidence 
 that his character is good.''* 
 
 § 866 (869). Same, continued. — We have seen that the courts 
 should confine the testimony of impeaching witnesses within rea- 
 sonable limits as to time and place."' Although the same principle 
 applies when witnesses are called to sustain reputation, the courts 
 justly allow somewhat more latitude in this respect. If the wit- 
 ness attacked could only prove his good reputation in a single 
 neighborhood or at the time of the trial, serious injustice might be 
 inflicted both upon him and the party for whom he is called by an 
 unjust and unexpected atack.'^'' It is not necessary to the admission 
 of sustaining testimony that the attack iy impeachment should 
 have been successful. It is held "that any inquiries of witnesses by 
 one party as to the general reputation for truth and veracity of a 
 witness, introduced by the other party, are to be considered as an 
 impeachment of the general character of the witness, so far as to 
 open that subject to the introduction of evidence to sustain his good 
 character. ' ' ^^ The party who voluntarily opens this issue cannot, 
 because he finds that he has been unsuccessful, limit the inquiry 
 to the testimony of his own witnesses.''^ "When a vntness has testi- 
 fied to the good character of another, he may be cross-examined as 
 to the existence of reports which may have existed in respect to such 
 person ; '^ and, if he testified to the existence of any such reports 
 from which an unfavorable inference might be drawn, he may 
 be asked on re-examination to state the nature of such reports, in 
 order that the jury may judge whether they are of such a kind as to 
 impair the credibility of the witness.'* 
 
 Taylor v. Smltli, 16 Ga. 7; State v. Lee, 22 Minn. 407, 21 Am. Rep. 769; 
 Lemons v. State, 4 W. Va. 755, 6 Am. Rep. 293; State v. Nelson, 58 la. 
 208, Bucklin v. State, 20 Ohio, 18; Morss v. Palmer, 15 Pa. St. 51; First 
 Nat. Bank v. Wolff, 79 Cal. 69; Hodgklns v. State, 89 Ga. 761. But see, 
 Magee v. People, 139 111. 138. 
 
 6s See cases last cited. 
 
 00 See §§ 859, et seq. supra. 
 
 70 Morss V. Palmer, 15 Pa. St. 51; Chess v. Chess, 1 Pen. & W. 32, 21 
 Am. Dec. 350; Stratton v. State, 45 Ind. 468. 
 
 71 Com. V. Ingraham, 7 Gray, 49; Harris v. State (Tex. Or. App.), 94 
 S. W. 227. 
 
 72 Com. V. Ingraham, 7 Gray, 49. 
 
 73 Stape V. People, 85 N. Y. 390. 
 
 1* Stape V. People, 85 N. Y. 390, where it Is held that the person calling 
 
§ 867 ATTENDANCE AND EXAMINATION OF WITNESSES. 1109 
 
 § 867 (870). Does a, collateral attack admit sustaining testi- 
 mony. — While it is clear that a direct attack upon the reputation 
 of a witness admits evidence to sustain his credibility, the ques- 
 tion whether such evidence is rendered admissible by a collateral 
 attack is involved in more difficulty. It has sometimes been held 
 that, if it appears from the cross-examination of a witness that he 
 has been guilty of immoral conduet,''^ or charged with a criminal 
 offense,'" he may be sustained by evidence of good character for 
 truth. So it was held that, when a witness was assailed by evidence 
 that he had been suborned and paid for his testimony, his good 
 character for veracity might be shown. ''T So the same class of testi- 
 mony has been received in an action on an insurance policy, where 
 the defendant had sought to prove that the plaintiff had burned his 
 building and made false proofs of loss ; " and in an action for for- 
 gery where the defendant sought to prove that a witness for the 
 state had himself committed the forgery, proof of the good char- 
 acter of such witness was allowed.''" In a New York case, which 
 reviews the authorities from that state which are cited above, the 
 conclusion of the court was thus stated : " In general, a party will 
 not be permitted to give evidence of his witness* good character, 
 until it has been attacked on the other side, either by the evidence 
 of witnesses called for such purpose, or by the evidence of the wit- 
 ness on cross-examination, going to impeach his general charac- 
 ter." *• In this ease, it was held that such evidence was not made 
 admissible by the fact that the witness had stated on cross-examina- 
 tion that he had been prosecuted for perjury. As we have seen, 
 although it is held in some of the cases that answers on cross-exam- 
 ination, which tend to disparage the character of the witness, are 
 
 the witness had the right to ask whether the reports were In respect to his 
 drinking and trading horses. See § 864 supra. 
 
 75 People V. Rector, 19 Wend. 659; Rex. v. Claris, 2 Stark. 241. But see 
 People V. Gray, 7 N. Y. 378. See note, 88 Am. Dec. 321. 
 
 76 Carter v. People, 2 Hill, 317; Central Banking Co. v. Dodd, 83 Ga. 507. 
 
 77 People V. Ah Pat, 48 Oal. 61. 
 
 78 Mosely v. Vermont Ins. Co., 55 Vt. 142. 
 78 Webb v. State, 29 Ohio St. 351. 
 
 80 People V. Gay, 7 N. Y. 381; Russell v. Ooflto, 8 Pick. 143; Rogers v. 
 Moore, 10 Conn. 13; Fulkerson v. Murdock, 53 Mo. App. 151; Dlffenderfer 
 V. Scott, 5 Ind. App. 243; Warfield v. Railway Co., 104 Tenn. 74, 55 
 S. W. 304, 78 Am. St. Rep. 911. See § 865 supra. A very liberal rule as 
 to what is an attack upon the character of a witness obtains in some states, 
 ■State V. Cherry, 63 N. C. 493; Baine v. Tilden, 2 Vt. 554; State v. DeWolf, 
 8 Conn. 93. See the next section. 
 
1110 THE LAW OF EVIDENCE. § 868 
 
 sufficient to render admissible sustaining evidence of his good char- 
 acter, and although there is considerable authority in the decisions 
 to support this view, the practice would undoubtedly lead to great 
 confusion and the multiplicity of collateral issues, unless carefully 
 guarded by the discretion of the trial judge.^^ It is well settled 
 that, when proof is given, either by cross-examination or other evi- 
 dence, that the witness has ieen convicted of a crime, his good repu- 
 tation for truth, since such conviction, may ie shown.^^ But such 
 testimony is not received where it appears that the witness was ac- 
 quitted,^' or merely charged with crime without a conviction.'* So 
 where a witness admitted, on cross-examination, that he had been 
 drunk on various occasions, it was held that this did not render testi- 
 mony admissible as to his general good character for veracity.*" 
 Where proof has been offered that a witness has been convicted of a 
 crime evidence will be received that he has reformed and leads an 
 honest life.'* And evidence may be given of the circumstances of 
 the crime by way of explanation.*^ But evidence wiU not be re- 
 ceived that the crime was not in fact committed.*' Of course if 
 questions are as to mere arrests or indictments the witness should be 
 allowed to explain the circumstances." 
 
 § 868 (871). Proof of contradictory statements of witness does 
 not permit evidence of his good character. — It has sometimes 
 been held that, where proof has been offered of the inconsistent or 
 
 81 See dissenting opinion of Bronson J. in People v. Gay, 7 N. T. 378; 
 People V. Rector, 19 Wend. 569; DifCenderfer v. Scott, 5 Ind. App. 243; Han- 
 nah V. McKellop, 49 Barb. 342; Braddee v. Brownfleld, 9 Watts (Pa.) 124; 
 Scbaser v. State, 36 Wis. 429. 
 
 82 People V. Webb, 29 Ohio St. 351; Gertz v. Fitchburg Ry. Co., 137 
 Mass. 77, 50 Am. Rep. 285; R. v. Clark, 2 Stark. 241; Wick v. Baldwin, 51 
 Ohio St. 51, 36 N. B. 671; Luttrell v. State, 40 Tex. 651, 51 S. W. 930; 
 Kraimer v. State, 117 Wis. 350, 93 N. W. 1097. 
 
 83 Harrington v. Lincoln, 4 Gray, 563, 64 Am. Dec. 95. 
 
 84 People V. Gay, 7 N. Y. 378; Lipe v. Elsenlerd, 32 N. Y. 229. 
 
 85 McCarty v. Leary, 118 Mass. 509. 
 
 ssTenn. C. I. & R. Co. v. Haley, 85 Fed. 534, trusty. 
 
 87 State v. McClellan, 23 Mont. 532, 59 Pac. 924, 75 Am. St. Rep. 558; 
 South Gov. & C. S. R. Co. v. Beatty (Ky.), 50 S. W. 239. Or the nature of 
 the crime, Carlson v. Winterson, 147 N. Y. 652, 42 N. B. 347. 
 
 88 Com. V. Galligan, 15 Mass. 54, 28 N. E. 1129; Lamoureux v. Railway 
 Co., 169 Mass. 338, 47 N.' E. 1009; Fuller v. State (Ala.), 41 So. 774. 
 Contra, Reed v. State, 66 Neb. 184, 92 N. W. 321. 
 
 89 Stewart v. State (Tex. Cr. App.), 67 S. W. 107; DriscoU v. People, 47 
 Mich. 417, 11 N. W. 221. 
 
§ 868 ATTENDANCE AND EXAMINATION OF WITNESSES. ' 1111 
 
 Contradictory statements of a witness, his credit may be sustained 
 by proof of his good reputation for truth and veracity ; that, since 
 the object of the attack is to impeach the witness, the mode of such 
 attacl? is immaterial, and that the same reasons exist for sustaining 
 the witness, as where witnesses are called to testify to his bad rep- 
 utation."" But it is the better view, and the one sustained by the 
 weight of authority, that, in such cases, the witness cannot he for- 
 tified hy evidence of good character. Although the contradiction 
 in his statements may tend to show that he ought not to be believed 
 in the particular case, this does not necessarily touch his general 
 good character for truth or integrity, since the inconsistency may be 
 the result of mistake or forgetfulness.''^ On the same principle, 
 and for still stronger reasons, it is no ground for the introduction of 
 evidence to sustain the character of a witness that other witnesses 
 have contradicted him hy testifying to a different state of facts, and 
 this remains true, although the contradiction is of such a character 
 as to incidentally impute immorality or crime .'^ Nor is such evi- 
 
 80 Davis v. State, 38 Md. 15; Towns v. State, 111 Ala. 1, 20 So. 598; 
 Mercer v. State, 40 Fla. 216, 24 So. 154, 74 Am. St. Rep. 135; Clark v. 
 State, 117 Ga. 254, 43 S. E. 853, by statute; Brown v. State (Ala.), 38 
 So. 268; Contreras v. Traction Co. (Tex.), 83 S. "W. 870; George v. Pll- 
 clier, 28 Gratt. (Va.) 299, 26 Am. Rep. 350; Ledbetter v. State, (Tex. 
 Cr. App.), 29 S. W. 479; Clark v. Bond, 29 Ind. 555; Haley v. State, 63 
 Ala. 83; Isler v. Dewey, 71 N. C. 14; Glaze v. Whitney, 5 Or. 164; Burrell 
 V. State, 18 Tex. 713; Paine v. Tilden, 20 Vt. 554; Board CJoms. Carrol Ck). 
 v. O'Connor, 137 Ind. 662., 35 N. E. 1006; State v. Staley, 45 W. Va. 792, 
 32 S. E. 198. 
 
 oiGertz v. Fitchburg Ry. Co., 137 Mass. 77, 50 Am. Rep. 285; Saussy v. 
 South Fla. Ry. Co., 22 Fla. 327; Stamper v. Griffin, 12 Ga. 450; Brown v. 
 Mooers, 6 Gray, 451; Vance v. Vance, 2 Met. (Ky.) 581; Webb v. State, 
 29 Ohio St. 351; People v. Bush, 65 Cal. 129, 3 Pac. 590; State v. Owens, 
 109 la. 1, 79 N. W. 462; First Nat. Bank v. Com. TJ. Ass'n Co., 43 Or. 43, 
 52 Pac. 1050; State v. Rice, 49 S. C. 418, 27 S. E. 452, 61 Am. St. Rep. 
 816; State v. Archer, 73 la. 320, 35 N. W. 241; Wertz v. May, 21 Pa. St. 274; 
 Chapman v. Cooley, 12 Rich. (S. C.) 654; Heywood v. Reed, 4 Gray, 
 574, where the testimony was rejected, though the contradicting testimony 
 also imputed fraud to the witness; Hannah v. McKellop, 49 Barb. 342, 
 same, where It appeared that third persons had accused the witness of 
 false swearing; People v. Hulse, 3 Hill, 309. 
 
 82 DifCenderfer v. Soott, 5 Ind. App. 243; Bell v. State, 124 Ala. 94, 
 27 So. 414; Miller v. Ry. Co., 93 Ga. 480, 21 S. E. 52; Anderson v. Ry. 
 Co., 107 Ga. 500, 33 S. E. 644; Atwood v. Dearborn, 1 Allen, 483, 79 Am. 
 Dec. 755; Owens v. White, 28 Ala. 413; Chicago & A. Ry. Qo. v. Fisher, 
 31 111. App. 36; State v. Ward, 49 Conn. 429; Brann v. Campbell, 86 Ind. 
 516; Starks v. People, ^ Jten. 106; Saussy v. South Fla. Ry. Co., 22 Fla. 
 
1112 THE liAW OP EVIDENCE. § 869 
 
 dence rendered admissible by the fact that the witness has been at- 
 tacked in the argument of counsel."' In several cases, an exception 
 to the general rule has been recognized. Where the testimony im- 
 putes gross fraud to the suhscrihing witness of a will, since de- 
 ceased, evidence has been received to sustain the character of such 
 witness."* So such testimony was permitted where the evidence 
 tended to show that the testatrix was nearly unconscious at the time 
 her signature was obtained."' In Connecticut, considerable latitude 
 seems to have been allowed in receiving this kind of testimony ; for 
 example, the courts of that state have admitted evidence to sustain 
 the character for veracity of one who was a stranger in the commu- 
 nity °° and of a deaf and dumb person,"' although such character 
 has not been assailed. 
 
 § 869 (872). Former statements of witness not admissible to 
 corroborate him. — The rule has sometimes been declared that, 
 after an attempt has been made to impeach a witness by showing 
 his contradictory statements, proof may be received that he had af- 
 firmed the same thing before on another occasion, and that he is still 
 consistent vrith himself."' But it is clear that this view is eon- 
 
 327. Contra, State v. Desforges, 48 La. An. 73, 18 So. 912; Jacobs v. 
 State, 42 Tex. Cr. App. 353, 59 S. "W. 1111; Louisville & N. R. Co. v. M'Clish, 
 115 Fed. 268; State v. Nelson, 13 Wash. 523, 43 Pac. 637. The same Is 
 true where there is a mere attempt to show, by cross-examinaition, a 
 different state of facts, Stevenson v. Gunning's Estate, 64 Vt. 601, 25 
 Atl. 697. But see, Davis v. State, 38 Md. 15; State v. Waggoner, 39 La. 
 An. 919. 
 
 93 Ricks V. State, 19 Tex. App. 308; Brown v. Mooers, 6 Gray, 457. 
 See Tex. & Pac. Ry. Co. v. Raoney, 86 Tex. 363. 
 
 »4Provls V. Reed, 3 Moore & P. 4; Bishop of Durham v. Beaumont, 1 
 Camp. 207; Stephenson v. Walker, 4 Bsp. 50; Kennedy v. Upshaw, 66 
 Tex. 442. 
 
 90 Stephenson v. Walker, 4 Esp. 50. 
 
 ooMerrlam v. Hartford Ry. Co., 20 Com. 354, 52 Am. Dec. 344; Crook v. 
 State, 27 Tex. App. 198. 
 
 »7 State V. DeWolf, 8 Conn. 93, 20 Am. Dec. 90, attempt to ravish. 
 
 88 Cook V. Curtis, 6 Har. & J. (Md.) 93; People v. Vance, 12 Wend. 79, 
 where It appeared from the cross-examination of the witness that he was 
 an accomplice; S'tate v. Hendricks, 32 Kan. 559, where the statement was 
 received on the ground that it was immediately after the occurrence, and 
 before there was any opportunity or ground for fabrication; Mallonee 
 V. Duff, 72 Md. 283, where the declarations of a witness, made to a third 
 person, were admitted to corroborate his testimony; State v. Jacobs, 107 
 N. C. 873; State v. Morton, 107 N. C. 890; Burnett v. Wilmington, N. & N. 
 Ry. Co., 120 N. C. 517, 26 S. E. 819; State v. Staton, 114 N. C. 813, 19 S. K 
 
§ 869 ATTENDANCE AND EXAMINATION OP WITNESSES. 1113 
 
 trary to the great weight of authority. A representation without 
 oath can scarcely be considered as any confirmation of a statement 
 upon oath." The same rule applies when the witness is a party and 
 it is attempted to rebut proof of his admissions by evidence of his 
 self serving statements.^ If a witness is discredited by proof of 
 contradictory statements at different times, it is no restoration of his 
 credit to show that, at still other times, he has made statements in 
 accordance with his testimony. In some cases, the distinction has 
 been suggested that, while such previous consistent declarations 
 could not be received, if made after the inconsistent or contradictory 
 statements, they might be received, if prior in point of time.^ But 
 it is doubtful whether the distinction is weU founded ; and it seems 
 clear that since the confirmation of the testimony of a witness by 
 his own outside statements is contrary to the general rules of evi- 
 dence, the recognized exceptions should not be too widely extended.' 
 On the same principle, such a witness cannot be corroborated by 
 proof that, on a former occasion, he has made a sworn statement 
 similar to Ms present testimony.* On the same general principle a 
 witness cannot be corroborated by proof of his former consistent 
 
 96; State v. Caddy, 15 S. D. 167, 87 N. W. 927, 91 Am. St. Rep. 666; 
 Hicks V. State, 165 Ind. 440, 75 N. E. 641; Burch v. State (Tex. Cr. 
 App.), 90 S. W. 168; State v. Sharp (Mo.), 82 S. W. 134; Glass v. 
 Bennett, 89 Tenn. 478; Hobbs v. State, 133 Ind. 404, 32 N. E. 1019, 
 citing other Indiana cases; Stewart v. People, 23 Mich. 74, 9 Am. 
 Rep. 78, held discretionary; State v. Whelehon, 102 Mo. 17; Gilb. Ev. 135. 
 But see Robb v. Hackley, 23 Wend. 50. See note, 11 Am. Dec. 757. 
 
 »» State V. Archer, 73 la. 320; Bailey v. State, 9 Tex. App. 98; Tussell 
 V. State, 93 Ga. 450; Cincinnati Traction Oo. v. Stephens, 75 Ohio St. 
 171, 79 N. B. 235; Knight v. State, 114 Ga. 48, 39 S. B. 928, 88 Am. St. 
 Rep. 17; Chicago C. R. Oo. v. Matthieson„ 212 111. 292, 72 N. B. 443; 
 Munson v. Hastings, 12 Vt. 346, 36 Am. Dec. 345; Smith v. Morgan, 38 
 Me. 468; RIney v. Vanlandlngbam, 9 Mo. 807; Nichols v. Stewart, 20 Ala. 
 358; Mason v. Vestol, 88 Cal. 396; Stolp v. Blair, 68 111. 541; People v. 
 Doyell, 48 Cal. 85; State v. Thomas, 3 Strob. (S. C.) 269; Logansport 
 Turnpike CO. v. Hell, 118 Ind. 135; Connor v. People, 18 Colo. 373; 
 McAleer v. Horsley, 35 Md. 439; Stem v. Nelson, 65 Kan. 419, 70 Pac. 
 355; State v. McDaniel, 68 S. C. 304, 47 S. E. 384, 102 Am. St Rep. 661; 
 Legere r. State, 111 Tenn. 368, 77 S. W. 1059 ; Loomis r. New York, N. H. 
 & H. Ry. Co., 159 Mass. 39, 34 N. E. 82. See cases next section. 
 
 1 Pickering v. Reynolds, 119 Mass. Ill; Royal v. Chandler, 79 Me. 265; 
 McBride v. Railway Co., 125 Ga. 515, 54 S. E. 674. 
 
 2 Conrad v. Griffy, 11 How. 480, and cases cited. 
 « See § 870 infra. 
 
 * Robertson v. Caw, 3 Barb. 410; Smith v. State, 103 Ala. 40. 
 
1114 THE LAW OF EVIDENCE. § 870 
 
 statements, merely because other witnesses have testified to a differ- 
 ent state of facts." 
 
 § 870 (873). Qualification of the rule. — ^It is hardly necessary 
 to add that, when no attempt at impeachment has been made, the 
 former statements of the witness cannot be received in chief to 
 corroborate or sustain his statements on the witness stand." Al- 
 though it is a very general rule that evidence of what the witness has 
 said out of court cannot be received to fortify his testimony, there 
 are few exceptions which jiave long been recognized. "Where the 
 counsel on the other side imputes to the witness a design to misrep- 
 resent from some motive of interest or relationship, in order to repel 
 such imputation, it may be shown that the witness made a similar 
 statement before the supposed motive existed, or before the motive 
 of interest prompted him to make a different statement of the 
 facts.'' On the same principle, the admission of such testimony has 
 been approved in contradiction of evidence tending to show that the 
 account given by the witness was a fabrication of late date, and 
 where consequently it became material to show that the same ac- 
 count had been given Tbef ore its ultimate effect and operation, aris- 
 ing from a change of circumstances, could be foreseen.* In like 
 
 6 Hodges V. Bales, 102 Ind. 494, 1 N. B. 692; Stolp v. Blair, 68 111. 541. 
 Nor because on cross-examination he admitted having made contradictory 
 statements, Com. v. Tucker, 189 Mass. 457, 76 N. E. 127, 7 L. R. A. (N. S.) 
 1056. 
 
 oMunson v. Hastings, 12 Vt. 346, 36 Am. Dec. 345; Dogansport Co. v. 
 Hell, 118 Ind. 135; James v. State, 115 Ala. 83, 22 So. 565; People v. 
 Schmitt, 106 Cal. 48, 39 Pac. 204; Palmer v. Hartford D. Co., 73 Conn. 182, 
 47 Atl. 125; Franklin v. Com. 105 Ky. 237, 48 S. W. 986; Williams v. 
 State, 79 Miss. 555, 31 So. 197; Farleigh v. Kelley, 28 Mont 421, 72 
 Pac. 756; People v. Smith, 162 N. Y. 520, 56 N. E. 1001; Repass v. Rich- 
 mond, 99 Va. 508, 39 S. E. 160. See also cases in note 99 of last section. 
 
 TRobb V. Hackley, 23 Wend. 50: Reed v. Spaulding, 42 N. H. 114; 
 Yarbrough v. State, 105 Ala. 43, 16 So. 758; Barkley v. Copeland, 74 
 Cal. 1, 15 Pac. 307; McCord v. State, 83 Ga. 521, 10 S. e! 437; Hewitt v. 
 Corey, 150 Mass. 445, 23 N. B. 223; State v. Taylor, 134 Mo. 109, 35 S. W. 
 92; Nashville C. & St. L. Ry. Co. v Lawson, 105 Tenn. 639, 58 S. W. 480; 
 Ewing V. Keith, 16 Utah. 312, 52 Pac. 4; 1 Phill. Ev. 307, 308. 
 
 sRobb v. Hackley, 23 Wend. 50; English v. State (Tex.), 30 S. W. 233; 
 Stolp v. Blair, 68 111. 541; State v. Petty, 21 Kan. 54; Board v. Vickers, 
 62 Kan. 25, 61 Pac. 391; Griffin v. Boston, 188 Mass. 475, 74 N. E. 687; 
 State V. Dudoussat, 47 La. An. 977, 17 So. 685; State v. Caddy, 15 S. D. 
 167, 87 N. W. 927, 91 Am. St. Rep. 666; Aetna Ins. Co. v. Eastman, 95 
 Tex. 34, 64 S. W. 863; Silva v. Pickard, 10 Utah, 78, 37 Pac. 86; Callihan v. 
 W. W. Power Co., 27 Wash. 154, 67 Pac. 697, 91 Am. St Rep. 829; 
 
§ 871 ATTENDANCE AND EXAMINATION OP WITNESSES. 1115 
 
 manner such evidence is admissible to repel the suggestion or in- 
 ference that the witness has concealed or withheld evidence.® It is a 
 familiar rule that in actions for rape the prosecutrix may be cor- 
 roborated by proof that she made immediate complaint of the as- 
 sault.^" It is, of course, no violation of the general rule to allow 
 explanation of facts which may tend to discredit the testimony of a 
 witness ; ^^ nor does the rule prevent such testimony as may show 
 the opportunity of knowledge by the witness as to the matters stated 
 by him.^^ There are a few exceptional cases contrary to the great 
 weight of authority which admit evidence of prior consistent state- 
 ments to corroborate the witness, when he is attacked on cross-ex- 
 amination in almost any manner/^ 
 
 § 871 (874). Re-examination — Object of. — After a witness has 
 been cross-examined, the next stage in the proceeding is his re- 
 examination by the party calling him. The object of this examina- 
 tion is to allow the witness to explain or qualify his statements 
 made in the cross-examination, and to give the details of transac- 
 tions, concerning which he has been cross-examined, but which, 
 during such cross-examination, he had no opportunity to explain. 
 "The counsel has a right, upon such re-examination, to ask all 
 questions which may be proper to draw forth an explanation of the 
 sense and meaning of the expressions used by the witness on cross- 
 examination, if they be in themselves doubtful ; and also of the mo- 
 tive by which the witness was induced to use those expressions ; but 
 he has no right to go further and introduce matter, new in itself, 
 and not suited to the purpose of explaining either the expressions or 
 the motives of the witness. ' ' ^* Within its proper scope re-examina- 
 tion is a right and not merely discretionary.^" When all which 
 
 Hester v. Com., 85 Pa. St. 139; EUicott v. Pearl, 10 Peters, 412; State 
 V. Flint, 60 Vt. 304; 1 Stark. Bv. 149; 2 Poth. Ob. (Evans Ed. 1826) 251, 
 252. But see, Atlanta, K. & N. Ry. Co. v. Strickland, 116 Ga. 439, 42 S. B. 
 864. 
 
 9 Hewitt V. Corey, 150 Mass. 445, 23 N. E. 223; Com. v. Wilson, 1 Gray, 
 338. 
 
 10 See oases collected In Wigmore, Ev. §§ 1134-1140. 
 
 11 Dole V. Wooldredge, 142 Mass. 161. See §§ 852 supra, 871, 872 infra. 
 
 12 People V. Rohl, 138 N. Y. 616, 33 N. E. 933. 
 
 13 Burnett v. Railway Co., 120 N. C. 517, 26 S. B. 819, citing numerous 
 N. C. cases; Mlnton v. La Pollette Coal, Iron & R. Co., 117 Tenn. 415, 101 
 S. "W. 178, 11 L. R. A. (N. S.) 478. 
 
 "Greenl. Bv. § 467; Stark. Ev. 231. 
 
 16 G-ray v. Metropolitan St. Ry. Co., 165 N. Y. 457, 59 N. E. 262; Dole v. 
 
1116 THE LAW OF EVIDENCE. § 872 
 
 constituted the motive and inducement, and which shows the 
 meaning of the words and declarations has been laid before the 
 court, the court becomes possessed of all which can affect the credit 
 of the witness, and all beyond this is irrelevant and incompetent.^' 
 § 872 (875). Same, illustrations. — To illustrate the rules stated 
 in the last section, if a witness has testified to unfriendly feelings 
 toward a party, he may be asked on the re-direct examination as to 
 the nature and extent of such f eeling.^^ But this does not necessa- 
 rily admit the reasons for his animosity or the details of the trouble 
 with such party.^* If a witness is asked upon cross-examination 
 when he was first inquired of concerning the facts to which he has 
 testified in chief, he may be asked whether he had previously com- 
 municated the same facts to other persons,^" or as to the truth of 
 a written statement of such facts which was signed by the witness.^" 
 If it appears from the cross-examination of a witness that, at the 
 time of certain transactions, she was leading an abandoned life, it 
 is competent to show, on re-examination, that she is leading a re- 
 spectable lif e.^^ "When he is asked concerning his change of conduct 
 in respect to a certain transaction, he may be asked the reasons 
 therefor on re-examination.''^ So he may state why he has not taken 
 the deposition of a certain important witness, referred to on cross- 
 examination.^' When he is asked if he has held a conversation with 
 one of the parties, he may be questioned as to the nature of such con- 
 versation ; ^* and, if he has given the substance of a conversation on 
 
 Wooldredge, 142 Mass. 184, 7 N. E. 832; Martin v. Hallway Co. (Va.), 44 S. 
 B. 695; Villlneuve v. Railway Co., 73 N. H. 250, 60 Atl. 748. 
 
 16 The Queen's Case, 2 Brob. & B. 297, 6 E. C. L. 153. 
 
 17 People V. Hanifan, 98 Mich. 32; Campbell v. State, 23 Ala. 44, where 
 the witness was asked if he was so unfriendly as to wish to see an 
 innocent man convicted. 
 
 18 State v. Gregory, 33 La. An. 737; Mass. & N. Y. hold discretionary, 
 Com. T. Allen, 128 Mass. 46, 35 Am. Rep. 356; Brink v. Stratton, 176 N. Y. 
 150, 68 N. E. 148. 
 
 18 Com. v. Wilson, 1 Gray, 337. 
 
 20 People v. Mills, 94 Mich. 630. 
 
 21 Carter v. Com. (Ky.), 13 S. W. 921. 
 
 22 Baxter v. Abbott, 7 Gray, 71. So he may be asked the reasons for 
 certain conduct on his part. People v. Glover, 141 Cal. 233, 74 Pac. 745. 
 
 23Redmon v. Piersol, 39 Mo. App. 173. See also, Walker v. State, 136 
 Ind. 663. 
 
 2* Somerville Ry. Go. v. Doughty, 22 N. J. L. 495. But the court is not 
 bound, in such case, to admit the declaration of the party in his own 
 favor. Winchell v. Latham, 6 Cow. 682. 
 
§ 873 ATTMNDANCB AND KXAMINATION OP WITNESSES. 1117 
 
 cross-examination, he may be asked, on re-examination, to state tlie 
 exact words of an important portion of it.^° If facts are called out 
 on cross-examination which tend to impeach the integrity or char- 
 acter of the witness, he may, on re-examination, make explanations 
 showing that such facts are consistent with his credibility as a wit- 
 ness,, although such testimony would be otherwise irreleTant.*" 
 
 § 873 (876). Same, continued.-^We have seen that, when a 
 conversation is called out by one party, the other party has the right 
 to examine as to the details of such conversation.'''' The same rule 
 applies on re-examination, after a witness has been cross-examined 
 as to such conversation, but with the limitation that statements as to 
 wholly independent matters, which do not relate to or explain the 
 expressions used by the witness on cross-examination, are inad- 
 missible. If the questions on re-examination are not connected 
 with the statements elicited on cross-examination, or are remote 
 and distinct from those inquiries they should be excluded.^' 
 Nor is the whole of a mere hearsay narration made admissible, on 
 re-examination, by the fact that part of the same has been detailed 
 on cross-examination without objection.^" On the re-examination, 
 the inquiry is confined to new matters which have been developed or 
 referred to during the cross-examination.'" Hence, the party call- 
 ing the witness has no right, without the leave- of the court, to re- 
 enter upon the subjects inquired of in the direct examination.'^ 
 But since the general course of the examination of witnesses rests 
 
 25 Com V. Armstrong, 158 Mass. 78. 
 
 26 United States v. Barrels of High "Wines, 8 Blatch. (U. S.) 476; 
 McAIpine v. State, 117 Ala. 93, 23 So. 130; People v. Jolmson, 106 Cal. 289, 
 39 Pac. 622; Dennely v. O'Connell, 66 Conn. 175, 33 Atl. 920; State v. 
 Lyons, 113 La. 959, 37 So. 890; State v. Ezell, 41 Tex. 35, where it was 
 held that, if a witness had stated that he came from jail, it was proper 
 for the party calling him to ask on what charge he had been committed. 
 
 27 See § 822 supra. 
 
 28 Schaser v. State, 36 "Wis. 429; Dole v. "Woldredge, 142 Mass. 184, 7 N. 
 B. 832; Struth v. Decker, 100 Md. 368, 59 Atl. 727; People v. Buchanan, 
 145 N. Y. 1, 39 N. E. 846; George v. State, 61 Neb. 669, 85 N. "W. 840; 1 
 Greenl. Ev. § 467. See § 822 supra. 
 
 29 "Wagner v. People, 30 Mich. 384; McCracken v. "West;, 17 Ohio, 16. 
 The Queens' Case, 2 Brod. & B. 298, 6 E. C. L. 154. 
 
 so Button V. "Woodman, 9 Gush. 255, 57 Am. Deo. 46; State v. Denis, 19 
 La. An. 119; Hamilton v. Miller, 46 Kan. 486; Chicago, R. I. & P. Ry. Co. 
 V. Griffith, 44 Neb. 690. 
 
 SI Dutton V. "Woodman, 9 Cush. 255', 57 Am. Dee. 46; Rlgg v. State, 145 
 Ind. 560, 43 N. E. 309; State v. Lyons, 113 La. 959, 37 So. 890. See also, 
 Winslow V. Covert, 52 111. App. 63. 
 
1118 THE LAW OF EVIDENCE. § 873 
 
 largely in the discretion of the court, it is not error for the trial 
 judge to allow a re-examination as to matters which have been 
 touched upon in the examination-in-chief, or as to matters which 
 may have been omitted,^* or for the purpose of laying a foundation 
 for impeachment ; ^' and if, in the sound discretion of the court, the 
 re-examination is not strictly confined to the matters referred to in 
 the cross-examination, it is no ground for exception."* But that 
 which is strictly new matter is not properly introduced on re-direct 
 examination ; and it has sometimes been held, especially in criminal 
 cases, that, if the new matter thus elicited is of a nature calculated 
 to prejudice the minds of the jury, a new trial should be granted.^^ 
 The question is sometimes raised to what extent a party may rehut 
 incompetent or immaterial evidence which he has permitted to be 
 offered without objection. It is very clear that, in such case, the 
 party seeking to rebut can introduce no testimony which has not a 
 direct tendency to contradict that which has been received.'" But, 
 in a former section, we have seen that, by one class of decisions, 
 a party is estopped from excluding evidence offered in rebuttal or 
 explanation of irrelevant testimony given in his own behalf ; '^ and 
 that, in another class of cases, it is held that reception of improper 
 testimony without objection is no ground for admitting similar or 
 explanatory evidence, when properly objected to.'* If, in the dis- 
 cretion of the court, new matter is received in re-examination, or if 
 explanation of the answers given is necessary, the court may permit 
 
 32Schaser v. State, 36 Wis. 429; State v. Gregory, 33 La. An. 737; 
 Kendall v. "Weaver, 1 Allen, 277; Clark v. Vorce, 15 Wend. 1S3, 30 Am. 
 Dec. 53; MarshaU v. Davles, 78 N. Y. 414; Blake v. Stump, 73 Md. 160; 
 Balrd v. Gleckler, 7 S. D. 384, 64 N. W. 118; Humphrey v. State, 78 Wis. 
 569, 47 N. W. 836; Hoadley v. M. Seward & Son. Co., 71 Conn. 640, 42 Atl. 
 997; Kldd v. State, 101 Ga. 528, 28 S. E. 990; Sliafer v. Russell, 28 Mich. 
 444, 79 Pac. 559; People v. Majoine, 144 Cal. 303, 77 Pac. 952. As to re- 
 calling witnesses, see §§ 814, 815 supra. 
 
 33 Richmond & D. Ry. Co. v. Vance, 93 Ala. 144. See § 846 supra. 
 
 3* George v. State, 61 Neb. 669, 85 N. W. 840. See the cases above cited. 
 
 36 Schaser v. State, 36 Wis. 429. 
 
 30 Mowry v. Smith, 9 Allen, 67; Lake Erie & W. Ry. Co. v. Morain, 
 140 111. 117; Parker v. Dudley, 118 Mass. 602; State v. Witham, 72 
 Me. 531; Brown v. Perkins, 1 Allen, 89. 
 
 37 See § 172 supra; also the cases last cited. 
 
 38 State V. McGahey, 3 N. D. 293; Union Pac. Ry. Oo. v. Reese, 56 
 Fed. 288; Carter v. SUte, 36 Neb. 481; State v. Donelon, 45 La. An. 
 744; People v. Murphy, 135 N. Y. 450. See § 172 supra 
 
§ 875 ATTENDANCE AND EXAMINATION OF WITNESSES. 1119 
 
 a re-cross-examination. At this stage much must be left to the dis- 
 cretion of the court.'* 
 
 § 874 (877). Use of memoranda to refesh the memory of wit- 
 nesses. — Mr. Bentham has pointed out the advantages and disad- 
 vantages of allowing a witness on the stand to consult notes or 
 memoranda for the purpose of refreshing the memory. "On the 
 one hand, what you want is a prompt and unpremeditated answer. 
 If you allow him time to consult notes, you partly lose the advantage 
 of that lively and quick examination which does not give bad faith 
 time to think."*" On the other hand, if this assistance is denied, 
 the witness will often be unable to give accurate and complete tes- 
 timony, and the whole object of the judicial investigation may be 
 defeated. It is universally agreed that the balance between the 
 two inconveniences is by no means equal and that, under proper 
 limitations, witnesses may resort to memoranda or writings in aid 
 of memory. Such is the frailty of human memory that very few 
 witnesses would be able to testify as to particular dates, numbers, 
 quantities and sums, after the lapse of a few years, if they were not 
 permitted to refer to papers and writings which they knew to be 
 correct at the time they were made.*^ It is even held that a wit- 
 ness, who has the means of aiding his memory by a recourse to 
 memoranda or papers in his power, can lawfully be required to 
 look at such papers, to enable him to ascertain a fact with more pre- 
 cision, to verify a date or to give more exact testimony than he 
 otherwise could as to times, numbers, quantities and the like.*^ 
 
 § 875 (878). Same— When allowed.— Mr. Phillips made the fol- 
 lowing classification of the cases in which writings are permitted to 
 be used for the purpose of assisting the memory of the witness, 
 which has been followed by Prof. Greenleaf and other writers, and 
 which has often been approved: (1) "Where the writing is used 
 only for the purpose of assisting the memory of the witness; 
 (2) Where the witness recollects having seen the writing before, 
 and, though he has now no independent recollection of the facts 
 
 39 Atlantic & D. R. C!o. v. Rleger, 95 Va. 418, 28 S. E. 590; Brown v. 
 State, 72 Md. 468, 20 Atl. 186. 
 
 40 Bentham, Rationale Judicial Evidence cited In Goodeve, Ev. 210. As 
 to this general subject, see notes, 15 Am. Dec. 194-198; 98 Am. Dec. 
 619-623. 
 
 41 Peeter v. Health, 11 Wend. 477. 
 
 42Chapin v. Lapham, 20 Pick. 467; State v. Staton, 114 N. C. 813, 19 
 S. E, 96; Stevens v. Worcester (Mass.), 81 N. E. 907. 
 
1120 THE LAW OF EVIDENCE. § 875 
 
 mentioned in it, yet he remembers that, at the time he saw it, he 
 knew the contents to be correct; (3) Where the writing in question 
 neither is recognized by the witness as one which he remembers to 
 have before seen, nor awakens his memory to the recollection of 
 anything contained in it ; but nevertheless, knowing the writing to 
 be genuine, his mind is so convinced that he is, on that ground, 
 enabled to swear positively as to the fact. " *' In some jurisdictions, 
 it is held that a witness may refer to a former affidavit or deposition 
 given by him for the purpose of refreshing his memory.** While 
 
 <8l Greenl. Ev. § 437; Phill. Ev. (3d Ed.) 411. In some states the 
 principle Is declared by statute. Among the many illustrations which 
 might be given of wrltngs or memoranda, which the courts have allowed 
 to be used to refresh the memory of the witness, are hooks of account, 
 though not themselves evidence or containing the original entries, "White 
 v. Tucker, 9 la. 100; Flower v. Downs, 6 La. An. 539; Columbia v. 
 Harrison, 2 Mill's Const. (S. C.) 213; Treadwell v. "Wells, 4 Cal. 260; 
 Jones V. Johns, 2 Cranoh C. C. 426; Reed v. Jones, 15 "Wis. 40; Schettler 
 V. Jones, 20 "Wis. 412; Murray v. Cunningham, 10 Neb. 167; Bonnet 
 V. Glattfeld, 120 111. 166; Mead v. "White (Pa.), 8 Atl. 913; letters. Travelers' 
 Ins. Co. V. Sheppard, 85 Ga. 751; bills of particulars of articles furnished, 
 including such items as dates, weights and prices, International Ry. 
 Co. V. Blanton, 63 Tex. 109; Avery v. Knight, 99 Mich. 311; Hudnutt v. 
 Comstock, 50 Mich. 596; Rohrlg v. Pearson, 15 Colo. 127; or of goods 
 lost in a fire, in an action on an insurance policy, Stavlnow v. Home Ins. 
 Co., 43 Mo. App. 513; Johnston v. Farmers' Fire Ins. Co., 106 Mich. 96, 
 64 N. "W. 5; "Wise v. Phoenix Ins. Co., 101 N. Y. 637; or schedules of 
 stolen goods made by a clerk under the direction of the witness, State 
 V. Luff, 37 Me. 246; wayhills in a freight office, Erie Preserving Co. 
 V. Miller, 52 Conn. 444, 52 Am. Rep. 607; a ledger of account, Coliunbla 
 V. Harrison, 2 Mill's Const. (S. C.) 213; memoranda of payments in a 
 private cash book, Converse v. Hobbs, 64 N. H. 42; an account of sales 
 kept at an auction, Cowles v. Hayes, 71 N. C. 230; a copy of an itemized 
 account in an action for goods sold. New York & C. Syndicate v. Fraser, 
 130 U. S. 611; Mead v. "White (Pa.), 8 Atl. 913; the notes of a stenog- 
 rapher when he is a witness. State v. Cardoza, 11 S. C. 195; State v. 
 George, 60 Minn. 503, 63 N. "W. 100; Small v. Poffenbarger, 32 Neb. 
 234; Burbank v. Dennis, 101 C!al. 90; "Watrous v. Cunningham, 71 Oal. 
 30 (see also. People v. Kennedy, 105 Mich. 434, 63 N. "W. 405) ; a state- 
 ment made by a party as to his financial standing, to the witness, taken 
 down at the time, Hlnchman v. "Weeks, 85 Mich. 535 (but see Ooldwell 
 V. Bowen, 80 Mich. 382); memoranda made by an officer showing how 
 he served process, McClaskey v. Barr, 45 Fed. 151; the stub of a cash 
 book, Rlordan v. Guggerty, 74 la. 688; and bills of exceptions, as to 
 former testimony, Soloman Ry. Co. v. Jones, 34 Kan. 443. See other 
 illustrations In following sections. 
 
 ""White V. SUte, 18 Tex. App. 57; State v. Miller, 53 la. 154; Hull 
 
§ 876 ATTENDANCE AND EXAMINATION OF WITNESSES. 1121 
 
 in other states this is not allowed as it is held that the practice is in 
 violation of the rule that a memorandum to refresh the memory 
 should have heen made at or about the time to which it relates.*' 
 
 § 876 (879). Non-production of memorandum — Cross-examina- 
 tion. — ^It has been held that, when the memorandum is of the first 
 class, above named, and is simply to assist the memory of the wit- 
 ness, it need not he irought 'into court, since the witness, finally 
 testifies from his own recollection.*' The principle is the same as 
 where the memory has been refreshed by reference to any cir- 
 cumstance to which his mind has been drawn with peculiar force. 
 Of course, the absence of the writing may go to the question of 
 credibility.*' Moreover the writing resorted to to refresh the 
 memory may te of such character as to be wholly unintelligible to 
 any one tut the witness himself.** Yet, if the paper is used by the 
 witness while on the stand, he may be cross-examined as to the 
 same, and it may be inspected by the cross-examiner, since in no 
 other way can the accuracy and recollection of the witness be as- 
 certained; and it is only by the inspection of the paper and by 
 such cross-examination that it can be ascertained whether the mem- 
 orandum does assist the memory or not.*° Where, on cross-examina- 
 tion, a witness, at the request of counsel, produces a book to which 
 
 V. Alexander, 26 la. 569; Atkin v. State, 16 Ark. 568; Burney v. Ball, 
 24 Ga. 505; Billlngslea t. State, 85 Ala. 323. See § 343 supra. 
 
 «Oalloway v. Varner, 77 Ala. 541; Hull v. Alexander, 26 la. 569; 
 Putnam v. U. S., 162 U. S. 687, full discussion. In Morris v. Sackman, 
 68 Cal. 109, It was held that, to be admissible for the purpose, the 
 affidavit must be shown to have been made when the facts were fresh 
 in the mind of the witness. 
 
 *8 state V. Cardoza, 11 S. C. 195, 239; State t. Collins, 15 S. C. 373, 
 40 Am. Rep. 697; Com. v. Ford, 130 Mass. 64; State v. Magers, 36 Ore. 
 38, 58 Pac. 892; Nabors v. Goldforb, 77 Miss. 661, 27 So. 641; Harrison 
 V. Middleton, 11 Gratt. (Va.) 527; Folsom v. Apple River Log Co., 41 
 Wis. 602; Cameron v. Blackman, 39 Mich. 108; Kensington v. Inglis, 8 
 East, 273; Burton v. Plummer, 2 Adol. & Ell. 341; 1 Greenl. Ev. § 437. 
 
 47 2 Phill. Ev. (3d Ed.) 411; Loose v. State, 120 Wis. 115, 97 N. W. 526. 
 
 *8 State V. Cardoza, 11 S. C. 195, 239. 
 
 "State V. Bacon, 41 Vt. 526, 98 Am. Dec. 616 and note; Com. v. 
 Haley, 13 Allen, 587; Chute v. State, 19 Minn. 271; Rex v. Ramsden, 
 2 Car. & P. 603; Duncan v. Seeley, 34 Mich. 369; Cortland Mfg. Co. v. 
 Piatt, 83 Mich. 419, 47 N. W. 330; People v. Salsbury, 134 Mich. 537, 
 96 N. W. 936; Parks v. Biebel, 18 Colo. App. 12, 69 Pac. 273; but 
 this right does not exist where the paper is presented to the witness 
 for identification only, Stiles v. Allen, 5 Allen, 320; Race v. Rice (N. 
 J.). 19 Aa 736. 
 
 71 
 
1122 THE LAW OF EVIDENCE. § 877 
 
 he says he had referred to refresh his memory, it is proper for 
 counsel and the jury to inspect the entries relating to the matter 
 in issue, but the court may properly refuse such inspection of other 
 private matters, having no connection with the ease.'" In its dis- 
 cretion, the court may compel a witness to produce a memorandum 
 under his control which he has not produced."^ 
 
 § 877 (880). Memoranda not made by witness. — ^In those cases 
 where the witness, after seeing the memorandum or writing is able, 
 by its aid, to recall the facts and testify to them as a matter of recol- 
 lection, it is not necessary that the writing should have been made by 
 the witness, for it is the recollection and not the memorandum 
 which is evidence.^^ If the witness has before seen the memoran- 
 dum and recognized it as true, and at the time of the trial is still 
 satisfied of its truth he may be examined in regard to it.°' There 
 are numerous eases in which several persons acted in transacting 
 business matters, in making or directing or comparing entries or 
 
 BO CJom. V. Haley, 13 Allen, 587; McKivitt v. Cone, 30 la. 456; Tibbetts 
 V. Sternberg, 66 Barb. (N. Y.) 201; Parks v. Biebel, 18 Oolo. App. 12, 
 69 Pac. 273. 
 
 61 Com. V. Lannan, 13 Allen, 563. 
 
 52 Hill V. State, 17 Wis. 675, 86 Am. Dec. 736; Henry v. Lee, 2 Chit. 
 124; Coffin v. Vincent, 12 Cush. 98; Culver v. Scott & W. L. Co., 53 
 Minn. 360, 55 N. W. 552; Berry v. Jourdan, 11 Ricb. L. (S. C.) 67; 
 Davis v. Field, 56 Vt. 426; Com. v. Ford, 130 Mass. 64; Huff v. Bennett, 
 6 N. Y. 337; Bowden v. Spellman, 59 Ark. 251, 27 S. W. 602; State 
 V. Lull, 37 Me. 246; Dorsey v. Gassaway, 2 Haj. & J. (Md.) 402, 3 Am. 
 Dec. 557; Cameron v. Blackman, 39 Mich. 108; Heath v. Railway Co. 
 (S. C), 24 S. B. 166; Fay v. Walsh, 190 Mass. 374, 77 N. E. 44; Shrouder 
 v. State, 121 Ga. 615, 49 S. B. 702. Thus a witness has been permitted 
 to refresh his memory from notes taken J)y counsel or other persons 
 at a former trial, Reg. v. Philpots, 5 Cox Cr. C. 329; Beaubleu v. 
 Cicotte, 12 Mich. 459, 468; Laws v. Reed, 2 Lew. C. C. 152 (but see, 
 Meagoe v. Simmons, 3 Car. & P. 75; Thompson v. State, 99 Ala. 173) ; 
 or from his own deposition or testimony at a former trial or from a 
 copy of the same, George v. Joy, 19 N. H. 544; People v. Palmer, 105 
 Mich. 568, 63 N. W. 656; State v. Legg (W.^Va.), 53 S. B. 545, 3 L 
 R. A. (N. S.) 1152; Smith v. Morgan, 2 Moody & Rob. 257; Vaughan 
 V. Martin, 1 Bsp. 440; State v. Dean, 72 S. C. 74, 51 S. E. 524; Smith 
 V. State, 46 Tex. Cr. 267, 81 S. W. 936, 108 Am. St. Rep. 991; Com. v. 
 Fox, 7 Gray, 585, where the witness had signed the deposition only by 
 a mark; see also cases cited in note 44 § 875 supra; see § 343 supra; 
 or from contemporaneous records of a hospital. State v. Collins, 15 
 S. C. 373, 40 Am. Rep. 697; or from newspaper articles read by him, 
 Bragg Mfg. Co. v. New York, 141 Fed. 118. 
 
 63 B'Ourda v. Jones, 110 Wis. 52. See cases cited below. 
 
§ 878 ATTENDANCE AND EXAMINATION OP WITNESSES. 1123 
 
 writings, and thus acquired knowledge of their correctness, in which 
 it has heen held that the memorandum might be used by either, al- 
 though written wholly or in part by others."* But a witness should 
 not ie allowed to use any document or writing to refresh his mem- 
 ory which was made by another person, unless he knows it to ie cor- 
 rect." Under familiar rules writings or entries are not evidence 
 under any of the rules now under discussion unless shown to be 
 correct."" 
 
 § 878 (881). Copy used to refresh memory. — ^In aU such cases 
 as have just been discussed, a copy of the entry made by the witness 
 or by another person may be used to refresh the memory." In a 
 
 6* As from entries made by another In the presence of and under the 
 direction of the witness, Doe v. Perkins, 3 T. R. 749; R. v. S. & Mar- 
 tins, 2 Adol. & Ell. 215; State v. Lull, 37 Me. 246; Card v. Foot, 56 
 Conn. 369; Wells Whip Oo. v. Ins. Co., 209 Pa. St. 488, 58 Atl. 894; 
 Hazer v. Streich, 92 Wis. 505, 66 N. W. 720; Bowden v. Spellman, 59 
 Ark. 251; or from memoranda, invoice Boofcs, account books, or time 
 books made by others, but referred to by the witness from time to 
 time, or acted on by him and known by him to be correct, Billingslea 
 V. Smith, 77 Md. 504; Denver & R. G. Ry. Co. v. Wilson, 4 Colo. App. 
 355; Miller v. Jannett, 63 Tex. 82; Bowden v. Spellman, 59 Ark. 251; 
 Flint V. Kennedy, 33 Fed. 820 and note; Burrough v. Martin, 2 Camp. 
 112; Anderson v. Whalley, 3 Car. & K. 54; Reg. v. Langton, 13 Cox 
 C. C. 345; Douglas v. Leighton, 57 Minn. 81; Atchison, T. & S. F. Ry. 
 Oo. V. Lawler, 40 Neb. 356; or where the witness has checked entries 
 made by another person, Burton v. Plummer, 2 Adol. & Ell. 341; Flint 
 V. Kennedy, 33 Fed. 820 and note; Stubbings v. Dockery, 80 Wis. 618, 
 50 N. W. 618; or has actually seen money paid and a receipt given, 
 Rambert v. Cohen, 4 Esp. 213 (but ordinarily a mere memorandum of 
 a circumstance, made by the witness at the time of the occurrence, is 
 not admissible in evidence to corroborate him, although he states that 
 it is correct, Carr v. Stanley, 7 Jones (N. C.) 131; Urket v. Coryell, 
 
 5 Watts & S. (Pa.) 60; Gilmore v. Wilson, 53 Pa. St. 194. But see, 
 Marcly v. Schultz, 29 N. Y. 346; or has read- a memorandum to a party 
 who has assented to its terms, Bolton v. Tomlin, 5 Adol. & Ell. 856; 
 Jacob V. Lindsay, 1 Bast, 460; R. v. St. Martin's Leicester, 2 Adol. 
 
 6 Ell. 210. ' 
 
 05 Fritz V. Burglss, 41 S. C. 149; People v. Munroe, 100 Cal. G64. See 
 also, Hamatite Min. Co. v. Bast Tenn., V. & G. Ry. Co., 92 Ga. 268; 
 Proctor & Gamble Co. v. Blakeley Oil & Fertilizer Co., 128 Ga. 606, 57 
 S. E. 879. 
 
 66 People V. Mayne, 118 Oal. 516, 50 Pac. 654, 62 Am. St. Rep. 256, 
 entry in bible; Bates v. Preble, 151 U. S. 149; Kipp v. Silverman, 25 
 Mont. 296, 64 Pac. 884; Russell v. Hudson R. Co., 17 N. Y. 134. 
 
 BJMarclay v. Schultz, 29 N. Y. 346; McCormick v. Pennsylvania Cent 
 
1124 THE LAW OF BVIDENCK § 878 
 
 Massachusetts case, the rule on the subject is thus summed up: "In 
 order to refresh the recollection of a witness, it is not important that 
 the paper, book or memorandum should have been written or 
 printed by the witness himself, or that it should be an original writ- 
 ing. It is sufficient if he saw it while the facts stated therein were 
 fresh in his memory, and he knows that they are correctly trans- 
 cribed or printed. Upon inspecting it, he can state the facts, if 
 thereby called to his recollection. ' ' ^* In his work on evidence, Mr. 
 
 Ry. Co., 49 N. Y. 303; Lawson v. Glass, 6 Colo. 134; Milwaukee Harv. 
 Co. V. Tymloh, 68 Ark. 255, 58 S. W. 252; People v. Lowrie (Cal.), 
 87 Pac. 253; Curry v. Warner Co. 2 Mary. (Del.) 98, 42 AU. 425; 
 Pierce v. Railway Co. (Md.), 47 Atl. 144; Com. v. Burton, 183 Mass. 
 461, 67 N. E. 419; Jaques v. Horton, 76 Ala. 238, 244; Snyder v. Pat- 
 ton & Gibson Co., 143 Mich. 350, 106 N. W. 1106; Ward v. D. H. Morr, 
 T. & S. Co., 119 Mo. App. 83, 95 S. W. 964; Flolir v. Terr., 14 Okla. 
 477, 78 Pac. 565; Edwards v. Gimbell, 202 Pa. St. 30, 51 AU. 357; 
 Berry v. Jourdan, 11 Rich. L. (S. C.) 67; Hinchman v. Weeks, 85 Mich. 
 535; Harrison v. Middleton, 11 Gratt. (Va.) 527; Cameron v. Blackman, 
 39 Mich. 108; Pinch v. Barclay, 87 Ga. 393; Bonnet v. Glatfeldt, 120 
 111. 166; Welch v. Greene, 24 R. I. 515, 54^ Atl. 54; State Bank v. 
 Brewer, 100 la. 576, 69 N. W. 1011. Thus it has been held that a 
 witness might refresh his memory by the use of a copy of a copy of a 
 memoranda made by him, the original and first copy having been de- 
 faced, Polsom V. Apple River Log Driving Co., 41 Wis. 602; Brinkley 
 Car Works Mfg. Co. v. Parrell (Ark.), 80 S. W. 749; or from entries 
 made by an attorney as the items were read to him by the witness 
 from an original memorandum book which is lost and which was com- 
 pared by them. Mead v. McGraw, 19 Ohio St. 55; or may refresh his 
 recollection as to an occurrence in his presence by referring to the 
 account of it printed from his written report made at the time. Com. 
 V. Ford, 130 Mass. 64, 39 Am. Rep. 426; Hawes v. State, 88 Ala. 37, 
 where numerous illustrations are given; Topham v. McGregor, 1 Car. 
 & K. 320 (but where the author of the newspaper account cannot verify 
 the statement and has no independent recollection, the article cannot 
 be used as evidence. Downs v. New York Cent. Ry. Co., 47 N. Y. 83) ; 
 in like manner, a surveyor may refer to his transcript of his original 
 notes. Home v. MacKenzie, 6 Clark & F. 628; or the witness may 
 refer to memoranda prepared by others where she testifies that she knew 
 all the articles named in 'them were In the trunks, McCormick v. Penn- 
 sylvania Cent. Ry. Co., 49 N. Y. 303; see also, Stavinon v. Home Ins. 
 Co., 43 Mo. App. 513. Other cases illustrating this rule, copy of telegram. 
 Com. V. Burton, 183 Mass. 461, 67 N. B. 419; Sloan v. Pilzer, 54 S. E. 314, 
 32 S. E. 431; copy from shingle memorandum. Pierce v. Bangor & A. R. 
 Co., 94 Me. 171, 47 Atl. 144. 
 
 08 Com. V. Ford, 130 Mass. 64; Chapin v. Lapham, 20 Pick. 467; Com. v. 
 Burton, 183 Mass. ■^ei, 67 N. E. 419; 1 Greenl. Bv. § 436. 
 
§ 879 ATTENDANCE AND EXAMINATION OP WITNESSES. 1125 
 
 Taylor suggests that it is questionable whether a copy should he 
 used to refresh the memory so long as the original is in existence, 
 and its absence unexplained ; and, in some states, this view is main- 
 tained.^" But the contrary rule has been declared in other jurisdic- 
 tions, where it is held that, since the memorandum is in no sense 
 evidence, the familiar rule as to best evidence has no application."" 
 § 879(882). Must the memorandum be contemporaneous with 
 the facts recorded. — It is impossible to lay down any precise rule 
 as to how nearly contemporaneous with the fact or facts recorded 
 the memorandum must be. The courts have used expressions like 
 the following: "The memorandum must have been presently com- 
 mitted to writing;""^ "Written contemporaneous with the trans- 
 action;" ^^ "While the occurrences mentioned in it were recent and 
 fresh in his recollection ; " *' " Contemporaneously, or nearly so, 
 with the fact deposed to;"°* "At or shortly after the time of the 
 transaction, and while it must have been fresh in his memory. ' ' °° 
 It will be seen from an examination of the authorities cited that, in 
 determining this question, very much must depend upon the cir- 
 cumstances of each case and the discretion of the trial judge. It 
 is clear that the memorandum must not be used merely to convey 
 original information to the witness. "At the farthest, it ought to 
 have been made before such a period of time has elapsed as to ren- 
 der it probable that the memory of the witness might have become 
 deficient." "" In a case in the federal court in which the subject 
 
 69Tayl. Ev. (10th Ed.) § 1408; Burton v. Plummer, 2 Adol. & Ell. 341- 
 Chicago Ry. Co. v. Adler, 56 111. 344; Topham v. M'Gregor, 1 .Car. & K. 
 320; Felkins v. Baker, 6 Lans. (N. Y.) 516; Jones v. Stroud, 2 Car. & P 
 196; Southern Ry. Co. v. State, 165 Ind. 163, 75 N. E. 272. See also, Made- 
 gan V. Degl-aff, 17 Minn. 52. 
 
 60 Com V. Ftord, 130 Mass. 64; Caldwell v. Bowen, 80 Mich. 382; Pierce v. 
 Bangor, 94 Me. 171, 47 Atl. 144; Haines v. Cadwell, 40 Or. 229, 66 Pac 
 910; Bdwiards v. Gimbel, 202 Pa. St. 30, 51 Atl. 357. See also. Felkins v. 
 Baker, 6 Lans. (N. Y.) 516. 
 
 61 Sandwell v Sandwell, Camberhachs 445. 
 
 62 Stelnkeller v. Newton, 9 Car. & P. 313. 
 
 63 Burrough v. Martin, 2 Camp. 112. 
 
 64 Whitfield V. Aland, 2 Car. & K. 1015; Weston v. Brown, 30 Neb. 609. 
 
 65 Maxwell y. Wilkinson, 113 U. S. 656. 
 
 66 1 Greenl. Ev. § 438; Rice v. Ward (Tex.), 56 S. W. 747; Lawson v. 
 Glass, 6 Colo. 134, where memoranda of items of labor, made a month 
 after the time, were allowed; Jones v. Stroud, 2 Car. & P. 196, where a 
 copy of a memorandum, made the same year of the event, was not re- 
 
1126 ■ THE LAW OF EVIDENCE. § 880 
 
 was fully discussed it was lield that when a witness heard a conver- 
 sation, and some months afterward testified in respect to it before a 
 grand jury, such testimony was not contemporaneous and could not 
 be used to refresh his memory at the trial of the ease.°^ Mr. Taylor 
 suggests that, "if the witness will swear positively that the notes, 
 though made ex post facto, were taken down at the time when he 
 had a distinct recollection of the facts there narrated, he will in 
 general be allowed to use them, though they were drawn up a con- 
 siderable time after the transactions had occurred.""' But, if 
 there are any circumstances casting suspicion upon the memoranda, 
 the court should hold otherwise, as where the subsequent memor- 
 andum is prepared by the witness at the instance of an interested 
 party or his attorney,''' or if the memorandum has been revised or 
 corrected by such party or attorney.'" 
 
 § 880 (883). Mode of using memoranda. — The manner of using 
 memoranda of this character is left largely to the discretion of the 
 court ; thus, when the memoranda are numerous, it is not error for 
 the court to refuse to require the witness to lay the books aside, 
 after examining them, before testifying.'^ If the witness cannot 
 read and write, the proper practice is, not to read the memoranda 
 to him in the presence of the jury, but to allow him to retire with 
 counsel on each side and to have the memoranda read in his pres- 
 ence without comment.'^ It has been held that a witness, either on 
 direct or cross-examination, may be compelled to inspect a writing, 
 
 ceived, Atchison, T. & S. F. Ry. Co. v. Lawler, 40 Neb. 356, 58 N. W. 
 968; Ballard v. Ballard, 5 Rich. L. (S. C.) 495, where, under peculiar 
 facts, the' next day was held too long a time; Schwartz v Chickering, 58 
 Md. 290, sixteen months held to he too long a time; O'Neal v. Walton, 1 
 Rich. L. (S. C.) 234, two weeks held to he too long a time; Maxwell v. Wil- 
 kinson, 113 U. S. 656, twenty months held too long; Spring Garden Ins. Co. 
 V. Evans, 15 Md. 54, five months held too long; Weston v. Brown, 30 Neb. 
 609, where the memorandum was not made until months afterwards. 
 
 «7 Putnam v. U. S., 162 U. S. 687, quoting and discussing other cases. 
 
 osTayl. Ev. (10th Ed.) § 1407; R. v. Sir A. Gordon Kinlock, 25 How. St 
 Tr. 937; Wood v. Cooper, 1 C. & Kir. 645; Johnston v. Farmers Fire Ins. Co., 
 106 Mich. 96, 64 N. W. 5, where a witness has been allowed to use a list of 
 goods made from memory shortly before the trial. 
 
 «9 Stelnkeller v. Newton, 9 Oar. & P. 313 ; Bergman v. Shoudy, 9 Wash. 
 331; Schuyler National Bank v. BoUong, 24 Neb. 823; Spring Garden Ins. 
 Co. V. Evans, 15 Md. 54. 
 
 70 Anon., cited by L.d. Kenyon in Doe v. Perkins, 3 T. R. 752, 754. 
 
 71 Johnson v. Coles, 21 Minn. 108; Chapin v. Lapham, 20 i»ick. 467. 
 
 72 Com. T. Fox, 7 Gray, 585. 
 
§ 881 ATTENDANCE AND EXAMINATION OF WITNESSES. 1127 
 
 if there is reason to believe that thereby his memory may be re- 
 freshed." It is hardly necessary to state that it is only when the 
 memory needs assistance that resort may be had to these aids; and 
 that, if the witness has an independent recollection of the facts in- 
 quired about, there is no necessity or propriety in his inspecting 
 any writing or memorandum.''* 
 
 § 881 (884). Use of memoranda when the witness has no inde- 
 pendent recollection of the facts. — Up to this point the discussion 
 has been chiefly confined to the class of cases ia which the memoran- 
 dum or writing is in the stricter sense used to refresh the memory 
 that is, those cases where the witness has a present memory of the 
 facts, after the inspection of the writings. Perhaps the second and 
 third class of cases mentioned in the classification of Mr. Greenleaf , 
 and already referred to,'^ may be quite as convenietly treated under 
 a single head ; and we will now consider under what circumstances 
 memoranda may be used which do not awaken such recollection. It 
 is now well settled that a memorandum or writing may be used by 
 the witness, not only when he can swear from actual recollection, 
 but, in some cases, where the witness, after referring to such writ- 
 ing, can swear to a fact, not because he remembered it, but because 
 of his confidence in the correctness of the writing.''^ It is necessary 
 in such cases that the witness should be able to testify that the entry 
 or writing was made contemporaneously with the event and that at 
 the time he knew the memorandum to ie correct.'''' It is sometimes 
 said that the witness is allowed to testify to the matter, so recorded, 
 because he knows that he could not have made the entry unless the 
 fact had been true.''* In modern practice stenographers are often 
 
 7s state V. StaJiton, 114 N. C. 813; Cbapin v. Lapham, 20 Pick. 467. See 
 § 874 supra. 
 
 1* State V. Baldwin, 36 Kan. 1; Coxe Bros. & Co. v. Milbrath, 110 Wis. 
 499, 86 N. W. 174. See § 883 infra. 
 
 75 See § 875 supra. 
 
 76 Davis V. Field, 56 Vt. 426; Franklin v. Railway Co., 74 S. C. 332, 54 
 S. B. 578; Loose v. State, 120 Wis. 115, 97 N. W. 526. . See also, the cases 
 cited below. 
 
 77Costello V. Crowell, 133 Jlass. 352; Howard v. McDonough, 77 N. Y. 
 592; Davis v. Field, 56 Vt. 426; Acklen's Ex. v. Hickman, 63 Ala. 494, 35 
 Am. Rep. 54. 
 
 78 Costello V. Crowell, 133 Mass. 352. As illustrations of this rule, wit- 
 nesses have been allowed to prove protest and notice, where their knowl- 
 edge or belief depended solely on entries made by them, Bank of Tenn. 
 V. Cowan, 7 Humph. (Tenn.) 70; Bullard v. Wilson, 5 Mart. N. S. (La.) 
 196; the acts of a surveyor, Harrison v. Middleton H Gratt. (Va.) 527; 
 
1128 THE LAW OF EVIDENCE. § 882 
 
 called to testify as to testimony given or other statements wMch 
 they have reduced to vTriting. In some states the statute makes 
 their transcript duly certified competent evidence, in others such 
 transcripts properly verified by oath as correct are received, even 
 though the witness has no independent recollection of the facts.'"' 
 In others the transcript is rejected.*" 
 
 § 882 (885). Further illustrations ajid decisions. — It is a famil- 
 iar rule that the attesting witness to a deed or other document need 
 not be able to remember the circumstances attending the execution 
 of the instrument. It is enough if he can testify that his signature 
 would not have been made, unless contemporaneous with the act, and 
 for the purpose of attestation.*^ In a Massachusetts case, a witness 
 was allowed to testify to the delivery of goods, after looking at 
 entries made by him in the regular course of business, although he 
 had no recollection thereof. The court said: "It is obvious that 
 this species of evidence must be admissible iu regard to numbers, 
 dates, sales and deliveries of goods, payments and receipts of money, 
 accounts and the like, in respect to which no memory could be ex- 
 pected to be sufficiently retentive, without depending upon memo- 
 
 account iooTcs, Chamberlain v. Carter, 19 Pick. 188; Schittler v. Jones, 20 
 Wis. 412, though the hooks themselves might not be competent; Flint v. 
 Kennedy, 33 Fed. 820 and note; minutes of testitnony, Clark v. Vorce, 15 
 Wend. 193; Halsey v. Sinsebaugh, 15 N. Y. 485; and receipts, Mangham v. 
 Hubbard, 8 Barn. & C. 14. In like manner, such memoranda have been 
 used to prove the date ot the delivery oj articles, Costello v. Crowell, 133 
 Mass. 352; the amount of produce delivered, Wernwag v. Chicago Ry. Co., 
 20 Mo. App. 473; entries by a bank clerk. Bank of Baraef, 1 Rawle (Pa.) 
 152; scandalous words presently reduced to writing, Sandwell v. Sandwell, 
 Camberbachs 445; the facts as to a gambling transaction which were writ- 
 ten down at once. State v. Rawles, 2 Nott & McC. (S. C.) 331; memoranda 
 of a town clerk, as to the penalties for obstructing streets. Corporation of 
 Columbia v. Harrison, 2 Mill's Coiist. (S. C.) 213 and the memoranda of 
 a witness who measured and superintended the work done, Cleverly v. 
 McCullough, 2 Hill (S. C), 445. 
 
 T9 State V. Smith, 99 la. 26, 68 N. W. 428, 61 Am. St. Rep. 219; Higgins 
 v. State, 159 Ind. 57, 60 N. E. 685; Lucker v. Liske, 111 Mich. 683, 70 N. W. 
 421; Burbank v. Dennis, 101 Cal. 90, 35 Pac. 444; Wright v. Wright, 58 
 Kan. 525, 50 Pac. 444; Wells v. Chase, 126 Wis. 202, 105 N. W. 799. Ste- 
 nographers as witnesses, note'81 Am. St. Rep. 364. 
 
 80 Overton v. Chicago Co., 181 111. 323, 54 N. E. 898. 
 
 81 Mangham v. Hubbard, 8 Barn. & C. 14; Burling v. Paterson, 9 Car. & 
 P. 570; Hemphill v. Dixon, 1 Hemp. (U. S.) 235; Alvord v. Collin, 20 Pick. 
 418; New Haven Bank v. Mitchell, 15 Conn. 206; Hall v. Luther, 13 Wend. 
 491; Bennett v. Fulmer, 49 Pa. St. 155. 
 
§ 883 ATTENDANCE AND EXAMINATION OF WITNESSES. 1129 
 
 randa, and even memoranda would not bring the transaction to 
 present recollection. In such cases, if the witness, on looking at the 
 writing, is able to testify that he knows the transaction took place, 
 though he has no present memory of it, his testimony is admiss- 
 ible. ' ' '" Although the rule illustrated by the cases above referred 
 to is no doubt the prevailing rule, it has sometimes been held by 
 high authority that a witness cannot be allowed to testify to facts 
 as to which he has no recollection, even though he is willing to 
 assert that the memorandum is correct.'^ Although there may be 
 peculiar reasons for allowing a witness to refer to memoranda in- 
 cluding many details, as where there are many items, dates or names 
 which are readily forgotten, the rule is iy no means confined to mem- 
 oranda of this character, or to memoranda made in the regular 
 course of iusiness.^^ In those cases where the memorandum awakens 
 no independent recollection, the memorandum itself must he pro- 
 duced in court, so that the witness may be properly cross-examined 
 concerning it.*° 
 
 § 883 (886). Other modes of refreshing memory — Use of memo- 
 randa as evidence. — The memory of witnesses may be refreshed by 
 other modes than the use of memoranda in writing. While a party 
 cannot, as a rule, cross-examine his own witness, if a witness has 
 given an ambiguous or indefinite answer, or if his memory is at 
 fault, the court, in the exercise of a proper discretion, may allow 
 verbal inquiry as to statements or circumstances which may tend 
 to enable the witness to recollect more clearly the fact sought to be 
 proved.'" The question sometimes arises whether memoranda, 
 
 82 Dugan V. Mahoney, 11 Allen, 572, where the court had rejected tlie 
 entries as incompetent as independent evidence. Very many illustrations 
 and an able discussion will be found in 2 Cowen & Hill's Notes to Phill. 
 Ev., note 377. 
 
 83 Doe V. Perkins, 3 T. R. 749; Brie Preserving Co. v. Miller, 52 Conn. 
 444, 52 Am. Rep. 607; Watts v. Sawyer, 55 N. H. 38; Harrison v. Middleton, 
 11 Gratt. (Va.) 527; Juniata Bank v. Brown, 5 Serg. & R (Pa.) 226, 232; 
 Lawrence v. Barker, 5 Wend. 301, overruled in Halsey v. Sinsebaugh, 15 
 N. Y. 485; Redden v. Spruance, 4 Har. (Del.) 217; Key v. Lynn, 4 Litt. 
 (Ky.) 338; Vaslbinder v. Metcalf, 3 Ala. 100; Huckins v. People's Ins. Co., 
 31 N. H. 238; Clark v. State, 4 Ind. 156. 
 
 84 State v. Rawles, 2 Nott & McC. (S. C.) 331; Sandwell v. Sandwell, 
 Camberbachs 445; Clark v. Voyce, 15 Wend. 195; Halsey v. Sinsebaugh, 
 15 N. Y. 485. 
 
 85 1 Greenl. Ev. § 437; 1 Wliart. Ev. § 518. 
 
 88 0'Hagen v. Dillon, 76 N. Y. 170; Thomasson v. State (Ark.), 97 S. W. 
 297; Terr. v. Liyingston (N. M.), 84 Pac. 1021; State v. Cummins, 76 la. 
 
1130 THE LAW OF BVIDBNCE. § 883 
 
 used to refresh tlie memory, are themselves to be admitted in evi- 
 dence. Of course, the memoranda under discussion in this chap- 
 ter must not be confused with such writings asi hooks of accownt 
 which, on grounds elsewhere discussed, are competent as evidence, 
 when properly verified.'^ When the witness, after examining the 
 memorandum, finds his memory so refreshed that he can testify from 
 recollection, independently of the memorandum, there is no reason 
 or necessity for the introduction of the paper or writing itself; 
 and it is not admissible.** In such case, the jury have no knowledge 
 of the contents of the paper, unless opposing counsel call for such 
 contents on cross-examination.*" Of course the cross-examiner has 
 the right to inspect and use the document in order that he may test 
 the candor and credibility of the witness and to show that it could 
 not properly refresh his memory."" Although it is clear that the 
 document is not admissible as evidence when it so recalls the facts 
 to the mind of the witness that he remembers them and can testify 
 from his actual recollection, it has frequently been held that another 
 rule prevails when the witness, after examining the memorandum, 
 cannot testify to an existing knowledge of the fact, independently 
 of tlve memorandum, tut can testify that, at or about the time the 
 writing was made, he knew of its contents and of its truth or ac- 
 curacy. In such eases, both the testimony of the witness and the 
 contents of the memoranda are held admissible. ' ' The two are the 
 equivalent of a present positive statement of th,e witness, affirming 
 
 133, 40 N. W. 124; Battishill v. Humphrey, 64 Mich. 514. So reference may 
 be made to testimony taken on a former trial, Stanley v. Stanley, 112 Ind. 
 143; People v. Palmer, 105 Mich. 568, 63 N. W. 656; or preliminary hearing. 
 Carpenter v. State (Tex. Cr. App.), 51 S. W. 227. But hearsay eTidtence, 
 sue has conversations between a party and her attorney, cannot be used to 
 refresh the memory of a witness, Radley v. Seider, 99 Mich. 431. See § 818 
 supra. 
 
 SI See § 567 supra- 
 
 88 Flood V. Mitchell, 68 N. T. 507; Acklen's Ex. v. Hickman, 63 Ala. 494, 
 35 Am. Rep. 54; Palmer v. Hartford D. Co., 73 Conn. 1«2, 47 AU. 125; Rus- 
 sell V. Hudson River Co., 17 N. Y. 134; Marcly v. Shultz, 29 N. T. 346; 
 Brown v. Jones, 46 Barb. (N. Y.) 400; Meacham v. Pell, 31 Barb. (N. Y.) 
 65; Com v. Jeffs, 132 Mass. 5; Field v. Thompson, 119 Mass. 151; Caldwell 
 V. Bowen, 80 Mich. 382. But, after having sworn positively, a witness 
 cannot refer to a memorandum for the purpose of corroborating his tes- 
 timony, Sacket v. Spencer, 29 Barb. (N. Y.) 80. 
 
 80 Aclden's Ex. v. Hickman, 63 Ala. 494, 35 Am. Rep. 54. 
 
 »o Com. V. Jeffs, 132 Mass. 5; Manufacturing Co. v. Piatt, 83 Mich. 419, 
 47 N. W. 330; Smith v. Jackson, 113 Mich. 511, 71 N. W. 843. 
 
§ 88i ATTE2SrDANCE AND EXAMINATION OF WITNESSES. 1131 
 
 the truth of the contents of the memorandum.'"'^ But where the 
 witness testifies fully as to all the matters in the memorandum, its 
 rejection is not error."^ 
 
 § 884(887). Witnesses not compelled to criminaite themselves. — 
 It was a favorite maxim of the common law that no man should be 
 compelled to criminate himself, nemo tenetur seipsum accusareP 
 This rule was established both on grounds of public policy and of 
 humanity, "of policy, because it would place the witness under the 
 strongest temptation to commit the crime of perjury, and of human- 
 ity, because it would be to extort a confession of truth by a kind of 
 duress, every species and degree of which the law abhors. ' ' °* The 
 maxim had its origin in a protest against the inquisitorial methods 
 of interrogating accused persons which long obtained in the con- 
 tinental system, and which prevailed in the early history of the 
 common law. The change in the English criminal procedure was 
 founded upon no statute, but upon general acquiescence of the 
 courts in a popular demand ; and the maxim, which was a mere rule 
 of evidence in England, has assumed the form of constitutional or 
 statutory enactments in this country which have long been regard- 
 ed as safeguards of civil liberty and as sacred and important as the 
 privileges of the writ of habeas corpus or any of the other funda- 
 mental guaranties for the protection of personal rights. °' In some 
 instances, the provision is that no person in any criminal case shall 
 be compelled to be a witness against himself, in others that no per- 
 son shall be compelled to give testimony in any manner tending to 
 criminate him. These provisions are generally held to be decla/rato- 
 
 »i Acklen's Ex. v. Hickman, 63 Ala. 494, 35 Am. Rep. 54; Jacques v. Hor- 
 ton, 76 Ala. 238; Watson v. Walker, 23 N. H. 471; Webster v. Clark, 30 N. 
 H. 245; Tuttle v. Robinson, 33 N. H. 104; Howard v. McDonough, 77 N. T. 
 592; HofCman v. Chicago, St. P., M. & 0. Ry. Co., 40 Minn. 60; Kunder v. 
 Smith, 45 111. App. 368; Raux v. Brand, 90 N. Y. 309; National Bank v. 
 Madden, 114 N. T. 280; Chicago & A. R. Co. v. American Strawboard Co., 
 190 111. 268, 60 N. E. 518; Nehrling v. Herold Co, 112 Wis. 55,8, 88 N. W. 
 614; Manning v. School District, 124 Wis. 84, 102 N. W. 356. 
 
 92 Butler V Chicago, B. & G. Ry. Co., 87 la. 206. 
 
 83 Wing. Max. 486; Lofft. Max. 361. See also notes, 38 Am. St. Rep. 897; 
 21 Am. Dec. 55-62; 75 Am St. Rep. 318-347; 4 L. R. A. 766; 11 L._R. A. 591; 
 29 L. R. A. 811. For full discussion of the history of the rule see, 3 Wig- 
 more Bv. § 2250. 
 
 »4 Stark. Ev. 41. 
 
 85 People V. Forbes, 143 N. Y. 219, 38 N. E. 303; Brown v. Walker, 161 
 U. S. 591; Emery v. State, 101 Wis. 627, 78 N. W. 145. 
 
1132 THE LAW OF EVIDENCK § 885 
 
 ry of the common law rule, neither limiting nor enlar^g it.°' The 
 protection applies not only to parties accused, but to witnesses,"'' 
 and in all kinds of proceedings where testimony is to be offered, 
 civil as well as criminal.'* It illustrates the application of this 
 rule that, in times of less religious toleration than the present, wit- 
 nesses were excused from answering whether they were protestants 
 or papists."" 
 
 § 885 (888). Matters tending to criminate privileged. — Since it 
 is well settled that, if testimony is freely given by a witness, it may 
 afterwards be used against him in another trial, it is obvious that 
 the only safety of a witness lies in declining to disclose those facts 
 which would either criminate or tend to criminate him.^ He may 
 not only refuse to answer as to the crime itself, but as to any cir- 
 
 «6 Counselman v. Hitchcock, 142 U. S. 547, 584; Emery v. State, 101 Wis. 
 627, 78 N. W. 145. 
 
 »7 State V. Nowall, 58 N. H. 314; People v. Kelly, 24 N. Y. 74; State v. 
 Quarles, 13 Ark. 307; EJmery's Case, 107 Mass. 112; Ex parte Buskett, 106 
 Mo. 602, 17 S. W. 753. Many of the cases cited In the succeeding sections 
 illustrate the same principle. 
 
 «8 People V. Forbes, 143 N. Y. 219, 38 N. E. 303; Ex parte Senior, 37 Pla. 
 1, 19 So. 652; Wilson v. State, 31 Tex. Cr. App. 115, 51 S. W. 916, grand 
 jury; Counselman v. Hitchcock, 142 V. S. 547, 563. 
 
 89 R. V. Foeind, 13 How. St. Tr. 16, 18; R. v. Lord G. Gordon, 21 How. St. 
 Tr. 650, 2 Doug. 592. So witnesses have been held privileged from dis- 
 closing an attempt to improperly influence a juror, Grannis v. Branden, 5 
 Day (Conn.) 260, 5 Am. Dec. 143; when the answer might tend to show 
 the witness guilty of arson, Rex v. Pegler, 5 CJar. & P. 521; misprision of 
 treason. Burr Trial, 1 Rob. (N. Y.) 207; conspiracy, People v. Mather, 4 
 Wend. 236, 21 Am. Dec. 122; illegal voting. State v. Olin, 23 Wis. 309; 
 compounding a felony, Pleasant v. State, 15 Ark. 624; Hayes v. Caldwell, 
 10 111. 23; larceny, Howell v. Com., 5 Gratt. (Va.) 664; former acts of un- 
 chastity on the part of a female witness. Reed v. WUiams, 5 Sneed (Tenn.) 
 580, 73 Am. Dec. 157; Clifton v. Granger, 86 la. 573; usury, when indict- 
 able, Bank of Salina v. Henry, 2 Den. (N. Y.) 15'5; Henry v. Bank of 
 Salina, 3 Den. (N. Y.) 593; Fellows v. Wilson, 31 Barb. (N. Y.) 162; keep- 
 ing a gaming house, Fisher v. Ronalds, 16 Eng. L. & Eq. 417; libel. Matter 
 of Topam, 9 How. P/r. (N. Y.) 394; adultery, Smith v. Smith, 116 N. C. 386; 
 disposition of property by fraud under an insolvency act, Ex parte Clarke, 
 103 Cal. 352; or the character of the ho'ose where witness lived, Com. v. 
 Trider, 143 Mass. 180. 
 
 1 United States v: Moses, 1 Cranch C. C. 170; People v. Forbes, 143 N. Y. 
 219, 38 N. E. 303; People v. Mather, 4 Wend. 229, 21 Am. Dec. 122; Minter 
 V. People, 139 111. 363; 1 Burr's Trial, 245; Ex parte Cohen, 104 Cal. 524; 
 Com. V. Kimball, 24 Pick. 359, 35 Am. Dec. 326; Simmons v. Holster, 13 
 Minn. 249; Warner v. Lucas, 10 Ohio, 336. 
 
§ 886 ATTENDANCE AND EXAMINATION OF WITNESSES. 1133 
 
 eumstance, or any link in the chain of proof from which the crime 
 may be inferred. Said Lord Tenterden: "You cannot only not 
 compel a witness to answer that which will criminate him, but that 
 which tends to criminate him ; and the reason is this that the party 
 would go from one question to another and though no question 
 might be asked, the answer of which would directly criminate the 
 witness, yet they would get enough from him whereon to foimd a 
 charge against him. " ^ It follows that it is not necessary in order 
 to claim the privilege "that the answer, unconnected with other tes- 
 timony, should be sufficient to convict him of crime.'" It is not 
 the rule, however, that the privilege must always be extended to 
 the witness, if asked. While the court should be extremely careful 
 to protect the witness in this right, yet the danger must be some- 
 thing more than a merely fanciful or imaginary danger. It must 
 be real, with reference to the probable operation of law in the 
 ordinary course of things, and not merely speculative, having ref- 
 erence to some remote and unlucky contingency.* The court must 
 see, from the circumstances of the case and the nature of the evi- 
 dence which the witness is called to give, that there is reasonable 
 ground to apprehend danger to the witness from his being compelled 
 to answer, and that it would naturally subject him to actual punish- 
 ment." 
 
 § 886 (889). Statement of witness claiming privilege not con- 
 clusive. — Although there has been some conflict of opinion on this 
 subject, and although it has sometimes been held that the statement 
 of the witness is conclusive,* yet it is undoubtedly the true rule that 
 the court is not bound by the sworn statement of the ivitness that, in 
 
 2 Rex. V. Slaney, 5 Car. & P. 213; Baton v. Farmer, 46 N. H. 200; 1 Burr's 
 Trial, 244; Printz v. Cherney, 11 la. 469; Miskimins v. Shaver, 8 Wyo. 392, 
 58 Pac. 411, compounding a felony, full discussion; Greenl. Ev. § 451; Best 
 Bv. (lOth.Ed.) §§ 126, 127. 
 
 sMiskimins v. Shaver, 8 Wyo. 392, 58 Pac. 411;. 
 
 *Reg V. Boyes, 1 Best & Smith, 329; State v. Thaden, 43 Minn. 253; 
 Stevens v. State, 50 Kan. 712; Miskimins v. Shaver, 8 Wyo. 392, 58 Pac. 
 411; Rosendale v. MoNulty, 23 R. I. 465, 50 Atl. 850; People v. Priori, 164 
 N. Y. 459, 58 N. B. 668; Wheatley v. State, 114 Ga. 175, 39 S. B, 877, where 
 witness had been present with defendant while gambling; Ex parte Irvine, 
 74 Fed. 954. 
 
 6 Bx parte Cohen, 104 Cal. 524. See cases last cited. 
 
 6 Warner v. Lucas, 10 Ohio, 336; Fisher v. Ronalds, 17 Jur. 393; State v. 
 Edwards, 2 Nott & McC. (S. C.) 13, 10 Am. Dec. 557; Temple v. Com., 5 
 Va. L. J. 366. 
 
1134 THE LAW OF EVIDENCE, §886 
 
 his belief, the answer would tend to criminate him.'' If the rule 
 were otherwise, it would be in the power of every witness to deprive 
 parties of the benefit of his testimony by a mere pretence that his 
 answers to questions would have a tendency to implicate him in 
 some crime or misdemeanor or would expose him to a penalty or 
 forfeiture. While it is the duty of the court to protect the witness 
 in the exercise of his privilege, it is also the duty of the court to see 
 that he does not, under the pretence of defending himself, screen 
 others from justice.* Though the witness will be compelled to 
 answer when it appears to the court that such answer will not 
 interfere with the privilege, yet the court should he satisfied of this 
 fact, and also that the witness is mistaken or acting in bad faith, 
 when the claim of privilege is made." But if the question is incrim- 
 inating the good or bad faith of the witness is immaterial.^" When 
 the fact of danger of incrimination is once made to appear, consid- 
 eraile latitude should be allowed to the witness in judging for him- 
 self of the effect of any particular question, for it is obvious that a 
 question, though at first sight apparently innocent, may, by afford- 
 ing a link in a chain of evidence, become the means of bringing 
 home an offense to the party answering.'^'^ And when reasonable 
 apprehension of danger appears, then, inasmuch as the witness alone 
 knows the nature of the answer he would give, he alone must decide 
 whether it would convict him." " The witness will not be required 
 to explain in what manner the answer would criminate him, as this 
 
 TRichman v. State, 2 G. Greene (la.) 532; Regina v. Garbett, 1 Den. 
 Cr. C. 236; Sidebottom v. Adkins, 3 Jur. N. S. 631; Reg. v. Boyes, 1 Best & 
 Smith, 311; 1 Burr's Trial, 244, Marshall, C. X; Com. y. Brarynard, Thach. 
 Cr. C. (Mass.) 146; State v. Duffy, 15 la. 425; Mahanke v. Cleland, 76 la. 
 401; Miskimlns v. Shaver, 8 Wyo. 392, 58 Pac. 411; In re Consolidated Ren- 
 dering Co., 80 Vt. 55, 66 Atl. 790; Kirschner v. State, 9 Wis. 140; State v. 
 Lonsdale,' 48 Wis. 348; State v. Thaden, 43 Minn. 253, 45 N. W. 447, where 
 the privilege was refused when claimed by one whose name was alleged 
 to be forged, when called to prove his signature; Phill. Ev. (3d Ed.) 488; 
 Steph. Ev. art. 120. See cases cited in last section. 
 
 s 3 Phill. Ev. (3d Bd.) 488. 
 
 9 Chamberlain v. Wilson, 12 Vt. 491, 36 Am. Dec. 356; Janvrin v. Scam- 
 mon, 29 N. H. 280; 1 Burr's Trial, 244. 
 
 10 Miskimlns v. Shaver, 8 Wyo. 392, 58 Pac. 411, 421. 
 
 11 R. V. Boyes, 30 L. J. (Q. B.) 301, 304; Stevens v. State, 50 Kan. 712; 
 People V. Forbes, 143 N. Y. 219, 38 N. E. 303; Janvrin v. Scammon, 29 N. 
 H 280. See Hale v. Henkel, 201 U. S. 43. 
 
 12 State V. Thaden, 43 Minn. 253, 15 N. W. 447; 1 Burr's Trial, 244, Mar- 
 shall, C. J. 
 
§ 887 ATTENDANCE AND EXAMINATION OF WITNESSES. 1135 
 
 would defeat the object of the rule;^' and, on direct examination, 
 the witness may claim the privilege, if this would open the way to 
 exposure on proper cross-examination.^* 
 
 § 887 (890). Privilege extends to acts as well as words — ^When. 
 to be claimed. — The privilege extends to the acts as well as the 
 words of the witness, and it has frequently been held that a witness 
 cannot be compelled to allow an inspection of parts of his person, 
 when it would tend to criminate him.^" Of course, when a party 
 is required to submit his person for inspection in a civil case, as in 
 an action for personal injury,^" or in actions for divorce on the 
 grounds of impotency,^' the right to such inspection rests on differ- 
 ent grounds, and is not repugnant to the rule under discussion. 
 Frequently in criminal cases the party or witness has waived the 
 privilege by submitting to personal inspection, or examination, or 
 by performing acts at the request of the court or adverse party." 
 But in other cases where the act of the witness was under compul- 
 sion the testimony was rejected}^ It is the rule which prevails in 
 
 18 People V. Matter, 4 Wend. 229, 21 Am. Dec. 122; 1 Burr's Trial, 245; 
 Southard v. Rexford, 6 Cow. 254; Wallace v. State (Pla.), 26 So. 713; 
 Alston V. State (Ala.), 20 So. 81. 
 
 i*Printz V. Cheeny, 11 la. 469. 
 
 15 Blackwell v. State, 67 Ga. 76, 44 Am. Rep. 717, 3 Crlm. Law Mag. 394, 
 where it was held that the prisoner could not he required to exhibit his 
 leg to the jury; Day v. State, 63 Ga. 669, where the same was held as to 
 compelling the prisoner to put his foot in a shoe track; Stokes v. State, 
 5 Baxt. (Tenn.) 619, 30 Am. Rep. 72; State v. Jacobs, 5 Jones (N. C.) 
 259; People v. McCoy, 45 How. Pr. (N. Y.) 216; Pritz v. State ex rel. 
 Holden, 33 Ind. 187. See full note, 94 Am. St. Rep. 336-347. But see, Wil- 
 liams V. State, 98 Ala. 52, where It was held no error to require a witness 
 to present herself to the jury, that they might better judge of her age; 
 State V. Ah Chuey, 14 Nev. 79, 33 Am. Rep. 530; State v. Graham, 74 N. C. 
 646, 21 Am. Rep. 493, where it was held no error for the officers, on ar- 
 resting the prisoner, to compel him to place his foot in shoe tracks; 
 Walker v. State, 7 Tex. App. 245. See § 400 swpra. 
 
 le Schroeder v. Chicago Ry. Co., 47 la. 375. See § 396 supra. 
 
 irDevenbagh v. Devenbagh, 5 Paige (N. Y.) 554, 28 Am. Dec. 443. 
 
 18 Examination submitted to, People v. Kemmler, 119 N. Y. 580, 24 N. E. 
 9; Spicer v. State, 69 Ala. 159; People v. Glover, 71 Mich. 303, 38 N. W. 874; 
 furnishing identification, Johnson v. Com., 115 Pa. 369, 9 Atl. 78; furnish- 
 ing specimens of handwriting. People v. Molineux, 168 N. Y. 264, 61 N. E! 
 286. 
 
 19 State v. Height, 117 la. 650, 91 N. W. 935; Cooper v. State, 816 Ala. 610, 
 6 So. 110, 11 Am. St. Rep. 84; cases where admitted, O'Brien v. State, 125 
 Ind. 38, 25 N. E. 137; State v. Reasby, 100. la. 231, 69 N. W. 451; State v. 
 
1136 THE LAW OF EVIDENCE. § 887 
 
 England that the witness may claim the privilege at any time, even 
 after he has voluntarily given some testimony on the subject.^" But 
 it is generally held in this country that it is too late for the witness 
 to cladm his privilege after he has, without objection, given testi- 
 mony concerning the matter tending to criminate him;^^ and that, 
 if he states a particular fact in favor of the party calling him, he is 
 bound, on cross-examination, to state the circumstances relating to 
 the fact, though, in so doing, he may expose himself to a criminal 
 charge.^" In the cases, however, where this rule has been applied, 
 it has generally appeared that the witness had been cautioned, or 
 otherwise had knowledge of his rights, and, if the court is satisfied 
 that the witness has answered certain questions tending to criminate 
 himself in ignorance of his rights or under a misapprehension, the 
 privilege should still be recognized.^' We have already seen that, 
 where a witness answers questions on direct examination without 
 claiming his privilege, he must submit to a proper cross-examination, 
 although such cross-examination may tend to criminate him.^* This 
 rule applies with peculiar force when the witness is a party defend- 
 ant in a criminal case. The object of the statutes allowing witnesses 
 to testify in their own behalf is to promote the discovery of the 
 
 Tettaton, 150 Mo. 354, 60 S. W. 743; People v. Truck, 170 N. T. 203, 63 N. E. 
 281; Thornton v. State, 117 Wis. 338, 93 N. W. 1107, 98 Am. St. Rep. 924. 
 
 20 R. V. Garbett, 2 Car. & K. 474; R. v. Inhabitants of Cliviger, 2 T. R. 
 268. 
 
 21 Com. V. Pratt, 126 Mass. 462; Com. v. Price, 10 Gray, 472, 71 Am. Dec 
 668; State v. Allen, 107 N. C. 805; Burrell v. Montana, 194 U. S. 572. In 
 Iowa, it was held that when one of two defendants had testified before the 
 grand jury, it was too late to claim the privilege on the trialr. State v. 
 Van Winkle, 80 la. 15; The Boston Marine Ins. Co. v. Slocovitch, 55 N. Y. 
 S. 452; People v. Teague, 106 N. C. 576; State v. Peffers, 80 la. 580; Com. 
 V. Gould, 158 Mass. 499. 
 
 22 Foster v. Pierce, 11 Cush. 437, 59 Am. Dec. 152; State v. K , 4 N. 
 
 H. 562; Dixon v. Vale, 1 Car. & P. 278; East v. Chapman, 2 Car. & P. 570; 
 Brown V. Brown, 5 Mass. 320; Chamberlain v. Willson, 12 Vt. 491, 36 Am. 
 Dec. 356; State v. Treshour, 1 Ky. L. Rep. 224; Ex parte Senior, 37 Fla. 1, 
 19 So. 652; State v. Nichols, 29 Minn. 357, 13 N. W. 153; Ex parte Hedden 
 (Nev.), 90 Pac. 737; Elvans v. O'Connor, 174 Mass. 287, 54 N. E. 557. But 
 where it is sought in the cross-examination to enter upon the investigation 
 of entirely separate transactions, the privilege may be clalm.ed on such 
 Cross-examination, Lombard v. Mayberry, 24 Neb. 674, 8 Am. St. Rep. 234; 
 People V. Meyer, 75 Cal. 383. 
 
 23 Mayo V. Mayo, 119 Mass. 290; Emery v. State, 101 Wis. 627, 78 N. W. 
 145; State v. Duncan, 78 Vt. 264, 63 Atl. 225, 112 Am. St Rep. 922. 
 
 24 See § 836 supra. 
 
§ 888 ATTENDANCE AND EXAMINATION OP WITNESSES. 1137 
 
 truth, SO far as can be done without injuring the rights of the wit- 
 ness or parties. "While the accused cannot be compelled to testify, 
 if he becomes a witness, he takes the hazard of the situation; he 
 subjects himself to the same rules of cross-examination as other wit- 
 nesses, and renders himself liable to be cross-examined upon all 
 questions pertinent to his direct examination ; ^° and in some states, 
 it is held, in such case, that he may be cross-examined upon all ques- 
 tions relevant to the issue.^* 
 
 § 888 (891), No privilege, if testimony cannot be used to con- 
 vict the witness, — The reason for the privilege ceases when the 
 testimony called for could not under any circumstances be used 
 against the witness.^^ But the view has received judicial sanbtion 
 
 26 People V. Casey, 72 N. Y. 393; Com. v. Nichols, 114 Mass. 285, 19 Am. 
 Rep. 346; Com. v. Smith, 163 Mass. 411; People v. Arnold, 116 Cal. 682, 48 
 Pac. 803; State v. Larkins, 5 Ida. 200, 47 Pac. 945; Fitzpatrick v. U. S., 178 
 U. S. 304; Harrold v. Terr. (Okla.), 89 Pac. 202, 10 L. R. A. (N. S.) 604; 
 People V. Brown, 72 N. Y. 571, 28 Am. Rep. 183; Spies v. People, 122 111. 
 235; State v. Wells, 54 Kan. 161; Este v. Wilshire, 44 Ohio St. 636; People 
 V. O'Brien, 66 Cal. 602, where it was held a violation of the constitutional 
 provision to compel a defendant in a criminal action to testify, on cross- 
 examination, as to matters not referred to in the examination-in-chief. 
 See .§ 836 supra. 
 
 28 Com. V. Lannon, 13 Allen, 563; Com. v. Mullen, 97 Mass. 545; Com. v. 
 ToUiver, 119 Mass. 312; McGarry v. People, 2 Lans. (N. Y.) 227; People v. 
 Brown, 72 N. Y. 571, 28 Am. Rep. 183; People v. Tice, 131 N. Y. 651; Guy 
 V. State, 90 Md. 29, 44 Atl. 997; People v. Bussey, 82 Mich. 49, 46 N. W. 
 97; People v. Dupounce, 133 Mich. 1, 94 N. W. 388, 103 Am. St. Rep. 435; 
 State V. Buffington (Kan.), 81 Pac. 465, 4 L. R. A. (N. S.) 154; Pittman v. 
 State, 51 Fla. 94, 41 So. 385, 8 L. R. A. (N. S.) 509. See §§ 836 837 supra. 
 
 27 Thus he must answer if the offense is barred by the statute of limita- 
 tions, Calhoun v. Thompson, 56 Ala. 166, 28 Am. Rep. 754; Weldon v. 
 Burch, 12 111. 374; United States v. Smith, 4 Day (Conn.) 121; Childs v. 
 Merrill, 66 Vt. 302; Ex parte Hedden (Nev.), 90 Pac. 737; Floyd v. State, 
 7 Tex. 215; Roberts v. Allatt, Moody & M. 192; McPadden v. Reynolds 
 (Pa.), 11 Atl. 638; Manchester & L. Ry. Co. v. Concord Ry. Co., 66 N. H. 
 100; Close v. Olney, 1 Den. 319 (but in Southern Ry. Co. v. Russell, 91 Ga. 
 808, it was held otherwise, unless It shall affirmatively appear that no 
 prosecution, commenced in time, was then pending); or If he has been 
 acquitted, Lathrop v. Roberts, 16 Colo. 250; or nolle pros entered. Ex parte 
 Stice, 70 Cal. 51, 11 Pac. 459; or if he is granted immunity from criminal 
 prosecution because of his answer. United States v. McCarthy, 18 Fed. 
 87; LaFontaine v. Southern Underwriters Ass'n, 83 N. C. 132; State v. 
 Nowell, 58 N. H. 314; People v. Sharp, 107 N. Y. 427, 14 N. B. 319, 1 Am. 
 St. Rep. 851, a celebrated case; State v. Qnarles, 13 Ark. 307; Kneeland 
 V. State, 62 Ga. 395; Wilkins v. Malone, 14 Ind. 153; Ex parte Buskett, 106 
 
 72 
 
1138 THE LAW OF EVIDENCE. § 889 
 
 that a witness should not be compelled to answer, when such answer 
 might submit him to the ignominy and expense of a prosecution, 
 although the statute of limitations might be a defense, if pleaded. 
 But the mere fact that the prosecuting oMcer states in open court 
 that he will not prosecute the accused nor file any information 
 against him does not change the rule."* In England, there are many 
 statutes taking away the privilege in particular eases, providing 
 that, in such cases, no conviction shaU be allowed upon any testi- 
 mony given under compulsion which might otherwise be used to 
 criminate the witness.^* Such statutes are less common in this 
 country, but, in many states, they have been enacted for the 
 purpbse of more effectually punishing offenders in certain classes 
 of offenses, such as keeping houses of ill fame, gaming, bribery, 
 liquor selling and the like.'" Of course, the constitutional provi- 
 sions which forbid that any person shall be compelled to criminate 
 himself must be observed, and, when they are observed, such stat- 
 utes are held constitutional.^'^ 
 
 § 889 (892). Same, continued. — Statutes- of this charcater must 
 secure the witness from future liability and exposure that will be 
 prejudicial in any proceeding against him, as fully and extensively 
 as he would be secured by availing himself of the constitutional 
 privilege; and, if the privilege is taken away, it must be by clear ■ 
 and unequivocal enactment.*" In a celebrated case in the supreme 
 court of the United States which arose out of an attempt to enforce 
 the provisions of the inter-state commerce act, the court construes 
 the provision in the fifth amendment of the constitution of the 
 United States which declares that "no person . . . shall be 
 
 Mo. 602; United States v. Smith, 47 Fed. 501; Ex parte Cohen, 104 Cal. 
 524; Minter v. People, 139 111. 363. See the next section. 
 
 2sMuller V. State, 11 Lea (Tenn.) 18; Whiskey Cases, 99 U. S. 594; Ex 
 parte Irvine, 74 Fed. 945, 964; Temple v. Com., 75 Va. 892. 
 
 28Tayl. Bt. (10th Ed.) § 1455 et seq. 
 
 30 State V. Nowell, 58 N. H. 314; United States v. McCarthy, 18 Fed. 87; 
 Kneeland v. State, 62 Ga. 395; Kendrick v.. Com., 78 Va. 490; State v. 
 Warner, 13 Lea (Tenn.) 52. See summary of statutes, 3 Wigmore, Ev. 
 § 2281. 
 
 81 People V. Kelly, 24 N. Y. 74; State v. Enochs, 69 Ind. 314; People v. 
 Sharp, 107 N. Y. 427, 14 N. E. 319, 1 Am. St. Rep. S51, as to a proceeding 
 before a legislative committee. 
 
 32 Counselman v. Hitchcock, 142 U. S. 547; Emery's Case, 107 Mass. 172, 
 9 Am. Rep. 22; Horstman v. Kaufman, 97 Pa. St. 147, 39 Am. Rep. 802; 
 Orme v. Crockford, 13 Price, 376; United States v. James, 60 Fed. 257; 
 State V. Murphy, 128 Wis. 201, 107 N. W. 470. 
 
§ 889 ATTENDANCE AND EXAMINATION OF WITNESSES. 1139 
 
 compelled, in any criminal case, to be a witness against himself," 
 and also Section 860 [U. S. Comp. St. 1901, p. 661] of the United 
 States revised statutes which provides that "no pleading of a party, 
 nor any discovery or evidence obtained from a party or witness by 
 means of a judicial proceeding in this or any foreign country shall 
 be given in evidence, or in any manner used against him or his 
 property or estate, in any court of the United States, in any crim- 
 inal proceeding, or for the enforcement of any penalty or forfei- 
 ture : Provided, that this section shall not exempt any party or wit- 
 ness from prosecution and punishment for perjury committed in 
 discovering or testifying as aforesaid." A witness refused to an- 
 swer questions before a grand jury, on the ground that his answers 
 might tend to criminate him. After elaborate discussion and after 
 a review of the principal cases on the subject, the court held that 
 the proceeding before the grand jury was a criminal case ; that the 
 meaning of the constitutional provision is not merely that a person 
 shall not be compelled to be a witness against himself in a criminal 
 prosecution against himself, but its object is to insure that a person 
 shall not be compelled, when acting as a witness in any investiga- 
 tion, to give testimony which may tend to show that he himself has 
 committed a crime ; that the constitutional provisions of the several 
 states and Of the United States should have a liberal construction, 
 and that, although differently worded, they should have, as 'far as 
 possible, the same interpretation; that legislation cannot detract 
 from the privilege afforded by the constitution, and that no statute 
 which leaves the party or witness subject to prosecution, after he 
 answers the criminating question put to him, can have the effect of 
 supplanting the privilege conferred by the constitution of the United 
 States ; and that a statutory enactment, to be valid, rmist afford ab- 
 solute immunity against future prosecution for the offense to which 
 the question relates.^^ But in 1893, congress passed an act providing 
 among olher things: "That no person shall be excused from testify- 
 ing or from producing documents before the inter-state commerce 
 
 S3 Counselman v. Hitchcock, 142 U. S. 547, approving Emery's Case, 107 
 Mass. 172, above cited; People v. O'Brien, 176 N. Y. 253, 68 N. B. 353; , 
 Burrell v. Montana, 194 U. S..572; TJ. S. v. Bell, 81 Fed. 830. As to the 
 power of congressional and legislative committees to punish for con- 
 tempt, see, Kilbourn v. Thompson, 103 U. S. 168; People ex rel. McDonald 
 V. Keeler, 99 N. Y. 463. As to statute being broader than constitutional 
 privilege, see. State v. Murphy, 128 Wis. 201, 107 N. W. 466; U. S. v. Armour 
 & Co., 142 Fed. 808. 
 
1140 THE LAW OP EVIDENCE. § 890 
 
 commission or in any proceeding, criminal or otherwise, based upon 
 any legal violation of the act to regulate commerce, on the ground 
 that the testimony required of him may criminate him. But no 
 person shall be prosecuted on account of any transaction, matter 
 or thing concerning which he may testify or produce evidence." 
 After the passage of this act, a witness refused to testify before a 
 grand jury, resting on his alleged privilege of silence, and was 
 committed for contempt. In a proceeding on a writ of habeas 
 corpus, the supreme court of the United States construed the act 
 in question as an act of general amnesty, within the power of Con- 
 gress to enact, and which afforded immunity to the witness. It 
 was also held that the act was in no way limited to prosecutions in 
 the federal courts, that a person -who commits a criminal act is 
 bound to contemplate the consequences of exposure to his good 
 name and reputation and the odium and disgrace which may fol- 
 low, and that the fact that his testimony may bring him into dis- 
 repute, without incriminating him, does not entitle him to the priv- 
 ilege of silence, and hence that there is no privilege under a statute 
 which operates as a pardon}'*' In later eases it has been held that 
 the inununity is in regard to a prosecution in the same jurisdic- 
 tion and under the same sovereignty and when that is fully given 
 that is enough.'^ These statutes do not apply to corporations.^^®' 
 § 890 (893). Privilege — How claimed — How waived. — ^We have 
 already seen that the witness may waive the privilege by fadling 
 to make timely objection.^^ For still stronger reasons, the privi- 
 lege is waived, if no objection whatever is made.'^ The privilege 
 is that of the witness; the objection must be taken by him, on his 
 oath,^* after the question has been asked ; ^° and it cannot be raised 
 
 84 Brown v. Walker, 161 V. S. 591. See also, People v. (yBrien, 176 
 N. Y. 253, 68 N. B. 353. 
 
 35 Construing state statute. Jack \v. Kansas, 199 U. S. 372, under the 
 Anti-Trust Act of 1903. Federal statute, Hale v. Henkel, 201 U. •S. 43. 
 
 86a Hale v. Henkel, 201 U. S. 43; U. S. v. Armour & Co., 142 Fed. 808. 
 
 ^6 See § 887 supra. See note, 21 Am. Dec. 61. 
 
 37 State v. Allen, 107 N. C. 805. See note 75 Am. St. Rep. 331. But a 
 waiver at one trial does not waive for a subsequent trial, Emery v. State, 
 101 Wis. 627, 78. N. W. 145. 
 
 88 Kraus v. Sentinel Co., 62 Wis. 660, San Antonio Ry. Co. v. Muth, 7 Tex. 
 Civ. App. 443 ;Lathrop v. Roberts, 16 Colo. 250; State v. Pancoast (N. D.), 
 67 N. W. 1052; State v. Ekanger, 8 N. D. 559, 80 N. W. 482. 
 
 39 Boyle V. Wiseman, 10 Exch. 647; Ex parte Richmond v. Stice, 70 Cal, 
 51, mere geueral objection not enough. Bokstein v. Petitioner, 148 Pa. 509, 
 24 Atl. 63; In re Consolidated Rendering Co., 88 Vt. 55, 66 Atl. 790. 
 
§ 891 ATTENDANCE AND EXAMINATION OP WITNESSES. 1141 
 
 by a party to the suit or by an attorney.*" Nor should the court 
 interfere, but should leave the matter with the witness to avail 
 himself of his privilege or not, as he sees fit.*^ But it is the duty 
 and usual practice of the judge to apprise the witness of his 
 rights.*^ If a witness makes the claim of privilege and it is im- 
 properly disallowed by the court, it is not reversible error, ^^ but 
 if the witness is a pa/rty to the action then it is reversible error.*'"' 
 So where the judge declined to inform the witness as to his privi- 
 lege, on the mere demand of the party, it has been held no error.** 
 // the witness is compelled to answer, when he is entitled to his 
 privilege, and after the question has been properly raised, his 
 answer cannot be used against him in a subsequent criminal ac- 
 tion ; such statements are regarded as given under compulsion and 
 duress.*^ 
 
 40 R. V. Klnglake, 11 Cox 499; Clarke v. Reese, 35 Colo. 89; State v. Went- 
 worth, 65 Me. 234, 20 Am. Rep. 688; Morgan v. Halberstadt, 60 Fed. 592; 
 Ward V. People, 6 Hill (N. Y.) 144; Pickard v. Collins, 23 Barb. (N.Y.) 
 444; Com. v. Sbaw, 4 Cush. 594; State v. Van Winkle, 80 la. 15; Day v. 
 State, 27 Tex. App. 143; Barr v. People, 30 Colo. 522, 71 Pac. 392; Bolen v. 
 People, 184 111. 338, 56 N. B. 408; New York Life Ins. Co. v. People, 195 
 N. Y. 430, 63 N. B. 264; Beauvoir Club v. State (Ala.), 42 So. 1040; State 
 V. Mungeon (S. B.), 108 N. W. 552. See note, 75 Am. St. Rep. 339. Con- 
 tra, Clifton v. Granger, 86 la. 573, 53 N. W. 316; State v. Shockley, 29 
 Utah, 25, 80 Pac. 865, 110 Am. St. Rep. 639. Courts have refused to hear 
 an argument of counsel on the question. Doe ex dem. Rowcliffe v. Bgra- 
 mont, 2 Moody & Rob. 386. But, of course, if the question is also irrele- 
 vant, counsel may make the objection, Sharon v. Sharon, 79 Cal. 633. 
 
 *i 'Williams v. Dickinson, 28 Fla. 90; Com. v. Bell, 145 Pa. St. 374, bribery 
 in congressional convention. 
 
 42 Southard v. Rexford, 6 Cow. (N. Y.) 254; Emery v. State, 101 Wis. 
 627, 78 N. W. 145; People v. Priori, 164 N. Y. 459, 58 N. E. 668. 
 
 48 Samuel v. People, 164 111. 379, 45 N. B. 728; State v. Morgan, 133 N. 
 C. 743, 45 S. E. 1033; State v. Cobley, 128 la. 114, 103 N. W. 99. But see. 
 Com. V. Kimbal, 24 Pick. 366; SUte v. Olin, 23 Wis. 309. But a failure 
 to so Instruct a witness before the grand jury will not nullify an indict- 
 ment found against him. State v. Duncan, 78 Vt. 364, 63 Atl. 225, 4 L. R. A. 
 (N. S.) 1144 and note. 
 
 43a People v. Brown, 72 N. Y. 571, 28 Am. St. Rep. 183. 
 
 44 Com V. Shaw, 4 Cush. 594; Attorney General v. Radloff, 10 Bxch. 88; 
 Taylor v. State, 83 Ga. 647; State v. Butler, 47 S. C. 25, 24 S. E. 991; 
 Bolen V. People, 184 111. 338, 56 N. E. 408. 
 
 4B Reg. V. Garbett, 1 Den. Cr. 236; Horstman v. Kaufman, 97 Pa. St. 147, 
 39 Am. Rep. 802; State v. Bailey, 54 la. 414; Boone v. People (111.), 36 N. 
 B. 99; State v. Cifford, 86 la. 550, 53 N. W. 299; State v. Gardiner, 88 
 Minn. 130, 92 N. W. 529; U. S. v. Kimball, 117 Fed. 156, full discussion as 
 
1142 THE LAW OF EVIDENCE. § 891 
 
 § 891 (894). Effect of claiming privilege — Inferences. — ^It has 
 
 frequently been held that, in order to make the privilege of any 
 value, no unfavorable inference should he drawn from the refusal 
 of a witness to answer a question because it may tend to criminate 
 him, and that it is not a proper subject of comment by counsel 
 before the jury.*" In sustaining the view that no unfavorable in- 
 ference should be drawn, it is urged that a perfectly honorable 
 man might with honest indignation repudiate a question which he 
 regards as insulting, and that it would be unfair to impute to him 
 dishonorable motives.*^ This is the prevailing rule, and in many 
 jurisdictions is declared by statute. On the other hand, the sound- 
 ness of this view has been questioned; and it has been said that, 
 "generally speaking, an honest witness will be eager to rescue his 
 character from suspicion and wiU at once deny the imputation, 
 rather than rely on his legal rights and refuse to answer the of- 
 fensive interrogatory."** But whatever may be the view of 
 judges and jurists on this question, it admits of no doubt that 
 juries will act and do act to some extent upon the evidence fur- 
 nished by their own senses, and that, almost inevitably, they wiU 
 draw an unfavorable inference from the conduct of the witness 
 who declines to answer lest he may criminate himself. We have 
 seen that where a party is a witness ia a criminal case and volun- 
 tarily testifies he is subject to the same rule as other witnesses.*' 
 But if he does not testify, the rule applies with full force that 
 no unfavorable inferences should be drawn from this fact."" 
 This rule is also generally declared by statutes."^ It is highly 
 improper for counsel to violate the rule by commenting upon the 
 
 to what constitutes compulsion. But in Massachusetts, the refusal of a 
 witness to answer was held competent against him in a civil action, An- 
 drews v. Frye, 104 Mass. 234. 
 
 4s People V. Maunausau, 60 Mich. 15; Phelln v. Kenderdine, 20 Pa. St. 
 354; Pinkard v. State, 30 Ga. 757; Cai-ne v. Litchfield, 2 Mich. 340; Milll- 
 nan v. Tucker, Peake 222; Rose v. Blakemore, 1 Ryan & M. 384; R. v. 
 "Watson, 2 Stark, 158; Lloyd v. Passingham, 16 Ves. 64; 2 Phill. Bv. 417. 
 
 « R. V. Watson, 2 Stark. 153. 
 
 *8Taj-l. Ev. (10th Ed.) § 1467. 
 
 «See § 887 supra.' 
 
 so State V. Garrington, 11 S. D. 178, 76 N. W. 326. 
 
 51 Wilson V. U. S., 149 U. S. 60; Dunn v. State, 118 Wis. 82, 94 N. W. 
 646; State v. Baldoser, 88 la. 55, 55 N. W. 97; Reddick v. State, 72 Miss. 
 1008, 16 So. 490; State v. Stoffels, 89 Minn. 205, 94 N. W. 675;. State v. 
 Marceau, 50 La. Ann. 1137, 24 So. 611. 
 
§ 892 ATTENDANCE AND EXAMINATION OF WITNESSES. 1143 
 
 failure to testify}^ Where proper exception was taken new trials 
 have been ordered for such misconduct.'' In others the error has 
 been held cured by the charge of the court."* 
 
 § 892 (895), Same — Penalties and forfeitures.— The same gen- 
 eral maxim or principle which protects the witness from self-crim- 
 ination forbids that he should be compelled by his testimony to 
 expose himself to a forfeiture or the payment of a penalty. In 
 a leading case in the supreme court of the United States, the court 
 construed the statute which authorized the federal courts, in reve- 
 nue cases, and on motion of the government attorney, to require 
 the defendant or claimant to produce his private books, invoices 
 and papers in court, the penalty for refusal being that the allega- 
 tions of the government should be taken as confessed. This stat- 
 ute was held to be unconstitutional, as applied to suits for pen- 
 alties or to establish a forfeiture of the party's goods, as being 
 repugnant to the fourth and fifth amendments of the constitution; 
 and it was held that an order of the court, made under this stat- 
 ute, requiring the claimants of the goods to produce an invoice for 
 the inspection of the government attorney, was an unconstitutional 
 exercise of authority; that a proceeding to forfeit a person's goods 
 for an offense against the laws, through civil information, is a 
 criminal case within the meaning of the fifth amendment to the 
 constitution. In discussing this subject, Mr. Justice Bradley 
 used the following vigorous language: "Any compulsory dis- 
 covery by extorting the party's oath or compelling the production 
 of his private books and papers to convict him of crime or to for- 
 feit his property is contrary to the principles of a free govern- 
 ment; it is abhorrent to the instincts of an Englishman; it is ab- 
 horrent to the instincts of an American. It may suit the purpose 
 of despotic power; but it cannot abide the pure atmosphere of 
 political liberty and personal freedom. "°'* It was long considered 
 
 62 Martin v. State, 79 Wis. 165, 48 N. W. 119; Dunn v. State, 118 Wis. 
 82, 94 N. W. 646; Wilson v. XJ. S., 149 U. S. 60; Reddick v. State, 72 Miss. 
 1008, 16 So. 490; State v. Marceau, 50 La. Ann. 1137, 24 So. 611; Knight 
 V. U. S., 115 Fed. 972. 
 
 53 Wilson V. U. S., 149 TT. S. 60; Reddick v. State, 72 Miss. 108, 16 So. 
 490; State v. Stoffels, 89 Minn. 205, 94 N. W. 675; State v. Garrington, 11 
 S. D. 178, 76 N. W. 326; but not -when no objection was made at tbe time. 
 State V. Hull, 18 R. I. 207, 26 Atl. 191. 
 
 64 Dunn V. State, 118 Wis. 82, 94 N. W. 646; Blume v. tae 154 111. 343, 
 56 N. E. 771; People v. Hammond, 132 Micb. 422, 93 N. W. 1084. 
 
 65 Boyd V. Umted states, 116 U. S. 616, 631; Roberts v. Allatt, Moody & 
 
1144 THE LAW OF EVIDENCE, § 893 
 
 doubtful wtetlier a witness could be compelled, by his answer, to 
 furnish information which might subject himself to a civil action 
 or show that he owed a deht.^" This doubt was settled by a 
 statute in the time of George III ; and it is the general rule in this 
 country that a witness is not privileged from testifying merely 
 because his answer might expose him to pecuniary loss." 
 
 § 893 (896). Objections and exceptions to evidence. — It is un- 
 doubtedly the policy of the law to admit testimony when offered, 
 unless some clear reason exists for its exclusion. Competency is 
 presumed until the contrary is shown.. Since parties are usually 
 represented in court by attorneys presumed to be vigilant in the 
 protection of their rights, it is the general practice of the courts 
 to receive evidence which is olifered, unless it is objected to. But 
 the trial judge is not boiuid to wait for objections; he may ex- 
 clude improper testimony of his own motion.^^ As the appellate 
 courts are not organized to hear causes de novo but to review the 
 errors of the inferior courts, if a party would take advantage of 
 the admission of improper testimony on appeal or on motion for 
 new trial, .it is necessary to make objection at the time it is of- 
 fered.^' It is too late after evidence is submitted to the jury,"" 
 or after motion in arrest of judgment.*^ On the same general 
 
 M. 192; Jackson v. Benson, 1 Younge & J. 32; Bank of Salina v. Henry, 
 2 Den. 155; Henry v. Bank of Salina, 3 Den. 593. See notes, 75 Am. St 
 Rep. 322; 29 L. R. A. 813. Action for penalty, Lee v. U. S., 150 U. S. 476; 
 Robson V. Doyle, 191 111. 566, 61 N. E. 435; Best, Ev. (lOth Ed.) § 126. 
 
 Be 6 Pari. Deb. 167-245; Tayl. EV. (10th Ed.) § 1463. 
 
 57 Davis V. Lincoln Nat. Bank, 4 N. Y. S. 373; Lowney v. Perham, 20 
 Me. 240; Bull v. Loveland, 10 Pick. 9; Taney v. Kemp. 4 Har. & J. (Md.) 
 348, 7 Am. Dec. 673; Stevens v. Whitcomb, 16 Vt. 121; Oox v. Hill, 3 Ohio, 
 424; Alexander v. Knox, 7 Ala. 503. Disiarment of an attorney, In re 
 Randel, 158 N. Y. 216, 52 N. E. 1106; douile damages allowed. Levy v. 
 Superior Court, 105 Cal. 600, 38 Pac. 965; violation of Anti-Trust law, 
 State V. Standard Oil Co., 61 Neb. 28, 84 N. W. 413; punitive damages, 
 Southern Ry. Co. v. Bush (Ala.), 26 So. 168; removal from office, Thruston 
 V. Clark, 107 Cal. 285, 40 Pac. 435. 
 
 68 See § 172 supra. 
 
 B9 Ladd V. Smith (Ala.), 10 So. 836; Gardner v. Gooch, 48 Me. 487; Brady 
 V. Nully, 151 N. Y. 258, 45 N. E. 547; Rush v. French, 1 Ariz. 99, 25 Pac. 
 816; Yoder v. Reynolds, 28 Mont. 183, 72 Pac. 417. Especially if the ground 
 of objection is known. North y. Mallory, 94 Md. 305, 51 Atl. '89. See cases 
 cited below. As to depositions, see §§ 673, et seq. supra. 
 
 soKlng V. State, 21 Ga. 220; Laurent v. Vaughn, 30 Vt. 90; Yoder y, 
 Reynolds, 28 Mont. 1S3, 72 Pac. 417. 
 
 «i Thomson v. Wilson, 26 la. 120; Perrott v. Shearer, 17 Mich. 48. 
 
§ 893 ATTENDANCE AND EXAMINATION OF WITNESSES. 1145 
 
 principle, the court is not compelled to exclude inadmissible testi- 
 mony, received in response to a question to which no objection 
 was made ; °^ and in such case, where the answer is responsive to 
 the question, the court may properly overrule a motion to strike 
 out the answer. °' It is also a familiar rule that mere general ob- 
 jections, without the statement of any specific ground of objection, 
 wiU not be reviewed in the appellate court or constitute ground 
 for a new trial.°^ It is only fair that the trial judge should have 
 the opportunity to pass upon the precise question involved, and 
 that the nature of the objection should be pointed out ; "^ and 
 also that the opposing counsel should have the opportunity to re- 
 move the objection, or supply the defect by other testimony."^ 
 As illustrations of the rule, it has been held that a mere general 
 oijection to secondary evidence does not suffice. °' When objec- 
 tion is made to the admission of a record or a document, it is not 
 sufficient to object generally or- that the law has not been com- 
 plied*' with, or that the evidence is incompetent, irrelevant and im- 
 material ; but any objection to the manner of authentication or ex- 
 
 «2 Vermillion Well Co. v. Vermillion, 6 S. D. 466, 61 N. "W. 802; Omaha So. 
 Ry. Ck). V. Beeson, 36 Neb. 361; Washington v. State (Ala.), 17 So. 546; 
 Perkins v. Brainard Quarry Co., 32 N. Y. S. 230; Cleveland, C, C. & I. 
 Ry. Co. V. Wynant, 134 Ind. 681. 
 
 esEllinger v Rawlings, 12 Ind. App. 336; Lake Shore & M. S. Ry. Co. 
 V. Mcintosh, 140 Ind. 261; Coffin v. State, 123 Ala. 58, 26 So. 333; Yoder 
 V. Reynolds, 28 Mont. 183, 72 Pac. 417; Dolson v. Railway Co. (N. C), 44 
 S. E. 593. 
 
 «4 0'Hagan v. Clinesmith, 24 la. 249; White v. Chadboume, 41 Me. 149; 
 Stone V. Hunt, 114 Mo. 66; Abbott v. Chaffee, 83 Mich. 256; Howard v. 
 Howard, 52 Kan. 470; Galbreath v. Doe, 8 Blackf. (Ind.) 366; Rhea v. 
 Crunk, 12 Ind. App. 23; Hutchinson v. Whitman, 95 Mich 592, where it 
 was held insufficient objection to say: "I object;" Cohin v. McCormick 
 Cotton Oil Co. (S. C), 44 S. E. 380; Culmer v. Clift, 14 Utah, 291, 47 Pac. 
 85; Rush v. French, 1 Ariz. 99, 25 Pac. 816; Chicago & E. I. R. Co. v. Wal- 
 lace, 202 111. 129, 66 N. E. 1096; Brewer v. Bowerson, 92 Md. 567, 48 Atl. 
 1060; Dorais v. Doll (Mont.), 83 Pae. 884. See next section. As to depo- 
 sitions, see § 674 supra. 
 
 8» United States v. McMasters, 4 Wall. 680; Brown v. Weightman, 62 
 Mich. 557; 1 Thomp. Trials, § 693. 
 
 66 King v. Nichols & S. Co., 53 Minn. 453; Motley v. Head, 43 Vt. 636; 
 Rush V. French, 1 Ariz. 99, 25 Pac. 816; Ctolburn v. Railway Co., 109 Wis. 
 378, 85 N. W. 354. 
 
 sJLiebenthal v. Price, 8 Wash. 206; Toplitz v. Hedden, 146 U. S. 252; 
 Woodward v. Shaw, 18 Me. 304; Concord v. Mclntire, 6 N. H. 527; Kenosha 
 Stove Co. V. Shedd, 82 la. 540. 
 
1146 THE LAW OF EVIDENCE. ' § 894 
 
 ecution should assign the grounds thereof."* On the same prin- 
 ciple, it has been held that the objection that the evidence is "il- 
 legal and incompetent,""* or "inadmissible,""* or "incompe- 
 tent" is imavailing.'^ 
 
 § 894 (897). Same — Offer of evidence — ^Waiver of objections. 
 Following the rule stated in the last section, the objection that 
 evidence is "irrelevant, incompetent and immaterial" does not 
 suffice, if the testimony is admissible for any purpose.'* Nor does 
 the objection that evidence is irrelevant or immaterial or im- 
 proper avail as an objection to the competency of the witness,''^ or 
 the admissibility of records,'* or that the testimony V70uld con- 
 tradict or vary a written contract.''' Perhaps the most common 
 form of objection is that the evidence is " iacompetent, irrelevant 
 and immaterial." But it has often been held that this objection 
 may be disregarded as too general, unless a sufficient reason for 
 its exclusion appears from the evidence offered itself.'® But 
 vi^here the proposed evidence is not competent for any purpose, 
 such an objection is sufficient." It has sometimes been held that, 
 vjrhere a question is plainly irrelevant, or inadmissible for any 
 purpose, a mere general objection is sufficient." Where evidence 
 is objected to as inadmissible for certain specified reasons, the 
 
 «8 Stanley v. Holliday, 13 Ind. 464; Crawford v. Witherbee, 77 "Wis. 419; 
 State V. Gates, 20 Mo. 400; New Orleans, J. & G. Ry. Co. v. Moye, 39 Miss. 
 374; Voss v. State, 9 Ind. App. 294. 
 
 69 Clark V. Conway, 23 Miss. 438; Steiner v. Tranum, 98 Ala. 315. 
 ™ Leet V. Wilson, 24 Gal. 398; Fowler v. Wallace, 131 Ind. 347. 
 
 71 Pennsylvania Co. v. Horton, 132 Ind. 189; Jones v. Angell, 95 Ind. 
 376; Kernoclien y. New York El. Ry. Co., 128 N. Y. 559. See next section. 
 
 72 Rush V. French, 1 Ariz. 99, 25 Pac. 816; Alcorn v. Chicago & A. Ry. 
 Co., 108 Mo. 81; Voorman v. Voight, 46 Oal. 397; Lake Erie & W. Ry. Co., 
 V. Parker, 94 Ind. 91; Schlereth v. Missouri Pac. Ry. Co., 116 Mo. 87, ex- 
 pert evidence. 
 
 73 Cornell v. Barnes, 26 Wis. 473; Chicago, K. & N. Ry. Co. v. Behney, 
 48 Kan. 47; Carter v. New York El. Ry. Co., 134 N. Y. 168. 
 
 7* Voss V. State, 9 Ind. App. 294; Southern Ry. Co. v. Dickens (Ala.), 
 44 So. 402. 
 
 70 Union Cash Reg. Co. v. John, 49 Minn. 481. 
 
 78 McClosky V. Davis, 8 Ind. App. 190; Glenville v. St. Louis Ry. Co., 51 
 Miss. 629; Sigafus v. Porter, 84 Fed. 430; Wise v. Wakefield, 118 Cal. 107, 
 50 Pac. 310; Noonan v. Mininy Co., 121 U. S. 393. 
 
 77Lowenstein v. McCadden, 92 Tenn. 614; Kirby v. State (Fla.), 32 So. 
 836; Snowden v. Pleasant Valley Coal Co., 16 Utah. 366, 52 Pac. 99. 
 
 7S Bates v. Morris, 101 Ala. 282; Nevers Lumber Co. v. Fields (Ala.), 44 
 So. 81. 
 
§ 894 ATTENDANCE AND EXAMINATION OF WITNESSES. 1147 
 
 objection will be deemed limited to the grounds specified.'" But 
 ia the absence of an understanding between counsel and the 
 court, that evidence is to be limited to particular matter, the 
 court may consider it for any purpose for which it is competent 
 and revelant.'" It is a familiar rule that a mere general objec- 
 tion to testimony as a whole does not avail when part of the testi- 
 mony is admissible. '^'^ But when there has been a sufScient and 
 specific objection to testimony, it is not necessary to repeat the 
 objection whenever testimony of the same class is offered.^^ The 
 rule that the objection- should be specific has no application, how- 
 ever, where a general objection is sustained; in that ease, the 
 party against whom the ruling was made cannot urge that the ob- 
 jection was too general.^* And when the offer of testimony in- 
 cludes that which is admissible with that which is not, and the 
 competent and incompetent are blended together, it is not the duty 
 of the court to separate the legal from the illegal, but the whole 
 may be rejected when objection is made.** Error cannot be as- 
 signed on a ruling rejecting an offer of testimony, unless it ap- 
 pears that the oifer was made in good faith. If the trial judge has 
 doubts about the good faith of an offer of testimony, he may in- 
 sist upon the production of the witness and upon some attempt to 
 make the proof before he rejects the offer; but if he does reject 
 it, and allows a bill of exceptions which shows that the offer was 
 actually made and refused, and there is nothing else in the record 
 to indicate bad faith, an appellate court must assume that the 
 
 ia Triggs v. Jones, 46 Minn. 277; Bailey v. Chicago, M. & St. P. Ry. Co., 
 3 S. Dak. 531; Evansville Ry. Co. v. Swift, 128 Ind. 34; Giles v. Vandiver, 
 91 Ga. 192; Rush v. French, 1 Ariz. 99, 25 Pac. 816; Brown v. State (Fla.), 
 35 So. 82. See §§ 691, 692 supra. 
 
 80 Sears v. Starblrd, 78 Cal. 225. 
 
 81 Beebe v. Bull, 12 Wend. 504; Mock v. City of Mucsie, 9 Ind. App. 536; 
 Grimm v. Dundee, L. & I. Co., 55 Mo. App. 457; Curr v. Hundley, 3 Col 
 App. 54; Sweeney v. Sweeney, 119 Ga. 76, 46 S. E. 76, 100 Am. St. Rep. 159; 
 Brown v. Point Pleasant, 36 W. Va. 290; Wilson v. Equitable Gas Co., 152 
 Pa. St. 566; Harris v. Amoskeag Lumber Co., 97 Ga. 465, 25 S. E. 519; 
 Jones v. State, 118 Ind. 39, 20 N. E. 634. See §§ 691, 692 supra. 
 
 82 Whitney v. Traynor, 74 Wis. 289; Gilpin v. Gilpin, 12 Colo. 504; 
 Sharon v. Sharon, 79 Cal. 633; Salt Lake City v., Smith, 104 Fed. 457. 
 
 ssHurlbut V. HaJl, 39 Neb. 889; Mine & Smelter Supply Co. v. Parke 
 & Lacy Co., 107 Fed. 881. 
 
 84 Clark V. Ryan, 95 Ala. 406; First Nat. Bank v. North, 2 S. D. 480, 51 
 N. W. 96; Over v. Schiffling, 102 Ind. 191, 26 N. E. 91; Farleigh v. Kelley, 
 28 Mont. 421, 72 Pac. 756. 
 
1148 THE LAW OF EVIDENCE. § 895 
 
 proof could have been made, and govern itself accordingly.'^ 
 We have seen that the failure to make proper objection is a waiver 
 of objections. The objecting party may also waive his objection by 
 giving evidence of the same facts as those objected to.'" The rule 
 has been declared that in order that a party may avail himself of 
 his objection to the reception or admission of evidence he should 
 also except to the ruling of the courts'' But it is quite a general 
 practice ia many of the courts not to insist upon the taking of such 
 exceptions at the trial, but to allow them to be incorporated in the 
 bill of exceptions when the objection to the evidence was duly 
 made. 
 
 § 8&5 (898). Withdrawing and striking out evidence. — It some- 
 times happens that ansivers are made which are not responsive to 
 questions, unobjectionable in themselves, or that improper testi- 
 mony is volunteered to which there is no opportunity to object in 
 advance. In such cases, the proper remedy is to move promptly 
 to strike out the objectionable testimony.'' It is a matter of right, 
 on proper motion, to have testimony stricken out which is irre- 
 sponsive and prejudicial; and the error of the court in this re- 
 spect is subject to review by the appellate court.'* If no such 
 motion is made, the reception of such testimony is not error ; *" 
 
 85 Scotland Co. v. Hill, 112 U. S. 183, 186. Rejected where counsel 
 merely stated wliat he desired to prove, Chicago City Ry. Co. v. Carroll, 
 206 111. 318, 68 N. E. 1087. 
 
 86 GaJe T. Shillock, 4 Dak. 182, 29 N. W. 661; Hayden v. Palmer, 2 Hill 
 (N. Y.), 205; Rice v. Waddill, 168 Mo. 99, 67 S. W. 605, taking of depo- 
 sition as waiver of competency. of adverse party as witness; Lloyd v. Sim- 
 mons, 90 Minn. 237, 95 N. W. 903. Contra, Salt Lake City v. Smith, 104 
 Fed. 457. 
 
 87 Wise V. Wakefield, 118 Cal. 107, 50 Pac. 310. 
 
 88 Gould V. Day, 94 U. S. 405; Holmes v. Roper, 141 N. T. 64; Wendt v. 
 Chicago, St. P., M. & O. Ry. Co., 4 S. D. 476; Diamond Block Coal Co. v. 
 Cuthbertson (Md.), 73 N. E. 818; Lowell & Co. v. Sneed (Ark.), 95 S. W. 
 157; see § 691 supra. 
 
 89Thorxter v. Railway Co., 123 Mo. App. 636, 100 S. W. 1102; Birming- 
 ham Rolling Mill Co. v. Rockhold, 143 Ala. 115, 42 So. 96. See cases cited 
 below. 
 
 »o Corcoran v. City of Detroit, 95 Mich. 84; Link v. Sheldon, 136 N. Y. 
 1; National Syrup Co. v. Carlson, 155 111. 210; Remington Mach. Co. v. 
 Wilmington Candy Co. (Del.), 66 Atl. 465; Ard v. Crittenden (Ala.), 39 
 So. 675; Payne v. Dicus, 88 la. 423; Kansas Fire Ins. Co. v. Hawley, 46 
 Kan. 746; Bailey v. Bailey (la.), 63 N. W. 341; Chicago, P. & St. L. Ry. 
 Co. v. Blume, 137 111. 448; Lewars v. Weaver, 121 Pa. St. 268; Chicago, 
 St. L. & P. Ry. Co. V. Champion, 9 Ind. App. 510. See § 893 supra. 
 
§ 895 ATTENDANCE AND EXAMINATION OF WITNESSES. 1149 
 
 and if the motion to strike out is not promptly made, the right is 
 waived."'^ The rule is the same as to improper testimony given 
 in response to a question by the party injured thereby.'^ But a 
 party has no right to move to strike out testimony merely be- 
 cause it is unfavorable to him,'' and it is not sufficient in such 
 eases to merely object to the evidence after it is received.'* Nor 
 is the motion to strike out testimony available where the party 
 against whom it is offered makes no objection to questions which 
 clearly call for imprcper evidence. One who has thus taken his 
 chances of advantage has not, when he finds the testimony preju- 
 dicial, the legal right to exclude it.'" Where evidence has been 
 properly received, and its effect has been destroyed by other evi- 
 dence, or its i7iadmissibilify iecomes apparent afterward, the 
 party against whom it has been received has no absolute right to 
 have it stricken out, but should request the court to charge the 
 jury to disregard such evidence."' But it is within the discretion 
 
 siiHaverly v. Elliot, 39 Neb. 201; Tebo v. Augusta, 90 Wis. 405; Chicago, 
 St. L. & P. Ry. Co. V. Champion, 9 Ind. App. 510; Patton v. Incorporated 
 Town of Sanborn, 133 la. 650, 110 N. W. 1032; Weir v. St. Ry. Co., 126 Mo. 
 App. 471, 103 S. W. 583; Griffin v. Selma Fruit Co. (Cal.), 89 Pac. 855; 
 Southern Ry. Co. v. Leard (Ala.), 39 So. 449. Motion at end of evidence, 
 Flint & Walling Mfg. Co. v. Beckett, 167 Ind. 491, 79 N. E. 503; Toledo 
 St. L. & W. Ry. Co. V. Stevenson, 122 111. App. 654; Manning v. School 
 District, 124 Wis. 84, 102 N. W. 356; Chicago Union Tract. Co. v. May, 
 221 111. 530, 77 N. B. 933. 
 
 92 Birmingham L. Co. v. Brinson, 94 Ga. 517; Southern Coal & Coke Co. 
 V. Swinney (Ala.), 42 So. 808; McWilllams v. Railway Co., 146 Mich. 216, 
 109 N. W. 272. 
 
 93 East Tenn., V. & G. Ry. Co. v. Turvaville, 97 Ala. 122. 
 
 9* Link v. Sheldon, 136 N. Y. 1; Holmes v. Roper, 141 N. Y. 64; Kansas 
 City, M. & B. Ry. Co. v. Phillips, 98 Ala. 159; Ft. Worth & R. G. Ry. Co. v. 
 Andrews, 7 Tex. Civ. App. 321; Falvey v. Jackson, 132 Ind. 176; Overley 
 V. Chesapeake & 0. Ry. Co., 37 W. Va. 524. 
 
 95 Levin v. Russell, 42 N. Y. 251; Cleveland, C, C. & I. Ry. Co. v. Wyn- 
 ant, i34 Ind. 681; Wheelock v. Godfrey, 100 Cal. 578; Haines v. Saviors, 
 93 Mich. 440; Way v. Johnson, 5 S. D. 237; Wiggins v. Guthrie, 101 N. C. 
 661; Hickman v. Green, 123 Mo. 165; State v. Hope, 100 Mo. 347; Ellinger 
 V. Rawlings, 12 Ind. App. 336; Smith v. Birmingham Ry. L. Si P. Co. 
 (Ala.), 41 So. 307; Seerle v. Brewer (Colo.), 90 Pac. 508; Poindexter & 
 O. L. S. Co. V. Railway Co., 33 Mont. 338, 83 Pac. 886; Martin v. Corscadden 
 (Mont), 86 Pac. 33; Hogan v. Klabo, 13 N. D. 319, 100 N. W. 847. The 
 fact that no objection was made does not prevent the court from striking 
 out Improper evidence, Spotswood v. Spotswood (Oal.), 89 Pac. 362. 
 
 98Gawtry v. Doane, 51 N. Y. 84; Marks v. King, 64 N. Y. 628; Platner v. 
 Hatner, 78 N. Y. 90; Gilmore v. Pittsburg Ry. Co., 104 Pa. 275; Walker 
 
1150 THE LAW OF EVIDENCE. § 895 
 
 of the court in such case to strike out the testimony,"^ and the 
 motion should be granted if made promptly when the inadmissi- 
 bility is discovered.*' A motion to strike out testimony should 
 specify the objection, as well as the portion of the evidence ob- 
 jected to ; and a motion to strike out all of certain evidence should 
 not be sustained, if a part of the evidence is relevant and com- 
 petent.'* The weight of authority sustains the proposition that 
 the error of receiving irrelevant and incompetent testimony is 
 cured, if the testimony is afterwards stricken out by order of the 
 court, or if the jury are plainly instructed to disregard it. This 
 rule is based upon the ground that it will not be presumed that 
 juries are too ignorant to comprehend or too unmindful of their 
 duties to fail to respect instructions as to matters which are pecul- 
 iarly within their province to determine. The appellate court 
 will rather presume that juries are influenced in their verdict only 
 by legal evidence.^ But some of the cases cited upon this proposi- 
 tion are based upon the ground that the evidence stricken out or 
 withdrawn from the consideration of the jury had evidently not 
 influenced the verdict; and there is high authority for the view 
 that the error is not cured, if it is impossible to say that the im- 
 proper testimony did not influence the jury, notwithstanding the 
 action of the court. The general rule to be gathered from the 
 eases may be stated as foUows: "If, in any case, there is good 
 reason to believe that injury has been done to the adverse party 
 
 V. Lee (Fla.), 40 So. 881. So where immaterial testimony has been ad- 
 mitted on the promise of the attorney that it would be shown to be ma- 
 terial, Forsyth v. Ganson, 5 "Wend. 558; Blackburn v. Beall, 21 Md. 208. 
 
 97 Pontius V. People, 82 N. Y. 339; Platner v. Platner, 78 N. Y. 90; "Walker 
 V. Lee (Fla.),40 So. 881. 
 
 08 Theodore Land Co. v. Lyon (Ala.), 41 So. 682; Defguard v. Railway 
 Co. (N. J.), 67 Atl. 609; Missouri K. & T. Ry. Co. v. Renfro (Tex.), 83 S. 
 "W. 21; Boland v. Railway Co., 96 N. Y. S. 262; Brown v. Brown, 196 N. Y. 
 Sup. 1002. 
 
 sioMcGuffy V. McClain, 130 Ind. 327; Chicago, St. L. & P. Ry. Co. v. 
 Champion, 9 Ind. App. 510; Birmingham L. Co. t. Brinson, 94 Ga. 517; 
 McCabe v. Brayton, 38 N. Y. 196; Davis v. Hopkins, 18 Colo. 153; Spaulding 
 V. Hallenbeck, 35 N. Y. 204; Roberts v. Burgess, 85 Ala. 192. 
 
 1 "Waterman v. Chicago & A. Ry. Co., 82 "Wis. 613; Holmes v. Moffat, 120 
 N. Y. 159; Gall v. Gall, 114 N. Y. 109; Busch v. Fisher, 89 Mich. 192; 
 Pennsylvania Co. v. Roy, 102 U. S. 451; Alabama G. S. Ry. Co. v. Frazier, 
 93 Ala. 45; Blizzard v. Applegate, 77 Ind. 527; Sullens v. Chicago, R. I. & 
 P. Ry. Co., 74 la. 659; Union "Water Co. v. Crary, 25 Cal. 504. See also, 
 Hogendobler v. Lyon, 12 Kan. 276. 
 
§ 896 ATTENDANCE AND EXA.MINATION OF WITNESSES. 1151 
 
 by the mtroduction of such evidence, notwithstanding the caution 
 and instructions of the court, that will furnish a sufficient cause 
 for sending the case to another trial. But, unless there is good 
 •ground for suspicion, it must be presumed that the instructions of 
 the court were not disregarded."" The motion to strike out goes 
 to admissibility and not to weight and evidence should not be 
 stricken out because it may be of little weight.' 
 
 § 896 (899). Effect of improper admission and exclusion of evi- 
 dence. — The question constantly arises in the courts whether a 
 new trial should be granted on the ground of the improper ad- 
 mission or exclusion of evidence. It is obviously impossible to lay 
 down any rule on this subject which will not, in individual cases, 
 cause hardship to the litigant. On the one hand, it would be 
 clearly unjust to establish the rule that a new trial should be 
 granted in every case where errors have intervened, without any 
 regard to their effect upon the jury. On the other hand, since 
 it is often difScult and sometimes impossible for the appellate court 
 to determine the effect which improper testimony may have had 
 upon the minds of the jury, there are serious objections to a 
 practice which permits speculation on that subject. A very 
 conservative rule was thus stated on this subject by a great judge : 
 "Where evidence has been improperly received or rejected, and 
 the verdict is found against the party taking the exception, and 
 a motion for a new trial is made on that ground, such motion will 
 not be granted, if the court can see plainly from the whole evi- 
 dence that, independently of the evidence received or rejected, 
 the evidence in support of the verdict so decidedly preponderates 
 
 2 Deerfield v. Northwood, 10 N. H. 269, 271; The G. C. & S. F. Ry. Co. v. 
 Levy, 59 Tex. 542; Specht v. Howard, 16 Wall. 564; Smith v. "Whitman, 6 
 Allen, 562; Taylor v. Admns, 58 Mich. 187; Hollingsworth v. City of Port 
 Dodge, 125 la. 627, 101 N. W. 455; Schultz v. Ford Bros., 133 la. 402, 109 
 N. W. 614; Dorais v. Doll (Mont.), 83 Pac. 884; Spokane v. Costello 
 (Wyo.), 84 Pac. 652; Southern Pac. Ry. Co. v. San Francisco Sav. Union, 
 146 Cal. 290, 79 Pac. 961; Appeal of Spencer, 77 Conn. 638, 60 Atl. 289. 
 See also, Richards v. Noyes, 44 Wis. 609. The motion should be to strike 
 out that part which is Incompetent, Colorado Farm & Live Stock Co. v. 
 York (Colo.), 88 Pac. 181; Metz v. Willitts, 14 Wyo. 511, 85 Pac. 380; 
 Powley V. Swenson, 146 Cal. 471, 80 Pac. 722; Einolf v. Thompson, 95 
 Minn. 230, 103 N. W. 1026; Keys v. Winnsboro Granite Co., 76 S. C. 284, 
 56 S. E. 949; Hoodless v. Jernigan (Fla.), 41 So. 194. 
 
 sMetz V. Willitts, 14 Wyo. 511, 85 Pac. 380; Wilcox v. Stephenson, 30 
 Fla. 377, 11 So. 659. 
 
1152 THE LAW OF EVIDENCE. § 896 
 
 that a verdict the other way would be set aside as against evi- 
 dence. ' ' ^ Another learned judge somewhat more broadly stated 
 the rule which has received wide support. "I think the correct rule 
 in regard to the granting or refusing a new trial for the admission 
 of irrelevant or improper evidence is this: where the exceptional 
 evidence is of little weight compared with the rest of the proof, 
 and the latter clearly justifies the finding of the jury, a new 
 trial will not be granted; but it must in all cases appear very 
 satisfactorily that the verdict must and ought to have been the 
 same, whether the questionable evidence was admitted or not. ' ' ^ 
 Upon this general principle, it is the practice to deny a new 
 trial where the court is of the opinion that the error in receiving or 
 excluding evidence was not prejudicial;^ and in some states this 
 rule has been declared by statute. In other decisions, however, a 
 stricter rule is declared, and it is held that since parties have the 
 right to have the correct rule of law applied, the verdict will be 
 set aside if clear error has been committed in the admission or 
 exclusion of evidence, and especially when it is impossible to de- 
 termine, as it often is, how the verdict may have been affected by 
 the improper ruling.' It will be inferred that there is no preju- 
 dice from the improper admission of evidence where other and 
 competent evidence to the same effect is uncontradicted or over- 
 whelming,* or when the same facts are proved by the objecting 
 
 *Thorndike v. City of Boston, 1 Met. 242, 249. 
 
 5 SmitlL V. Russ, 22 Wis. 439; Winkley v. Foye, 83 N. H. 171, 66 Am. Dec. 
 715 and note; People v. Fernandez, 35 N. Y. 48; Motes v. U. S., 178 U. S. 
 458; Barber v. People, 203 111. 543, 68 N. E. 93. 
 
 «MontroSs v. Eddy, 94 Mich. 100; Miller v. James, 86 la. 242; Dimmick 
 V. Milwaukee Ry. Co., 18 Wis. 471; Rosenbaum v. Russell, 35 Neb. 513; 
 Chicago & G. W-. Ry. Co. t. Wedel, 144 111. 9; Barber v. People, 203 111. 543, 
 68 N. E. 93; Wingo r. Inman Mills, 76 S. C. 550, 57 S. E. 525; Burch v. Amer- 
 icus Grocery Co., 125 Ga. 153, 53 S. E. 1008; Brownlee v. Reiner 147 Cal. 614, 
 82 Pac. 324; Aske v. Railway Co., 83 Minn. 197, 85 N. W. 1011; Hornbuckle 
 V. Stafford, 111 U. S. 389; Wing v. Chesterfield, 116 Mass. 353; State v. 
 Woodrufe, 47 Kan. 151, 27 Am. St. Rep. 285; Cahill v. Murphy, 94 Cal. 29, 28 
 Am. St. Rep. 88; Woods v. Gaar, 99 Mich. 301; Consaul v. Sheldon, 35 
 Neb. 247, where the fact was admitted by the pleadings. 
 
 7 Murphy v. Backer, 67 Minn. 510, 70 N. W. 799; Carpenter v. Lingen- 
 felter, 42 Neb. 728, 60 N. W. 1022; Carrer v. XJ. S., 160 U. S. 553; Brown 
 V. U. S., 150 U. S. 93; People v. Strait, 154 N. Y. 165, 47 N. B. 1090. 
 
 8 Reed v. City of Madison, 85 Wis. 667; Phoenix Ins. Co. v. Pickel, 3 Ind 
 App. 332; LaDuke v. Exeter, 97 Mich. 450, 37 Am. St. Rep. 357; Com. v. 
 Lenousky, 206 Pa. 277, 55 Atl. 977; William Bergenthal Ck>. v. Security 
 State Bank, 98 Minn. 414, 108 N. W. 301; Bucki v. Seitz (Fla.), 21 So. 576. 
 
§ 897 ATTEITOANOB AND EXAMINATION OF WITNESSES. 1153 
 
 party," or where it is evident that the result would have been 
 the same, even if the error excepted to had not been committed.^" 
 It is also held that the erroneous reception of cumulative evidence 
 is harmless where the facts, thus proven, are otherwise legally 
 shown.^^ 
 
 § 897 (900). Same, continued. — ^It may be inferred from the 
 cases already cited that in some jurisdictions it is held that if irrele- 
 vant or incompetent evidence is received which has a tendency to 
 prejudice the minds of the jury or to mislead them, a new trial 
 should be granted ; ^^ and the rule has sometimes been declared 
 that a new trial will be granted, unless it can be seen that such 
 evidence could have had no influence upon the jury." The fol- 
 lowing test was given by the court of appeals of New York: 
 ""When the evidence on each side is so nearly balanced that a de- 
 termination either way would not be reversed upon appeal, it 
 cannot be said that the losing party is not prejudiced by material 
 evidence testified to by an incompetent witness against his ob- 
 jection. ' ' '^^ And so long as the chances are equal that it may have 
 had some effect one way or the other, the party excepting is en- 
 titled to the benefit of the principle that irrelevant testimony 
 Sihould be shut out from the jury.^' In equity cases, it will be 
 presumed that the trial judge disregarded incompetent or irrele- 
 vant testimony; and errors in the admission of such evidence do 
 not afford ground for reversal where there is sufficient testimony 
 to support the decree.^' The fact that incompetent testimony 
 has been received is not sufficient ground for reversing the judg- 
 
 » Doll V. People, 145 111. 253. 
 
 10 Terry v. Beatrice Starch Co., 43 Neb. 866; Gardner v. Railway Co., 
 135 Mo. 90, 36 S. W. 214; Long v. Oliver (Ga.), 33 S. E. 424; Frisk v. 
 Reigelman, 75 Wis. 499; City of Dallas v. Miller, 7 Tex. Civ. App. 503, 
 and cases above cited. 
 
 "Chase v. Caryl, 57 N. J. L. 545, 31 AU. 1024; McLendon v. Frost, 57 
 Ga. 448. See §§ 8 supra, 900 infra. 
 
 i2Rooney v. Milwaukee Chair Co., 65 Wis. 397; Center v. Center, 41 N. 
 H. 405; Com. v. Bosworth, 22 Pick. 397; Francis v. Butler M. Ins. Co., 4 
 R. I. 159. 
 
 13 Santillan v. Moses, 1 Cal. 92; Owen v. Jones, 14 Ark. 502; Foye v. 
 Leighton, 24 N. H. 29; Ames v. Potter, 7 R. I. 265; Field v. Avery, 17 Wis. 
 672; Harrison v. Baker, 15 Neb. 43; Hutchlns v. Hutchins, 98 N. Y. 56. 
 
 11 In re Eysaman's Will, 113 N. Y. 62. 
 
 10 Farmers'. Bank v. Whinfield, 24 Wend. 419; Hoberg v. State, 3 Minn. 
 262. 
 I'Kleinmann v. Gieselmann, 114 Mo, 437, 35 Am. St. Rep. 761; Llver- 
 73 
 
1154 THE LAW OP EVIDENCE. § 898 
 
 ment where the case is tried without a jury. In such ease, the 
 appellate court will give no weight to such testimony in the de- 
 termination of the appeal, and will not reverse the judgment on 
 that account/'' 
 
 § 898 (901). Weight of evidence — Positive and negative. — ^In 
 other parts of this work frequent allusion has been made to the 
 weight of the various kinds of evidence which have been there 
 discussed. And also to the familiar distinction between the rele- 
 vancy or admissibility of evidence and its weight. In the one 
 ease the objection goes to the exclusion of the evidence, in the 
 other it is made at a different stage of the trial and for a different 
 purpose. At this point it is only necessary to briefly call atten- 
 tion to one or two branches of the subject not elsewhere referred 
 to. It is a general rule of evidence that affirmative testimony is 
 stronger than negative; in other words, that "the testimony of a 
 credible witness, that he saw or heard a particular thing at a par- 
 ticular time and place is more reliable than that of an equally 
 credible witness who, with the same opportunities, testifies that he 
 did not hear or see the same thing at the same time and place." ^' 
 The reason for this rule is that the witness who testifies to a nega- 
 tive may have forgotten what actually occurred, while it is im- 
 possible to remember what never existed.^* But, in applying the 
 rule, much depends upon circumstances, such as the opportunity 
 of witnesses for knowing and the attention which they have given 
 to the matter; and the mere fact of one witness testifying directly 
 contrary to another does not discredit either;^" the attention of 
 the jury should be directed to the facts and circumstances of the 
 case to prevent the unjust operation of the rule.^^ Thus, the 
 
 pool & L. & G. Ins. Co. v. Buckstaff, 38 Neb. 146, 41 Am. St. Rep. 724; 
 Ritter v. Schenk, 101 111. 387. 
 
 17 Frisk V. Reigelman, 75 Wis. 499. 
 
 18 1 Whart. Ev. § 415; Stark. Bv. 867; Ralph v. Chicago & N. W. Ry. 
 Co., 32 Wis. 177; Alft v. City of Clintonville, 126 Wis. 334, 105 N. W. 561; 
 Johnson v. State, 14 Ga. 55; Pool v. Devers, 30 Ala. 672; Auld v. Walton, 
 12 La. An. 129; Coles v. Perry, 7 Tex. 109; Allen v. Bond, 112 Ind. 52,3. As 
 to what is not negative testimony, see. Cox v. Schuykill Valley Traction 
 Co., 214 Pa. 223, 63 Atl. 599; New York C. & St L. R. Co. v. Robbins (Ind. 
 App.), 76 N. E. 804. 
 
 i» Stitt V. Huidekopers, 17 Wall. 384. 
 
 20 Draper v. Baker, 61 Wis. 450. 
 
 21 Farmers' & Mech. Bank v. Champlain Trans. Co., 23 Vt. 186, 56 Am. 
 Dec. 68. 
 
§ 898 ATTENDANCE AND EXAMINATION OF WITNESSES. 1155 
 
 fact that certain witnesses heard a whistle and bell of an engine 
 at a crossing is not necessarily in conflict 'with the testimony of 
 others who heard nothing, for the observation of the fact by some 
 is entirely consistent with the failure of others to observe.^^ 
 Where two witnesses directly contradict each other, and the verac- 
 ity of neither is impeached, the presumption of truth is in favor 
 of the witness who' swears affirmatively.^' So the positive testi- 
 mony of a single witness is entitled, to more weight than that of 
 several witnesses, equally credible, who testifj' negatively or to 
 collateral circumstances, merely persuasive in their character!, 
 from which a negative may be inferred.''* But the rule that posi- 
 tive testimony is of greater weight than negative has some impor- 
 tant exceptions, and it should never come. in conflict with the gen- 
 eral rule that the weight of the testimony should be left to the 
 juryj such testimony is admissible, and, together with corrobora- 
 ting circumstances, may outweigh positive testimony,^" As will 
 be seen from the cases already cited, this question of the weight 
 to be given to negative testimony often arises in railroad and 
 other accident cases where it is claimed that signals were not 
 given. In such cases, the question is purely for the jury, and it 
 has often been held that negative evidence was sufficient to sustain 
 a verdict.^" It is familiar practice to allow a witness, after he 
 has described the situation, to state that he would have heard a 
 
 22 Horn V. Baltimore & Ohio Ry. Co., 54 Fed. 301; Atlanta & West Point 
 Ry. Co. V. Johnson, 66 Ga. 259. But see, Hoffman v. Pitchburg Ry. Co., 
 22 N. Y. S. 463. As to what is. sufficient negative testimony to make a con- 
 flict for the jury, see, Hoffard v. Railway Co. (la.), 110 N. W. 446; Ires 
 V. Railway Co., 128 Wis. 357, 107 N. W. 452. 
 
 23 Hepburn v. Citizens' Banli, 2 La. An. 1007, 46 Am. Dec. 564; Harris 
 V. Bell, 27 Ala. 520; Stark, Ev. 516. 
 
 2*Hinton v. Cream City Ry. Co., 65 Wis. 323; Pennoyer v. Allen, 56 Wis. 
 502; Sanborn v. Babcock, 33 Wis. 400; Wickham v. Railway Co., 95 Wis. 
 25, 69 N. W. 982; Ryan v. Railway Co., 108 Wis. 122, 83 N. W. 710; 3 
 Greenl. Ev. § 375. 
 
 25 Greany v. Long Island Ry. Co., 101 N. Y. 419; Lighthouse v. Chicago, 
 M. & St. P. Ry. Co., 3 S. D. 518; Kelly v Schupp, 60 Wis. 76; Nelson v. 
 Iverson, 24 Ala. 9, 60 Am. Dec. 442; Stoddard v. Kelly's Adm., 50 Ala. 452; 
 State V. Gates, 20 Mo. 400; Van Salvellergh v. Green Bay Traction Co. 
 (Wis.), Ill N. W. 1120; Stotler v. Railway Co., 200 Mo. 107, 98 S. W. 509. 
 
 20 Pence v. Chicago, R. I. & P. Ry. Co., 79 la. 389; Davis v. New York, 
 N. H. & H. R. Ry. Co., 159 Mass. 532; Greany v. Long Island Ry. Co., 101 
 N. Y. 419; Eilert v. Green Bay & M. Ry. Co., 48 Wis. 606; Elkins v. Ken- 
 yon, 34 Wis. 93; Purnell v. Railway Co., 122 N. C. 832, 29 S. B. 953. 
 
1156 THE LAW OP EVIDENCE. § 899 
 
 bell or whistle, if it had sounded." The courts have frequently- 
 recognized a qualification of the general rule under discussion in 
 those cases tvhere one witness testifies that a fact occurred and 
 another, having the same or better means of knowledge, testifies 
 positively that it did not occur, each having te&tified as to his 
 memory of the matter in difference.^' The same principle applies 
 to matters that must, from the nature of the case be notorious, 
 such as the adverse possession of land.^° This distinction is well 
 drawn in an Illinois case where certain witnesses, equally credible, 
 directly contradicted certain others as to whether the defendant 
 did strike the blow. The court said: "Their statement should 
 have had equal weight and consideration. Their testimony was as 
 positive as to the fact .in controversy as the testimony of the 
 people's witnesses, and, if they had equal honesty, ability and 
 opportunity of knowing what did transpire, and memory, their 
 testimony would have had the same weight on a mind seeking to 
 ascertain the truth.* * * If the witnesses on the part of the de- 
 fendant had simply testified that they did not see the blow struck, 
 this would, in a legal sense, have been negative evidence, * * * 
 for it might be that they, although present, did not see the blow 
 struck ; but it could not be that any one saw what did not occur, 
 or that an act wasi done by one not having the ability under the 
 established state of things to do it." "" 
 
 § 899 (901). Same — Direct and circiunstantial. — It is beyond 
 the scope of this work to enter upon any extended discussion of a 
 subject, often debated, and especially by laymen, namely, the 
 relative weight of direct and circumstantial evidence. In civil 
 eases, it suffices that the evidence, whether direct or circumstan- 
 
 27 Chicago & A. Ry. Co. v. Dillon, 123 111. 570; Burnham v. Sherwood, 
 56 Conn. 229. 
 
 2s Potts V. House, 6 Ga. 324, 50 Am. Dec. 329; Innls v. State, 42 Ga. 
 482; Denham v. Holeman, 26 Ga. 182, 71 Am. Dec. 198; Marshall Dent. 
 Mfg. Co. V. Harkenson, 84 la. 117; Burnham v. Sherwood, 56 Conn. 229; 
 Cotton V. Railway Co., 99 Minn. 366, 109 N. W. 835. Evidence admitted 
 that witness had not seen or heard the object or transaction in question, 
 People V. Sanders, 114 Cal. 216, 46 Pac. 153; Le Comte v. U. S., 7 D. C. 
 App. 16; McMahon v. McCabe, 174 Mass. 320, 54 N. E. 854; State v. Lattin, 
 19 Wash. 57, 52 Pac. 314; or had no knowledge of the matter, Edwards v. 
 Three Rivers, 102 Mich. 153, 60 N. W. 454. 
 
 29 Denham v. Holeman, 26 Ga. 182, 71 Am. Dec. 198. 
 
 soCoughlin v. People, 18 111. 266, 68 Am. Dec. 541; Kans2,s City P. S. 
 & G. Ry. Co. V. Lane, 33 Kan. 702. 
 
§ 900 ATTENDANCE AND EXAMINATION OF WITNESSES. 1157 
 
 tial, creates a preponderance of tlie proof.^^ It has sometimes 
 been attempted to establish a rule to the effect that, in criminal 
 ca^es, the amount of circumstantial evidence required to justify a 
 verdict must be equal to the testimony of at least one witness 
 swearing directly to the existence of the fact sought to be proved.'^ 
 But it is the prevailing rule that, to warrant conviction for a crime, 
 whether upon direct or circumstantial evidence, the jury must 
 be satisfied to a moral certainty and beyond a reasonable doubt.'' 
 As the rule is sometimes stated, the circumstances proved must 
 be susceptible of explanation upon no reasonable hypothesis con- 
 sistent with the innocence of the accused.'* The attempts to pre- 
 scribe arbitrary rules as to the weight of either of these forms of 
 testimony have proved unsatisfactory; it is misleading to declare 
 that either kind is, in a legal sense, inferior to the other. Both 
 classes of testimony are indispensable in the administration of 
 justice; and their relative value, depending upon the circum- 
 stances of each case, must be left to the jury.'^ 
 
 § 900 (902). Number of witnesses. — Parties are generally al- 
 lowed to call as many witnesses to establish the claim or defense 
 as they may deem necessary. If the court unduly limit or restrict 
 this privilege, it is ground for a now triaU^ But if it were the 
 rule that the court could exercise no discretion in limiting the 
 number of witnesses trials might become a inere contest as to which 
 side can overwhelm the other by the number of witnesses. It is 
 the familiar practice, therefore, for the trial judge to exercise a 
 discretion as to the number of witnesses that may be called to 
 prove any fact that is not disputed or that is merely collateral 
 to the main issue, or in case expert or impeaching testimony is 
 
 81 3 Greenl. Bv. § 29. See § 195 supra. The jury may base the verdict 
 wholly on circumstantial evidence even though opposed by direct and 
 positive testimony. Atchison, T. & S. P. Ry. Co. v. Collioti, 75 Kan. 56, 
 88 Pac. 534; Minard v. West Jersey & S. Ry. Co. (N. J. L.), 64 Atl. 105:4. 
 
 32 Bixby v. Corksaddon, B5 la. 533. 
 
 33 Faulk v. State, 52 Ala. 415; People v. Padelia, 42 Cal. 535; Beavers 
 V. State, 58 Ind. 530; Law v. State, 33 Tex. 37; Com. v. Webster, 5 Gush. 
 295, 52 Am. Dec. 711 and note. See extended note, 62 Am. Dec. 179. 
 
 34 United States v. Martin, 2 McLean (U. S.), 256; Williams v. State, 41 
 Tex. 209; People v. Dick, 32 Cal. 213; United States v. Douglass, 2 Blatch. 
 (U. S.) 207. 
 
 8s See notes, 52 Am. Dec. 737; 62 Am. Dec. 179-188; 78 Am. Dec. 252, on 
 use of circumstantial evidence in proof of corpus delicti. See also 3 Encyc. 
 of Bv. § 99 et seg. See § 174 supra. 
 
 se Green v. Phoenix Ins. Co., 134 111. 310; Page v. Krekey, 137 N. Y. 307. 
 
1158 THE LAW OF EVIDENCE. § 900 
 
 being given, or where the testimony is merely cumulative.^'' But 
 the rejeotion of testimony, cumulative in its nature, may be 
 ground for error when the evidence proposed relates to the main 
 point in issue, or where the facts and circumstances are so numer- 
 ous and varied that a large number of witnesses are required to 
 determine the fact in issue.^* It has become almost a maxim that 
 witnesses are not counted, but that their testimony is weighed.^" 
 On this view, it is proper to instruct the jury that they are not 
 necessarily to be controlled hy the mere numerical preponderance 
 of the witnesses on one side or the other, but that they should con- 
 sider such preponderance with all the other facts and circum- 
 stances conducing to behef in the testimony of the witnesses on 
 either hand.*" It is the general rule, in civil issues, that a claim 
 or defense can be established by a single witness.*^ The power 
 of the court to limit the number of witnesses is recognized by 
 statutes in some states, and frequently it has been approved in 
 criminal as well as civil cases.*^ In a few instances the common 
 law, and later the constitution and statutes, required at least two 
 witnesses to prove the crime. This is illustrated in the case of 
 
 ST Green v. Phoenix Ins. Co., 134 111. 310; Meier v. Morgan, 82 Wis. 289, 
 52 N. W. 174, 33 Am. St. Rep. 39; Larson v. Eau Claire, 92 Wis. 86, 65 N. 
 W. 731; Detroit City Ry. v. Mills, 85 Mich. 634, 48 N. W. 1007; Mergent- 
 heim v. State, 107 Ind. 567, 8 N. B. 568; State v. Beabout, 100 la. 155, 69 
 N. W. 428; Butler v. State, 97 Ind. 378. See note 116 Am. St. Rep. 514- 
 520. See § 814 supra and cases cited; also §§ 896, 897 supra. Cumulative 
 as to value, Preston v. Cedar Rapids, 95 la. 71, 63 N. W. 577, seven; Everett 
 V. Railway Co., 59 la. 243, 13 N. W. 109, five; character. State v. Ruther- 
 ford, 152 Mo. 124, 53 S. W. 417, six; experts. Sixth Ave. Ry. Co. v. Railway 
 Co., 138 N. Y. 548, 34 N. E. 400; White v. Boston^ 186 Mass. 65, 71 N. E. 75; 
 note 116 Am. St. Rep. 519. 
 
 88 Green v. Phoenix Ins. Co., 134 111. 310. See §§ 814, 815 supra and eases 
 cited. 
 
 so Alabama G. S. Ry. Co. v. Frazier, 93 Ala. 45, 30 Am. St Rep. 28; 
 Kinchelow v. State, 5 Humph. (Tenn.) 9; Howell Lumber Co. v. Camp- 
 bell, 38 Neb. 567; Union Pacific Ry. Co. v. James, 56 Fed. 1001; Riley v. 
 Butler, 36 Ind. 51; Proctor v. Terrill, 8 B. Mon. (Ky.) 451; Ford v. Taylor, 
 140 Fed. 356; Indianapolis St. Ry. Co. v. Johnson, 163 Ind. 518, 72 N. E. 
 571. 
 
 « Alabama G. S. Ry. Co. v. Frazier, 93 Ala. 45, 30 Am. St. Rep. 28. 
 
 *i For Illustrations of exceptional cases where one witness has been 
 held insufficient, see, McDaniels v. Barnum, 5 Vt. 279; Langhran v. Keely, 
 8 Cush. 199; WafCord v. State, 44 Tex. 439; Sanborn v. Babcock, 33 Wis. 
 400. 
 
 *2 State v. Smith, 164 Mo. 567, 65 S. W. 270. 
 
§ 901 ATTENDANCE AND EXAMINATION OP WITNESSES. 1159 
 
 treason.*^ At common law two witnesses were required to con- 
 vict on the charge of perjury," but later cases hold that the jury 
 may convict in actions for perjury on the testimony of one wit- 
 ness and corroborating evidence.*'' It is error to instruct the 
 jury to the effect that the preponderance of the evidence in all 
 cases is to be determined by the number of equally credible and 
 well informed witnesses testifying on each side.*" But this is 
 not in conflict with an instruction that, other things being equal, 
 the greater number would carry the greater weight.*' The dis- 
 tinction between the last two propositions is that the same number 
 of witnesses may have equal credit and equal means of information, 
 and yet differ greatly in the amount of evidence reported to the 
 court or jury, and that the testimony of one witness may be more 
 clear, consistent and convincing than the testimony of another. 
 It is hardly necessary to state that under statutes the mode is 
 prescribed of proving wills and nuncupative wills, the revocation 
 of wills, the provisions of last wills, and the like.** 
 
 § 901 (903). Credibility of witnesses.— Under other heads at- 
 tention has been called to the degree of credence to be given to 
 various kinds of testimony, and in many sections, under the gen- 
 eral subject of the cross-examination of witnesses, we have illus- 
 trated the modes of testing the credibility of a witness. It now 
 only remains to refer to some of those considerations, not elsewhere 
 mentioned, which affect the credibility of the witness and which 
 may be properly urged upon the jury. It is a familiar rule, often 
 referred to in this work, that it is the peculiar and exclusive 
 
 43 u. S. Const, art. 3, § 3. 
 
 "State V. Hayward, 1 Nott. & McC. (S. C.) 546; Greenl. Ev. § 257. 
 
 "State V. Blize, 111 Mo. 464, 20 S. W. 210; Williams v. Com. (Ky.), 68 
 S. "W. 871; Whittle v. State, 79 Miss. 327, 30 So. 722; State v. Faulkner 
 (Mo.), 75 S. W. 116. 
 
 46 Bierbach v. Goodyear Rubber Co., 54 Wis. 208, 41 Am. Rep. 19; State 
 V. Musick, 71 Mo. 401; Fitzgerald v. Richardson, 30 Neb. 365; Chicago & 
 A. Ry. Co. V. Fischer, 141 111. 614; Howlett v. Dilts, 4 Ind. App. 23; Jones 
 V State, 13 Tex. 168, 62 Am. Dec. 550; Goldstrohm v. Steiner, 1.55 Pa. St. 
 28. But the court should not dwell too much on this point, Leneberg v. 
 Brotherton Iron Mine Co., 75 Mich. 84. Contra, Katzenbach v. Holt, 43 
 N. J. Eq. 536. 
 
 " Spensley v. Lancashire Ins. Co., 62 Wis. 443; Mumpton v. The Dale, 
 46 Fed. 670; Llllibridge v. Barber, 55 Conn. 366. See, also, Jones v. State, 
 13 Tex. 168, 62 Am. Dec. 550. 
 
 48 See statutes pf the jurisdiction. 
 
1160 THE LAW OF EVIDENCE. § 901 
 
 province of the jury to decide upon the credibility of witnesses;*^ 
 and that, in the exercise of this duty, the court will not interfere 
 with the decision of the jury.^* Nor is there any distinction in 
 this respect between civil and criminal cases.^'^ It is not improper 
 for the judge to instruct the jury that they may take into con- 
 sideration the interest of witnesses in the result.^^ But is is not 
 within the proper province of the judge to instruct the jury as 
 to the relative credibility of classes of witnesses whose testimony 
 comes in conflict ; °^ And if the judge invades the province of the 
 jury by attempting to- dictate their verdict upon disputed ques- 
 tions of fact, left to their consideration, it is reversible error.°* 
 The credit to be given to the testimony of an accused person or 
 an accomplice is to be determined solely by the jury, although 
 it is not error for the court to instruct the jury that they may 
 consider such facts in connection with the other facts in the case, 
 and that they have the right to take into consideration the in- 
 terest or want of interest of the witnesses.^" While the jury 
 
 *9 Taylor v. Kelly, 31 Ala. 59, 68 Am. Dec. 150; Jones v. State, 13 Tex. 
 168, 62 Am. Dec. 550; Wing Chung v. Los Angeles, 47 Cal. 531; Walker v. 
 State, 72 Ga. 200; Schimmeltenlg v. Donovan, 13 111. App. 47; Mechelke 
 V. Bramer, 59 Wis. 57; People v. Wallin, 55 Mich. 497; Finerty v. Fritz, 6 
 C!olo. 137; Nelson v. Vorce, 55 Ind. 455; Baker v. Young, 44 111. 42, 92 
 Am. Dec. 149; State v. Hoxsie, 15 R. I. 1, 2 Am. St. Rep. 838; Graham v. 
 Anderson, 42 111. 514, 92 Am. Dec. 89; Flemming v. The Marine Ins. Co., 
 4 Whart. (Pa.) 59, 33 Am. Dec. 33; Illinois Cent. Ry. Co. v. Adams, 42 
 111. 474, 92 Am. Dec. 85; Childs v. State, 76 Ala. 93; Rider v. People, 110 
 111. 11; Frierson v. Galbraith 12 Lea (Tenn.) 131; Wait v. M'Neil, 7 Mass. 
 261; O'Brien v. Railway Co., 92 Wis. 340, 66 N. W. 36.3; Welty v. Railway 
 Co., 100 Wis. 128, 75 N. W. 1022; Schultz v. State, 125 Wis. 452, 104 N. 
 W. 90. 
 
 60 Illinois Cent. Ry. Co. v. Adams, 42 111. 474, 92 Am. Dec. 8; Dobbins 
 V. Dobbins, 141 N. C. 210, 53 N. B. 870, 115 Am. St. Rep. 682. See §§ 174 
 et seq. supra. 
 
 51 Lewis V. Lewis, 9 Ind. 105. 
 
 B2Lovell V. Davis, 52 Mo. App. 342; New Orleans, J. & G. N. Ry. Co. v. 
 Allbritton, 38 Miss. 242, 75 Am. Dec. 98. 
 
 63 Nelson v. Vorce, 55 Ind. 455; Metropolitan Ry. Co. v. Jones, 1 App. Dec 
 200; Hronek v. People, 134 111. 139, 23 Am. St. Rep. 652. 
 
 64 People V. Wallin, 55 Mich. 497; Kintner v. State, 45 Ind. 175; Engmann 
 V. Estate of Immel, 59 Wis. 249; Moore v. State, 68 Ala. 380; Clevinger 
 V. Curry, 81 111. 432. See elaborate note, 14 Am. St. Rep. 30. See § 174 
 supra. 
 
 65 State V. Morrison, 104 Mo. 638; People v. Cronin, 34 Cal. 191; People 
 V. Crowly, 102 N. Y. 234; Anderson v. State, 104 Ind. 467; Wilkins v. State, 
 
§ 902 ATTENDANCE AND EXAMINATION OF WITNESSES. 1161 
 
 may consider whether or not the testimony of a detective or pri- 
 vate policeman should be taken with some allowance, yet an in- 
 struction to the effect that such evidence should be received with 
 a large degree of caution has been held error."" Although the 
 relationship of the witness to either of the parties should not dis- 
 credit him, still this is a circumstance to be weighed in a doubtful 
 case."'' So also his social and business relations with the parties, 
 his intimacy or hostility and such other circumstances as might 
 create Mas may properly be considered."* If an attesting witness 
 tries to impeach the instrument to which his signature gives 
 credit, his testimony should be received with caution by the jury.°° 
 It is but another illustration of the general principle, that it rests 
 with the jury to determine the degree of credit to be given to in- 
 sane persons, when th^ are permitted to testify. °° The same is 
 true as to intoxicated witnesses °^ and as to those who have been 
 convicted of crime.'^^ So the jury are the sole judge as to how 
 far the want of chastity of a woman would impair the credibility 
 of her testimony.*' 
 
 § 902 (904). Same, continued. — ^In passing upon testimony, the 
 jury may properly take into consideration the presumption that 
 an unimpeached witness testifies truthfully, and in the ease of ap- 
 
 98 Ala. 1; Chambers v. People, 105 111. 489; State v. Moelchen, 53 la. 310; 
 ■ State v. Slingerland, 19 Nev. 135; Com. v. Orr, 138 Pa. St. 276; United 
 States V. The Coquitlam, 57 Fed. 706; State v. Fiske, 63 Conn. 388, 
 where the court Instructed the jury to consider various matters of 
 credibility and "above all" that the witness is the accused; Spies v. Peo- 
 ple, 122 111. 1; Davis v. State, 31 Neb. 240; State v. IWcGuire, 113 Mo. 670; 
 Siebert v. People, 143 111. 571; Com. v. Wright, 107 Mass. 403, where it 
 was held no error to refuse to instruct the jury that the presumption was 
 in favor of the veracity of testimony of the accused and that the jury must 
 consider his testimony with all the circumstances. Further as to accom- 
 plices, see §§ 769 et seg. supra. 
 
 5« Kronek v. People, 134 111. 139, 26 Am. St. Rep. 652. Nor Is the court 
 bound to instruct the jury that the testimony of spotters is to be received 
 with caution and distrust. State v. Hoxsie, 15 R. I. 1, 2 Am. St. Rep. 838. 
 As to the testimony of spies. Town of St Charles v. O'Mailey, 18 111. 407. 
 
 67 Estate of Gangwere, 14 Pa. St. 417, 53 Am. Dec. 554. 
 
 Bs See §§ 828, supra. 
 
 60 Highberger v. Stiffler, 21 IVId. 338, 83 Am. Dec. 593. 
 
 «oHolcomb V. Holcomb, 28 Conn. 177; State v. Kelly, 57 N. H. 549; Wor- 
 hington v. Mercer, 96 Ala. 310; 1 Whart. Ev. (3d Ed.) § 403. 
 
 ei State v. Castello, 62 la. 404. 
 
 •2 See §§ 716 et seq. supra. 
 
 es Jones v. State, 13 Tex. 168, 62 Am. Dec. 550, 
 
1162 THE LAW OF EVIDENCE. § 902 
 
 parent conflict, the evidence should be closely scrutinized, so that, 
 if possible, differences in the testimony may be harmonized;®* 
 and in whatever form a conflict in testimony arises, it belongs to 
 the jury to determine what testimony is deserving of credit. ^^ 
 So the jury are to judge as to whether a witness has been im- 
 peached, after considering all the evidence, including conflicting 
 statements made by him and the testimony as to his reputation for 
 veracity; and, although impeaching testimony has been received, 
 it is still competent for the jury to determine to what extent they 
 will believe or disbelieve the evidence of the witness who is thus 
 attacked."" So the jury may take into consideration the memory, 
 the motives, the intelligence and the appearance of the witness 
 on the stand, his means of information, his evident bias or his 
 candor and fairness, as well as the consistency of his testimony and 
 the interest or want of interest in the result."' In all these mat- 
 ters, the jury may be instructed to this effect."' But in a crim- 
 inal case, it was held error to instruct the jury that, in deter- 
 mining the credibility of defendant's testimony, they had a right 
 to take into consideration his demeanor and conduct, not only on 
 the witness stand, but also such demeanor and conduct during the 
 trial."" Although jurors are the judges of the credibility of wit- 
 nesses, they should judge of this fact, as of any other in the case, 
 from evidence. They have not the right arbitrarily and capri- 
 ciously to wholly reject the testimony of witnesses in no way ini- 
 
 64 Woodcock V. Bennet, 1 Cow. 711, 13 Am. Dec. 568. 
 
 65 Swan v. People, 98 111. 610; Springfield v. State, 96 Ala. 81, 38 Am. St. 
 Rep. 85; Dunn v. People, 29 N. Y. 523, 86 Am. Deo. 319; Second Nat. Bank 
 V. Donald, 56 Minn. 491; Nolan v. Heard, 87 Ga. 293; Blwood v. Western 
 Union Tel. Co., 45 N. Y. 549, 6 Am. Rep. 140; Kavanagh v. Wilson, 70 N. Y. 
 177; Koehler v. Adler, 78 N. Y. 287. 
 
 68Hodgkins v. State, 89 Ga. 761; State v. Miller, 53 la. 209; Brown v. 
 State, 18 Ohio St. 496. 
 
 6v United States v. Ybanez, 53 Fed. 536; Corgan v. Frew, 39 111. 31, 89 
 Am. Dec. 286; Hartford L. Ins. Co. v. Gray, 80 I11.n28; Blair v. State, 69 
 Ark. 558, 64 S. W. 948; Kirchner v. Collins, 152 Mo. 394, 53 S. W. 1081. See 
 also, Newton v. Pope, 1 Cow. 110, where it is held that the jury has not 
 the right to disregard the testimony of a witness, upon the sole ground 
 of being satisfied that he is biased. In Wiedemann v. Ryan, 34 111. App. 
 568, it was held an error to instruct the jury to take into consideration the 
 business of a witness. 
 
 68 State V. Keys, 5 Kan. 674; Central Ry. & B. Co. v. Attaway, 90 Ga. 
 656; Com. v. Orr, 138 Pa. St. 276. 
 
 «B Purdy v. People, 140 111. 46. 
 
§ 903 ATTENDANCE AND EXAMINATION OP WITNESSES. 1163 
 
 peaehed or 'discredited.''" Henee they may, be properly 
 instructed that, where testimony is uncontradicted, it should be 
 accepted, unless it is in some way discredited.''^ But obviously 
 the testimony of a witness may be contradicted or discredited by 
 circumstances as well as by the statements of other witnesses.''^ 
 And in arriving at their conclusion, they may of course scrutinize 
 the testimony of any witness, and they have the right to give 
 full consideration to the bias, the relationship, the character and 
 the interest of the witness or to the fact that he is a party, or 
 any other fact which may affect his credit;'" and even where 
 there is no direct evidence contradicting a witness, a jury is not 
 bound to accept his testimony as true, if it contains improbabilities 
 ' or if there are reasonable grounds for concluding that it is false.''* 
 § 903 (905). Same, continued. — Growing out of the old rule of 
 law that one indicted and convicted of wilful perjury was not a 
 competent witness in any case is the well known legal maxim, 
 falsus in uno, falsus in omnibus, which, when applied to the law 
 of evidence, means that a witness who has been found to swear 
 falsely as to one matter is not worthy of belief in other matters. 
 The reason for this rule, according to Mr. Starkie, is that, "as the 
 credit due to a witness is founded in the first instance on general 
 experience of human veracity, it follows that a witness who gives 
 false testimony as to one particular cannot be credited as to any. 
 * * * The presumption that the witness will declare the truth ceases 
 as soon as it manifestly appears that he is capable of perjury. 
 Faith in a witness' reputation cannot be partial or fractional."'^ 
 On the same general theory. Judge Story declared the rule as 
 follows: "Where a party speaks to a fact in respect to which 
 
 TO Robertson V. Dodge, 28 111. 161, 81 Am. Dec. 267 and note; Edler v. 
 Uehtmann, 10 111. App. 488; Lomer v. Meeker, 25 N. Y. 361. See also. Sec- 
 ond Nat. Bank of Winona v. Donald, 56 Minn. 491. 
 
 TiBngmann v. Estate of Immel, 59 Wis. 249. 
 
 TsKoehler v. Adler, 78 N. Y. 287; Watson v. Watson, 58 Mich. 507; Elwood 
 V. Western Union Tel. Co., 45 N. Y. 549, 6 Am. Rep. 140; Kavanagh v. Wil- 
 son, 70 N. Y. 177. 
 
 73 Kansas Pac. Ry. Co. v. Little, 19 Kan. 267. See also, the cases already 
 cited, many of which sustain this proposition. 
 
 7*Tracey v. Phelps, 22 Fed. 634; Anderson v. Liljengren, 50 Minn. 3; Gal- 
 veston, H. & S. A. Ry. Co. v. Murray (Tex.), 99 S. W. 144. The court may 
 In trial without jury reject such testimony. Goslin v. Dryfoos (Wash.), 
 88 Pac. 634; Keene v. Behan, 40 Wash. 505, 82 Pac. 884; Zimmerman v. 
 Bannon, 101 Wis. 407, 77 N. W. 735. See next section. 
 
 70 Stark. Ev. 873, 
 
1164 THE LAW OF EVIDENCE. § 903 
 
 ha cannot be presumed liable to mistake, as in relation to the 
 country of his birth, or his being in a vessel on a particular 
 voyage, or living in a particular place, if the fact turn out other- 
 wise, it is extremely difficult to exempt him from the charge of 
 deliberate falsehood; and courts of justice, under such circum- 
 stances, are bound upon principles of law and morality and jus- 
 tice to apply the maxim falsus. in uno, falsus in omnibus. What 
 ground of judicial belief can there be left when the party has 
 shown such gross insensibility to the difference between right and 
 wrong; between truth and falsehood?" '* There are, however, 
 several limitations to the general rule. First, the testimony, con- 
 cerning which the witness has sworn falsely, must relate to a ma- 
 terial point in issue/'' Second, such testimony must have been 
 given by the witness intentionally, and he must have known it to 
 be false.''^ Although there is general agreement in the view that 
 testimony must be knowingly false before the rule applies there 
 has been considerable difference in the mode of stating the rule.'" 
 Erroneous statements, made in good faith through lack of memory 
 
 76 The Santissima Trinidad, 7 Wheat. 339. 
 
 77 Pierce v. State, 53 Ga. 36.5; Hall v. Renfro, 3 Met. (Ky.) 52; Moresi 
 V. Swift, 15 Nev. 216; People v. I?Iyler, 121 Cal. 160, 53 Pac. 553; Holdrege 
 V. Watsan (Neb.), 96 N. W. 67; Bennett v. Susser, 191 Mass. 923, 77 N. E. 
 884; State v. Carter, 15 Wash. 121, 45 Pac. 745; Schmitt v. Mil. St Ry. Co., 
 89 Wis. 195, .61 N. W. 834. Contra, Huber v. Teuber, 3 McArth. (D. C.) 484; 
 The Santissima Trinidad, 7 Wheat. 339; People v. ReghettI, 66 Cal. 184- 
 
 78Childs V. State, 76 Ala. 93; Skipper v. State, 59 Ga. 65; Gulliher v. 
 People, 82 111. 145; Goeing v. Outhouse, 95 111. 346; Callohan v. Shaw, 24 
 la. 441; Chicago & S. L. R. Co. v. Kline, 220 111. 334, 77 N. E. 229; Noyes 
 V. Tootle, 2 Ind. Terr. 144, 48 S. W. 1031; Bell v. State, (Miss.), 43 So. 84; 
 Pumorlo V. City of Merrill, 125 Wis. 102, 103 N. W. 464. Gehle v. Mil. 
 Produce Co., 116 Wis. 263, 93 N. W. 26; Vicksburg Ry. Co. v. Herrlck, 62 
 Miss. 28; Follette v. Territory (Ariz.), 33 Pac. 869. 
 
 79 In many decisions is "knowingly and wilfully," Perkins v. Knisely, 
 (111.), 68 N. B. 486; Noyes v. Tootle, 2 Ind. Terr. 144, 48 S. W. 1031; Buffalo 
 Co. y. Van Sickle, 16 Neb. 363, 20 N. W. 261; Pacific Gold Co. v. Skillicorn, 
 8 N. M. 8, 41 Pac. 533; State v. Campbell, 7 N. D. 58, 72 N. W. 935; Godair 
 V. Ham. Nat. Bank, 225 111. 572, 80 N. E. 407; Richardson v. Babcock, 119 
 Wis. 141; in others "wilfully," Davis v. State, 51 Neb. 301, 7fl N. W. 984; 
 Hurlburt v. Lefer, 12 S. D. 321, 81 N. W. 631; in others "wilfully and cor- 
 ruptly," Ward V. Ward, 25 Colo. 33, 52 Pac. 1105; Last Chance M. & M. Co. 
 V. Ames, 23 Colo. 167, 47 Pac. 382; in others, "knowingly and intentionally," 
 Schultz V. Terr., 5 Ariz. 239, 52 Pac. 352; Swan v. People, 98 111. 610; State 
 v. Wells,, 46 la. 662. 
 
§ 903 ATTENDANCE AND EXAMINATION OP WITNESSES. 1165 
 
 or inadvertence, will not discredit the witness.'" Third, since 
 credibility is a question for the jury, it is error for the judge in his 
 instruction to the jury, to single out a particular witness and to 
 direct such cautionary instructions against his testimony, as such 
 a course would tend to convey to the jury the impression that 
 that particular witness is disbelieved by the judge.'^ Fourth, such 
 testimony as is corroborated hy other credible evidence or by facts 
 and circumstances which may be fairly inferred from the same 
 should be given proper weight by the jury.*^ Fifth, the instruc- 
 tion should not be so framed as to direct or require the jury to 
 disregard the testimony of such witness entirely; but the role 
 should be applied by the jury according" to their own judgment 
 for the ascertainment of truth.*^ On this last point there has been 
 some difference of opinion ; and it has sometimes been urged that, 
 when a witness has wilfully and knowingly perjured himself as to 
 any material point, the jury are bound not to give weight to his 
 testimony, unless corroborated by other evidence; and it has even 
 been held that such testimony should not be submitted to the 
 jury.'* But some of these decisions are based on authorities from 
 the civil law and on cases in courtsi of equity or admiralty, and 
 are not applicable in a procedure where the jury have the exclu- 
 sive right to weigh the testimony; and though the presumption 
 
 80 Winter v. Central Iowa Ry. Co., 80 la.' 443; Barney v. Dudley, 40 Kan. 
 247; Plyer v. German American Ins. Co., 121 N. Y. 689; People v. Strong, 
 30 Cal. 151; People v. Soto, 59 Cal. 369; Brennan v. People, 15 111. 516; 
 Giltner v. Gorham, 4 McLean (U. S.) 424; State v. Elkins, 63 Mo. 159; 
 Cahn V. Ladd, 94 "Wis. 134, 68 N. W. 652. 
 
 81 State V. Stout, 31 Mo. 406; State v. Gushing, 29 Mo. 215. 
 82Loehr v. People, 132 111. 504; Hillman v. Schwenk, 68 Mich. 293; Allen 
 
 V. Murray, 87 Wis. 41; Blotcky v. Caplan (la.), 59 N. W. Rep. 204; Prior 
 V. Terr. (Ariz.), 89 Pae. 412; Hart v. Godkin, 122 Wis. 646, 100 N. W. 1057; 
 Richardson v. Babcock, 119 Wis. 141, 96 N. W. 554; Miller v. State, 106 
 Wis. 156, 81 N. W. 1020. Contra, Robert Burgess & Son v. Alcorn, (Kan.), 
 90 Pac. 239. For form of instruction see, Patrode v. Westenhaven, 114 
 Wis. 460, 90 N. W. 467, per Marshall J. 
 
 83 State r. Smith, 8 Jones (N. C), 132; State v. Brantly, 63 N. C. 518; 
 Pierce v. Selleck, 18 Conn. 321; Lewis v. Hodgdon, 17 Me. 267; Finly v. 
 Hunt, 56 Miss. 221; Hall v. Renfro, 3 Met. (Ky.) 32; Senter v. Carr, 15 
 N. H. 351. 
 
 84 Stoffer V. State, 15 Ohio St. 47; Hargraves v. Miller's Adm., 16 Ohio 
 344; State v. Jim, 1 Dev. (N. C.) 509; Dunlop v. Patterson, 5 Cow. 243; 
 Huber v. Teuber, 3 McArth. (D. C.) 484; People v. Righetti, 66 Oal. 184. 
 
1166 THE LAW OF EVIDENCE. § 903 
 
 that a witness has testified to the truth may be removed, yet it still 
 belongs to the jury to determine this fact and to weigh such 
 evidence,*" Hence, according to the better reasoning and the 
 weight of authority, the maxim, falsus in uno, falsus in omnibus, 
 is 3 rule of permission and not a mandatory one.'" It is in the 
 discretion of the jury to wholly reject the testimony of a witness 
 whom they believe to have testified falsely in some particulars, 
 op^to accept some of his statements and reject others.*' 
 
 85 Mead v. McGraw, 19 Ohio St. 55, reversing Stoffer v. State, 15 Ohio St. 
 47; Mercer v. Wright, 3 Wis. 645; Lemmon v. Moore, 94 Ind. 40. 
 
 86 People V. Wilder, 134 Cal. 182, 66 Pac. 228; Root v. Railway Co., 183 
 Mass. 418, 67 N. E. 365; Addis v. Rushmore (N. J.), 65 Atl. 1036. 
 
 87Frurson v. Galbraith, 12 Lea (Tenn.) 129; Otmer v. People, 76 111. 
 149!; Swain v. People, 98 111. 612; State v. Williams, 2 Jones (N. C), 2i57; 
 Knowes v. People, 15 Mich. 411; Lewis v. Hodgdon, 17 Me. 267; State v. 
 Baker, 89' la. 188; Churoh v. Chicago & A. Ry. Co., 119 Mo. 203; Cole v. 
 Lake Shore & M. S. Ry. Co., 95 Mich. 77; Gantling v. State, 40 Fla. 237. 23 
 So. 857. 
 
INDEX. 
 
 BEFEBENCES ABE TO SECTIONS. 
 
 A. 
 
 ABANDONMENT, of contract, shown by parol, 442. 
 competency of wife in actions for, 746. 
 
 ABATEMENT, best evidence of plea in, 200 n. 11 
 
 ABBREVIATIONS, judicial notice of, 131. 
 
 ABORTION, relevancy of similar acts, 144. 
 
 confessions of deceased as to, received, 324 n. 78. 
 
 dying declarations as to, 332. 
 
 instruments of, shown to jury, 400 n. 35. 
 
 competency of wife in action against husband for, 734 n. 59. 
 
 communications by physicians concerning, not privileged, 760: 
 
 ABROAD, mode of taking testimony of witness who is, 700. 
 
 ABSENCE, presumption of death from. See Presumptions, 61-63. 
 of attesting witnesses, 528. 
 
 ABSENT WITNESS, testimony of. See Depositions. 
 
 ABSOLUTE PRESUMPTIONS, defined, 11. 
 illustrations of, 11. 
 
 ABSTRACTOR OP TITLES, rule as to confidential communications be- 
 tween attorney and client, does no apply to, 751. 
 
 ACCEPTANCE, of bill, effect of. See Negotiable Papeb. 
 presumptions as to, 49 n. 54. 
 of grants to corporations, when presumed, 56. 
 estoppel by, 286. 
 in blank, 286. 
 
 of account stated, effect of, 57. 
 of note, effect on debt, 73. 
 of new lease, effect of, 416. 
 of goods under statute of frauds, 428. 
 how proved under statute of frauds, 428. 
 parol evidence of, 428. 
 
1168 INDEX. 
 
 REFERENCES ARE TO SECTIONS. 
 
 ACCESS, of husband and wife, when presumed. See Peestjmptions, 93-97. 
 testimony to disprove, 93-97. 
 effect of non-access, judicial notice of, 129. 
 
 ACCIDENT, presumption of negligence In, 15, 183. 
 
 proof of similar acts, when relevant to repel inference of, 145, 147. 
 
 similar accidents, relevancy of, 163, 164. 
 
 confidential communications between husband and wife as to, 735 n. 71. 
 
 ACCOMPLICES, testifying as, as waiver of privilege of communications to 
 attorney, 756. 
 defined, 768. 
 
 competency at common law, 768. 
 credibility of, 769, 901. 
 
 conviction on unsupported evidence of, 769. 
 instructions to jury, 769. 
 
 discretion of court as to, 769. 
 corroboration of, 770. 
 
 what amounts to, 770. 
 
 ACCORD AND SATISFACTION, burden of proof as to, 179 n. 17. 
 
 ACCOUNT BOOKS, See Books of Account. 
 
 ACCOUNT STATED, presumption of correctness, 57. 
 effect as an admission, 287. 
 
 ACCOUNTS, settlement of, presumed from making of note, 49 n. 54 
 payment of, when presumed from lapse of time, 65 n. 52. 
 payment of, parol proof of, 203 n. 18. 
 summarized, proof of, 206. 
 
 confidential communications between husband and wife as to keeping 
 of, 735 n. 71. 
 
 ACCUSED, competency of. See Competency, Parttes. 
 presumed Innocent. See Peesumptions, 12-14. 
 confessions of, 235. 
 Indentification of, 400. 
 cross-examination of, 836. 
 privilege of, self-crimination. See Witnesses, 884-892. 
 
 how waived, 890. 
 
 failure to testify, effect of, 891. 
 credibility of, 901. 
 
 ACKNOWLEDGMENT. See Admissions. 
 of deeds, regularity of, presumed, 47. 
 effect of, 490, 520. 
 
 compliance with statute necessary, 537 
 who may take, 490, 520. 
 
 when impeached or explained by parol, 490, 520. 
 when defective or irregular, 490, 520, 537. 
 
INDEX. 1169 
 
 BEFERENCES ABE TO SEOTIONB. 
 
 ACKNOWLEDGMENT (continued) — 
 over telephone, wlien set aside, 211. 
 of debt by partners, 248. 
 
 as affected by statutes of limitation, 249. 
 after dissolution, 249, 250. 
 of relationship. See Pedigree. 
 as proof of execution of documents, 537. 
 
 to comply with the statute, 537. 
 errors in, effect of, 537. 
 
 ACQUAINTANCE OP WITNESS with party at telephone, 211. 
 with handwriting. See Hajjdwbiting, 546-549. 
 with subject testified to, as expert. See Expert Testimony. 
 
 ACQUIESCENCE, as an estoppel. See Estoppel, 275-280. 
 as an admission, See Admissions. 
 sale of property, effect as an estoppel, 275. 
 
 other illustrations, 275 n. 79. 
 In boundary lines, effect of, 278. 
 in building improvements, 278. 
 
 ACTING IN OFFICE, appointment presumed from, 43, 44, 46, 205. 
 
 ACTIONS, no stated time for bringing at common law, 65. 
 
 ACTS. See Res Gestae. 
 
 men presumed to know consequences of their, 27, 28. 
 beneficial, when presumed assented to, 57. 
 between strangers or party and strangers, relevaicy, 140. 
 of testator showing weakness, parol proof of, 482 n. 65. 
 
 ACTS OF CONGRESS, judicial notice of, 112. 
 
 ACT OF GOD, as a defunse, must be proved, 182. 
 
 ACTS OP LEGISLATURE, when presumed to support title, 76. 
 
 ACTS OP OWNERSHIP, presumption from, 74, 79, 80. 
 
 ACTS OP PARLIAMENT, when presumed to support title, 76. 
 
 ACTS OP STATE. See Documents, Public Recoeds 
 proof of, 507. 
 
 by public gazettes, 582. 
 
 ACTUAL WEALTH, relevancy of, 162. 
 
 ADJUDICATION. See Judqments. 
 
 ADJOURNMENTS in taking depositions, 696. 
 
 of municipal bodies, when presumed regularly taken, 46 n. 48. 
 privilege from arrest extends to, when, 805. 
 
 74 
 
1170 INDEX. 
 
 EEFEEENCES AEE TO SECTIONS. 
 
 ADMINISTRATION, LETTERS OF, best evidence of; 200 n. 11. 
 grant of, judgment in rem, 606, 609. 
 effect of, 609. 
 
 how far evidence of death., 609. 
 jurisdiction of court essential, 609. 
 
 ADMINISTRATOR. See Executor and Administeatob. 
 
 ADMIRALTY, decrees in, judgments in rem, 606. 
 
 ADMISSIBILITY OF EVIDENCE for determination of judge, 174. See Rel- 
 evancy. 
 distinguished from its sufficiency, 7. 
 
 ADMISSIBILITY, term of, not synonymous with relevant, 136. 
 
 ADMISSIONS to rebut presumption of payment, 67 n. 69. 
 as to value of land, relevancy of, 169. 
 at opening of trial, does not change rule as to right to begin and reply, 
 
 197 n. 64. 
 concerning writings, shown by parol in England. 207. 
 conflict in America as to the rule, 208. 
 to prove loss of writings, 216. 
 defined, 235. 
 competent evidence for adverse party, 236. 
 
 why competent, 236. 
 declarations by party, not admissible in his own behalf, 235. 
 statements to be self-deserving, 236. 
 by real and nominal parties, 237. 
 receipts as, when, 491. 
 proof of, by attesting witness, 235. 
 judgment as, when, 589. 
 iy those not parties, 'but identified in interest. 
 of assignor, competent against assignee, 237 
 
 qualifications of rule, 237. 
 interest at time of admission must be shown, 238, 241, 245, 249, 
 252, 266. 
 of cestui que trust, surety, etc., 238. 
 
 of those in privity of interest, 239, 253. 
 
 grantor and grantee, illustrations, 239, 240, 241. 
 may constitute estoppel, 240. 
 must be made while interest exists, 241, 245. 
 
 or in presence of grantee, 241. 
 not to vary terms of writing, 241.* 
 ancestor and heir, 242. 
 devisor and devisee, 242. 
 Intestate and administrator, 242, 
 testator and executor, 242. 
 
INDEX. 1171 
 
 BEFXBDNCES ABE TO SECnOITS. 
 
 ADMISSIONS (continued) — 
 
 of deceased person, 242. 
 landlord and tenant, 243. 
 
 , by former owners of personal property, 244, 246, 247. 
 when admissible against present owner, 244. 
 how proved, 244. 
 
 must be made while interest exists, 245. 
 by former owner of real property, 245. 
 
 effect of remaining in possession, 245. 
 of collusion, 245. 
 by former owner of choses In action, 247 
 Vy one of several persons having joint interest. See Declabations, 248- 
 253. 
 by partners. See Partners, 248-251. 
 by joint contractors, co-obligors, 252. 
 by joint makers, grantors, purchasers, 253. 
 mere community of interest insufficient, 253. 
 of executors and administrators, 253. 
 
 when part of res gestae, 253. 
 Of wrong-doers, 254. 
 
 when part of res gestae, 254. 
 in conspiracy, 254. 
 by agents. See Agents, 255, 256. 
 by attorneys. See Attorneys, 257-259. 
 by husband and wife. See Husband and Wife, 260-262, 740. 
 by persons referred to, 263. 
 
 Buch persons cannot make general admissions, 263. 
 must be confined strictly to subject matter referred to, 263. 
 effect of consenting to pay, if an affidavit is made, 264. 
 by interpreters, binding upon whom, 265. 
 
 where interpreter did not give true translation, 265. 
 by those acting in representative capacity, when made, 266. 
 iy puliKc corporations, how made, 267, 514. 
 by officers in scope of authority, 267. 
 
 otherwise, not admitted, 267. 
 by inhabitants of public corporations, 267. 
 ty private corporations, how made, 268, 517, 518. 
 by officers within scope of authority, 268. 
 otherwise, not admitted, 268. 
 when part of res gestae, 268. 
 in writing, 269-274. 
 
 weight entitled to, 269. 
 letters, 269. 
 
 as part of res gestae, 269. 
 other writings, 269, 270, 
 maps, 270 n. 39, 307. 
 
1172 INDEX. 
 
 REPEBENCES ABE TO SECTIONS. 
 
 ADMISSIONS (continued) — 
 
 records and books of corporations, 270, 516-518. 
 as against stockholders, 517, 518. 
 
 partnership books, 271. 
 
 whole context to be received, 293, 294. 
 In pleadings. See Pleadings, 272-274. 
 estoppel by. See Estoppel, 275-286. 
 implied from conduct, 287, 288. 
 illustrations, 287, 287 n. 66. 
 landlord and tenant, 287. 
 
 where an account is rendered and no objection made, 287. 
 where one assumes to act as an officer, 287. 
 where one omits claims before arbitrator, 287. 
 acts showing consciousness of guilt, 287. 
 
 flight, attempt to escape, concealment, 287. 
 
 resistance to arrest, failure to appear at trial, 287. 
 
 living under an assumed name, 287. 
 
 demeanor at trial, 287. 
 
 suborning, fabricating or suppressing testimony, 287. 
 
 false or deceptive explanation, 287. 
 
 refusal to submit to superstitious test, 287. 
 acts snowing consciousness of innocence, 287. 
 when negligence implied from subsequent repairs, 288. 
 when implied from silence. See Silence, 289. 
 
 not at judicial proceedings, 290. 
 offers of compromise, 291. 
 
 payment of money into court admits what, 292, 294. 
 whole declaration to be received, 293. 
 
 right of adverse party, when part only Is given, 293. 
 
 statements not necessarily of equal credit, 293. 
 weight of, 295, 296. 
 
 verbail admissions carefully scrutinized, 295. 
 
 weak and unsatisfactory form of evidence, 295. 
 
 weight depends upon circumstances, 295. 
 
 how proved, substance only required, 295. 
 open to explanation or rebuttal, when, 296. 
 
 statements part of res gestae, 296. 
 
 made while in duress, 296. 
 under oath, 296. 
 of adverse party as to transactions with deceased persons, 781. 
 
 ADOPTION, best evidence of, 200 n. 11. 
 
 ADULTERY, presumption of marriage In actions for damages for, 14 n. 28. 
 amount of proof to establish in civil action for, 16 n. 49. 
 presumption as to continuance of, 58. 
 presumption of marriage in prosecution for, 88 n. 85. 
 
mDETc 1173 
 
 BEFEBENCES ABB TO SECTIONS, 
 
 ADULTERY (continued) — 
 
 acts showing consciousness of Innocence, 287. 
 
 living together openly in, 89. 
 
 proof of, on Issue of legitimacy. See Legitimacy, 93-96. 
 
 evidence of good character in, 1S5 n. 26. 
 
 relevancy of other acts of, 144, 835, 837. 
 
 , when improper, 833 n. 30. 
 amount of proof of, in an action for divorce, 195 n. 55. 
 not bound to answer as to, 884 ^. 99. 
 
 ADVERTISEMENTS, as admissions, 270 n. 39. 
 in newspapers, 582. 
 
 ADVERSE PARTY, evidence made relevant by, 171 
 
 proof by attesting witnesses not necessary when, claims under docu- 
 ment, 530. 
 
 deposition of. In federal court, 649. 
 
 use of deposition taken by, 684. 
 
 depositions not competent because taken by, 685. 
 
 examined on bill of discovery. See Discovbet, 702-711. 
 under statutes, 704. 
 
 competency of, as to transactions with a deceased or incompetent. See 
 Competbnot of Witnesses, 772-796. 
 
 Impeachment of, 855. 
 
 ADVERSE POSSESSION. See Possesbiow. 
 presumption of ownership from, 74, 75. 
 
 at grant from, 75. 
 illustrations of presumptions of title from. See Peestjmptioks, 76-78. 
 nature of the possession, 79, 80. 
 burden of proof on one asserting, 79. 
 
 ADVERSE WITNESSES. See Witnesses, 850. 
 
 ADVICE See CoNFiDBSfTiAi, Oommtjnioations. 
 
 ADVOCATE See Attobnby. 
 
 AFFAIRS OF STATE, privileged oommunicatlons, 762. 
 
 AFFECTION, declarations of testator to show, 482 n. 66. 
 
 AFFIDAVIT, iwomising to pay in case one is made, 264. 
 as admission, 274. 
 when hearsay, 299. 
 
 rule as to confidential communications to attorney. Includes, 749 n. 62. 
 Impeachment by contradictory statements in, 847. 
 used to refresh memory, 875. 
 
 AFFIRMATION instead of oath, 714, 715. 
 
1174 INDEX. 
 
 EEFEEENCEB AEE TO SECTIONS. 
 
 AFFIRMATIVE, burden of proof as to. See Burden of Proof, 176, 179, 180. 
 right to begin and reply, 197, 198. 
 questions leading that may be answered by an, 816. 
 
 AFFIRMATIVE DEFENSE, burden of proof as to, 178, 179. 
 effect on right to begin and reply, 197, 198. 
 
 AFFIRMATIVE TESTIMONY, stronger than negative, 898. 
 
 AGE. See Children. Pedigree. 
 
 of tree from concentric layers, not judicially noticed, 129. 
 
 when proved by hearsay, 300. 
 
 advanced as ground for admissibility of testimony at former trial, 341. 
 
 inspection as to, 401. 
 
 want of, ground of incompetency, 720. 
 
 as affecting weight of testimony, 722. 
 
 AGED PERSONS, leading questions in examination of, 818. 
 
 AGENCY, presumption of continuance of, 58 n. 2. 
 presumption of from marriage relation, 90. 
 of one partner for other, 248. 
 
 not after dissolution, 249. 
 cannot be proved by declarations of agent, 255. 
 parol proof of relation to principal, 458. 
 
 AGE/NTS, parol proof of appointment of, 203 n. 12. 
 telephone operators as, for both parties, 211. 
 declarations of, not admissible against principal, 255. 
 unless part of res gestae, 255. 
 
 the agency to be first established, 255. 
 contemporaneous with acts to be proved, 255. 
 when original evidence, properly admissible, 255. 
 principal bound by declarations of, when, 256. 
 powers of public agents, how limited, 256. 
 husband and wife as agents of each other. See Confidential Commxtni- 
 
 CATIONS, Husband and Wifb, Attorneys, 259, 260, 740, 741. 
 when interpreter is, of party employing him, 265. 
 when cannot question title of principal, 285. 
 
 deceased, admissibility of entries by, in due course of business, 319 n. 57. 
 declarations of deceased, when admissible, 327. 
 must be some proof of agency, 327. 
 need not be contemporaneous with act, 327. 
 authority, when presumed, 327. 
 need not have actual knowledge of transaction, 328. 
 declarations of, as part of res gestae, 351. 
 when competent, 356. 
 must be during continuance of agency, 356. 
 agency must first be proved, 356. 
 how proved, 356. 
 
INDEX. ' 1175 
 
 BEFERENCES AKB TO SECTIONS. 
 
 AGENTS (continued) — 
 
 of agents of corporations, when admissible, illustrations, 357. 
 must accompany authorized act of agent, 358. 
 rules governing admission of such testimony, 358. 
 trust arising from fiduciary relations, 425. 
 judgment against, does not bind principal, when, 587. 
 husband and wife as agent of other spouse, 740 
 relation, how proved, 741. 
 presumption as to, 741. 
 when rule as to confidential communications between attorney and 
 
 client applies to, 751. 
 competency of, as to transactions with a deceased or incompetent, 788. 
 agency must be proved, 788. 
 When personally interested, 788. 
 death of agent, 788. 
 agent of corporation, 789. 
 not excluded from court room, 807. 
 
 AGGRAVATION OF DAMAGES. See Relevancy. 
 
 character as an element in. See Character, 148-158. 
 
 AGREEMENT. See Admissions, Alteration, Ambiguity. Considebatioh, 
 Contracts, Parol Evidence to Explain Writings. 
 to pay for services, when presumed, 57. 
 to extend time of payment as rebutting presumption of payment, 69 
 
 n. 69. 
 in writing, best evidence of, when lost, 212 n. 70 
 
 AGRICULTURE, judicial notice of course of, 129. 
 expert testimony as to, when competent, 382. 
 books on, admissibility of, 578 n. 78. 
 
 ALCOHOL, judicial notice of intoxicating nature of, 128. 
 
 ALLEGATIONS, proof must correspond to. See Substance op the Issue. 
 
 ALIBI, burden of proof as to, 177. 
 
 in corroboration of accomplices, 770. 
 
 ALDERMAN, when declarations of not binding on municipality, 267 n. 21. 
 
 ALIMONY, judgment in divorce, when conclusive as to, 608. 
 
 ALMANACS, judicial notice of, 132. 
 
 entries in, evidence of pedigree, 315. 
 
 to refresh memory of court and jury, 578. 
 
 admissibility of, as scientific books, 578. 
 
 ALTERATION, of instruments, parol proof of, 495. 
 effect of, 557-566. 
 of documentary .eyideace,, presumption from, 18. 
 
1176 INDEX. 
 
 BEFBBENCES ABB TO SECTIONS. 
 
 ALTERATION (continued) — 
 
 burden of proof as to, 179 a. 17. 
 wliat constitutes, 557. 
 
 former strict rule as to, 557. 
 modern rule, 557. 
 distinguished from spoliation, 557. 
 identity of contract changed by, 558. 
 
 though to disadvantage of wrong-doer, 558, 560. 
 renders instrument void, 558, 559. 
 immaterial, what are, 559. 
 illustrations of, 559 n. 34. 
 effect of, 559. 
 
 when fraudulent, 559. 
 conflict as to, 559. 
 teat as to materiality of, 560. 
 question for court, 560. 
 material, what are, 560. 
 
 illustrations of, 560 n. 41. 
 consent to, implied, 561. 
 
 from blanks in deeds, notes, bonds, powers of attorney, writs, 561. 
 blanks, unauthorized filing of, 562. 
 effect of, 562. 
 no implied consent, 562. 
 must conform to agreement, 562. 
 In deeds after delivery, 562. 
 presumption as to time of making, 563. 
 diversity of opinion, 563. 
 English rule as to time of change, 563. 
 In deeds, before execution, 563, 564 
 In wills, after execution, 563. 
 In other writings not under seal, 563. 
 American rule, 563. 
 
 conflict as to, 563, 564. 
 presumption of Innocence, 563. 
 iurden of proof, as to, 564. 
 
 effect of suspicious circumstances, 564. 
 explained In attestation clause, 563. 
 fact of, question for jury, 565. 
 fraudulent intent as to, 559, 566. 
 effect of, 566. 
 
 stricter rule as to negotiable paper, 566. 
 of account books, effect of, 576. 
 of a note, a "transaction," 785 n. 89. 
 
 ALTERNATIVE QUESTIONS, when leading, 816. 
 
 AMBASSADORS, judicial notice of, 109. 
 
INDEX. 1177 
 
 EEFEEENCES AEB TO SECTIONS. 
 
 AMBIGUITY. See Deeds, Moetgaqes, Wills. 
 
 when explained by parol. See Paeol Evidence to Explain Whitings, 
 
 472-499. 
 latent and patent, 472, 473. 
 patent ambiguities, not explained by parol, 473. 
 
 ■words and phrases having equivocal meaning, 473. 
 
 meaning of, how ascertained, 474. 
 In wills, parol proof to explain, 475. 
 
 parol proof to explain latent ambiguity in, 479. 
 
 declarations of testator, when admissible, 480. 
 I>arol proof to explain ambiguity In mortgages, 499. 
 In negotiable paper, 495. 
 
 AMENDMENT OP PLEADINGS, liberal statutory rule as to, 233, 234. 
 object of, 233. 
 
 may be made before or even after judgment, when, 233. 
 should not substantially change claim or defense, 233. 
 
 as from law to equity, tort to contract or vice versa, 233. 
 one amendment as a matter of course, 233. 
 leave to amend, when not to be refused, 233. 
 as to names, quantity, time, value, place, etc., 233. 
 will not cure defect, when, 234. 
 
 AMENDMENT OF PUBLIC RECORD, when allowed, 515. 
 
 AMENDMENT OF OFFICER'S RETURN on depositions, 693. 
 
 AMERICAN lilFE TABLES, judicial notice of, 129. 
 
 AMNEISTY. See Pardon. 
 
 AMOUNT, different from that stated In negotiable paper, cannot be shown 
 by parol, 494. 
 alteration in, vitiates instrument, 560 n. 41. 
 
 AMOUNT OF EVIDENCE, as affected by presumption of innocence, 16. 
 where crime is charged in civil cases, 16, 195. 
 
 ANCESTOR, admissions of, competent against heir or representative, 242. 
 as to relationship. See Pedigkee, 311-318. 
 judgment against, binding on heirs and representatives, 587.- 
 
 ANCIENT BOUNDARIES. See Boundabies. 
 
 ANCIENT DOCUMENTS, recitals in, of former documents, presumptive 
 evidence of their existence, 50. 
 admissible to support ancient possession, 308. 
 must come from the proper custody, 309. 
 test as to what is, 309. 
 mode ot proof of, 309. 
 
1178 INDEX. 
 
 BEFEKENCES ABE TO SECTIONS. 
 
 ANCIENT DOCUMENTS (continued) — 
 proof of agency as to, 327 
 presumptions as to, 531. 
 prove themselves, 531. 
 
 when free from suspicion, 531. 
 
 when come from proper custody, 531. 
 
 when accompanied by some corroborating evidence, 531. 
 
 possession of property as corroboration, 532. 
 
 corroborative evidence, liberal rule as to, 532. 
 comparison with, to prove handwriting, 554. 
 burden of proof as to alterations in, 565. 
 
 ANCIENT ENTRIES. See Entries. 
 
 ANCIENT POSSESSION, supported by ancient documents, 308. 
 
 ANIMAliS, characteristics of, when jurors may take notice of, 134 n. 95. 
 habits of, when relevant, 165. 
 opinion as to temper of, 360 n. 3. 
 physicians may testify as to diseases of, 368, 378. 
 expert testimony as to, 382. 
 
 value, age, weight, diseases, etc., 382. 
 inspection of, by jury, 399. 
 production of, in court, 399. 
 appearance of, shown by photograph, 581 n. 4. 
 
 ANIMUS. See Intention. 
 
 ANIMUS REVOCANDI, as to wills, 484. 
 
 ANNUITY TABLES, admissibility of, 578. 
 
 ANNEXING INCIDENTS by usage. See Usage, 457-467. 
 
 ANSWERS IN PLEADINGS, as admissions. See Admissions, 272-274. 
 in equity as admissions, 728. 
 of witnesses. See Witnesses, 814, 815, 871-873, 895. 
 
 ANTE LITEM MOTEM. See Lis Mota, 311. 
 
 ANTI-TRUST ACT, corporations compelled to produce books for Inspection 
 in action under, 710. 
 
 APPEAL, effect of, on judgment as evidence, 596. 
 
 APPELLATE COURT, ordinances, when judicially noticed by, 118, 
 
 APPEARANCE by attorney, presumption as to, 31 n. 11. 
 of witnesses, question of credibility, 902. 
 shown by photograph, of a person, 581 n. 4. 
 
 of a street, 581 n. 4. 
 
 of animals, 581 n. 4, 
 
INDEX. 1179 
 
 EEFEKENCES ABE TO SECTIONS. 
 
 APPOINTMENT TO OFFICE presumed from acting, 43, 44, 46, 205. 
 proTed by parol, 205. 
 
 APPROACHING DEATH, sense of, necessary to admission of dying declara- 
 tions, 332. 
 
 ARBITRATION. See Award. 
 
 ARBITRATORS privileged. See Awabd, 763. 
 parol proof of appointment of, 203 n. 18. 
 testimony taken before, when admissible on the trial, 339. 
 cannot impeach award, 763. 
 
 except for fraud, 763. 
 competent as to what facts relating to award, 763. 
 power to compel attendance of witnesses, 797. 
 witnesses before, privileged from arrest, 805. 
 
 AREA, of counties, iudioially noticed, 108 n. 18. 
 
 of subdivisions of survey, judicially noticed, 127 n. 42. 
 
 ARGXIMENT OF COUNSEL, right to open and close, 197. 
 nonsuit granted on opening, 257. 
 reading from scientific books during, 580. 
 
 ARMY REGISTERS, inadmissible to show pay of officers, 509. 
 as histories, 584 n. 39. 
 
 ARREST. See Attachment of Witnesses, Contempt. 
 resistance to, as admission of guilt, 287. 
 witnesses and parties privileged from, when, 805, 806. 
 cross-examination as to former, 838. 
 conflict as to, 838. 
 
 ARSON, relevancy of similar acts, 144. 
 
 privilege of criminating testimony as to, 884 n. 99. 
 
 ART, judicial notice as to matters of, 128. 
 
 ARTICLES, inspection of,, by jury, 399. 
 
 ARTICLES OF INCORPORATION, best evidence of, 200 n. 11. 
 
 ARTICLES OF WAR, judicial notice of, 107. 
 
 ARTISANS, as experts, 380. . 
 
 ARTISTS, as experts, 386,' 387. 
 
 ASSAULT, character not relevant in actions for, 140 n. 43, 148 n. 21, 155 n. 
 26. 
 relevancy of financial standing, 159. 
 
 of plaintiff, 161. 
 indecent, evidence in actions for, 835. 
 
1180 INDEX. 
 
 REFERENCES ABE TO SECTIONS. 
 
 ASSESSMENT, not admissible to prove ownership, 297 n. 4. 
 of damages for lands taken, 363, 388. 
 books of, as evidence, 508. 
 
 ASSESSORS, presumption of performance of official duty, (5 n. 47. 
 
 ASSIGNEE of deceased or incompetent, rights and privileges of, 776. 
 
 ASSIGNMENTS, date of, presumed correct, 51 n. 73. 
 as admissions, 270 n. 39. 
 
 parol proof that, executed for security only, 448 n. 83. 
 of mortgage, rule as to confidential communications to attorney In- 
 cludes, 749 n. 62. 
 
 ASSIGNOR, admissions of, competent against assignee, 237, 244. 
 qualifications of the rule, 237. 
 strict rules in some states, 246, 247. 
 
 ASSUMPTION OP PACTS In examination of experts. See Hypothbtioai. 
 Questions, 370, 371. 
 upon cross-examination, 843. 
 
 ASSURANCE. See Instjeance. 
 
 ATHEISTS, as witnesses, 712-714. 
 
 ATTACHMENT OF WITNESSES in case of depositions, 653. 
 for disobeying subpoena, 799. 
 suits In, effect of judgment in, 606. 
 service by publication in, 606. 
 
 ATTENDANCE OP "WITNESSES. See Witnesses, 797-808. 
 
 ATTESTED DOCUMENTS. See Attesting Witnesses. 
 
 ATTESTATION of deeds, presumption as to, 50. 
 of judicial records by clerk, 628. 
 of wills by attorney waives privilege, 755. See Wills. 
 
 ATTESTING WITNESSES need hot recollect the facts attested, 321. 
 definition and general rules, 527-528. 
 
 must be called to prove attested documents, 527. 
 rule in England, 527. 
 
 at common law, 527. 
 
 wide application of the rule, 527. 
 
 such proof may be waived, 527 n. 7. 
 
 applies to lost and destroyed instruments, etc., 527 n. 7. 
 one of several su cient, 533. 
 
INDEX. 1181 
 
 EEPEEENCBS ABE TO SECTIONS. 
 
 ATTESTING "WITNESSES (continued) 
 exceptions to general rule, 528-532. 
 
 subscribing witness not found or known, 528. 
 incompetent or absent, 528. 
 unable to remember, etc., 528. 
 diligence necessary when witness absent from state, 528, 529. 
 in case of bad faith, of adverse party, 529. 
 not necessary to take deposition, 529. 
 proof of handwriting, when suflBcient, 529. 
 
 may be proved like other writing, when, 529. 
 where witness did Actually attest, 529. 
 where adverse party claims under it, 226, 530. 
 ancient documents prove themselves, wben. See AuciEiNT Doc- 
 
 TJMENTS, 531. 
 office bonds, 532. 
 
 rule where document not directly In issue, 532. 
 best evidence after non-production of, 533. 
 conflict as to rule, 533, 534. 
 
 liberal rule where no suspicious circumstances, 534. 
 diligence in attempting to procure best evidence, 534. 
 
 after failure, what evidence competent, 535. 
 such secondary evidence not conclusive, 535. 
 party not bound by testimony of attesting witness. 535. 
 
 cannot impeach reputation for truth and veracity, 536. 
 mode of proving execution by such testimony, 536. 
 nature of such testimony, 536. 
 
 need not be present when executed, 536. 
 
 nor remember, 536. 
 may simply recognize signature, 536. 
 time of making attestation, 536. 
 
 to a will or deed. Impeachment of, 848, 856. 
 to will, proof of good character, 868. 
 memorandum to refresh memory of, 882. 
 effect of witness attempting to impeach writing, 901. 
 ATTORNEY, presumption of authority of, 31 n. 11, 44. 
 
 presumption of performance of official duty, 45 n. 47. 
 signature of, when judicially noticed, 124. 
 judicial notice of, 124. 
 admissions by, 257-259. 
 
 bind their clients by what admissions, 257 
 illustrations of, 257 n. 42a. 
 may be oral or written, 257. 
 express or implied, 257. 
 no implied authority to compromise suit, 257. 
 statements in presence of client, 257. 
 statements made informally or out of court, 258, 259. 
 while attempting to compromise, 258. 
 before employment commenced, 259. 
 after It ceased, 259. 
 statements at former trials used upon subsequent trial, 259. 
 
1182 INDEX. 
 
 BEFBEENCES ABE TO SBCTIOWS, 
 
 ATTORNEY (continued) — 
 
 bound by acts of clerks, when, 259. 
 
 deceased, entries by, in due course of business 319 n. 57. 
 
 notes of testimony of, inadmissible, 343. 
 
 used to refresh, memory, 343, 877 n. 52. 
 trust arising from fiduciary relation witb, 425. 
 may examine children to determine competency of, 721. 
 confidential communications to. See Confidential Communications, 
 746-757. 
 
 confidential communications upon examination of adverse party, 
 708. ' 
 
 may be witness for client, 754. 
 
 as to instructions for drawing will, 755. 
 
 waiver of privilege, when attests will, 755. 
 waiver of privilege, general rule, 756. 
 
 in suits with client, 754. 
 
 when witness has testified as an accomplice, 756. 
 
 when client calls attorney as witness, 756. 
 
 when no objection is raised, 756. 
 
 when client becomes witness in his own behalf, 756. 
 
 statutes on the subject, 755, 757. 
 not to be excluded from court room, 807. 
 latitude allowed as to order of proof, 812. 
 
 AUCTION, transactions at when provable by parol 203 n. 18. 
 
 AUTHENTICATED COPY. See Cbetipicates, Copies. 
 
 AUTHENTICATION by parties of their books of account, 322. 
 of foreign laws, 502, 503. 
 
 of statutes of sister states. See Laws os Sistee States, 504-506. 
 of records of municipal corporations, 515. 
 mode of, 523-525. 
 of non-judicial records, 538-544. 
 
 mode of, under federal statutes, 538-542. 
 
 applicable to what documents, 538. 
 
 records in federal departments, 539, 540. 
 
 statute must be strictly pursued, 540. 
 
 who competent to make such authentication, 540. 
 
 not evidence as to unofficial or collateral acts, 541, 543. 631. 
 certificates of, competent as to what, 542. 
 
 mere certificate not evidence, illustrations, 543. 
 exceptions, 544. 
 of handwriting, 545. 
 of books of account, 573. 
 of foreign judicial records, 624, 625. 
 
 extrinsic proof of signatures and seals, 625. 
 
 authority to certify, presumed, 625. 
 
 great seal proves itself, 625. 
 
 private seal does not, 625. 
 
INDEX. 1183 
 
 EEFBEBNOES ABE TO SECTIOUa. 
 
 A.trTHENTICATION (continued) — 
 
 of judicial records of sister states, 626-630. 
 federal statutes as to, 626. 
 
 not applicable to federal courts, 627. 
 provisions must be complied with, 628. 
 
 what sufficient compliance, 628. 
 certificate of clerk, form of, 628. 
 
 sufficiency of, 628. 
 certificate of judge, form of, 629. 
 sufficiency of, 629. 
 
 AUTHOR, as expert, as to value of services, 387. 
 newspapers, when competent against, 582. 
 
 AUTHORITY OP AGENTS to be established, 255, 356. 
 of "public agents, how limited, 256. 
 
 AVERMENT. See Aixegations. 
 
 AWARDS of arbitrators, presumed regular, 40. 
 best evidence of, 200 n. 11. 
 binding on parties, 264. 
 arbitrator cannot impeach. See Abbixbatobs, 763. 
 
 B. 
 
 BAD CHARACTEIR. See Chabaotee, REa-uTATioN-. 
 
 BAD FAITH, when presumed. See FtouoiAET Relations, 13, 17, 18. 
 facts apparently collateral when relevant to show, 146, 
 evidence to rebut, 171, 872. 
 
 BAD REPUTATION. See Reputation. 
 
 when provable under general denial, 150. 
 
 BAIL. See Recognizance, 804. 
 
 BAILEE, proof of possession in, as evidence of title, 74 n. 95. 
 how far estopped to deny title of bailor, 285. 
 declarations of, as part of res gestae, 351. 
 
 BAILIFF, misconduct of, testimony of juror as to, 766. • 
 
 BAILMENT, burden of proof In cases of, 186. 
 negligence of bailor not presumed, 186. 
 but prima facie proof sufficient, 186. 
 )arol proof to show that a sale was a bailment, 434 n. 1, 
 that a bailment was a sale, 457 n. 26. 
 
 BALANCES, of accounts, parol proof of, 206. 
 
1184 INDEX. 
 
 REFERENCES AKB TO SECTIONS. 
 
 BANKS, judicial notice of customs of, 123. 
 usage of, when not binding, 464 n. 55. 
 
 BANK BOOKS, secondary evidence of, 205. 
 as admissions, 518. 
 when admissible as evidence, 568. 
 inspection of. See Discovekt, 709-711. 
 who may be compelled to produce, 802. 
 
 BANK CHARTERS, judicial notice of, 114. 
 
 BANK CHECKS, presumptions as to, 49 n. 54. 
 
 BANK OFFICERS, presumptions as to, 55, 56. 
 judicial notice as to iK)wers of, 123 n. 7. 
 
 declarations of, when admissible, 268 n. 22. ° 
 
 as experts as to handwriting, 556 n. 20. 
 knowledge of customers account not privileged, 771 n. 67. 
 
 BANKRUPTCY, when presumed that proper steps for discharge were taken, 
 34 n. 22. 
 presumption of continuance of, 58 n. 2. 
 
 discharge in, as defense, when gives defendant right to open and close, 
 197 n. 69. 
 best evidence of, 200 n. 11. 
 witnesses in attendance in proceedings of, privileged from arrest, 805 
 n. 92. 
 
 BANKRUPTS, declarations of, when admissible, 347. 
 
 BANNERS, inscription on, evidence of, 205 n. 29. 
 
 BANS, when presumed properly published, 86. 
 
 BAPTISM, registers of, as evidence, 508 n. 66, 509, 511. 
 not evidence of date of birth, 509, 511. 
 
 BASTARDY, proof necessary to show, of child born In wedlock, 93. 
 character, when relevant, 153. 
 sexual intercourse with other persons, 153. 
 in civil actions, amount of proof, 195 n. 55. 
 confessions of deceased as to, received, 324 n. 78. 
 questioning prosecutrix as to other acts of, 835. 
 
 BAWDY-HOUSE, keeping, relevancy of similar acts, 147. 
 
 BEER, judicial notice of intoxicating nature of, 128. 
 
 BEGIN AND REPLY. See Open and Close. 
 
INDEX. 1185 
 
 EEFBKENCBS ABE TO SECTIONS. 
 
 BELIEF, of witness of certain facts, cannot be asked reason for, 137. 
 general belief distinguished from rumor, 150. 
 party may testify to his own, 170. 
 as affecting admissibility of dying declarations, 333. 
 
 BELIEF IN SUPREME BEING, as affecting competency, 712. 
 want of, how objected to, 713. 
 rule changed by statute, 714. 
 
 BEHAVIOR. See Condtjct. 
 
 BELLS, positive and negative testimony as to ringing of, 898. 
 
 BENEFICIAL OWNERSHIP, with possession raises presumption of con- 
 veyance, 78. 
 
 BENEFICIARY. See Fiduciaby Relations. 
 
 under will, when undue influence presumed, 191, 
 admissions of testator competent against, 242. 
 under will, incompetent as to what, 792. 
 
 BEQUEST. See Legacy. 
 
 BEST EVIDENCE, See Statute of Peatjds. 
 defined, 8. 
 general rules as to, 199. 
 
 reasons for rule, 199. 
 
 relates to quality or grade, 199. 
 
 rather than to quantity or strength of evidence, 199. 
 
 must be adduced, 199. 
 
 testimony, when excluded by rule, 199. 
 
 distinguished from secondary evidence, 200. 
 
 of judicial records, 200. 
 
 of pardon, 200. 
 
 public documents, records and writings, 200. 
 
 Illustrations, 200 n. 11. 
 
 of private writings, illustrations, 201 n. 12, 847. 
 
 objection must be made, 202. 
 
 how ascertained whether agreement is written, 202. 
 
 qualifications as to independent and collateral facts, illustrations, 
 203 n. 18. 
 
 proof of corporate acts, 204. 
 relaxation of rule requiring original documents or im-itings, 205, 206. 
 
 acts and appointment of public oflicers, 205. 
 
 Inscription on walls, etc., 205. 
 
 documents or writings in foreign countries, 205. 
 
 public records, 205. 
 
 long accounts or multiplicity of documents, 206, 383, 386. 
 
 75 
 
1186 INDEX. 
 
 EBFEKENCES AEE TO SECTIONS. 
 
 BEST EVIDENCE (continued) — 
 
 contents of lost instruments, 212-216. 
 
 best attainable evidence only required, 212. 
 diligence to be used, Illustrations, 213, 214. 
 testimony of last custodian, 213, 214. 
 sources of Information to be exhausted, 214. 
 what Is sufficient proof, 211, 214. 
 relative Importance of the document, 215. 
 degree of diligence depends on circumstances, 215. 
 mode of proving loss, 216, 227. 
 amount of proof, 227. 
 parol proof of admissions as to writings, 207, 208. 
 
 conflict of opinion, 207, 208. 
 copies not generally admissible, 209. 
 
 letter-press copies and photographs, 209. 
 duplicates and triplicates of documents or writings, 209, 225. 
 
 those executed In counter-part, 209. 
 of telegrams, 210. 
 must be proved genuine, 210. 
 mode of proof, 210. 
 which are originals, 210. 
 of communications by telephone, 211. 
 
 proof of same, 211. 
 of vjritings or documents in other states, 217 
 
 secondary evidence, without notice to produce, 217, 218. 
 conflict on the subject, 217. 
 where documents were accidentally destroyefl, 217. 
 
 when such destruction was voluntary, 217. 
 where production cannot be compelled, 217. 
 
 notice to produce document See Notice to Produce, 218-227. 
 certified copy of recorded deed, 225. 
 effect of production of papers upon notice, 226. 
 degrees of secondary evidence. See Skcondaet Evidence, 228-230. 
 cross-examlilation of witnesses as to writings, 231. 
 of dying declarations, when written down, 335. 
 real evidence Is not, 402. 
 after non-production of subscribing witnesses. See Attesting Wit. 
 
 nesses, 533-536. 
 as to handwriting. See Handwriting, 545-556. 
 photographic copies of documents are not, 581. 
 of arrest or conviction of witness, 838, 839. 
 
 BIAS OP "WITNESSES. See Credibility, Prejudice, Witnesses. 
 when leading questions allowed to show, 816. 
 rule where witness is favorable to cross-examiner, 824. 
 how proved. See Witnesses, 828-829. 
 facts to be considered in determining, 901, 902. 
 
INDEX. 1187 
 
 EEFEBBNCE3 AEE TO SECTIONS. 
 
 BIBLE, judicial notice of contents of, 130. 
 entries in, to prove pedigree, 315, 316. 
 used in administering oatlis, 750. 
 
 BIGAMY, presumption of marriage in action for, 14 n. 28. 
 of innocence, 102. 
 proof of marriage in, 88 n. 85. 
 wlien second wife competent as witness, 734. 
 competency of wife in actions for, 746. 
 
 BILL IN CHANOBRY, as an admission, 272. 
 
 when competent without other parts of record, 621. 
 dismissal of, when presumed to be on merits, 596. 
 
 BILL OP DISCOVERY. See Discoveey, 702-711. 
 
 BILL OF EXOHANGK See Acceptance, Indobsements, Ngotiable Papee. 
 
 BILL OP EXCEPTIONS, when presumed correct, 34 n. 22. 
 as evidence of former testimony, 343, 782. 
 to refresh memory of witness, 875 n. 43. 
 
 BILL OF LADING, raises presumption of ownership of goods in consignee, 
 74 n. 95. 
 burden of proof as to, 182. 
 competent as an admission, 270 n. 39. 
 parol proof of usages of trade as to, 459. 
 
 explaining or varying. See Parol Evidence to Explain Wbitings. 
 parol proof of, 498. 
 
 BILL OF SALE. See Contbacts. 
 parol proof to explain, 441. 
 
 to show that it was executed for security only, 448 n. 83. 
 
 BILLS AND NOTES, See Negotiable Papee. 
 
 BILLS to perpetuate testimony, 635. 
 
 BISHOPS' REGISTERS to prove pedigree, 508. 
 
 BIRTHS, proof of. See Pedigkee. 
 parol proof of date of, 203 n. 18. 
 registry of, as evidence, 508. 
 
 when competent at common law, 510. 
 American rule, 511. 
 
 competent to prove what, 511. 
 
 effect of statutes, 511. 
 
 when provable by copies, 522 n. 60. 
 
 BLACKBOARD, use of, by experts, 403. 
 
1188 INDEt 
 
 EEFERENCES ABB TO SECTIONS. 
 
 BLANKS In wills, 475 n. 27. 
 
 consent to alterations implied from, 561. 
 unauthorized filling of, 561. 
 
 when implied authority for, 561, 562. 
 must oenform to agreement, 561. 
 
 BLOCKS, in cities, judicially noticed, 108 n. 18. 
 
 BLOOD STAINS, opinion of ordinary witnesses as to, 361. 
 admissibility of scientific books as to, 578. 
 
 BOABD AND LODGING, evidence as to value of, 786 n. 94. 
 
 BODILY FEELINGS, expressions as to, as res gestae, 349. 
 when admissible, 349. 
 must be spontaneous and undesigned, 349. 
 admitted with caution, 349. 
 statements as to pain made afterwards, 349. 
 to physicians by patient, 349. 
 of physicians as to pain suffered by patient, 349. 
 
 BONA FIDES. See Good Faith. 
 
 BONA FIDE HOLDERS. See Nbgotiablb Papeb. 
 presumptions as to, 49. 
 
 BONDS, administrator's, when presumed to have been given, in open 
 court, 37 n. 30. 
 when presumed paid, 65 n. 52. 
 parol evidence to explain, 434 n. 1. 
 oflce bonds, proof of, 532. 
 
 federal statutes as to proof of, by copy, 538 n. 97, 540 n. 14. 
 consent to alterations in, implied from blanks, 561 n. 46. 
 judgments against principal in bonds, effect of, against sureties, 591, 
 592. 
 administrators', executors', guardians' bonds, 591. 
 attachment, appeal and baU bonds, 591 n. 99. 
 in Injunctions and replevin, 592 n. 99. 
 sheriff's and constable's bonds, 692. 
 
 confiict as to, 592. 
 deputy's bonds, 592. 
 
 conflict as to, 592. 
 admissibility of such judgments, 591. 
 conflict as to, 591. 
 
 BOOK-KHEPHRS, as experts as to handwriting, 556 n. 20. 
 
 BOOKS, contents of, best evidence of, 200 n. 11. 
 
 of Insurance companies, secondary evidence of, 205. 
 of partnership, as evidence, 271. 
 presumed correct, 271. 
 
INDEX. 11S9 
 
 BEFEBBNCBS AEB TO SECTIONS. 
 
 BOOKS (continued) — 
 
 entries in. See Entries, 316-322. 
 
 of public ofilcers, when competent. See Official Reqistebs, 508-511 
 
 sliip registers and log-boolis, 512, 513. 
 
 of municipal corporations, 514, 515. 
 
 of private corporations. See Oorpoeations, 516-518. 
 
 of account. See Account Books, 567-577. 
 
 of science. See Scientific Books, 578-580. 
 
 of history as evidence, 584. 
 
 to refresh memory, 877 n. 43. 
 
 BOOKS OP AC!COUNT, as evidence. See Heaesat, Bnteies, Res Gestae, 
 Records. 
 presumption arising from spoliation of, 18 n. 45. 
 best evidence of, 201 n. 12, 212 n. 70. 
 use of, by party as evidence, 294. 
 secondary evidence of, when voluminous, 206, 383, 386. 
 all entries relating to transaction to be received together, 294. 
 as evidence, 508, 567-577. 
 entries by persons deceased, 567. 
 
 third persons living, 567. 
 
 parties, 567. 
 evidence of what transactions, 568. 
 effect of statutes, 568. 
 
 articles sold, services rendered, 568. 
 
 cash items, loan of money, 568. 
 use of, as memoranda, 568. 
 should be those of original entry, 569. 
 effect of mere temporary entries, 569. 
 form of, 570. 
 
 ledger, time book, 570. 
 requisites of, 570. 
 
 regular and usual account book, 570. 
 
 used in regular course of business, 571. 
 not confined to mercantile transactions, 571. 
 
 charges in gross, 571. 
 time of making, 569, 572. 
 
 not registers of past transactions, 572. 
 
 to be substantially contemporaneous, 572. 
 
 entry of date not essential, 572. 
 authentication of, 573. 
 
 by suppletory oath, 573. 
 
 where party is deceased, 573. 
 by proof of handwriting, 573. 
 
 by wife as to husband's account, 573. 
 
 of partnership books, 573. 
 
 person making entry to have personal knowledge. 573. 
 
1190 INDEX. 
 
 EETEEBNCBS AEB TO SECTIONS. 
 
 BOOKS OF ACCOUNT (continued) — 
 
 present recollection not essential, when, 573. 
 
 statutes enlarge common law rule, 573. 
 general effect of, 574. 
 
 not evidence of collateral facts, 574. 
 
 illustrations of, 574 n. 55. 
 
 nor between strangers, 574. 
 
 to be of record of things actually done, 574. 
 
 degree of credit to be given to, 575. 
 
 question for jury, 575, 576. 
 generally held original evidence, 575. 
 prima facie evidence of facts therein, 575. 
 admissibility of, question for court, 576, 
 defects in, as affecting admissibility, 576. 
 fraudulent appearance, effect of, 576. 
 impeachment of, 577. 
 must be produced, 577. 
 not the only evidence of transactions, 577. 
 other competent evidence admissible, 577. 
 judgment as to part of account bars rest, 604. 
 
 of either party, as to transactions with a deceased or incompetent, 791. 
 used to refresh memory, 875 n. 43. 
 
 proof of entries in, by witness who has no independent recollection, 
 881 n. 78. 
 
 BOOKS AND PAPEB,S, Inspection of, under statutory discovery, 709. 
 discovery of. In state courts, 711. 
 production of, does not make them evidence, 711. 
 rule as to confidential communications to attorney Includes, 750. 
 production of, how secured, 801. 
 
 BOtTNDARIES, between states, judicially noticed, 108 n. 18. 
 between counties and towns, judicially noticed, 108 n. 18. 
 of judicial districts, judicially noticed, 108 n. 18. 
 acquiescense In, effect of, 278. 
 declarations as to, by possessor of land, 355. 
 provable by hearsay, 301 n. 26. 
 reputation as to private boundaries excluded in England, 302. 
 
 except when coincident with public, 303. 
 relaxation of rule in United States, 304. 
 
 grounds of, 304. 
 
 hearsay admissible to establish public, 304. 
 when to establish private boundaries, 304. 
 declarations as to particular facts relating to, not competent, 305. 
 
 except where they form part of res gestae, 305. 
 
 must be by persons since deceased, 305. 
 
 more liberal rule In some states, 305. 
 declarations of surveyors, when admitted, 306, 
 
INDEX. 1191 
 
 EEPERENCES AKE TO SECTIONS, 
 
 BOXJNDARIES (continued) — 
 
 maps relating to, admissible in England to prove public, 307. 
 not private boundaries, 307. 
 
 relaxation of the rule in some states, 307. 
 declarations of grantor as to, 485. 
 judgments to prove against strangers, 588 n. 66. 
 
 BREACH OP PROMISE OF MARRIAGE, relevancy of character, 151. 
 relevancy of plaintiff's financial standing, 160, 161. 
 
 BREACH OF WARRANTY may be set up in separate action, 604. 
 
 BRIDGE, hearsay admissible to show liability to repair, 301 n. 26. 
 
 BRIDGE BUILDER, as an expert, 380. 
 
 BROKERS, parol proof as to rules of, 458, 464. 
 
 BUSINESS TRANSACTION, persons presumed to do what Is for their 
 Interest in, 57. 
 
 BURDEN OP PROOF, as to payment, lai)se of time, 66, 69. 
 
 effect on presumptionB from the witholding or suppression of evidence 
 
 on, 22. 
 how affected by presumption of malice, in criminal oases, 29. 
 on proof that negotiable paper has been obtained by duress, fraud or 
 
 has been lost or stolen, 49. 
 as to commercial paper signed in firm name, 54. 
 effect on, of presumption of continuance of existing state of things, 
 
 68, 59. 
 effect on, of presumption of continuance of life, 60. 
 as to survivorship in common disaster, 64. 
 acceptance of note, effect on former debt, 73. 
 adverse possession, 79. 
 Insanity, 103. 
 
 general meaning of the term, 176, 177. 
 on whom does it lie, 176. 
 
 English rule, 176. 
 shifting of, 176, 177. 
 
 American rule, 176. 
 test as to, 176. 
 
 burden and weight of evidence, attempted distinction of terms, 177. 
 does not shift where answer is general denial, 177. 
 
 nor on account of admissions, 177. 
 does not shift in will cases, when, 177, 
 
 in criminal oases, 177. 
 TEhen an aliM is proved, 177, 
 
1192 INDEX. 
 
 EEFEKENCES ABE TO SECTIONS. 
 
 BURDEN OP PROOF (continued) — 
 
 as dependent on form of pleading, 178, 180. 
 
 contracts, affirmative defences, 178. 
 
 generally upon plaintiff throughout in tort cases, 178. 
 
 upon whom, when fraud is pleaded to vitiate release, 178. 
 
 in actions against common carriers, 178, 182, 183. 
 
 effect of ■pleading independent or afflrmative defense, 178, 179. 
 
 usury, release, payment, settlement, 178, 179 n. 17. 
 
 warranty, set-off, counter-claim, rescission, 178, 179 n. 17. 
 
 discharge in insolvency and bankruptcy, 178, 179 n. 17. 
 
 want of consideration, 179 n. 17. 
 
 accord and satisfaction, 179 n. 17. 
 
 fraud, illegality, alteration, 179 n. 17. 
 
 act of God, 182. 
 
 statute of limitations, 194. 
 generally on plaintiff, 179. 
 
 may be on defendant, 179. 
 in actions on Insurance policies, 179. 
 generally on one asserting tlie afflrmative of issue, 180. 
 
 qualifications, 180. 
 when on one asserting a negative, 12, 180. 
 
 illustrations, 180. 
 rule relaxed when facts He peculiarly in hnowledge of defendant, 181. 
 182, 184, 19C. 
 
 less degree of proof required, 181. 
 
 In license cases, 181. 
 
 in actions for negligence, when, 182-185. 
 against common carriers, 182, 183. 
 some proof of loss necessary, 182, 183. 
 excepted risks, 182, 183. 
 contract to carry, 182, 1S3. 
 
 against telegraph companies, 182. 
 
 for dapiages by fires set by railroad, 184. 
 
 plaintiff to show fires set by engine, 184. 
 as to proper construction, etc., 184. 
 
 for damages from falling of telephone or electric wires, 184. 
 
 contributory negligence pleaded, 185. 
 burden on whom, 185. 
 
 against bailees, 186. 
 
 against warehousemen, 18G. 
 
 against inn-keepers, 187. 
 upon one pleading insanity in civil cases, 188. 
 
 confiict as to rule in criminal cases, 188. 
 in probate of wills, 189. 
 
 conflict of rule as to, 189. 
 as to testamentary capacity, 189. 
 
 conflict of rule as to, 189. 
 
INDEX. 1193 
 
 KEFEKENCES AEE TO SECTIONS. 
 
 BURDEN OF PROOF (continued) — 
 
 transactions between persons in fiduciary relations, 190. 
 agents, partners, attorneys, physicians, 190. 
 parent and child, aged and Incompetent persons, guardians, 
 
 190. 
 trustees, executors and administrators, 190. 
 dn will cases, where writer is beneficiary, 191. 
 in criminal prosecutions, 192. 
 always on the state, 192. 
 nature of this burden, 192. 
 upon one asserting fraud, 192. 
 
 amount of proof in such cases, 192. 
 in quo warranto proceedings, 193. 
 as to statutes of limitation, 194. 
 
 on one asserting, 194. 
 where crime is in issue in civil cases, 195. 
 English and Amerlcqji rule as to, 195. 
 where moral turpttBde is involved, 195. 
 presumption of innocence prevails, 195. 
 statutes relating to, 196. 
 
 in prosecutions for counterfeiting, gambling, illegal liquor sell- 
 ing, 196. 
 In tax proceedings, 196. 
 right to begin and reply, 197, 198. 
 the test, 197, 198. 
 
 where damages are unliquidated, 197. 
 In cases of counter-claim, 197. 
 matter of right, 198. 
 
 waiver of beginning does not waive reply, 197 n. 69. 
 where party agrees to pay, if affidavit is made, 264. 
 as to condition of goods held by common carrier. 498 
 as to alterations in instruments, 564. 
 
 upon whom, 565. 
 as to ancient documents, 565. 
 as to negotiable Instruments, 566. 
 as to issues decided in former cases, 601. 
 as to continuance of cause for taking deposition, 680. 
 of showing Incompetency for want of belief, 713. 
 of showing testimony incompetent, on party objecting, 744, 749, 759 
 776, 788. 
 
 BURGLARY, relevancy of similar acts, 144. 
 
 conviction of, rendering witness incompetent at common law, 716 n. 35. 
 
 BUSINESS, general course of, presumption as to, 57. 
 customs of, 123. 
 
 BY-LAWS or municipal ordinances, as evidence, 116. 
 construction of, for court, 175 n. 61. 
 
1194 INDEX. 
 
 BEFEBENCES ABE TO SECTIONS. 
 
 c. 
 
 CANCEILLATION OP INSTRUMENTS, presumption of payment from, 71. 
 creating Interests in land, effect of, 417. 
 
 CAPACITY, want of, effect on competency. See Competency or Witnesses, 
 756-760. 
 
 CAPTION OF DEPOSITIONS, irregularities in, 670, 694, 695. 
 use of, 695. 
 
 CARE, presumption of. See Negligence. 
 
 CARLISLE LIFE TABLE, admissibility of, 578. 
 
 CARNAL KNOWLEDGE. See Adtjlteet, Rape, SEDUonoir. 
 
 CARRIER See Common Caemeb. 
 
 CASE, statement of, to counsel, when privileged, 749. 
 
 CASH BOOKS, as evidence, 568. 
 
 CASHIEiR OF BANK, when presumed regularly appointed, 5S. 
 
 CAUSE AND EFFECT, relevancy of effect on other property, similarly 
 situated, 141. 
 
 CAUSE OF ACTION, how far admitted by payment into court, 292. 
 
 CAUTION as to admissions in actions for divorce, 262. 
 as to declarations of person as to bodily feelings, 349. 
 as to receiving expert evidence, 391. 
 to witness as to self-crimination, 890. 
 
 CELEBRATION of marriage, presumed regular, 86. 
 
 CENSUS, judicial notice of results of, 123 n. 8, 127 n. 41. 
 
 CENSUS REPORTS, when admissible, 582. 
 
 CEREMONY, formal, not necessary to raise presumption of marriage, 89. 
 
 CERTIFICATE OP DEPOSIT, interest on, parol proof of, 434 n. 1. 
 
 CERTIFICATES. See Authentication, Copies, Recokds. 
 authenticating public records, 538, 543. 
 
 federal statutes as to, 538, 539. 
 
 department records. See Department Records, 359, 542. 
 of oflBcers, evidence of what, 541-543. 
 
 only competent as to what, 542. 
 
 should be attached to copy, 543, 
 
INDEX. 1195 
 
 BErEBENCES AEE TO SECTIONS^ 
 
 CERTIFICATES (continued) — 
 
 mere certificates not generally competent evidence, 543. 
 of officers as to copies, 543. 
 
 competent as to what facts, 535, 543. 
 when evidence of facts, 544. 
 of notary as to protest, 544. 
 of bills of exchange, 544. 
 of inland bills, 544. 
 statutes as to, 544. 
 other modes of proof, 544. 
 as to collateral matters, 544. 
 further illustrations, 544. 
 of officers in proof of judicial records. See AuTHENTiOAnoN, 623-630. 
 of depositions. See Depositions, 644, 645, 694. 
 prima facie evidence of residence, 638. 
 
 of other facts, 644. 
 as to administering oath, 643. 
 to show authority of officer, 644. 
 what to contain, 644, 648, 659, 694. 
 amendment of, 693. 
 of commissioner to be attached to depositions, 694. 
 
 CERTIFIED COPY of public records. See Copies, 509, 515. 
 of lost instrument, 521. 
 defined, 523. 
 as evidence, 524, 802. 
 to prove records of court. See Recokds or Courts, 623, 624. 
 
 CESTUI QUE TRUST. See Fiduciary Relations. 
 admissions of, when identified in interest, 238. 
 admissions of, as against trustees, 253, 260. 
 as to transactions with a deceased or incompetent, 777 n. 25, 793. 
 
 CHAMPERTY, presumption as to law of sister state as to, 83 n. 46. 
 parol evidence to prove, 436 n. 19. 
 
 CHANCERY, judgments in See Equity, Judgments. 
 bill in, as an admission, 272. 
 depositions in, 635. 
 discovery in courts of, 702. 
 witness attending proceedings in, privileged from arrest, 805 n. 92. 
 
 CHANGE, presumption against. See Presumptions, 58-60. 
 burden of proof as to. See Bubden of Proof. 
 
 CHARACTER. See Reputation. 
 
 presumption of continuance of, 58. 
 when relevant, 145, 148, 152. 
 
 in slander and libel cases, 149. 
 
 in breach of promise, 151 
 
1196 INDEX. 
 
 EEFEEENCES ABB TO SECTIONS. 
 
 CHARACTER (continued) — 
 
 in seduction and criminal conversation, 152. 
 
 in bastardy cases, 153. 
 
 in malicious prosecution, 157. 
 proof of, when confined to particular trait, 15ft 
 quarrelsome, when relevant, 156. 
 when attacked on cross-examination, 168. 
 presumed good, 158. 
 proof of, hy general reputation, 300. 
 proof of, in case of dying declaration, 333. 
 latitude as to, on cross-examination, 826, 827. 
 of prosecutrix where chastity is involved, 827 n. 91, 832 n. 29. 835. 
 irrelevant questions as to, on cross-examination, 827. 
 
 questioner bound by answers, 227. 
 Impeachment by proving it bad, 841. 
 
 how limited, 861. 
 distinguished from reputation, 859. 
 
 CHARGE OP COURT, when presumed correct, 34 n. 2'2. 
 
 CHARGING THE JURY, as to evidence, 815, 895. 
 
 CHARTERS, granting of, to corporation, when presumed, 55 n. 97. 
 of banks and railways, judicial notice of, 114. 
 of municipalities, judicial notice of, 115. 
 
 CHARTS, when relevant as evidence, 307. 
 of pedigree, 315. 
 
 CHASTITY, presumption of, yields to that of innocence, 102. 
 proof of, when competent, 151, 152. 
 actions, where in issue, 841. 
 specific acts of unchastlty, 841. 
 
 when competent to impeach witness as to, 860 n. 28, 861 n. 33. 
 want of, as affecting credibility, 901. 
 
 CHATTEL MORTGAGES, statutes as to burden of proof of good faith as to, 
 196. 
 best evidence of, 201 n. 12. 
 
 CHATTELS, declarations of former owners of. See Admissions, 244-247. 
 
 CHECKING BAGGAGE, judicial notice of mode of, hy carriers, 123 n. 5. 
 
 CHECKS. See Bank Checks. 
 
 CHEMICAL EXAMINATION, as to poisons, 379. 
 
 CHEMISTS, as experts as to blood stains, 361, 
 poisons, 379. 
 
INDEX. 1197 
 
 BBFEBENCES ABE TO SECTIONS. 
 
 CHILDREN. See Iitfants. 
 
 presumed legitimate, 93. 
 
 presumption as to capacity, 98, 99. 
 
 declarations of deceased parents as to legitimacy or illegitimacy of, ad- 
 missible, 312. 
 
 inspection of, to establish paternity, age, etc., 401. 
 
 parol proof that "children" meant "illegitimate children" inadmissible, 
 475 n. 27, 434 n. 1. 
 
 baptism of, what presumed from, 511, 
 
 want of capacity of, 720; 
 
 comi)etency of, how determined, 721. 
 
 degree of credit to be given to, 722. 
 
 leading question. In exajuination of, 818. 
 
 CHINESE, how sworn, 715. 
 
 GHOSES IN ACTION. See NImotiablb Papeb. 
 declarations of former owners of, 247. 
 
 CHRISTIAN NAME. See Name. 
 CHRISTIANITY, presumption of belief in, 713. 
 CHURCH, parol evidence to identify, 451 n. 98. 
 CHURCH REGISTERS, as evidence, 510, 511. 
 CIGARETTES, nature of, judicially noticed, 128 n. 46. 
 CIRCULARS, as admissions, 270 n. 39. 
 CIRCULATING MEDIUM, judicial notice of, 126. 
 
 CIRCUMSTANCES, proof of, to explain writings, 452, 453. 
 effect, when suspicious, 879. 
 weight of, for jury, 899, 9.01. 
 
 CIRCUMSTANTIAL EVIDENCE defined, 6. 
 instruction as to law of, 6 n. 16. 
 
 latitude allowed when proving intent or motive by, 142. 
 of fraud, 192. 
 
 to lay foundation for secondary evidence, 204. 
 weight of, 899. 
 In criminal cases, 899. 
 
 CITIES, judicial notice of, 108, 115, 127. 
 ancient maps of, when admissible, 307. 
 
 CITY ORDINANCES, judicial notice of, 116. 
 oonstruction of, for court, 175 n. 61. 
 best evidence of, 200 n. 11. 
 as evidence, 508, 514. 
 formalities of passing to be complied with, 514. 
 
1198 INDEX. 
 
 BEFERENCBS ABE TO SECnOVS. 
 
 CITY RECORDS, as evidence, 508, 514. 
 
 CITY STREE3TS, when judicially noticed, 127. 
 
 CIVIL ACTION, presumption of Innocence in, 12. 
 presumption of Imowledge of law in, 23. 
 presumption of malice in, 29. 
 burden of proof in, 192. 
 effect of, in criminal case on same facts, 589. 
 
 CIVIL DIVISIONS, judicial notice of, 108, 127 n. 41. 
 
 CIVIL ENGINEERS, as experts, 384. 
 
 CLAIM, presumption against validity, when, 57. 
 payment of, provable by parol, 203 n. 18. 
 
 CLASSICAL ALLUSIONS, judicial notice of, 130. 
 
 CLERGYMEN, deceased, admissibility of entries by. In due course of busi- 
 ness, 319 n. 57. 
 registers of, as evidence. See Registers, 508. 
 confidential communications to, 758. 
 
 CLERK, deceased, entries made by, In due course of business, 319 n- 57. 
 certificate of, as to judicial records, 628, 543. 
 
 CLERK OP AN ATTORNEY, as agent, 259. 
 confidential communications to, 751. 
 
 CLERK OP COURT, presumption of performance of official duty, 45 n. 47. 
 
 CLIENT, when bound by admissions of attorneys. See Attorneys, 257- 
 259. 
 may claim privilege of confidential communications, 749, 750. 
 waiver of privilege by calling attorney as witness, 756. 
 or by failure to object, 756. 
 by representatives, 756. 
 attorney jnay testify for, 754. 
 
 CLIMATE, changes In, not judicially noticed, 129. 
 
 CLOTHING. See Weaeino Appahel. 
 
 CO-CONSPIRATORS, admission of one, when competent against others, 254. 
 
 CO-CONTRACTORS, admissions of one, when competent, against others, 
 " 252. 
 
 CO-DBPEINDANT, admissions by one, when admissible against others, 254, 
 768. 
 admissions in pleadings, when not binding, 273. 
 when competent as to transactions with a deceased, 793. 
 
INDBI. 1199 
 
 BZIt'EBBirCSS AEE TO SECTIONS. 
 
 OO-PLAINTIPF, when admissloaui In pleadings, not binding on, 273. 
 
 C. O. D., judicial notice of meaning of, 131. 
 parol proof of meaning of, 465 n. 60. 
 
 COAli OIL, qualities of, judicially noticed, 128 n. 47. 
 
 COERCION of wife by husband, presumption of, 91, 92. 
 
 COHABITATION, presumption from, 14. 
 
 raises presumption of marriage, when, 87, 89. 
 
 COINS, judicial notice of, 126. 
 
 COLLATERAL AGREEMENTS, parol proof of, 439. 
 in contracts of sale, 441. 
 as to deeds. See Deeds, 486-488. 
 as to notes and bills, 494. 
 
 COLLATERAL ATTACK, on judgments to show want of jurisdiction. See 
 JuBiSDiCTioN, 585, 611-618. 
 on judgments, presumptions of regularity apply, 39. 
 on return of officer, 632. 
 
 COLLATERAL FACTS. See Cross-Bxamination, Remivanct. 
 dates of instruments afford no presumption of truth of, 51. 
 when not relevant, 137, 138, 140. 
 relevant when conflict of testimony, 138. 
 when may become relevant, 141. 
 to show good faith, knowledge, etc., 146. 
 to repel inference of accident, 147. 
 rule as to best evidence does not apply as to, 203. 
 certificate of recording officers as to, 525. 
 account books not evidence of, 574. 
 return of officer, not evidence of, 631. 
 
 COLLATERAL MATTERS, entries by deceased persons in due course of 
 business, not evidence of, 319. 
 declarations against interest by deceased persons, evidence of, 326. 
 judgment between other parties to prove, 590. 
 cross-examination as to, 832, 833. 
 discretion of court as to, 834. 
 when reviewed on appeal, 833, 834. 
 
 COLLATERAL PROCEEDINGS, competency of husband and wife In, 742. 
 
 COLLATERAL STATEMENTS, as to wills, parol proof of, 479. 
 
 COLLECTOR, presumption of authority of, 43 n. 42. 
 
 COLLEGE, presumption of continuance of reputation of, 58 n. 2. 
 
1200 INDEX. 
 
 REFEBBNCBS ABB TO SECTIONS. 
 
 COLLEGE CATALOGUES, inadmissible as liistoriea, 584 n. 39, 
 
 COLLUSION between grantx)r and grantee, effect of, on admissions of 
 grantor, 241. 
 in action for divorce, 262. 
 in acknowledgement, parol proof of, 490. 
 in absence of attesting witness, 529. 
 
 COMITY of states as to taking depositions, 668. 
 
 COMMERCE, usage of. See Usage, 457-467; 
 
 COMMERCIAL AGENCY, communications to, privileged; 773 b. 67. 
 
 COMMERCIAL PAPER. See Negotiabm: Papee. 
 
 COMMERCIAL TERMS, parol evidence to explain. See Paeol Evidenoe to 
 Explain Wettings, 455-457. 
 
 COMMISSION, to take depositions, 636, 647, 648. 
 
 COMMISSIONERS, testimony taken before, when admissible on trial, 339. 
 for taking depositions, 648. 
 how named, 648. 
 who may act, 648. 
 under control of court, 650. 
 several may act, 651. 
 derive authority from court, 651. 
 return of, 651, 658. 
 power to appoint, statutory, 658. 
 to be impartial, 667. 
 cannot delegate authority, 667. 
 attorney in case cannot be, 667 n. 82 
 waiver of objections to, 672. 
 as to deciding upon objections, 676. 
 
 COMMITMENT OP WITNESSES In criminal case, 804. 
 
 COMMON, rights of, established by hearsay, 301 n. 26. 
 
 COMMON CARRIERS, presumption in negligence cases, 15. 
 
 presumption of law of sister state as to liability of, 83 n. 46. 
 
 judicial notice of customs of, 123. 
 
 burden of proving contributory negligence, 178. 
 
 burden of proof in actions against, 178, 182, 183. 
 
 burden of proof In actions for lost goods, 182. 
 
 burden of proof in actions for personal injuries, 183. 
 
 burden of proof as to defective machinery, 183. 
 
 where relationship of carrier not established, 183. 
 
 burden as to condition of goods, 498. 
 
INDEX. 1201 
 
 BEFBEENCES ABE TO SECTIONS. 
 
 COMMON DISASTER, presumption as to survivorship in, 64. 
 
 COMMON KNOWLEDGE, judicial notice of matters of, 128. 
 
 COMMON LAW, presumption of continuance of, 58 n 2. 
 in sister states, presumption as to, 83, 84 n. 51. 
 judicial notice of, 122. 
 (For rules at common law see the various subjects.) 
 
 COMMON REPUTE. See Chaeactee, Reputation. 
 
 "COMMON USAGE" in depositions, meaning of, 649. 
 
 COMMUNICATIONS. See Confidential Communications, Piuvileqeb Com- 
 munications. 
 by telephone, as evidence, 211. 
 by telegraph. See Teleqeams. 
 
 with deceased or incompetent persons, testimony as to. See Compb- 
 'tency of Witnesses, 772-795. 
 
 COMMUNITY OF INTEREST, declarations by persons having, 253. 
 
 COMPARISON OF HANDWRITING. See Handwbitinq, 550-555. 
 
 COMPENSATION, paid experts, 390. 
 
 for services, testimony to show, 786. 
 
 COMPENSATORY DAMAGES, relevancy of financial standing. See Fi- 
 nancial Standing, 160, 161. 
 
 COMPETENCY OF DEPOSITIONS, who may deny, 685. 
 objection to, by party taking, 685. 
 
 COMPETENCY OF EVIDENCE, distinguished from its sufficiency, 7. 
 
 COMPETENCY OF TESTIMONY, burden of proof on party objecting to, 
 744, 749, 759, 776. 
 
 COMPETENCY OF WITNESSES. See Relevancy. 
 
 objection to, when waived in taking deposition, 671 
 
 meaning of phrase, 712. 
 
 those incompetent at common law, 712. 
 
 sanction of the oath, 712, 715. 
 
 mode of administering, 715. 
 want of belief in Supreme Being, 712, 713. 
 
 burden of proving, 713. 
 
 objection, how raised, 713. 
 
 former rule changed, 714. 
 infamy as a ground of incompetency, 716. 
 
 illustrations, 716 n. 35. 
 
 removed by statute, 716. 
 
 76 
 
1202 INDEX. 
 
 EEFEEENCES ABE TO SECTIOWS. 
 
 COMPETENCY OP WITNESSES (continued) — 
 crime committed in foreign country, 717. 
 
 affecting credibility, 717. 
 commission of crime, liow proved, 718. 
 disability of crime, how removed, 718. 
 by reversal of judgment, 718. 
 by pardon, 718. 
 
 exception to this rule, 718 
 by serving out sentence, 718. 
 conflict as to, 718. 
 u>ant of capacity, 719-724. 
 
 insane persons, idiots, 719. 
 
 testimony of, when received, 719. 
 deaf and dumb persons, mutes, 719. 
 modern rule as to, 719. 
 persons temporarily incapacitated, 719. 
 age, 720. 
 
 presumption as to capacity, 720. 
 no certain age of competency, 720. 
 capacity depends on -vfhat, 720. 
 mode of determining, 721. 
 test to be applied, 721. 
 
 degree of credit to be given to children, 722. 
 insanity, monomania, 723. 
 
 during lucid intervals, 723. 
 insanity presumed to continue, 723. 
 
 degree of mental unsoundness necessary to Incapacitate, 723. 
 drunlcenness, 724. 
 
 renders witness incompetent, when, 724. 
 defective memory, 724. 
 
 when affected by interest, com/mon law rule, 725, 726. 
 modern tendency as to, 725. 
 nature of interest, 726. 
 disability, how removed, 726. 
 of parties as witnesses, common law rule, 727-732. 
 exceptions under equity practice, 728. 
 
 other exceptions, 728. 
 formerly not compelled to testify for adversary, 729. 
 of prosecuting witness in criminal cases, 729. 
 effect of statutes, 730. 
 
 right of accused to refuse to testify, 730. 
 party, if examined, treated like other witnesses, 730. 
 enabling, not disabling acts, 731. 
 
 courts to pass upon competency of evidence, 731. 
 personal privilege, 731. 
 
 no presumption from failure to testify, 731. 
 adverse party compelled to testify, 731. 
 
INDEX. 1203 
 
 EBrEEENCES ABE TO SECTIOWS. 
 
 COMPETENCY OF "WITNESSES (continued) — 
 of inhabitants of a municipality, 732. 
 of members of corporations, 732. 
 
 of eleemosynary corporations, 732. 
 of husband and wife as witnesses. See Husband and WrFE, 733-747. 
 confidential communications of. See Confidentiai Communica- 
 tions, 735-747. 
 of attorneys as witnesses. See Attorneys, Confidential Communica- 
 tions, 748-757. 
 of clergymen as witnesses. See Confidential Communications, 758. 
 of physicians as witnesses. See Confidenitax Communications, 759- 
 
 761. 
 Qther privileged witnesses, 762-767. 
 affairs of state privileged, 762. 
 arbitrators privileged, 763. 
 
 when competent witnesses, 763. 
 judges privileged, 764. 
 
 when competent witnesses, 764. 
 grand jurors, proceedings of, privileged, 765. 
 
 when competent witnesses, 7G5. 
 petit jwrors, proceedings of, privileged, 766. 
 when competent witnesses, 766. 
 as to misconduct of jury, 767. 
 of accomplices. See' Accomplices, 768-770. 
 of telegrams, 771. 
 
 when not privileged, 771. 
 of testimony as to transactions until deceased or incompetent persons, 
 772-796. 
 statutes as to provisions of, 772. 
 reasons for, 773. 
 limitations of, 773. 
 persons affected by, 773. 
 scope of, 774. 
 
 meaning of terms of, 773, 774. 
 adverse party competent, if called by adversary, 772. 
 
 or if representative offers proof of the transaction, 772. 
 In case of fraudulent transactions, 774. 
 meaning of term "heirs," "representatives," "legaAeeSj" "donees," 
 
 etc., 774, 779. 
 do not make adverse party wholly incompetent, 774. 
 disqualifying interest, nati're of, 775. 
 must be real, direct, pecuniary, 775. 
 present, certain and vested, 775. 
 burden of showing, 776. 
 in personal injury cases, 775. 
 in actions by corporations, 775. 
 when disability arises, 776. 
 
INDEX. 
 
 EEFEEENCES AEB TO SECTIONS. 
 
 COMPETENCY OF WITNESSES (oontlnued) — 
 
 assignees, same privileges as representatives, 776. 
 
 representative to be a party, 776. 
 
 rule not avoided by calling representative as witness, 776. 
 
 mere nominal parties, 777. 
 
 rule applies to next friend, cestui que trust, grantor and grantee, 
 
 777 n. 75. 
 how affected by Interest in result, illustrations, 777. 
 withdrawing from action, effect of, 777. 
 where interest is divisible, 777. 
 negative testimony excluded, 777. 
 relationship does not disqualify, 778, 
 when released from all liability, 779. 
 donees, heirs, sureties, 779. 
 waiver of the objection, 780. 
 
 if not made at proper time, 780, 796. 
 by calling adverse party as witness, 781. 
 by offering testimony as to transaction, 781. 
 by cross-examining adverse party, 784. 
 under discovery statutes, 784. 
 
 by introducing testimony of deceased or incompetent, 781, 782. 
 depositions, 781. 
 bill of exceptions, 782. 
 testimony at former trial, 782. > 
 
 rule where deceased testified In life time, 782. 
 testimony of adverse party, how limited, if given, 782. 
 by calling other witnesses to the transactions, 783. 
 discretion of court, after, 783. 
 only as to matters testified to, 783. 
 meaning of the term '"transaction," 785. 
 illustrations of, 785 n. 89, 786 n. 94. 
 transactions with partners, 787. 
 
 if partner dies, survivor a representative, 787. 
 rule where communication was in the presence of survivor, 787 
 rule where agent acted, for either party, 788. 
 agency, how proved, 788. 
 where agent personally Interested, 788. 
 transactions with agents of corporations, 789. 
 rule where a third person heard the communication, 790. 
 third party competent, 790. 
 but not adverse party, 790. 
 rule as to where adverse party heard communication between de- 
 ceased and third party, 790. 
 account books of parties, 791. 
 applications of the general rule, 792. 
 to all civil proceedings, 792. 
 
INDEX. 1205 
 
 KEFERENCES ABE TO SECTIONS. 
 
 COMPETENCY OP WITNESSES (continued) — 
 adverse party, who is, 792. 
 
 in probate of a will, 792. 
 
 as affecting co-parties, 792. 
 
 trustee and cestui qim trust, 792. 
 exclusion of persons under wliom others claim title, 794. 
 statutes excluding any matter occurring before death, 795. 
 mode of ascertaining competency of witnesses, 796. 
 objection to competency, when raised, 796. 
 examination on voir dire, 796. 
 
 COMPETENT EVIDENCE, defined, 7. 
 
 COMPROMISE, amount received by way of, not competent as to value of 
 land, 169. 
 offers of, made by attorney inadmissible, 258. 
 power of attorney to make, not inferred, 259. 
 when admissible, 291. 
 
 when made "without prejudice," 291. 
 
 COMPTROLLER OF THE CURRENCY, certificate of, as evidence, 539 n. 2. 
 
 COMPULSORY EXAMINATION. See Inspection op the Person. 
 of the person, 396, 397, 400. 
 
 COMPULSORY PROCESS to compel attendance of witnesses, 799. 
 
 COMPUTATIONS, expert evidence as to results of, 383, 386. 
 
 CONCEALMENT, as admission of guilt, 287. 
 
 CONCLUSIONS OF LAW, opinions of experts as to, 376. 
 
 CONCLUSIVE EVIDENCE, defined, 8. 
 
 CONCLUSIVE PRESUMPTIONS of law, illustrations, 11. 
 defined, 11. 
 
 less numerous than formerly, 11. 
 created by statutes in tax proceedings, 196. 
 
 CONDEMNATION PROCEEDINGS, opinions as to values in, 363. 
 admissibility of opinions as to damages, 388. 
 view by the jury, 405, 407. 
 
 CONDITION PRECEDENT, parol proof of, 471. 
 
 CONDUCT, suppression ot testimony, presumption from, 17-22. 
 of father, as to legitimacy of child, 96. 
 and misconduct, when relevant, 138. 
 
12G6 INDEX. 
 
 REFERENCES ABB TO SECTIONS. 
 
 CONDUCT (continued) — 
 
 of prosecutrix for rape, 138. 
 of otliers, when not hearsay, 296, 350. 
 estoppel by. See Estoppel, 275-279. 
 admissions may be implied from, 287. 
 
 in the case of landlord and tenant, 287. 
 
 where an account is rendered and no objection made, 2S7. 
 
 where one assumes to act as an officer, 287. 
 
 where one omits to assert claim before arbitrator, 287. 
 
 acts showing consciousness of guilt, 287. 
 
 flight, attempt to escape, concealment, 287. 
 living under assumed name, 287. 
 resistance to arrest, 287. 
 failure to appear for trial, 287. 
 demeanor at trial, 287. 
 false or deceptive explanation, 287. 
 suborning, fabricating or suppressing testimony, 287. 
 refusal to submit to superstitious test, 287. 
 acts showing consciousness of innocence, 281. 
 of relatives as to matters of pedigree, 315. 
 of witness in connection with trial, to show interest, 828. 
 
 CONDUCTOR, as expert, 381. 
 
 CONFEDERATE STATES, judicial notice of, 125. 
 of their currency, 126. 
 
 CONFEDERATES, declarations by, 254. 
 
 CONFESSIONS, as proof of marriage, 88. 
 defined, 235. 
 
 of adultery in actions for divorce, 262. 
 judgment on, effect as evidence, 596. 
 
 confidential communications between husband and wife In form <rf, 
 736 n. 79. 
 
 OONFESSION AND AVOIDANCE, burden of proof, when pleaded, 179, 180. 
 
 CONFIDENCE. See Fiduciabt Relations. 
 
 CONFIDENTIAL COMMUNICATIONS. See Privileged Communications. 
 disclosure of, not compelled under statutory discovery, 708. 
 of husband and wife, 735-747. 
 what are, 735, 745. 
 tbose njade in presence of third parties, 735, 737. 
 
 of children, 735 n. 737. 
 effect of statutes, 735, 745. 
 
INDEX. 1207 
 
 EEFEEBNOBS ABE TO SECTIONS. 
 
 CONFIDENTIAL COMMUNICATIONS (oontinued) — 
 disability, duration of, 736. 
 grounds of, 736. 
 not a cloak for fraud, 736. 
 matter disclosed after relation ceases, Illustrations, 737. 
 In actions for criminal conversation, 738. 
 when spouse competent against other, 738. 
 
 consent of spouse, when necessary, 739, 745, 746. 
 disclosures of, made while acting as agent for other, 740. 
 when relation arises, 740. 
 agency to be proved, 741. 
 
 presumption of agency, 741. 
 spouse competent as to fact of agency, 741. 
 When incompetent as to matters tending to criminate the other, 
 742. 
 in collateral proceeding, 742. I 
 
 as to matters tending to contradict the other, 742. 
 in actions between husband and wife, 742, 743, 748. 
 In actions for divorce, 742, 746. 
 under statutes making parties competent, 743. 
 marriage proved by whom, 744. 
 
 must be de jure spouse, 744. 
 statutes removing disqualification for interest, effect of, 745. 
 do not remove incompetency of husband and wife, 745. 
 exceptions in these statutes, 745, 746. 
 criminal cases, 745. 
 prosecutions for personal violence, 746. 
 in actions for divorce, 746. 
 other actions between each other, 746, 
 other statutory exceptions, 746. 
 general tendency of statutes, 747. 
 to attorneys, not to Be disclosed, 748-757. 
 grounds of rule, 748. 
 
 rule does not apply where attorney Is acting for both parties, 
 748 n. 55. 
 or acting as agent for one ot the parties, 748 n. 55. 
 privilege 'belongs to client, 749, 750. 
 
 attorney no right to aisclose, 749. 
 not confined to cases pending, 749. 
 nor where fee has been paid, 749. 
 nor where attorney considers himself retained, 749. 
 no injunction of secrecy necessary, 749. 
 in case of public prosecutor, 749. 
 burden of showing privilege on whom, 749. 
 duration of privilege, 750. 
 privilege extends to all communications, 750. 
 wbethej oral ox written, 750. 
 
1208 INDEX. 
 
 REFEKENCES ABE TO SECTIONS. 
 
 CONFIDENTIAL COMMUNICATIONS (continued) — 
 privilege determined by court, 750. 
 to wliat matters does not apply, 750. 
 
 those not in professional Intercourse, 750, 751. 
 
 Illustrations, 751. 
 not to information gained collaterally, 751, 752. 
 to interpreters, agents, clerks, stenographers, assistants, etc., 
 
 when, 751. 
 as to third persons present, 751. 
 communications with witnesses, 751. 
 
 made during preparation for trial, 751. 
 Information gained in casual manner, 752. 
 
 not communicated by client, illustrations, 752. 
 In presence of adverse party, 752 n. 99. 
 when attorney acts as subscribing witness, 752. 
 not allowed to aid crime, 753. 
 
 not to aid fraud, 753. 
 attorney may be witness for client, 754. 
 
 the practice discouraged, 754. 
 In litigation between attorney and client, 754. 
 when attorney made a party, 754. 
 Instructions for drawing wills, 755. 
 
 where attorney signs as attesting witness, 755. 
 tcaiver of privilege hy client, 756. 
 express or implied, 756. 
 by client calling attorney, 756. 
 by attesting will, 755, 756. 
 by attesting deed, 752. 
 by failure to object, 755. 
 
 becoming witness in his own behalf, when, 756. 
 when an accomplice, 756. 
 statutes on the subject, 757. 
 effect of, 757. 
 to clergymen, 758. 
 
 common law rule as to, 758. 
 modified by statute, 758. 
 must be made In a professional capacity, 758. 
 to physicians, 759. 
 
 at common law, 759. 
 
 based on statutes, 759. 
 party objecting has burden of showing relation, 759. 
 actual treatment raises privilege, 759. 
 "information" or "oommunications," 759. 
 assistants, 759. 
 
 confined to professional duty, 759, 760. 
 and necessary information, 760. 
 
 what "necessary," illustrations, 760. 
 
INDEX. 1209 
 
 BEFEBBNCBS ABE TO SECTIONS. 
 
 CONFIDENTIAL COMMUNICATIONS (continued) — 
 privilege, how waived, 759, 761. 
 
 by calling physician as witness, 761. 
 
 by calling one of several physicians as witness, 761. 
 
 In case of death, by whom waived, 761. 
 
 In criminal cases, 761. 
 
 In life insurance cases, 761. 
 
 CONFINEMENT, attendance of witness in, how secured, 803. 
 
 CONFIRMATION of an accomplice, 770. 
 of an Impeached witness, 865, 866. 
 of other witnesses, 869, 870. 
 
 CONFLICT OF TESTIMONY, when admits proof of collateral facts, 138 
 n. 20. 
 
 CONFLICTING PRESUMPTIONS, weight and effect of. See Peesump- 
 TIONS, 101-103. 
 
 CONFRONTING WITNESS, former rule as to, 845. 
 
 CONGRESS, time of sessions of, judicially noticed, 106. 
 acts of, judicial notice of, 112. 
 
 CONGRESSIONAL DISTRICTS, judicial notice of, 108 n. 18. 
 
 CONNECTION between facts offered and facts to be proved, 137. 
 
 CONSENT, when implied from silence, 289, 290. 
 to contract, parol evidence to show lack of, 437. 
 to taking deposition waives objections, 671. 
 
 CONSENT OF INFANTS, to sexual Intercourse, 11, 98. 
 to marriage contract, 98. 
 
 CONSEQUENCES of acts, knowledge of, presumed, 27, 28. 
 
 CONSIDERATION, not conclusively presumed as to instruments under 
 seal, 11. 
 presumed as to negotiable paper, 49. 
 
 relevancy of failure of, in similar transactions, 140 n. 43. 
 want of, burden of proof as to, 179 n. 17. 
 how expressed under statute of frauds, 430. 
 shown by parol, 203 n. 18, 435. 
 parol proof as to, 468-470. 
 open to explanation, 468. 
 
 illustrations, 468 n. 78. 
 where tends to change contract, instead of consideration, 468. 
 
1210 INDEX. 
 
 EEPEKENOES ABE TO SECTIONS. 
 
 CONSIDERATION (continued) — 
 i4 deeds, 469. 
 
 dlfEerent from that expressed. Illustrations, 469. 
 effect of consideration clause, 469. 
 payment open to explanation, 469. 
 proof of fraud, 469, 470. 
 not to change legal effect of deed in absence of fraud, 470. 
 proof of different or additional, 470. 
 In notes and bills, parol proof of, 495. 
 In mortgages, parol proof of, 499. 
 alteration In, vitiates instrument, 560 n. 41. 
 want of, must be set up as defense, 604. 
 
 CONSPIRACY, relevancy of other acts of, 143. 
 
 privilege as to criminating testimony as to, 884 n. 99. 
 
 CONSPIRATORS, when bound by admissions of co-conspirators, 254. 
 
 CONSTABLE, presumption of authority of, 44. 
 of performance of official duty, 45 n. 47. 
 
 CONSTITXmONS, judicial notice of, 112. 
 
 CONSTRUCTION of state statute by state court followed by federal court, 
 120. 
 of writings for court, 175. 
 
 when facts are also involved, 175. 
 of statutes for court, 175. 
 of ordinances for court, '175. 
 of instruments, parol proof admissible, 454. 
 
 CONSTRUCTIVE TRUSTS. See Trusts, 418-426. 
 
 CONSUL, certificates of, provable by copies, 540 n. 7. 
 
 CONTEMPORANEOUS ACTS, admissible as part of res gestae, 348. 
 
 CONTEMPORANEOUS ORAL AGREEMENT not provable by parol, 434. 
 
 CONTEMPORANEOUS MEMORANDA to refresh memory, 879, 881. 
 
 CONTEMPT, for disobeying subpoena, 799. 
 excuses for not obeying, 799. 
 to procure absence of witness, 799. 
 to refuse to attend, 799. 
 for refusal to be sworn, 800. 
 for refusal to testify, when, 800. 
 for refusal to produce books and papers, 801. 
 for arrest of witness on civil process, 806. 
 for disobeying order excluding from court room, 808. 
 no power to punish for, unless court has jurisdiction, 800. 
 
INDEX. 1211 
 
 BErEKElSrCES AEE TO SECTIONS. 
 
 CONTENTS, presumptioa as to knowledge of, 25. 
 of documents. See Best Evidence. 
 
 of former wills, declarations of testator, to show. 482 n. 66. 
 of receipt, best evidence of, 492. 
 
 CONTINUANCE of existing state of things oresumed. See Peestjmptions, 
 58-60. 
 of taking of depositions, 696. 
 
 CONTINUATION OF CAUSE, necessary to admit depositions. See De- 
 positions, 678-680. 
 
 CONTINGENCY, as to payment, parol proof of, 494. 
 
 CONTRACTS, presumption of knowledge of their legal effect, 25. 
 of their contents, 25 n. 80. 
 of municipalities, when formalities in making presumed complied 
 
 with, 46 n. 48. 
 when presumed to be in writing, 50. 
 date of presumed correct, 51 n. 73. 
 
 when presumed that law of place of performance should control, 84. 
 presumption of their legality, 85. 
 similar with others, relevancy of proof of, 140. 
 other, between same parties, relevancy of, 140, 141. 
 construction of, for court, 175. 
 burden of proof as to, 178. 
 best evidence of, 201 n. 12. 
 verbal parol proof as to terms of, 203 n. 18. 
 by telegram, mode of proof, 210. 
 best evidence of, when lost, 212 n. 70. 
 secondary evidence as to contents of, 218 n. 20. 
 progress under, cannot be shown by hearsay, 297 n. 4. 
 expert testimony as to damage for breach of, 388. 
 explanation of,, by parol. See Paeol Evidence to Explain Whitings, 
 
 434-498. 
 parol evidence not admissible to change legal effect of, 434 n. 1. 
 illegality, shown by parol evidence, 436. 
 Independent and collateral, shown by parol, 439, 441, 487. 
 subsequent modification by parol, 442-445. 
 apparently bailments shown to be sales, 457. 
 to furnish materials, parol proof of usages, 460. 
 for services, parol proof of usages, 460. 
 when usages must be consistent with, 465. 
 proved by attesting witnesses, 527 n. 7. 
 alteration of. See Alteration, 557-566. 
 judgment in, when bars tort, 598. 
 (See various headings for discussion of details as to contracts.) 
 
 CONTRACTORS, admissions by joint contractors, 252. 
 by persons having only community of interest, 253. 
 
1212 INDEX. 
 
 EEFEKENCES ABE TO SECTIONS. 
 
 CONTRADICTION of witness, impeachment by. See "Witnesses, 844-858. 
 
 CONTRADICTORY STATEMENTS, to show bias, 829. 
 leading questions as to, 818. 
 shown on cross-examination, 826. 
 impeachment by proving. See Witnessess, 844-858. 
 do not permit evidence of good character, 868. 
 
 CONTRIBUTORY NEGLIGENCE, of Infants presumed incapable of, 99. 
 burden in actions against common carriers, 180. 
 burden of proof as to, 185. 
 
 In case of death caused by another, 185. 
 
 CONTROL over depositions, 650, 684. 
 
 over documents necessary to compel production under subpoena duces 
 tecum, 802. 
 
 CONTROVERSY. See Lis Mota. 
 
 CONVERSATION with a deceased or incompetent. See Competency or 
 Witnesses, 772-795. 
 over telephone, when admissible, 211. 
 all parts of, to be received together, 822, 873. 
 
 CONVEYANCE, acknowledgment of. See Deeds, Documents, Statute 
 OF Fbauds. 
 when presoimed, 50, 75, 76, 78. 
 
 voluntary, relevancy of similar to show fraudulent scheme. 142. 
 statements accompanying, admissible as part of res gestae, 244 n. 3. 
 of land, statute of frauds as to, 413. 
 confidential communications between husband and wife as to, 736 n. 79. 
 
 CONVEYANCERS, as experts as to handwriting, 556 n. 20. 
 communications to, when privileged, 751. 
 
 CONVICTION, best evidence of, 200 n. 11. 
 
 of crime as ground of Incompetency, 716, 717. 
 as affecting credibility, 901. 
 
 actual conviction essential, 716. 
 how proved, 716. 
 cross-examination as to, 838, 839, 
 
 conflict as to rule, 838. 
 
 statutes as to, 839. 
 proof of, admits proof of good reputation, 867. 
 
 CO-OBLIGORS, admissions of, 252. 
 
 CO-PARTNERS. See Paetneks. 
 
INDEX. 
 
 EEPBEENOES ABE TO SECTIONS. 
 
 1213 
 
 CO-PARTY. See Paett. 
 
 competent as to what, In action with representative, 793. 
 
 CO-TENANT. See Tenant. 
 
 COPIES. See Authentication, Certificates, Documents, Records. 
 of puhllc records, when admissible, 205. 
 not the best evidence, 209. 
 letter-press copy, secondary evidence, 209. 
 not admissible, if original producible, 222. 
 recorded deeds proved by certified copies, 225. 
 of foreign laws as evidence, 502, 503. 
 of statutes of sister states as evidence, 504, 505. 
 of acts of state as evidence, 507. 
 of oflBcial registers as evidence, 509. 
 
 of records of municipal corporations as evidence, 514, 515, 522. 
 of public documents as evidence, 530. 
 classes of, 523, 524. 
 
 use and effect of, as evidence, 524, 525. 
 authentication of non-judioial records, 538-54». 
 federal statutes as to, 538. 
 of department records as evidence, illustrations, -539, 540. 
 
 federal statute as to, 539. 
 
 statutes must be strictly pursued, 540. 
 
 prima facie evidence of correctness of accounts, 541. 
 
 subject to rebuttal, 541. 
 
 certificates not evidence as to unoflScial acts, 541. 
 
 should contain items of account, 541. 
 need not contain every item, 542. 
 of public records, incompetent without certificates, 543. 
 by letter-press, for comparison of signatures, 555 n. 9. 
 photographic, for comparison of signatures, 555 n. 4. 
 to prove records of courts. See Records of Coubts, 623-630. 
 of documents as exhibits to depositions, 699. 
 of memoranda used to refresh memory, 878. 
 
 CORPORATE ACTS, parol proof of, 204. 
 presumptions as to, 55, 56. 
 parol proof of, 204. 
 
 CORPORATE EXISTENCE, when presumed, 55. 
 presumption of continuation of, 58 n. 2. 
 when estopped to deny, 55. 
 of municipalities, .iudicial notice of, 115. 
 
 CORPORATE RECORDS, presumption arising from spoliation of, 18 n. 45. 
 best evidence of, 200 n. 11. 
 iiot provable by admissions, 208 n. 37. 
 
1214 INDEX. 
 
 EEFEEBNCBS AEE TO SECTIONS. 
 
 CORPORATIONS. See Municipal CkJEPOKATiONS. 
 
 private, presumption as to regularity of their acts, 55. 
 officers of, presumption of authority of, 55, 56. 
 directors, acts of, presumed those of majority, 55 n. 97. 
 meetings of, presumed regularly held, 55 n. 97. 
 grants to, when presumed accepted, 56. 
 presumption of continuance of, 58 n. 2. 
 judicially noticed, when, 114. 
 relevancy of financial standing, 160 n. 46. 
 proceedings of, best evidence of, 200 n. 11. 
 acts of, when provable by parol, 204 n. 22. 
 
 incorporation of, when not to be questioned, 276. 
 admissions by, 268. 
 
 of subordinate agents and stockholders, not binding under part 
 of res gestae, 268. 
 declarations of agents competent against, when, 357. 
 in actions for negligence, 357. 
 
 must accompany act, agent authorized to perform, 357. 
 rules governing admission of such evidence, 358. 
 re:vrds of private corporations. See Documents, Records, Registers. 
 as evidence, 516. 
 when competent, 516. 
 effect of statutes, 516. 
 transactions presumed regular, 516. 
 to show Incorporation, 516. 
 In actions on stock subscriptions, 516, 517. 
 evidence against stockholders, 517. 
 competent as to what facts, 517. 
 against what persons, 517. 
 In favor of corporation, 516, 517. 
 In favor of what persons, illustrations, 517. 
 as against strangers, 517. 
 as admissions of corporation, 518. 
 as admissions of individual members, when, 518. 
 when conclusive, 518. 
 should be authenticated, 518. 
 account books of, 518. 
 copies of records, not admissible, 522. 
 effect on, of judgment against stockholders, 587. 
 officers of, when examined under statutes, 707. 
 agents and employes of, when examined under statutes, 707. 
 compelled to produce books and papers, when, 710. 
 members of, when competent as witnesses, 732. 
 competency of agent of, as to transaction with a deceased, 789. 
 
 after dissolution of corporation, 789. 
 officers of, compelled to produce books and papers, 802. 
 
 CORPOREAL HEREDITAMENTS, presumption as to, 77. 
 
INDEX. 1215 
 
 EEFEEENCES ABB TO SECTIONS. 
 
 CORRECTION of depositions, when allowed, 693. 
 
 CORRECTNESS of records, when presumed. See PKEStTMpnoNS. 
 
 CORRESPONDENCE, all parts of, to be received together, 294. 
 
 CORROBORAfriON of accomplices, 770. 
 of witnesses, 869, 870. 
 
 by proof of circumstances, 899. 
 
 CO-SURETY, when competent as to transactions with a deceased, 793. 
 
 COUNSEL. See Attoenet, Confidentiai, Communications. 
 latitude allowed as to order of proof, 812. 
 
 COUNTBR-CJLAIM, burden of proof as to, 178 n. 16. 
 may be set up in separate action, 604. 
 
 COUNTERFEITING, relevancy of similar acts, 143. 
 
 statutes affecting burden of proof in prosecution for, 196. 
 cross-examination as to, to affect credibility, 832 n. 29. 
 
 COUNTER-PART of a document, when primary evidence, 209. 
 
 COUNTIES, judicial notice of, 108, 127. 
 
 COUNTY COMMISSIONERS, presumption of authority of, 43 n. 42. 
 
 COUNTY COURT. See Pkqbate Court. 
 
 COUNTY HISTORIES, inadmissible as histories, 584. 
 
 COUNTY OFFICERS, judicial notice of, 109. 
 
 when declarations of, not binding on county, 267 n. 21. 
 
 COURSE OF BUSINESS, presumptions from, 57. 
 presumption of continuance of, 58 n. 2. 
 entries in. See Entkies, 319, 320. 
 
 COURSE OF NATURE, judicial notice of, 129. 
 
 COURT. See Judge. 
 
 contempt of. See Contempt. 
 
 COURT ROOM, exclusion of witnesses from, 807. 
 officers should not be excluded, when, 807. 
 effect of violation of order, 808. 
 
 COURTS, officers of, judicial notice of, 109 n. 23. 
 jurisdiction of, when presumed, 31-39. 
 
 province of, to determine character and existence of statute, 117. 
 records of, judicial notice of, 124. 
 
1216 INDEX. 
 
 EEFEEENCES ABE TO SECTIONS. 
 
 COURTS (continued) — 
 
 terms of, judicial notice of, 124. 
 
 ofBcers of, judicial notice of, 124. 
 
 rules and mode of practice of, judicial notice of, 124. 
 
 effect of judgment of. See Judgments, 585-631. 
 
 domestic, effect of judgment of, 611, 612. 
 
 proof of records of, 623. 
 inferior, effect of judgments of, 613. 
 foreign, effect of judgments of, 614-616. 
 
 proof of records, 624. 
 of sister states, 119, 617, 618. 
 
 COURTS OP PROBATE. See Probate, 606-610. 
 
 COURTS OF RECORD, jurisdiction presumed, 31, 35. 
 
 COVENANT. See Estoppel, Warranty. 
 
 COVEIRTtJRE. See Husbaot) aj^d Wifb. 
 
 COVIN. See Fraud. 
 
 CREDIT, presumptions as to, husband and wife, 90. 
 
 CREDIBILITY, as affected by crime In foreign country, 717. 
 conviction of crime, effect of, 717. 
 testimony of children, 722. 
 
 lunatics, 723. 
 
 monomaniacs, 723. 
 
 drunken persons, 724. 
 as affected by defective memory, 724. 
 as affected by Interest, 725-730. 
 
 question for jury, 731. 
 of accomplices, 769. 
 
 of witnesses violating order of exclusion from court room, 808. 
 tested by cross-examination. See Witnesses, 822, 828-843. 
 of witnesses in general, 901-903. 
 
 province of the jury as to, 901. 
 
 CREDITOR, needy circumstances of, as element in presumption of pay- 
 ment from lapse of time, 68. 
 absence of, as rebutting presumption of payment, 69 n. 69. 
 
 CRIME, charge of, in civil cases, amount of proof, 16, 195. 
 infants, presumptions as to capacity, 11, 98. 
 presumptions of sanity and innocence, 103. 
 other crimes not relevant In proof of, 143, 144. 
 
 exceptions where it may show motive. Intent, etc., 143, 144, 145 
 to affect credibility, 143 n. 66. 
 
INDEX. 1217 
 
 REFERENCES ABE TO SECTIONS. 
 
 CRIME (continued) — 
 
 in civil cases, burden of proof as to, 195. 
 
 committed in foreign country as affecting competency, 717. 
 
 disability for conviction of, liow removed, 718. 
 
 In prosecution for, when spouse incompetent, 734, 746. 
 
 confldenitial communication to attorneys to aid, 753. 
 
 privileged communications to physicians in prosecution for, 761. 
 
 former conviction of, questions as to, on cross-examination, 827, 839. 
 
 questioner bound by answer, when, 827. 
 
 CRIMINAL ACTIONS, presumption of innocence in, 12, 103. 
 official authority, 43. 
 of sanity, 103. 
 
 decisions of questions of law in, 175a. 
 burden on the prosecution throughout, 177, 192. 
 inspection of the person in, 400. 
 
 of articles in, 400. 
 effect of civil judgment for same cause, 589. 
 rights of accused to refuse to testify, 730. 
 competency of husband and wife in, against the other, 734. 
 amount of proof, 901. 
 
 CRIMINAL CONVERSATION, presumption of marriage in actions for, 
 88 n. 85. 
 proof of character in actions for, 152, 155 n. 26. 
 competency of husband or wife in actions for, 738. 
 
 CRIMINATING DOCUMENTS. See Confidentiai. Communications, Wit- 
 nesses, Pkiveleged Communications. 
 
 CRIMINATION of witnesses by self, not compelled. See Witnesses, 884- 
 892. 
 
 CROPS, judicial notice of growth of, 129. 
 expert testimony as to, 382. 
 reservation, parol proof of, 486. 
 
 CROSS-EXAMINATION. See Witnesses. 
 as to writing, 231. 
 must writing be shown witness, 231. 
 
 not necessary in England, by statute, 231. 
 
 necessary in America, 231. 
 opportunity for, when necessary, 340. 
 of experts, latitude allowed in, 389. 
 
 as to hand-writing, 556. 
 
 use of scientiiic books in, 579. 
 suppression of deposition for want of opportunity for, 688. 
 of children, 722. 
 
 O'f parties in criminal cases, 730. 
 77 
 
1218 INDEX. 
 
 BBFEBENCES ABE TO SECTIONS. 
 
 CROSS-EXAMINATION (continued) — 
 
 effect of, as to transactions -with a deceased, 784. 
 
 after case tias l>een closed, 810. 
 
 by several counsel, 814. 
 
 right to, where witness is sworn by mistake, 820. 
 
 of witnesses. See Witnesses, 820-843. 
 
 of impeaching witness, 864. 
 
 CUMULATIVE EVIDENCE, defined, 8. 
 
 reception of, in discretion of court, 8, 814, 900. 
 
 effect of erroneous reception of, 896. 
 weight of, 898. 
 
 CURRENCY, judicial notice of facts relating to, 126. 
 
 CUSTODIAN OP PAPER, when testimony of must be produced, 213. 
 
 CUSTODY of ancient documents, 308, 531. 
 what is proper custody, 309. 
 what is, under subpoena duces tecum, 802. 
 
 CUSTOMS. See Usage. 
 
 presumption of continuance of, 58 n. 2. 
 
 judicial notice of, 121, 123. 
 
 of business, judicial notice of, 123. 
 
 apparently collateral may become relevant, 141. 
 
 in negligence cases, 163, 164. 
 
 when hearsay admissible to prove, 301 n. 26. 
 
 judgmente to prove, against strangers, 588 n. 66. 
 
 CUSTOM-HOUSE books, as evidence, 508. 
 provable by copies; 522 n. 60. 
 
 CYCLOPEDIA, admissibility of, 578 n. 78. 
 
 DAMAGES, See Compensatoet and Bxemplakt Damages. 
 proof of rumors to mitigate, in slander, etc., 150. 
 character admissible to affect, when. See Chaeacteb, 148-158. 
 financial standing to affect. See Financial Standing, 159-161. 
 liquidated, right to open and close in cases of, 197. 
 opinions of witnesses as to, when admissible, 388. 
 conflict in condemnation proceedings, 388. 
 
 DAMS, effect of, on streams, judicial notice of, 129. 
 
 DATES, presumption as to time of, 49, 50. 
 where collusion probable, 50, 51, 438. 
 when presumed correct, 51, 438. 
 
INDEX. ' 1219 
 
 EETERENCBS ABE TO SECTIONS. 
 
 DATES (continued) — 
 
 no presumption of correctness of, as to forged instruments, 51. 
 
 do not afford presumption of truth of collateral facts, 51. 
 
 parol proof as to, 434 n. 1. 
 
 mistake of, shown by parol, 438. 
 
 alteration in, vitiates instrument, 560 n. 41, 
 
 DAUGHTER. See Children, Pedigree, Seduction. 
 included in term "children," 480 n. 53. 
 
 DAY. See Date. 
 
 judicial notice of, 129. 
 
 DAYS OF GRACE, presumption of law of sister state as to, 83 n. 46. 
 
 DEAF AND DUMB, competency of, as witnesses, 719. 
 leading questions in examination of, 818 n. 28. 
 
 DEALERS, as experts, 386. 
 
 DEALINGS, presumptions arising from, 57. 
 
 DEATH, presumed after seven years' absence, Gl. 
 presumed in less than seven years, when, 63. 
 presumption as to love of life, 185. 
 admissibility, after death, of declarations as to pedigree. See Pb3)- 
 
 IGEBE, 312-318. 
 provable by registers. See Reqistkbs, 508-511. 
 
 those provable by copies, 522 n. 60. 
 registry of, when competent at common law, 510. 
 American rule, 511. 
 
 effect of statutes, 511. 
 decree in probate, not conclusive as to, 609. 
 effect of, on competency of confidential communications, 736. 
 effect of, as to competency of adverse party. See Competency or Wit- 
 nesses, 772-795. 
 
 DB BENE ESSE DEPOSITIONS. See Depositions, 635-637. 
 
 DEBT, payment of, presumed from lapse of time, 65, 66. 
 
 pre-existing, no presumption of payment of, from acceptance of note, 
 
 73. 
 application of payment to debt first due, 72. 
 parol admissions to prove, 207 n. 34. 
 
 DEBTOR, Insolvency of, as rebutting, presumption of payment from 
 lapse of time, 69 n. 69. 
 
 insanity of, effect of on presumption of payment, 69 n. 69. 
 
 suspicion that cancellation of instrument act of, effect on presump- 
 tion of payment, 71. 
 
 payments by, when applied on debt first due, 72. 
 
 declarations of, as part of res gestae, 351. 
 
1220 INDEX. 
 
 BEFEEENCES ABE TO SECTIONS. 
 
 DECEASED PERSONS, declarations of. S©e Admissions, Declabaitons, 
 Heaesat. 
 admlssioiLs of, when admissible, 242. 
 as to matters of public and general interest, 301. 
 
 illustrations of the rule, 301 n. 26. 
 as to matters of pedigree. See Pedigeee, 318. 
 
 entries of, made in regular course of business. See Enteies, 319. 
 declarations against interest, 323-330. 
 declarations of strangers to the suit, 323. 
 
 admissible when against interest, 323, 324. 
 
 nature of interest, 323, 324. 
 
 declarations prima fade against interest, 325, 329. 
 distinguished from those made in regular course of business, 326. 
 declarations by agents, 327, 328. 
 
 when binding on principal, 327. 
 
 proof of agency necessary, 327. 
 
 authority, when presumed, 327. 
 
 ancient entries by, 327. 
 
 after thirty years handwriting need not be proved, 327. 
 
 agent need not have actual knowledge of transaction, 328. 
 inadmissible where they merely show contract, 329. 
 execution and revocation of will, etc., 329. 
 form of, 330. 
 
 made orally or in writing, 330. 
 where there are living witnesses, 330. 
 
 fact need not be expressly stated, 330. 
 general rules, 330. 
 
 dying declarations. See Dying Declarations, 331-335. 
 admissibility of testimony of deceased witnesses. See Hb^bsat, 336- 
 
 343. 
 proof of books of account of, 573. 
 depositions of, used on second trial, 684. 
 testimony as to transactions with. See Competency op Witnesses, 
 
 772-T96. 
 impeachment of testimony of, 846, 848. 
 
 DECEASED WITNESSES, testimony of, given on former trial. See 
 Heabsat, 336-343. 
 
 DECEPTION. See Fraud. 
 
 DECLARATIONS, of husband and wife as to sexual Intercourse, when not 
 competent, 97. 
 connected parts of, to be given, 171. 
 admissible when part of res gestae. See Res Gestae. 
 in one's own favor, not admissible, 235. 
 
 such statements admissible for the adverse party, 236. 
 
INDEX. 1221 
 
 RErERBNCES ABB TO SECTIONS. 
 
 MJCLARATIONS (continued) — 
 
 of one of several jointly interested, 248-253. 
 
 when competent against all, 248-253. 
 partners. See Paktnebs, 248-253. 
 Joint contractors, co-obllgers, 252. 
 joint makers, grantors, purchasers, 252. 
 mere community of interest not sufficient to admit, 253. 
 hy tenants In common, 253. 
 by boards of public officers, 253. 
 by Indorsers of a note, 253. 
 by trustees and cestui qui trust, 253. 
 by administrators and executors, 253. 
 of one wrong-doer, when admissible against others, 254. 
 
 when they form part of res gestae, 254. 
 of conspirators against co-conspirators, 254. 
 
 when conspiracy has been established, 254. 
 by agents. See Agents, 255, 256. 
 
 when) original evidence, 255. 
 by attorneys. See Attobneys, 257-259. 
 of husband and wife. See Htjsband and Wife, 260-262. 
 of those acting In representative capacity, 266. 
 of officers of public corporations, 267. 
 
 when within scope of authority, 267. 
 of officers of private corporations, 268. 
 
 when within scope of authority, 268. 
 admissible as part of res gestae, 297 n. 4. 
 of deceased persons as to matters of public and general interest. See 
 
 Deceased Persons, Heaesay, 301. 
 as to particular facts concerning boundaries, 305. 
 must have been made before controversy arose, 305. 
 as to surveys, 306. 
 
 hearsay declarations, when admissible, 310, 311. 
 as to reputation or common fame, 310, 311. 
 as to pedigree. See Pedigree, 312-318. 
 
 as to entries in regular course of business. See Entries, 319-322. 
 by deceased persons against interest. See Deceased Persons, 323-330. 
 of those dying. See Dying Declabations, 331-335. 
 part of res gestae. See Res Gestae. 
 of bankrupt, when admissible as res gestae, 347. 
 as to bodily feeling, when competent, 349. 
 motive or intent, 350. 
 in personal injury cases, 350. 
 
 of third persons, when res gestae, 350. 
 ty possessor of personal property, 351. 
 
 competent to show character of possession, 351. 
 
 must be confined to that subject, 351. 
 
 admissible even though favorable to declarant, 351. 
 
1222 INDEX. 
 
 REFERENCES ARE TO SECTIONS. 
 
 DECLARATIONS (continued) — 
 'by those in possession of land, 352. 
 
 when admissible in disparagement of title, 352. 
 when admissible though favorable to declarant, 352. 
 test of admissibility, 352. 
 
 of tenant, when admissible against landlord, 352, 
 possession must be shown, 353. 
 
 how shown, 353. 
 proper to show character of possession, 354. 
 
 not to change record title, 354. 
 as to boundary lines, when competent, 355. 
 of agents, when admissible. See Agents, 356, 357, S58. 
 
 of corporations, 357. 
 of testator, parol proof of. See Wiu-s, 479-484. 
 
 rejected, when no latent ambiguity, 480. 
 
 at time of making will, 481. 
 
 to show mental condition, 482. 
 
 how limited, 483. 
 
 as to revocation, 484. 
 
 DECLARATIONS OP WAR, judicial notice of, 107. 
 
 DECREE. See Judgments. 
 
 DEDICATION, when presumed, 76 n. 8. 
 acquiescence constituting, 275 n. 79. 
 judgments to prove, against strangers, 588 n. 66. 
 
 DEDIMTJS POTESTATEM, depositions taken, 636, 647, 648. 
 
 DEEDS. See Admissions, Construction, Conveyances, Documents, Es- 
 TOPPEi,, Statute op Frauds, Proop to Explain Writings. 
 presumption arising from spoliation of, 18 n. 45. 
 presumption as to their due execution and delivery, 50, 78. 
 dates of, presumed correct, 51 n. 73. 
 of partition, when execution of presumed, 76 n. 4. 
 best evidence of, 201 n. 12. 
 
 when lost, 212 n. 70. 
 parol proof of execution of, 203 n. 18, 204. 
 proof of contents by parol admissions, 207 n. 34, 28 n. 36. 
 secondary evidence as to the contents of, 218 n. 20. 
 when recorded, proved by certified copies, 225. 
 estoppel by. See Estoppel, 281-283. 
 thirty years old, admissible without proof of execution, 308. 
 
 must come from the proper custody, 309. 
 recitals In, to prove pedigree, 315. 
 trusts created by recitals in, 418. 
 parol proof to correct mistake of date of, 438 n. 29. 
 
INDEX. 1223 
 
 EEFEBENCES ABE TO SECTIONS. 
 
 DEEDS (continued) — ' 
 
 parol proof that they are mortgages, 446, 447. 
 delivered in escrow, 471. 
 and grants, parol proof as to usage in, 461. 
 parol proof to explain, 485. 
 
 ■where never had legal existence, 485 
 when contrary to public policy, 485. 
 to show duress and fraud, 485. 
 
 time of execution and delivery, 485. 
 erroneous description of party, 485. 
 aliter, when description inherently uncertain, 485. 
 to explain latent ambiguity, 485. 
 to Identify the land, 485. 
 
 but not to contradict the deed, 485. 
 of reservation inadmissible, illustrations, 486. 
 
 aliter, as to collateral agreements, 486. 
 Of warranties, 487, 488. 
 
 when acceptance of deed waives parol agreement as to, 487. 
 admissible when not inconsistent with deed, 488. 
 covenants as to quality, 488. 
 of deficiency of land In deed, 489. 
 
 equitable relief, 489. 
 of acknowledgments, 490. 
 
 between parties, only priyia facie, 490. 
 fraud, duress and- collusion, 490. 
 as to materially defective a;cknowledgment, 490. 
 as between iona fide purchasers, 490. 
 registries of, as evidence, 508 n. 66, 509. 
 as evidence, effect of recording acts, 519, 522. 
 
 provable by copies, when recorded, 521, 522 n. 60. 
 statutes affecting same, 537. 
 
 federal statute as to proof of, by copy, 538 n. 97. 
 effect of alterations, 557, 559, 561. 
 former strict rule, 557. 
 modern rule, 557. 
 
 distinguished from spoliation, 557. 
 Immaterial, effect of, 559. 
 blanks In, filling of, 561. 
 consent to alterations in, when implied, 561. 
 unauthorized filling of blanks in, 562. 
 
 eflect of, 562. 
 presumption, when alterations made in, 563, 564. 
 at common law husband could not witness, to wife, 733 n. 54. 
 rule as to confidential communications to attorneys Includes, 749 n, 
 
 62, 750, 751. 
 Impeachment of attesting witness, 856. 
 
1224 INDEX. 
 
 EEFERBNCES ABE TO SECTIOITS. 
 
 DB FACTO CORPORATION, what necessary'to show existence of, 55. 
 DB FACTO OFFICBRS. See Best Evidence, Coeporations, Municipal 
 
 COKPOEATIONS, MUNICIPAL OFFICERS, OFFICEES, PUBLIC OFFICERS, PEEt 
 SUMPTIONS. 
 
 DBFAXJLT, judgments on. See Judgments. 
 
 DBFECTIVB RBCORDS, evidence for some purposes, 521. 
 
 DEFENDANT. See Parties. 
 
 DEFICIENCY of land in deed, parol proof of, 489. 
 
 DEFINITIONS, of evidence, 1, 3. 
 of proof, 4. 
 
 of demonstrative evidence, 5. 
 of moral evidence, 5. 
 of direct evidence, 6. 
 of positive evidence, 6. 
 of circumstantial evidence, 6. 
 of competent evidence, 7. 
 of satisfactory evidence, 7. 
 of cumulative evidence, 8. 
 of real evidence, 8. 
 of primary evidence, 8. 
 of best evidence, 8. 
 of secondary evidence, 8. 
 of sufficient evidence, 7. 
 of prima facie evidence, 8. 
 of conclusive evidence, 8. 
 of phrase "proof to a moral certainty," 5. 
 of phrase "teyond a reasonable doubt," 5. 
 of presumption, 9, 9 n. 1. 
 of presumption of fact, 10. 
 of presumption of law, 11. 
 of conclusive presumption of law. 
 of absolute presumption of law. 
 of public statutes, 113. 
 of relevancy attempted, 135, 126. 
 of "burden of proof," 176. 
 of an admission, 235. 
 of a confession, 235. 
 of a variance, 232. 
 of hearsay, 297. 
 of lis mota, 311. 
 of dying declaration, 331. 
 of res gestae, 344. 
 of latent ambiguity, 472. 
 
INDEX. 1225 
 
 EEFEKENCES ABE TO SECTIOKS. 
 
 DEFINITIONS (continued) — 
 of patent ambiguity, 473. 
 of document, BOO. 
 of public document, 500. 
 of office copies, 523. 
 of certified copies, 523. 
 of examined copies, 523. 
 of "common usage," 649. 
 of competency of witness, 712. 
 of accomplice, 768. 
 under statutes as to transactions with deceased or incompetent, 
 
 of adverse party, 773. 
 , of heir, 774. 
 
 of representative, 774. 
 
 of executor and administrator, 774. 
 
 of transaction, 785. 
 of rebutting evidence, 809. 
 of leading question, 816. 
 
 DEGRADE, questions tending to . See Witnesses, 830-843. 
 
 DEGREES of secondary evidence, 228. 
 
 DECISIONS, of sister state, when judicially noticed, 121 n. 96. 
 
 DELIVERY of negotiable instruments, presumption from, 49. 
 of writing, when presumed, 50. 
 of account stated, effect of, 57, 287. 
 of goods, when presumed, 57. 
 of goods under statute of frauds, 428. 
 of instrument, parol proof of, 471. 
 of negotiable paper, parol proof of, 495. 
 of letters. See Lettees. 
 
 DEMAND, claim if none made when persumed invalid, 57. 
 
 failure to make, as element in presumption of payment from lapse of 
 
 time, 68 n. 66. 
 parol proof of, 203 n. 18. 
 on trial as admission of guilt, 287. 
 of payment, parol agreement to waive, 497. 
 a "transaction," 785 n. 89. 
 
 DEMEANOR, of party, when relevant, 138. 
 
 of witness, as affecting credibility, 828, 902. 
 
 DEMONSTRATION by evidence usually impossible, 
 
 DEMONSTRATIVE EVIDENCE, defined, 5. 
 
1226 INDEX. 
 
 EEFEEBNCES ARE TO SECTIONS. 
 
 MJMURRBR admits all facts whicli are well pleaded, 273. 
 such admissions not to be used in another suit, 273. 
 effect of, as evidence, 273, 596. 
 
 DENTIST, communications to, not privileged, 759 n. 53. 
 not a "surgeon," 759 n. 53. 
 
 DEPARTMENT RECORDS, provable by copies, 539. 
 federal statutes as to, 539. 
 statutes must be strictly followed, 540. 
 what sufficient authentication, 540. 
 effect of the statutes, 541. 
 
 DEPOSIT, place of. See Custody. 
 
 In banks, judicial notice of mode of withdrawing, 123 n. 7. 
 
 DEPOSITIONS, as admissions, 274. 
 ex parte, mere hearsay, 299. 
 
 where witness testifying in former trial is out of state, 311. 
 not necessary to take that of absent attesting witness, 529. 
 former practice. 
 
 not admissible at common law, 634. 
 
 ancient mode of examining absent witnesses, 634. 
 allowed in chancery, 635. 
 
 bills to perpetuate testimony, 635. 
 de hene esse, 635. 
 under statutes, 636. 
 
 de bene esse, 636, 637. 
 on commission, 636. 
 taken in foreign country, 700. 
 by commission, 700. 
 by letters rogatory, 700. 
 when resorted to, 700. 
 to perpetuate testimony, 701. 
 
 In state and federal courts, 701. 
 of adverse party, use of, under statutory discovery, 703, 704. 
 of- deceased or incompetent person, 781. 
 of adverse party, 781. 
 
 effect when taken by representative, 781. 
 impeachment by contradictory statements in, 847. 
 
 DEPOSITIONS IN FEDERAL COURTS, 637-G55. 
 de bene esse, statutes regulating, 637. 
 
 when taken, 637. 
 of what witnesses, 637, 638. 
 
 absence of witness, when presumed to continue, 638. 
 taking deposition not compulsory, 338. 
 distance from place of trial, 638. 
 of parties, 638. 
 
INDEX. 1227 
 
 BEFERENCSES ABE TO SECTIONS. 
 
 DEPOSITIONS IN FEDERAL COURTS (continued) — 
 before whom to be taken, 637, 639. 
 officers not named In notice, 639, 641. 
 notice to show the cause of taking, 637, 639. 
 to be reasonable, 640, 641. 
 
 Illustrations, 640. 
 of adjournment, 640. 
 names of witnesses, 641. ' 
 technical defects in notice, 641, 652, 662, 669, 670. 
 
 waiver of, 641. 
 how served, 642. 
 
 by any person, 642. 
 when dispensed with, 642. 
 mode of taking, 643. 
 
 of administering oath, 643. 
 deposition to be subscribed by party, 644. 
 certificate, what to contain, 713, 644. 
 as to interest of officer, 644. 
 as to his authority to act, 644. 
 names of parties, 644. 
 place of taking, 644. 
 evidence of what, 644. 
 deposition, how delivered, 644. 
 waiver of objections, 645. 
 
 by cross-examining witness, 645. 
 by failure to object, 645. 
 by consent, 646. 
 depositions decUmus potestatum or on commission, federal statute 
 as to, 647. 
 commission not a matter of course, 647. 
 procedure based on affidavit, 647. 
 commissioners, how named, 648. 
 
 who may act, 648. 
 Interrogatories, 648. 
 notice, requisites of, 648. 
 
 party cannot object that he has given no notice, 648. 
 parties not to appear at taking, 648. 
 "common usage," meaning of, 649. \ 
 
 testimony written down by party, 649. 
 testimony of adverse party, 649. 
 control over deposition by court, 650. 
 
 use by either party, 650. 
 may be several commissioners, 651. 
 derive authority from court, 651. 
 only one acting, 651. 
 return prima facie evidence of facts, 651. 
 oath presumed, 651. 
 
1228 INDEX. 
 
 KEFEEENCES ARE TO SECXIOTfS. 
 
 DEPOSITIONS IN FEIDERAL COURTS (continued) — 
 error in formal parts, 652. 
 interrogations, general and special, 652. 
 effect, if not answered, 652. 
 compelling witness to attend, 653, 668. 
 attachment, 653. 
 production of documents, '653. 
 in equity practice, 654, 655. 
 
 may be taken orally or on interrogatories, 654. 
 
 duties of examiner, 654. 
 
 court may assign time for taking, 654. 
 
 DEPOSITIONS UNDER STATE STATUTES, 656-699. 
 general practice, 656, 657. 
 
 on commission and de bene esse, 656. 
 
 notice, 656, 661. 
 statutes to be complied with, 658, 662, 670. 
 
 liow compliance shown, 659, 660. 
 
 what certificate need not state, 659, 660. 
 
 substantial defects in, 660. 
 
 requisites of notice, 661. 
 
 full time allowed, 661. 
 
 "reasonable" notice, 661, 662. 
 
 names of witnesses, 662, 670. 
 
 adjournment, 662. 
 
 on whom notice to be served, 663. 
 
 place of taking, 664. 
 
 several at same time at different places, 664. 
 mode of talcing, 665, 669. 
 
 in presence of officer, 665, 669. 
 
 answers prepared in advance, 665. 
 
 stenographers, 665. 
 
 in typewriting, 665. 
 
 interpreters, 666. 
 who may take depositions, 667. 
 
 to be impartial, 667. 
 
 cannot delegate power, 667. 
 
 must not be attorney in case, 667 n. 82. 
 
 nor clerk for either attorney, 667 n. 82. 
 
 officer of state appointing, 668. 
 
 comity of states, 668. 
 
 returning deposition, 669. 
 
 mode of reducing to writing, etc., 669. 
 irregularities, 670. 
 
 mistakes in names, 670. 
 
 other Irregularities, 670. 
 
 failure to subscribe each sheet, 670 n. 90. 
 
 to properly deliver, 670 n. 90. 
 
INDEX. 1229 
 
 EEFEEENOES ABE TO SECTIONS. 
 
 DEPOSITIONS UNDER STATE STATUTES (continued) — 
 papers not properly attached, 670 n. 90. 
 mistake In endorsement, 670 n. 90. 
 In certificate, 670 n. 90. 
 seal omitted, 670 n. 90. 
 waiver of oijeetions, 671. 
 
 by cross-examining the witness, 671. 
 
 by consent, 671. 
 
 by appearing and objecting to questions, 671. 
 
 by mere presence, effect of, 671. 
 
 to formal matters, 671. 
 
 to commissioner, 672. 
 
 waiver, if no objection made, 673. 
 
 to form, made at time of taking, 673. 
 
 to substance, made at trial, 673, 676. 
 
 when no appearance made, 673. 
 
 more general objections, 674, 676. 
 
 objections- to be renewed, 675. 
 
 deposition once read without objection, 675. 
 
 objections to answers, 676. 
 
 when made, 676. 
 objections, statutory provisions as to, 677, 686. 
 when to be made, 677, 686. 
 
 effect, when cause for taking no longer exists, 678, 680. 
 
 party offering, to show that cause continues, 678. 
 
 temporary absence or illness, 678. 
 
 when witness is present in court, 678. 
 
 modifications of the rule by statute, 679, 680. 
 
 continuance of cause, how inferred, 680. 
 
 may be presumed from circumstances, 680. 
 
 where witness has become unable to testify, 680. 
 use of in other actions, 681. 
 
 where party and issues be substantially same, 681. 
 use on second trial, 682. 
 
 when new parties joined, 682. 
 
 Issues and parties to be substantially same, 683. 
 
 or In privity, 683. 
 when witness dead or beyond jurisdiction, 683. 
 control and use of depositions, 684. 
 vested In court, 684. 
 
 use of, when taken by adverse party, 684. 
 use of part of depositions, 684. 
 
 right to -Introduce other parts, 684. 
 competency of, 685. 
 
 who may deny, 685. 
 
 effect of using deposition of adverse party, 685. 
 
 not relevant merely because taken by other party, 685. 
 
1230 INDEX. 
 
 REFERENCES AHE TO SECTIONS. 
 
 DEPOSITIONS UNDER STATE STATUTES (continued) — 
 suppression of, practice by motion, 686. 
 
 because of interrogatories, when made, 686. 
 before taking, 686. 
 usually after return, 686. 
 to be made before trial, 686. 
 objections to materiality of, made at the trial, 686. 
 In discretion of court, when, 686. 
 grounds for suppression, 687. 
 
 taken unfairly, without authority, etc., 687. 
 party deprived of cross-examination, 688. 
 
 qualification of rule, 688. 
 refusal of witness to answer, 689. 
 
 conflict as to rule, 689. 
 non-oompllance with statute, 690. 
 Illustrations, 690 n. 19. 
 not or mere Irregularities, when, 691. 
 of parts of depositions, 691. 
 not because of Improper questions, 691. 
 for other objections, 692. 
 
 that questions have been previously read by witness, 
 
 692. 
 because of erasures and interlineations, 692. 
 objections, must be definite, 692. 
 correction of, 693. 
 amendments to officer's return, 693. 
 
 when allowed, 693. 
 certificate of commissioner, 644, 694. 
 to be attached to deposition, 694. 
 requisites of, 694. 
 
 Irregularities in, when disregarded, 694. 
 caption, mistakes in, effect of, 695. 
 adjournment 696. 
 
 authority to continue or postpone, 696. 
 when possessed by commissioners, 696. 
 time of taking, 696. 
 
 presence of party at time of taking, 697. 
 when not allowed, 697. 
 retaking depositions, 698. 
 by leave of court, 698. 
 when defectively taken, 698. 
 when lost or suppressed, 698. 
 for newly discovered evidence, 698. 
 for further cross-e-tamination, 698. 
 exUibits to depositions, 699. 
 
 writings must be attached as, 699. 
 
INDEX. 1231 
 
 BBFERENCES ARE TO SECTIONS. 
 
 DEPOSITIONS UNDER STATE STATUTES (continued) — 
 
 non-residents not compelled to annex original documents, 699. 
 
 copies may be attached, 699. 
 if witnesses reside inside the state, 699. 
 effect of attaching incompetent documents, 699. 
 remedy, if documents not attached, 699. 
 witnesses attending taking of, privileged from arrest, 805 n. 92. 
 impeachment by contradictory statements in, 847. 
 used to refresh memory, 875, 877 n. 52. 
 
 DEPUTY of officers, admissions by, 238. 
 certificate by 525. 
 effect on surety of judgment against, 592. 
 
 DESCEJNT. See Admissions, Deci,arations, HusnAND and Wife, PEDioimE. 
 
 DESCRIPTION OF LANDS in deed, parol proof of error in. See Pabol 
 Evidence to Explain WarnNGS, 485. 
 In wills, parol evidence iio Identify, 476, 478. 
 
 DESCr "PTION OP PERSONS, declarations as to, when hearsay, 297, n. 4. 
 in wills, parol evidence to identify, 477, 478. 
 
 DESERTION of soldier, best evidence of, 200 n. 11. 
 
 DESIGN to mislead, in estoppel, 279. 
 
 DESTRUCTION of evidence, presumption from, 17, 18. 
 of documents, presumption from, 18. 
 if by mistake not spoliation, 21. 
 
 of document, what facts sufficient to show, 213, 214. 
 of will, what sufficient to revoke it, 484. 
 
 DETECTIVE when not an accomplice, 770 n. 62. 
 credibility of, 901. 
 
 DEVIATION from direct route, effect on privilege from arrest, 806. 
 
 DEVISE, parol evidence to identify property, 476. 
 
 DEVISEE, admissions of executor or administrator, not admissible 
 against, 253. 
 bound by judgment against testator, 587. 
 effect on heirs of judgment against, 587. 
 when not included under "heirs and representatives," 774. 
 
 DEVISOR, admissions of, against devisee, 242. 
 
 DIAGRAMS, relevancy of, 139. 
 inspection of, 411. 
 
1232 INDEX. 
 
 REFEEENCES ABE TO SECTIONS. 
 
 DICTIONARY, refreshing memory from, 132. 
 admissibility of, 578 n. 83. 
 
 DILIGENCE in searctiing for lost Instrument, 213, 214. 
 to be shown to admit secondary evidence, 213, 214. 
 degree depends on circumstances, 213, 214, 215. 
 examples of what is not due diligence, 213 n. 82. 
 what is sufficient proof of loss, 214. 
 all sources of information to be exhausted, 214. 
 time of search, 215. 
 in searching for attesting witness, 529. 
 
 DIPLOMATIC OOREIESPONDENGE. privileged, 762. 
 
 DIRECT EVIDENCE, defined, 6. 
 weight of, 899. 
 
 DIRECT ATTACK on Judgments, presumptions of regularity do not 
 apply in, 39. 
 
 DIRECT EXAMINATION. See Witnesses, 809-8*19. 
 
 DIRECTION of verdict. See Pkovince or Judge and Jubt, 174. 
 made on opening statement of attorney, 257. 
 
 DIRECTOR, declarations of, not binding on corporation, 2G8 n. 22. 
 
 DIRECTORIES, inadmissible as histories, 584 n. 39. 
 
 DISABILITY, presumption of title from possession does not arise against 
 one under, 82. 
 
 DISASTER. See Common Disaster. 
 
 DISCHARGE in bankruptcy, best evidence of, 200 n. 11. 
 of witness, when arrested, 806. 
 
 DISCLOSURES. See Conitdentiai, Communications, Privileged Com- 
 
 MmsnCATIONS. 
 
 DISCONTINUANCE, effect of, as evidence, 596. 
 
 DISCOVERY. See Adverse Party, Parties, Witnesses. 
 bill of, general nature of, 702. 
 
 evidence must be material, 702. 
 does not extend to what facts, 702. 
 right of either party to demand, 702. 
 limitations upon, 702. 
 statutory rules as to, 703, 704. 
 
 examination of adverse party before trial, 703, 704. 
 practice under statutes, 703. 
 
INDEX. 1233 
 
 BEFEBENCES ABE TO SECTIONS. 
 
 DISC»VERT (continued) — 
 
 use of depositions under, 703. 
 In Federal courts, 704. 
 effect of statutes upon former remedy, 705. 
 
 conflict as to, 705. 
 scope of the examination, 706, 707. 
 
 conflict as to, 706. 
 preparation for trial, 706. 
 penalty for refusal to answer, 706. 
 examination under control of the court, 707, 711. 
 not to be oppressive, 707. 
 what questions not allowed, 707. 
 witnesses must be parties to record, 707. 
 nominal parties and sureties, 707. 
 officers of corporations, 707. 
 examination of, 707. 
 
 agents and employes of corporations, examination of, 707. 
 privilege of witnesses, self-crimination. See Confidential Com- 
 munications, Privileged Communications. 
 when compelled to disclose fraud, 708. 
 confldential communications, 708. 
 to attorney, 708. 
 of husband and wife, 708. 
 error to refuse right to examine adverse party, 708. 
 inspection of books and papers. See Inspection of Pebson, Inspeo 
 TioN of Abticles. 
 at common law, 709. 
 of documents in United States courts, 710. 
 
 effect of refusal to produce, 710. 
 procedure, 710. 
 before trial, 710. 
 reasonable notice necessary, 710. 
 does not supercede bill of discovery, 710. 
 
 nor subpaina duces tecum, 710. 
 does not apply to equity cases, 710. 
 
 of books of corporations in actions under Anti-Trust Act, 710. 
 of books and papers in state courts, 711. 
 statutes regulating, 711. 
 upon affidavit and petition, 711. 
 requisites of, 711. 
 
 discretion of court as to granting, 711. 
 as to mode of examining, 711. 
 not granted for what purposes, 711. 
 objects of, 711. 
 not made evidence by, 711. 
 privilege of witness, self-crimination, 711. 
 
 See Witnesses, 884-892. 
 by subpoena duces tecum, 801. 
 78 
 
1234 INDEX. 
 
 EEFEEBNCES ABE TO SECTIONS. 
 
 DISCREDIT, how far party may discredit his own witness, 853, 854. 
 
 DISCRETION OP COURT, as to judicial notice of facts, 105. 
 as to materiality of evidence, 139. 
 as to relevancy of similar acts, 145. 
 
 of similar effects, 164. 
 of similarity of conditions, 169. 
 as to irrelevant testimony, 172, 173. 
 as to granting of right to open and close, 198. 
 as to foundation for secondary evidence, 212, 214. 
 as to allowing or refusing amendments, 233. 
 
 not reviewed unless abused, 233. 
 as to order of proof, partnership, 251. 
 as to order of proof, conspiracy, 253. 
 as to qualifications of experts, 369, 387. 
 as to hyiKjthetical questions, 377. 
 as to cross-examination of experts, 389. 
 as to instructions as to weight of expert testimony, 392. 
 as to allowing inspection of person, 397. 
 as to allowing inspection by jury, 398. 
 as to experiments and tests, 403. 
 as to granting ^iew, 405, 406. 
 
 when subject to review, 406. 
 as to diligence in search for subscribing witness, 529. 
 as to reading scientific books to jury, 580. 
 as to suppression of deposition, 686. 
 
 as to extent of examination of adverse party before trial, 707. 
 as to granting right to inspect books and papers, 711. 
 as to mode of examination, 711. 
 
 excluding witnesses, 807. 
 as to instruction as to conviction on uncorroborated testimony of an 
 
 accomplice, 769. 
 as to transactions with deceased or incompetent after waiver of 
 
 privilege, 783. 
 as to granting writ of habeas corpus ad testificandum, 803. 
 as to receiving testimony of witnesses ordered excluded, 808. 
 order of proof lies in. See Order ofPeoop, 809-811. 
 abuse of discretion, error, 811, 814, 819, 821. 
 
 when subject to review on appeal, 811 
 as to recalling witness, 814. 
 where examination needlessly protracted, 814. 
 
 court may interfere on own motion, 814, 900. 
 limiting number of witnesses, 814. 
 as to cumulative evidence, 814, 900. 
 as to leading questions, 819, 824. 
 
 review on appeal, 819. 
 
 error, how cured, 819. 
 
INDEX. 1235 
 
 EEFEBENCE3 ABE TO SECTIONS. 
 
 DISCRETION OF COURT (continued) — 
 
 as to limits of cross-examination, 821, 826, 828. 
 
 as to contradicting witness to show bias, 829. 
 
 as to cross-examination on collateral questions, 833. 
 
 when reviewable on appeal, 833, 834. 
 as to method and extent of cross-examination, 842. 
 as to cross examination tending to disgrace, 831, 833. 
 
 illustrations of questions allowed, 832 n. 29. 
 
 illustrations of questions ruled out, 833 n. 30. 
 as to cross-examination of party, 836. 
 
 in criminal cases, 837. 
 as to form of question in impeachment, 846. 
 
 as to time of Introduction of writing used for impeachment, 847. 
 as to range of inquiry as to reputation for veracity, 859. 
 as to cross-examination of impeaching witness, 864. 
 as to examination of witnesses, 873. 
 as to compelling witnesses to produce memoranda, 876. 
 
 when used for refreshing memory, 876. 
 
 manner of using, 880. 
 
 DISEASE, opinions of physicians as to, 368, 378. 
 of animals, expert testimony as to, 382. 
 
 DISGRACE, questions tending to. See Witnesses, 830-843. 
 
 DISOBEDIENCE OF WITNESSES. See Contempt. 
 
 DISPOSITION of property under wills, parol proof as co. See Wnxs, 
 475-479. 
 
 DISPOSITION OP ANIMALS, when relevant, 165. 
 
 DISPUTABLE PRESUMPTIONS of law, 11. 
 
 DISSOLUTION OF MARRIAGE. See Divobce. 
 
 DISSOLUTION OF PARTNERSHIP, power of partner to bind firm after, 
 249, 250. 
 admissions of partner, when competent after, 250. 
 
 DISTANCE, judicial notice of, 127 n. 41. 
 as cause for taking depositions, 65S. 
 which witness may be compelled to travel, 797. 
 
 DISTRICT- ATTORNEY, confidential communications to, 749. 
 
 DISTRICT OF COLUMBIA, judicial notice of laws relating to, 112 n. 44. 
 
 DIVISIONS, civil, judicial notice of, 108, 127 n. 41. 
 
1236 INDEX. 
 
 BEFEKENCBS ABB TO SECTIONS. 
 
 DIVORCE, when presumed, 14, 101. 
 
 as affecting presumption of legitimacy, 94. 
 character, relevancy of, in action for, 148 n. 91. 
 degree of proof, when adultery is charged, 195 n. 55. 
 best evidence of decree in, 200 n. 11. 
 admissions of parties in actions for, 262. 
 
 to be scrutinized closely, 262. 
 inspection of the person to prove impotency, 395. 
 judgments to prove, against strangers, 588 n. 67. 
 decree in, judgment in rem, 607. 
 
 also partially in personam, 607. 
 effect of, in other countries or states, 607. 
 
 by publication of summons, 607. 
 conclusive on whom, 607, 608. 
 as to what, 608. 
 
 cause of divorce, 608 n. 22. 
 existence of marriage, 608 n. 22. 
 dissolution of marriage, 608 n. 22. 
 right to divorce, 608 n. 22. 
 effect of, on competency of confidential communications, 736.'' 
 competency of husband and wife in actions for, 743, 746. 
 
 DOCKET, judicial notice of entries in, 124. 
 admissible when, 621. 
 
 DOCTOR. See Conitdentiai. Communications, Physictans. 
 
 DOCUMENTS. See Authentication, Copies, Records, Writings. 
 
 presumption from wilful destruction, suppression, alteration or fab- 
 rication of, 18. 
 presumption of their due execution, 50. 
 
 from recitals in, 50. 
 presumed executed in proper order, 50. 
 when presumed duly stamped, 50 
 
 of a public nature, best evidence of, 200 n. 11, 201 n. 12. 
 identity and genuineness may be proved by parol, 203 n. 18. 
 In foreign countries, when proved by parol, 205. 
 parol evidence as to admissions concerning, 207. 
 
 conflict as to the rule, 208. 
 parol evidence of contents destroyed, or suppressed, 18. 
 presumptions from failure to produce on notice, 20. 
 cannot be offered in evidence after failure to produce on notice, 21. 
 letter-press copies and photographs of, not best evidence, 209. 
 duplicates and triplicates of, primary evidence, 209, 225. 
 in counterpart, rule as to best evidence, 209. 
 best evidence as to contents of, when lost, 212, 216. 
 preponderance of proof sufficient to prove contents of, when lost, 227. 
 
INDEX. 1237 
 
 BEFERENCES ABE TO SECTIONS. 
 
 DOCUMENTS (continued) — 
 
 secondary evidence of, after failure to produce on notice, 217, 222. 
 copy not admissible, when original at hand, 222. 
 notice to produce, when not necessary, 223, 224. 
 not made evidence by notice to produce, 226. 
 
 right to inspect, then refuse to introduce, 226. 
 rule as to cross-examination as to writings, 231. 
 effect of statute in England, 231. 
 rule in America, 231. 
 ancient. See Ancient Documents, 308-309. 
 
 explanation of, by parol. See Paeol Evidence to B(xpiain Weitings. 
 defined, 500. 
 
 classes, public and private, 500. 
 public, defined, 500. 
 classes of public documents, 500. 
 public documents. 
 
 statutes. See Statutes, 501. 
 
 foreign laws. See Laws op Foeeiqn Countbies, 502, 503. 
 laws of sister states. See Laws of Sister States, 504-506. 
 acts of state, 507. 
 proclamations, 507. 
 legislative journals, 507. 
 other public documents, 507, 
 offlcial registers, 508-511. 
 
 books of public offlcers, 508. 
 facts in, how proved, 509. 
 
 when prima facie evidence of facts set forth, 508, 509. 
 not evidence of facts not properly therein, 509. 
 should have been promptly made, 509. 
 those not required to be kept by statute, 509. 
 registers of marriages, births and deaths, 510, 511. 
 whien competent, 510, 511. 
 competent as to what facts, 511. 
 ship registers, 512. 
 log-books, 513. 
 
 records of municipal corporations, 514. 
 how authenticated and proved, 515. 
 records of private corporations. See Cobpokations, 516-518. 
 account books of, 518. 
 {records of conveyance, 519, 521. 
 effect of recording acts, 519. 
 without statute, such record not evidence, 519. 
 statute must be complied with. Illustrations, 519, 537. 
 certificates of acknowledgments, 520. 
 liberally construed, 520. 
 omissions in, 520. 
 prima facie evidence of compliance, 520. 
 
1238 INDEX. 
 
 REFERENCES ARE TO SECTIONS. 
 
 DOCUMENTS (continued) — 
 
 presumption of due execution, 520. 
 
 subject to rebuttal, 520. 
 defective records, 521. 
 
 admissible for some purposes, 521. 
 statutes affecting proof of documents, 537. 
 records, pviblic in their nature, 'provable iy copies, 522. 
 reasons for rule, 522. 
 Illustrations, 522 n. 60. 
 classes of copies of records, 523. 
 exemplifications, 523, 524. 
 examined or sworn copies, 523, 524. 
 office copies, 523, 524. 
 certified copies, 523. 
 copies of records as evidence, 515, 522, 524, 525. 
 how authenticated, 524. 
 by whom, 525. 
 statutes to be followed, 524. 
 certificate, what to contain, 525. 
 
 of collateral facts, 525. 
 effect of, as evidence, 525. 
 
 original, always competent, 525. 
 other secondary evidence competent, 525. 
 execution of, how proved, 526. 
 
 attested documents, how proved. See Attesting Witnesses, 527-537 
 proof of non-judicial records. See Certificates, Records, 538-544. 
 proof of handwriting on. See Handwriting, 545-556. 
 alterations of. See Alteration, 557-566. 
 books of account See Books of Account, 567-577. 
 scientific hooks. See Scientific Books, 578-580. 
 photographs. See Photographs, 581. 
 drawings, 581. 
 
 photographic copies of public documents, 581. 
 newspapers. See NBWsPArEBS, 582. 
 letters. See Letters, 583. 
 histories. See Histories, 584. 
 judgments. See Judgments, 585-620. 
 records of courts. See Records of Courts, 021-630. 
 returns of oflacers. See Returns of Officees, 631-633. 
 statutes affecting proof of' documents, 537. 
 as to conveyances, 537. 
 acknowledgment prima facie proof, 537. 
 provisions must be complied with, 537. 
 effect of clerical errors, 537. 
 statutes as to proof of signatures, 537. 
 attestation, when to be made, 537. 
 production of, for taking depositions, 653. 
 
INDEX 1239 
 
 BEFEBENOES AKE TO SECTIONS. 
 
 DOCUMENTS (continued) — 
 
 attached to depositions, 699. 
 
 production of, compelled by bill of discovery, 702. 
 
 Inspection of, under federal statutes. 710. 
 
 included in confidential communications to attorney, 750. 
 
 DOLLARS, judicial notice as to, 126. 
 
 DOMESTIC GOVERNMENTS, judicial notice of, 106. 
 
 DOMESTIC JUDGMENTS. See Judgments, 611-613, 619. 
 
 DOMICILE. See Residence. 
 
 of Infant, presumed to be with parent, 99. 
 declarations as to, as part of res gestae, 347. 
 
 DONEE, incompetent as to transactions with a deceased or incompetent, 
 779. 
 
 DOUBT, reasonable, benefit of, 16, 195, 899. 
 In civil cases, 16, 192, 195. 
 as to facts in refreshing memory. See Refkeshino Mbmobt, 880, 881. 
 
 DOWER, parol proof to show bequest in lieu of, 475 n. 27. 
 judgment in divorce, how far conclusive on, COS.* 
 
 DRAWINGS, as evidence, 581. 
 preliminary proof as to, 581. 
 
 DRUGS, judicial notice that tobacco is not, 128 n. 46. 
 expert testimony as to poisons, 379. 
 
 DRUNKENNESS, renders witness incompetent, when, 724. 
 cross-examination as to, to affect credibility, 832 n. 29. 
 effect on credibility, 901. 
 
 DUCES TECUM. See Subpoena Duces Tecum, 801, 802. 
 
 DUE CARE, when presumed, 185. 
 
 DUB PROCESS OF LAW, statutes as to recognizance by witness do not 
 deprive him of liberty without, 804. 
 
 DUMB PERSONS, competency of, 719. 
 
 DUPLICATES OR TRIPLICATES, each primary evidence, 209, 225. 
 
 DURATION OF LIFE, presumption of. See Peesumptions, 60-63. 
 tables as to, judicial notice of, 129. 
 admissibility of sjici tables, 578. 
 
1240 INDEX. 
 
 REFERENCES ARE TO SECTIONS. 
 
 DtTRBSS and fraud in procuring devise, 426. 
 shown by parol, 435. 
 upon testator, declaration of, to show, 482. 
 in deeds, parol proof of, 485. 
 in acknowledgment, parol proof of, 490i 
 
 DUST, damage done by, relevancy of collateral facts, 164. 
 
 DUTY. See Fidtjciabt Relations. 
 
 opinions as to. See Bxpebt Tbstimont. 
 of public officers, judicial notice of, 109. 
 
 DYING DECLARATIONS, admissibility of, 331-335. 
 defined, 331. 
 must relate to fiomicide, 331-333. 
 
 deatb of deceased to be substance, 331-333. 
 
 mere statements of opinion inadmissible, 334. 
 limitations to be carefully observed, 331-333. 
 to be in expectation of impending death, 332. 
 deathj when to occur, 332. 
 recovery, slight hope of, 332. 
 prior hope of recovery abandoned, 332. 
 subsequent hope of recovery, 332. 
 
 expectation of impending death, question for court, 332. 
 . such fact need not appear from declaration itself 
 332. 
 declarant must have been competent to testify, if alive, 333. 
 of those rendered incompetent by infamy, 333. 
 
 by want of religious belief and understanding, or insanity, 
 333. 
 of husband and wife competent against each other, 333. 
 when competent as part of res gestae, 334. 
 made orally, in writing or by means of signs, 335. 
 drawn out by leading questions, 335. 
 as to right "to meet witnesses face to face," 335. 
 used for purpose of impeachment, 848. 
 
 E. 
 
 ElASEMBNT, presumptions as to, 77. 
 
 BCXILBSIASTICAL LAW, judicial notice of, 121 
 
 BPFBCT, relevancy of collateral facts, 164. 
 
 BJECTMBNT, by one having possession with claim of right, 75. 
 
 declarations of one in possession, when admissible in action of, 352., 
 judgment in, bars trespass, 598. 
 statutes allowing new trials in, 598. 
 
INDEX. 1241 
 
 REFERENCES ABE TO SECTIONS. 
 
 ELECTIONS, of municipality, when presumed legal, 46 n. 48. 
 time of, for public officers, judicially noticed, 109. 
 
 ELECTRIC WIRES, damage from falling of, burden of proof, 184. 
 
 EMANCIPATION of Infants, presumption as to, 99. 
 
 EMBEZZLEMENT, relevancy of other acts of, 143. 
 good character not relevant, 155 n. 26. 
 
 EMINENT DOMAIN. See Condemnation Pkooeedings. 
 opinion as to value of lands taken, 388. 
 
 EMPLOYMENT, of witness by party, to show Interest, 828 n. 6. 
 
 ENDORSEMENTS. See Negotiable Papeb. 
 date of presumed correct, 51 n. 73. 
 parol evidence to vary, 431 n 1. 
 an negotiable paper, parol proof as to, 496, 497. 
 
 contemporaneous verbal agreement not admissible, 496. 
 
 w^n endorsement is In blank, 496. 
 
 qualifications of general rule, 496. 
 
 when made by one not a party, 497. 
 
 when Instrument is non-negotiable, 497. 
 
 when merely for accommodation, 497. 
 
 when for particular purpose, 497. 
 
 that no demand or notice need be given, 497. 
 
 alterations in, when consent Implied, 561 n. 46. 
 
 ENGINEERS, as experts, 381, 384. 
 
 ENGRAVEHS, as expert on handwriting, 556 n. 20. 
 
 ENLISTMENT OF SOLDIERS, best evidence of, 200 n. 11. 
 
 ENTRIES IN BOOKS. See Books of Accounts, Documents, Records, 
 Registers. 
 oi births, marriages and deaths, 316. 
 
 when competent to prove matters of pedigree. See Pedigree, 316. 
 by deceased persons in course of business, when admissible, 319, 320. 
 
 to be contemporaneous, 319. 
 
 illustrations of the rule, 319 n. 57. 
 made by persons, since become insane, 320. 
 
 beyond jurisdiction of court, 320. 
 
 living, when authenticated, 320. 
 recollection of facts recorded, not necessary, 321. 
 
 attesting witness to will, 321. 
 admissibilty of entries made by party himself, 322. 
 
 when part of res gestae, 322. 
 
 such entries how authenticated, 322. 
 
1242 INDEX. 
 
 EBFEEENCES ARE TO SECTION'S. 
 
 EQUITY. See Jxtdgmbnts, Mistake, Mobtqages, Refoematign. 
 amendments, liberal rule In, as to, 331. 
 
 depositions under equity practice. See Depositions, 635. 654, 655. 
 bills of discovery in courts of. See Discovert, 702-711. 
 competency of parties as witnesses, in proceedings in, 728. 
 error in reception of evidence, effect of, 897. 
 
 ERASURES in instruments. See Alteration, 557-566. 
 in depositions, ground for suppression, 692. 
 
 EIRROR. See Discretion or Cottet, Peovince of Judge and Jubt. 
 in admitting improper testimony, how cured, 173. 
 effect, when not prejudicial, 896, 897. 
 in excluding proper testimony, effect of, 896, 897. 
 
 ESCAPE, attempt to, as admission of guilt, 287. 
 
 ESCROW, parol proof that deed was delivered in, 471. 
 
 ESTATE, distribution of, when presumed, 65 n. 52. 
 settlement of conclusive, 609. 
 
 BSTATE-AT-WILL, when implied from parol lease, 414. 
 
 ESTATE OF DECEASED PERSON,, meaning of phrase, 790. 
 
 ESTOPPEL, as to denying corporate existence, 55 n. 97. 
 acts of persons in privity may constitute, 240. 
 tenant cannot deny title of landlord, 243. 
 as to questioning conclusiveness of award, when, 264. 
 estoppel hy conduct or acts. 
 
 as an admission, when not rebuttable, 275. 
 
 where one acquiesces in sale or transfer of property, 275. 
 adopts signature, knowing it to be forged, 275 n. 79. 
 conceals existence of mortgage, 275 n. 79. 
 leads public to believe that he has dedicated land, 275 n. 
 79. 
 as to erection of improvements on his land, etc., 275 n. 79, 278. 
 when corporation estopped to deny its own existence, 276. 
 
 when others estopped to deny same, 276 
 when one estopped to deny existence of partnership, 276. 
 cohabitation, estops parties to deny marriage, when, 276. 
 estoppel does not arise without fault, 277, 278. 
 acquiescence in boundary lines, 278. 
 axjt must be calculated to mislead, 279. 
 benefit of, by whom claimed, 280. 
 of general and notorious character, 280. 
 in pais, operates in favor of whom, 280. 
 
INDE3 
 
 EEPBBENCBS ABE TO SECTIONS. 
 
 1243 
 
 KSTOPPBL (continued) — 
 
 iy deed, effect given to statements In deeds, illustrations, 281. 
 as to title subsequently acquired by, 282. 
 benefit of, by wbom claimed, 282. 
 mutuality, 282. 
 
 privies, strangers to the transaction, 282. 
 grantee may assert title, not acquired from grantor, 282. 
 
 but not to avoid payment of purchase price, 282. 
 qualifications of general rule, 283. 
 
 general recitals not as conclusive as specific ones, 283. 
 must have been delivered, 283. 
 
 valid in every way, 283. 
 must be by parties sui juris, 283. 
 where the truth appears on face of writing, 283. 
 payment of rent, 284. 
 
 estops from denying relationship of landlord and tenant, 284. 
 licensee estopped to question licensor's title, 285 
 validity of patent, who estopped to deny, 285. 
 agents, when estopped to deny right of principal, 285. 
 bailee cannot deny title of bailor, when, 285. 
 
 qualification of the rule, 285. 
 acceptor of bill of exchange estopped to deny what facts, 286. 
 genuineness of signature, 286. 
 
 but not genuineness of rest of bill, 286. 
 or title of holder, 286. 
 
 ESTOVBR, right of, how shown, 301 n. 26. 
 
 EVIDBNCB. See Ordee of Pboop, 809-814. 
 exclusionary rules of, 1. 
 effect of jury system on rules of, 2. 
 definitions of, 1, 3. 
 distinguished from proof, 4. 
 discriptive terms of, demonstrative, 5. 
 
 moral, 5. 
 
 direct, 6. 
 
 circumstantial, 6. 
 
 cumulative, 8. 
 
 competent, 7. 
 
 satisfactory, 7. 
 
 primary, 8. 
 
 secondary, 8. 
 
 prima facie, 8. 
 
 real, 8. 
 
 conclusive, 8. 
 amount of, effect of presumption of innocence on, 16. 
 objection to, because of little weight, insufficient, 173. 
 
1244 INDEX. 
 
 EEFERENCES AEB TO SECTIONS. 
 
 EVIDENCE (continued) — 
 
 If legally insufDcient, rejected, 173. 
 
 Blight, -when sufficient to show possession of document with opponent, 
 218. 
 to prove relationship, 313. 
 Is view by jury, 408, 4M. 
 
 amount necessary to prove resulting trust, 422. 
 ■when may be Introduced after case is closed, 810. 
 
 EXAMINATION OF WITNESSES. See Witnesses, 809-819. 
 
 EXAMINED C»FY. See Copies. 
 
 of lost Instrument. See Copies, 521. 
 defined, 523. 
 as evidence, 524. 
 
 EXAMINERS for taking depositions, 654. 
 
 EXCEPTIONS to evidence, 893, 894. 
 
 EXCHANGE, bills of. See Negotiable Papeb. 
 
 EXCLAMATIONS, as part of res gestae, 349. 
 
 EXCLUSION, of evidence, effect of, when improper, 895. 
 of witnesses from court room, 807. 
 
 EXCLUSIONARY RULES, necessity for, 1. 
 
 EXCUSE of witnesses for failure to obey subptena, 79'9. 
 
 EXECUTION, issue and return of nulla hona, as rebutting presumption of 
 payment, 69 n. 69. 
 best evidence of levy of, 200 n. 11. 
 
 EXECUTION OF DOCUMENTS. See Attestinq Witnesses, Documents. 
 parol proof of, 471. . 
 how proved, 526. 
 ancient instruments, 531. 
 statutes affecting such proof, 537. 
 
 EXECUTIVE, judicial notice of, 109. 
 
 acts and communications of, privileged, 762. 
 
 EXECUTOR AND ADMINISTRATOR, admissions of deceased received 
 against, 242. 
 presumed to have performed their duty, 13 n. 27. 
 bond of, when presumed to have been given in open court, 37 n. 30 
 qualified, when presumed from lapse of time, 65 n. 52. 
 admissions of, do not bind heirs or co-representatives, 253. 
 aliter, if part of res gestae, 253. 
 
INDEX. 1245 
 
 BEFEBENCES ABE TO SECTIONS. 
 
 EXECUTOR AND ADMINISTRATOR (continued) — 
 not bound by admissions of heir, 253. 
 trust arising from fiduciary relations, 425. 
 bound by judgment against testator, 587. 
 effect on heir, of judgment against, 587 n. 53. 
 judgments against, as evidence, 587. 
 effect on surety, of judgment against, 591. 
 
 waiver of objection to privileged communications of testator, 761. 
 meaning of phrase, 774. 
 
 competency of, as to transactions with deceased. See Competency of 
 Witnesses, 772-796. 
 
 EJXEMPLARY DAMAGES, relevancy of financial standing. See Financiai, 
 Standing, 159-161. 
 
 EXEMPLIFICATIONS, defined, 523. 
 as evidence, 523. 
 
 EXEMPLIFIED COPIES, to prove records of courts. See Authentication, 
 Copies, Records of Coubts, 623, 624. 
 
 EXEMPTION of witnesses from arrest. See Witnesses, 805-806. 
 
 EXHIBITS to depositions, 699. 
 
 EXHUMATION OP BODY, when ordered by court, 399. 
 
 EXISTENCE. See Cobporate Existence. 
 presumptions as to continuance of, 58. 
 of statute, question for court, 117. 
 
 EXISTING STATE OF THINGS, presumpion of continuance of, 58-60. 
 presumption of, overcome by that of innocence, 101. 
 
 EXPECTATION OF LIFE, judicial notice of, 129. 
 in dying declarations, 332. 
 
 EXPERIMEHSTTS, relevancy of, 139. 
 before jury, 403. 
 out of court room, 407, 410. 
 by experts, 410. 
 
 where conditions same, 139, 410. 
 
 EXPERT EVIDENCE. See Expert Testimony, 367-392. 
 
 EXPERTS. See Expert Testimony, 367-392. 
 
 opinions of, when not proved by hearsay, 297 n 4. 
 
 fees of, 798. 
 
 when privileged from arrest, 806. 
 
 when not excluded from court room, 807. 
 
 number of may be limited, 814 n. 83. 
 
1246 INDEX. 
 
 BEFEBENCES ABB TO SECTIONS. 
 
 EXPERT TESTIMONY admissible upon wliat subjects in general, 359. 
 grounds of admission, 367. 
 qualifications of expert, 368. 
 how acquired, 368. 
 
 by experience, 368. 
 by study, 368. 
 of physicians, 368. 
 of lawyers, 368. 
 
 mere opportunity insufficient, 368. 
 preliminary questions for court, 369. 
 mode of proving, 369. 
 
 matter of discretion for court, 369. 
 mode of examination, 370, 371. 
 
 hypothetical questons. See Hypothetical Questions, 370, 37L 
 general rules. 
 
 expert not to decide questions of fact, 372. 
 
 nor usurp province of judge or jury, 372, 373, 376, 380. 
 illustratioils, 372 n. 61. 
 opinions hased on testimony heard or read, 374. 
 
 admissible only where no conflict in such testimony, 374. 
 opinions hosed on personal knowledge, 375. 
 
 questions need not be hypothetical in form, 375. , 
 
 basis laid by stating facts known, 375. 
 opinions 'based on hearsay, 376. 
 as to conclusions of law, 376. 
 as to questions of morals, 376. 
 as to particular subjects. 
 
 by physicians and surgeons, 378. 
 what questions proper, 378. 
 as to poisons, 379. 
 
 practical experience requisite, 379. 
 by chemists, 361, 379 
 
 as o blood stains, 361. 
 as to poisons, 379. 
 of mechanics and artisans, illustrations, 380. 
 as to railroads and their management, 381. 
 when competent, 381. 
 not competent as to negligence, 381. 
 as to agriculture, 382. 
 
 when competent, 382. 
 
 as to insurance matters, 383. 
 
 when competent 383. 
 
 as to increase of risk, 383. 
 questions as to which there is conflict, 383. 
 by surveyors, 384. 
 
 when competent, 384. 
 
 not to construe deeds, 384. 
 
INDEX. 1247 
 
 BEFEEENCES ABB TO SECTIONS. 
 
 EXPERT TESTIMONY (continued) — 
 
 by civil engineers, 384. 
 
 when competent. Illustrations, 384. 
 
 by miners, 384. 
 
 by nautical men, 385. 
 when competent, 385. 
 
 by millwrights, millers, 386. 
 
 by artists, photographers, 386. 
 
 by merchants, 386. 
 as to values, 387. 
 
 of land and personalty, provable by experts, 387. 
 Quallflcaticns of such experts, 387. 
 
 of services, 387. 
 
 by lawyers, physicians, nurses, artists, authors, 387. 
 
 effect of such testimony, 387. 
 as to amount of damages, 388. 
 
 usually incompetent, 388. 
 
 conflict in condemnation proceedings, 388. 
 cross-examination of experts, 389. 
 
 latitude allowed, 389. 
 
 matter rests in discretion of court, 389. 
 
 use of scientific books In, 579. 
 infirmity of, 390, 391. 
 
 compensation of experts, 390. 
 received with caution, 391. 
 when valuable, 392. 
 must be considered by jury, 392. 
 
 experiments as to handwriting in presence of jury, 403. 
 experiments made out of court by experts, 410. 
 competent to prove unwritten law, 502. 
 
 of foreign country, 502. 
 
 of sister states, 506. 
 as to handwriting. See Handwriting, 546, 556. 
 
 EXPLANATION of documents by parol. See Paeol Evidence to EJxplain 
 Weitings. 
 false or deceptive, as admission of guilt, 287. 
 of testimony, by witnesses, 846, 848, 852. 
 
 EXPLANATORY FACTS, relevancy of, 171, 172. 
 
 EXPLANATORY STATEMENTS, when relevant, 138. 
 
 part received, rest admissible, 293-295, 685, 782, 822, 848, 872, 873. 
 
 EXPRESSIONS, as to bodily feelings. See Bodily Feelings 349. 
 
 EXTENT of cross-examination, 842, 843. 
 
 EXTORTION, relevancy of similar acts, 144. 
 
 EXTRINSIC EVIDENCE of surrounding circumstances. See Parol Evi- 
 dence TO Explain Writings. 
 
1248 INDEX. 
 
 EETEEENCES ABB TO SECTI0N3. 
 
 FABRICATION of evidence, presumption from. 17, 20. 
 effect of, 17. 
 of documents, 18. 
 as admission of guilt, 287. 
 
 FACT. See Jtjdiciai, Notice, PRovnsrcE of Judge and Juby. 
 presumptions of, 10. 
 presumptions must be based on, 104. 
 judicial notice of. See Judicial Notice, 105-134. 
 raising reasonable inference, when relevant, 139. 
 too remote to be admitted, 137, 138. 
 
 apparently collateral may become relevant. See Relevancy, 141-145. 
 how affected by lapse of time, 145. 
 which lies peculiarly in knowledge of party, 181. 
 expert not to decide questions of, 372, 373. 
 
 FACTOR See Agent. 
 
 FAILURE, to produce evidence, presumption from, 19-21. 
 to produce witnesses, presumption from, 21. 
 to testify, inference from, 891. 
 
 FAILURE OF CONSIDERATION, relevancy of, in similar transactions, 140 
 n.43. 
 
 FALSA DEMONSTRATIO NON NOCET, 474. 
 
 FALSE IMPRISONMENT, burden of proof as to, 178 n. 16. 
 
 FALSE PRETENSES, relevancy of other acts of, 144. 
 
 FALSE REPRESENTATIONS, relevancy of character, 155 n. 26. 
 in civil cases, amount of proof as to, 195 n. 55. 
 declarations as to, when admissible, 350. 
 
 FALSUS IN UNO, PALSUS IN OMNIBUS, 903. 
 meaning of rule, illustrations, 903. 
 testimony must be material and known to be false, 903. 
 effect of, when corroborated, 903. 
 rule of permission, not mandatory, 903. 
 
 FAMILY. See Heirs, Husband and Wieb. 
 relevancy of financial standing of, 161. 
 conduct of,- In matters of insanity, 298. 
 of pedigree, 315. 
 
INDEX. 1249 
 
 BEFBEBNCBS ABB TO SECTIONS. 
 
 FAMILY BIBLE, entries In, as matters of pedigree, 31G. 
 
 FAMILY PORTRAITS, inscription on, as to matters of pedigree, 316. 
 
 FAMILY RESEMBLANCE, when relevant, 401. 
 
 FARMERS, as experts in agriculture, 382. 
 
 books of account of, when admissible, 571 n. 31. 
 
 FAST DAYS, judicial notice of, 129. 
 
 FATHER. See Husband and Wife. 
 
 conduct of, as affecting legitimacy, 96. 
 
 same name as son, when Intended, 100. 
 
 character of, In action for seduction and criminal conversation, 152. 
 
 FEDERAL COURTS, regularity of proceedings presumed, 35. 
 judicial notice of state statutes by, 120. 
 follow construction of state statute by state court, 120. 
 proof of judgment of state court in, 627. 
 depositions in. See Depositions, 637-655. 
 no discovery In, 704. 
 subpoena in, 797. 
 subpoena duces tecum In, 802. 
 
 FEDERAL STATUTES, proof of, 501. 
 
 as to copies of public records as evidence, 520, 538. 
 as to proof of record of sister states, 626. 
 
 FEELINGS. See Bodily FsaajNGS. 
 
 FEB SIMPLE, ownership In, when presumed, 75. 
 
 FEES OF WITNESSES must be tendered, 798. 
 If not waived, 798. 
 entitled to, though not examined, 798. 
 
 though Incompetent, 798. 
 
 when witness In several cases at same time, 797. 
 
 of experts, 798. 
 
 cross-examination as to amount paid, 828. . 
 
 FELONY, Incapacity of infants to commit, 98. 
 
 conviction of, as affecting competency. See Competency or Witnesses, 
 716-718. 
 
 FEME COVERT. See Husband and Wife. 
 
 PERRY, presumption as to right of, 76 n. 8. 
 right of, provable by hearsay, 301 n. 26. 
 
 FESTIVAL, judicial notice of, 123, 129. 
 
 FICTITIOUS NAME, parol of, 123, 129. 
 79 
 
1250 INDEX. 
 
 REFBEENCES ABE TO SECTIONS. 
 
 FIDUCIARY RELATIONS. See Exeoutoe and Administeatoe, GtjaBdian, 
 Paetnees, Tetjstee. , 
 
 burden of proof on those acting In, 190. 
 
 where writer of will is legatee, etc., 191. 
 proof of trust, 425. 
 
 FINAL JQDGMENT, Conclusive effect of, 594, 595. 
 
 FINANCIAL STANDING, when irrelevant, 137. 
 when relevant, 137, 159-161. 
 generally irrelevant, 159. 
 in case of exemplary damages, 159. 
 when proof of, allowed, 159-161. 
 
 in case of compensatory damages, 160. 
 
 in breach of promise of marriage, 160. 
 
 in seduction, slander and libel, 160. 
 
 in assault and malicious prosecution, 160. 
 of plaintiff, 161. 
 of plaintiff's family, 161. 
 how proved, 162. 
 
 or reputed wealth, 162. 
 
 of actual wealth, 162. 
 
 FIRE, burden, in actions against common carriers for setting, 189. 
 relevancy of proof of similar fires, 166, 167. 
 
 FIRE LIMITS of city, best evidence of, 200 n. 11» 
 
 FIRM. See Paetnees. 
 
 FIRM BOOKS, as admissions, 271. 
 
 FISCAL OFFICERS of U. S., presumption of performance of official duty, 
 45 n. 47. 
 
 FISHERY, presimiption as to right of, 76 n. 8. 
 
 FISHING QUESTIONS, not aUowed, 707. 
 
 FIXTURES, parol proof of usage as to removal of, by tenant, 461. 
 
 FLAGS, judicial notice of, 107. 
 
 inscriptions on, evidence of, 205 n. 29. 
 
 FLIGHT, as admission of guilt, 287. 
 
 F. 0. B., judicial notice of meaning of, 130 n. 68. 
 
 FOOTPRINTS, experiments as to, 400. 
 
 FOREIGN COUNTRY, depositions, how taken in, 700. 
 
INDEX. 1251 
 
 EEFEEENCES ABE TO SECTIONS. 
 
 FOREIGN COBPOHATION, when service on, cannot be made by service 
 on officer, 806. 
 
 FOREIGN COURTS, judgments of. See Judgments, 614-616. 
 
 FOREIGN CURRENCY, when judicially noticed, 126. 
 
 FOREIGN GOVERNMENTS, judicial notice o£, 107. 
 
 FOREIGN JUDGMENTS, effect of. See Judgments, 614-616. 
 
 FOREIGN LAWS. See Laws of Foreign Countkies. 
 
 FOREIGN NATIONS, judicial notice of, 106, 107. 
 
 FOREIGN RECORDS, how proved. See Authentication, Copies, Judg- 
 ments, Records op Courts. 
 
 FOREIGN STATES, judicial notice of, 107. 
 
 FOREIGN STATUTES. See Laws of Foreign Countries. 
 proof of, 502, 503. 
 
 FOREIGNER, leading questions in examination of, 818 n. 28. 
 
 FORFEITURE, of property by corporations, no presumption as to, 
 55 n. 97. 
 privilege, when answer would subject witness to, 892. 
 
 FORGED INSTRUMENTS, presumption as to dates of, 51. 
 
 FORGERY, communications to attorney as to, when not privileged, 
 753 n. 17. 
 
 FORGETFUL WITNESS, leading questions asked, 818. 
 
 FORGOTTEN PACTS. See Refreshing Memory. 
 
 FORMER OWNER, admissions of. See Admissions, 244-247 
 
 FORMER RECOVERY, best evidence of, 200 n. 11. 
 when conclusive, 585. 
 
 FORMER STATEMENTS, impeachment by proof of. See Witnesses, 
 845-849. 
 
 FORMER TRIAL, in same court, not judicially noticed, 124 n. 17. 
 
 testimony taken at, when admissible. See Hearsay Evidence, 336- 
 343. 
 
 juror may testify as to facts of, 766. 
 
 effect of introduction of testimony of deceased or Incompetent wit- 
 ness iak^n at, 782. 
 
1252 INDEX. 
 
 EEFEBElSrCES ABE TO SBCTIOTTB. 
 
 FOUNDATION for impeachmettt. See Latinq Pouwdatiow. 
 
 FRA.UD. See Statutes of Peauds. 
 not presumed, 13, 78. 
 
 amount of proof to establish charge of crime, ip action for, 16 n. 40. 
 relevancy of similar acts, 140 n. 43, 142. 
 relevancy of character in actions for, 154, 155. 
 harden of proof on one asserting, 179 n. 17, 192. 
 amount of proof of, 192. 
 
 proof may be circumstantial, 13, 192. 
 statutes creating presumption of when, 196. 
 devise procured by, 426. 
 statute of frauds does not prevent proof of, 431. 
 
 proved by parol, 431, 435. 
 relating to specialties, proof of, 435. 
 in consideration of deeds, parol proof of, 469, 470. 
 upon testator, declarations of, 482. 
 in deeds, parol proof of, 485. 
 in acknowledgments, parol proof of, 490. 
 shown to impeach judgment against principal, in action against 
 
 surety, 591. 
 shown to impeach foreign judgment, 616. 
 when shown to impeach judgment of sister states, 618. 
 
 domestic judgments, 619. 
 return of officer, impeached for, 632. 
 when compelled to disclose, under discovery, 708. 
 In confidential communications of hushand and wife, 736. 
 confidential communications to aid, 753. 
 award of arbitrators, impeached for, 763. 
 full cross-examination as to, 821, 842. 
 statute of. See Statute op Frauds. 
 
 FRAUDULENT CONVEYANCE, relevancy of character, 155 n. 25. 
 
 FRAUDULENT INTENT, relevancy of similar transactions, 142. 
 as to alterations of instruments, 559, 566. 
 
 FRAUDULEiNT VOTING, relevancy of similar acts, 144. 
 
 FREE MASONS, judicial notice of, 123 n. 8. 
 statements of, not privileged, 771 n. 67. 
 
 FUNCTIONS OP JUDGE AND JURY. See Pkovince of Judge and Jury. 
 
 FUTURE PUNISHMENT, belief in, as affecting competency, 712. 
 
 FUTURES, presumption as to agreement to deal In, 13 n. 27. 
 
INDEX. 1253 
 
 BEFKEENCBS AKE TO SECTIONS. 
 
 o. 
 
 GAMBLER, presumption of continuance as, 58. 
 
 GAMBLING, relevancy of similar acts, 144. 
 
 statute as to burden of proof in prosecution for, 196. 
 cross-examination as to, to affect credibility, 832 n. 29, 833 n. 30. 
 
 GARMENT, inspection of, by jury, 399, 400 n. 35. 
 
 GASES, judicial notice of nature of, 128 n. 46. 
 
 damage done by, relevancy of collateral facts, 164. 
 
 GAZETTEER OF UNITED STATES, when inadmissible, 584 n. 39. 
 
 GENERAL DENIAL, proof of bad reputation, under, 150. 
 
 GENERAL INTEREST, hearsay, relating to, when admissible. See 
 Heaesay Evidence, 301, 302. 
 
 GENERAL LAW, incorporation under, proof of corporate existence, 114, 
 115. 
 
 GENERAL RECITALS in instruments, effect as estoppel, 283. 
 
 GENERAL USAGE. See Usage, 466. 
 
 GENUINENESS of documents, statutes as to admission of, 537. 
 "of handwriting. See Handwtiiting. 
 
 GEOGRAPHICAL FEATURES, judicial notice of, 127. 
 
 GEOGRAPHICAL SITUATION, of counties, judicially noticed, 108 n. 18. 
 
 GESTATION, period of, judicial notice of, 129. 
 
 GESTURE, dying declarations made by, 335. 
 similarity of, to establish relationship, 401. 
 
 GIFT, presumption of, husband and wife, 90. 
 
 GOD, belief in, as affecting competency, 712, 713 
 
 GOOD CHARACTER. See Chabacteb. 
 
 proof of, generally irrelevant, 154, 155, 158, 868. 
 when relevant, 157. 
 
 GOOD FAITH, presumed, 13. 
 
 may be shown as to illicit relation, 89. 
 direct evidence as to, 146. 
 collateral facts to show, 146. 
 party may testify as to, 170 n. 10, 
 
1254 INDEX. 
 
 EEFEBENCES ABE TO SECTIONS, 
 
 GOODS, sale of, relevancy of proof of other sales of, 140. 
 
 sale of, under statute of frauds See Statute of Pbauds, 428-430. 
 
 GOVERNMENTS, presumption of continuance of form of, B8 n. 2: 
 judicial notice of foreign and domestic, 106, 107. 
 in case of disputed existence, 106. 
 
 GOVERNOR, judicial notice of, 109. 
 
 when communications of, privileged, 762. 
 
 GRAND JURY, when presumed duly subpoenaed, 34 n. 22. 
 transactions of, privileged, 765. 
 relaxation of rule, 765. 
 
 as to statements of witnesses before them, 765. 
 not to impeach indictment, 765. 
 
 GRANTEE may assert title not acquired from grantor, when, 282. 
 
 incompetent as to transactions with a deceased or incompetent, 777 
 n. 25. 
 
 GRANTOR, declarations of, as against grantee. See Admissions, 239- 
 241. 
 illustrations of the rule, 240 n. 29. 
 limitations of the rule, 241. 
 estoppel to deny recitals in deed, 281 n. 12. 
 in possession, declaration of, 352. 
 
 Incompetent as to transactions with a deceased or Incompetent, 
 777 n. 25. 
 
 GRANTS. See Deeds. 
 presumption of, 76. 
 when presumed to be on condition, 76. 
 from remote grantor, when presumed, 76. 
 
 GRAVE STONES, inscription on, to prove pedigree, 316. 
 
 GREAT SEAL, judicial notice of, 107. 
 
 GROANS, as part of res gestae, 349. 
 
 GROSS NEGLIGENCE. See Negligence. 
 
 GUARANTY, how proved, 427. 
 
 how afiected by statute of frauds, 427. 
 
 GUARDIAN, admissions by, 266. 
 
 declarations of, as part of res gestae, 266, 351. 
 trust arising from fiduciary relations, 425. 
 effect of surety, of judgment against, 591. 
 
 competency of, as to transactions with deceased or Incompetent, 
 777 n. 25, 793. 
 
INDEX. 1255 
 
 RBFEEENCES ABE TO SECTIONS. 
 
 GUARDIANSHIP, for insanity, presumption of insanity from, 59. 
 
 GUESSING, witness may be asked whetlier he is, 826 n. 90. 
 
 GUEST, burden of proof in loss of goods, 187. 
 
 GUILT, not presumed, 12. 
 
 must be proved beyond a reasonable doubt, 16. 
 pr«of of, wben in issue in civil cases, 195. 
 admission of, from conduct, 287. 
 
 GUN, Inspection of, by jury, 400 n. 35. 
 
 H. 
 
 HABEAS CORPUS, presumption of innocence In cases of, 12 n. 22. 
 
 HABEAS CORPUS AD TESTIFICANDUM, writ of, where witness con- 
 fined, 803. 
 
 HABITS, presumption as to continuance of, 58. 
 of animals, when relevant, 165. 
 shown on cross-examination, 826. 
 
 HANDBILLS, as admissions, 270 n. 39. 
 
 HANDWRITING, parol proof of genuineness of, 203 n. 18. 
 proof of telegrams by proving, 210. 
 proof of, of deceased person, to admit entries by. in due course of 
 
 business, 320. 
 opinions of ordinary witnesses as to, 366. 
 experiments as to, before jury, 403. 
 
 proof of, when sufficient in case of attesting witness, 529, 535. 
 statutes affecting, proof of, 537. 
 best evidence in proof of, 545. 
 writer need not be called, 545. 
 one who has seen another write competent, 546. 
 weight of such testimony, 546. 
 knowledge of, necessary, 546. 
 knowledge of, gained by correspondence, 547. 
 effect of mere receipt of letters, 547. 
 letters or documents must be genuine, 547. 
 may be gained in course of business, 548. 
 
 Illustrations, 548 n. 74. 
 value of such testimony, 549. 
 prima facie competent, 549. 
 depends on means of knowledge, 549. 
 knowledge required for purpose of testifying, 549, 
 familiarity with, necessary, 549, 
 
1256 INDEX. 
 
 EEFBEBNCES ABB TO SECTIONS. 
 
 HANDWRITING (continued) — 
 opinion as to, 549, 555. 
 comparison of, when written for, 550. 
 before trial, 550. 
 at trial, when, 550. 
 
 can court compel party to write for purpose of, 550, 
 rule in England as to, 551. 
 conflict in United States, 552. 
 rule generally adopted, 552. 
 liberal tendency of statutes, 552. 
 of simulated and forged signatures, 553. 
 those written merely for comparison, 553. 
 by photographic copy, 581, 
 to prove Identity, 553. 
 exceptions allowing comparison, 554. 
 ancient documents, 554. 
 instruments in evidence, 554. 
 writing must be genuine, 555. 
 
 what constitutes such proof, 555. 
 opinions as to genuineness, 555. 
 insufficient proof of genuineness, 555. 
 letterpress copies as basis for, 555 n. 9. 
 photographic copies, 555 n. 9. 
 
 standard of comparison to be proved to satisfaction of judge, 555, 
 581. 
 expert testimony as to, 556. 
 illustrations, 556 n. 15. 
 when competent, 556. 
 weight of, 556. 
 what persons competent as to, 556. 
 
 bank officials, merchants, lawyers, 556 n. 20. 
 teachers, bookkeepers, etc., 556 n. 20. 
 qualifications of, 556. 
 
 HARVEST TIME, judicial notice of, 129. 
 
 HATRED, feeling of, may be inquired into, 828 n. 95. 
 
 HEADS OF BtnaEAUS, judicially noticed, 109. 
 
 HEALTH, presumption of continuance of, 58. 
 
 condition of, when shown by declarations, 349. 
 experiments to show, in presence of jury, 403. 
 
 HEIARSAY EVIDENCE, not admitted to prove loss of writing, 216. 
 declarations of officers of public corporations, when are, 267. 
 defined, 297. 
 reasons for its exclusion, 297. 
 
INDEX. 1257 
 
 REFERENCES ABE TO SECTIONS. 
 
 HEARSAY EVIDENCE (contlnue'd) — 
 illustratioDB of, 297 n. 4. 
 
 may relate to what is done, written or said, 298. 
 things under oath or against interest, 299. 
 
 voluntary affidavit or ex parte deposition, 299. 
 when apparently contrary to interest of declarant, 299. 
 statements apparently hearsay may be original evidence, 300. 
 whether things were written or spoken, 300. 
 
 slander or libel, 300. 
 statements material to show knowledge or information, 300. 
 malicious prosecution, 300. 
 other illustrations, 300. 
 exceptions. 
 
 matters of puMie and general interest, 301, 302. 
 
 restricted to declarations of deceased persons, 301. 
 
 to ancient rights, 301. 
 reasons for rule, 301. 
 illustrations, 301 n 26. 
 
 public and merely general rights distinguished, 302. 
 as to boundaries. See Boundakles, 303-307. 
 ancient documents, in support of possession, 308. 
 must come from proper custody, 309. 
 test as to what is, 309. 
 mode of proof of, 309. 
 effect of modern enjoyment, 309. ' 
 must have been made before controversy arose, 310, 311. 
 as to questions of pedigree. See Pemgeeb, 312-318. 
 entries in books as part of res gestae. See EIntkies, 319-322. 
 by persons still living. See Entries, 320, 321. 
 by party In course of business, 322. 
 
 part of res gestae, 322. 
 by deceased person against interest. See Deceased Pbesons, 
 323-330. 
 dying declarations. See Dying Declaeations, 331-335. 
 exceptions as to deceased witnesses. 
 
 testimony taken in former action or trial, 336. 
 where witness dead and parties and issues same, 336. 
 exact identity of parties not necessary, 337. 
 privity of interest sufficient, illustrations, 337. 
 parties substantially same or in privity, illustrations, 33''. 
 form of proceedings may be different, 339. 
 testimony given before commissioners, 339. 
 arbitrators, 339. 
 coroners, 339. 
 
 at a preliminary hearing, 339. 
 opportunity for cross-examination essential, 340. 
 
 privilege waived by failure to cross-examine, 340. 
 
1258 INDEX. 
 
 EEFEBENCBS ABE TO SECTIONS. 
 
 HEARSAY EVIDENCE (continued) — 
 
 strict rule as to, in. EJngland under common law, 341. 
 relaxation of rule, conflict in tbls country as to, 341. 
 where witness has become insane, 341, 342. 
 is dead, 341, 342. 
 is beyond sea, 341, 342. 
 is kept away by opposite party, 341, 342. 
 where since become incompetent because of sickness, old 
 
 age, or Infamy, 341, 342. 
 where he has forgotten, 341. 
 where absent from state 342. 
 
 sometimes held that deposition must be taken, 342. 
 the rule in criminal oases, 342. 
 mode of proving former testimony, 343. 
 
 not necessary to prove exact words, 343. 
 substance, not legal effect, sufficient, 343. 
 what may be used to refresh memory of witnesses, 343. 
 
 minutes taken by judges, attorneys, stenographers and other of- 
 ficers of court, 343. 
 by stenographers as evidence, 343. 
 bill of exceptions, conflict as to, 343. 
 See also. Refbeshinq Memory, 874-883. 
 opinions of experts based on, 375. 
 letters as hearsay, 583. 
 inadmissible on cross^xaminatlon, 843. 
 not admissible on re-examination, 873. 
 
 HEATHEN, mode of swearing, 715. 
 
 HBAVBNLiT BODIES, judicial notice of course of, 129, 
 
 HEIKS, estopped by admissions of ancestor, 242. 
 
 not bound by admissions of executor or administrator, 253. 
 
 aliter, if part of res gestae, 253. 
 admissions of, as against executor or administrator, 253. 
 bound by judgments against testator or ancestor, 587. 
 effect of judgment against representative, 587. 
 meaning of term, 774. 
 
 when competent as to transactions with a deceased or incompetent, 
 779. 
 
 HIGHWAY, regularity of laying, out of, presumed, 47. 
 relevancy of other accidents on, 163. 
 parol proof of existence of, 203 n. 18. 
 evidence of subsequent repairs, 288. 
 
 public character of, when provable by hearsay, 301 n. 2S. 
 shown by photograph, 581 n. 4. 
 judgments to prove, as against strangers, 588 n. 66. 
 
INDEX. 1259 
 
 EEFEKENCES ARE TO SECTIONS. 
 
 HISTORIES, when may be resorted to, 125, 
 when competent as evidence, 584. 
 ground of reception, 584. 
 requisites of, 584. 
 
 past facts, 584. 
 of general, not local concern, illustrations, 584 
 
 HISTORY, matters of, judicial notice of, 125. 
 
 HOLIDAYS, judicial notice of, 123. 
 
 HOMICIDE, malice, when presumed, 29. 
 intentional, presumed unlawful, 29. 
 relevancy of similar acts, 144. 
 to repel inference of accident, 147. 
 of quarrelsome character, 156. 
 confessions of deceased as to, received, 324 n. 78. 
 threats, when relevant, 146. 
 statements of others that they committed the, mere hearsay, 297 n. 4. 
 
 HONESTY, when presumed, 13. 
 
 of servant, when presumed, 13 n. 25. 
 
 HORSE. See Astimais. 
 
 relevancy of habits of, 165. 
 expert testimony as to, 382. 
 admissibility of scientific books as to, 578 n. 78. 
 
 HOSTILE WITNESSES. See Witnesses, 817, 828, 829, 850. 
 leading questions proper, 817. 
 credibility of, 901. 
 
 HOTEL, usages of, when not binding, 464 n. 55. 
 
 public character of, newspaper advertisements, as to, 582. 
 
 HOTEL KEEPERS. See Innkebpeks, 187. 
 
 HOTEL REGISTER, best evidence of, 200 n. 11. 
 
 HUMAN LIFE, average duration of, judicial notice of, 129. 
 
 HUSBAND, bad character of, in actions for seduction and criminal con- 
 versation, 152. 
 
 HUSBAND AND WIFE, presumption as to necessaries. 90. 
 presumption of agency' 90. 
 husband head of family, 90. 
 as to coercion by husband, 91, 92. 
 
 nature and limits of, 92. 
 cannot deny sexual intercourse, 97, 733. 
 no presumption of undue influence from bequests of one to the other, 
 
 191. 
 declarations of, when competent against each other, 260. 
 when part of res gestae, 260. 
 
1260 INDEX. 
 
 EErEEENCES ABE TO SECT10W3. 
 
 HUSBAND AND WIPE (continued) — 
 
 each may act as agent of the other, 260. 
 
 authority not implied from marriage alone, 260. 
 
 except in case of necessaries, 260. 
 more readily inferred than in case of other persons, 261. 
 if within the scope of authority, 261. 
 admissions in actions for divorce, 262. 
 ' to be scrutinized closely in such cases, 262. 
 
 ■when persons estopped to deny the relation of, 276. 
 
 dying declarations of each, as against other, 333. 
 
 trust arising from fiduciary relations, 425. 
 
 as to each other's book accounts, 573. 
 
 Judgments relating to, when admissible against strangers, 588. 
 
 confidential communications upon examination of adverse party, 708. 
 
 competency of, as mtnesses. See Competency of Witnesses, 732-747. 
 
 common law rule as to, 733. 
 
 absolute prohibition of testimony, 733. 
 
 grounds of, 733. 
 Illustrations, 733 n. 54. 
 where interest of either party directly involved, 733. 
 In criminal cases, 734. 
 
 exception as to personal violence, 734, 746. 
 where spouse is co-party with others, 734. 
 in prosecutions for bigamy, 734. 
 
 when second wife competent, 734. 
 confidential communications of. See Confidentiai, Communications, 
 
 735-747. 
 statutes relating to competency of, 743, 745-747. 
 
 incompetent as to transactions with a deceased or incompetent per- 
 son, 778. 
 competent as to transactions of deceased with third person, 790. 
 
 HYPOTHETICAL QUESTIONS in examining experts, 370. 
 basis of, 370. 
 form of, 370, 377. 
 to be based on proof, 271. 
 need not include theory of adversary, 371. , 
 may be based on what facts, 371. 
 length of, 377. 
 
 discretion of judge as to, 377. 
 
 IDENTITY, presumption as to, 100. 
 
 of writing, may be proved by parol, 203 n. 18, 204. 
 
 by opinions of ordinary witnesses, 361. 
 substantial, of parties and issue to render testimony at former trial 
 admissible, 337, 338. 
 
INDEX. 1261 
 
 EEFEEENCES ABE TO SECTIONS. 
 
 IDENTITY (continued) — 
 
 proof of, by Inspection, 398, 401, 402. 
 
 of subject matter, parol proof of, 450. 
 
 of parties proved by parol, 451, 452. 
 
 of property in wills, parol proof of, 476. 
 
 of legatee in wills, parol proof of, 477. 
 
 of land described in deed, 485. 
 
 proved by comparison of handwriting, 553. 
 
 shown by photographs, 581 n. 4. 
 
 leading questions proper as to, 817. 
 
 IDIOMS, judicial notice of, 130. 
 
 IDIOTS, inspection of, to prove Idiocy, 394. 
 when competent as witnesses, 719. 
 
 IGNORANCE, knowledge of law presumed, 23. 
 
 leading questions asked when witness ignorant, 818. 
 of witness as to privilege, 887. 
 
 ILLEGALITY, burden of proof as to, 179 n. 17. 
 of contract, will not be presumed, 85. 
 proved by parol, 436, 495. 
 of mortgage, proved by parol, 499. 
 
 ILLEGITIMACY. See Lbgitimaot. 
 
 declaration of deceased person as to ovni, not admissible, 312. 
 
 ILLICIT COHABITATION, raises no presumpUon of marriage, 89. 
 when presumed to continue, 89. 
 presumption, how rebutted, 89. 
 
 ILLICIT INTERCOURSE. See AsvircERr, Bastaedt, Rape, Sedtjction. 
 presumption of continuance of, 58. 
 presumption of undue influence from, 191. 
 cross-examination as to, to show interest and bias, 828 n. 6. 
 to affect credibility, 832 n. 29. 
 
 ILLNESS. See Sickness. 
 
 IMBECILE. See Idiot, Fiduciaby Relatioks. 
 when competent as a witness, 719. 
 
 IMMUNITY, from prosecution, 710. 
 
 from arrest. See Witnesses, 805, 806. 
 
 IMPEACHMENT Of books of account, 577. 
 foreign judgments, 616. 
 of judgments of sister states, 617. 
 
 IMPEACHMENT OP WITNESSES. See Witnesses, 844-870. 
 
1262 INDEX. 
 
 EEFEEENOBS ARE TO SECTIOWa 
 
 IMPOTBNCY, Inspection of person to show, 395. 
 
 IMPRISONMENT OF WITNESS, wlien allowed, 804. 
 contempt of couTt, when, 805. 
 
 IMPROVEMENTS, erection of, owner estopped by, when, 275 n. 79, 278. 
 
 INACCURACY, distinguished from ambiguity, 474. 
 
 INCAPACITY of contracting party shown by parol 436. 
 
 as a ground of incompetency. See Competency ot Witnesses, 
 719-724. 
 
 INCEST, presumption of marriage In prosecution for, 88 n. 85. 
 
 INCOMPETENCY. See Competency of Witnesses. 
 
 parol evidence to show mental Incompetency of testator, 482. 
 
 INCOMPETENT OR IMMATERIAL EVIDENCE, rebuttal of, 873. 
 
 INCOMPETENT TESTIMONY, effect of receiving, 173, 896, 896. 
 
 INCOMPETENT PEIRSONS, competency of testimony as to transactions 
 with. See Competency or Witnesses, 772-795. 
 
 INCOMPUBTE WRITTEN AGREEMENT, parol evidence as to, 440. 
 
 INCONSISTENT STATEMENTS, impeachment by proof of. See Wit- 
 nesses, 845-848. 
 
 INCORPOREAL HERIDITAMENTS, presumption as to, 77. 
 
 INCRIMINATING QUESTIONS. See Witnesses, 884-892. 
 
 INDEBTEIDNESS, presumption of continuance of, 58 n. 2. 
 
 INDECENT ASSAULT, relevancy of character, 153 n. 22. 
 
 INDECENT EXPOSURE of person in presence of jury, not permitted, 398. 
 
 INDEPENDENT PAROL CONTRACTS. See Paeol Evidence to Explain 
 Wbitings. 
 
 INDEPENDENT STATEMENTS, not called out on cross-examination, 822. 
 
 IDICTMENT, presumption of identity from name as to, 100 n. 67. 
 cross-examination as to former, 838. 
 conflict as to, 838. 
 effect of statutes as to, 839. 
 
 INDIRECT EVIDENCE. See Ciecumstantiax Evidence. 
 
 INDORSERS, admissions of one against others, 253. 
 Judgments, when admissible against, 590. 
 
INDEX. 1263 
 
 EEPEEEWCES AKE TO SECTIONS. 
 
 INDORSEMENTS. See Endobsemeiiits, Negotiable Papeb. 
 
 INFAMOUS CRIME, conviction of as ground for admitting testimony 
 taken at former trial, 341. 
 
 INFAMY, ground of incompetency, 716, 717. 
 removed by statute, 716. 
 as aftecting credibility, 717. 
 
 INFANCY, parol evidence of, 436 n. 20. 
 
 parol proof to show invalidity of deed, 485. 
 
 INFANTS. See Children, Competency of Witnesses, Witnesses. 
 capacity of, to commit crime, 11, 98. 
 
 to consent to sexual intercourse, 11, 98. 
 to marriage contract, 98. 
 liability for tort, 99. 
 
 presumption as to their being sui juris, S% 
 as to domicile, 99. 
 as to testamentary capacity, 99. 
 as to contributory negligence, S9. 
 as to estoppel of, by recitals of, Instruments, 283. 
 when dying declarations of, incompetent, 333. 
 competency of, as witnesses depends on intelligence rather than age, 
 
 720. 
 leading questions in examination of, 818. 
 
 INFERENCE. See PEEStrMPTiONS. 
 
 of accident, relevancy of collateral facts, 145, 147. 
 from claim of privilege by witness, 891. 
 
 INFERIOR COURT. See Courts, Judgments, Jukisdictton, Records op 
 Courts. 
 jurisdiction not presumed, 36, 37. 
 jurisdiction of may be shown by extraneous evidence, 36. 
 
 INFIDEL, competency of. See Competency of Witnesses, 712-714. 
 
 INFLUENCE. See Duress, Fiduciary Relations, Fraud. 
 parol evidence to prove undue, 482, 483. 
 
 INHABITANTS OF PUBLIC CORPORATIONS, declarations of, when ad- 
 missible against corporation, 267. 
 competency of, as witnesses, 732. 
 
 INITIALS. See Name. 
 
 when judicially noticed, 131. 
 
 used in will, parol evidence to explain, 484. 
 
 INJURY. See Personal Injury. 
 
 INK, expert evidence as to, 556 n. 15. 
 
1264 INDEX. 
 
 EEFEEENCES ABE TO SECTIONS. 
 
 INNKEEPERS, burden as to loss at public inn, 187. 
 in case of permanent boarders, 187. 
 
 INNOCENCE, presumption of, 12. 
 how favored, la. 
 where fraud is in issue, 13. 
 
 presumption of, prevails over other presumptions, 101-103. 
 of party presumed over innocence of stranger, 102. 
 presumption of, in conflict with that of sanity, 103. 
 presumption of, in civil oases, 195, 563, 838. 
 admissions of, implied from conduct, 287. 
 
 INQUEST OF CORONER, testimony given at, when Inadmissible on trial. 
 339. 
 
 IN REM, judgments. See Judgments, 606-610. 
 
 INSANE PERSONS, entries made by persons since become insane, 320. 
 dying declaration of, 333. 
 
 evidence of persons since become Insane, 341. 
 when competent as witnesses, 723. 
 attendance as witness, how secured, 803. 
 
 INSANITY. See Sanity. 
 
 presumption as to continuance of, 59. 
 
 of debtor, effect of, on presumption of payment, 69 n. 69. 
 
 burden of proof as to, 188. 
 
 in civil cases, 188. 
 
 in criminal cases, 188. 
 
 in probate of wills, 189. 
 as ground of Incompetency, 719, 723, 741. 
 
 presumed to continue, when, 723. 
 competency of divorced wife as to that of husband, 737. 
 competency of adverse party as to transactions with. See Competency 
 OF Witnesses, 772-795. 
 
 INSCRIPTIONS on walls, flags, stones, banners, and notices proved by 
 parol, 205, 205 n. 29. 
 
 INSOLVENCY. See Solvency. 
 
 of debtor, rebutting presumption of payment from lapse of time, 69 
 
 n. 69. 
 when Irrelevant, 137. 
 
 INSPECTION OF ARTICLES by the jury, 399. 
 discretion of court as to, 399. 
 in criminal cases, illustrations, 400 n. 35. 
 models, diagrams and photographs, 411. 
 
 INSPECTION OP BOOKS AND PAPERS. See Discoveey, 709-711. 
 
INDEX. 1265 
 
 BBFERBNCES ABE TO SECTIONS. 
 
 INSPBCrriON OP documents, on production after notice, 226. 
 may party inspect and refuse to offer, 226. 
 
 INSPECTION OP THE PERSON, by others than jurors, 395. 
 in personal injury cases, 396, 397, 399. 
 
 not compulsory in federal courts, 396, 397. 
 conflict in state courts, 396, 397. 
 tendency of decisions, 397. 
 discretion of the court as to, 397. 
 before the trial, 397. 
 iy the jury, 398. 
 
 considered part of res gestae, 398. 
 In criminal oases, 400. 
 
 when, if ever, allowed, 400. 
 as to race, age and resemblance, 401. 
 of child, to prove paternity, 401. 
 to prove identity, 402. 
 
 ISSUES, in former suit, parol proof of, 203 n. 18. 
 
 substantial identity of, to render testimony at former trial admissible, 
 
 338. 
 extrinsic evidence to identify, in former suit, 599. 
 
 INSTALLMENTS, payment of debt in, presumption as to, 65 n. 52. 
 
 INSTINCTS, judicial notice of, 129. 
 
 INSTRUCTIONS TO JURY, when presumed that jury has followed, 34 n. 
 22. 
 when presumed to have been in writing, 34 n. 22. 
 as to conviction on uncorroborated testimony of an accomplice, 769. 
 as to weight of evidence, 902. 903. 
 as to impeaching testimony, 902. 
 
 INSTRUMENTS. See Documents. 
 
 under seal, consideration of not conclusively presumed, 11. 
 presumption of payment from cancellation of, 71. 
 
 INSUPPICIENCY OP EVIDENCE. See Burden op Proof, Province of 
 Judge and Jury, AV eight of Evidence, 898-900. 
 
 INSULTINd QUESTIONS. See Witnesses, 884-892. 
 
 INSURANCE, presumption of law of sister state as to, 83 n. 46. 
 expert testimony as to matters of, 383. 
 parol proof of usage as to, 459. 
 
 INSURANCE CASES, burden of proof as to, 179. 
 
 when defendant has right to open and close in, 197 n. 69. 
 proofs of loss In, secondary evidence of contents of, 218 n. 20. 
 proofs of death, as admissions, 270 n. 39. 
 view by jury in, 407. 
 80 
 
1266 INDEX. 
 
 REFERENCES ABE TO SECTIONS. 
 
 INSURANCE POLICY, amount of proof in action on, when crime Is in- 
 volved, 16 n. 40. 
 best evidence of, 201 n. 12. 
 parol evidence to vary, not admissible, 438. 
 parol evidence to correct mistake in, 437. 
 of waiver of breach, 443. 
 
 INTBUjECT, effect of, on competency, 720, 721. 
 
 INTEMPERANCE, as affecting presumption of death, 63. 
 when competent to impeach witness as to, 860 n. 2S. 
 
 INTENTION. See Ambiguity. 
 
 to perform act, when presumed, 13 n. 28. 
 
 probable consequences presumed intended, 27, 28. 
 
 provable by similar acts, 142, 143. 
 
 party may testify to, 170. 
 
 as to domicile, not provable by hearsay, 297 n. 4. 
 
 declarations showing, 350. 
 
 parol proof of, in conetruing phrases, etc., 456. 
 
 declarations of testator to show, 482 n. 66. 
 
 INTEREST, presumption of law of sister state as to, 83 n. 48. 
 law of sister state as to, must be proved, 118 n. 78. 
 as affecting admissions of one, not a party, 238. 
 privity of, renders admissions competent, 239. 
 
 grantor and grantee, 239. 
 privity of, necessary to admit testimony from former trial, 337. 
 rendered witnesses incompetent at common law, 712. 
 no ground of incompetency, 725. 
 affects credibility, 725, 901. 
 
 disqualifying witness as to transactions with a deceased or incom- 
 petent, 772. 
 shown by cross-examination, 822, 826, 828. 
 rate of, alteration in, vitiates instrument, 560 n. 41. 
 
 tables of, admissibility of, 578. 
 
 INTERLINEATION. See Alteration. 
 
 INTEJRNAL REVENUE DISTRICTS, judicial notice of, 108 n. 18. 
 
 INTERNAL REVENUE LAW, judicial notice of, 112 n. 44. 
 
 INTERNATIONAL LAW, judicial notice of, 112. 
 
 INTERPRETATION of contracts by parties, parol proof of, 453. 
 
 INTERPRETER, admissions by, 265. 
 
 not agent of the one calling him, 265. 
 
 an officer of the court during trial, 265. 
 
INDEX. 1267 
 
 EEFEEBNCES ABB TO SECTIONS. 
 
 INTERPHETER (continued) — 
 
 testimony at former trial as stated by, when may be proved, 343. 
 In the taking of depositions, 666. 
 
 when rule as to confidential communications between attorney and 
 client applies to, 751. 
 
 INTERROGATORIES. See Depositions, Leading Questions, Witnesses. 
 
 INTESTATE, admissions of, against administrator, 242. 
 
 INTOXICATING LIQUORS, judicial notice of nature of, 128. 
 burden of proof in prosecution for illegal sale of, 196, 
 
 INTOXICATION, parol evidence of, 436 n. 20. 
 as affecting competency, 724. 
 competency of wife as to, of husband, 737 n. 89. 
 of juror, testimony of juror as to, 766 n. 38. 
 cross-examination as to, 826, 828. / 
 
 as affecting credibility, 901. 
 
 INTRODUCTORY QUESTIONS, leading questions as, 817. 
 
 INVENTORY, to refresh memory, 877 n. 54. 
 
 INVOICE BOOKS, as memoranda to refresh memory, 877 n. 54. 
 
 INVOICE OP GOODS, best evidence as to, 201 n. 12. 
 
 IRREGULARITIES, in taking deposition, 670. 
 
 IRRELEVANT MATTERS. See Relevancy. 
 illustrations of, 137, 138. 
 
 judge may exclude on own motion, 172, 173, 893. 
 may become relevant later, 173. 
 
 IRRELEVANT TESTIMONY, discretion of the court as to, 172. 
 judge may exclude on his own motion, 172, 173, 893. 
 rebuttal of, 172. 
 effect of receiving, 172, 895, 896. 
 
 ISSUE, form of, as affecting burden of proof, 180. 
 substance of. See Substance of the Issue, 232-234. 
 same, to admit testimony from foi-mer trial, 330. 
 to use depositions taken at former trial, 683. 
 
 J. 
 
 JAIL, attendance of witnesses confined in, how secured, 803. 
 
 JEW, former rule as to the competency of, 712. 
 how sworn, 715. 
 
 JOINT CONTRACTORS. See Contbactobs. 
 admission by one against others, 252. 
 
1268 INDEX. 
 
 EEPERENCES ABE TO SECTIONS 
 
 JOINT GRANTORS, admissions of one bind others, 25a 
 
 JOINT MAKERS of note, admissions of, 252. 
 
 JOINT PURCHASERS, admissions of, 252. 
 
 JOURNALIST, communications to, not privileged, 771 n. 67. 
 
 JOURNALS OP LEGISLATIVE BODIES, as to due passage ot statute, 117. 
 as evidence, 507. 
 
 JUDGE. See Court, Disceetion of Cotjet, Peovince of Jxtdge and Jubt. 
 may consult books to refresh memory, 132. 
 cannot act on own special knowledge, 133. 
 may exclude evidence of his own motion, 173, 893. 
 province of, as to granting the right to open and close, 198. 
 notes of testimony taken by, inadmissible, 343. 
 
 used to refresh memory, 343, 764. 
 certiflcates of, in authentication of records, 629. 
 to examine children to determine competency of, 721. 
 confidential communications to, 748 n. 55. 
 privileged, 764. 
 
 ought not to testify, 764. 
 
 except as to facts at former trial, 764. 
 
 where court is composed of several judges, 764. 
 
 reasons for decision, 764. 
 questions to witness by, 815. 
 comments by, upon the evidence, 815. 
 may apprise witness pf privilege, 890. 
 may exclude Improper testimony on own motion, 893. 
 
 JUDGE-MADE LAW, discussion of, 9, 65. 
 
 JUDGES, struggle among for uniformity in the law, 9. 
 judicial notice of, 109. 
 of other courts, judicially noticed, 124. 
 
 JUDGMENTS recitals in as to jurisdiction, how far conclusive, 32. 
 when presumed sufficient evidence to support, 34 n. 22. 
 presumption of continuance of, 58 n. 2. 
 presumption of payment from lapse of time, 65 n. 52. 
 of Bister states, presumption as to jurisdiction, 38. 
 best evidence of, 200 n. 11. 
 
 when lost, 212 n. 70. 
 payment of, provable by parol, 203 n. 18. 
 as evidence, 585-630. 
 
 grounds of admissibility, 585. 
 
 jurisdiction essential, 585, 610, 611, 616. 
 
 collateral attack upon, 585. 
 
INDEX. 1269 
 
 EEFERENCBS ABE TO SECTIONS. 
 
 JUDGMENTS (continued) — 
 
 conclusive upon whom, 585, 586. 
 parties, ,586. 
 
 when on those not parties, 586. 
 identity of parties not essential, 586. 
 parties must sue In same capacity, 586. 
 privies. See Peivies, 587. 
 not conclusive upon strangers, 588. 
 unless of public nature, 588. 
 judgments in rem, 588. 
 Judgments relating to husband and wife, 588. 
 in civil, no bar in criminal cases, illustrations, 589. 
 
 parties different, 589. 
 admissible against thirA persons for incidental purposes, 590. 
 to show rendition of judgment or acquittal, 590. 
 to identify case, 590. 
 other illustrations, 590. 
 against principals in actions against sureties, 591. 
 on their bonds. See Bonds, 591, 592. 
 conflict as to admissibility of, '591. 
 fraud or collusion, effect of, 591, 610. 
 want of jurisdiction, effect of, 591. 
 against third persons who are liable to make Indemnity, 593. 
 warrantor of title, 593. 
 
 notice to appear and defend necessary, 593. 
 effect of such judgment, 593. 
 must te final and on merits, 594. 
 
 mere verdicts and findings insufficient, 594. 
 meaning of the rule, 595. 
 
 effect of, when on technical defects, 595, 596. 
 not conclusive, when, 595. 
 
 effect of nonsuit, discontinuance or appeal, 596. 
 effect of, when on confession or demurrer, 596. 
 conclusive only as to matters In issue, 597. 
 and only as to material facts, 597. 
 form of action, 598. 
 
 need not be same, illustrations, 598. 
 plaintiff's claim litigated as defense, 598. 
 courts of chancery and law, 598. 
 federal and state courts, 598. 
 extrinsic evidence to identify issue, 599, 600. 
 
 not to contradict it, 599. > 
 
 printed decisions of court competent, 600. 
 
 testimony of jurors, when competent, 600. 
 
 issue actually determined or necessarily Involved, 600, 602. 
 
 particular ground for adjudication, when not inferred, 601. 
 
1270 INDEX. 
 
 BEFERENCES AEE TO SECTIONS. 
 
 JUDGMENTS (oontinued) — 
 
 burden of proof as to identity of Issues, 601. 
 
 when there are several matters, 601. 
 or special findings, 601. 
 where causes of action are different, effect of, 602. 
 
 then the inquiry is what question was actually litigated, 602. 
 
 as to matters occurring only subsequent to, 802. 
 Introduced under general issue, 603. 
 pleaded in estoppel, 603. 
 matters that might have 6eera litigated, effect as to, 604. 
 as to part of book account, 604 n. 82. 
 indivisible claims, 604 n. 82. 
 breach of warranty, 604. 
 In case of counterclaim, 604. 
 must defendant set up independent claim, 604. 
 applies to defendants as Well as plaintiffs, 604. 
 
 presumed to have presented all the evidence, 604. 
 
 rule where plaintiff neglects to allow proper credits, 605. 
 in rem, as evidence, 606, 608. 
 
 distinguished from those in personam, 606. 
 notice to parties essential, 606. 
 condemnation of property, 606. 
 nature of judgments in rem, 606. 
 proceedings in attachment and garnishment, 606. 
 in admiralty, 606. 
 in divorce. See Divoece, 607, 608. 
 in probate. See Peobate, 609, 610. 
 want of jurisdiction. See Jubismction, 611-618. 
 of domestic courts, 611, 612. 
 
 effect of judgments of, 611, 612. 
 of inferior courts, 613. 
 Of foreign courts, effect of, 614, 615. 
 
 when impeached on merits, 614, 615. 
 generally held conclusive, 615. 
 
 when impeached for want of jurisdiction or fraud, 616. 
 presumption of regularity, 616. 
 cause of action not merged, 616. 
 of sister states, 617, 618. 
 effect of, 617, 618. 
 
 evidence to contradict record as to jurisdictional facts, 617. 
 when impeached for want of jurisdiction or fraud, 618. 
 regularity and jurisdiction presumed, 618. 
 when impeached for fraud in procurement, 618, 619. 
 
 by whom, 619. 
 remedy of party for fraud, 619. 
 
 of strangers, 619. 
 
INDEX. 1271 
 
 EEFEEENCES AKB TO SECTIONS. 
 
 JUDGMENTS (continued) — 
 how proved, 620. 
 
 must be complete, 620. 
 
 transcript, memorandum or certificate Incompetent, 620. 
 entries of judge Incompetent, 620. 
 all prior proceedings need not be shown, 621. 
 to show particular Issue, pleadings to be offered, 621. 
 docket as evidence, 621. 
 
 verdict, when competent without judgment, 621. 
 how proved In courts where rendered, 622. 
 
 records of courts, how proved. See Authenticatio:^, Records of 
 COUBTS. 
 
 JUDICIAL DISTRICTS, judicial notice of, 108 n. 18. 
 
 JUDICIAL NOTICE, meaning of term, 105. 
 of governments and offlcers. 
 
 of governments, domestic and foreign, 106, 107. 
 
 of flags and seals, 107. 
 . - of state of war and peace, 107. 
 
 of territorial extent, 108, 127. 
 
 of subdivisions of states, 108. 
 
 of towns, counties, cities and the like, 108, 127. 
 
 of government officers, 109. 
 
 of state officers, 109. 
 
 of subordinate officers, 109. 
 
 of subordinate officers in others states, 110. 
 
 of county officers, 109 n. 23. 
 
 of town officers, 109 n. 23. 
 
 of sheriffs, 109 n. 23. 
 
 of notaries public, 110. 
 
 of other officers, 109. 
 
 duties of, . terms of office, etc, 109. 
 
 of official seals and signatures, 110, 111. 
 of matters of law. 
 
 of the law of the forum, 112. 
 
 of International law, 112. 
 
 of foreign treaties, 112. 
 
 of acts of congress, 112. 
 
 of ooristltutions, 112. 
 
 of state statutes, 112. 
 
 of public statutes, what are, 113. 
 
 of bank and railway charters, 114. 
 
 of municipal charters, 115. 
 
 of corporate existence of cities, 115. 
 
 of city ordinances, 116. 
 
 by municipal courts, 116. 
 
 If incprporated into a public statute, 116. 
 
1272 INDEX. 
 
 EEFERBNCES ARE TO SECTIONS. 
 
 JUDICIAL NOTICE (continued) — 
 of passage of statute, 116. 
 
 use of legislative journals for the purpose, 117. 
 of repeal of statutes, 117. 
 of relations of sister states, 118. 
 
 private statutes to be proved, 118. 
 
 also statutes of sister states, 118, 119. 
 
 qualifications of rule, 119. 
 of state laws by federal courts, 120. 
 of rules of departments, 120. 
 of common and unwritten law, 121. 
 
 that of other states, 121. 
 of reports of government officers, 122' n. 97. 
 of proclamations, 122. 
 of customs, 123. 
 Of matters relating to courts. 
 of courts, officers of, 124. 
 
 terms of, 124. 
 
 records of, 124. 
 
 attorneys and judges of, 124. 
 
 rules and practice of, 124. 
 of proceedings in other causes and courts, 124. 
 of matters of history, 125. 
 other matters of puilic knowledge. 
 of facts relating to currency, 126. 
 of geographical features, 127. 
 of census, distances, etc., 127 n. 41. 
 of surveys, plats and streets, 127. 
 of areas and lines of towns, counties, etc., 127 n. 42. 
 of matters of science and art, 128. 
 
 in patent cases, 128. 
 of Intoxicating liquors, 128. 
 of laws of nature, 129. 
 
 of seasons, festivals, coincidence of days, etc., 129. 
 of movements of heavenly bodies, etc., 129. 
 of course of agriculture, duration of life, etc., 129. 
 of ordinary instincts, physical characteristics, etc., 129. 
 of meaning of words and phrases, 130. 
 of the scriptures, 130. • 
 of abbreviations, 131. 
 of methods and customs of business, 123. 
 
 of railroads, banks, etc., 123. 
 of collateral facts, 132, 133. 
 of facts not within memory of judge, 132. 
 
 no evidence necessary, 132. 
 judges and jurors not to act on mere private knowledge of special, 
 
 facts, 133, 334. 
 jurors, when they may take notice of facts, 134. 
 
INDEX. 1273 
 
 REFERENCES ARE TO SECTIONS. 
 
 JITDICIAXi PROCEEDINGS. See Copies, Documents, Judgments, Records 
 OF Courts. 
 regularity presumed, 31. 
 
 when acts In, presumed performed In proper order, 34 n. 22. 
 best evidence of, 200 n. 11. 
 no admission Implied from silence at, 270. 
 
 JUDICIAL DISCRETION. See Discretion of Court. 
 
 JUDICIAli RECORDS. See Authentication, Copies, Documents, Judg- 
 ments, Records of Courts. 
 best evidence of, 200 n. 11. 
 ■when lost, 212 n. 70. 
 
 JUDICIAL SALES, regularity of, presumed, 47. 
 
 JURISDICTION. See Court, Judgments. 
 presumption of, as to parties, 31. 
 presumption of, where part of record Is lost, 31. 
 limitation of presumptions as to, 33. 
 
 where recitals in record as to, are contradictory, whole record ex- 
 amined, 32. 
 presumptions, when service is by publication, 33. 
 presumption of regularity after gaining, 34, 35. 
 must appear on face of proceeding in inferior courts, 36, 37. 
 of inferior courts, may be proved by extraneous evidence, 36. 
 findings of the court of sister state as to, presumed correct, 38. 
 of probate court, when presumed, 37. 
 want of, as defense, when gives defendant right to open and close, 
 
 197 n. 69. 
 absence from, as ground for admitting testimony taken at former 
 
 trial, 341. 
 essential to conclusiveness of verdict, 585. 
 in proceedings in rem, 606, 609. 
 in divorce actions, 607, 608. 
 essential in probate proceedings 610. 
 presumptions as to, 611, 617. 
 collateral proof of want of, 611. 
 want of, apparent on face of proceedings, 611, 612. 
 
 domestic judgments, want of jurisdiction, 611; 
 when shown by extrinsic evidence. 611, 612. 
 taking deposition, witness cannot question, 668. 
 inferior courts, 613. 
 
 want of jurisdiction shown by extrinsic evidence, 613. 
 
 must appear of record, 613. 
 foreign courts, 614-616. 
 
 for what impeached, 616. 
 proof of fraud, 616. 
 
1274 INDEX. 
 
 EEFERENCES ARE TO SECTIONS., 
 
 JURISDICTION (continued) — 
 courts of sister states, 617. 
 
 when want of jurisdiction may be shown, 617. 
 rule when want of, appears, 617. 
 evidence to contradict record as to jurisdiction, 617. 
 jurisdiction presumed, 617. 
 
 JURISTS, as experts, 368. 
 
 JURORS, cannot act on private knowledge, 134. 
 notice of facts, when they may take, 134. 
 testimony of, to identify issues, when admissible, 600. 
 distrust of, by jurists of common law, 725. 
 proceedings of, privileged, 766. 
 when competent as witnesses, 766. 
 
 as to what facts, 766. 
 deliberations in jury room inviolable, 766. 
 misconduct of, 767. 
 
 bow proved, 767. 
 
 JURY, province of. See Province op Judge and Jury. 
 to determine sufficiency of evidence, 7. 
 when presumed to have been properly sworn, 34 n. 22. 
 when presumed that it followed instructions of court, 34 n. 22. 
 survivorship in common disaster, for, 64. 
 cannot disregard presumptions, 104. 
 
 collateral facts tending to prejudice, not admissible, 137. 
 inspection of person and articles by, 398, 399. 
 
 in criminal oases, 400. 
 experiments before, 403. 
 not to decide case solely from view, 409. 
 
 may use magnifying glass in comparison of handwriting, 555 n. 9. 
 questioning witness by, 814. 
 to determine whether witness impeached, 863. 
 to weigh the evidence, 898. 
 to pass on credibility of witnesses, 902. 
 
 JURY SYSTEM, effect of, on rules of evidence, 2. 
 
 JUSTICE OF THE PEACE, presumption of authority of, 43 n. 22. 
 judicially noticed, 109 n. 23. 
 signatures of, judicially noticed. 111 n. 39. 
 United States courts do not judicially know those of another state, 
 
 124 n. 13. 
 parol proof that one taking acknowledgment was a, 205 n. 23. 
 when he has power to compel recognizance by witness, 804, 
 
INDEX, 1275 
 
 EEFERENCES ABE TO SECTIONS, 
 
 JUSTICE'S' COURTS. See Couets, JuDGM:Ba<fTS, Jubisdiction, Recoeds of 
 
 COUBTS. 
 
 jurisdiction, not presumed, 36 n. 25. 
 
 proceedings of, in sister states, how proved, 626. 
 
 distance wliich witnesses may be compelled to travel, limited, 797. 
 
 KEROSENE OIL, nature of, judicially noticed, 128 n. 47. 
 
 KNOWLEDGE of law presumed, 23. 
 
 of consequences of ones own act presumed, 27, 28. 
 
 common knowledge, matters of, judicially noticed, 133, 134. 
 
 witnesses must testify from, 137. 
 
 provable by similar acts, etc., 142. 
 
 collateral facts to show, 146. 
 
 burden of proof as to facts peculiarly within. See Bubden of Pboof, 
 
 181-187. 
 means of, to render witness competent, 302. 
 to render expert competent, 363. 
 shown by cross-examination, 822, 828. 
 may be asked of impeaching witness, 864. 
 of correctness of memorandum essential to use of, to refresh memory, 
 877. 
 
 KORAN, Mahometans sworn on, 715. 
 
 L. 
 
 LACHES. See Negligence. 
 
 LADING. See Bill of Lading. 
 
 LAKES, judicial notice of, 127. 
 
 LANDING, hearsay admissible to prove right of, 301 n. 2S. 
 
 LANDLORD AND TENANT, presumptions from possession of tenant, 80. 
 payment of rent, relevancy of proof that it was paid by others, 140. 
 admissions of one as against the other, 243. 
 tenant cannot dispute title of landlord, 284. 
 
 may show evicflon by title paramount, 284. 
 
 that the lease was void and never existed, 284. 
 
 fraudulent representations, duress or mistake, 284. 
 payment of rent as estoppel, 284. 
 conduct of, as an admission, 287. 
 declaration of tenant as against landlord, 352. 
 parol proof of customs between, 461. 
 when bound by judgment against the other, 587. 
 
1276 INDEX. 
 
 EEFERBNCES ARE TO SECTIONS. 
 
 LANDS. See Conveyances, Deeds, Mortgages. 
 presumption of title from possession of, 75. 
 value of, 168, 169. 
 
 expert testimony as to, 382. 
 conveyances of, under statute of frauds, 413. 
 
 surrrender of interest in, as aSected by statute of frauds, 415, 416. 
 memorandum as to sale of, 429, 430. 
 parol evidence to identify, 451 n. 98. 
 records relating to, provable by copies, 522 n. 60. 
 
 LAPSE OF TIME, raises presumption of payment. See Peesumptions, 
 65-69. 
 not a bar, only a presumption, 66. 
 presumption from less than twenty years, 67. 
 not a bar to a trust, 78. 
 
 LARCENY relevancy of similar acts, 144. 
 
 cross-examination as to to affect credibility, 832 n. 29. 
 privilege as to criminating testimony as to, 884 n. 99. 
 
 LATENT AMBIGUITIES. See Ambiguity. 
 definition of, 472. 
 parol proof of, 472. 
 
 In wills, parol proof to explain, 479, 480. 
 in deeds, parol proof to explain, 485. 
 In notes and bills, parol proof of, 495. 
 
 LAW, knowledge of, presumed, 23. 
 struggle for uniformity of, 9. 
 presumptions of, 11. 
 every person presumed to have conformed to, until contrary appears, 
 
 13 n. 25. 
 violation of, not presumed, 13 n. 27. 
 
 non-resident presumed to know that of place of contract, 21 n. 79. 
 eSect of mistakes as to, 24. 
 common law presumed to continue in force, 58. 
 
 LAW MERCHANT, judicial notice of, 110, 121, 123. 
 
 LAW OP FOREIGN COUNTRIES, presumptions as to, 84. 
 proof of, 112, 119. 
 proved by lawyers and jurists, 368. 
 unwritten law proved by expert witnesses, 502. 
 
 who may testify as experts, 502. 
 written law, by authenticated copy, 502. 
 
 mode of authentication, 503. 
 
 by volumes of statutes, 503. 
 
INDZIX. 
 
 EEFBBBNCBS ABE TO SECTIONS. 
 
 1277 
 
 LAW OF FORUM, when law of sister state will be presumed same as, 83. 
 applied, where no proof of foreign law, 84. 
 judicial noUce of, 112. 
 
 LAW OF NATIONS, judicial notice of, 112. 
 
 LAW OF NATURE, judicial notice of, 129. 
 
 LAW OF SISTER STATES, presumptions as to, 83. 
 must be proved, 118, 504. 
 when judicially noticed, 119. 
 mode of proof of statutes of, 504, 505. 
 
 authenticated copies, 505. 
 
 unoflacial volumes, not competent, 505. 
 
 expert opinion as to statutes, 506. 
 unwritten law proved by experts, 506. 
 
 latitude allowed in such cases, 506. 
 
 by judicial decisions, 506. 
 
 LAW OF THE ROAD, judicial notice of, 123. 
 
 LAW QUESTIONS, decided by the court, 175, 175a. 
 rule in criminal cases, 175a. 
 
 LAWS, published by authority, presumed correct, 117. 
 
 LAWYERS. See Attoeneys, Confidential CoMMUNioATioNa 
 as experts as to law, 368. 
 
 as to value of service, 387. 
 as to handwriting, 556 n. 20. 
 
 LAYING FOUNDATION for impeachment. See Witnesses, 845-847, 850. 
 in case of parties, 851. 
 recalling witness for, 846, 852. 
 
 LEADING QUESTIONS, general rule as to, 816-819. 
 defined, 816, 819. 
 
 what are, illustrations of, 816 n. 17, 18. 
 objection to, 816. 
 
 those in alternative, when proper, 816. 
 examples of, 816. 
 
 examples of those not leading, 816 n. 17. 
 exceptions to the general rule, 817. 
 
 hostile witnesses, 817. 
 
 adverse party, 817. 
 
 Introductory questions, 817. 
 
 as to identification, 817. 
 
 want of recollection, 818. 
 
 embarrassed witness, 818. 
 
1278 INDEX. 
 
 EEFEEBNCES ARE TO SECTIONS. 
 
 LEADING QUESTIONS (continued) — 
 
 of those infirm or partially incompetent, 818. 
 
 of foreigners, 818 n. 28. 
 
 as to former contradictory statement, 818, 846. 
 
 conflict as to this rule, 818. 
 relative, not an absolute term, 819. 
 subject one of judicial discretion, 819. 
 
 abuse of discretion, 819. 
 
 reviewed on appeal, 819. 
 how cured, 819. 
 may be asked on cross-examination, 824. 
 
 when witness shows bias in favor of cross-examiner, 824. 
 
 controlled by court, 824. 
 
 as to new matter, 824. 
 In laying fon"latlon for impeachment, 846. 
 
 LEASES, best evidence of, 201 n. 12. 
 
 terms of, proof of by admissions, 208 n. 36. 
 
 estoppel as to, 281 n. 12. 
 
 as affected by statute of frauds, 414, 416. 
 
 accepting new one, effect of, 416. 
 
 parol proof as to, 461. 
 
 proved by attesting witnesses, 527 n. 7. 
 
 L^DGEiR, as book of original entry, 569, 570. 
 when produced as book of account, 577. 
 
 LEGACY. See Legatee, Wills. 
 
 LEGAL ADVISER. See Attobney. 
 
 LEGALITY of contracts, presumed, 85. 
 
 of usage, necessary to admit parol proof of, 467. 
 
 LEGATEE, parol proof as to identity, 477. 
 bound by judgment against testator, 587. 
 when not Included under term "heirs and representatives," 774. 
 
 LEGISLATIVE JOURNALS, as to due passage of statute, 117. 
 proof of, 507. 
 
 LEGISLATURE, judicial notice of, 106. 
 
 acts of, judicially noticed, when, 112, 113, 117, 118. 
 debates In, privileged, 762. 
 
 LEGITIMACY, weight of presumption of marriage in action Involving, 87. 
 presumptions as to. See Peestjmptions, 93-97. 
 weight of presumption of, 93, 94. 
 
 how rebutted, 94, 96, 97. 
 presumption, when conclusive, 11, 93-95. 
 declarations of deceased parents as to, 312. 
 
INDEX. 1279 
 
 EErEKENCES ARE TO SECTIONS. 
 
 LESSEE. See Landixjbd and Tenant, Leases. 
 
 LESSOR. See Landlokd and Tenant, Leases. 
 
 LETTERS, dates presumed correct, 51. 
 
 presumption as to mailing and receipt of, 52. 
 answers presumed to be genuine, 52. 
 presumption of identity as applied to, 100 n. 67. 
 best evidence of, 201 n. 12. 
 
 proof of contents by admissions, 206 n. 31, 208 n. 36. 
 secondary evidence as to contents of, 218 n. 20. 
 mode of cross-examination as to, 231, 847. 
 competent as admissions, 269. 
 when part of the contract, 269. 
 of res gestae, 269. 
 written to a party, when used as his admissions, 269. 
 failure to reply to, effect of, 269, 289. 
 not generally competent for the party writing, 269. 
 presumption from possession of, 269. 
 as offer of compromise, not admissible, 291. 
 connected admissions In, received together, 294. 
 when hearsay, 298. 
 
 not evidence of sanity of party addressed, 298. 
 when not part of res gestae, 348, 357. 
 trusts created by, 418. 
 
 mistake in date of, shown by parol, 438 n. 29. 
 registers of, as evidence, 508 n. 66. 
 as affording a basis for knowledge of handwriting, 547. 
 as evidence, 583. 
 preliminary proof of, 583. 
 as part, of res gestae or admissions, illustrations, 583. 
 
 when in favor of party offering them, 583. 
 mere hearsay, unless otherwise competent, 583. 
 secondary evidence as to, when admissible, 583. 
 letter-press copies, when competent, 583. 
 
 confidential communications of husband and wife in, 736 n. 79. 
 delivery of, a "transaction," 785 n. 89. 
 Impeachment by contradictory statements in, 847. 
 used to refresh memory, 875 n. 43. 
 
 LETTERS OF ADMINISTRATION. See Bxecutob and Administrator. 
 when presumed legally issued, 37 n. 30. 
 
 when presumptive evidence that requisite oath was taken, 37 u. 30. 
 best evidence of, 200 n 11. 
 
 LETTERS PATENT. See Patent, 
 
 LETTERS ROGATORY defined, 700. 
 
 foreign depositions taken under, 700. 
 
1280 INDEX. 
 
 BEFEKENCES ABE TO SECTIOKS. 
 
 LETTERS TESTAMENTARY. See Executoe and AoMiNisTttATOK. 
 raises presumption of deatli, when, 63. 
 
 LETTER-PRESS COPIES, when not admissible, 209. 
 not duplicate, 225. 
 
 In comparison of handwriting, 555 n. 9. 
 when admissible 583. 
 
 LEVY OF EXECUTION best evidence of, 200 n. 11. 
 
 LIBEL. See Slakdee. 
 
 relevancy of character in actions for, 149, 158. 
 amount of proof of, in civil actions, 16 n. 40, 195 n. 55. 
 relevancy of financial standing, 159, 160. 
 
 of plaintiff, 161. 
 libelous words not hearsay, 300. 
 
 LICENSE, burden of proof as to, 181. 
 
 LICENSEES estopped to question title of licensors, 285. 
 
 LIEN of bankers on deposits, judicial notice of, 123 n. 8. 
 
 LIFE. See Bieth, Death, Suevivoeship. 
 presumption of continuance of, 60. 
 overcome by presumption of innocence, 101. 
 presumption as to love of, 185. 
 
 LIFE INSURANCE, confidential communications to physicians, 9C1. 
 
 LIFE TABLES, to show expectation of life, judicial notice of, 129. 
 admissibility of, 578. 
 
 LIMITATIONS, STATUTE OP. See Statute op Limitations. 
 
 LIMITS of civil divisions, judicial notice of, 108, 127. 
 
 LIQUORS, judicial notice of intoxicating nature of, 128. 
 
 LIS MOTA, defined, 311. 
 what necessary for, 311. 
 excludes declarations as to matters of public interest and pedigree, 311, 
 
 LITERARY ALLUSIONS, judicial notice of, 130. 
 
 LOAN, for usuries interest, relevancy of proof of similar, 140. 
 
 LOAN AGENCY, usage of, when not binding, 464 n. 55. 
 
 LOCAL CUSTOM, must be proved, 123 n. 2. 
 parties to contract, when bound by, 466. 
 
 LOCAL HISTORICAL FACTS, not judicially noticed, 125. 
 
INDEX. ■ 1281 
 
 RBJ-BBENCES ABE TO SECTIONS. 
 
 LOCAL HISTORIES, Inadmissible as histories. See Histoeies, 584. 
 
 LOCAL LAWS, when judicially noticed, 116. 
 when to be proved, 116, 118. 
 
 LOCOMOTIVE, burden of proof as to fires set by, 184. 
 relevancy of other similar fires, 166, 167. 
 
 LOGARITHMS, tables of, admissibility of, 578. 
 
 LOG-BOOKS, as evidence, 508, 513. 
 when competent, 513. 
 
 LOST DOCUMENTS. See Docttments. 
 
 LOST INSTRUMENTS, best evidence of the contents of, 212, 216. 
 search necessary to admit secondary evidence, 213. 
 mode of proving loss, 216. 
 hearsay declarations not competent, 216. 
 
 but admissions of party may be received, 216. 
 affidavits not competent to prove loss, 216. 
 notice to produce, 218, 219. 
 
 objects and requisites of, 219, 220. 
 contents of, proved by a preponderance of evidence, 227. 
 substance of such document only required, 227. 
 contents of, not provable by declarations of third persons, 297 n. 4. 
 
 LOST WaLLS, declarations of testator as to, 484. 
 
 LOTTERY, keeping of, relevancy of similar acts, 144. 
 character of, judicially noticed, 123 n. 8. 
 
 LUCID INTERVALS, reasonableness of act as evidence of, 59 n. 10. 
 competency of witnesses during, 723. 
 
 LUNACY. See Insanity. 
 
 LUNATICS. See Insane Persons. 
 
 M. 
 
 MACHINERY, defective, what proof relevant, 166. 
 burden of proof as to, 183. 
 shown by photograph, 581 n. 4. 
 
 MACHINISTS, as experts, 380. 
 
 MADNESS. See Insanity. 
 
 MAGNETIC NEEDLE, judicially noticed, 128 n. 46. 
 81 
 
1282 INDEX. 
 
 BErERBNCES ABE TO SECTIONS. 
 
 MAHOMETAN, how sworn, 715. 
 
 MAILING LBTTBJRS, presumptions from, 52, 218. 
 
 MAILS, judicial notice of mode of carrying, 123. 
 wlien from private ofEice, 52. 
 when at train, 52 n. 79. 
 
 MAKER. See Negotiable Papeb. 
 
 MALICE, when presumed, 29. 
 
 when continuance of, presumed, 58. 
 
 when relevant, 138. 
 
 how rebutted in action for slander and Ubel, 150. 
 
 MALICIOUS PROSECUTION, rumors to show good faith in, 157. 
 relevancy of character in, 155 n. 26, 157. 
 specific offenses of plaintiff cannot be shown, 157. 
 good character, when relevant, 157. 
 relevancy of financial standing, 159. 
 
 of plaintiff, 161. 
 statements apparently hearsay, when admissihle in action for, 300. 
 
 MALICIOUS SHOOTING, relevancy of similar acts to repel inference of 
 accident, 147. 
 
 MALICIOUS MISCHIEF, relevancy of character, 155 n. 26. 
 
 MALPRACTICE, relevancy of evidence as to, 149. 
 
 admissibility of medical books relating to, 578 n. 78. 
 
 rule as to confidential communications In actions for, 760. 
 
 MANUFACTURERS, books of account of, when admissible, 571 n. 31. 
 
 MANUSCRIPT. See Documents. Weitlnqs. 
 
 MAPS, relevancy of, 139. 
 
 competent as admissions, 270 n. 39, 307. 
 to prove public, not private boundaries, 307. 
 
 relaxation of rule in some states, 307. 
 must first be proved correct, 307. 
 
 unless ancient, 307. 
 ancient, evidence of what, 307. 
 of explorers, 307. 
 as evidence, 508 n. 67. 
 
 MARK. See HANDWEinNa. 
 signing by, 546. 
 identifying such signatures, 546. 
 
INDEX. 1283 
 
 EEFEBENCES ABE TO SECTIONS. 
 
 MARKETT REPORTS, proved by newspapers, 582. 
 
 MARRIAGE. See Husband and Wtfe, Legitimacy, Pedigkbi:. 
 presumed duly solemnized, 13 n. 25. 
 relation, presumption as to, 14. 
 presumption of law of sister state as to, 83 n. 46. 
 presumption of, 86, 87. 
 
 presumption of legal capacity for, arising from, 86. 
 confessions as proof of, 88. 
 proof of, in criminal cases, 88. 
 ■proof of, without formal ceremony, 89. 
 illicit connection, how changed to lawful, 89. 
 presumptions arising from relation of, 90. 
 when denial of, admissible, 97. 
 when infant presumed unable to consent to, 98. 
 presumption as to, overcome by that of innocence, 101. 
 settlement, recitals in, to prove pedigree, 315. 
 certificate, recitals in, to prove pedigree, 315. 
 registers of, proof of, by, 508-511. 
 
 when competent at common, law, 510. 
 American rule, 511. 
 
 effect of statutes, 511. 
 registers of, provable by copies, 522 n. 60. 
 
 certificates of, federal statutes as to proof of, by copy, 538 n. 97. 
 termination of, as affecting admissibility of confidential communica- 
 tions between husband and wife, 736, 737. 
 judgment to prove, against strangers, 588. 
 judgment in divorce, conclusion as to existence and dissiolutlon of, 
 
 608 n. 22. 
 burden of proving, to render spouse incompetent, 744. 
 
 MARRIED WOMEN. See Husband and Wii^. 
 
 as to estoppel of, by recitals in instruments, 283. 
 
 MAHSHAL, presumption of authority of, 43 n. 42. 
 
 MASON. See Pre^: Masons. 
 as an expert, 380. 
 
 MASTER AND SERVANT, when servant presumed honest, 13 n. 25. 
 negligence of servant, proof of, 165. 
 proof of other acts of negligence, 165. 
 warranties by servant, 256. 
 
 declarations of servant as to ownership of personal property, when ad- 
 missible, 351. 
 competency of, as to transaction with deceased, 775. 
 
 MIATERIAL ALTERATION of writings. See Alteration. 
 
1284 DJDKX. 
 
 BEFEBENOES AB!E TO BEOTIOHS. 
 
 MATERIAliITY. See Rbmvauct. 
 of variance, 234. 
 
 MATRIMONIAIj state, presumption of continuance of, 58 n. 2. 
 
 MATRONS, inspection by jury of, when pregnancy pleaded, 395. 
 
 MATTERS OF COMMON KNOWIxBDGE, judicially noticed, 133, 134. 
 
 MATTERS OP IjAW, mistake as to, effect of, 24. 
 
 m:aTTERS of SCIENCE AND ART, judicially noticed, 128. 
 
 MATURITY OF CROPS, judicial notice of, 129, 
 
 MAXIMS, judicial notice of, 130. 
 
 MEANING OF WORDS AND PHRASES, judicial notice of, 130. 
 
 parol proof of. See Pabol Evidenoe to Explain Wbitings, 455-456. 
 in wills, parol proof of, 479. 
 
 MEANS OF KNOWLEDGE. See Kno-wi.edge. 
 as to boundaries, 303. 
 of expert, 363. 
 
 shown by cross-examination, 822. 
 may be asked, of impeaching witnesses, 864. 
 
 MEASUREMENT, judicial notice of, 127. 
 
 MEASURES AND WEIGHTS, admissibility of tables of, 578. 
 
 MECHANICS, deceased, admissibility of entries by, in due course of busi- 
 ness, 319 n. 57. 
 as experts, 381. 
 books of account of, when admissible, 571 n. 31. 
 
 MEDICAL BOOKS, admissibility of, 578 n. 78. 
 
 MEDICAL MEN. See Physicians. 
 
 MEETINGS, records of. See Copies, Municipai, Corpoeations, Recobds. 
 
 MEMBERS OF FAMILY, acts and declarations of, as to pedigree. See 
 Pedigeeb, 313-316. 
 
 MEMORANDA under statute of frauds, 429, 430. 
 in sale of lands or goods, 429, 430. 
 requisites of, 429, 430. 
 parol proof to vary or explain, 429, 430. 
 
 as to consideration, 430. 
 time of making, 430. 
 need not be formal instrument, 430. 
 nor single instrument, 430. 
 for refreshing memory of witness. See Rebbeshinq Memobt, 874-883. 
 
INDEX. 1285 
 
 EEFEEENCES AKE TO BEOTIOHS. 
 
 MEMORY, of Judge, may be refreshed, 132. 
 competency, when defective, 724. 
 refreshing. See Refeeshing Memory, 874-883. 
 tested on cross-examination, 826. 
 
 MENTAL CAPACITY, want of, shown by parol, 436 n. 20. 
 proof of declarations of testator to show, 482. 
 
 want of, as affecting competency. 'See Competenot 01 Witnesses, 
 719-724. 
 
 MENTAL CONDITION, In personal injury cases, 349, 350. 
 opinions of ordinary witnesses as to, 360 n. 3. 
 of testator, declarations to show, 482, 483. 
 may be inquired into on cross-examination, 826. 
 
 MENTAL FEELINGS, declarations to show, 349, 350. 
 
 MERCANTILE 'AGENCIES, judicial notice of nature of business of, 
 123 n. 8. 
 
 MERCHANTS, as experts, 382. 
 
 usage of, when not binding, 464 n. 55. 
 as to handwriting, 556 n. 20. 
 
 MERGER, when parol agreement not merged in writing, 436. 
 cause of action not merged in foreign judgment, 616. 
 
 MESSAGES. See Copies, Documents, Telbgbams, Telephone. 
 telegraphic, how proved, 210. 
 by telephone, how proved 211. 
 of public officers privileged, 762. 
 
 MIDWIFE, entry by, of time of birth admissible, 323. 
 
 MILEAGE of witness to be tendered, 79'8. 
 
 MILITARY OFFICERS of IT. S., presumption of performance of official 
 duty, 45 n. 47. 
 
 MILL, parol evidence to identify, 450 n. 98." 
 usage of, when not binding, 464 n. 55. 
 
 MILLERS, as experts, 386. 
 
 books of account of, when admissible, 571 n. 31. 
 
 MILLWRIGHTS, as experts, 386. 
 
 MINERS, as experts, 384. 
 
 MINISTERIAL POWERS, presumptions as to, 33. 
 
 MINISTERS. See Clekgymen. 
 
1286 IISTDEX. 
 
 BEFEBENCBS AEE TO SECTIONS. 
 
 MINORITY, presumption as to continuance of, 58, 
 
 MISCONDUCT OF JURORS, how shown, 766, 767. 
 
 MISCONDUCT OF OFFICERS. See Conduct, Officers, Public Ofitcebs. 
 no presumption, when sued for, 46 n. 48. 
 
 MISCONDUCT OF PARTY, when relevant, 138. 
 
 MISDEMEANOR, Incapacity of infants to commit, 98. 
 
 MISNOMER, effect of, 477, 662, 670. 
 
 MISREPRESENTATION, as element of estoppel, 275, 279. 
 
 MISREPRESENTATION OP LAW, no ground of action or defense, 26. 
 
 MISTAKE, in notice to produce, effect of, 220. 
 In pleadings, effect of when withdrawn, 274. 
 statute of frauds does not prevent proof of, 431. 
 proved by parol, 431, 474. 
 as to dates, shown by parol, 438. 
 in wills, parol proof as to, 475. 
 
 intention of testator to govern, 475. 
 as to name, effect of, 477, 641, 662, 670. 
 In books of account, as affecting their admissibility, 576. 
 in deed, parol proof of, 485. 
 
 MISTAKE OP PACT, shown by parol, 437. 
 
 MISTAKE OP LAW, effect of, 24. 
 
 MITIGATION OF DAMAGES. See Damages. 
 
 character relevant in. See Chabacteb, 149-151. 
 
 rumors relevant in, 150. 
 
 good character, not relevant, 158. 
 
 MIXED QUESTIONS of law and fact, 175. 
 
 MODE OP LIFE, when evidence of, relevant, 138. 
 
 MODELS, relevancy of, 139. 
 inspection of, 411. 
 production of, in federal courts, 802. 
 
 MODIFICATION. See Alteration. 
 
 MONEY, judicial notice of, 126. 
 
 effect of paying money into court, 292. 
 where contract is Illegal, 292. 
 deposit of, a "transaction," 785 n. 89. 
 
INDEX. 
 
 EETEBENOES AKE TO SECTIONS, 
 
 1287 
 
 MONOMANIA, presumption of continuance of, 59. 
 as a ground of incompetency, 723. 
 
 MONTH, Judicial notice of, 129. 
 
 MONUMENTS, best evidence of inscription on, 205, 
 inscription on, to prove pedigree, 315, 316. 
 opinions of surveyors as to, 384. 
 
 MOON, judicial notice of time of rising and setting of, 129. 
 
 MORAL EVIDENCE, defined, 5. 
 
 MORPHINE, cross-examination as to use of, 828 n. 99. 
 
 MORTALITY TABLES, as evidence, 129, 578. 
 
 MORTGAGES, date of, presumed correct, 51 n. 73. 
 presumption as to payment, 65 n. 52. 
 best evidence of, 201 n. 12. 
 parol proof of existence of, 203 n. 18. 
 
 when grantee in deed is estoppel to question validity of, 281 n. 12. 
 parol proof that deeds are, 446, 447. 
 what proof relevant, 447. 
 proof to be clear, 447. 
 parol proof not to contradict the mortgage, 499. 
 parol proof to explain ambiguities, 499. 
 parol proof that they are deeds, not admissible, 499 
 parol proof to show true consideration, 499. 
 registeries of, as evidence, 508, 519. 
 proved by attending witnesses, 527 n. 7. 
 
 MOTIVE, apparently collateral facts to show, 142, 143. 
 party may testify as to, 170. 
 
 explaining, 171. 
 evidence of, when inadmissible, 297 n. 4. 
 declarations showing, 350. 
 shown by cross-examination, 822, 826, 828. 
 
 MOUNTAINS, judicial notice of, 127. 
 
 MUNICIPAL CHARTERS, judicial notice of, 115. 
 
 MUNICIPAL CORPORATIONS. See Corporations. 
 
 when adjournments of bodies of, presumed regularly taken, 46 n. 48. 
 
 when elections of, presumed legally held, 46 n. 48. 
 
 when formalities in making contracts for, presumed complied with, 
 
 46 n. 48. 
 when presumed regularly organized, 46 n. 48. 
 totind by admissions of officers, when, 267, 
 
1288 INDEX. 
 
 EEFEEENCES AEE TO SEtTTIONa. 
 
 MUNICIPAL CORPORATIONS (continued)— 
 records of, as evidence, 508, 514. 
 ground of admission, 514. 
 when competent, 514, 522. 
 
 for or against corporation, 514. 
 how authenticated and proved, 515. 
 provable by copies, 522, 802. 
 weight of such evidence, 525. 
 production of booliLS of, how secured, 802. 
 
 MUNICIPAL COURTS, presumption as to jurisdiction of, 36. 
 Judicial notice of ordinances by, 116. 
 
 MUNICIPAL LAW, meaning of term evidence In, 1. 
 
 MUNICIPAL OFFICERS, presumption of regularity of acts of, 42, 46. 
 authority of, presumed, 43. 
 
 extends to semi-official persons, 44. 
 presumed to have performed their duty, 45. 
 appointment of, when presumed, 46 n. 48, 205. 
 judicial notices of, 109. 
 
 power to make admissions for munlci'pality, 267. 
 records of, as evidence, 508, 509, 514, 515. 
 
 MUNICIPAL ORDINANCES, when judicially noticed, 116. 
 presumed properly passed, 46 n, 48. 
 
 MUNICIPALITIES, inhabitants of, as witnesses, 267, 732. 
 maps of, admissible, 307. 
 
 MUTES, competency of, as witnesses, 719. 
 
 MUTILATION. See Altebation. 
 
 N. 
 
 NAME, presumption of Identity from, 100. 
 
 abbreviation of christian names judicially noticed, 131. 
 
 amendment of allegations as to, 233. 
 
 living under assumed, as admission of guilt, 287. 
 
 mistakes in, effect of, 477, 641, 662, 670. 
 
 compelling persons to write for comparison, 550. 
 
 alteration In, vitiates instrument, 560 n. 41. 
 
 NARRATION of past erents, when hearsay, 345. 
 
 NATIONS, law of, judicial notice of, 112. 
 
 NATURAL CONSEQUENCES of acts, presumption that persons know, 
 27, 28. 
 
INDEX. 1289 
 
 BEPEEENCES ABE TO SECTIOWS. 
 
 NATURAL EVIDENCE. See Real Evidence, 
 
 NATURAL LAWS, judicial notice of, 129. 
 
 NATURAL PRESUMPTIONS, discussed, 10. 
 
 NATURAL SUPPORT, presumption as to right of, 76 n. 8. 
 
 NATURE, course of, judicially noticed, 129. 
 
 NAUTICAL MEN, as experts, 385. 
 
 NAVIGABLE WATERS, judicial notice of, 127 n. 41. 
 
 NAVIGATION, law of, judicial notice of, 123. 
 
 NECESSARIES, presumptions as to, husband and wife, 90. 
 parent and child 99. 
 statements of wife in obtaining, binding on husband, 260. 
 
 NEEDY CIRCUMSTANCES, of creditor, as circumstances in presumption 
 of payment from lapse of time, 68. 
 
 NEGATIVE ALLEGATIONS, burden may be on one asserting, 12, 180. 
 
 NEGATIVE EVIDENCE, weight of, 898. 
 
 NEGLIGENCE, presumption of, 15, 185. 
 
 amount of proof to establish charge of crime In action for, 16 n. 40. 
 
 liability of Infants for, 99. 
 
 relevancy of similar acts, 148. 
 
 character not relevant In actions for, 148 n. 91. 
 
 relevancy of financial standing, 159. 
 
 facts apparently collateral, when relevant, 163-165. 
 
 proof of, by other specific acts, 165. 
 
 railroad fires, proof of, 166, 167, 184. 
 
 burden of proof In actions for loss of goods, etc., 182. 
 
 must be proved. See Bueden of Peoof, 188, 185-187, 192. 
 
 proof of, prima facie case sufficient, 183, 187. 
 
 circumstances may afford, 186. 
 as to contributory negligence, 185. 
 
 when accldBnt raises Inference of, 185. 
 Instinct of self-preservation, 185 
 
 of bailees, 186. 
 
 of Inkeepers, 187. 
 not shown by proof of repairs since accident, 288. 
 conflict as to this rule, 288. 
 
 such evidence admissible for some purposes, 288. 
 declarations of agents of corporations to show, 357. 
 
1290 INDEX. 
 
 EEFERENCES AEB TO SECTIOIfS. 
 
 NEGLIGENCE (continued) — 
 
 experts not to decide as to, 372. 
 
 opinions of experts as to, 381. 
 
 view by jury In actions for, 407. 
 
 not excused by proof of usage, 462 n. 45. 
 
 NEGOTIABLE PAPER. See Alteration, Endobsements, Pabol Evidence 
 TO Explain Wbitings. 
 presumptions as to, 49, 49 n. 54, 57. 
 date presumed correct, 51 n. 73. 
 presumption of payment from possession of, by drawee or payee, 57. 
 
 from lapse of time, 65 n. 52. 
 manner of computing time as to presumption of payment of, from 
 
 lapse of time, 67. 
 presumption as to law of sister state as to, 83 n. 46. 
 presumption of identity from name as to, 100 n. 67. 
 when defendant has right to open and close In actions on, 197 n. '69. 
 presumption, from acceptance of, 73. 
 presumption of ownership from possession, 74 n. 95. 
 best evidence of, 201 n. 12. 
 payment of, provable by parol, 203 n. 18. 
 
 secondary evidence of, when notice to produce unnecessary, 223 n. 61. 
 declarations of former owner, 247. 
 admissions of joint makers, 252. 
 
 acceptor of, estopped to deny genuineness of signature, 286. 
 and competency of drawer, 286. 
 
 but not want of genuineness of rest of instrument, 286. 
 or other names or title of holder, 286. 
 trusts created by recitals in, 418. 
 parol proof to correct mistake of date of, 438 n. 29. 
 to show that It was given for security, 448 n. 83. 
 parol proof to explain, 494-497. 
 
 Illustrations, 494 n. 45, 46. 
 as to amount, 494. 
 payment on contingency, 494. 
 collateral agreement, 494. 
 qualifications of rule as to parol proof applied to, 495. 
 
 fraud. Illegality, alteration, mistake, want of consideration, etc., 
 495. 
 to show conditional delivery between original parties, 495. 
 
 delivery In escrow, 495. 
 to show relation of parties etc., 495. 
 explanation of obscurities, 495. 
 as to latent ambiguity in, 495. 
 as to place of payment, 495. 
 when Innocent third party Is affected, 495. 
 distinct collateral contract, 495. 
 
INDEX. 1291 
 
 BEFEBENCES AEE TO SECTIONS, 
 
 NEGOTIABLE PAPER (continued) — 
 
 whether given in satisfaction of former note, 495, 
 
 that note had been discharged, 495. 
 
 as to endorsements. See Endorsements, 496, 497. 
 
 certificate of notary as to protest of, 544. 
 
 alteration in, vitiates, 558. 
 
 Immaterial alterations in, effect of, 559. 
 
 examples of, 559 n. 34. . 
 material alterations, examples of, 560 n. 41. 
 
 materiality of, question for court, 560. 
 consent to alterations in, implied from blanks, 561 n. 46. 
 after alteration, when may sue on original debt, 566. 
 burden of proof as to alteration in, 566. 
 
 explanation of alteration by holder, 566. 
 want of consideration or forgery as defense, 604. 
 payment pleaded as defense, 605. 
 
 conflict where plaintiff has not made proper credits, 605. 
 execution of, a "transaction," 785 n. 89. 
 
 NEGOTIATION. See Compeomise. 
 
 NEIGHBORS, declarations of, as to matters of pedigree, not admissible, 
 312. 
 
 NEIGHBORHOOD, reputation in, impeachment by, 859. 
 
 NEWSPAPER, best evidence of contents of, 201 n. 12. 
 as evidence, 582. 
 when admissible, to show notice, 582. 
 
 against author, 582. 
 
 as to trains, market reports, etc., 582. 
 as to dissolution of partnership, 582. 
 as to articles published therein, 582. 
 used to refresh memory, 877 n. 52. 
 
 NEW TRIAL, when granted for disregard by jury of presumption of pay- 
 ment, CO. 
 use of depositions in, under statute, 682. 
 issues and parties to be same, 683. 
 statutes must have been complied with, 683. 
 when granted for disobedience of order excluding witnesses, 808. 
 for erroneous admission or exclusion of evidence 896, 897. 
 rule where error not prejudicial, 896, 897. 
 
 NEXT FRIEND, incompetent as to transactions with a deceased or in- 
 competent, 777 n. 25. 
 
 NOLLE PROSEQUI, effect of entry of, on privilege of witness, 888 n. 27. 
 
1292 INDEX. 
 
 EEFEEBNCES ABE TO SECTIONS. 
 
 NOMINAL PARTIES, admissions by, 237. 
 
 when subject to adverse party examination, 707. 
 were competent as witnesses at common law, 727. 
 
 NON-ACCESS. See Access, Husband and Wife. 
 
 NON-ATTENDANCE of witness. See Witness, 797-808. 
 
 NON-EXPERT WITNESS, when opinions of, competent. See Opinions, 
 360-366. 
 
 NON-INTERCOURSE. See Access. 
 
 when testimony tending to show, excluded, 97. 
 
 NON-JUDICIAL RECORDS, authentication of. See Authentication, 
 Copies, Recoeds. 
 
 NON-OFPICIAL ACTS, presumption of regularity of, 41, 42, 46 n. 48. 
 
 NON-PRODUCTION of evidence, presumption from, 19, 22. 
 presumption not conclusive, 22. 
 effect of, on mode of proof, 19. 
 of papers, on notice to produce, effect of, 222. 
 of real evidence, effect of, 402. 
 
 NON-RESIDENCE of witness. See Depositions, Residence, Witnesses. 
 
 NON-RESIDENT, presumed to know law of place of contract, 21 n. 79. 
 presumption of jurisdiction by service by publication, 33. 
 when privileged from arrest and service of process, 805. 
 
 NON-SUIT, when granted, 174, 185. 
 
 may be taken on stipulation of attorney, 257. 
 granting on opening statement of counsel, 257. 
 effect of, as evidence, 596. 
 evidence offered after, 814. 
 
 NORTHAMPTON LIFE TABLES, judicial notice of, 129. 
 admissibility of, 578. 
 
 NOTARY PUBLIC, presumption of authority of, 43 n. 22. 
 presumption of performance of official duty, 45 n. 27. 
 , judicial notice of, 110. 
 
 deceased, entries made by, in due course of business, 319 n. 57. 
 certificates of, as to protest of bill of exchange, 544. 
 
 NOTES AND BILLS. See Endobsements, Negotiable Papeb. 
 
 NOTES OF TESTIMONY, when not admissible, 343, 764. 
 to refresh memory, 343, 764. 
 
 NOTICE, when presumed given to all interested parties, 34 n. 22. 
 in negligence cases, relevancy of, 163. 
 
INDEX. 1293 
 
 EETEEENCES ARE TO SECTIONS. 
 
 NOTICE OF DEMAND AND PROTEST, presumption of law of sister 
 state as to, 83 n. 46. 
 parol agreement to waive, 497. 
 
 NOTICE OP DISHONOR, notice to produce not necessary, 224 n. 69. 
 
 NOTICE OP TAKING DEPOSITION. See Depositions, 637, 639, 640, 
 656-658. 
 de bene esse, 637-641. 
 service of, 642. 
 
 statutes to be compiled with, 658. 
 requisites of, 661-664. 
 
 to contain names of witnesses, etc., 662. 
 on whom served, 663. 
 place of taking, 664. 
 error in, 670, 671. 
 waiver of defects In, 670, 675. 
 
 NOTICE TO PRODUCE DOCUMENTS. See Best Evidence, Copies, Doc- 
 uments, Secondary Evidence. 
 presumption from non-compliance, 19-22. 
 
 qualification of rule where document not within control of 
 party failing to produce, 21. 
 iDTien necessary to admission of secondary evidence of vrriting, 
 218, 222. 
 possession of documents by one served with notice necessary, 218. 
 
 such possession, when shown, presumed to continue, 218. 
 object of the notice, 219. 
 time of serving the same, 219. 
 
 when document in court, 219 n. 38. 
 further examples of sufficient notice, 219 n. 38. 
 requisites of such notice, 220. 
 
 single notice is sufficient for several trials, 220. 
 
 even if in different courts, 220. 
 must clearly designate instrument, 220. 
 mistakes which do not mislead immaterial, 220. 
 usually in writing, 220. 
 on wJiom served, 221. 
 
 on attorney or agent, 221. 
 
 where document is in hands of third person, 221. 
 effect of non-production, 222. 
 when not necessary, 223. 
 
 when the proceeding itself notifies that production necessary, 223. 
 where possession wrongfully obtained by adverse party, 223. 
 where paper itself is a notice, 224. 
 
 where loss or destruction of document is admitted, 224. 
 where party testified that he never had possession of document, 
 224. 
 
1294 INDEX. 
 
 EEFERENCES ARE TO SECTIONS. 
 
 NOTICE TO PRODUCE DOCUMENTS (continued) — 
 
 where party has offered to produce document, 224. 
 where document Is mere memorandum, 224. 
 where the documents are duplicates, 225. 
 where It is a recorded deed, 225. 
 effect of production after notice, 226. 
 
 such document or writing not made competent as evidence, 22S. 
 right to inspect documents produced, 226. 
 without introducing in evidence, 226. 
 conflict as to right, 226. 
 
 NOTICE TO QUIT, notice to produce not necessary, 224 n. 69. 
 proof of by subscribing witnesses, when 527 n. 7. 
 
 NOTORIETY as guide In determining facts judicially known, 105. 
 of party, relevancy of, 139. 
 of usage and custom essential, '463, 464. 
 
 NOTORIOUS PACTS judicial notice of, 133, 134. 
 
 NUMBER OF WITNESSES, limiting, 8, 814, 900. 
 one generally sufficient, 900. 
 
 preponderance of proof, not of witnesses, essential, 900. 
 where testimony Is cumulative, 900. 
 
 NURSES, as experts, as to value of services, 387. 
 
 0. 
 
 OATH, why administered, 236. 
 on taking depositions, 643, 660. 
 of commissioner, 651. 
 sanction of, essential, 712. 
 different forms of, 712. 
 or equivalent required, 715. 
 
 In form most obligatory, 715. 
 judge to determine whether obligation of. Is comprehended by infant, 
 
 720. 
 when refusal to take is contempt, 800. 
 
 OBJECTIONS to quality of goods, when waived, 57. 
 
 to correctness of statement of account, when waived, 57. 
 
 OBJECTIONS TO COMPETENCY of witness. See Competency or "Wit- 
 nesses. 
 
 OBJECTIONS TO DEPOSITIONS under state statutes. See Depositions, 
 670-677. 
 waiver of, 671, 672. 
 
INDEX. 
 
 KESTEEEWCES AEE TO SEOTIONB. 
 
 1295 
 
 OBJECTIONS TO DEPOSITIONS (continued) — 
 when to be made, 673. 
 suppression of, because of, 686, 691. 
 
 motion to suppress, to be definite, 692. 
 
 OBJECTION TO EVIDENCE asi not the best evidence, 202. 
 must be specific, 893. 
 
 Illustrations, 893, 894. 
 when to be made, 893. 
 effect of general objection, 893. 
 
 when suflScient, 894. 
 
 when limited to grounds specified, 894. 
 
 when part of testimony admissible, 894. 
 waiver of, 894. 
 repetition of, 894. 
 
 OBJECTS shown to jury as evidence. See Real Evidence. 
 
 OBSTRUCTING the attendance of witnesses. See Contempt, 799, 806. 
 
 bCCUPATION, questions as to, on cross examination, 832 n. 29. 
 
 OFFER OF JUDGMENT, if not accepted, mot admissible, 292. 
 
 OFFERS OF COMPROMISE. See Compbomisb. 
 not generally admissible, 291. 
 
 especially when expressly made without prejudice, 291, 
 •admissions as to Independent facts, illustrations, 291. 
 
 OFFERS OF TESTIMONY, when error to reject, 894. 
 
 OFFICE, acting In, presumption of appointment from, 39, 40, 43, 287. 
 prima facie proof of election to, what Is, 193. 
 
 OFFICE BONDS, attesting witnesses not necessary to prove, 532. 
 
 OFFICE COPIES, defined, 523. 
 seldom used, 524. 
 
 OFFICER, presumption from acting as. See Peesumptions, 43-48, 287. 
 presumption of continuance as an ofiioer, 58. 
 conduct as, as admission, 287. 
 should not be excluded from court room, when, 807. 
 return of, as evidence. See Returns or Officers, 631-633. 
 
 OFFICERS, of town, presumption as to requisite number, 46 n. 48. 
 
 OFFICERS OP CORPORATION. See Corpobations, Municipal Officers, 
 OrFicEass. 
 when declarations of, not binding on corporation, 268, 268 n. 22. 
 when bound by admission in corporate records, 270. 
 
1296 INDiEX. 
 
 BEPERENCES ABE TO SECTIONS. 
 
 OFFICERS OF COURT. See Cottbts, Ofb*icebs. 
 judicially noticed, 124. 
 
 OFFICERS OF GOVERNMENT, judicial notice of, 109. 
 
 OFFICIAL ACTS, regularity of, presumed, 30, 41, 42, 45, 46, 47 48. 
 
 OFFICIAL. APPOINTMENT, presumed, 46. 
 parol proof of, 205. 
 
 OFFICIAL. CERTIFICATES, as evidence. See Cbktificates. 
 
 OFFICIAL. CHARACTER presumed from acting iu office, 43, 44. 
 
 OFFICIAL. COMMUNICATIONS, privileged, 762. 
 
 OFFICIAL. DUTY, presumption of performance of, 45. 
 
 OFFICIAL REGISTERS, competent evidence, 508, 509. 
 of parishes, 508. 
 
 of births, deaths, baptisms, 508, 510. 
 of bishops, alcalde, 508. 
 of deeds and mortgages, 508. 
 competent as to what facts, 509. 
 when provable by copies, 522. 
 
 OLD AGE, leading questionsi asked of those in, 818. 
 
 OLD WRITINGS. See Ancient Documents, Documents, ■Wbitinqs. 
 
 OMISSIONS, parol evidence to suply those in documents, 440. 
 cross-examination as to, 826 n. 90. 
 
 ONUS PROBANDI. See Burden of Pboof. 
 
 OPEN AND CLOSE, plaintiff has right to, 197, 198. 
 belongs to defendant, when, 197, 198. 
 matter of right, 197. 
 
 rule not changed by admissions at opening of trial, 197 n. 64. 
 when not, by admission in answer, 198. 
 when defendant has right to, 197. 
 waiver of opening does not waive close, 197 n. 69. 
 
 OPERATION OF RAILROADS, expert testimony as to, 381. 
 
 OPINION EVIDENCE. See Expebt Testimony, Opinions. 
 
 OPINIONS. See Expert Testimony, Witnesses. 
 
 In dying declarations, not admissible, 334. 
 of witnesses generally inadmissible, 359. 
 exceptions to the rule, 359-392. 
 
 ordinary witnesses, 360-366. 
 
 experts. See Expert Testimony, 367-392. 
 
INDEX. 1297 
 
 EEFERBNCES AEB TO SECTIONS. 
 
 OPINIONS (continued) — 
 
 opinions of ordinary witnesses, when competent, 360-366. 
 
 not as to matters requiring special duty and slcill, 360-362. 
 asi to temper of animals, 360 n. 3. 
 as to color, weight, quantity, Ight, darkness, 360 n. 3. 
 as to state of weather, 360 n. 3. 
 state of feeling, 360 n. 3. 
 appearance of persons and animals, 360 n. 3. 
 as to age, reputation, state of health, 360 n. 3. 
 as to physical and mental condition, 360 n. 3. 
 as to intoxication, etc., 360 n. 3. 
 illustrations, 360 n. 3. 
 
 when description of particulars not necessary, 361. 
 as to identity, 361. 
 as to speed of railway trains, 362. 
 as to values, 363. 
 
 qualification of such witnesses as to such facts, 363. 
 on question of sanity, 364. 
 conflict as to rule, 364. 
 must be based on personal knowledge, 364. 
 of sanity, in will cases, 365. 
 
 miscellaneous illustrations, 366. 
 as to handwriting, 549, 555. 
 
 in scientific books. See Scientific Books, 578-580. 
 latitude in cross-examination as to, 826. 
 when inadmissible on cross-examination, 843. 
 impeachment of, by former contradictory opinions, 850. 
 
 OPIUM, cross-examination as to use of, 826 n. 85, 828 n. 99. 
 
 OPPORTUNITY, evidence of when relevant, 138. 
 
 ORAL TESTIMONY. See Pabol Evidence to Explain "WiiTiNoa. 
 
 ORDER, when presumed, court has proper evidence to make, 34 n. 22. 
 
 ORDER OP PROOF, right to begin and reply, 197. 
 discretion of court as to, 254. 
 general rule as to, 809. 
 discretion of court as to. See Witnesses, 809-811. 
 
 when subject to review on appeal, 811. 
 all evidence on subject opened to be introduced, 809. 
 evidence not to be given piecemeal, 809. 
 relaxation of rule, 810. 
 latitude allowed counsel as to, illustrations, 812. 
 
 relaxation of this rule, illustrations, 812. 
 must relevancy appear at time, 812, 813. 
 
 must appear that evidence will become relevant, 813. 
 caution as to admitting irrelevant evidence, 813. 
 82 
 
1298 ' INDEX. 
 
 EEFEEENCES ARE TO SECTIOlfa. 
 
 ORDER OP PROOF (continued) — 
 recalling witness, 814. 
 
 discretion of court as to, 814. 
 abuse of discretion, 814. 
 
 ORDERS, best evidence of, 200 n. 11. 
 competent as admissions, 270 n. 39. 
 
 ORDINANCES, presumed regularly passed 4G n. 48. 
 of municipalities, when judicially noticed, 116. 
 proof of, by printed books, 505. 
 register of, as evidence, 508 n. 66. 
 
 ORIGINAL ENTRIES in books of account. See Books or Account, 569. 
 
 ORIGINAL EVIDENCE. See Best Evidence. 
 
 declarations of agents within scope of authority are, 255. 
 when statements apparently hearsay, are, 300. 
 books of account treated as, 575. 
 
 ORIGINAL INFORMATION, not to be conveyed by memoranda to re- 
 fresh memory, 879. 
 
 OTHER OFFENCES, relevancy of, utterine; counterfeit coin, 143. 
 conspiracy, embezzlement, 143. 
 adultery, false pretenses, 144. 
 homicide, 144, 146. 
 
 OWN WITNESS, party not allowed to Impeach. See Witnesses, 853-855. 
 
 OWNER, presumption that holder of note is, 49 n. 54. 
 not affected by admissions by tenant for years, 243. 
 
 OWNERSHIP, presumption of continuance of, 58 n. 2. 
 presumed from possession, 74. 
 parol proof of, 203 n. 18. 
 cannot be proved by reputation, 297 n. 4. 
 cannot be proved by assessment books, 297 n. 4. 
 
 P. 
 
 PAGAN, how sworn, 715. 
 
 PAIN, exclamations of, as part of res gestce, 349. 
 
 PAPERS. See Alteration, Best Evidence, Books and Papers, Copies, 
 Deiids, Documents, Handwriting, Letters, Spoliation, Writings. 
 contents of, not provable by hearsay, 297 n. 4. 
 production of, how secured, 801. 
 
INDEX. 1299 
 
 EBFEEENCES ABE TO SECTIONS. 
 
 PARDON, best evidence of, 200 n. 11. 
 provable by copy, 522 n. 60. 
 
 federal statute as to, proof of by copy, 538 n. 97. 
 as affecting disability for infamy, 718. 
 effect on privilege of witnesses, 889. 
 
 PARENTS. See Childeen, Husband and WiFE. 
 
 consent to marriage of child, when presumed, 86. 
 not allowed to bastardize child, 97. 
 control of, over children, 99. 
 necessaries for children, 99. 
 
 PARISH REOISTERS, as evidence, 508, 510. 
 
 PARKS, judgments showing existence of, admissible, 588 n. fiS. 
 
 PAROL EVIDENCE TO EXPLAIN WRITINGS, 
 to prove independent facts, 203. 
 
 to prove identity or genuineness of writing, 203 n. 18. 
 to prove payment, 203. 
 illustrations of 203 n. 18. 
 to prove contents of foreign documents, 205. 
 to prove contents of documents destroyed or suppressed, 18. 
 to show summary of accounts or documents, 206, 386. 
 in England, to show admissions coscerning writings, 207. 
 
 conflict as to rule in America, 208. 
 not allowed where law requires copies, 230. 
 of written instruments on cross-examination, 231, 843. 
 to prove alteration of instrument, 557. 
 as to leases, 416. 
 
 to complete and explain trust, 419. 
 of resulting trust, 421, 422. 
 
 to explain situation, etc., under statute of frauds, 430. 
 of subsequent modification under statute of frauds, 431. 
 of fraud or mistake, 431. 
 
 to explain contract, after part performance, 432. 
 in general, inadmissible to vary writings, 434-499. 
 
 reasons for the rule, 434. 
 
 existence of writing must first be established, 434. 
 
 prior oral agreements merged in writing, 434. 
 
 writing deemed to express exact meaning, 434. 
 
 contemporaneous oral agreements, 434. 
 illustrations, 434 n. 1. 
 
 rule does not prevent proof of fraud, 435. 
 no contract, when consent wanting, 435. 
 latitude allowed, 435. 
 evidence of fraud, strong and clear, 435. 
 sealed and unsealed instruments, 435 
 
 incapacity of contracting parties, 436. 
 
1300 INDEX. 
 
 EEFERENCES ABE TO SECTIONS. 
 
 PAROL EVIDENCE TO EXPLAIN WRITINGS (oontiaued) — 
 illegality of contract, illustrations, 436. 
 mistake of fact, 437. 
 
 reformation of contract, 437. 
 lack of consent to contract, 437. 
 mistake in insurance policy, 437. 
 mistake as to dates, illustrations, 438. 
 
 dates prima facie correct, 438. 
 independent and collateral contracts, illustrations, 439. 
 that contract never had existence, 439. 
 when writing is incomplete, 440. 
 verbal acceptance of written proposal, 440 n. 33. 
 to explain bills of sale, 441. 
 
 that sale was made by sample, 441. 
 parol warranty accompanying bill of sale, 441. 
 writing presumed to contain entire agreement, 441. 
 
 except when act of only one party, 441. 
 subsequent agreements, 442-445. 
 
 change or abandonment of contract, illustrations^ 442. 
 
 as to time, place and mode, 442. 
 that written contract has been discharged, 442. 
 not necessary to prove new consideration, 442. 
 same rules as to specialty contracts, 443. 
 as to contracts within statute of frauds, 444. 
 
 tendency of decisions in United States, 445. 
 rescission of contract, 445. 
 instruments apparently absolute, shovm to Be securities, 446, 447, 499. 
 object of parties may be shown, 446. 
 real intention of parties to be ascertained, 447. 
 not limited to deeds and mortgages, 447. 
 proof to be clear, 447. 
 general rule not applicable to strangers, 448. 
 
 where rights are independent of Instrument, 448. 
 to identify subject matter and parties, 450-452, 476-478. 
 
 court to place itself in situation of parties, illustrations, 450. 
 to identify parties, 451, 452, 477, 478. 
 
 Illustrations, 451, 452. 
 whether person acts as principal or agent, etc., 452. 
 surrounding facts, 453, 472, 473, 477. 
 acts, negotiations and statements of, parties, 453. 
 parties' interpretation of instruments, 453. 
 to explain ambiguity in instrument, 454, 472-474. 
 words not to be added, 454. 
 as to construction of instrument, 454. 
 
 to explain, not to contradict writing, 451, 454, 472, 478, 485, 
 499. 
 meaning of words, illustrations, 455, 455 n. 20. 
 
INDEX. 1301 
 
 BEFEKENCBS ABE TO SECTIONS. 
 
 PAROL EVIDENCE TO EXPLAIN WRITINGS (continued) — 
 not admissible, unless some ambiguity exists, 456. 
 
 intention of parties to govern, 456. 
 
 court simply ascertains meaning of writing, 455, 
 usage of trade. See Usage, 457-467. 
 as to leases, 468. 
 
 as to consideration. See Consideration, 468-470. 
 execution and delivery of instrument, 471. 
 no actual execution or delivery, 471. 
 delivery on condition precedent, 471. 
 when only bilateral executory contract, 471. 
 when obligation to sell contingent, 471. 
 latent ambiguity, 472. 
 
 not appearing on face of Instrument, Illustrations, 472. 
 patent amMguity, 473, 474. 
 
 defined, 473. 
 
 when no extrinsic evidence received, 473. 
 
 parol evidence not admissible to show, 473. 
 
 how ascertained, 474. 
 
 to explain inaccuracies, 474. 
 
 instrument, when rendered inoperative, 474. 
 
 mere inaccuracies, effect of. 474. 
 as to wills. See Wills, 475-484. 
 as to deeds. See Deeds, 485-490. 
 as to receipts. See Receipts, 491-493. 
 as to negotiable paper. See Negotiable Paper, 494-497 
 as to notes and bills. See Negotiable Papee, 494-497. 
 as to Mils of lading, 498. 
 
 when recitals in, open to explanation, 498. 
 to show that no goods actually received, 498. 
 as to contractual stipulations in, 498. 
 as to condition of the goods, 498. 
 
 burden of proof as to, 498. 
 evidence of prior parol negotiations, 498. 
 receipt of goods, 498. 
 as to mortgages, 499. 
 to identify note, 499. 
 
 when inaccurately described, 499. 
 for what purpose given, 499. 
 when to contradict mortgage, 499. 
 not admissible to s'how mortgage to be deed, 499. 
 to sliow true consideration, 499. 
 to explain ambiguities in mortgages, 499. 
 to apply instrument to proper subject matter, 499. 
 
 not to change same, 499. 
 to supply defects in acknowledgments, 520. 
 
1302 INDEX. 
 
 EEFEEENCES ARE TO SBCTIOWS. 
 
 PAROL LEASES, as affected by statute of frauds, 414. 
 
 PARSON. See Clekgtmen. 
 
 PART PAYMENT, rebutting presumption of payment from lapse of time, 
 69 n. 69. 
 
 PARTIALITY, cross-examination of witnesses as to, 828. 
 shown by contradiction, 830. 
 cause or grounds of, when relevant, 830. 
 discretion of judge as to, 830. 
 
 PARTICULAR TRAIT, reputation to be confined to, 150. 
 
 PARTY, presumption of innocence of, overcomes that of stranger, 102. 
 misconduct of, when relevant, 138. 
 demeanor of, when relevant, 138. 
 
 acts between, and stranger, relevancy of proof of, 140, 141. 
 similar acts between, when relevant, 140, 141. 
 written admissions by 269. 
 
 PARTIES. See Advebse Party, Pi.aintiff. 
 
 when presumed that necessary, were before the court, 34 n. 22. 
 admissions by real and nominal parties, 237. 
 entries by, when admissible, 322. 
 
 substantial identity of, to render testimony on former trial ad- 
 missible, 337, 338. 
 how identified by parol, 451, 452. 
 practical construction of contracts by, 453. 
 relations of, to each other, proof of by parol, 495. 
 
 but not to the injury of innocent third parties, 495. 
 Judgment conclusive upon, 585, 586. 
 defined, 586. 
 presence of, at time of taking deposition, 697. 
 
 when not allowed, 697. 
 examined under statutory discovery, 707. 
 what parties subject to adverse examination, 707. 
 
 nominal parties and sureties, 707. 
 formerly incompetent as witnesses, 712, 727. 
 nominal party competent, 727. 
 competent under equity practice, 728. 
 formerly not compelled to testify for adversary, 729. 
 prosecutor in criminal cases, 729. 
 effect of statutes as to competency, 730, 731. 
 refusal to testify, personal privilege, 731. 
 adverse, taay be compelled to testify, 731. 
 competency, interest of husband and wife, 733. 
 privileged from arrest, when, 805, 806. 
 not to be excluded from court room, 807. 
 
iNDEi. 1303 
 
 BJJFERENCBS ABE TO SECTIONS. 
 
 PARTIES (continued) — 
 
 cross-examination of, 836. 
 
 latitude allowed, 836, 837. 
 
 discretion of court as to, 836. 
 as to matters that tend to criminate, 836, 887, 
 
 when privilege is waived, 836. 
 confined to matters of direct examination, 837. 
 
 conflict as to, 837. 
 same rules apply to, as to ordinary witnesses, 887. 
 impeachment of. See "WiTPfESSES, 851-863. 
 ordinary rules do not apply, 851. 
 can party-impeach his own witness, 853-856t 
 not hound to accept such testimony, 880, 861 
 
 PARTNERS, when presumed equally interested, 54. 
 
 agreement among, not to sign notes, when irrelevant, 137. 
 
 admissions and declarations of, 248, 251. 
 admissible against whom, 248, 251. 
 
 agents for each other, 248. 
 
 hostility of, effect upon credibility, 248. 
 3 dormant and deceased, admissions by, 248. 
 
 admissions of, as affected by statutes of limitation, 249. 
 
 conflict as to the rule, 249. 
 power of partner to bind firm after dissolution, 249, 250. 
 
 such admissions, when competent, 250. 
 partnership to be proved before admissions received, 251. 
 
 admissions by all the partners as to, 251. 
 books of, as admissions against firm, 271. 
 
 against individual members, 271. 
 
 how authenticated, 573. 
 estopped to deny existence of partnership, 276. 
 whe ntrust arises from fiduciary relations, 425. 
 competency of, as to transaction with partner of deceased, 787. 
 
 of one against representative of deceased, 787. 
 
 PARTNERSHIP, wheii presumed, 54. 
 presumption as to dealings of, 54. 
 presumption of continuance of, 58 n. 2. 
 
 admissions of partner after, not binding on others, 249, 250. 
 proof of existence of, by admissions, 208 n. 36, 251. 
 books of, as admissions, 271. 
 dissolution of, newspaper notices as to, 582. 
 
 PART PAYMENT. See Payment, Pbesumptions, 65-73. 
 
 PART PERFORMANCE, under statute of frauds, 432. 
 parol evidence to prove. 432. 
 possession, when sufiicient, 432. 
 original agree,m,en,t jtnusi be proved, 433. 
 
1304 INDEX. 
 
 EEFEEEPrCES AEE TO SECTIONS. 
 
 PASSIONS, judicial notice of, 129. 
 
 PATENT, presumed regularly issued, 13 n. 27. 
 judicial notice of matters connected witli, 128. 
 best evidence of, when lost, 212 n. 70. 
 who cannot question title of patentee, 284. 
 federal statute as to proof of, by copy, 538 n. 97, 541 n. 14,^542, 543 n. 33. 
 
 PATENT AMBIGUITY. See Ambiguity. 
 
 parol proof not admissible in case of, 473. 
 definition of, 473. 
 how ascertained, 474. 
 
 PATENT OFFICE, judicial notice of officers of, 109. 
 
 PATERNITY, Inspection of child to prove, 401. 
 
 PATTERNS, production of. In federal courts, 802. 
 
 PAYMENT. See Pbesumptions, 65-73. 
 of note, presumption of, 49, 57. 
 
 for goods, when presumed to be made on delivery, 57. 
 of rent, when presumed, 57. 
 
 presumed from lapse of time. See Prbjstjmptions, 65-69. 
 presumed from usual modes of business, 70-73. 
 presumption of, overcome by that of innocence, 101. 
 presumed to be applied on debts first due, 72. 
 presumed from acceptance of note or bill, 73 
 burden of proof as to, 176 n. 16, 179 n. 17. 
 parol proof of, 203 n. 18. 
 admissions of former owner of choses in action as to, not admissible, 
 
 247. 
 by partners, as affecting statutes of limitation, 249. 
 into court, conclusive admission of what, 292. 
 of money, declarations accompanying, when admissible as part of 
 
 res gestae, 349 n. 3. • 
 
 parol proof to vary mode of, 434 n. 1. 
 time of, not to be varied by parol, 434 n. 11, 494. 
 
 change in, provable by parol, 442. 
 manner of, cannot be varied by parol, 494. 
 amount lof, not to be varied by parol, 494. 
 parol proof as to place of, 495. 
 a "transaction," 793. 
 
 PEACE AND WAR, presumption of continuance of state of, 58, 58 n. 2. 
 judicial notice of, 107. 
 
 PECUNIARY INTEREST, declarations of deceased against, admissible, 
 323, 324. 
 rendering witness incompetent as to transactions with a deceased, 
 775. 
 
INDEX. 1305 
 
 EEFEEENCBS AEE TO SECTIONS. 
 
 PEDIGREE. See Bibth, Childeen, Death, Mabeiage. 
 declarations as to, when admissbile, 312-318. 
 
 when made by legal relatives, illustrations, 312. 
 relationship to declarant how proved, 313. 
 independent of proof, 313. 
 admissible, even though hearsay upon hearsay, 313. 
 
 general repute in family, 313. 
 need not be part of res gestae, 313. 
 nor contemporaneous, 313. 
 nor rest on knowledge of declarant, 313. 
 nor be confined to ancient facts, 313. 
 statements in regard to particular facts relating to, 313. 
 such as marriages, births, deaths, 312, 313. 
 such as times or places of such occurrences, 313. 
 such as legal status of person, 313. 
 In general, limited to what cases, 314. 
 acts and conduct also admissible, 315. 
 solemn and informal declarations, illustrations, 315. 
 preliminary proof, as to entries, 316. 
 entries in family bibles, portraits, 316. 
 entries on tombstones, rings and memoirials, 316. 
 weight to be given to such evidence, 317. 
 
 not competent, unless declarant is dead, 318. 
 burden ol showing declarants death, 318. 
 no objection that witnesses are living, 318. 
 Interest of declarant, 318. 
 made before controversy arose, 311, 312, 318. 
 judgments to prove, against strangers, 588 n. 66. 
 
 PENALTIES AND FORFEITURES, for usury, no presumption of law of 
 sister state as to, 83. 
 confidential communications between husband and wife as to, 735 n. 71. 
 witness may claim privilege from, 892. 
 
 PENALTY, no presumption as to acts for which law imposes a, 13 n. 27. 
 
 PENSION, best evidence of, 201 n. 12. 
 
 PENTATEUCH, Jews sworn on, 715. 
 
 PERFORMANCE. See Paet Peefoemance. 
 
 of duty by officer presumed. See Pebsumptions, 43-46. 
 
 of acts, when presumed to be within a reasonable tenn, B7. 
 
 PERIL. See Specific Peeil. 
 
 PERJURY, confession of deceased as to, received, 324 n. 78. 
 dying declarations as to, 332. 
 number of witnesses necessary to convict of, 902. 
 
1306 INDEX. 
 
 REFEBENCES AKE TO SECTIONS. 
 
 PERPETUATE TESTIMONY, depositions to, 701. 
 
 PERSON, inspection of. See Inspection op the Peeson. 
 legal status of, not provable by hearsay, 313. 
 
 PERSONAL FEATURES, shown by photograph, 581 n. 4. 
 
 PERSONAL, INJURY, relevancy of facts apparently collateral, 163. 
 burden of proof as to, 183. 
 in case of passenger, 183. 
 
 specific defect need not be proved, when, 183. 
 when there is no contract to carry, 183. 
 deolaratioms as to pain, when admissible, 349. 
 inspection of person in actions for, 396, 397. 
 not coinpelled in federal courts, 396, 397. 
 conflict in state courts, 396, 397. 
 tendency of decisions, 397. 
 discretion of court as to, 397. 
 Inspfection by jury or court, 398. 
 competency of husband and wife in criminal actions for, 746. 
 .weight of positive and negative testimony as to, 898. 
 
 PERSONAL PROPERTY, presumption from possession of, 58 n. 2, 74 n. 94. 
 value of, relevancy of collateral facts^ 169. 
 owner of, how affected by admissions of former holder, 244. 
 
 strict rule in some states, 246, 247. 
 expert testimony as to value of, 387. 
 view of, by the jury, 407. 
 memorandum of sale of, 429, 430. 
 parol evidence to identify, 451 n. 98. 
 
 PERSONAL REPRESENTATIVE. See Agent, Bxe«3UT0B and Admin- 
 
 ISTRATOE, GUAEDIAN, TEUSTEE. 
 
 PERSONALTY. See Pebsonal Pkopeett. 
 
 PETIT JURORS. See Jueobs, Province op Judge and Jxjbt. 
 proceedings of, privileged, 766. 
 
 PHONOGRAPH, evidence by, 481 n. 3. 
 
 PHOTOGRAPHERS, as experts 386. 
 
 PHOTOGRAPHS, of putative father compared with features of child, 96 
 n. 35. 
 relevancy of, 139. 
 
 of writings, secondary evidence, 209. 
 to be proved correct, 411. 
 ol writing, on comparisons of handwriting, 555 n. 9. 
 
INDEX. 1307 
 
 EEFBBENCES ABB TO SECTIONS. 
 
 PHOTOGRAPHS (continued) — 
 as evidence, 511, 581. 
 
 preliminary proof of accuracy, 581. 
 question for court, 581. 
 to show identity or portions of body, 581 n. 4. 
 to sliow appearance of person or place, 581 n. 4. 
 must not be too remote in time, 581. 
 Instead of view by jury, 581. 
 of public documents, 581. 
 of instruments not obtainable, 581. 
 as a basis for comparison of handwriting, 581. 
 secondary evidence, 581. 
 X-ray, admissible, 581 n. 3. 
 
 PHOTOGRAPHY judicially noticed, 128 n. 46. 
 
 PHRASES, meaning of, judicially noticed, 130. 
 
 explanation of, by parol evidence. See Paeol Evidence to EJxplain 
 Weitings, 455-456. 
 
 PHYSICAL CONDITION. See Inspection of the Pebson, Peesonai, In- 
 
 JTJBt. 
 
 PHYSICAL EXAMINATION. See Inspection of thk Pebson. 
 
 PHYSICAL PEELINGS. See Bodilt Peelings. 
 
 PHYSICAL INJURY. See Inspecjtion op the Pebson, Peesonai Injtjbt. 
 
 PHYSICIANS, declarations of, not proved by hearsay, 297 n. 4. 
 
 deceased, admissibility of entries by, in due course of business, 319 
 
 n. 57. 
 when competent as to declarations of patient, 349. 
 
 as to bodily feelings, 349. 
 
 as to cause of injury, 349. 
 statement of patient to as res gestae, 349. 
 as experts, 349, 368, 378. 
 
 necessary qualifloations, 368. 
 
 proper questions to, 378. 
 
 as to poisons, 379. 
 
 books of account of, when admissible, 571 n. 31. 
 
 as to value of services, 387. 
 confidential communicatioiis to. See Confidential Communications, 
 759-761. 
 
 to assistants of, 759. 
 
 PICTURES AND DIAGRAMS, as evidence, 411. 
 PISTOL, inspection of, by jury, 400 n. 35. 
 
1308 INDEX. 
 
 EEFERENCES ABE TO SECTIONS. 
 
 PLACARDS, parol evidence to prove, 205 n. 29. 
 
 PLACB3, Inspection of. See View. 
 
 PLACE OP ACCIDENT, sliowTi by pliotograph, 581 n. 4. 
 
 PLACE OP PAYMENT, alteration in, vitiates instnunent, 560 n. 41. 
 
 PLAINTIPP. See Pabties. 
 
 generally has burden of proof, 179. 
 may be on defendant, 179. 
 
 PLANS, best evidence of, 201 n. 12. 
 as evidence, 411. 
 
 PLATS, judicial notice of, 127. 
 
 PLEADINGS. See Couets, Judgments, Recobds of Coubts. 
 bad reputation proved under general denial, 150. 
 form of, as affecting burden of proof, 178. 
 usually throw burden on plaintiff, 179. 
 best evidence of, 200 n. 11. 
 
 when lost, 212 n. 17. 
 amendment of, 233, 234. 
 effect of, on admissibility of depositions, 682. 
 admissions in, 272-274. 
 
 when competent as evidence, 272. 
 
 conclusive until changed, 272. 
 
 when not directed by party, 272. 
 
 weight of, depends on what, 272. 
 when not sworn to, 272. 
 
 amended pleadings competent as admi^ions, 273. 
 
 of one party, not competent against co-party, 273. 
 
 what facts admitted by demurrer, 273. 
 use of, in another suit, 273. 
 
 when conclusive, 274. 
 
 withdrawal of, when allowed, 274. 
 construed together, when offered in evidence, 294. 
 
 use of by, by party as evidence, 294. 
 trust created by recitals in, 418. 
 as to judgment in estoppel, 603. 
 
 POISONS, chemical analysis of, 379. 
 opinions of physicians as to, 379. 
 
 POLICE. See Officebs, Public Officees. 
 
 POLICY. See Insurance Policy, Public Policy. 
 
 POLITICAL PACTS, judicial notice of. See Judiclai, Notice, 106-lH. 
 
INDEX. 1309 
 
 BEFEEENCES AEE TO SECTIONS. 
 
 POLITICAL PARTIES, judicially noticed, 123 n. 8. 
 
 POLITICAL SUBDIVISIONS, judicial notice of, 108, 127. 
 
 POLYGAMY, presumption of marriage in action for, 88 n. 80. 
 
 POPULATION, judicial notice of, 123 n. 8, 127 n. 41. 
 
 PORTRAITS, inscription on, to prove pedigree, 316. 
 as evidence, 581. 
 
 PORTS, judicial notice of, 127. 
 
 POSITION, photographs to show that of ohjects, 411, 581. 
 
 POSITIVE EVIDENCE, defined, 6. 
 
 POSITIVE AND NEGATIVE BVIDEaSTCE, weight of, 898. 
 
 POSITIVBNESS of answers of witnesses, effect of, 898. 
 
 POSSESSION, of negotiable paper, when gives rise to presumption of pay- 
 ment, 57. 
 presumption of its continuance, 58 n. 2, 218, 
 of note by debtor, presumption from, 71. 
 raises presumption of ownership, 74. 
 
 sustains action for trespass, trover and replevin, 74 n. 94. 
 of lands, raises presumption of title, 75. 
 
 with beneficial ownership, raises presumption of conveyance, 78. 
 nature of, to raise presumption of title, 79, 80. 
 presumption of title from, how rebutted, 81. 
 effect of changes in, 80. 
 by tenant, presumption from, 80. 
 by co-tenant, presumption from, 80. 
 prima facie evidence of ownership, 351. 
 declarations of possessor as res gestae. See Declabations, 351-355. 
 
 POSTMARK, opinions as to genuineness of, 386. 
 
 POST MORTEM EXAMINATION, testimony given at. Inadmissible, 339. 
 opinion of witnesses based on facts disclosed at, 378. 
 
 POUND KEEPER, presumption of authority of, 43 n. 42. 
 
 POWER OP ATTORNEY, presumptions as to due execution and knowledge 
 of contents, 50. 
 presumptions of existence of, 76 n. 8. 
 
 of identity as to, 100 n. 67. 
 secondary evidence of contents of, 218 n. 20. 
 consent to alterations in, when implied, 561 n. 46. 
 
1310 INDEX. 
 
 BEPEEBNOES ABB "O SECTIONS. 
 
 PRE-EXISTING DEJBT, no presumption of payment of from acceptance 
 of note, 73. 
 
 PREDECESSORS IN TITLE, admissions of. See Abmissions, 244-247. 
 
 PREGNANCY. See Adultebt, Bastabdt, Chabactee, Seduction. 
 relevancy of, in actions for seduction, 152. 
 fact of, how ascertained, ancient practice, 395. 
 
 PREJUDICE. See Bias of Witnesses. 
 
 of jury, collateral facts tending to, not admissible, 137. 
 shown by cross-examination, 822, 826, 828. 
 questions tending to, 830. 
 
 when InadmLsslble on cross-esamlmation, 834. 
 
 PRELIMINARY EXAMINATION, testimony given at, 339. 
 
 PRELIMINARY QUESTIONS passed on by judge, 174, 202. 
 qualifications of expert, one for court, 368, 369. 
 may be leading in form, 817. 
 
 PREMISES, maps or photographs of, as evidence. See Maps, Photo- 
 obaphs. 
 
 PREPAYMENT OP WITNESS fee necessary, 798. 
 
 PREPONDERANCE OP PROOF, In civil cases, 5. 
 in civil cases where crime is in issue, 16. 
 discussed, 900. 
 
 PRESENCE of party at taking of deposition, effect of, 671, 697. 
 of witnesses. See Witnesses, 798-808. 
 
 PRESIDING JUDGE. See Judge, Pbovince op Judge and Juey. 
 certificate of, in authentication of court records, 628, 629. 
 incompetent as witness, as to what, 764. 
 
 PRESS COPIES. See Copies, Lettee-Pbess Copies. 
 
 PRESUMPTIONS in general, 9. 
 defined, 9. 
 
 distinction between and inference, 9 n. 1. 
 importance of, 9. 
 classification of, 9. 
 of fact, defined, 10. 
 illustrations, 10. 
 
 distinguished from clrcumstpntial evidence, 10. 
 of law, conclusive and disputable, 11. 
 
 defined, 11. 
 
 conclusive, defined, 11. 
 
 absolute, defined, 11. 
 
 disputable, defined, 11. 
 
 conclusive, tendency of courts to abandon, 11. 
 
INDEX. 1311 
 
 SEFEBENCES ABE TO SECTIOlirS. 
 
 PRESUMPTIONS (continued) — 
 of innocence, 12-16. 
 
 regarded with favor, 12, 101, 102. 
 
 in civil and criminal cases, 12. 
 
 limitations of in habeas corpus cases, 12 n. 22. 
 illustrations of, 13 n. 25, 27. 
 
 as to acts of trustees and administrators, 13 n. 27. 
 observance of law presumed, 13 n. 25. 
 good faith and performance of duty presumed, 13 n. 27. 
 that witnesses tell the truth, 13 n. 27. 
 as to viola.tions of law, 13 n. 27. 
 In case of fraud, 13, 25. 
 as applied to the marriage relation, 14, 88. 
 negligence not presujned, 15. 
 
 in accident eases, qualifications of rule, 15. 
 rule not applicable to common carriers, 15. 
 effect of, as to amount of evidence, 16. 
 
 where crime is in issue in civil cases, 16. 
 where insanity is pleaded, 188. 
 frow, spoliation, fabrication or suppression of evidence, 17-22, 287, 
 563, 564. 
 
 illustrations of, 17. 
 
 of documents, 18. 
 
 does not entirely dispense with piroof, 18, 22 
 from withholding evidence, 19. 
 
 illustrations of, 19 n. 53. 
 
 when no presumption arises, 21. 
 from non-production of evidence not within control, 21. 
 of knowledge of the law, 23-27. 
 exceptions to, 24. 
 
 effect of mistake as to matters of law, 24. 
 legal effect of contracts, 25. 
 misrepresentations as to matters of law, 2'6. 
 signing instruments, 26. 
 presumed to know contents of contract, 25 n. 80. 
 
 consequences of one's own acts, 27, 28. 
 of malice, 29. 
 
 in cases of homicide, 29. 
 of regularity, 30-57. 
 
 general rule as to, 30. 
 
 as to regularity in judicial proceedings, 30-40, 618. 
 
 of jurisdiction, illustrations, 30, 616, 618. 
 
 presumption not allowed to contradict record, 32. 
 
 when service is by publication, 33. 
 on non-resident, 33. 
 
 limitations of presumption, 33. 
 
 when action of court is ministerial, 33. 
 
1312 nsTDBx. 
 
 BEFEEENCES ARE TO SECTIONS. 
 
 PRESUMPTIONS (continued) — 
 
 proceedings after gaining jurisdiction, illustrations, 34, 35. 
 reasons for, 34. 
 in federal courts, 35. 
 jurisdiction not presumed in inferior courts, 36, 37. 
 in justice courts, 36 -n. 25. 
 In probate courts, 37. 
 extraneous evidence to show, 36.- 
 as to judgments in sister states, 38. 
 may be overcome by direct proceedings, 39, 
 as to awards of arbitrators, 40. 
 of official acts, 41, 42. 
 of official authority, 43, 44, 287. 
 
 of marshal, collector, notary public, justice of the peace, 43 n. 
 
 42. 
 of attorney pound-keeper, constable, etc., 43 n. 42, 44. 
 not restricted to oflacial appointment, 44. 
 nor official acts, 48. 
 of performance of official duty, 45-46. 
 illustrations, 45-46. 
 by municipal officers, 46. 
 in performance of marriage ceremony, 86. 
 of prior acts, when subsequent ones are proved, 46. 
 illustrations and limitations of rule, 46 n. 48. 
 acts under naked statutory power,, 46 n. 48. 
 by officers of private corporations, 55, 56, 516. 
 of appointment of officials. 43, 44, 46 n. 48, 205, 
 of municipal officers, 46 n. 48. 
 
 that custodians have properly kept public documents, 46 n. IS. 
 statutory presumptions of this class, 47. 
 acknowledgments, 47. 
 laying out highway, 47. 
 judicial sales, 47. 
 tax deed. 47. 
 as to negotiable paper, 49. 
 time of endorsement, 49. 
 acceptance, 49 n. 54. 
 signature, 49 n. 54. 
 holder, 49 n. 54. 
 from recitals in documents, 50. 
 of due execution of documents, 50. 
 
 of wills, 50. 
 of the correctness of dates, 51. 
 as to mailing and receiving letters, 52. 
 
 where letters sent from a private office, 52. 
 as to sending telegrams, 53. 
 reasons for, 53. 
 
INDEX. 1313 
 
 EBPERENCES AEB TO SECTIONS. 
 
 PRESUMPTIONS (co-ntlnued) — 
 
 arising from partnership dealings, 54. 
 knowledge of contents of boobs, 54. 
 of equal interest of partners, 54. 
 as to acts of corpcwate officers, 55, 56. 
 as to solvency and bankruptcy, 57, 58. 
 
 miscellaneous presumptions from general course of business, 57. 
 of continuance of existing state of things, 58, 59, 638, 680. 
 of condition of goods in transitu, 58 n. 2. 
 of ownership and possession, 58 n. 2. 
 of indebtedness, 58 n. 2. 
 
 as to seaworthy condition of a vessel, 58 n. 2. 
 as to partnership, corporation, agency, 58 n. 2. 
 as to custom, peace and war, 58 n. 2. 
 as to form of government, public treaty, 58 n. 2. 
 as to coverture, illicit intercourse, 58, 88. 
 as to character, 58. 
 as to sanity and insanity, 59, 103, 723. 
 as to life, 60. 
 
 presumptions are not retrospective, 58 n. 2. 
 of death after seven years absence, 60 61. 
 nature of the absence, 61. 
 
 at what time, 62. 
 when in less than seven years, 63. 
 raised by granting letters testamentary, 63. 
 by "specific peril," 63. 
 as to survivorship in common disaster, 64. 
 as to payment, 65-73. 
 from lapse of time, 65. 
 grounds of, illustrations, 65. 
 evidence of, 65. 
 less than twenty years, 66, 67. 
 
 time excluded when creditor had no right to sue, 67. 
 with other circumstances, 68. 
 
 what circumstances suffice, 68. 
 strengthen, when, 68. 
 Tiow rebutted. Illustrations, 69. 
 by part payment, 69 n. 69. 
 by facts making non-payment probable, 69. 
 by admissions, 69 n. 69. 
 from usual modes of business, 70-73. 
 
 debtors, possession of evidence of debt, 67, 68. 
 receipt, 70. 
 
 cancellation of instruments, 71. 
 how rebutted, 71. 
 none, If it is act of debtM-, 71. 
 
 8» 
 
1314 INDEX. 
 
 BEPEEEIsrCES AEB TO SECTIONS. 
 
 PRESUMPTIONS (continued) — 
 acceptance of note, 73. 
 
 as to pre-existing debt, 73. 
 that payments applied on notes first due, 72. 
 from possession of property, 74-82. 
 reasons for, 74. 
 of personal property, 74 n. 94. 
 
 qualifications of rule, 74. 
 from possession of lands, 75. 
 tortious possession, 80. 
 when change in possession, 80. 
 from possession by tenant, 80. 
 permissive Use, 81. 
 
 the presumption, how rehutted, 81, 82. 
 effect of disabilities, 82. 
 what facts are relevant, 82. 
 not superseded by statutes of limitation, 77. 
 corporeal and incorporeal hereditaments, 77. 
 ' nature of possession necessary to raise, 79, 80. 
 possession to be hostile and exclusive, 79. 
 evidence to be clear, 79. 
 as to grants, 76. 
 illustrations of, 76 n. 8. 
 from long user, 76. 
 that trustees have made proper conveyances, 78. 
 
 lapse of time no bar to trust, 78. 
 as to laws of sister states, 83 
 
 whether presumed like that of forum, illustratioins, 83 n. 46, 48. 
 as to the law in foreign states, 84. 
 
 whether presumed to be same as law of forum, 84,. 
 as to legality of contracts, 85. 
 arising from marriage, 14, 86-92. 
 marriage, presumed f 1-om cohabitation and reputation, 14, 87- 
 cohabitation and reputation to concur, 87. 
 weight of the presumption, 87. 
 In civil and criminal issues, 88. 
 
 actions for crim.inal conversation, 88. 
 
 for divorce, 88. 
 direct proof in criminal cases, 88. 
 not from illicit cohabitation, 89. 
 
 this may be changed to lawful connection, 89. 
 good faith of the parties, 89. 
 without formal ceremony, 89. 
 of agency from marriage, 90, '■ 74J.. 
 how shown, 90. 
 as to purchase of necessaries,. 90. 
 
INDEX. 1315 
 
 EEPEBENCES ABE TO SBOTIONa, 
 
 PRESUMPTIONS (continued) — 
 
 of coercion of wife by husband, 91, 92. 
 
 in civil and criminal cases, 92. 
 
 rebuttal of, limitations, 92. 
 
 not conclusive, 92. 
 of legitimacy, 93-97. 
 when birth during coverture, 93. 
 sexual intercourse, when presumed, 93 
 
 presumption, how rebutted, 94, 97. 
 when conclusive, 95. 
 from sexual intercourse, 95. 
 what facts are relevant, 96. 
 adultery, effect on the presumption, 96. 
 neither spouse allowed to deny sexual intercourse, 97. 
 
 applies in all legal proceedings, 97. 
 
 not affected by statutes enlarging competency of witnesses, 97. 
 as to infants, 98, 99. 
 capacity to commit crime, 98. 
 to consent to sexual Intercourse, 98. 
 to marriage, 98. 
 
 of testamentary capacity of Infants, 99. 
 as to domicil of infants, 99. 
 as to competency as witnesses, 720. 
 as to necessaries, 99. 
 as to emancipation of infante, 99. 
 of infant's liability In tort, 99. 
 
 for negligence, 99. 
 as to infants being sui juris, ^^^ 
 as to identity, 100. 
 conflicting presumptions, 101-103. 
 that of innocence prevails over other presumptions, 12, 101, 102. 
 
 in conflict with presumption of sanity, 103. ' • 
 as to continuance of life, 101. 
 
 of existing state of things, 101. 
 relative weight of, when conflicting, 103. 
 general rules as to, 104. 
 cannot be drawn from a presumption, 104. 
 must be based on facts, 104. 
 of law, must be regarded by jury, 104. 
 of good character, 158. 
 of due care, 185. 
 
 of attempt at self-preservation, 185. 
 in will oases, 189. 
 
 of sanity, 189. < 
 
 as to transactions by those in flduciary relations, 190, 42B. 
 of undue influence in will cases, 191. 
 possession of document presumed to continue, 218. 
 
1316 INDEX. 
 
 EEFEEENCES ABE TO SECTIONS. 
 
 PRESUMPTIONS (continued) — 
 
 that account is correct, when, 287. 
 of trust, fiduciary relations, 425. 
 that writing contains entire agreementk 434, 441. 
 legal, parol proof not admissible to contradict, 434 n. 1. 
 that usage is reasonable, 462. 
 of regularity, corporate writings, 516. 
 of ownership of corporate stock, 516. 
 as to alterations, 563. 
 English rule, 563. 
 conflict In America, 564. 
 
 burden of proof as to alterations, 564. 
 
 effeot of suspicious circumtances, 564. 
 of continued residence of witness, 638. 
 of regularity, depositions, 651, 659, 660. 
 of continuation of cause for taking deposition, 680. 
 none, from failure of party to testify, 731. 
 
 that party living in Christian country believes in Christian religion, 
 713. 
 
 PREVIOUS CONVICTION. See Conviction. 
 
 PRICE, not to be shown by parol, when, 434 n. 1. 
 
 PRIEST, privileged communications to, 758. 
 
 PRIMA FACIE EVIDENCE, defined, 8. 
 of competency, 893. 
 what is of payment of debt, 66. 
 
 of accounting and settlement, 73. 
 
 PRIMARY EVIDENCE. See Best Evidence. 
 defined, 8. 
 discussion of, 200. 
 
 PRINCIPAL, bound by declarations of agent, when, 255, 258. 
 parol proof as to whether party acts as, or as agent, 452. 
 parol proof of relation of principal and agent, 458. 
 effect on surety, of judgment against, 591. 
 
 incompetent as to transactions with deceased or incompetent surety, 
 779. 
 
 PRINCIPAL AND AGENT. See Agent, Judgments, Pbincipai. 
 
 PRINCIPAL AND SURETY. See Judgments, Peincipai., Sukett. 
 
 PRIOR EXISTENCE, no presumption of, from present existence, 58 n. 2. 
 
 PRISON, attendance of witnesses confined in, how secured, 803. 
 witnesses may be confined in, when, 804. 
 witnesses not to be arrested and confined In, 806. 
 
INDEX. 1317 
 
 BBFERETNCES AEB TO SECTIONS. 
 
 PRISONER, when presumed to have been present at all proceedings, 34 
 n. 22. 
 
 PRISON RECORDS, as evidence, 508. 
 
 PRIVATE BOUNDARIES. See Boundabies. 
 
 PRIVATE CORPORATIONS. See CoEPORATiorrs. 
 
 PRIVATE ENTRIES. See Entries. 
 
 PRIVATE OFFICE, presumption as to mailing of letters from, 52. 
 
 PRIVATE STATUTES, judicially noticed, when, 118. 
 proof of, 501. 
 recitals in, when admissible, 506. 
 
 PRIVATE WRITINGS, See Altebation, Attesting Witnesses, Books of 
 Account, Documents, Handweiting. 
 best evidence of, 201. 
 
 PRIVIES, same right as original parties under deed, 282. 
 classes of, 587. 
 
 in law, blood, estate, 587. 
 judgments, when admissible against, illustrations, 587. 
 between whom 587. 
 
 testator and heirs or representative, 587. 
 
 not representative and heirs, 587. 
 corporations and stockholders, 587. 
 agent and principal, when, 587. 
 landlord and tenant, when, 587. 
 
 PRIVILEGE OF WITNESSES. See Witnesses, 884-892. 
 compulsory Inspection of person, 400. 
 from arrest, depositions, 653. 
 while attending trial, 805. 
 from service of process, when, 805. 
 under bill of discovery, 708, 711. 
 and parties from arrest, 805, 806. 
 
 PRIVILEGED COMMUNICATIONS, no discovery of documents, consti- 
 tuting, 711. 
 affairs of state, 762. 
 
 what are, illustrations, 762. 
 arbitrators privileged, 762. 
 
 when competent witnesses, 762. 
 judges privilBcged, 764. 
 
 when competent witnesses, 764. 
 grand jurors, proceedings of, privileged, 765. 
 
 when competent witnesses, 765. 
 
1318 INDEX. 
 
 BEFEEENCES AEE TO SBCTIOKS. 
 
 PRIVILEGED COMMUNICATIONS (continued) — > 
 petit jurors, proceedings of, privileged, 766. 
 when competent witnesses, 766. 
 as to misconduct of jury, 767. 
 telegrams, when not privileged, 771. 
 
 testimony as to transactions with deceased or incompetent persons, 
 when privileged. See Competency of Witnesses, 772-795. 
 
 PRIVITY, kinds of, 239. 
 
 admissions by those in. See Admissions. 
 
 PRIVITY OP INTEREST, renders admissions competent, 239. 
 
 PROBABLE CAUSE in malicious prosecution, evidence to show, 157. 
 
 PROBABLE CONSEQUENCES of acts, persons presumed to know, 27, 28. 
 
 PROBATE, of will, relevancy of character, 155 n. 26. 
 judgments to prove, against strangers, 588 n. 67. 
 decree in, judgment in rem, 609. 
 conclusive as to what, 609. 
 
 settlement of estates, probate of will, etc., 609. 
 
 not as to death of testator, 609. 
 jurisdiction essential,- 610. 
 fraud, collusion and mistake shown, 610. 
 where person alive, 610. 
 
 PROBATE COURTS, presumption as to jurisdiction of, 87. 
 conclusive after lapse of time, 37. 
 
 PROBATE PROCEEDINGS, best evidence of, 200 n. 11. 
 judgments to prove against strangers, 588. 
 in sister states, proof of, 626 n. 34. 
 
 PROCEEDINGS IN OTHER CAUSES, before same court, not judicially 
 noticed, 124. 
 
 PROCESS date of, presumed correct, 51 n. 73. 
 
 presumption of identity In service of, 100 n. 67. 
 
 when original must be produced, 200 n. 11. 
 
 witnesses and parties privileged from service of, 805, 896. 
 
 to procure attendance of witnesses. See Subpoena. 
 
 PROCLAMATIONS, judicial notice of, 122. 
 proof of, 507. 
 proved by public gazettes, 582. 
 
 PRODUCE, notice to. See Notice to Pboducii 
 
INDEX. 1319 
 
 EBFEEENCES MSE TO SECTIONS. 
 
 PRODUCTION OF DOCUMENTS, how secured. See Notice to Pboducb, 
 Subpoena Duces Tecum. 
 
 PROFESSIONAL CONFIDENCE. See Confidential Communications. 
 
 PROFESSIONAL MEN. See Attorney, Clergymen, Physicians. 
 
 PROMISE OF MARRIAGE, actions for breach of, relevancy of character 
 In, 151. 
 
 PROMISE OF PARTNER, when binding on firm. See Paetnees, 248-250. 
 
 PROMISSORY NOTES. See Negotiable Papers. 
 
 PROOF, when unnecessary. See Admissions, Judicial Notice, Peesump- 
 
 TIONS. 
 
 distinguished from evidence, 4. 
 preponderance of, sufficient in civil cases, 5. 
 beyond reasonable doubt In criminal cases, 5. 
 beyond a reasonable doubt, meaning of, 5. 
 to a moral certainty, meaning of, 5. 
 
 amount necessary with presumption arising from spoliation of docu- 
 ments to support judgment, 18. 
 of private statutes, 118. 
 
 of bad reputation, under general denial, 150. 
 of financial standing, relevancy of, 150, 159, 160, 161. 
 of good character, 158. 
 of defective machinery, what relevant, 166. 
 of motive, Intent and belief, 170. 
 of negligence, circumstances may afford, 186. 
 mode of proving telegrams, 210. 
 mode of proving lost instruments, 212, 216. 
 
 preponderance of, sufficient as to contents of lost documents, 227. 
 failure of, fatal to action, 234. 
 
 not cured by amendment, 234. 
 of surrender of interests in land, 415. ' 
 
 of guaranty, 427. 
 
 of agency between husband and wife, 741. 
 order of. See Oedee of Pboof, 809-812. 
 
 PROOFS OF DEATH, as admissions, 270 n. 39. 
 
 PROPER CUSTODY, ancient documents to come from, 309. 
 test of what is, 309. 
 mode of proof of, 309. 
 
 PROPER MANAGEMENT of railway trains, expert evidence as to, 381. 
 of vessels, expert evidence as to, 38E^ 
 
1320 INDEX. 
 
 EEFEBEWCES AEE TO SECTIONS. 
 
 PROPERTY, presumption from possession of, 58 n. 2, 74, 75. 
 admissions by former owners of. See Admissions, 244-247. 
 parol proof as to use of, 451. 
 in will cases, parol evidence to Identify, 476. 
 
 PROPONENT OP WILL. See Burden of Peoof. 
 incompetent as to what, 792. 
 
 PROSECUTOR, competency of, in criminal cases, 729. 
 confidential communications to, privileged, 749. 
 privileged as to affairs of state, 762. 
 effect of promise of, not to prosecute, on privilege of witness, 888. 
 
 PROSTITUTION. See Character, Chastity. 
 relevancy of acts of, 153, 833 n. 30. 
 cross-examination as to, to affect credibility, 832 n. 29. 
 
 PROTECTION OF WITNESSES from self-crimination. See Witnesses, 
 887-892. 
 from arrest, 805, 806. 
 
 PROTEST OP NEGOTIABLE PAPER. See Endorsements, Negotiable 
 Paper. 
 certificates of notary as to, 554. 
 proof of, by witness who has no independent recollection, 881 n. 78. 
 
 PROVINCE OP JUDGE AND JURY. See Court, Judge, Jury. 
 existence of statute, question for court, 117. 
 jury passes on weight of evidence, 174. 
 jury determines questions of fact, 174-175a. 
 judge passes on competency, 174, 719, 720. 
 
 on sufficiency, 174. 
 control of judge over trial, 174. 
 
 judge may review evidence, 174. 
 questions determined by judge, 175. 
 
 reasonable time and care, 175. 
 
 interpretation of contracts and statutes, 175. 
 in criminal cases, 175a. 
 
 judge to pass on preliminary questions, 202, 313. 
 qualification of witness to express an opinion, for court, 363, 
 as to materiality of alteration, 560. 
 as to alteration, 565. 
 as to admissibility of evidence, 576. 
 
 judge to examine children to determine competency of, 721. 
 when judge should apprise witness of his rights, 890. 
 as to competency and weight of evidence, 736. 
 as to questions of fact, 901. 
 as to credibility of witnesses, 901. 
 
INDEX. 1321 
 
 BBFERENCES ARE TO SECTIONS. 
 
 PUBLIC AND GENERAL INTEREST, matters Of, how proved. See Heab- 
 SAY Evidence, 301, 302. 
 
 PUBLIC AGENTS, power to bind principal, how limited, 256. 
 
 PUBLIC BOUNDARIES. See Boundabies. 
 
 PUBLIC CORPORATIONS. See Municipal Cobpoeations, Munictpal Of- 
 fices, Public Reoohus, Records. 
 
 PUBLIC DOCUMENTS. See Copies, Documents, Public Recobds, Recobds, 
 Registers. 
 presumed to have been properly kept by custodians, 46 n. 48. 
 best evidence of, 200 n. 11. 
 provable by copies, 522, 523. 
 provable by photographic copies, 881. 
 
 PUBLIC FASTS, judicial notice of, 129. 
 
 PUBLIC HISTORY, facts of, judicially noticed, 125. 
 
 PUBLIC INSTITUTIONS, character of, judicially nottced, 123 n; R. 
 
 PUBLIC HOLIDAYS, judicial notice of, 123. 
 
 PUBLIC OFFICE, presumption of continuance of, 58 n. 2. 
 
 PUBLIC OFFICERS. See Municipal Officebs, Offkjebs. 
 presumed to do their duty, 13 n. 25. 
 appointment of, when presumed, 43. 
 acts and appointment of, proved by parol, 205. 
 admissions of one of a board, 253. 
 books of, competent evidence, 508, 509. 
 
 illustrations of, 508 n. 67. 
 basis for presumption as to legitimacy, 97. 
 for statute of limitations, 249. 
 
 PUBLIC POLICY, contracts void untfer, parol proof of, 436. 
 usages not to conflict with, 462, 467. 
 parol proof where deed is against, 485. 
 as to competency of husband and wife as witnesses, 733. 
 as to communications between attorney and client, 748, 749. 
 
 PUBLIC PROSECUTOR. See Peosbcutob. 
 
 PUBLIC RECORDS. See Authentication, Best Evidenoe, Copies, Docu- 
 ments, Public Writings, Records. 
 best evidence of, 200 n. 11. 
 
 contents of, proved by secondary evidence, 205. 
 generally admissible,. 508, 514. 
 
1322 INDBX. 
 
 EEFEBENCES ABE TO SECTIONS. 
 
 PaBLIC RECORDS (continued) — 
 grounds of admission, 508. 
 land tax assessment, 508. 
 prison, oiistom-house and log-books, 508. 
 records of miners' claims, 508. 
 registered letters, 508 n. 67. 
 attendance at school, 508 n. 67. 
 city, village, school district, 508 n. 67, 514 n. 3. 
 town, board of supervisors, 508 n. 67, 514 n. 3. 
 clerk of court, house of correction, 508 n, 67. 
 when provable by copies. See Authentication, Certificates, 522. 
 
 PUBLIC RUMORS, relevancy of. In actions for libel and slander, 150. 
 for malicious prosecution, 157. 
 ordinarily inadmissible, 297 n. 4, 300. 
 
 PUBLIC STATUTES, definitions of, 113. 
 what are, 113. 
 proof of, 501. 
 
 PUBLIC WRITINGS. See Documents, Public Records, Records. 
 
 PUBLISHER, books of account of, when admissible, 571 n. 31. 
 
 PUNITORY DAMAGES. See Pinanciai, Standinq, 159-161. 
 
 PURCHASER, when bound by admissions of vendor, 244, 245. 
 when made after sale, 245. 
 bound by what judgments, 587 n. 53. 
 
 PURPOSE. See Intention. 
 
 PUTATIVE FATHER, when photograph of, may be compared with fea- 
 tures of child, 96 n. 35. 
 
 Q. 
 
 QUAKERS, how sworn, 7IB. 
 
 QUALIFICATION OF EXPERTS, question for court, 368-369. 
 of various classes of. See Expert Testimony, 378-388. 
 
 QUANTITY, allegations as to, ainendment of, 233. 
 
 QUARRELSOME CHARACTER, relevancy of, in actions for homicide, 156. 
 
 QUESTIONS tending to degrade or disgrace witness. See Witnesses, 
 830-843. 
 hypothetical. See Hypotheticai, Questions. 
 
INDEX. 1323 
 
 EEFEEENCES ARE TO SECTIONS. 
 
 QUESTIONS FOR COURT AND JURY. See Province op Judge and Juet. 
 
 QUESTIONS OP LAW, when court decides, 175a. 
 
 QUO WARRANTO PROCEEDINGS, burden of proof upon whom, 193. 
 effect of certificate, 193. 
 
 B. 
 
 RACE, insi)ectlon to show, 401. 
 
 RAILWAY CARS, condition of, shown by photograph, 581 n. 4. 
 
 RAILROAD CHARTERS, judicial notice of, 114. 
 
 RAILROAD CROSSING, shown by photograph, 581 n. 4. 
 
 RAILROADS. See Admissions, Common Caeeiees, Cobpobahons, Nkoli- 
 
 QENOE. 
 
 modes of business, judicially noticed, 123. 
 
 routes of, judicially noticed, 127 n. 41. 
 
 flres, relevancy of proof of defective machinery, 166, 167. 
 
 proof of other flres, 166, 167. 
 
 burden in actions for damages resulting from, 184. 
 best evidence of rules of, 201 n. 12. 
 parol proof of leasing of, 203 n. 18. 
 speed of train, opinions as to, 362. 
 distance within which train can be stopped, 363 n. 9. 
 expert testimony as to management of, 381. 
 
 when competent, 381. 
 usage of, when not binding, 464 n. 55. 
 
 RAILROAD TIME TABLE, parol proof of, 203 n. 18. 
 
 proved by newspapers, 582. 
 
 RAPE, presumption of incapacity of children to commit, 11, 98. 
 conduct of prosecutrix, when relevant, 138. 
 relevancy of similar acts, 144. 
 
 production of underclothing for inspection of jury, 400 n. 35. 
 as to proof of former acts of intercourse, 841. 
 cross-examination as to chastity of prosecutrix, 841. 
 corroboration of prosecutrix, 870. 
 
 RATE OP INERBST, effect of alteration of, 560 n. 41. 
 
 REAL EVIDENCE, defined, 8. 
 in general, 393, 394. 
 ancient practice as to, 394. 
 
 inspection of persons and articles. See iNSPEcnoN, 394-401. 
 effect of non-production of, 402. 
 
1324 INDEX. 
 
 BEFEa?BNCES ABE TO SEOTIOWS. 
 
 REAL EVIDENCE (continued) — 
 
 experiments and tests In presence of jury, 403. 
 view by jury. See View, 404-409. 
 experiments out of court. See Expekimbnts, 410. 
 models, diagrams atid photographs as evidence, 411. 
 accuracy of, must be proven, 411. 
 
 REAL PARTIES, admissions by, 237. 
 
 REALTY, presumption from possession of, 75, T6. 
 
 conveyance of. See Conveyancje, Deeds, Mortgages, Statote op 
 
 Feadds. 
 
 REASONABLE CARE, mixed question of law and fact, 175. 
 
 REASONABLE DOUBT, beyond a, meaning of, in criminal cases, 5. 
 in civil cases, 16, 901. 
 in criminal cases. 192' 
 
 REASONABLE INFERENCES, when facts raising, are relevant, 139. 
 
 REASONABLE NOTICE for taking depositions, 640, 661. 
 for inspection of documents, 728. 
 
 REASONABLE TiME, when acts are presumed to be performed wltUn, 57. 
 mixed question of law and fact, 175. 
 
 REBUTTAL of presumption of payment from lapse of time, 69. 
 from cancellation Of instruments, 71. 
 
 of presumption of settlement from acceptance of note, 73. 
 of presumption of title from possession, 81, 82. 
 of presumption of continuance of illicit relations, 89. 
 of presumption of coercion of wife by husband, 92. 
 of presumption of legitimacy, 94, 96, 97. 
 
 of presumption of Incapacity of Infants to commit crime, 98. 
 of presumption of identity, 100. 
 of malice in action for slander and libel, 150. 
 of Improper motive, conduct, etc., 171, 772, 873 
 explanation of other testimony, 171. 
 of Irrelevant testimony, 172, 873. 
 of presumption of due care, 185. 
 of incompetent or immaterial evidence, 172, 873. 
 of statements constituting admissions, 292. 
 of admissions, 271, 295. 
 of inference of hostility, 828. 
 
 REBUTTING EVIDENCE, defined, 809. 
 
 RECALLING "WITNESSES, discretionary power as to, 814. 
 for further cross-examination. 825, 846, 851. 
 
INDEX. 
 
 BEFBRBNOES ARE TO SECTIONS. 
 
 1325 
 
 RECEIPTS, date of, presumed correct, 51 n. 73. 
 presumption of payment from, TO. 
 not conclusive, 70, 491. 
 best evidence of, 201 n. 12. 
 
 secondary evidence as to the contents of, 218 n. 20. 
 as admissions, 270 n. 39. 
 trusts created by recitals in, 418. 
 parol proof tq show note a receipt^ 434 n. 1. 
 open to explanation, 491. 
 
 illustrations, 491 n. 24. 
 
 rule when they purport to be full settlement, 491, 
 
 effect, when not explained, 492. 
 
 overcome by clear and convincing testimony, 492. 
 
 when in form receipts, but in fact contracts, 492. 
 when partaking of nature of both, 492. 
 best evidence of contents of, 492. 
 for attached property, 492. 
 warehouse receipts, 493. 
 proved by attesting witnesses, 527 |i. 7. 
 
 RECEIVING STOLEN PROPERTY, relevancy of similar acts, 143. 
 
 RECITALS of jurisdiction, presumption in favor of, 32. 
 in documents, presumption from, 50. 
 of jurisdictional facts in judgments of sister states, effect of, 617. 
 
 RECOGNITION of relationship by family. See PKDiaBEE. 
 of agent by principal. See Agents, Pbincipaj, 
 
 RECOGNIZANCE of witnesses, 804. 
 
 RECOLLECTION, want of, leading question i)ermissible, 818. 
 
 use of memorandum to refresh. See REFBESHiNa Mbimoet, 874-883. 
 
 RECORDED DEEDS, as evidence. See DocnMENTS, 519-521. 
 statutes affecting same, 537. 
 
 RECORDING OFFICERS, presumption of performance of official duty, 
 45 n. 47. 
 
 RECORDS. See Atjthbntioatiow, Books of Account, Cbbtificatbs, Cop- 
 ies, Documents, Official Registers, Public Records, Registers, 
 Writings. 
 no presumption allowed to contradict, 32. 
 of a public nature, best evidence of, 200 n. 11. 
 non-judicial records, 538. 
 proof of, 538. 
 federal statutes as to, 538. 
 
 mode of authentication, 538. 
 
 applicable to what instruments, 538. 
 
1326 nsTDEx. 
 
 EEFBKENCBS AEE TO SECTIONS. 
 
 RECORDS (continued) — 
 
 department records, proof of, 539. 
 federal statutes as to, 539. 
 
 applicable to what records, 539. 
 statute must be strictly pursued, 540. 
 authentication of. See Ceetificates, 540-544. 
 copies of, not evidence as to unofficial acts, 541. 
 
 RECORDS OF COURTS. See Authentication. Ceetificates, Copies, 
 Judgments. 
 judicially noticed, 124. 
 best evidence of, 200 n. 11. 
 
 when lost, 212 n 70. 
 proof of parts of, 621. 
 
 verdict, 621. 
 of same court, how proved, 622. 
 of same state, how proved, 623. 
 
 by copies, certified or exemplified, 623. 
 original records, 623. 
 how authenticated, 623. 
 insufficient proof of, 623. 
 of foreign countries, how proved, 624. 
 by copy or certificate, 624. 
 
 mode of authentication. See Autiientication, 623-62?. 
 of sister states, how proved, 626. 
 
 federal statutes as to authentication of, 626. 
 not exclusive, 626. 
 
 to what record the statute applies, 626. 
 of justice courts, 626. 
 of federal courts, how proved, 627. 
 attestation by clerk, 628. 
 
 statutes to b€ complied with, 628. 
 by deputy, 628. 
 form and sufficiency of, 628. 
 certificate of judge, 629. 
 sufficiency of, 629. 
 form of, 629. 
 seal annexed. 629 
 
 RECORDS OF MUNICIPAL, CORPORATIONS. See Mijwkotal Cobpoba- 
 
 TIONS. 
 
 as admissions, 267. 
 as evidence, 514, 515. 
 
 RECORDS OF PRIVATE CORPORATIONS. See CoBPOBATiONa. 
 secondary evidence of contents of, 218 n. 20. 
 a,s admissions, 270. 
 
 as against ofncers and members having access, 270. 
 as evidence In acttons on stock subscriptions, 617. 
 as evidence. See Coepobations, 516-518. 
 
INDEX. 1327 
 
 EEPEEENCES ABE TO SECTIONS. 
 
 RECORD TITLE, effect on, of declarations of possessor, 354. 
 
 RE-CROSS EXAMINATION, when permitted, 873. 
 discretion of court as to, 873. 
 
 RE-DIRECT EXAMINATION. See Witnesses, 871-873. 
 
 RE-EXAMINATION, impeached witness may explain on, 852. 
 of witnesses. See Witnesses, 871-873. 
 
 REE^REBS, power to compel attendance of witness, 797. 
 witnesses before, privileged from arrest, 805-806. 
 
 REFERENCE to books for collateral facts by court, 132. 
 
 REFRESHING MEMORY by testimony taken at former trial, 343. 
 entries in books of account may be used to, 568. 
 use of almanacs for, 578. 
 by scientific books, 579. 
 
 suipmna duces tecum not used to obtain books and papers for, 801 
 of witnesses, use of memoranda, 874, 883. 
 may be compelled to refer to, 874. 
 when allowed, 875. 
 when merely to assist memory, 875. 
 
 illustrations, 875 n. 43, 882. 
 when the memorandum to be made, 875, 879. 
 production of memoranda in court, 876. 
 
 when not necessary, 876. 
 cross-examination as to, 876. 
 inspection by counsel and jury, 876. 
 discretionary to make witness produce writing, 876. 
 when not made by witness, 877. 
 
 witness must know it to be correct, 877. 
 copy of writing, when used, 878. 
 
 examples of, 878 n. 57. 
 
 when, though original is in existence, 878. 
 copy of a copy, when may be used, 878 n. 57. 
 must it be contemporaneous with the fact, 879. 
 
 depends upon circumstances, 879. 
 when made ex post facto, 879. 
 
 circumstances of suspicion, 879. 
 mode of using memoranda, 880. 
 
 to be used only when memory needs assistance, 880, 881. 
 memoranda which awaken no recollection, 881. 
 
 must be known to be correct, 881, 882. 
 
 to be contemporaneous, 881. 
 
 memorandum must be produced, 882. 
 
 examples, 881 n. 78, 882. 
 
1328 INDEX. 
 
 BEFEBENCES ABE TO SECTIONS. 
 
 REFRESHING MEMORY (continued) -^ 
 
 attesting witnesses, 882. 
 
 in regular course of business, 882. 
 details, wlien witness allowed to read, 882. 
 use of memoranda as evidence, 883. 
 
 not necessary if witness remembers, 883. 
 
 when he does not remember, but knows it to be correct, 883. 
 other modes of refreshing memory, 883. 
 
 REFORMATION OF CONTRACyr. See Pabol Bvidencb to Explain 
 Weitings. 
 effect of statute of frauds, 432. 
 proof of mistake of fact, 437. 
 
 REFUSAL OF WITNESS to answer. See Witnesses, 884-892. 
 when ground for suppression of dei)osition, 689. 
 to attend trial, when contempt of court, 799. 
 to testify, when contempt of court, 800. 
 to produce books and papers, when contempt, 801. 
 
 REGISTERS. See Officiai, Registees. 
 
 REGISTER OF DEEDS, as expert on handwriting, 556 n. 20. 
 
 REGULARITY.- See Presumptions, 30-57. 
 
 REGULATIONS OF BUREAUS, judicial notice of, 122. 
 
 REJECTION OF EVIDENCE, when ground for new trial, 896, 897. 
 
 RELATIONSHIP. See Childeen, Husband and Wife, Paeents, Pedigeee. 
 how proved, 300. 
 when trust arises from, 425. 
 no effect on competency of witness^ 778. 
 cross-examiner not concluded by answer as to, 828. 
 as affecting credibility, 901. 
 
 RELATIVE, declarations of, as to pedigree. See Pedigbke. 
 competency of, as witness, 778. 
 
 RELEASE, burden of proof as to, 178 n. 16, 179 n. 17. 
 best evidence of, when lost, 212 n. 70. 
 proved by attesting witness, 527 n. 7. 
 
 RELEVANCY of matters to prove title by adverse possesslm, 82. 
 of proof that illicit connection has becom*e lawful, 89. 
 definition and general rules, 135-139. 
 definition of, attempted, 135, 136. 
 evidence to be confined to issue, 135. 
 facts too remote, 136. 
 
INDEX. 1329 
 
 EEPEEENCES ARE TO SECTIONS. 
 
 RELEVANCY (continued) — 
 
 what matters are relevant, 136, 137. 
 
 rules for determining, illustrations, 138. 
 opportunity, desire, conduct, demeanor accompanying acts, 
 138, 139. 
 facts raising reasonable inference, 139 
 experiments, models, etc., 139. 
 notoriety, 139. 
 question for the court, 139. 
 condition at one time by that at another, 139. 
 similar facts, inference from, 139. 
 of acts between strangers, res inter alios, actce, 140. 
 generally irrelevant, illustrations, 140. 
 similar contracts with others, 140. 
 similar wrongful acts, 140. 
 acts between parties and strangers, 140. 
 qualifications of the rule, 141, 142. 
 
 facts, apparently collateral, may be relevant, 141. 
 
 acts part of series of similar acts, 141. 
 
 similar acts to prove knowledge, motive or Intent, 142. 
 
 in case of fraud, 142. 
 similar conduct toward another, 142. 
 common purpose to be shown, 142. 
 of other crimes or offenses, 143-147. 
 
 proof of, generally not relevant, 143. 
 
 when relevant to show motive, Intent, etc., 143-il47. 
 uttering counterfeit coin, conspiracy, embezzlement, arson, 
 
 adultery and false pretences, etc., 143, 144. 
 as to raising inference of guilt, 145. 
 of facts showing good faith, 146. 
 
 of collateral facts to repel Inference of accident, 147. 
 character of litigants, 148-154. 
 
 not usually relevant, illustrations, 148. 
 to show negligence, 148. 
 under general issue, 150. 
 In libel and slander cases^ 149. 
 
 confined to general reputation, 149, 150. 
 specific acts not relevant, 149. 
 admissibility of rumors, 150. 
 In actions for breach of promise of marriage, 151. 
 in seduction and criminal conversation, 152. 
 of specific acts, 152. 
 of character of the parent, 152. 
 in bastardy cases, 153. 
 in actions for fraud, 154, 155. 
 
 proof of good character, 154, 155. 
 In actions for malicious prosecution, 157. 
 reputation of plaintiff, 157. 
 84 
 
1330 INDEX. 
 
 REFERENCES ABE TO SECTION'S. 
 
 RELEVANCY (continued) — 
 
 good character, proof of, generally irrelevant, 158. 
 
 when attacked on cross-examination, 158. 
 
 in slander and libel, 158. 
 financial standing, 159-162. 
 
 in actions for slander and libel, 159, 160. 
 
 assault, malicious prosecution, 159. 
 
 seduction and criminal conversation, 159, 160. 
 
 negligence and trespass, 159. 
 
 breach of promise of marriage, 160. 
 
 of plaintiff, 161. 
 reputed wealth, 162. 
 
 mode of proving, 162. 
 of facts appat-ently collateral, 163, 169. 
 
 personal injuries, other injuries, 163, 164, 165. 
 similar accidents under similar conditions, 163. 
 similar effects under similar conditions, 164. 
 custom in negligence cases, 163. 
 habits af animals in negligence cases, 165. 
 experiments, relevancy of, 165. 
 specific acts, negligence, 165. 
 as to defective machinery, 166. 
 
 in case of railroad fires, 166, 167. 
 of value of lands, 168, 169. 
 
 of other sales to prove value of lands, 169. 
 conditions to be similar, 168, 169. 
 offers of sale, 169. 
 of value of personal property, 169. 
 of value of services, 169. 
 
 party may testify to his motive. Intent and belief, 170. 
 of evidence made relevant by that of adverse party, 171. 
 on rebuttal, 171. 
 parts of conversation, act or writing, 171. 
 
 introduction of, renders rest competent, 171, 822, 871. 
 explanation of conduct, etc., 171. 
 rebuttal of irrelevant testimony, 172. 
 facts not rejected because of little weight, 173. 
 must facts be relevant when offered, 173. 
 withdrawing improper testimony from jury, 173, 895. 
 preliminary questions for the court, 173. 
 
 discretion as to preliminary facts, 173. 
 province of judge and jury. See Pbovince op Judge and Jtjbt, 
 
 174-175a. 
 Introduction of part of statement, conversation, document or 
 transaction renders rest relevant, 293, 294, 685, 781, 822, 871, 
 872. 
 of facts on sale of goods under statute of frauds, 428. 
 
INDEX. 1331 
 
 BlSfKBENOES ASE TO SECTIONS. 
 
 RELEVANCY (continued) — 
 
 of books of public oflaoers, 508. 
 
 commissioners for tailing deposition do not usually pass on, of 
 
 testimony, 676. 
 of evidence necessary to production on bill of discovery, 702. 
 what relevant to corroborate accomplices, 770. 
 should it appear when evidence offered, 813. 
 satisfaction of court as to, 813. 
 withdrawing irrelevant testimony, 813, 895. 
 more liberal rule on cross-examination, 826. 
 
 in attacking credibility, 826. 
 relevant facts to be received, 893. 
 
 effect of rejecting relevant facts, 896, 897. 
 effect of admitting irrelevant facts, 896, 897. 
 
 withdrawing and striking out evidence, 895. 
 
 RELEVANT, meaning of, 135, 136. 
 
 not synonymous with admissibility, 136. 
 
 RELIABILITY of witnesses, cross-examination as test of. See Wit- 
 nesses, 828-843. 
 
 RELIGIOUS BELIEF, effect of, competency. See Competenct of Wit- 
 nesses, 712-'715. 
 
 RELIGIOUS SECTS, judicial notice of, 130. 
 
 RE5MAINDER-MAN, presumption of title from possession does not arise 
 against, 82. 
 not affected by admissions of life-tenant, 243. 
 
 REMOTE INFERENCES, decision on, not permissible, 137. 
 
 REMOTE TRANSACTIONS, presumption of Identity does not apply to, 
 100 n. 72. 
 
 RENT. See Landloed and Tenant, Leases. 
 payment of, when presumed, 57, 65 n. 52, 72. 
 payment of, provable by parol, 203 n. 18. 
 payment of, estops tenant to deny tenancy, 284. 
 
 REPAIRS OF HIGHWAY, MACHINERY, ETC., relevancy of, 288. 
 
 REPEAL of statutes, judicial notice of, 117. 
 
 REPLEVIN, by one having bare possession, 74 n. 94. 
 presumption of law of sister state as to, 83 n. 46. 
 
 REPLIES, by persons referred to, competent, 263. 
 should be responsive to questions, 814. 
 
1332 INDEX. 
 
 BEPBRENCES ARE TO SECTIONS. 
 
 REPORTS, of officers, judicial notice of, 122. 
 law reports aiS evidence, 506, 600. 
 
 REPOSITORY. See Custodt. 
 
 REPRESENTATIVES. See Asent, Exbcutoe and Admistratoe, Tbtjs- 
 
 TEE. 
 
 statements of, when binding on, 266. 
 
 meaning of term, 774. 
 
 competency of, as to transactions with deceased or Incompetent, 
 
 see Competency of Witnesses, 772-796. 
 
 REPUTATION. See Chakacter. 
 
 of college, presumption of continuance of, 58 n. 2. 
 of being prudent or negligent, relevancy of, 148. 
 relevancy of, in slander and libel, 149, 150. 
 
 in seduction, criminal conversation, etc., 152. 
 evidence of, generally inadmissible, 297 n. 4. 
 as to matters of public interest, illustrations, 30], 
 as to private boundaries in England, 303. 
 
 relaxation in this country, 304. 
 
 must have been formed before controversy arose, 304. 
 
 must be traditional, 306. 
 not admissible to prove acts of ownership or possession, 306. 
 
 to contradict record evidence, 306. 
 when provable by opinions of ordinary witnesses, 360 n. 3. 
 irrelevant questions as to, on cross-examination, 827. 
 
 questioner bound by answers, 827. 
 for veracity, impeachment of witnesses. See Witnesses, 859-863. 
 distinguished from character, 859. 
 
 REPUTATION FOR TRUTH, bad, presumption of continuance of, 58 n. 2. 
 of prosecutrix in action for bastardy, 153. 
 impeachment of witnesses as to, 859, 860. 
 
 REPUTATION OP MARRIAGE, presumption from, 87. 
 
 REPUTED OWNERSHIP, when provable by hearsay, 300. 
 
 REPUTED WEALTH, relevancy of. See Financial Standing, 162. 
 
 RES ADJUDICATA. See Judgments. 
 
 RESCISSION OF CONTRACT, burden of proof as to, 178 n. 16, 179 n. 17. 
 
 RESCISSION, of written contract, parol proof of as ta See Pabol Evi- 
 dence TO Explain Writings, 442-445. 
 
 RESEMBLANCE, inspection to show, 40L 
 
 RESERVATION IN DEEDS, parol proof of, inadmissible, 486, 
 
INDEX. 
 
 BEFEEENCES AKB TO SECTIONS. 
 
 1333 
 
 RES GESTAE, dleclarations admissible, when part of, 235, 250. 
 
 those of executors and administrators, 253. 
 
 those of co-conspirators, 254. 
 
 those of agents, 255. 
 
 those of husband and wife, 260. 
 
 those of officers of public corporations, when, 267. 
 
 those of officers of private corporations, when, 268. 
 letters, as part of, 269. 
 
 declarations as to boundaries, etc. See Botjndaeies, 305, 306. 
 entries by deceased persons in due course of business. See Deceiased 
 Pebsons, 319. 
 
 by party himself when part of. See Entries, 322. 
 when in dying declarations. See Dying Declaeatiows, 334. 
 meaning of the term, 344. 
 when part of contract, 344. 
 illustrations of, 344 n. 3. ^ 
 
 admissibility depends on facts of each case, 345. 
 mere narrations not admissible, 345, 357. 
 must be contemporaneous, 345. 
 
 Instances of relaxation of rule, 346, 357. 
 
 time through which may extend, 347, 348. 
 declarations as part of. See Declabations, 347-357. 
 of bankruptcy, when part of, 347. 
 must be part of transaction, 348. 
 
 tend to explain it, 348. 
 
 unpremeditated, 348. 
 declarations as to bodily feelings. See Bodilt Feelings, 349. 
 declarations showing motive or intent, 350. 
 declaration by one in possession of property. See Dbcxaeations, 351- 
 
 355. 
 declarations of agents as part of. See Agents, 356-658. 
 inspection before the jury as, 398. 
 declarations of testator as part of, 483, 484. 
 answers on inquiring for absent witness, 528. 
 entries in books of account as part of, 567. 
 letters as part of, 583. 
 facts part of, called out on cross-examination, 823. 
 
 RESIDENCE. See Domicil. 
 
 presumption of continuance of, 58 n. 2. 
 declarations as to, part of res gestw, 347. 
 place of, asked on cross-examination, 832 n. 29. 
 
 RES JUDICATA. See Judgments. 
 
 RESOLUTIONS, read at public meeting, how proved, 205 n, 29. 
 and acts of public corporations, judicially noticed, 116. 
 
 RESPONSIVE, answers to be, 814. 
 
1334 INDEX. 
 
 EEFEBENCES ARE TO SECTIONS. 
 
 RESTRAINT OF TRADE, parol evidence that contract Is In, 436 n, 19. 
 
 RESULTING TRUSTS, how proved. See Tktjsts, 420-422. 
 how limited by statute, 423, 424. 
 
 RETAKING DEPOSITIONS, ground for, 698. 
 
 RETURN OP SEASONS, judicially noticed, 129. 
 
 RETURN OF COMMISSIONER, on depositions, 651. 
 mistake in, 669. 
 
 RETURN OP OFFICERS, best evidence of, 200 n. 11. 
 when evidence, 631, 632. ^ 
 
 not of collateral facts, illustrations, 631, 632. 
 conclusive on parties and privies, 632. 
 
 unless vacated or directly attacked, 632. 
 
 unless fraudulent, irregular or illegal, 632. 
 conclusive on ofiBcer, 633. 
 
 except as to matters of opinion, 633. 
 
 oflBcer may explain ambiguity, 633. 
 
 prima facie evidence in favor of officer, 633. 
 strangers not bound by, 633. 
 
 unless same relation of privity exists, 633. 
 conclusive in favor of those who act on them, 633. 
 when corrected or amended, 693. 
 
 REVERSIONER. See Remaindbe-man. 
 
 REVOCATION OP WILLS, declarations of testator as to, 484. 
 
 REVOLUTIONARY GOVERNMENTS, when judicially noticed, 107. 
 
 RIGHT OF COMMON, provable by hearsay, 301 n. 26. 
 
 RIGHT OF "WAT, presumption as to, 76 n. 8. 
 
 RIGHT TO OPEN AND CLOSE. See Open and Close. 
 
 RINGS, inscriptions on, as to matters of pedigree, 316. 
 
 RIVERS, judicial notice of, 127. 
 
 ROADS, public character of, when provable by hearsay, 301 n. 26. 
 judgments to prove, against strangers, 588 n. 66. 
 
 ROBBERY, presumption of ownership from possession, In prosecutions 
 of, 74 n. 94. 
 relevancy of similar acts, 144. 
 good character, not revelant, 154 n. 26. 
 
 ROGATORY LETTERS. See Lettbes Roqatobt. 
 
INDBX. 1335 
 
 EEFERENCES ARE TO SECTIONS. 
 
 RULES, necessity for exclusionary, 1. 
 
 of departments, judicially noticed by federal courts, 120. 
 of railroad companies, best evidence of, 201 n. 12. 
 
 RUI/ES OP COURT, when judicially noticed, 124. 
 
 RUMORS, relevancy of, in libel and slander, etc., 150. 
 proof of, in mitigation of damages, 150, 157. 
 distinction between special and general belief, 150. 
 in malicious prosecution to show good faith, 157. 
 evidence as to public rumors inadmissible, 297 n, 4. 
 exception to the rule, 300. 
 
 S. 
 
 SAILORS, as experts, 385. * 
 
 SALE OF LANDS for taxes, proceedings not presumed regular, 46. 
 best evidence of, 200 n. 11. 
 
 SALES. See Parol Evidence to Explain WIjitings, Statute or Feaudb. 
 by order of court, best evidence of, 200 n. 11. 
 parol proof of, 203 n. 18. 
 estoppel by acquiescence in, 275. 
 under statute of frauds, 428. 
 parol evidence to explain, 441. 
 
 SAMPLE, parol evidence to show sale by, 441. 
 parol proof of custom of selling by, 457 n. 26. 
 
 SANITY. See Insanity. 
 
 presumption as to, 59, 103. 
 
 presumption of, in conflict with that of Innocence, 103. 
 of testator, burden as to, 177, 189. 
 opinions of ordinary witnesses as to, 364, 365. 
 conflict as to rule, 364. 
 in will oases, 365. 
 opinion of physicians as to, 378. 
 
 SATISFACTORY EVIDENCE, defined, 7. 
 
 SCENE OF CRIME, shown by photograph, 581 n. 4. 
 
 SCIENCE, judicial notice of matters of, 128. 
 
 SCIENTIFIC BOOKS. See Expert Testimony, Hearsay Evidence, Opin- 
 ions. 
 opinions in, not competent, 578. 
 Illustrations, 578 n. 78. 
 
 insanity, malpractice, 578 n. 78. 
 homicide, blood stains, 578 n. 78, 
 diseases of Jjorses, 578 n. 78. 
 
1336 INDEX. 
 
 EEFEEENCES AEB TO SECTIONS. 
 
 SCIENTIFIC BOOKS (continued) — 
 
 cyclopedias and other books, 578 n. 78. 
 relaxation of rule as to exact sciences, 578, 579. 
 
 tables of weights and measures, Interest, 578. 
 
 annuity tables, almanacs, 578. 
 experts may base their opinions on, 579. 
 
 not to read therefrom, 579. 
 
 when offered to impeach experts, 579. 
 Btatutes as to use of, 579. 
 reading from, in argument to jury, 580. 
 
 discretion of court as to, 580. 
 
 objections to, 580. 
 
 SCIENTIFIC WITNESSES. See Expert TESTiMOTrr. 
 
 SCINTILLA of evidence, 174. 
 
 SCREAMS, as part of res gestae, 349. 
 
 SCRIPTURES, judicial notice of, 130. 
 used in administering oath, 715. 
 
 SCRIVENER, communications to, when not privileged, 751, 786. 
 
 SEALS, judicial notice of, 107. 
 
 and signatures, judicial notice of. 111. 
 
 of notaries, 110. 
 
 of other courts, judicially noticed, 124. 
 contracts under, parol proof as to, 435, 443. 
 
 consideration for, not conclusively .presumed, 11. 
 great seal proves Itself, 625, 630. 
 private seal does not prove Itself, 625, 630. 
 annexed in proof of judicial records, 625, 630. 
 
 SEARCH for writings, what sufficient. See Best Evidencb, 212-215. 
 for attesting witnesses, 529. 
 
 SEAMEN, as experts, 385. 
 
 SEASONS, judicially noticed, 129. 
 
 SEAWORTHY condition of vessel, pres.umption as to, 58 n. 2. 
 
 SECESSION of confederate states, judicially noticed, 125, 126. 
 
 SECONDARY EVIDEJNCB. See Best Evidencb^ Ceetificates, Copies, No- 
 tice TO Peodtjce. 
 defined, 8. 
 cannot be rebutted by document when offered on failure to produce 
 
 document on notice, 20. 
 discussion of, 200. 
 
INDEX. 1337 
 
 BEFEEENCES AKB TO SECTIONS. 
 
 SECONDARV evidence (continued) — 
 
 not admissible, when primary evidence obtainable, 200. 
 
 admissible to prove public records, 205. 
 
 letter-press copies and photographs, 209. 
 
 of contents of lost instruments, when admissible, 212, 213. 
 
 of documents beyond jurisdiction of court, 217. 
 
 accidentally destroyed, 217. 
 
 In possession of stranger, 217. 
 writings not produced on notice, 217, 222. 
 given without notice to produce, when, 223, 224. 
 degrees of, 228. 
 
 some conflict in this country, 228. 
 
 cases illustrating "American rule," 229. 
 
 Qualifications of the rule, 230. 
 
 SECRETARY OF STATE, authentication of department records by, B40. 
 
 SEXJRETARY OP TREASURY, authentication of department records by, 
 540. 
 
 SECRETS OF STATE, privileged, 780. 
 
 SECTION LINE, provable by hearsay, 301 n. 26. 
 
 SEDUCTION, presumption of innocence prevails over that of chastity. In 
 actions for, 102. 
 relevancy of financial standing, 159, 160, 161. 
 of plaintiff, 161. 
 of plaintiff's family, 161. 
 as to proof of former acts of intercourse, 835. 
 
 SEIDUCTION AND CRIMINAL CONVERSATION, relevancy of character 
 in, 152. 
 
 SEISIN, presumption of, from possession, 75. 
 
 SELF-CRIMINATION OF WITNESSES. See Witnesses, 884-892. 
 under bill of discovery, 708, 711. 
 
 SELF-DEFENSE, burden of proof as to, 177. 
 
 matters apparently hearsay, when admissible in proving, 300. 
 
 SELF-DISSERVING DECLARATIONS, competent as admisBions, 236. 
 
 SELF-PRESERVATION, instinct of, when jurors may take notice of, 134 
 n. 95. 
 
 SENTENCE. See Jxtogments. 
 
 when served, removes incompetency of infamy, 718. 
 conflict as to, 718. 
 
1338 INDEX. 
 
 EEFEEBNCBS ABE TO SECTIONS. 
 
 SEPARATE ORAL AGREEMENT, when shown by parol, 439, 441, 488. 
 
 SEPARATE TRIAL, effect of, on competency of accomplices, 768. 
 
 SEPARATING WITNESSES at trial, 807, 808. 
 
 SERVANT. See Agent, Master and Servant. 
 
 declarations of, as to matters of pedigree, not admlsslhlG, 312. 
 
 SERVICE. See Notice to Prodxjcb, Peocess, Returns, Subpoena. 
 proper, presumed in default actions where papers lost, 31 n. 11. 
 value of, when Irrelevant, 137. 
 
 by publication, presumption as to jurisdiction, 33. 
 of process, best evidence of, 200 n. 11. 
 of subpoena, 797. 
 
 SERVICES, p^sumption as to agreement to pay for, 57. 
 value of, relevancy of collateral facts, 169. 
 
 competency of testimony as to, adverse party being dead, 785 n. 89. 
 professional, presumed necessarily rendered, 13 n. 27. 
 expert testimony as to value of, 387. 
 parol evidence of usage as to contract for, 460. 
 
 SESSION, time of, of congress and legislature, judicially noticed, 106. 
 
 SET-OPP. See Gounteb-Claim. 
 
 admissions of former owner of choses in action as to, not admissible, 
 247. 
 
 SETTLEMENT, when presumed from lapse of time, 65. 
 accepting note or bill, presumption of, from, 73. 
 
 presumption rebuttable. 73. 
 burden of proof, 178 n. 16, 179 n. 17. 
 
 SEXUAL INTERCOURSE. See Adultkbt, Husband and Wite, Stouo- 
 TioN, Rape. 
 when presumed, 93. 
 legitimacy presumed from, 11, 95. 
 husband or wife not allowed to deny, 97 
 children incapable to consent to, 11, 98. 
 
 SHAREHOLDERS. See Stockholders. 
 competency of, as witnesses, 732. 
 
 SHERIFFS, presumption of performance of ofllcial duty, 45 n. 4T. 
 judicially noticed, 109 n. 23. 
 effect on surety of judgment against, 592. 
 admissions of deputy when admissible against^ 238, 
 deceased, admissibility of entries made by, in due course of business, 
 319 n. 57. 
 
INDEX. 1339 
 
 EiarEBENCES AKB TO SECTIONS. 
 
 SHIFTING of the burden of proof. See Burden of Peoof, 176, 177, 179. 
 in cases against common carriers, 182. 
 
 SHIP, when presumed to be unseaworthy, 54. 
 
 SHIP REXJISTSas, competent as to What facts, 512. 
 
 SHOE TRACKS, as evidence, 400. 
 
 SiHOP BOOKS, as evidence. See Books of Aocouira. 
 
 SHORTHAND NOTES. See Stenographers. 
 
 SICKNESS. See Disease, Health, Sanity. 
 
 renders competent former testimony, when. See Hearsay, 341. 
 when excuses failure to obey suipwna. 799. 
 
 SIDEWALK, condition of relevancy of facts apparently collateral, 163, 
 163 n. 6. 
 
 SIGHS, as evidence of feeling, 349. 
 
 SIGNATURE. See Seals, Handwriting, Statute or Frauds. 
 judicial notice of, 111. 
 of attorneys, judicially noticed, 124. 
 of oflacers of court, judicially noticed, 124. 
 acceptor estopped to deny genuineness of, of drawer, 386. 
 statute as to proof of, 537. 
 of bank officers to bills, how proved, 548. 
 a "transaction," 786. 
 
 SILENCE, admissions, when implied from, 289. 
 failure to deny declarations, 289. 
 statement must naturally call for response, 289. 
 
 truth or falsehood to be known, 289. 
 
 to be applied with caution, 289. 
 at judicial proceedings, 289. 
 during argument of counsel, 290. 
 
 SIMILAR ACCIDENTS, relevancy of, 163. 
 
 SIMILAR ACTS, generally irrelevant, 142. 
 
 relevant to show knowledge, motive, intent, 141, 142. 
 
 fraud, course of conduct, common purpose, etc., 142. 
 must have bearing on the issue, 145. 
 
 SIMILAR CONDUCT, relevancy of, 142, 143. 
 
 SIMILAR OCCURRENCES, relevancy of, 141, 146, 147. 
 
 SIMILAR OFFENCES, evidence of, how limited, 145. 
 
1340 INDEX. 
 
 BEFERENCES AKE TO SECXIONS, 
 
 SISTER STATES. See Comity, LiAws of Sisteb States, Statutes. 
 presumption as to judgments in, 38. 
 presumption as to law of, 83. 
 
 SITUATION, how proved. See Diaoeams, Maps, Photoqeaphs. 
 
 SKILL of experts. See Experts. 
 
 SLANDER. See Libbl. 
 
 amount of proof in action for, to establisti charge of crime, 16 n. 40. 
 presumption of malice in action for, 29. 
 relevancy of character in actions for, 149, 158. 
 relevancy of, financial standing, 159, 160. 
 
 of plaintiff, 161. 
 In civil cases, amount of proof, 195 n. 55. 
 slanderous words, not hearsay, 300. 
 
 SLAVERY, judicial notice of existence and abolition of, 125. 
 
 SMXDKE, damage caused by, relevancy of collateral facts, 164. 
 
 SOIL, expert testimony as to, 382. 
 
 SOLDIERS, best evidence of enlistment and desertion of, 200 n. 11. 
 
 SOLICITOR. See Attoenby. 
 
 of patents, rule as to confidential communications between attorney 
 and client, do not apply to, 751. 
 
 SOLVENCY. See Insolvency. 
 presumption of, 57. 
 of its continuance, 58 n. 2. 
 
 as circumstance in presumption of payment from lapse of time, 68. 
 parol proof of, as shown by the books, 206 n. 31. 
 reputation of, when relevant, 148. 
 
 SON, same name as father, when intended, 100. 
 
 SOVEREIGNTY, judicial notice of facts relating to, 107, 112. 
 
 SPARK ARRESTER, burden of proof as to use of, in railroad fires, 184. 
 
 SPECIALTY. See Contbact, Parol EIvidenoe to Explain Weitinqs, Seals. 
 best evidence of, when lost, 212 n. 70. 
 parol proof of subsequent change in, 443. 
 
 SPECIFIC PERFORMANCE of oral agreement under statute of frauds, 
 432. 
 
 SPECIFIC ACTS, in actions for seduction and criminal conversation, 152. 
 of negligence, relevancy of, 165. 
 
INDEX. 1341 
 
 EEFEEENCES AEE TO SECTIONS. 
 
 SPECIFIC OFFENSES, cannot be shown in aetionB for malicious prosecu- 
 tion, 157. 
 cross-examination as to, to affect credibility of witness, 832. 
 
 "SPECIFIC PERIL," death presumed after, when, 63. 
 
 SPEED, of railway trains, rate of between cities, judicial notice of, 127. 
 n. 41. 
 opinions of witeiesses as to, 362. 
 of horse, 362 n. 9. 
 
 SPIES, credibility of, 901. 
 
 SPOLIATION of evidence, presumption from, 17, 18. 
 effect of, 17, 18, 557. 
 
 of documentary evidence, presumption from, how far conclusive, 18. 
 distinguished from alteration, 557. 
 
 SPOUSE. See Husband and Wife, 734. 
 
 STAINS. See Blood Stains. 
 
 STATES, domestic and foreign, judicial notice of, 108. 
 
 STATE COXJRTS. See Copies, Couets, Judgments, Recobds of Coubts. 
 judicial notice of, 124. 
 
 STATE IjAWS. See Laws of Sisteb States, Statutes. 
 
 STATE OFFICIALS, judicial notice of, 109. 
 
 STATE STATUTES. See Laws of Sistee States, Statutes. 
 
 STATE OF FEELING, declarations of testator showing, 482 n. 65. 
 shown by cross-examination, 828. 
 explanation of, on re-direct examination, 872. 
 but not reasons for, 872. 
 
 STATE OF HEALTH. See Health. 
 
 when giving rise to presumption of death In less than seven years, 63. 
 statements of physician as to hearsay, 297 n. 4. 
 opinions of ordinary witnesses as to, 360 n. 3. 
 
 STATE OF WAR, presumption of continuance of, 58, 58 n. 2. 
 judicial notice of, 107. 
 
 STATUS, judgments to prove, against strangers, 588 
 
 STATUTE OF FRAUDS, presumption of, of sister state, 83 n. 46. 
 in general, 412. 
 grounds for, 412. 
 effect of, 413. 
 
 absolutely excludes parol proof In certain cases, 41S. 
 as to conveyances of land, 413. 
 as affecting leases, 414. 
 
1342 INDEX. 
 
 EEFEEENCES ABE TO SECTIONS. 
 
 STATE OF FRAUDS (continued) — 
 
 proof of surrender of Interests in lands, 415. 
 
 by operation of law, 415. 
 
 by acceptance of new lease, 415. 
 cancellation of instruments creating interests .in land, 417. 
 
 effect of, 417. 
 as affecting trusts. See Trusts, 418Ht25. 
 wills, bow affected by, 426. 
 as affecting guaranties, 427. 
 
 how proved, 427. 
 
 promise to pay one's own debt, 427. 
 
 test, to whom is credit given, 427. 
 as affecting sale of goods, 428. 
 
 how proved, 428. 
 memoranda of sale of lands and goods. See Memoranda, 429, 430. 
 parol modifications of contracts of sale, 431. 
 parol proof of fraud or mistake, 431. 
 reformation of contract, 432. 
 
 specific performance of oral agreement, when compelled, 432. 
 effect of part performance, 432. 
 
 original agreement must still be proved, 433. 
 parol proof as to contracts within, 444, 445. 
 discharge or modification by parol, 445. 
 
 STATUTES, judicial notice of, 112. 
 
 need not be offered in evidence, 112. 
 existence of, question for court, 117. 
 
 also the repeal of, 117. 
 
 also whether legally enacted, 117. 
 enrollment and authentication of, 117. 
 notice of contents of journal relating to, 117. 
 private, judicial notice of, 118. 
 of sister states, proof of, 118, 119. 
 
 no presumption as to, 83. 
 of sister states, judicial notice of, 118, 119. 
 construction of, for court, 175. 
 regulating view, 405. 
 regulating experiments, 407. 
 limiting resulting trusts, 423, 424. 
 
 objects of, 424. 
 proof of, 501. 
 
 effect of statutes relating to proof of, 501. 
 judicial notice of public statutes and of repeal, 117, 501. 
 
 private statutes, 501. 
 
 federal statutes, 501. 
 relating to proof of execution of Instruments, 537. 
 
 presumption, when complied with, 537. 
 
 effect of clerical errors, 537. 
 
INDEX. 1343 
 
 BEFEBENCES ABE TO SECTIONS. 
 
 STATXTTES (continued) — 
 
 as to proof of signatures, 537. 
 
 as to proof of documents. See Cektificates, 537-543. 
 
 as to comparison of handwriting, 552. 
 
 as to use of scientific books in examination of experts, 579. 
 
 as to costs when party refuses to admit instrument to be genuine, 537. 
 
 effect of, as to books of account, 573. 
 
 as to objections to taking depositions, 677. 
 
 removing incompetency for want of belief, 718. 
 
 removing Incompetency for conviction of infamous crime, 716. 
 
 removing Incompetency for Interest, 730, 731. 
 
 husband and wife, 745, 746. 
 
 general tendency of statutes, 747. 
 as to agency between husband and wife, 740. 
 as to confidential communications to attorney, 757 
 
 to clergymen, 758. 
 
 to physicians, 759. 
 as to conviction on testimony of an accomplice, 769. 
 as to transactions with deceased or Incompetent persons. S«e Com- 
 petency OP Witnesses, 772-796. 
 as to privilege of witnesses, 888, 889. 
 aa to recognizance by witnesses, 804. 
 as to contradiction of own witness, 854. 
 
 STATUTES OP LIMITATION. See Lapse of Time. 
 regarded as creating conclusive presumptions, 11. 
 payment presumed, when. S«e PSesumptions, 65-69. 
 reasons for, 65. 
 as bar to action, 66. 
 
 do not supersede presumption of ownership, 77. 
 burden of proof as to, 194. 
 effect on, of admissions of partners, 249. 
 after dissolution, 249. 
 
 STATUTORY DISCOVERY. See Discovebt, 703-711. 
 
 STATUTORY FEES of witnesses, 798. 
 
 effect of, on privilege of witness, 888 n. 27. 
 
 STATUTORY PRE'SUMPTIONS, discussed, 47. 
 
 STENOGRAPHERS, notes of, used to refresh memory, 343. 
 when introduced in evidence, 343. 
 taking depositions, 665. 
 
 confidential communications to, when privileged, 757. 
 notes of, used to refresh memory, 875 n. 43. 
 as to testimony reduced to writing by, 881. 
 
1344 INDEX. 
 
 EEFEEENOBS ABB TO SECTIONS. 
 
 STIPULATION. See Admissions. 
 
 of attorneys binding on client, 257. 
 
 STOCKHOLDERS, presumption of continuance as, 58 n. 2. 
 
 law of sister state as to liability of, must be proved, 118 n. 78. 
 
 admissions of, not binding on corporation, when, 2'C8. 
 
 when estopped to deny that he is one, 276. 
 
 records of corporations as against, 516, 517. 
 
 admissions in corporate records as against, 517. 
 
 judgment against, does not bind corporation, 587. 
 
 as to transactions with deceased or incompetent, 775. 
 
 STOCK SUBSCRIPTIONS, actions on, books as evidence, 517 
 
 STOLEN GOODS, amount of proof in civil actions for recovering, 16 n. 40. 
 inspection of, by the jury, 400 n. 35. 
 possession of, as corroboration of accomplice, 770. 
 
 STOP, LOOK AND LISTEN rule, presumption as to, 15 n. 32. 
 
 STRANGERS. See Admissions, Hearsay Evidence, Judgments. 
 presumption of innocence of, overcome by that of party 102. 
 relevancy of acts of parties with, 140. 
 
 no inference to be drawn for or against party from acts of, 298. 
 exception as to, in rule as to parol evidence, 449. 
 when judgment evidence against, 588, 590. 
 impeachment of judgment by, 619. 
 not bound by return of officer, 633. 
 not competent to testify as to reputation for veracity, 859. 
 
 STREETS, judicial notice of, 127. 
 
 best evidence of grade of, 200 n. 11. 
 
 of vacation of, 200 n. 11. 
 when parties to conveyance estopped to deny existence of, 281 n. 12. 
 appearance of, shown by photograph, 581 n. 
 
 STRENGTH, opinions as to, by experts, 380. 
 
 STRIKING OUT AND WITHDRAWING EVIDENCE, rules as to, 815, 
 
 820, 895. 
 
 STUDY, as basis of qualification of experts, 368. 
 of physicians, 379. 
 
 SUBDIVISIONS of states, judicial notice of, 108. 
 of time, judicially noticed, 129. 
 
 SUBJECT MATTER, may be identified by parol, 450. 
 in wills, parol proof to identify, 176. 
 
 SUBORDINATE OFFICERS, no judicial notice of, 110. 
 
INDEX. 1345 
 
 BEFEKENCES ABE TO SECTIONS. 
 
 SUBORDINATE TITLE, what declarations binding on holders of, 285 
 
 SUBORNATION, as admission of guilt, 287. 
 
 SUBPCENA, in case of deposition, 653. 
 
 to secure attendance of witnesses. See Witnesses, 797-808. 
 
 incident to jurisdiction, 797. 
 In federal courts, 797. 
 in state courts, 797. 
 how served, 797. 
 
 reversible error to limit number of, 797. 
 either party has right to, 797. 
 contempt to disobey, 799. 
 
 what excuses for non-attendance, 799. 
 
 SUBPCENA DUCES TECUM, for production of papers, 221. 
 for deposition, 653. 
 for inspection of documents, 710, 711. 
 for production of telegrams, 771. 
 to secure production of books and papers, 801. 
 nature of, 801. 
 must be obeyed, 801. 
 court determines admissibility of documents, 801. 
 
 privileged documents, 801. 
 must describe papers with certainty, 801. 
 not used to obtain papers to refresh memory, 801. 
 who may be compelled to produce papers, 802. 
 as to officers of corporations, 802. 
 
 models and patterns not included in federal courts, 802. 
 when witness in court, 802. 
 
 SUBSCRIBING WITNESSES. See Attestino Witnesses, 527-528. 
 production of, not required, when, 226. 
 
 SUBSCRIPTION FOR STOCK, best evidence of, 200 n. 11. 
 
 SUBSTANCE OP THE ISSUE, common law rule as to, 232. 
 modern rule as to, 233, 234. 
 
 SUBSEQUENT AGREEMENT, shown by parol. See Pabol Evidence to 
 Explain Writings, 442-448. 
 as to contracts vrithln statute of frauds, 444, 450. 
 
 SUCCESSOR, bound by admission of predecessor. See Admissions, 239- 
 247. 
 
 SUFFERING, declarations as to, part of res gestae, 349. 
 
 SUFFICIENCY, distinguished from competency, 7. 
 determination of, question for jury, 7. 
 of evidence, 174. 
 
 8S 
 
1346 iNDEy 
 
 EEFERENCES AEE TO SEC!TIONS, 
 
 SUFFICIENT EVIDENCE, defined, 7. 
 
 SUGGESTIVE QUESTIONS. See Leadinq Questions. 
 
 SUI JURIS. See Chiujeen, Husband and Wife. 
 presumption as to infants being, 99. 
 parties must be, in order to work estoppel by deed, 283. 
 
 SUMMONS, when presumed duly served, 34 n. 22. 
 
 witnesses and ijarties privileged from service of, 805, 806. 
 
 SUNDAY, judicial notice of coincidence of, with day of month, 129. 
 of observance of, 123. 
 
 SUNRISE, judicial notice of, 129. 
 
 SUPPLETORY OATH authenticating books of account, 573. 
 
 SUPPRESSION OF DEPOSITIONS. See Depositions, 686-692. 
 
 SUPPRESSION OP EVIDENCE, presumption from, 17-20. 222. 
 effect of, 17. 
 
 of documentary evidence, presumption from, 18. 
 as admission of guilt, 287. 
 
 SUPREME BEING, want of belief in, as affecting competency, 712. 
 
 SUPREME COURT, judicial notice of statutes by, 120. 
 
 SUR-RBBUTTAl., when allowed, 809. 
 
 SURETY. See Judgments, Principal. 
 
 admissions of, when competent against principal, 238. 
 when estopped to deny that principal held designated office, 281 n. 12. 
 how affected by the statute af frauds, 427. 
 effect on, of judgment against principal, 590, 591. 
 when subject to adverse party examination, 707. 
 
 incompetent as to transactions with deceased or incompetent prin- 
 cipal, 779. 
 
 SURGEONS. See Confidentiai, Communications, Physicians. 
 presumption of authority of, 44. 
 confidential communications to, 759-761. 
 
 SURPRISE, remedy where party surprised by own witness, 854. 
 
 SURRENDETR of interest in land by operation of law, 415, 416. 
 accepting new lease, 416. 
 
 SURROGATE COURTS. See Probate. 
 
 SURROUNDING CIRCUMSTANCES. See Parol Evidence lO Explatn 
 Writings. 
 parol proof of, 453. 
 
INDEX. ' 1347 
 
 EEFEBENCES ABE TO SECTIONS. 
 
 SURVKYORS, declaratioas of, as to private boundaries, 306. 
 
 deceased, admissibility of entries made by, in due course of business, 
 
 319 n. 57. 
 as experts, 384. 
 
 records of, as evidence, 508 n. 66. 
 acts of, proof of by witness, who has no independent recollection, 
 
 881 n. 78. 
 
 SURVEYS, when presumed correct, 45 n. 47. 
 judicial notice of, 127. 
 federal statute as to proof of, by copy, 538 n. 97, 541 n. 14. 
 
 SURVIVORSHIP, in common disaster, no presumption of, 64. 
 
 SUSPICION, that cancellation of Instrument is act of debtor, effect of, 
 on presumption of payment, 71. 
 
 SWEARING WITNESS. See Oath. 
 
 SWORN COPY of statute of sister state, 505. 
 of public records, 509, 515. 
 defined, 523. 
 as evidence, 524. 
 
 SYMBOLS, judicially noticed, 131. 
 
 SYMPTOMS, physicians as witnesses as to, 387. 
 
 TABLES, life tables, judicial notice of, 129. 
 as evidence, 578. 
 Interest tables as evidence, 578. 
 of weights and measures as evidence, 578. 
 annuity tables as evidence, 578. 
 
 TAGS, evidence of inscription on, 205. 
 
 TAKING VIEW. See View. 
 
 TALKATIVE WTNESSES, right of judge to check, 814. 
 
 TAMPERING WITH WITNESSES, contempt of court, 799. 
 
 TATTOO MARKS, inspection of person to show, 400. 
 evidence as to, 839. 
 
 TAX, payment of, when presumed from lapse of time, 65 n. 52. 
 when provable by parol, 203 n. 18. 
 
 TAX DEED, presumptive evidence of regularity of proceedings, 47. 
 
 TAX PROCEEDINGS, conclusive presumptions as to, by statute, 196. 
 
1348 INDEX. 
 
 EEFERENCES ARE TO SECTIOH'S. 
 
 TEACHERS, as experts as to handwriting, 556 n. 20. 
 
 TECHNICAL TERMS, explained by experts, 383, 384. 
 
 TELEGRAMS, presiiinptions as to sending of, 53. 
 best evidence of, 201 n. 12, 210. 
 receipt of, when provable by parol, 203 n. 18. 
 contents of, when provable by admissions, 208 n. 36. 
 what are original telegrams, 210. 
 
 depends on what, 210. 
 secondary evidence as to contents of, 218 n. 20. 
 when not privileged, 771. 
 
 TELEGRAPH COMPANIES, burden of proof in actions against, 182. 
 
 TELEPHONE, judicially noticed, 128 n. 46. 
 
 communications by, admissible in evidence, 211. 
 operator as agent of both parties, 211. 
 acknowledgments taken over, when set aside, 211. 
 
 TENANCY, parol proof bf, 203 n. 18. 
 
 TENANT. See Landlord and Tenant, Lease, Stattjte or Featjds. 
 presumption from possession by, 80. 
 presumption from possession by co-tenant, 80. 
 estopped to deny title of landlord, 243. 
 declarations of, as against owners, 243. 
 judgment against, not binding on co-tenant, 587 n. 53. 
 
 TENANTS-IN-COMMON, admissions of, as against each other, 253. 
 
 TENDER, when defense of, gives defendant right to open and close, 197 n. 
 69. 
 as admission of liability, 292. 
 
 TERMS. See Pheases, Words. 
 
 TERMS OF COURTS, judicial notice of, 124. 
 
 TERMS OF PUBLIC OFFICERS, judicial notice of, 109. 
 
 TERRITORIAL EXTENT, judicial notice of, 108, 127. 
 
 TEST, as to who has burden of proof, 176. 
 
 as to what is proper custody for ancient documents, 309. 
 as to materiality of alterations, 560. 
 as to relevancy, 827. 
 
 TESTAMENTARY CAPACITY. See Declarations, Wills. 
 presumption as to infants, 99. 
 conflict as to burden of proof as to, 189. 
 
INDEX. 1349 
 
 RBFBBENCES ABB TO SECTIONS. 
 
 TESTATOR. See Wills. 
 
 admissions of, as against executor, 242. 
 
 TESTIMONY, given on a former trial, when competent. See Heabsat Evi- 
 dence, 336-343. 
 
 of experts. See Expert Testimony, 364-392. 
 
 of absence from home giving rise to presumption of death, not con- 
 fined to members of family, 61 n. 27. 
 
 bills to perpetuate, 635. 
 
 depositions to perpetuate, 701. 
 
 must be under oath to be competent, 715. 
 
 of Infants, when received, 720. 
 
 incompetency of, burden on party objecting. See Competency or 
 "Witnesses, 744, 749, 759, 776, 788. 
 
 given at former trial by an Incompetent or deceased, effect of Intro- 
 duction of, 782. 
 
 when conflicting, jury to decide, 902, 90S. 
 
 TESTS in presence of jury, 403. 
 
 THIRD PERSON. See Declarations, Hearsay Evidence, Stbangebs. 
 acts of, when presumed free from fraud, 13 n. 27. 
 acts and conduct of, when admissible as part of res gestae, 344 n. 3. 
 when judgment evidence against, 590. 
 
 suits between, competency of husband and wife as witnesses, 735-742. 
 competent as to transactions with a deceased or Incompetent in his 
 presence, 790. 
 
 THREATS. See Duress. 
 
 relevancy of, in actions for homicide, 146. 
 
 TIME. See Reasonable Time. 
 
 presumption from lapse of. See Pbesumtions, 61, 63, 65-68. 
 how estimated In presumption of payment from lapse of, 67. 
 length of, no bar to a trust, 78. 
 
 qualification of rule, 78. 
 of gestation, judicially noticed, 129. 
 judicially noticed, 129. 
 of serving notice, to produce papers, 219. 
 through which res gestae may extend, 347. 
 parol proof inadmissible to vary, when, 434 n. 1. 
 length of, to establish usage, 463. 
 time of alteration, presumption as to, 563, 564, 
 
 TIME BOOK, as book of account, 570. 
 
 TITLE, when presumed from pos&esslon, 74, 75. 
 
 acts of legislature, when presumed in support of, 76. 
 best evidence of, 200 n. 11. 
 
1350 INDEX. 
 
 EEFEBENCES ABE TO SECTIONS. 
 
 TITLE (continued) — 
 
 not provable by declarations of grantor after deed given, 297 n. 4. 
 declarations by one in possession, admissible in disparagement of, 352. 
 when not, to sustain or destroy, 354. 
 
 TOBACCO, qualities of, judicially noticed, 128 n. 46. 
 
 TOLLS, custom of, provable by hearsay, 301 n. 26. 
 judgments to prove, against strangers, 588 n. 66. 
 
 TOMBSTONES, inscriptions on, provable by parol, 205. 
 inscriptions on, as to matters of pedigree, 316. 
 infirmity of such evidence, 317. 
 
 TORT ACTIONS. See Negligence. 
 
 presumptions as to infants' liability in, 99. 
 burden of proof in, 178. 
 judgment In,, when bars contract, 598. 
 discovery in, 705 n. 24. 
 
 TOWN OFFICERS. See Municipai. Officees, Officees, Pubuc Officees. 
 presumption of authority of, 46. 
 as to requisite number, 46 n. 48. 
 judicial notice of, 109. 
 when declarations of, not binding on town, 267 n. 21. 
 
 TOWN RECORDS, as evidence, 508, 514. 
 provable by copy 522 n. 60. 
 
 TOWNS, judicial notice of, 108, 127. 
 
 TRACKS, opinion of ordinary witnesses as to, 363. 
 
 TRADE, usage of. See Usage, 457-467. 
 
 presumption as to acquaintance with usage of, 57. 
 
 TRADITION. See Hearsay Evidence, Reputation. 
 as to matters of public interest, 301. 
 
 illustrations of the rule, 301 n 26. 
 as to private boundaries, in England, 303. 
 
 relaxation of the rule in this country, 304. 
 
 TRANSACTION with a deceased or incompetent, testimony as to. See 
 Competency of Witnesses, 772-795. 
 meaning of the term, 793. 
 
 TRANSERS OF STOCK, best evidence of, 201 n. 12. 
 
 parol proof that execution of, is for security, 448 n. 83. 
 
 TRANSPORTATION OF GOODS, presumption of continuance aa to, 58 
 n. 2. 
 
INDEX. 1351 
 
 BEFEBENCE ABE TO SECTIONS. 
 
 TRAINS, opinions as to speed of, 362. 
 as to their management, 381. 
 time of arrival, advertisement of, 582. 
 
 TRAVERSE JURORS. See Jueoes. 
 
 TRAVEL, facilities for. Judicial notice of, 127 n. 41. 
 
 TREASON, number of witnesses necCiSsary to convict of, 900. 
 
 TREATIES, presumption of continuance of, 58 n. 2. 
 judldlal notice of, 112. 
 construction of, for court, 175 n. 61. 
 
 TREATISES. See Scientific Books. 
 
 TREES, age of not judicially noticed, 129. 
 
 TRESPASS, action of, by one having bare possession, 74 n. 94. 
 possession with claim of right to support action for, 75. 
 character In action for, relevancy of, 148 n. 91. 
 relevancy of financial standing, 159. 
 burden of proof, 178 n. 16. 
 judgment in, bars trover, assumpsit, 598. 
 action for mesne profits, 598. 
 
 TRIAL. See Open and Close, Province of Judge and Jtjbt, Witnesses. 
 failure to appear at, as admission of guilt, 287. 
 
 TROVER, by one having bare possession, 74 n. 94. 
 
 judgment in, bars money had and received, trespass, 598. 
 
 TRUSTEE, presumed to have performed duty, 13 n. 27. 
 presumed to hold for his cestui que trust, 65 n. 52. 
 execution of trust by, when presumed, 65 n. 52, 78. 
 presumption of proper conveyances by, 78. 
 admissions of, as against cestui que trust, 253. 
 trust arising from fiduciary relations, 426. 
 competency of cestui que trust, as to transactions with deceased, 793. 
 
 TRUSTS. See Statute of Fbauds. 
 •do not lapse by lapse of time, 78. 
 how created, 418. 
 
 need not be created by writing, 418. 
 
 but must be proved by writing, 418, 419. 
 parol evidence to affect, 418, 419. 
 
 to supply defects or omissions, 419. 
 to contradict, 419. 
 may be by spyeral documents, 419. 
 
1352 INDEX. 
 
 EEFEBBNCE ABB TO SECTIONS. 
 
 TRUSTS (continued) — 
 
 resulting trusts, how proved, 420-424. 
 when they arise, 420, 421. 
 when by parol, 421, 422. 
 amount of evidence necessary, 422. 
 limited by statute, 423, 424. 
 objects of, 424. 
 to prevent frauds, 424. 
 between those in a fiduciary relation, illustrations, 425. 
 
 effect of statute of frauds upon, 425. 
 when created by procuring legacy, 426. 
 as affected by statute of frauds, 426. 
 
 TRUTH, bad character for, when continuance of, presumed, 58. 
 
 u. 
 
 ULTRA VIRES, public agents do not bind corporation when acting, 256. 
 
 UNCERTAINTY, when will rendered void by, 476. 
 
 UNDERSTANDING, of conversation, witness cannot be asked, 137. 
 
 UNDUE INFLUENCE. See Piduciart Relations. 
 burden of proof as to, in will cases, 189. 
 when presumed, 190. 
 in will cases, 191. 
 declarations of testator to show, 482. 
 
 UNIFORMITY OP LAW, struggle for, among judges, 9. 
 
 UNIFORMITY OP USAGE necessary, 464. 
 
 UNITED STATES MILITARY AND FISCAL OFFICERS, presumption ol 
 performance of official duty, 45 n. 47. 
 senators, judicially noticed, 109. 
 
 UNOFFICIAL ACrrS, presumption of their regularity, 48, 53. 
 
 , UNWRITTEN LAW. See Law, Statutes. 
 judicial notice of, 121. 
 
 USAGE. See Pabol Evtobnce to Explain Weitings, Customb. 
 of business, presumption as to acquaintance with, 57. 
 parol proof of, 457-467. 
 
 illustrations, 457 n. 26. 
 
 that custom of trade is to sell by sample, 457 n. 26. 
 
 that contract, apparently bailment, is sale, 457 n. 26. 
 
 as to payment of commissions, 457 n. 26. 
 
 as to principal and agent, 458. 
 
 when agent trades for principal, 458. 
 
 as to rules governing brokers, 458. 
 
INDEX. 1353 
 
 BEFEREWCE ABE TO SECTIONS. , 
 
 USAGE (continued) — 
 
 EiiS to bills of lading, 459. 
 
 when quantity is guaranteed, 459. 
 
 where law has fixed certain meaning to words, 459. 
 as to insurance contracts, 459. 
 
 when admissible to explain, 459. 
 as to contracts for services, 460. 
 
 holidays for workmen, 460. 
 
 workmen being absent without master's consent, 460. 
 as to customs between landlord and tenant, 461. 
 
 where lease is silent, 461. 
 
 wide latitude for explanation, 461. 
 as to right to straw, timber and manure, 461, 465 n. 60. 
 , as to deeds and grants, 461. 
 . general requisites, 462, 467. 
 
 must be reasonable, 462, 467. 
 
 presumption as to, illustrations, 462 n. 45. 
 
 as to compensation of agents, workmen, etc., 462 n. 45. 
 must be an established one, 463. 
 must be known, 464, 465. 
 
 length of time necessary, 463. 
 must be uniform, 464. 
 
 when that of a special trade or local usage, 464. 
 
 custom of an individual, 464. 
 
 when that of a profession or trade, 464. 
 
 In dealings between principals and brokers, 464. 
 must be consistent with the contract, illustrations, 465. 
 
 never admissible to contradict what is plain, 465. 
 need not be incorporated Into agreement, 465. 
 
 to apply to words and phrases to their subject matter, 465. 
 must be general, 466. 
 
 how proved to be general, 466. 
 what sufficient proof, 466. 
 
 when usage must be universal, 466. 
 must not conflict with public policy, 467. 
 must be lawful, 467. 
 
 as to statutes, 467. 
 common law, 467. 
 
 USER, long, presumption from, 76. 
 
 USURIOUS INTEJREST, loan for, relevancy of proof of similar, 140. 
 
 USURY, law of sister state as to, must be proved, 118 n. 78. 
 burden of proof as to, 178 n. 16, 179 n. 17. 
 
 when defense of, gives defendant right to open and close, 197 n. 69. 
 parol evidence to prove, 436 n. 19. 
 not bound to answer as to, 884 n. 99. 
 
1354 INDEX. 
 
 EEtEBENCE ABE TO SECTIONS. 
 
 V. 
 
 VALUE of goods or servcies, when irrelevant, 137. 
 of lands, what relevant to show, 168, 169. 
 estimate in community, not admissible, 297 n. 4. 
 
 not shown by appraisement, 297 n. 4. 
 opinions of ordinary witnesses as to, 363. 
 in agricultural matters, expert testimony as to, 382. 
 cross-examination as to opinions upon, 826. 
 of personal property, relevancy of collateral facts, 169. 
 of services, relevancy of collateral facts, 169. 
 expert testimony as to, 387. 
 
 qualifications necessary, 387. 
 
 VARIANCE between allegations and proof, fatal at common law, 232. 
 examples of, at common law, 232 
 defined, 232. 
 modem rules as to, 233, 234. 
 
 effect of defect or want of form, 233. 
 amendments, 233. 
 what proof required, 234. 
 three degrees of, 234. 
 
 immaterial variance, how treated, 234. 
 
 effect of, 234. 
 material variance, how treated, 234. 
 
 effect of, 234. 
 failure of proof, effect of, 234. 
 
 VELOCITY of trains, opinions as to, 362, 
 
 VENDEE See Vendor. 
 
 VENDOR, admissions of, comi>etent against vendee. See Admissiohb, 
 239-241, 244. 
 
 VERACITY, reputation of witness as to. See Witnesses, 859. 
 860, 900-903. 
 
 VERDICT, direction of, when court to make, 174. 
 when set aside, 174. 
 on opening statement of attorney, 257. 
 best evidence of, 200 n 11. 
 when competent without judgment, 621. 
 
 VERIFICATION, effect of, on admission in pleading, 272. 
 
 VESSELS, presumption of continuance of sea-worthiness of, 58 n. 2. 
 testimony of experts in insurance as to, 383. 
 of nautical men as to, 385. 
 
INDEX. 1355 
 
 EEFERENCES ABE TO SECTIOIfa 
 
 VIEW by the jury, 404. 
 
 former practice, 404. 
 
 now regulated by statute, 404. 
 testimony of juror as to improper, 768 n. 38. 
 discretionary with the court, 405, 406. 
 when to be granted, 406, 407. 
 
 in condemnation proceedings, 407. 
 
 in actions for negligence, 407. 
 
 in insurance cases, 407. 
 
 of personalty as well as realty, 407. 
 evidence in the case, 408, 409. 
 practice in equity oases, 409. 
 jury not to decide solely thereon, 409. 
 photographs instead of, 581. 
 
 VILLAGE, charter of, judicially noticed, 115. 
 ordinances of, judicially noticed, 116. 
 records of, as evidence, 508 n. 67, 514. 
 
 VIOLATION OP LAW, never presumed, 85. 
 
 VOICE, person may be Identified by, 361. 
 
 VOIR DIRE, competency of witnesses ascertained on, 795. 
 
 VOLUMES OP FOREIGN STATUTES, when admissible, 502. 
 
 VOLUMINOUS ACCOUNTS, results of, how proved, 206, 383, 386. 
 
 VOTING, fraudulent, relevancy of similar acts, 144. 
 
 w. 
 
 WAIVER, of notice to produce, 224. 
 
 of proof by attorney binding on client, of part of the relief, 257. 
 
 parol proof of, 443. 
 
 of proof by attesting witnesses, 527 n. 7. 
 
 of defects in depositions, notice, etc., 641. 
 
 by cross-examining witness, 641, 645, 646, 
 
 by failing to object, 645, 646 671. 
 
 by consent, 646, 671. 
 of objections to commissioner, 672. 
 
 to competency of witness, 671. 
 by failing to object to evidence, 675, 894. 
 of competency of party as witness, by calling him, 730. 
 of competency of husband and wife, 745, 746 
 of privilege of objecting to confidential communications, 739, 756, 761. 
 
1356 INDEX. 
 
 REFERENCES ASE TO SECTIONS. 
 
 WAIVER (continued) — 
 
 of objection to privileged communications to attorneys, 756. 
 right, how waived, 756. 
 to physicians, 759, 761. 
 of objection to testimony as to transactions with a deceased O'r In- 
 competent. See CoMrETENCT op Witnesses, 772-796. 
 by witness of payment of fees in advance, 747 
 of privilege as to crimination, 887, 890. 
 of motion to strike out evidence, 895. 
 
 WALLS, Inscriptions on, parol proof of, 205. 
 
 WAR, presumption of continuance of state of, 58 n. ... 
 state of, judicially noticed, 107. 
 existence of, rebutting presumption of payment, 69 n. 69. 
 
 WARD, when competent as to transactions with a deceased or incompetent 
 guardian, 777 n. 25. 
 
 WAREHOUSEMAN, burden of proof as to negligence of, 186. 
 can not deny title of bailor, 285. 
 
 WAREHOUSE .RECEIPT, as evidence, 493. 
 
 WARRANTOR, declarations of, after deed given, 297 n. 4. 
 declarations of, as res gestae, 352. 
 when bound by judgment, against warrantee, 593. 
 incompetent as to transactions with deceased or incompetent, 779. 
 
 WARRANTY, burden of proof as to, 178 n. 16, 179 n. 17. 
 not shown by parol, when written, 438. 
 when original must be produced, 200 n. 11. 
 by parol, accompanying bill of sale, 441. 
 with deeds, parol proof of, 487, 488. 
 
 WATCHMEN, presumption of authority of, 44. 
 
 WATER, courses of, presumption as to right of, 76 n. 8. 
 damage caused by, relevancy of collateral facts, 164. 
 
 WAY. See Highwat. 
 
 I'lglit of, presumption as to, 76. 
 
 WElAliTH, relevancy of, See Financial Standing, 159-162. 
 
 WEAPONS, opinions as to use and effect of, 378. 
 shown jury in criminal cases, 400 n. 35. 
 
 WEARING APPAREL, Inspection of, by jury, 399, 400 n. 35. 
 
 WEATHER, changes In, not judicially noticed, 129 n. 9, 134. 
 official records of, as evidence, 508 n. 66. 
 
INDEX. 1357 
 
 EEFEEBNCES ARE TO SECTIONS. 
 
 WEIGHT, of presumption of regularity of official acts, 41. 
 of presumption from sending or delivery of telegram, 53. 
 of presumption of continuance of existing state of things, 58. 
 of presumption of death after sev«n years absence, 61. 
 of presumption of payment from lapse of time, 67. 
 of presumption of marriage, 87. 
 of presumption of legitimacy, 93, 94. 
 of presumpiton of identity, 100. 
 
 of innocence, 103. 
 
 of sanity, 103. 
 of conflicting presumptions, 103. 
 of written admissions, 269. 
 of admission in pleadings, 272. 
 
 when allegations are on information or belief, 272. 
 of admissions, 295, 296, 
 
 WEIGHT OF EVIDENCE, when crime Is In issue in civil cases, 16, 195. 
 for jury, 174 898. 
 
 and "burden of proof," attempted distinction of terms, 177. 
 positive and negative, 898. 
 when circumstantial, 899, 
 
 presumption from non-production of evidence, 17-20, 22, 222. 
 admissions in pleadings, 272. 
 
 in general, 295, 296. 
 declarations as to boundaries, 304. 
 
 as to matters of public interest, 310. 
 
 as to pedigree, 317. 
 expert testimony. See Expert Testimony, 390-392. 
 
 as to handwriting, 556. 
 corporate records, as evidence, 515. 
 as to handwriting, 546, 549. 
 books of account as evidence, 575. 
 
 question for jury, 575. 
 of children, 740, 
 
 WEIGHTS AND MEASURES, tables of, as evidence, 578. 
 
 WHISKEY, judicial notice of intoxicating character of, 128. 
 
 WHISTLE, positive and negative testimony as to sounding of, 898. 
 
 WIDOW. See Husband and Wipe. 
 
 when competent as to transactions with a deceased or incompetent, 
 
 778. 
 
 WIFE. See Husband and Wife. 
 
 WILLS. See Ambiguitt, Declarations, Paeol Evidence to Explain 
 Writings. 
 presumptions relating to, 50. 
 
1358 INDEX. 
 
 EEFEEENCES ARE TO SECTIONS. 
 
 WILLS (continued ) — 
 by infants, 99. 
 
 presumption as to identity as to legacies In, 100. 
 conflict of rules as to burden in probate of, 189. 
 presumption as to sanity of testator, 189. 
 undue Influence, when presumed, 190. 
 
 what facts relevant to show, 190. 
 burden, where the writer is a beneficiary, 191. 
 best evidence of, 201 n. 12. 
 
 wihen lost, 212 n. 70. 
 secondary evidence as to contents, 218 n. 20. 
 as admissions, 270 n. 39. 
 
 declarations of scrivener as to mental incapacity of testator, 297 n. 4. 
 recitals in, to prove pedigree, 315. 
 not provable hy declarations against interest, 329. 
 
 same rule as to revocation, 329. 
 
 declarations affecting revocation of, when admissible as part of 
 res gestae, 344 n. 3. 
 trust created when legacy procured by fraud, 426. 
 parol proof inadmissible, to show mistake or omission, 475 n. 27. 
 
 or that "children" meant "illegitimate children," 475 n- 27. 
 parol proof as to, 475-484. 
 of mistakes In, 475. 
 as to intention of testator, 475. 
 terms not to be changed, 475. 
 to identify property, 476. 
 
 upheld though containing misdescriptions, 476. 
 
 effect of express assertion of ownership In, 476. 
 
 falsa demonstratio non nocet, 476. 
 to identify legatee, 477. 
 
 when no person precisely answers description, 477. 
 
 when more applicable to one person or subject than another, 478. 
 
 court may reject erroneous particulars, 478. 
 
 terms not to be changed, 278. 
 of meaning of words and terms, 479. 
 
 technical words, etc., 479. 
 of mere collateral statements, 479. 
 to explain latent ambiguity, 479, 480. 
 of declarations of testator, 479. 
 
 to determine whether document is will or deed, 480. 
 
 when partly applicable and partly inapplicable to several subjects, 
 480. 
 
 where children omitted from will, 480. 
 of declarations at time of making, 481. 
 
 when prior to execution of will, 481. 
 to show mental condition of testator, 482-483. 
 
 either to support or attack will, 482. 
 
 how limited as to time, 483. 
 
INDEX. 1359 
 
 lUilFEKENCES ABB TO SECTIONS, 
 
 WILLS (continued) — 
 
 only to show mental condition, 483. 
 
 Incompetent as to undue influence, fraud, duress, 483. 
 aliter when part of res gestae, 483. 
 as to wills, when lost, 484. 
 declarations of testator as to revocation, 484. 
 
 as to contents of former, 482 n. 66. 
 proof of, by attesting witnesses, 527. 
 federal statute as to proof of, by copy, 538. 
 presumption as to alterations made In, 563. 
 effect of probate of, 609. 
 
 proof of probate of, in sister states, 626 n. 34. 
 confidential communications of husband and wife as to, 735 n. 71, 
 
 736 n. 79. 
 instructions for drawing, when not privileged, 755. 
 
 when attorney signs as attesting witness, 755, 756. 
 probate of, beneficiaries may testify as to what, 792. 
 Impeachment of attesting witness, 866. 
 
 WITHDRAWING AND STRIKING OUT TESTIMONY, when allowed, 173, 
 814, 895. 
 when not responsive to question, 895. 
 eilect of receiving Incompetent evidence, 173, 895, 896. 
 
 WITHHOLDING EVIDENCE, presumption from, 17-22, 222, 287. 
 effect of, illustrations, 19-22, 222. 
 
 WITNESSES, testimony of deceased witnesses. See Heaesat Evidence, 
 336-343. 
 opinion of ordinary witnesses, when competent. See Opinions, 359- 
 
 -366. 
 expert witnesses. See Expeet Testimony, 366-392. 
 compelling attendance of, for tailing deposition, 653. 
 refusing to answer, suppression of deposition for, 689. 
 privilege of, upon examination of adverse party, 708. 
 classes of, incompetent at common law, 712. 
 sworn according to religious belief, 715. 
 
 as to transaction with deceased and incompetent persons. See Com- 
 petency OF Witnesses, 772-795. 
 mode of ascertaining competency of, 796. 
 failure to call, presumptions as to, 21. 
 presumption of identity from name, as to, 100 n. 67, 
 attendance of, 797-808. 
 parol proof of, 203 n. 18. 
 compelled by subpoena. See Subpoena, 797. 
 
 reasonable time for preparation necessary, 797. 
 either party may compel attendance, 797. 
 
1360 INDEX. 
 
 EEPEEENCES ARE TO SECTIONS. 
 
 WITNESSES (continued) — 
 fees ot, 798. 
 
 tendered In advance, 798. 
 
 may be waived, 798. 
 
 entitled to, although not examined, 798. 
 
 incompetent, 7S8. 
 when witness in several cases at same time, 798. 
 mode of eompelUng. See Contempt, Subpoena. 
 power inherent in courts, 799. 
 by attachment for contempt, 799. 
 when properly subpoenaed, 799. 
 
 when fee tendered in advance, 799. 
 not affected by witness' opinion of materiality, 799. 
 excuses for non-attendance, 799. 
 extraordinary effort to attend necessary, 799. 
 punishment for refusing to testify, 800. 
 testimony to be relevant, 800. 
 oompelllng production of books and papers. See Books and Papees, 
 
 DiscovEBT, Inspection, Subpoena Duces Tecum, 801, 802. 
 where witness is confined, 803. 
 
 writ of habeas corpws ad testiflcandum, 803. 
 when granted, 803. 
 
 discretionary with court, 803. 
 may be allowed in favor of party himself, 803. 
 the procedure, 803. 
 recognizance of witnesses to appear, 804. 
 committal in default of, 804. 
 sureties may be required, 804. 
 privileged from arrest„when, 805, 806. 
 
 privileged not confined to actual trial, 805. 
 nature and extent of privilege, 806. 
 as to non-resident, 805. 
 not on criminal process, 806. 
 contempt to violate privilege, 806, 
 remedy, when arrested, 806. 
 exclusion of, from court room, 807. 
 in discretion of court, 807. 
 object of order of, 807. 
 who are not excluded, 807. 
 during opening argument, 807. 
 attorney and party may consult witnesses, 807. 
 violation of order, effect of, 808. 
 
 will the testimony be rejected, 808. 
 new trial may be granted, 808. 
 may be punished for contempt, 808. 
 examination of, 809-819. 
 order of proof, 809-814. 
 
 lies in discretion of judge, 809-811. 
 
INDEX. 1361 
 
 BErEBENCES ABE TO SECTIONS. 
 
 WITNESSES (continued) — 
 
 usual order, 809. 
 
 evidence not to be given piecemeal, 809. 
 
 plaintiff must Introduce all evidence at first, 809. 
 relaxation of rule, 810. 
 
 reception of evidence out of order, illustrations, 811. 
 
 matter of judicial discretion, 811. 
 when subject to review, 811-815. 
 
 latitude allowed counsel as to, 812. 
 examples of, 810, 812. 
 
 must relevancy appear at the time, 173, 813. 
 
 to be shown that evidence will be competent, 813. 
 withdrawing testimony from jury, 813, 895. 
 
 caution as to admitting testimony until relevancy appears, 813. 
 recalling witnesses, 814, 852. 
 
 discretion of court as to, 814. 
 
 abuse of discretion, 814. 
 examination needlessly protracted, 814. 
 court may interfere on its own motion, 814, 842> 
 limiting number of witnesses, 8, 814, 900. 
 cumulative evidence, 814, 900. 
 
 discretion of court as to, 814. 
 judge questioning witness, 815. 
 comments by judge, 815. 
 protection of witnesses, 815. 
 jurors questioning witness, 814. 
 striking out irresponsive evidence, 815, 895. 
 leading questions. See Leading Questions, 816-819. 
 cross-examination of, how limited, 820-843. 
 
 as to writings, 231. 
 subject matter of direct examination, 820. 
 
 extension of rule in some jurisdictions, 820. 
 matters testified to only by others, 820. 
 evidence stricken out, 820. 
 
 substantive defense or claim of cross-examiner, 820, 821. 
 general subject, full cross-examination as to, 821. 
 not bound by line of examination-in-chief, 821. 
 limits of, in discretion of court, 821. 
 
 abuse of discretion, error, 821. 
 
 transactions only partly explained, 821. 
 
 object of, to elicit whole truth, 821. 
 
 in fraud cases, 821. 
 by several counsel, 814. 
 
 when representing separate parties, 814 n. 91. 
 details and particulars called forth by, 822, 826. 
 
 where only part of conversation given, 822. 
 improbability of direct testimony shown by, 822. 
 86 
 
1362 INDEX. 
 
 EEFERENOES ARE TO SECTIONS. 
 
 WITNESSES (continued) — 
 
 questions discrediting or impeaching tfitness, 822. 
 
 questions sliowing interest, prejudice or motive, 822.' 
 
 questions testing accuracy, intelligence or means of knowledge, 822. 
 
 facts part of res gestae, 823. 
 
 leading questions, 824. 
 
 limits rest In discretion of court, 824. 
 as to new matters when allowed, 824. 
 how long right continues, 825. 
 recalling witness for, 825, 846. 
 releyancy, more liberal rule as to, 826. 
 
 examples of, in attacking credibility, 826. 
 
 as to opinions, latitude allowed, 826. 
 
 as to testimony on former trial, 826. 
 
 as to discrepancies between testimony and pleadings, If a party, 
 826. 
 
 as to particulars of transactions, 826. 
 questions as to wholly irrelevant matter, 826-828. 
 
 questioner bound by answer, 827, 844. 
 example of, 827 n. 91. 
 
 In such cases, error to allow contradiction, 827. 
 impeachment for partiality, interest, hostility, etc., 828. 
 cross-examiner not concluded by answer as to, 828, 850, 
 
 examples of, 828 n. 95. 
 
 extent of cross-examination, discretion as to, 828. 
 
 shown by other witnesses, 828. 
 bias shown by contradicting witness, 829. 
 
 direct and positive evidence necessary, 829. 
 
 discretion of judge as to abuse of, 829. 
 
 cause or details of, when not relevant, 829. 
 on collateral matters to affect credibility, 830-834. 
 discretion of court as to, 833, 834. 
 when reviewed on appeal, 833, 834. 
 error how cured, 832. 
 
 as to residence, occupation, association of witnesses, 832 n. 29. 
 833 n. 30. 
 former conviction, indictment, arrest, etc., 838, 839. 
 
 as to arrests and indictments, 838. 
 
 statutes as to proof of former conviction 838. 
 cross-examination as to convictions, 839. 
 where party is witness, 837. 
 questions not affecting credibility but merely tending to disgrace, 833. 
 
 not admissible, examples of, 833 n. 30. 
 method and extent of examination, 842. 
 
 discretion of trial judge as to, 842. 
 
 judge may interfere of his own motion, 842. 
 reviewed on appeal, if right unduly restricted, 842. 
 
INDEX. 1363 
 
 BEFEBENCES ASE TO SEOTIOK^^ 
 
 WITNESSES (continued) — 
 
 repeating questions, 842. 
 frivolous objections, 842t 
 broad latitude given to, 843. 
 limitations on right of, 843. 
 
 questions not to assume facts not proven, 843. 
 liearsay inadmissible, 843. 
 
 when not stricken out, 843. 
 confined to facts, 843. 
 
 opinions generally inadmissible, 843. 
 parol proof of written instrument, 843. 
 qiwstions tending merely to disgrace or degrade witness, 830-536. 
 admitted when material to Issue, 835, 837. 
 rule when immaterial, 833. 
 
 except as they tend to affect credibility, 834. 
 
 conflict as to the rule, 830, 831. 
 discretion of judge as to such questions, 831, 834. 
 when subject to review, 834. 
 
 examples of questions allowed, 832 n. 29. 
 examples of questions excluded, 833 n. 30. 
 general tendency of the decisions, 832. 
 
 Independent evide'nce of specific misconduct not admissible, 840. 
 when compelled to answer as to vicious or criminal acts, 835. 
 of party who becomes witness, 836. 
 
 discretion of court as to latitude allowed, 836. 
 in general, subject to the same rules as other witnesses, 836. 
 different rule in some jurisdictions, 836. 
 as to matters that tend to criminate, 836. 
 
 to what extent confined to matters of direct examination, 837. 
 conflict as to, 837. 
 In actions where chastity of women is in issue, 841. 
 as to specific acts of unchastity, 153, 841. 
 conflict as to rule, 841. 
 of witnesses called to impeach, 864, 887. 
 
 discretion of judge as to, 864. 
 as to means of knowledge, 864.. 
 as to partiuclar acts, 864. 
 impeachment of witnesses, 844-870. 
 
 leading questions to show contradictory statements, 818. 
 for partiality, examples of, 828. 
 
 may be shown by other witnesses, 828. 
 extent of, in discretion of court, 828. 
 questions as to vicious or criminstl acts, 838. 
 by cross-examination. See Witnesses, 822. 
 other modes of, 844. 
 
 by disproving statements by other witnesses, 844. 
 by proving bad character, 153, 847. 
 
1364 INDEX. 
 
 BEFEBENCES ABE TO SECTIONS. 
 
 WITNESSES (continued) — 
 
 62/ proof of contradictory statements, 844, 858. 
 
 witness first asked concerning such statements, 845. 
 contradictory actions as well as statements, 845. 
 time, place and persons to be designated, 845, 846. 
 
 proof of contradictory statements, when not admitted, 845, 849. 
 exact precision unnecessary, 846. 
 exact language unnecessary, 846. 
 mere general questions no foundation, 846. 
 leading questions as to, 846. 
 statements at former trials, 846. 
 by deceased witnesses, 846. 
 by absent witness, 846. 
 recalling witness to lay foundation for, 846, 852. 
 
 mode of impeaching witness by his written statements, letters, 
 847, 848. 
 when may cross-examiner otter same in evidence, 847. 
 best erldenoe of, 847. 
 In case writing is lost, 847. 
 when collateral to issue, 847. 
 practice in case of depositions, 848. 
 of affidavits, 847. 
 of dying declarations, 848. 
 of declarations of attesting witnesses, 846. 
 parts offered, rest competent, 847, 848. 
 when denial not necessary, 845, 849. 
 direct contradiction not necessary, 849. 
 
 inconsistency or conflict sufficient, 849. 
 contradictory opinions, 850. 
 
 when competent for impeachment, 850. 
 hostility, expressions of, 850. 
 foundation for proof of, 850. 
 of parties, ordinary rules do not apply, 851. 
 such statements, admissions, 851. 
 no foundation necessary, 851. 
 may explain on re-examinatlon, 852. 
 
 scope of such explanation, 852. 
 party cannot impeach his ovm witness, 853-855. 
 by proving him unworthy of belief, 853, 854. 
 proof of former contradictory statements, 853, 854. 
 the general rule, 853. 
 
 conflict as to, 853, 854. 
 remedy where party surprised or deceived by witness, 854. 
 statutes as to, in case party is adverse, 854. 
 
 in case of surprise or deception, 854. 
 when adverse party is called as witness, 855. 
 
INDEX. 1866 
 
 BBFEBENCES ABE TO SECTIONS. 
 
 WITNESSES (continued) — 
 
 ■when witness of adverse party Is called, 855. 
 
 exception in case of subscribing witnesses, 856. 
 limitation as to, 856. 
 
 statutes affecting the rule, 855, 856. 
 written instruments not witness^, 856. 
 
 may be impeached, 856. 
 party not bound to accept testimony of his own witness aa eorreat, 8BT. 
 
 may accept part, 857. 
 
 and disprove rest of testimony, 857, 858. 
 
 where adversary is his witness, 858. 
 effect of impeaching testimony, 858. 
 
 does not establish truth of contradictory statements, 858. 
 6y proof of bad reputation for veracity, 859. 
 terms "reputation" and "character," 859. 
 knowledge of impeaching witness, 859. 
 
 nature and extent of, 859. 
 stranger not competent, 859. 
 discretion of court as to range of inquiry, 859. 
 only general reptitatlon for truth and veracity, 860. 
 
 not individual opinion, 860. 
 
 nor particular facts, examples, 860. 
 inquiry as to moral character generally, 861. 
 
 conflicting views, 861. . 
 order of questioning impeaching witness, 861. 
 inquiries as to believing witnesses under oath, 862. 
 
 conflict as to, 862. 
 
 effect of, 863. 
 
 cross-examination of impeaching witness, 864. 
 sustaining and corroborating impeached untness, 865-870. 
 sustaining impeached witness, 865, 866. 
 laying foundation, 865. 
 until attacked, proof of good character inadmissible, 865. 
 
 what attack admits proof of good character, 867. 
 
 mere proof of contradictory statements not sufficient, 868. 
 exceptions, 868. 
 
 disproving statements of witness, 868. 
 sustaining, witness to have knowledge of reputation, 865, 866. 
 sustaining where attack is unsuccessful, 866. 
 collateral attack on cross-examination, 867. 
 
 conflicting views as to, 867. 
 
 where proof is given of conviction of crime, 867. 
 as to arrests and indictments, 867. 
 proof of reformation, to sustain, 867. 
 not corroborated by introducing former statements, 869, 870. 
 
 except when fabricated or wrongful design imputed, 870. 
 
 In action for rape, 870. 
 
 to show opportunity of knowledge, 870. 
 
1366 INDEX. 
 
 EEFEKENCES ABE TO SECTIONS. 
 
 WITNESSES (continued) — 
 re-ea;am.ination of, oiject of, 871-873. 
 
 is a right, 871. 
 to allow explanation, etc., examples, 872. 
 
 but not reasons for animosity, 872. 
 
 nor details of trouble, 872. 
 details of conversations, 873. 
 
 but not as to wholly Independent matters, 873. 
 
 nor hearsay narration, 873. 
 no right to take up new matters, 873. 
 explaining irrelevant testimony, 873. 
 discretion of court as to limits of, 873. 
 re-cross-examination, when allowed, 873. 
 refreshing memory of. See Refkeshing Memoet, 874-883. 
 privilege of, 884-892. 
 not compelled to criminate themselves, illustrations, 730, 884. 
 reasons for the rule, 884. 
 
 its history, 884. 
 constitutional and statutory provisions as to, 884. 
 where facts would only tend to criminate, 885. 
 
 to be reasonable ground for danger, 885. 
 statement of witness, not conclusive, 886. 
 
 court should be satisfied, 886. 
 latitude allowed the witness, 886. 
 
 not required to explain how it would criminate, 886. 
 
 If it would open way to exposure on cross-examination, 886. 
 extends to acts as well as words, 887. 
 YlHien. to be claimed, 887. 
 
 privilege, how waived, 887. 
 
 by submitting to inspection, 887. 
 
 by giving testimony concerning the matter, 887. 
 
 if done in ignorance or. under misapprehension, 887. 
 
 In case a party is witness, 887. 
 only when testimony could be used to convict, 888. 
 
 when statute of limitations bars action, 888 n. 27. 
 
 when nolle pros has been entered, 888 n. 27. 
 promise of prosecutor not to prosecute does pot change rule, 888. 
 statutes, 888, 889. 
 
 taking away privilege and forbidding prcsecution, 888. 
 must afford absolute immunity, 889. 
 how claimed, 890. 
 by whom claimed, 887, 890. 
 
 compulsory answer, when duress, 890. 
 when judge should apprise witness of hla privilege, 890. 
 effect of claiming, 891. 
 inferences from claiming, 891. 
 as to penalties and forfeitures, 892. 
 
 not for mere pecuniary loss, 892. 
 
INDEX. 1367 
 
 REFERENCES ARE TO SECTIONS. 
 
 WITNESSES (continued) — 
 general rules, 893-899. 
 
 objections and exceptions to evidence, 893, 894. 
 
 competency presumed, 893. 
 
 judge may exclude Improper testimony on own motion, 893. 
 
 waiver of objection, 894. 
 
 withdrawing and s.trlklng out evidence, 895. 
 
 waiver of motion to strike out, 895. 
 
 effect of Improper admission and exclusion of evidence, 896, 897. 
 
 weight of evidence, 898. 
 
 positive and negative, 898. 
 number of, 900. 
 
 when controlled by court, 900. 
 in special cases, 901. 
 credibility of, 901-903. 
 
 one Interested in results, 901. 
 
 an accomplice, 901. 
 
 the accused, 901. 
 
 attesting witnesses, 901. 
 
 insane persons, 901. 
 
 Intoxicated persons, 901. 
 
 one convicted of crime, 901. . 
 
 jury to pass upon, 902. 
 falsus in iino, falsus in omnAbus, 903. 
 illustrations of rule, 903. 
 
 effect of swearing falsely as to material fact, 903. 
 presumptions as to, presumed to have testified truthfully, 13 n. 27. 
 
 WORDS. See Parol Evidence to Explain Writings, Phrases, UfAfiE. 
 parol proof as to their meaning, 455. 
 in wills, parol proof of meaning of, 479. 
 
 WORDS AND PHRASES, judicial notice of meaning of, 130. 
 
 WOUNDS, opinions as to nature and cause of, 378. 
 
 WRITINGS. See Authentication, Copies, Documents Reoobds. 
 whole context to be received, 172, 293, 294, 685, 848 
 construction of, question for court, 175. 
 of a public nature, best evidence of, 200 n. 11. 
 
 parol proof of, when of such nature that they cannot be produced, 205. 
 admissions concerning, English Jule, 207. 
 
 American rule, 208. 
 alteration of. See Alteration, 557-566. 
 rule as to confidential communications to attorney includes, TM. 
 
 WRITS, when original must be produced, 200 n. 11. 
 best evidence of, when lost, 212 n. 70. 
 
1368 INDEX. 
 
 EBFEEENCES ABE TO SECTIONS. 
 
 WRITTEIN EVIDENCE. See Copies, Documents, Recoeds, "Weitwqs. 
 
 WRITTEN INSTRUMENTS, not proved by parol on cross-examinatlan, 843. 
 Impeached by party producing same, 856. 
 
 WRONG-DOER, presumption of guilt from contemporaneous aetg, 13 n. 25. 
 
 WRONG-DOERS, wben bind one another by admissions, 254. 
 
 WRONGFUL ACTT, similar, relevancy of proof of, 140. 
 
 X. 
 
 X-RAY PHOTOGRAPHS, admissibility of, 581 n. 3. 4 
 
 Y. 
 
 YEAR, judicial notice of divisions of, 129. 
 
 z. 
 
 ZEAL, infirmity of experts because of, 390. 
 
^ 8935 JY6 1908 
 
 Author Vol. 
 
 Jones, Burr W. 
 
 Title Copy ' 
 
 The Law of Evidence in Civil Cases- 
 
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